their Iurisdictions and Authority and to punish the same by admonition excommunication sequestration or deprivation and other censures and process in like form as heretofore hath béen used in like Cases by the Quéens Ecclesiastical Laws Provided always and be it enacted None shall be punished twice for the same Offence That whatsoever persons offending in the premisses shall for their offences first receive punishment of the Ordinary having a Testimonial thereof under the said Ordinaries Seal shall not for the same Offence eftsoons be convicted before the Iustices And likewise receiving for the said first Offence punishment by the Iustices shall not for the same Offence eftsoons receive punishment of the Ordinary Any thing contained in this Act to the contrary notwithstanding This Clause being in the affirmative doth not abrogate the Jurisdiction Ecclesiastical Ecclesiastical Jurisdiction not abrogated which was in the Ecclesiastical Judge before the making of the Statute for that no Negative words are here added as that he should proceed no otherwise or in no other manner or form than this Statute directs And therefore if any Parson Vicar c. deprave or observe not the Book of Common Prayer although this Act inflicts only the forfeiture of a years value and six months Imprisonment for the first Offence yet the Ecclesiastical Judge may for the first Offence deprive him notwithstanding this Act as he might have done if no form of punishment had been here appointed And the said Book being enjoined by Authority the Offence of depraving or non-observing it is punishable by the Ecclesiastical Judge according to the Ecclsiastical Law without the further aid of any Temporal Law then the commanding it to be observed Co. 5.5 6. Cawdries Case And in such Case the Sentence of Deprivation given by the Ecclesiastical Judge though it exceed the punishment inflicted by the Temporal Law is not to be questioned by the Temporal Judges but they ought to give Faith and Credit to it For cuilibet in sua arte perito est credendum Cawdries Case fol. 7. Co. 4.29 Bunting and Heppingwells Case Provided always and be it enacted Stat. Sect. 13. Ornaments of the Church and Ministers That such Ornaments of the Church and of the Ministers thereof shall be retained and be in use as was in this Church of England by Authority of Parliament in the second year of the Reign of King Edward the Sixth until other Order shall be therein taken by the Authority of the Quéens Majesty with the advice of her Commissioners appointed and authorized under the Great Seal of England for Causes Ecclesiastical or of the Metropolitan of this Realm And also That if there shall happen any Contempt or Irreverence to be used in the Ceremonies or Rites of the Church by the mis-using of the Orders appointed in this Book the Queéns Majesty may by the like advice of the said Commissioners or Metropolitan ordain and publish such further Ceremonies or Rites as may be most for the advancement of Gods Glory the Edifying of his Church and the due Reverence of Christs holy Mysteries and Sacraments All Laws and Ordinances made for other Service shall be void And be it further Enacted by the Authority aforesaid That all Laws Statutes and Ordinances wherein or whereby any other Service Administration of Sacraments or Common Prayer is limited established or set forth to be vsed within this Realm or any other the Queéns Dominions or Countries shall from henceforth be utterly void and of none effect Stat. v Eliz. cap. i. An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Dominions FOR preservation of the Queéns most Excellent Highness her Heirs and Successors Stat. and the Dignity of Sect. 1 the Imperial Crown of this Realm of England And for the avoiding both such hurts perils dishonors and inconveniencies as have before time befallen as well to the Quéens Majesties noble Progenitors Kings of this Realm as for the whole Estate thereof by means of the Iurisdiction and Power of the Sée of Rome unjustly Claimed and Vsurped within this Realm and the Dominions thereof and also of the dangers by the fauters of the said usurped Power at this time grown to marvelous outrage and licentious boldness and now requiring more sharp restraint and correction of Laws than hitherto in the time of the Queéns Majesties most mild and merciful Reign have béen had used or established Be it therefore Enacted Ordained and Established Stat. by the Quéen our Soveraign Lady and the Lords Spiritual and Sect. 2 Temporal The Penalty for maintaining the Authority of the Bishop or See of Rome and the Commons in this present Parliament assembled and by Authority of the same That if any Person or Persons dwelling inhabiting or resiant within this Realm or within any other the Quéens Dominions Seigniories or Countries or in the Marches of the same or elsewhere within or under her Obeysance and Power of what Estate Dignity Preheminence Order or Condition soever he or they be after the first day of April which shall be in the year of our Lord God One thousand five hundred sixty thrée shall by Writing Typhering Printing Preaching or Teaching Déed or Act advisedly and wittingly hold or stand with to extol set forth maintain or defend the Authority Iurisdiction or Power of the Bishop of Rome or of his Sée heretofore claimed used or usurped within this Realm or in any Dominion or Country being of within or under the Queéns Power or Obeisance or by any Spéech open Déed or Act advisedly and wittingly attribute any such manner of Iurisdiction Authority or Preheminence to the said Sée of Rome or to any Bishop of the same Sée for the time being within this Realm or in any the Quéens Dominions or Countries that then every such Person or Persons so doing or offending their Abbettors Procurers and Counsellors and also their aiders assistants and comforters upon purpose and to the intent to set forth further and extol the said usurped Power Authority or Iurisdiction of any of the said Bishop or Bishops of Rome and every of them being thereof lawfully Indicted or Presented within one year next after any such Offences by him or them Committed and being lawfully Convicted or Attainted at any time after according to the Laws of this Realm for every such Default and Offence shall incur into the dangers penalties pains and forfeitures Ordained and Provided by the Statute of Provision and Praemunire made in the Sixtéenth year of the Reign of King Richard the Second Hold or stand with c. or attribute The Printers of any Book which attributes to the Pope or See of Rome any such Authority or Jurisdiction within this Realm Printing bringing in offering and delivering of Books c. and the utterers thereof in most Cases are within the danger of this Law and if any man bring over such Books Written beyond the Seas knowing the
the contrary thereof in any wise notwithstanding This Branch seems not to extend to all forfeitures for Recusancy For the power here given the Lord Treasurer To what cases of Conviction this Clause extends and to what not c. is only in relation to those forfeitures which are by this Act appointed to be paid into the Receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act meddles with no other so that if the twenty pounds per month be recovered in a popular Suit by the Informer Qui tam c. one third part thereof ought still to be paid to the Poor of the Parish only according to 23 Eliz. cap. 1. notwithstanding this Act. Provided always That this Act Stat. Sect. 9. Assurances made bona fide not to be impeached or any thing therein contained shall not in any wise extend or be construed to make void or impeach any Grant or Lease heretofore to be made bona fide without fraud or covin whereupon any yearly Rent or payment is reserved or payable or any Grant or Lease hereafter to be made bona fide without fraud or covin whereupon the accustomed yearly Rent or more shall be reserved or any other Conveyance Assurance or Assignment whatsoever heretofore made bona fide upon good consideration and without fraud or covin which is not or shall not be revokable at the pleasure of such Offender otherwise then to give benefit and title to her Majesty her Heirs and Successors to have perceive and enjoy such Rents and Payments during the continuance of such Lease or Grant according to the true meaning of this Act. Seizure of Lands whereof the Offender hath but an Estate for life or in his Wives right And provided also That this Act or any thing therein contained shall not in any wise extend or be construed to continue any seizure of any Lands or Tenements of such Offender in her Majesties hands or in the hands of her Heirs or Successors after the said Offenders death which Lands or Tenements he shall have or be seized of only for term of his life or in the Right of his Wife Any thing in this Act to the contrary in any wise notwithstanding Stat. xxxv Eliz. cap. i. An Act to retain the Queens Majesties Subjects in their due Obedience FOR preventing and avoiding of such great inconveniencies and perils as might happen and grow by the wicked and dangerous practices of seditious Sectaries and disloyal persons Stat. Sect. 1. The penalty of a Recusant perswading others to impugne the Queens Ecclesiastical power Be it Enacted by the Queéns most Excellent Majesty and by the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That if any person or persons above the age of sixteen years which shall obstinately refuse to repair to some Church Chappel or usual place of Common Prayer to hear Divine Service established by her Majesties Laws and Statutes in that behalf made and shall forbear to do the same by the space of a month next after without any lawful cause shall at any time after forty days next after the end of this Session of Parliament by Printing Writing or express words or speéches advisedly or purposely practise or go about to move or perswade any of her Majesties Subjects or any other within her Highness Realms or Dominions to deny withstand and impugne her Majesties Power and Authority in cases Ecclesiastical united and annexed to the Imperial Crown of this Realm or to that end or purpose shall advisedly and maliciously move or perswade any other person whatsoever to forbear or abstain from coming to Church to hear Divine Service Or to forbear coming to Church or to receive the Communion according to her Majesties Laws and Statutes aforesaid or to come to or to be present at any unlawful Assemblies Conventicles or Meétings under colour or pretence of any exercise of Religion Or to be present at unlawful Conventicles contrary to her Majesties said Laws and Statutes Or if any person or persons which shall obstinately refuse to repair to some Church Chappel or usual place of Common Prayer and shall forbear by the space of a month to hear Divine Service as is aforesaid shall after the said forty days either of him or themselves or by the motion perswasion inticement or allurement of any other willingly joyn in or be present at any such Assemblies Conventicles or Méetings under colour or pretence of any such exercise of Religion contrary to the Laws and Statutes of this Realm as is aforesaid That then every such person so offending as aforesaid and being thereof lawfully convicted shall be committed to Prison there to remain without Bail or Mainprize until they shall conform and yield themselves to come to some Church Chappel or usual place of Common Prayer and hear Divine Service according to her Majesties Laws and Statutes aforesaid and to make such open submission and Declaration of their said Conformity as hereafter in this Act is declared and appointed Which shall obstinately refuse to repair c. shall c. by Printing c. Wingate in abridging of this Statute tit Crowne numb 70. saith that if any person above sixteen years of age obstinately refuses to come to Church for a month or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison which is a great mistake for no man shall be punished by this Act for either of those Causes only The not coming to Church being only a precedent Qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Who may be an offender within this Act and who not And therefore if a man never comes to Church yet he is no offender within this Act unless he advisedly or purposely move or perswade another to deny or impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and maliciously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or he himself be present at such Conventicles c. And on the other hand if a man move or perswade any other to deny or impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at any Conventicles c. yet he is no Offender within this Act if he goes to Church once within the compass of a month so that the party must both forbear to come to Church and be guilty of some other of the offences here enumerated or he is not punishable by this Act And as for the denying or impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or
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
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
be understood of such an Estate as he may lawfully forfeit And the general words of the Statute of Praemunire Stat. 16 R. 2. 5. W. 2. 1. 16 R. 2. c. 5. scil Lands and Tenements shall not take away the force of the Statute de donis Conditionaelibus Co. 1. Inst 130. 391. Co. 11. 63. Godbolt 308. Lord Sheffeild and Ratcliffe And the person attainted in a Praemunire is disabled to be a Witness in any Cause Co. 1. Inst 6. or to Sue For Attainder in a Praemunire is a good plea in disability of the Plaintiff A person attainted in a Praemunire was out of the Kings Protection Sc. 25 E. 3. 22. according to Littleton 41. By the Statute of 25 E. 3. cap. 22. which saith That a man attainted in a Praemunire shall be out of the Kings Protection and it may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Bro. Coron 196. Vide Bulstrode 2. 299. Sir Anthony Mildmay's Case And this Sir Edward Coke Co. 7. 14. Calvins Case Co. 12. 38. seemeth to allow for Law before this Statute of 5 Eliz. and positively affirms it to have been Law in his 1 Inst 130. and yet in the same Case of Calvin he saith that in that Statute of 25 E. 3. is intended only a legal Protection according to Littleton 41. and so likewise he expounds it in his 3d Inst. 126. But yet that the party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had killed him without Warrant he should have been punished by Law as a manslayer And this sort of Protection by the Law of Nature saith he is indelebilis immutabilis which the Parliament could not take away But yet under favour if a man attainted in a Praemunire were before this Act of 5 Eliz. under that indeleble and immutable Protection of the King given by the Law of Nature then the Opinion held in Brooke and allowed by himself was not Law But if that Opinion in Brooke were Law and any man might before this Statute have killed a man attainted in a Praemunire and that by force of the Statute of 25 E. 3. it follows that the Protection which the Law of Nature giveth is not indelebilis or immutabilis but that an Act of Parliament might in a particular Case take it away But there is now no further need of this Question in the Case of a Praemunire For if this Protection by the Law of Nature were taken away by 25 E. 3. it is now restored by this Statute and no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or Treason Provided always Stat. Sect. 15. Upon what proof only any person may be indicted and be it Enacted by the Authority aforesaid That no person or persons shall hereafter be Indicted for assisting aiding maintaining comforting or abetting of any person or persons for any the said Offences in extolling setting forth or defending of the usurped Power and Authority of the Bishop of Rome unless he or they be thereof lawfully accused by such good and sufficient testimony or proof as by the Iury by whom he shall so be Indicted shall be thought good lawful and sufficient to prove him or them guilty of the said Offences Stat. xiii Eliz. cap. ii An Act against the bringing in and putting in Execution of Bulls Writings or Instruments and other Superstitious things from the See of Rome Stat. Sect. 1. A rehearsal of the Stat. of 5 El. 1. touching the abolishing of the Authority of the Bishop and See of Rome WHere in the Parliament holden at Westminster in the fifth year of the Reign of our Sovereign Lady the Quéens Majesty that now is by one Act and Statute then and there made Intituled An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Highness Dominions it is among other things very well ordained and provided for the abolishing of the usurped Power and Iurisdiction of the Bishop of Rome and of the See of Rome heretofore unlawfully claimed and usurped within this Realm and other the Dominions to the Quéens Majestie belonging That no person or persons shall hold or stand with to set forth maintain defend or extol the same usurped Power or attribute any manner of Iurisdiction Authority or Preheminence to the same to be had or used within this Realm or any the said Dominions upon pain to incur the danger penalties and forfeitures ordained and provided by the Statute of Provision and Praemunire made in the sixteenth year of the Reign of King Richard the second as by the same Act more at large it doth and may appear And yet nevertheless divers seditious and very evil disposed people without respect of their Duty to Almighty God or of the Faith and Allegiance which they ought to bear and have to our said Sovereign Lady the Quern and without all fear and regard had to the said good Law and Statute or the pains therein limited but minding as it should seem very seditiously and unnaturally not only to bring this Realm and the Imperial Crown thereof being in very deed of it self most free into the thraldom and subjection of that Forreign usurped and unlawful Iurisdiction Preheminence and Authority claimed by the said See of Rome but also to estrange and alienate the minds and hearts of sundry her Majesties Subjects from their dutiful obedience and to raise and stir Sedition and Rebellion within this Realm to the disturbance of the most happy peace thereof have lately procured and obtained to themselves from the said Bishop of Rome The effect of Bulls brought from Rome and his said Sée divers Bulls and Writings the effect whereof hath been and is to absolve and reconcile all those that will be contented to forsake their due obedience to our most gracious Sovereign Lady the Queens Majesty and to yield and subject themselves to the said fained unlawful and usurped Authority and by colour of the said Bulls and Writings the said wicked persons very secretly and most seditiously in such parts of this Realm where the people for want of good instruction are most weak simple and ignorant and thereby farthest from the good understanding of their Duties towards God and the Quéens Majesty have by their lewd and subtile practises and perswasion so far forth wrought that sundry simple and ignorant persons have been contented to be reconciled to the said usurped Authority of the See of Rome and to take absolution at the hands of the said naughty and subtile practicers whereby hath grown great dissobedience and boldness in many not only to withdraw and absent themselves from all
persons authorized or claiming Authority by or from the said Bishop or Seé of Rome to Consecrate or Hallow the same which said Agnus Dei is used to be specially Hallowed and Consecrated as it is termed by the said Bishop in his own person and the said Crosses Pictures Beads and such like superstitious things been also hallowed either by the same Bishop or by others having power or pretending to have power from him or his said Sée and divers Pardons Immunities and Exemptions granted by the Authority of the said Sée to such as shall receive and use the same and that if the same person or persons so bringing in as is aforesaid such Agnus Dei and other like things as have been before specified shall deliver or cause or offer to be delivered the same or any of them to any Subject of this Realm or of any the Dominions of the same to be worn or used in any wise that then as well the same person and persons so doing as also all and every other person or persons which shall receive and take the same to the intent to use or wear the same being thereof lawfully Convicted and Attainted by the order of the Common Laws of this Realm shall incur into the dangers penalties pains and forfeitures ordained and provided by the Statute of Praemunire and Provision made in the sixteenth year of the Reign of King Richard the Second Bringers in offerers and deliverers And that if the same Person or Persons so bringing in A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers or delivers them It seems that neither he that brings them in nor he that offers or delivers them is within this Act or liable to the penalty for by the express words it must be the same person So that neither the bringer in unless he offer or deliver them or cause them to be delivered nor he who delivers them or causeth or offereth them to be delivered unless he be the person who brought them in is an Offender within the Act. To whom an Agnus Dei c. may not be offered or delivered To any Subject of this Realm c. The offer or delivery of such Agnus Dei or other superstitious thing to any sort of person is not an offence within this Act as Wingate supposes it to be tit Crown Numb 37. But to make it an Offence it must be delivered or offered to a Subject of this Realm or of the Dominions of the same The intent material To be worn or used c. to the intent to use or wear the same The Intent is material in this Case an◠therefore If a man be Indicted upon this Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence So in an Indictment upon the Statute of 5 E. 6. cap. 4. Stat. 5 E. 6. 4. it is not enough to say the party drew his Dagger in the Church against J. S. but it must be averred that he did it with an intent to strike him as was Resolved by the Court of Kings-Bench Trin. 33 Eliz. in Penhalls Case Leonard 4. 49. C. 127. It seems by the words of this Statute that to make the Receiver of such superstitious things an offender within it there must be a concurrence of intentions for the using or wearing them both in the giver and receiver And that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent that they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute a condition precedent to the obliquity of the fact in receiving them for the Statute saith Then as well the person so doing as also every other person receiving them to that intent shall incur a Praemunire So that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incur a Praemunire But yet there needs not any such concurrence of intentions in the giver and receiver to make the giver an offender And therefore if a man brings into the Realm such superstitious things and delivers them to be worn or used though the party receive them not to the intent to use or wear them but defaces burns or otherwise destroies them yet he that gave or delivered them incurs a Praemunire for the words in the Act relating to the Offerer or Deliverer are intire in themselves and have no dependance on the subsequent words relating to the receiver but generally make all Offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them Provided nevertheless Stat. Sect. 7. Apprehending an Offender or disclosing his name and be it further Enacted by the Authority aforesaid That if any person or persons to whom any such Agnus Dei or other the things aforesaid shall be tendered and offered to be delivered shall apprehend the party so offering the same and bring him to the next Iustice of Peace of that Shire where such tender shall be made if he shall be of power and able so to do or for lack of such ability shall within the space of three days next after such offer made as is aforesaid disclose the name or names of such person or persons as so shall make the same offer and the dwelling place or place of resort of the same person or persons which he shall indeavor himself to know by all the ways and means he can to the Ordinary of that Diocess or to any Iustice of Peace of that Shire where such person or persons to whom such offer shall be made as is aforesaid shall be resiant And also Delivering of Agnus Dei received to the Ordinary or a Justice of Peace if such person or persons to whom such offer shall be made shall happen to receive any such Agnus Dei or other thing above remembred and shall within the space of one day next after such receipt deliver the same to any Iustice of Peace within the same Shire where the party so receiving shall be then resiant or shall happen to be That then every such person or persons doing any the Acts or things in this Proviso above mentioned in forme above declared shall not by force of this Statute incur any danger or penalty appointed by this Statute or
Statute to proceed against Recusants and taken from them by 29 Eliz. nor doth that following Clause in 3 Jac. touching Conviction by Proclamation impeach this or restrain the Justices of Peace to proceed to Conviction upon Proclamation only and default of appearance no more than the Justices of Assize or Gaol delivery are restrained thereby or by 29 Eliz. which gives them likewise Authority to proceed by Proclamation For both these Clauses of 3 Jac. are in the Affirmative viz. First That the Justices of Peace shall have power to hear and determine the Offence of not coming to Church according to former Laws in such manner as Justices of Assize and Gaol delivery might do And those Justices might hear and determine that Offence according to this Statute of 23 Eliz. 23 Eliz. 1. And then comes the next Clause of 3 Jac. That the Justices of Peace shall have power to convict by Proclamation which is purely Affirmative also and therefore abrogates no part of the power given them by the former Clause And this agrees with what Sir Edward Coke saith lib. 12. fol. 13. That if a man be Indicted for Recusancy at the Assizes or Sessions of the Peace the Court may waive the proceedings by Proclamation upon the Statute of 3 Jac. 4. and may still if they please proceed against the party by Process upon this Statute of 23 Eliz. Upon this Stature In which Case the Process must be by Venire facias capias c. as in Indictments of Trespass And if saith he the party be fugitive in another County the Indictment may be removed into the Kings Bench and then Process may be there made out against him into any County of England In their open Quarter Sessions of Peace What is meant by Quarter Sessions By Quarter Sessions is intended here only the Sessions of the Peace held at four times of the year and not any other although it be a general Sessions And therefore the Justices of Peace in London who hold a Sessions every month cannot take Indictments upon this Statute at any of them unless it be the Quarter Sessions For that their Authority is given them only at a certain time as was resolved in the like Case upon the Statute of 5 Eliz. cap. 9. of Perjury Mich. 17 Jac. B.R. Palmer 44. Taylors Case Stat. 5 Eliz 9. 3 Jac. 4. And the Statute of 3 Jac. c. 4. which gives Justices of Peace Power to take Indictments of Recusancy at their General or Quarter Sessions for so the word said there imports having reference to the General or Quarter Sessions mentioned before about Presentments yet doth not enlarge the Power of the Justices of Peace in this particular nor enable them to take such Indictments at any Sessions but their four Quarter Sessions For although it be put there dis-junctively General or Quarter yet the latter word is but Explicative of the former and shews what General Sessions are meant as appears by the said Statute of 3 Jac. 4. and that other of 7 Jac. cap. 6. touching the Oath of Allegiance 7 Jac. 6. For in 3 Jac. 4. 't is said That if the party refuse the Oath he shall be committed to Goal until the next Assizes General Quarter Sessions and General or Quarter Sessions or General or Quarter Sessions And if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or by the Justices of Peace in their said general Quarter Sessions he shall incur a Praemunire And in 7 Jac. 6. That the party refusing shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or Goal delivery or the Justices of Peace or the greater part of them in their general or Quarter Sessions he shall incur a Praemunire which clearly shews that the same thing is intended by general Quarter Sessions and General or Quarter Sessions And that all general Sessions which are not Quarter Sessions are excluded out of the meaning of those Statutes Vide Stat. 3 Jac. cap. 4. Sect. 11. 7 Jac. cap. 6. Sect. 5. Indictments only here intended To enquire hear and determine The Justices named in this Branch of the Statute are hereby impowered to proceed by Indictment only and no other way For they are to hear and determine after Inquiry And the word enquire implies an Indictment and is always so to be expounded And so are the other words hear and determine where other proceedings are not specially named as here they are not For the Action of Debt Information c. in any Court of Record is given to the Informer Qui tam c. afterwards in a distinct Branch by it self without any reference to this so that by this Statute and before that of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 which gave the Queen an Action of Debt c. The Queen had no other remedy to recover the entire forfeitures given hereby but by Indictment only Co. 11. 60. Rolls 1. 93. C. 41. Dr. Fosters Case Vide Jones 193. For that and the Suit by the Common Informer are the only ways appointed by this Statute and the subsequent Clause of Submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tried shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hobart 205. Pie versus Lovell Offence and Penalty by two several Statutes Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reversed For the Offence is made by the Statute of 1 Eliz. cap. 2. Stat. 1 Eliz. 2 and the penalty is given by this Statute and therefore it should have been Contra formam Statutorum Owen 135. Wests Case Feme Covert when chargeable If a Feme Covert be Indicted at the Kings Suit for an offence within this Act she may be charged with the penalty after her Husbands death but the Husband is not chargeable nor shall pay the penalty for that he is no party to the Judgment And this was one of the causes of making the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 By which Statute the King may have an Action of debt and recover the forfeiture against the Husband Rolles 1. 93. 94. Roy versus Foster Savile 25 C. 59. Except Treason and misprision of Treason This exception of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal delivery as Wingate hath mistaken in his Abridgment of this Clause tit Crown numb 46. Where the Justices of Peace cannot meddle but only to the Justices of Peace who are not to meddle in those two Cases
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
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
outlawed upon the said Indictment and it was Resolved 36 Eliz. by the whole Court of Exchequer that this was a fraudulent Conveyance within the Statute of 13 Eliz. cap. 5. Stat. 13 Eliz. 5 which was made for the Relief of the Queen and other persons as well as Creditors But as this Case is related in Twines Case Co. 3. 82. 'T is observable that although it was debated whether the Queen should avoid this Conveyance by force of the Statute of 50 E. 3. 50 E. 3. 6. cap. 6. or that of 3 H. 7. cap. 4. 3 H. 7. 4. or that of 13 Eliz. before mentioned yet there is no mention made of this branch of 23 Eliz. for 't is clear that the Queen could not avoid such a fraudulent Conveyance by force of this Statute unless Judgment had been first given against the Recusant or he had been convicted And Pauncefoot was neither convicted or adjudged to be a Recusant but the Queens interest accrued to her by means of the Outlawry only Provided alway Stat. Sect. 12. Tryal of a Peer by his Peers That if any Peér of this Realm shall happen to be Indicted of any Offence made Treason or misprision of Treason by this Act he shall have his Trial by his Péers as in other like Cases is accustomed Indictment of Peers by whom Although a Peer shall be tried per pares yet he is to be Indicted by an Inquest under the Degree of Nobility And may be Indicted before Commissioners of Oyer and Terminer or in the Kings-Bench if the Offence be committed in the County where the Kings-Bench is Co. 2. Inst 49. Stat. Sect. 13. Ecclesiastical Censures Provided also That neither this Act nor any thing therein contained shall extend to take away or abridge the Authority or Iurisdiction of the Ecclesiastical Censures for any cause or matter But that the Archbishops and Bishops and other Ecclesiastical Iudges may do and proceed as before the making of this Act they lawfully did or might have done Any thing in this Act to the Contrary notwithstanding Stat. xxvii Eliz. cap. ii An Act against Jesuits Seminary Priests and such other like dissobedient persons WHereas divers persons called or professed Iesuits Stat. Sect 1. The Causes why Jesuits and Priests do come into this Realm Seminary Priests and other Priests which have been and from time to time are made in the parts beyond the Seas by or according to the Order and Rites of the Romish Church have of late years comen and béen sent and dayly do come and are sent into this Realm of England and other the Queéns Majesties Dominions of purpose as it hath appeared as well by sundry of their own examinations and confessions as by divers other manifest means and proofs not only to withdraw her Highness Subjects from their due obedience to her Majesty but also to stir up and move Sedition Rebellion and open Hostility within the same her Highness Realms and Dominions to the great indangering of the safety of her most Royal Person and to the utter ruine desolation and overthrow of the whole Realm if the same be not the sooner by some good means foreséen and prevented For reformation whereof be it Ordained All Jesuits and Priests shall depart out of this Realm Established and Enacted by the Queens most Excellent Majesty and the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same Parliament That all and every Iesuits Seminary Priests and other Priests whatsoever made or Ordained out of the Realm of England or other her Highnesse Dominions or within any of her Majesties Realms or Dominions by any Authority Power or Iurisdiction derived challenged or pretended from the See of Rome since the Feast of the Nativity of St. John Baptist in the first year of her Highness Reign shall within forty days next after the end of this present Session of Parliament depart out of this Realm of England and out of all other her Highness Realms and Dominions if the wind weather and passage shall serve for the same or else so soon after the end of the said forty days as the Wind Weather and passage shall so serve Stat. Sect. 2. No Jesuits or Priests shall come into or remain in this Realm And be it further Enacted by the Authority aforesaid That it shall not be lawful to or for any Iesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiastical person whatsoever being born within this Realm or any other her Highnesse Dominions and heretofore since the said Feast of the Nativity of St. John Baptist in the first year of her Majesties Reign made ordained or professed or hereafter to be made ordained or professed by any Authority or Iurisdiction derived challenged or pretended from the Sée of Rome by or of what name title or degrée soever the same shall be called or known to come into be or remain in any part of this Realm or any other her Highnesse Dominions after the end of the same forty days other then in such special Cases and upon such special occasions only and for such time only as is expressed in this Act And if he do that then every such Offence shall be taken and adjudged to be High Treason and every person so offending shall for his Offence be adjudged a Traytor and shall suffer lose and forfeit as in Case of High Treason A Priest born within this Realm Being born within this Realm c. And this must be comprised in the Indictment but it need not be shewn in what particular place he was born but generally Quod J. S. natus infra hoc regnum Angliae c. Popham 94. Southwells Case A Priest Ordained c. Made ordained or professed And so it must be alledged in the Indictment that he was made a Jesuit or Priest c. by Authority challenged or pretended from the See of Rome but it need not be shewn where he was made a Jesuit or Priest c. whether beyond Sea or within the Realm for wheresoever it was it is within this Law if he were made so by the pretended Authority of the See of Rome Popham 94. Southwells Case Stat. Sect. 6. Receiving or relieving a Jesuit or Priest shall be felony And every person which after the end of the same forty days and after such time of departure as is before limited and appointed shall wittingly and willingly receive relieve comfort aid or maintain any such Iesuit Seminary Priest or other Priest Deacon or Religious or Ecclesiastical person as is aforesaid being at liberty or out of hold knowing him to be a Iesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiastical person as is aforesaid shall also for offence be adjudged a Felon without benefit of Clergy and suffer death lose and forfeit as in Case of one attainted of Felony In the late Additions to
lieu of the Twenty pounds per month And therefore the Resolution or Judgment said to be given in the Case of one Gray Anno 1. or 2. Jac. and cited in Beckets Case 8 Jac. Lane 93. and by Sergeant Bridgman in his Argument of Parker and Webbs Case 16 Jac. Rolles 2. 25. and applied thereunto viz. That if a Recusant convicted fails of the payment of the Twenty pounds per month the King shall have his Lands as a gage or penalty and the profits shall not go towards satisfaction thereof However it were true as the Law stood upon 29 Eliz. and before the making of this Act of 1 Jac. yet 't is not Law at this day nor could be applicable to either of those Cases of Becket or Parker and Webb which came to be debated long after this Act was made and the Law of 29 Eliz. altered in that point Vide Stat. 29 Eliz. cap. 6. Sect. 7. Where any such seizure shall be had c. This Relative such takes in both the seizures beforementioned viz. a seizure upon Indictment and Judgment thereupon by force of the Statute of 23 Eliz. and a seizure upon Conviction on Proclamation and default according to the Statute of 29 Eliz. And What seizure is here meant Stat. 23 Eliz 1 29 Eliz. â— as in both those Cases the Recusant who fails of the payment of the Twenty pounds per month shall have the benefit to discount the profits received by the King so the King shall in the like Cases of seizure retain the two parts in his hands after the Recusants death until the residue of the Debt or Duty due and payable to the King be satisfied Where this extends not to Intailed Lands Two parts of the Lands c. of any such Recusant This Clause extends not to Intailed Lands unless where there is a Judgment for the King against the Ancestor for his Recusancy And therefore if the Recusant convicted upon Proclamation and default be Tenant in Tail and two parts of his Lands be seized in his Life time for non-payment of the Twenty pounds per month and he die the arrears not being satisfied to the King yet the heir in Tail shall have the Land out of the Kings hands without payment of the arrears For that such Conviction is in the nature of a Verdict only Conviction upon Proclamation no Judgment and not of a Judgment as was held in Doctor Fosters Case Rolles 1.94 C. 41. And where a Statute gives to the King a seizure or forfeiture of Lands it shall not be intended of Lands in Tail unless it be expresly so appointed by the Statute or by force of some other Statute cooperating therewith In which Case the Intailed Lands may be charged by general words in the Statute which gives the forteiture or seizure An instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Stat. 23 Eliz. 1 Convicted and Adjudged upon 23 Eliz. 1. for his Intailed Lands shall remain after his death in the Kings possession until the arrears be satisfied 29 Eliz. 6 33 H. 8. 39 and that by force of 29 Eliz. c. 6. and this Statute cooperating with the Statute of 33 H. 8. cap. 39. which charges the Lands of the heir in Tail with debts due to the King upon a Judgment had against the Ancestor Praemunire Stat. 16 R. 2. 5 But otherwise 't is in the Case of a Praemunire upon the Statute of 16 R. 2. cap. 5. which saith the Lands and Tenements of the Offender shall be forfeit to the King for there his Intailed Lands shall be forfeit during his life only And the reason is for that general words in an Act of Parliament unless aided by some other Act of Parliament shall never take away the force of the Statute de donis conditionalibus Co. 1. Inst. 130. 391. Co. 11.63 Godbolt 308. Lord Sheffeild and Ratcliffe Treason Stat. 26 H. 8. 13 5 E. 6. 11 And therefore in the Statutes of 26 H. 8. cap. 13. and 5 E. 6. cap. 11. which make Intailed Lands forfeitable for Treason the word inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Feesimple Now there being neither in this Act or that of 29 Eliz. any express appointment that the two parts of all Lands seized in the Recusants life time wherein he had any Estate of Inheritance shall after his death continue in the Kings possession nor no other Statute which charges the heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and Default the general words here that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claims by the Statute de donis conditionalibus but where there is no Judgment the Recusants Fee simple Lands shall after his death satisfie the intent of these Statutes And so was the Law in reference to intailed Lands upon the Statute of 29 Eliz. cap. 6. which speaks of the full satisfaction of Arrearages in Case of the death of the Recusant Arrears where to be paid by the Heir in Tail where not And the Arrears were to have been paid by the Heir in Tail only in such Case where there was a Judgment obtained by the King against the Ancestor for his Recusancy but not where the Ancestor Tenant in Tail was convicted only upon Proclamation and default for in this last Case the Heir in Tail was not bound by the Statute of 33 H. 8. cap. 39. because 't is not a Debt by Judgment as that Statute requires Moore 523. C. 691. And thus the Opinion of the two Chief Justices Trin. 43 Eliz. is to be understood for they held That if intailed Lands had been seized for non-payment of the 20 l. per month and the Tenant in Tail had died the issue in Tail should not have had the Land out of the Queens hands before the Debt were satisfied but should have been charged with the said Debt Cro. Eliz. 846. At the end of which Case is added a Dubitatur But yet the Opinion there held stands good if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default And be it further Enacted by the Authority of this present Parliament Stat. Sect. 2. None shall go or send any other to a Seminary c. That all and every person and persons under the Kings Obedience which at any time after the end of this Session of Parliament shall pass or go or shall send or cause to be sent any Child or any other person under their or any of their Government into any the parts beyond the Seas out of the Kings Obedience to the intent to enter into or be resident in any Colledge Seminary or House of Iesuits Priests or any other Popish Order
she should not be doubly punished both that way and at the Suit of the Informer And for the same reason it was urged that this Information would not lye against the Husband and Wife for after the Husbands death she would be liable to pay into the Exchequer all the arrears after the rate of Twenty pounds per month from the time of her Conviction and her goods and two parts of her Lands might be then seized for non-payment thereof And if the Husband and Wife should in the mean time at the Suit of the Informer pay Twenty pounds per month for part of the same time for which the Wife was liable to pay after the Husbands death this would be a double punishment for one and the same offence and it was further said that it was usual where the Wife was Indicted and Convicted for Recusancy Seizure of the Wives Lands and Leases to seize by Exchequer Process the Lands and Leases which the Husband had in her right and one Woods Case was cited to this purpose which proves that a Feme Covert is within the meaning of the Act and therefore after she is once Convicted upon Indictment shall be no more subject to the Informers popular Suit then a Feme sole Cro. Pasch 16 Jac. 481.482 But this last point is much to be questioned for the Lands and Leases of the Wife are the Husbands during the Coverture and 't is a general rule that his Goods or Lands cannot be seized for the forfeiture or penalty where the Wife only is Indicted and Convicted of the Offence See more of this matter antea Stat. 23 Eliz. cap. 1. Stat. 23 Eliz 1 Sect. 9. A Recusant is Indicted for absenting himself from Church for 12 months and afterwards is Convicted upon that Indictment Where an Informer may sue after Conviction upon Indictment Quaere whether nevertheless the Informer Qui tam c. may not sue him for his absence for the months intervening between the time laid in the Indictment and the time of his Conviction For these words here viz. after such Conviction seem to relate to the proximum antecedens every month and to imply that the penalty here appropriated to the King is only the penalty due for the months which incur after such Conviction upon Indictment at the Kings Suit but not to hinder the Informer after Conviction from suing for the months incurred before Conviction Except in such Cases where the King shall c. refuse the same The King may seize two parts presently after Conviction If a man be Indicted and Convicted of Recusancy the King is not bound to stay till the next Easter or Michaelmas Term to see whether the Recusant will tender twenty pounds for every month contained in the Indictment and incurred after such Conviction for the King having his Election whether he will accept thereof or seize two parts of the Recusants Lands A Commission for seizure of the Lands may issue out presently if the King will wave the twenty pounds per month For he may take his Election as soon as he will after Conviction By Jones Justice in the Case of Standen and the University of Oxford Jones 24. Stat. Sect. 7. Every Conviction shall be certified into the Exchequer And that every Conviction recorded for any Offence before-mentioned shall from the Iustices before whom the Record of such Conviction shall be remaining be certified into the Kings Majesties Court of Exchequer before the end of the Term following such Conviction in such convenient certainty for the time and other circumstances as the Court of Exchequer may thereupon award out Process for the seizure of the Lands and Goods of every such Offender as the Cause shall require 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 Kings Majesty his Heirs and Successors 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 Timber Trees All the Goods A Recusant convicted is Tenant for Life the Remainder to a Stranger in Fee He in the Remainder with the Recusants assent cuts down Timber Trees and sells them In this Case the King can be no ways intitled to the Trees Bulstrode 1.133 Vide Stat. 29 Eliz. cap. 6. Sect. 4. Aswell of all the Lands c. Leases and Farms of such Offender Lease in trust for another Elizabeth Bowes was convicted of Recusancy and she standing so Convicted a Lease was made to her in trust which she conveyed over according to the trust The question was whether the King might seize this Lease And the reason given in Lane 39. why the King should have the Term is because the Recusant after she was Convicted was not capable of any trust and therefore the Conveyance made by her was as if it had been voluntary without relation to the Trust Tamen quaere by what Law a Recusant meerly for the matter of Recusancy is incapable of any Trust although Convicted All other the Lands c. liable to such seizure Copyhold Lands Stat. 29 Eliz. 6. or to the penalties aforesaid Whether Copyholds be liable to such seizure vide Stat. 29 Eliz. cap. 6. Sect. 4. Lands are conveyed to A. in trust for B. a convicted Recusant Lands in trust for a Recusant Quaere whether the King may seize such Lands for the Recusants non-payment of the twenty pounds per month for if he make his Election and accepts of two thirds in lieu of the twenty pounds per month there is no question but such Lands are liable to seizure For the words of the subsequent Clause are That the King may seize two parts of all Lands that shall come to any other person to the use of or in Trust for such Recusant But in this Clause which relates to the seizure of two parts for non-payment the words seem to be more restrictive Vide Lane 105. 106. Halseys Case And whereas by an Act made in the Session of Parliament holden by Prorogation at Westminster in the thrée and twentieth year of the Reign of the late Queén Elizabeth entituled Stat. Sect. 8. The Stat. of 23 Eliz. 1. touching a Recusants monthly forfeiture An Act to retain the Subjects of the said late Quéen in their due Obedience It was amongst other things Enacted by Authority of the said Parliament That every person above the age of sixtéen years which should not repair to some Church Chappel or usual place of Common Prayer
shall forfeit nothing for keeping or harbouring him A Sergeant at Arms Pursevant Messenger Sergeant at Arms Pursevant Gaoler c. who keeps his Prisoner in his House or a Gaoler if he keeps his Prisoner in his own House which is no part of the Prison shall not forfeit any thing by force of this Act although he suffers him to go abroad in the day time at his pleasure and he forbears to come to Church For that such Prisoner was committed by Authority to his custody And be it further Enacted by Authority of this present Parliament That upon any lawful Writ Warrant or Process Stat. Sect. 27. Breaking a House to take a Recusant Excommunicate awarded to any Sheriff or other Officer for the taking or apprehending of any Popish Recusant standing Excommunicated for such Recusancy it shall be lawful for such Sheriff or other Officer Authorized in that behalf if need be to break open any House wherein such person Excommunicate shall be or to raise the power of the County for the apprehending of such person and the better Execution of such Warrant Writ or Process Standing Excommunicated This extends to an actual Excommunication only For although by the Statute of 3 Jac. cap. 5. Stat. 3 Jac. 5. Excommunication A Popish Recusant after conviction shall be disabled as an Excommunicated person yet to other intents he shall not be reputed as a person standing Excommunicated Vide that Statute Sect. 12. For such Recusancy For Recusancy So that if a Popish Recusant stand Excommunicated for any other Cause then for Recusancy this Branch of the Statute doth not affect him And be it further Enacted Stat. Sect. 28. That all and every offence to be committed or done against this present Act shall and may be enquired of In what Courts the Offences shall be heard and determined heard and determined before the Iustices of the Kings Bench Iustices of Assize and Gaol delivery in their several Assizes and Gaol deliveries And all offences other then Treason shall be enquired heard and determined before the Iustices of Peace in their General or Quarter Sessions to be holden within the Shire Division Limit or Liberty wherein such offence shall happen General or Quarter Sessions Stat. 23 Eliz. 1. Trial where part of the offence happened General or Quarter Sessions What Sessions are here meant Vide Stat. 23 Eliz. cap. 1. Sect. 7. Wherein such offence shall happen If a man serves or goes to serve a Forreign Prince State or Potentate without first taking the Oath of Allegiance or if of that Quality entring into Bond although part of the offence was done out of the Realm yet for that other part thereof viz. his going or passing over the Seas was done in the Realm he shall be tried in the County where that part of the offence happened that is where the Haven or Port is from whence he went or passed over For a Statute is to be so expounded ut verba accipiuntur cum effectu Co. 3. Inst. 80. Provided always and be it Enacted by the Authority aforesaid Stat. Sect. 29. Attainder of Felony no forfeit of Dower or corruption of Blood That any Attainder of Felony made Felony by this Act as is aforesaid shall not in any wise extend to take away the Dower of the Wife of any such person attainted or be any bar for recovery of the same nor shall make or work any corruption of Blood or disherison of any the heir or heirs of any such person or persons so attainted This Act or any thing therein contained to the contrary in any wise notwithstanding The Plea to an Action brought for doing any thing by force of this Statute And be it further Enacted That if any Action or Actions shall at any time hereafter be commenced or brought against any person or persons doing committing or commanding any Act or Thing for or concerning the Execution of this present Statute or any Article or Clause therein contained That then every Defendant in such Action and Actions may plead the general Issue and be received to maintain the same by any Evidence that shall prove his doings and proceedings warrantable by this Law The Authority of the Ecclesiastical Court reserved Provided always That neither this Act nor any thing therein contained shall extend to take away or abridge the Authority or Iurisdiction of the Ecclesiastical Censures for any Canse or Matter but that the Commissioners of his Majesty his heirs and Successors in Causes Ecclesiastical for the time being and the Archbishops Bishops and other Ecclesiastical Iudges may do and procéed as before the making of this Act they lawfully did or might have done Any thing in this Act to the contrary in any wise notwithstanding Provided always and be it Enacted Stat. Sect. 30. No forfeiture for the Wives offence That no person shall be charged or chargeable with any penalty or forfeiture by force of this Act which shall happen for his Wives offence in not receiving the said Sacrament during her Marriage nor that any Woman shall be charged or chargeable with any penalty or forfeiture by force of this Act for any such Offence of not receiving which shall happen during her Marriage With any penalty or forfeiture by force of this Act. Feme Covert not receiving the Sacrament But yet a Married Woman may be punished by force of any other Act for not receiving the Sacrament during her Marriage Co. 11.64 Doctor Fosters Case And therefore if she be a Popish Recusant convict and receive not the Sacrament within the year next before her Husbands death she shall forfeit the profits of two thirds of her Jointure and Dower and be further disabled as the Statute of 3 Jac. cap. 5. appoints Stat. 3 Jac. 5. And unless she receive the Sacrament after Conviction she cannot be Plaintiff with her Husband in any Action but is disabled by that Statute And if she receives it not within three months after her Conviction she may be imprisoned by force of the Statute of 7 Jac. 6. unless the Husband pay to the King as is there appointed 7 Jac. 6. For any such offence of not receiving Feme Covert punishable Wingate in abridging this Clause tit Crowne numb 125. quite mistakes the meaning of it For a married Woman is not exempted from all penalties by force of this Act but only from the penalty for not receiving the Sacrament during her marriage And there is no question but she may be imprisoned if she refuses the Oath of Allegiance and an Indictment of High Treason lies against her upon this Statute if she be absolved or withdrawn from her obedience to his Majesty or be reconciled to the Pope or See of Rome or promise obedience to the said See c. Provided also and be it Enacted by Authority of this Parliament Stat. Sect. 31. Who may take the Oath of a Nobleman or Woman That in
a farther distance although they inhabited in that which was within London or ten miles for three months next before that Session of Parliament yet if they were not Tradesmen at the time of making of this Act they should have had no benefit by this Proviso but ought within ten days after such Indictment or Conviction for Recusancy to have removed out of the compass of ten miles Stat. Sect. 7. And whereas by a Statute made at Westminster in the Five and thirtieth year of the Reign of Queén Elizabeth Intituled An Act for the restraining of Popish Recusants to some certain place of abode it was amongst other things Ordained and Enacted That every Popish Recusant then or after Convicted for not repairing to Church Chappel or usual place of Common Prayer A Recusant confined having any certain place of dwelling and abode within this Realm should within the time limited by the said Statute repair to their place of usual dwelling and abode or not having any certain place of dwelling or abode within this Realm should likewise within the time limited by the said Statute repair to the place where such person was born or where the Father or Mother of such person should be dwelling and not at any time remove or pass above five miles from thence under the pains in the said Statute limited and provided Which Statute by reason of sundry Licences given unto such Recusants under colour of a Proviso in the said Statute contained hath not wrought that good effect in the Commonwealth as was hoped Be it therefore Enacted Ordained by this present Parliament and by the Authority of the same That the said Statute made in the said Five and thirtieth year of the said Quéen Elizabeth for and concerning the confining of the said Recusants under the pains and penalties therein contained shall by this Act and by the Authority of the same be confirmed and be hereafter put in due execution according to the tenour true intent and meaning of the said Statute in that behalf made Repeal of a Proviso in 35 Eliz. 2. And that the said Proviso in the said Statute contained giving power to grant Licence or Licences unto the said Recusants to go and Travel from or out of the compass of the said five miles shall be from and after the end of this present Session of Parliament utterly repealed and void Any thing in the said Statute to the contrary notwithstanding Then or after Convicted Vide Sect. 8. infra Giving power to grant Licence or Licences unto the said Recusants The Proviso in the Statute of 35 Eliz. cap. 2. here repealed is only that which there impowers the Justices of Peace For that is the only Proviso which gives power to grant Licences And the cause here alledged for the Repeal is the giving of sundry Licences to Recusants under colour of a Proviso in 35. which can be construed only of those which were to be given by the Justices of Peace and not of the other Licences given by 35. in several other cases so that the Proviso's there permitting the Popish Recusant to Travel in case of Process or commandment by Privy Counsellors or the Queens Commissioners or Proclamation to render his body to the Sheriff remain still in force and unrepealed and the Recusant may take the benefit thereof at this day Stat. Sect. 8. Provided nevertheless and be it further Enacted by this present Parliament and by the Authority of the same That it shall and may be lawful for the Kings most excellent Majesty his Heirs and Successors or for thrée or more of his Majesties most Honourable Privy Council or for threé or more of the Privy Council of his Heirs or Successors in writing under the hands of the said Privy Counsellors Licence to a Popish Recusant confined to give Licence to every such Recusant to go and Travel out of the compass of the said five miles for such time as in the said Licence shall be contained for their travelling attending and returning and without any other Cause to be expressed within the said Licence And if any of the persons which are so confined by virtue of the said Statute as is aforesaid shall have necessary occasion or business to go and Travel out of the compass of the said five miles That then and in every such Case upon Licence in writing in that behalf to be gotten under the Hands and Seals of four of the Iustices of Peace of the same County Limit Division or place next adjoyning to the place of abode of such Recusant with the privity and assent in writing of the Bishop of the Diocess The effect of a Licence to be granted by four Justices of Peace or of the Lieutenant or of any Deputy Lieutenant of the same County residing within the said County or Liberty under their Hands and Seals In every of which Licence or Licences in writing so to be had and made shall be specified and contained both the particular cause of the said Licence and the time how long the said party licensed shall be absent in travelling attending and returning It shall and may thereupon be lawful for every such person so licenced to go and Travel about such their necessary business and for such time only for their travelling attending and returning as shall be comprized in the said Licence the said party so licenced first taking his corporal Oath before the said Four Iustices of the Peace or any of them who shall have Authority by virtue of this Act to minister the same that he hath truly informed them of the Cause of his Iourney and that he shall not make any causless stays And that all and every Licence hereafter to be made in this behalf contrary to the tenor effect and true meaning of this Statute shall be utterly void frustrate and of none effect Any thing in the said former Act or in this Act to the contrary notwithstanding And every person so confined which shall depart or go above five miles from the place whereunto he is or shall be confined not having such Licence and not having taken such Oath as aforesaid shall incur the pain and penalty and forfeit as a Recusant Convicted and passing or going above five miles from the said place whereunto he is or shall be confined by the said Statute of tricesimo quinto Elizabethae should do For the Kings most Excellent Majesty c. or for thrée or more of his Majesties most Honorable Privy Councel c. to give Licence to every such Recusant What recusants may be Licensed to travel above five miles By such Recusant is intended here such Recusant as is confined by the Statute of 35 Eliz. 2. and not only such as was mentioned in the foregoing Clause of recital For that recital is imperfect in that it mentions only the Popish Recusant Convicted Stat. 35 Eliz. 2 Imperfect recital here whereas 35 Eliz. speaks as well of the Popish
Recusant not Convicted who hath no certain place of aboad as of the Popish Recusant Convicted And the benefit of having Licences from the King or three Privy Counsellors by force of this Act is intended as well to the one as the other although the Convicted only are mentioned in the recital and this will plainly appear first by the following words here which impower the Justices of Peace to grant Licences and expresly extend to all persons confined by vertue of the said Statute that is the Statute of 35 Eliz. now it cannot be presumed that the makers of the Law intended any difference between the persons to be licenced by the King or Privy Counsellors and the persons to be Licensed by the Justices of Peace the only difference being in the manner of granting the Licence the power given to the King or Privy Counsellors being more absolute and not under such precautions as is that which is given to the Justices of Peace For the King or Privy Counsellors may grant a Licence to the Recusant to travel without any particular cause shewn in the Licence or the assent of any other person and without any Oath to be made by the Recusant which the Justices of Peace cannot do And there is no reason to think that the Power here given to the King or Privy Counsellors which in all other particulars is so much more absolute and extensive then that given to the Justices of Peace should be yet less extensive as to the persons to be Licensed Secondly It were absurd to think that the Makers of the Law intended to confer a greater priviledge upon the Recusant convicted whose Offence appears upon Record then to such as are not convicted Et ealis interpretatio in ambiguis semper fienda est ut evitetur inconveniens absurdum But if by such Recusant should be meant only such as are mentioned in the recital viz. those Convicted and not all who are Confined by 35 Eliz. It would follow that the Convicted Recusant who is the more notorious Offender may have a Licence without any cause shewn or Oath made But he who is not Convicted is barred of that priviledge and can apply himself only to the Justices of Peace for a Licence clogged with divers circumstances which are not required in a Licence granted by the King or the three Privy Counsellors Shall not impeach 35 El. 2. Much less shall this Recital of the Statute of 35 Eliz. impeach the express words of that Statute as if no other Popish Recusants were intended to be confined thereby but only such as are Convicted because no other are mentioned in the Recital For the Recital of an Act of Parliament in another Act of Parliament being only by way of Preface or Introduction cannot add to or diminish the Act recited or make it liable to any other construction then what shall naturally flow from the Act it self Vide Co. 4. Inst 331. Vide Stat. 35 Eliz. cap. 2. Sect. 3. Without any other cause to be expressed Here is one difference between a Licence by the King or three of the Privy Counsel Necessary business where requisite to a Licence where not and a Licence by Justices of Peace For by these it ought not to be granted unless the Popish Recusant hath necessary occasions or business But the Kings or Privy Counsellors Licence may be granted in any Case at the Recusants request Seals and Subscription Vnder the Hands and Seals An Indictment was brought upon the Statute of 35 Eliz. 2. for travelling out of the compass of five miles The Recusant pleaded a Licence under the Seals of four Justices of Peace and exception was taken to the Plea For that the Licence ought to have been under their Hands as well as their Seals Cro. Mich. 12 Jac. 352. Maxfeilds Case And this is a good exception for a Licence by Justices of Peace although in Writing is not sufficient without Seals and Subscription both Rolles 1. 108. C. 47. Mucclefields Case Four Justices Peace Of four of the Iustices of Peace And a Licence from less then four will not now serve since the repeal of the aforesaid Branch of 35 Eliz. touching Licences Stat. 35 Eliz. 2 and therefore the Case of Mucclefield Mich. 12 Jac. in Rolles 1. 108. C. 47. is misreported in that particular For there mention is made of a Licence from two Justices of Peace as if no more were then requisite and that Case could not be grounded upon the Proviso in 35 Eliz. which required only two Justices as well for the distance of time being nine years after the Repeal of the said Proviso as for that in the said Case of Mucclefield there is mention of a Licence under the Seals of the Justices of Peace and of the Oath to be taken by the Recusant neither of which was appointed by the said Proviso in 35 Eliz. but by this Statute of 3 Jac. which must therefore necessarily be there intended and not any Statute of 1 Jac. which is another mistake in the Report of that Case Vide the Case and the objections urged against the Licence there in question With the privity and assent in Writing of the Bishop c. the Lieutenant or of any Deputy Lieutenant An Information was brought against a Popish Recusant Convict for removing above five miles from the place of his confinement who pleaded a Licence from four Justices of Peace but the Plea was disallowed saith the Reporter because he did not set forth that the Licence was granted with the privity of the Bishop or Lieutenant Mich. 12 Jac. Moore 836. C. 1127. Mansfields Case Assent of a Deputy Lieutenant sufficient But yet if it had been granted with the assent of any Deputy Lieutenant residing in the County there 's no doubt but it had been good enough The Bishop Lieutenant or Deputy Lieutenant Five persons viz. four to Licence and one to assent who gives his assent must be a distinct person from the Justices of Peace who grant the Licence And therefore if one and the same person be a Justice of Peace and Deputy Lieutenant he cannot Act herein in both Capacities For una persona non potest supplere vicem duarum And if he Sign and Seal the Licence as a Justice of Peace the assent of some other Deputy Lieutenant or of the Bishop or Lieutenant must be had thereto or the Licence is void Cro. Mich. 12 Jac. 352. Maxfields Case Moore 836. C. 1127. Mansfields Case Rolles 1. 108. C. 47. Mucclefields Case And although the Rule be Quando duo jura concurrunt in una persona aequum est ac si essent in diversis yet that Rule holds not in such Cases where distinct persons are necessarily required by the Law Co. 7. 14. Calvins Case and here four persons are necessarily required to grant the Licence and another person to assent to it In Maxfields Case B. R. one exception to the Licence was Licence and
assent in one Writing that the assent of the Deputy Lieutenant was contained in the Licence granted by the four Justices of Peace and was not separate and distinct by it self Cro. Jac. supra but to this the Court made no answer And it seems that such an Assent is well enough though in the same Writing with the Licence if it be expressed that the four Justices do Licence and the Deputy Lieutenant doth assent and such Writing be under the Hands and Seals of all five Residing within the said County or Liberty Residence in the County These words seem to refer as well to the Bishop and Lieutenant as to the Deputy Lieutenant so that if a Bishops Diocess extends into divers Counties and he resides in one of them His assent can be good only for the Popish Recusants of that County where he resides and not for those of any other part of his Diocess so if a Lieutenant reside out of the County whereof he is Lieutenant his assent to such Licence is void And that these words residing within the said County or Liberty cannot be restrained to the Deputy Lieutenant only appears by those next beforegoing viz. of the same County which clearly relate to the Lieutenant as well as to the Deputy Lieutenant and by consequence so must the word immediately subsequent viz. Residing And as to the Bishop the inconvenience is the same as in the Case of the Lieutenant For by their remoteness they are disabled to judge of the condition and behaviour of the Recusant to be Licenced and of the circumstances wherein he stands and whether such Licence may be granted to him without hazard of the publick safety which seems to be the reason of this restriction to the County or Liberty where the party who is to assent resides and holds as well in the Case of the Bishop or Lieutenant as of any Deputy Lieutenant residing out of the County Particular cause of the Licence The particular cause of the said Licence In Maxfields Case B. R. another exception to the Licence granted by the four Justices was that it was said to be granted for certain urgent Causes but no particular Cause for the Recusants travel was expressed in the Licence Cro. Jac. supra And this seems to be a good exception for the inserting into the Licence that the Popish Recusant hath urgent or necessary occasion or business answers only the former part of this Proviso which gives the four Justices power to Licence him if he hath necessary occasion or business to travel out of the compass of five miles but withal it ought to be mentioned in the Licence particularly what that occasion or business is which is the cause of the Licence for so this Act here expresly appoints And therefore that form of a Licence for the Recusant to Travel which Dalton V. cap. 124. tit Licences hath set down wherein no other Cause is mentioned but urgent and necessary business seems too short and general and is not to be relied on which defect the Author of the late Additions to Dalton would have done well to have rectified Oath of Allegiance First taking his Corporal Oath In Mansfields Case Moore 836. C. 1127. There is another Oath mentioned for the Popish Recusant to take before he can be Licensed to Travel and that is the Oath of Allegiance prescribed by the Stat. of 3 Jac. cap. 4. Stat. 3 Jac. 4. For it s there said That in an Information brought against the Recusant for Travelling out of the compass of five miles the Defendant pleaded a Licence from four Justices of Peace and his Plea was disallowed because among other things he did not shew that before the Licence he had taken the Oath of Allegiance yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void But I rather think it to be a mistake and that such an exception might be moved but the Plea not disallowed for that reason One Justice may give the Recusant his Oath Before the said four Iustices of the Peace or any of them Mr. Sheapard thinks that no less then two of the four Justices of Peace can minister this Oath to the Recusant Sure guide cap. 14. Sect. 5. But I take it to be clear that any one of the four Justices may minister the Oath in this Case And there is a great difference between any Justices for that denotes the plural number as in the subsequent Clause about Armor where any Justices may imprison the Offender that is any two Justices or more and any of the Justices as here which denotes the singular number and the following words who shall have Authority by vertue of this Act to minister the same may be well enough applied to any one Justice of Peace That he hath truly informed them of the cause of his Iourney Averment that the cause is true If an Information be brought against a Popish Recusant for travelling out of his compass of five miles and he plead a a Licence from four Justices of Peace it seems necessary that he aver in his Plea that the Cause contained in his Licence was true and real Vide Moore 836. C. 1127. And be it further Enacted by the Authority aforesaid Stat. Sect. 9. A Recusant disabled to execute certain Offices and Functions That no Recusant convict shall at any time after the end of this Session of Parliament practise the Common Law of this Realm as a Chancellor Clerk Attorney or Solicitor in the same nor shall practise the Civil Law as Advocate or Proctor nor practise Physick nor exercise or use the Trade or Art of an Apothecary nor shall be Iudge Minister Clerk or Steward of or in any Court or kéep any Court nor shall be Register or Town Clerk or other Minister or Officer in any Court nor shall bear any Office or Charge as Captain Lieutenant Corporal Sergeant Ancient-bearer or other Office in Camp Troup Band or Company of Souldiers nor shall be Captain Master Governor or bear any Office or Charge of or in any Ship Castle or Fortress of the Kings Majesties his Heirs and Successors but be utterly dissabled for the same and every person offending herein shall also forfeit for every such offence One hundred pounds the one moity whereof shall be to the Kings Majesty his Heirs and Successors and the other moiety to him that will sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed And be it also Enacted by the Authority aforesaid Stat. Sect. 10. No Popish Recusant shall be a publick Officer That no Popish Recusant convict nor any having a Wife being a Popish Recusant convict shall at any time after the end of this Session of Parliament or any Popish Recusant hereafter to be convict or having a Wife which hereafter shall
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
him who is in another County For the coercive Authority of a Justice of Peace Justice of Peace limited to his County cannot exceed his limits or bounds as is held in Plowden 37. in the Case of the Sheriffs of London And therefore in the Case of the Lord Say it was resolved that if a Justice of Peace of the County where the Felony was committed pursue a Felon into another County and take him there the Felon must be imprisoned in the County where he is taken and the Justice of Peace who pursued him hath no power to carry him to the Goal of the County where he did the Felony for he is a Prisoner in the County where he was taken and there the Justice of Peace hath no more to do then an ordinary person 13 E. 4. 8. Bro. Freshsuite 3. so that as it seems in this Case the party who keeps such Arms cannot be imprisoned by this Act But this likewise is Casus Omissus and not here provided for And yet nevertheless be it Enacted by the Authority aforesaid Stat. Sect. 25. A Popish Recusant shall maintain his Armor That notwithstanding the taking away of such Armor Gunpowder and Munition the said Popish Recusant shall and may be charged with the maintaining of the same and with the buying providing and maintaining of Horse and other Armor and Munition in such sort as other his Majesties Subjects from time to time shall be appointed and commanded according to their several Abilities and Qualities and that the said Armor and Munition at the Charge of such Popish Recusant for them and as their own provision of Armor and Munition shall be shewed at every Muster shew or use of Armor to be had or made within the said County Provided always That neither this Act Stat. Sect. 26. Ecclesiastical Censures nor any thing therein contained shall extend to take away or abridge the Authority or Iurisdiction of the Ecclesiastical Censures for any cause or matter but that the Commissioners of his Majesty his Heirs and Successors in Causes Ecclesiastical for the time being Archbishops Bishops and other Ecclesiastical Iudges may do and procéed as before the making of this Act they lawfully did or might have done Any thing in this Act to the contrary in any wise notwithstanding Stat. vii Jac. cap. ii An Act that all such as are to be Naturalized or restored in Blood shall first receive the Sacrament of the Lords Supper and the Oath of Allegiance and the Oath of Supremacy What they shall be bound unto who shall be Naturalized or restored in Blood FOrasmuch as the Naturalizing of Strangers and restoring to Blood persons Attainted have béen ever reputed matters of méer grace and favour which are not fit to be bestowed upon any others then such as are of the Religion now established in this Realm Be it therefore Enacted by the Kings most Excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled that no person or persons of what Quality Condition or Place whatsoever being of the age of Eightéen years or above shall be Naturalized or restored in Blood unless the said person or persons have received the Sacrament of the Lords Supper within one month before any Bill exhibited for that purpose and also shall take the Oath of Supremacy and the Oath of Allegiance in the Parliament House before his or her Bill be twice Read And for the better effecting of the premises Be it further Enacted by the Authority aforesaid That the Lord Chancellor of England or Lord Keeper of the Great Seal for the time being if the Bill begin in the Vpper House and the Speaker of the Commons House of Parliament for the time being if the Bill begin there shall have Authority at all times during the Session of Parliament to minister such Oath and Oaths and to such person and persons as by the true intent of this Statute is to be ministred This Act to take place from and after the end of this present Session of Parliament Stat. vii Jac. cap. vi An Act for Administring the Oath of Allegiance and Reformation of married Women Recusants WHereas by a Statute made in the Third year of your Majesties Reign intituled Stat. Sect. 1. an Act for the better discovering and repressing of Popish Recusants the form of an Oath to be ministred and given to certain persons in the same Act mentioned is limited and prescribed tending only to the Declaration of such Duty as every true and well affected Subject not only by bond of Allegiance but also by the commandment of Almighty God ought to bear to your Majesty your Heirs and Successors which Oath such as are infected with Popish superstition do oppugne with many false and unsound Arguments the just defence whereof your Majesty hath heretofore undertaken and worthily performed to the great contentment of all your loving Subjects notwithstanding the gainsayings of contentious Adversaries And to shew how greatly your Loyal Subjects do approve the said Oath they prostrate themselves at your Majesties Féet beséeching your Majesty that the same Oath may be administred to all your Subjects To which end we do with all humbleness beseech your Highness that it may be Enacted Every person above the age of 18 years herein intended shall take the Oath of Allegiance and before whom And be it Enacted by the Authority of this present Parliament That all and every person and persons as well Ecclesiastical as Temporal of what Estate Dignity Preheminence Sex Quality or Degrée soever he she or they be or shall be above the age of Eightéen years being in this Act mentioned and intended shall make take and receive a Corporal Oath upon the Evangelists according to the tenor and effect of the said Oath set forth in the forementioned Statute before such person or persons as hereafter in this Act is expressed That is to say All and every Archbishop and Bishop Archbishops and Bishops that now is or hereafter shall be before the Lord Chancellor or Lord Kéeper of the Great Seal for the time being Ecclesiastical Judges and Officers And all and every Ecclesiastical Iudge Officer and Minister of what Estate Dignity Preheminence or Degree soever he or they be or shall be before the Archbishop of the Province or Bishop or other Ordinary of the Diocess for the time being wherein such Ecclesiastical Iudge Officer or Minister ought to exercise his said Office Place or Function A Baron or Baroness or above that Degree Privy Counsellors Presidents And all and every person and persons of or above the Degree of a Baron of Parliament or Baroness of this your Highness Realm of England and all of your Highness Privy Counsel residing in London or Westminster or within thirty miles thereof and the Presidents of Wales and the North Parts before any four of your Highness Privy Counsel whereof the Lord Chancellor Lord Treasurer Lord Privy Seal
penalty of Twenty pounds per month to the King for the time to come by the said Statute of 29 Eliz. 6. and 3 Jac. 4. Stat. 29 Eliz. 6 3 Jac. 4. that the King cannot bring an Action of Debt or the Informer any popular Suit against the Husband and Wife for any offence of Recusancy committed by the Wife after such Conviction see for this Stat. 23 Eliz. cap. 1. 23 Eliz. 1 Sect. 9. and 3 Jac. cap. 4. Sect. 6. However admitting they may yet now if the King take advantage of this Statute and the Wife be either Imprisoned or the Husband yields the third part of his Lands to the King there is no question but the King and Informer are both barred The King and Informer barred to sue for the Twenty pounds per month for any time incurred after her Conviction For the King hath made his Election to punish her this way and the Informer cannot sue her for she is punished already at the Suit of the King And if the Husband pay the Ten pounds per month the King and Informer are likewise barred for those months of her absence from Church incurred after her Conviction for which the Husband hath paid the Ten pounds monthly to the King for he shall not be twice punished for the same offence Of all his Lands and Tenements By Tenements Tenements what are to be understood Offices Rents Commons Profits apprender out of Lands Advowsons and the like wherein a man hath any Franktenement and whereof he is seized ut de libero tenemento for all these are included under the word Tenement as well as Lands and other Inheritances which are holden Co. 1. inst 6. Perkins Sect. 114 115. 11 H. 6. 22 Bro. Grant 143. Finch 130. Womans Lawyer lib. 3. 188. Anderson 2. 4. But Tenement extends not to a Chattel or Lease for years Bro. Done 41. Grant 87. Bulstrode 1. 101. Turpine against Forreyner So that the Husband need not yield to the King the third part of his Leases for years for the Recusancy of his Wife Shall continue out of Prison A married Woman Imprisonment of the Wife for other cause convicted as a Popish Recusant is after her Conviction and before any further prosecution or any Election made by the Husband whether he will pay the Ten pounds per month or yield the third part of his Lands imprisoned by process of Law or for some other Cause not relating to such Conviction and afterwards is set at Liberty It seems that the Husband shall not pay the Ten pounds per month for the time she was in Prison for the Act speaks only of the time during which she continues out of Prison and although she were not imprisoned for her Recusancy yet seeing she had not during such her Imprisonment the benefit intended to her in consideration of the Ten pounds per month or third part viz. her Liberty the Husband shall not for that time pay the penalty here appointed to save her Imprisonment but if he pay it for the time after she is set at Liberty that is sufficient to satisfie the intent of this Act. But if after such Conviction Covinous Imprisonment the Wife be imprisoned by Covin upon some pretence not relating to such Conviction that shall not save the Husbands payment of the Ten pounds per month for the time she was imprisoned but after she is set at Liberty she may be again Imprisoned by force of this Act unless the Husband pay the Ten pounds per month or satisfie to the King the third part of the profits of his Lands as well for the time of such covinous Imprisonment as for the future for the covinous Imprisonment was upon the matter her own Act and no person shall take advantage of an Imprisonment covinously caused by him or her self 16 E. 4. 5. And here she continued out of Prison in the sence of this Act because her Imprisonment was not by Process of Law in invitam Outlawry by Covin And so if a Man be Outlawed while he is in Prison yet the Outlawry shall not be avoided for that Cause if the Imprisonment were by Covin or consent of the party Outlawed Co. 1. Inst. 259. 38. Assiz Pl. 17. Stat. iii Car. i. cap. ii An Act to restrain the passing or sending of any to be Popishly bred beyond the Seas FOrasmuch as divers ill affected persons to the true Religion established within this Realm Stat. Sect. 1. have sent their Children into Forreign parts to be bred up in Popery notwithstanding the restraint thereof by the Statute made in the first year of the Reign of our late Soveraign Lord King James of famous memory Be it Enacted that the said Statute shall be put in due execution And be it further Enacted by the Kings most Excellent Majesty and the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same that in Case any person or persons under the Obedience of the King his Heirs and Successors He that goes himself or sends any other beyond the Seas to be trained up in Popery c. shall be disabled to sue c. and shall lose all his Goods and shall forfeit all his Lands c. for life at any time after the end of this Session of Parliament shall pass or go or shall convey or send or cause to be sent or conveyed any Child or other person out of any of the Kings Dominions into any the parts beyond the Seas out of the Kings Obedience to the intent and purpose to enter into or be resident or trained up in any Priory Abbey Nunnery Popish Vniversity Colledge or School or House of Iesuites Priests or in any private Popish Family and shall be there by any Iesuite Seminary Priest Friar Monk or other Popish Person instructed perswaded or strengthned in the Popish Religion in any sort to profess the same or shall convey or send or cause to be conveyed or sent by the hands or means of any person whatsoever any sum or sums of money or other thing for or towards the maintenance of any Child or other person already gone or sent or to go or to be sent and trained and instructed as is aforesaid or under the the name or colour of any Charity Benevolence or Alms towards the relief of any Priory Abbey Nunnery Colledge School or any Religious House whatsoever Every person so sending conveying or causing to be sent and conveyed as well any such Child or other person as any sum or sums of money or other thing and every person passing or being sent beyond the Seas being thereof Lawfully Convicted in or upon any Information Presentment or Indictment as is aforesaid shall be disabled from thenceforth to sue or use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in any Court of Equity or to be Committée of any Ward or Executor or Administrator
all causes where any Bishop or Iustices of the Peace may by force of this Act require and take of any Subject the Oath above mentioned That the Lords of the Privy Counsel for the time being or any six of them whereof the Lord Chancellor Lord Treasurer or the principal Secretary for the time being to be one shall have full Power and Authority by force of this Act at any time or times to require and take the said Oaths before mentioned of any Nobleman or Noblewoman then being above the age of Eighteén years And if any such Nobleman or Noblewoman other then Women married shall refuse to take such Oath or Oaths that in every such Case such Nobleman and Noblewoman shall incur the pain and danger of a Praemunire Where any Bishop or Iustices of the Peace The Justices of Peace Justices of Peace have a twofold power given them by this Act in reference to the Oath of Allegiance 1. Out of Sessions and so any two Justices of Peace quorum unus c. may tender the Oath to any person eighteen years old or above other then Noblemen or Noblewomen 2. In their general or Quarter Sessions and there they may tender the Oath to any such person who hath before refused it or to any person whatsoever of or above that age other then Noblemen or Noblewomen Now whether the six Privy Counsellors Six Privy Counsellors here mentioned may require this Oath of Noblemen and Noblewomen in all Cases where the Justices of Peace may require the same of any Subject either in or out of Sessions or only in such Cases where they may require it out of Sessions seems to be a Question For if the power here given to the six Privy Counsellors be the same with that of the Justices of Peace in their Sessions they may by force of this Act tender it to any Nobleman or unmarried Noblewoman whatsoever above eighteen years old For the Justices of Peace in their Sessions may tender it there to any other person whatsover But if it be meant of the power given the Justices of Peace out of Sessions then the six Privy Counsellors can tender it by force of this Act to such Noblemen or unmarried Noblewomen only who stand Convicted or Indicted of Recusancy for not coming to Church or who have not received the Sacrament twice within the year next before or who passing through the Country unknown shall upon examination confess or not deny their Recusancy or that they have not so received the Sacrament To whom they may tender this Oath For the solving of which doubt it is to be considered 1. That the Bishop and not the Justices of Assize are here joyned with the Justices of Peace And these words where any Bishop or Iustices of Peace seem to bear this Construction viz. where any Bishop or Justices of Peace either the one or the other indifferently may require the Oath and that can be intended only of the power given out of Sessions For in Sessions the Bishop hath nothing to do But had the Justices of Assize been here added scilicet in all Causes where the Bishop Justices of Assize or Justices of Peace may require this Oath it had been clear that the Power here given the six Privy Counsellors was as extensive as that which is given the Justices of Assize or Justices of Peace in their Sessions and they might have required the Oath of any Nobleman or unmarried Noblewoman whatsoever of competent age so if the Justices of Peace only had been here named it had been clearly intended of the Justices of Peace in either Capacity either in or out of Sessions But Bishop seems here to be a restrictive word and to give the Privy Counsellors no more power in respect of the Nobility then the Bishop had in reference to any other Subject 2. These words in all causes where c. seem to be restrictive likewise and exclusive of some Causes But the Power of the Justices of Peace in Sessions extends to all Causes and Persons under the Degree of Nobility whatsoever which therefore cannot be here intended but only some particular Causes ejusdem generis which can be no other then the Causes before mentioned wherein the Bishop or two Justices out of Sessions may deal viz. where the party was before Convicted or Indicted or had not received the Sacrament or passed unknown and confessed c. And yet as 't is reported in Bulstrode 1. 197. the Case of the Lord Vaux Pasch 10. Car. 1. is to the contrary For 't is said there he was committed to the Fleet by the Privy Council for refusing this Oath and afterwards Indicted in the Kings Bench of a Praemunire for such his refusal he being then of the age of eighteen years and above And the said Oath being lawfully tendred c. All which was certified to the Court by divers of the Privy Council upon which Indictment he was attainted and no word in the Indictment of his standing Convicted or Indicted of Recusancy or not having received the Sacrament c. and yet the Indictment was grounded upon this Statute and not upon that of 7 Jac. 6. For by that Statute of 7 Jac. he could not have been Indicted of a Praemunire for the first refusal but must have been Committed until the next Assizes or Sessions and if he had there refused it the second time he might have been Indicted of a Praemunire and not otherwise But whether this Indictment were according to Law or only passed sub silentio Quaere Note by the Statute of 7 Jac. cap. 6. any Privy Counsellor Stat. 7 Jac. 6. or the Bishop of the Diocess may now require this Oath of any Baron or Baronesse of or above the age of eighteen years in all Cases And in some Cases three Privy Counsellors Quorum unus c. may require it of persons above the said Degree vide the Statute A Noblewoman by Marriage Noblewoman A Noblewoman who was such by Marriage only becomes a Widow and takes to her second Husband a person under the Degree of Nobility By this her second Marriage she hath lost her Nobility And if she again becomes a Widow the Oath shall not be tendred her by Privy Counsellors But the Bishop or two Justices of Peace quorum unus c. may by force of this Act require her to take it and upon her refusal may proceed against her as is above directed in the Case of a common person see more of this matter Stat. 7 Jac. cap. 6. Sect. 4. Age. Then being above the age of Eightéen years In this Case that day Eighteen years on which the party was born must be wholly elapsed for before this Oath cannot be tendred although the hour of his birth be elapsed For the Law rejects all Fractions and Divisions of a day for the incertainty Fractions of a day rejected which is always the Mother of Contention Co. 5.1 Claytons Case