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A31458 The laws of Q. Elizabeth, K. James, and K. Charles the First concerning Jesuites, seminary priests, recusants, &c., and concerning the oaths of supremacy and allegiance, explained by divers judgments and resolutions of the reverend judges : together with other observations upon the same laws : to which is added the Statute XXV Car. II. cap. 2 for preventing dangers which may happen from popish recusants : and an alphabetical table to the whole / by William Cawley of the Inner Temple, Esq. Cawley, William, of the Inner Temple. 1680 (1680) Wing C1651; ESTC R5101 281,468 316

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one as conceals his true Name or Quality or cannot give a good Accompt what he is For so it must be reasonably intended and not of all Travellers through the Country as Wingate tit Crowne numb 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just cause of suspition Stat. Sect. 11. Refusal of the Oath And be it further Enacted That if any such person or persons other than Noblemen or Noblewomen shall refuse to answer upon Oath to such Bishop or Iustices of Peace examining him or her as aforesaid or to take the said Oath so duly tendred unto him or her by such Bishop or two such Iustices of Peace out of Sessions that then the said Bishop or Iustices of Peace shall and may commit the same person to the common Goal there to remain without Bail or Mainprize until the next Assizes or General or Quarter Sessions to be holden for the said Shire Division Limit or Liberty where the said Oath shall be again in the said open Assizes or Sessions required of such person by the said Iustices of Assize or Iustices of Peace then and there present or the greater number of them And if the said person or persons or any other person whatsoever other then Noblemen or Noblewomen of the age of Eightéen years or above shall refuse to take the said Oath being tendred unto him or her by the Iustices of Assize and Goal delivery in their open Assizes or the Iustices of Peace or the greater part of them in their said general Quarter Sessions every person so refusing shall incur the danger and penalty of Praemunire mentioned in the Statute of Praemunire Praemunire made in the sixtéenth year of the Reign of King Richard the Second except Women Covert Women Covert who upon refusal of the said Oath shall be by the said Iustices of Assize in their open Assize or Iustices of Peace in their General or Quarter Sessions for the said Offence committed only to the common Goal there to remain without Bail or Mainprize till they will take the said Oath There to remain without Bail or Mainprize Sureties cannot be taken The Bishop or two Justices cannot take Sureties of him who refuses the Oath for his appearance at the Assizes or Sessions as Wingate tit Crowne numb 107. mistakes but must commit him immediately to Goal nor can any other Court or Justices Bail him in this Case Vntil the next Assizes or General or Quarter Sessions This being in the Disjunctive Commitment till Assizes or Sessions the Bishop or two Justices have their election to commit the party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit For some may be more aptly committed until the next Assizes and some until the next Sessions Co. 12. 131 132. What Sessions is here meant Sessions Stat. 23 Eliz. 1 Vide Stat. 23 Eliz. cap. 1. Sect. 7. And if the said person or persons or any other person whatsoever c shall refuse These words any other person whatsoever are exclusive of the said person or persons who are committed for refusal For 't is here in the disjunctive To whom the Oath may be tendred so that it seems that if any person whatsoever of the age of eighteen years or above and under the degree of a Nobleman or Noblewoman be at the Assizes or general Quarter Sessions of the Peace whether voluntarily or brought in upon Process on an Indictment of Recusancy or for any other matter and be there tendred this Oath and refuse to take it although it were never tendred to him before yet upon his refusal there he incurs a Praemunire And in this respect this Statute is more extensive then that of 7 Jac. cap. 6. Stat. 7 Jac. 6. where there must be a Prior tender and refusal of this Oath otherwise a refusal of it at the Assizes or Sessions doth not make a Praemunire by that Act. Vide Co. 12. 131. Shall incur the danger and penalty of Praemunire If a man be committed by the Bishop or two Justices of Peace for refusal of this Oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal and after they have there made the party a second tender of the Oath and he refuses it Indictments of Praemunire upon this Statute by which he incurs a Praemunire the Indictment against him to convict and attaint him of a Praemunire must contain all the special matter viz. that he stood Convicted or Indicted of Recusancy or that he had not received the Sacrament twice within the year next before or that passing through the Country and unknown being examined upon Oath he confessed or denied not c. as the Case is and that the Oath was tendred to him by the Bishop or two Justices of Peace Quorum unus c. and he refused it and that it was again tendred to him in open Court and he again refused it For in this Case the Mittimus Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions But if the first tender and refusal be not expressed in the Mittimus or Warrant of commitment there although there was a tender and refusal of the Oath before the Bishop or two Justices yet the Justices of Assize or Justices of Peace in their Sessions can take no notice of it But they must there tender him the Oath without reference to any Prior tender which they may do by force of the said general words any other person whatsoever and if he refuse it he incurs a Praemunire And in this Case the Indictment may be short and general scil that he was tendred the Oath in open Court and refused it c. And so it must be in all Cases where in truth there was never any Prior tender and refusal Co. 12. 131 132. Stat. 7 Jac. 6. Justices of Peace Vide the Statute of 7. Jac. cap. 6. whereby the power of the Justices of Peace is in some particular Cases inlarged in reference to this Oath Stat. Sect 12. The Oath of Allegiance The form of which Oath hereafter followeth I A. B. do truly and sincerely acknowledge profess testifie and declare in my Conscience before God and the World That our Sovereign Lord King James is Lawful and Rightful King of this Realm and of all other his Majesties Dominions and Countries and that the Pope neither of himself nor by any Authority of the Church or See of Rome or by any other means with any other hath any Power or Authority to depose the King or to dispose any of his Majesties Kingdoms or Dominions or to Authorize any Foreign Prince to
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
Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur And in such Case she shall not be tried by Noblemen For they are no longer her Peers Co. 2. Inst 50. But if a Woman be Noble by birth By birth or descent whomsoever she marries yet she remaineth Noble For birthright is Character indelebilis vide Co. 4. 118. Actons Case Co. 6. 53. Countess of Rutlands Case Dyer 6 7 E. 6. 79. Bro. Nosme de Dignity 31. 69. Co. 1. Inst 69. And 't is observable that the Statute of 21 H. 8. cap. 13. Stat. 21 H. 8. 13 provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the Degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expresly provided for by the Statute and the reason is given in Actons Case because by such Marriage her Dignity is determined But here there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a Common person Shall stand and be Presented Indicted or Convicted Conviction not necessary These words being in the dis-junctive it is not necessary that the party be convicted But if he stand Presented or Indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of Peace ought to tender him this Oath And the said Iustice shall find Cause of suspition There must be cause of suspicion And not if the party be suspected as Wingate tit Crowne n. 150. mistakes for the bare suspition of the Justice of Peace or any other person is no sufficient ground to require the Oath or commit the party for refusal But there must be some good Cause for that suspition and the same must be alledged in the Justice of Peace his Plea or Justification if he be sued for committing him to Prison for such refusal So if a man be arrested on suspition of Felony and bring his Action for false Imprisonment the Defendant ought to shew some matter in fact to induce his suspition For in these and the like Cases a bare suspition is no sufficient Justification it being a matter secret and not traversable but the Cause of suspition is traversable Bulstrode 3. 284 285. Weale versus Wells 7 E. 4. 20. 17 E. 4. 5. 5 H. 7. 4. It shall be tried by the Justices And whether the suspition be just and lawful shall be tried and determined by the Justices Co. 2. Inst 52. 11 E. 4. 4. That then any one Iustice of Peace What was said by Coke Chief Justice B. R. in the Case of Griffith and others Bulstrode 2. 155. viz. that any one Justice of Peace One Justice of Peace may minister this Oath is to be understood of some Cases only Co. 12. 130. which are no other then those here mentioned as he explains his meaning in his said 12th Part p. 132. where he saith that one Justice of Peace cannot commit any for refusal of this Oath unless they be Prosecuted Indicted or Convicted c. according to this Statute Vide Stat. 3 Jac. cap. 4. Sect. 10. 11. Within whose Commission or Power such person or persons shall at any time hereafter be A person complained of and against whom cause of suspition is found by the Justice of Peace flies into another County A person complained of and justly suspected flies into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and commit him upon refusal For he seems to be impowred thereunto by the express words of the Statute for that the party is fallen within his Commission or Power But yet I conceive that by these words any one Iustice of Peace within whose Commission or Power c. is designed or intended no other Justice then a Justice of that County where the party was complained of and suspected The Justices there cannot proceed thereupon And that if he flie into another County no proceedings can be there upon the complaint and suspition in the County whence he came nor any one Justice tender him the Oath or commit him for refusal without a new Complaint and cause of suspition in the County whither he flies For where the party cannot be Indicted of a Praemunire for refusing the Oath upon the second tender at the Assizes or Sessions there the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for refusal For the Commitment is in Order to a second tender and an Indictment of Praemunire thereupon But in this Case the party cannot be Indicted of a Praemunire in the County where he flies for refusing it upon the second tender For the offence for which the party must be Indicted is a complicated offence consisting of several particulars First In giving just cause of suspition without which the party complained of according to this Act cannot be tendred the Oath by one Justice of Peace then in refusing the Oath before the Justice of Peace who tendred it and lastly in refusing it upon the second tender at the Assizes or Sessions all which must be comprised in the Indictment so that the cause of suspition is pars criminis and that arising in the County where the party dwelt and was complained of cannot be punished in another County unless the Statute had expresly made it examinable there Vide Stat. 3 Jac. cap 4. Stat. 5 Jac. 4. Sect. 11. True it is that some Statutes do enable Justices of Peace to punish an offence done in another County but that is where they enable them likewise to examine the truth of the Fact and take proofs and evidence thereof so the Statutes of 1 Jac. cap. 27. and 7 Jac. cap. 11. 1 Jac. 27. 7 Jac. 11. impower the Justices of Peace where the party is apprehended to examine and punish the offence But in our Case the cause of suspition arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of suspition notwithstanding the party happen to be within his Commission or power But yet the party so flying into another County may without any new complaint or cause of suspition be tendred the Oath But yet he may be tendred the Oath there and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the foregoing words of this Clause although he dwell in another County and that for the reason before given viz. because this Oath sequitur personam non locum But Wingate in abridging this Clause tit Crowne numb 150. saves us the labour of this Question for
aforesaid Stat. Sect. 5. Sending relief to any Jesuit Priest or other person abiding in a Seminary If any person under her Maiesties Subjection or obedience shall at any time after the end of the said forty days by way of Exchange or by any other shift way or means whatsoever wittingly and willingly either directly or indirectly convey deliver or send or cause or procure to be conveyed or delivered to be sent over the Seas or out of this Realm or out of any other her Majesties Dominions or Territories into any Forreign parts or shall otherwise wittingly and willingly yield give or contribute any money or other relief to or for any Iesuit Seminary Priest or such other Priest Deacon or Religious or Ecclesiastical person as is aforesaid or to or for the maintenance or relief of any Colledge of Iesuits or Seminary already erected or ordained or hereafter to be erected or ordained in any the parts beyond the Seas or out of this Realm in any forreign parts or of any person then being of or in any the same Colledges or Seminaries and not returned into this Realm with submission as in this Act is expressed and tontinuing in the same Realm That then every such person so offending for the same offence shall incur the danger and penalty of Praemunire mentioned in the Statute of Praemunire made in the sixteenth year of the Reign of King Richard the Second Convey Deliver Conveying or delivering relief to a Jesuite c. So that he who is barely a Messenger or Instrument to convey or deliver such money or other relief is within the danger of this Law as well as the sender or giver Then being of or in the same Colledges or Seminaries To what persons this extends to what not This Clause extends not to every person brought up in such Colledge or Seminary as Wingate tit Crowne n. 54. mistakes For if such person afterwards quits his Colledge or Seminary and hath no longer any relation thereunto but abides elsewhere beyond the Seas he who gives or conveys relief or maintenance to him is not within this branch of the Statute because the person relieved or maintained is not then of or in any Colledge or Seminary And yet perhaps this may be an offence within the Statute of 3 Car. 1. Stat. 3 Car. 1. 2 cap. 2. quod vide postea Stat. Sect. 6. None shall send his Child or other beyond the Seas without licence And be it further Enacted by the Authority aforesaid That it shall not be lawful for any person of or under her Highness obedience at any time after the said forty days during her Majesties life which God long preserve to send his or her Child other person being under his or her Government into any the parts beyond the Seas out of her Highness obedience without the special Licence of her Majesty or of four of her Highness Privy Councel under their hands in that behalf first had or obtained except Merchants for such only as they or any of them shall send over the Seas only for or about his her or their Trade of Merchandize or to serve as Mariners and not otherwise upon pain to forfeit and lose for every such their offence the sum of One hundred pounds Where the Offences committed against this Act shall be inquired of and determined And be it also Enacted by the Authority aforesaid That every offence to be committed or done against the tenor of this Act shall and may be enquired of heard and determined as well in the Court commonly called the Kings-Bench in the County where the same Court shall for the time be as also in any other County within this Realm or any other her Highness Dominions where the offence is or shall be committed or where the Offendor shall be apprehended and taken Transporting of Jesuits Priests c. Provided also and be it Enacted by the Authority aforesaid That it shall and may be lawful for and to every Owner and Master of any Ship Bark or Boat at any time within the said forty days or other time before limited for their departure to Transport into any the parts beyond the Seas any such Iesuit Seminary Priest or other such Priest aforesaid so as the same Iesuit Seminary Priest or other Priest aforesaid so to be Transported do deliver unto the Mayor or other Chief Officer of the Town Port or Place where he shall be taken in to be transported his Name and in what Place he received such Order and how long he hath remained in this Realm or in any other her Highness Dominions being under her Obedience Stat. Sect. 7. A Jesuit or Priest submitting himself taking the oath and obeying the Laws Provided also That this Act or any thing therein contained shall not in any wise extend to any such Iesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiastical person as is before mentioned as shall at any time within the said forty days or within threé days after that he shall hereafter come into this Realm or any other her Highness Dominions submit himself to some Archbishop or Bishop of this Realm or to some Iustice of Peace within the County where he shall arrive or Land and do thereupon truly and sincerely before the same Archbishop Bishop or such Iustice of Peace take the said Oath set forth in Anno primo and by writing under his hand confess and acknowledge and from thenceforth continue his due obedience unto her Highness Laws Statutes and Ordinances made and provided or to be made or provided in Causes of Religion Continue his due Obedience The person submitting must continue his obedience The taking of the Oath by such Jesuit Priest or other Ecclesiastical person and his acknowledgment of his due obedience doth not exempt him from the danger of this Law as Wingate mistakes tit Crowne numb 57. but he must continue his due obedience to the Laws made in Cases of Religion And this seems to be clearly the meaning of the makers of this Law so that if afterwards he shew his disobedience to any of those Laws by forbearing to come to Church c. he may be indicted as a Traitor for coming into the Realm as if he had never made any such submission and acknowledgment Vnto her Highness Laws That is Where King or Queen includes successors the Laws of her and her Successors and not only those which were made in her own time but such likewise as should be made afterwards For in Acts of Parliament King or Queen if a Sovereign includes Successors unless there be express words of restraint to that individual person Plowden 176. Hill versus Grange Co. 6. 27. Cases de Soldiers Co. 12. 109. Co. 1. Inst 9. 2. Inst 742. 3. Inst 6. 4. Inst. 352. And so it is of the Kings Grants if in his politick capacity for there his Successor shall be charged though the Grant mention neither
Curate of the Parish That in every such Case every such Offender being thereunto warned or required by any two Iustices of the Peace or Coroner of the same County where such offender shall then be shall upon his or their corporal Oath Abjuration before any two Iustices of the Peace or Coroner of the same County abjure this Realm of England and all other the Queéns Majesties Dominions forever And thereupon shall depart out of this Realm at such Haven and Port and within such time as shall in that behalf be assigned and appointed by the said Iustices of Peace or Coroner before whom such abjuration shall be made unless the same Offenders be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such Cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for felony as is aforesaid Abjuration to be entred of Record and certified And that every Iustice of Peace and Coroner before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes or Goal delivery of the said County at the next Assizes or Goal delivery to be holden in the same County If any such person or persons being a Popish Recusant That is any Popish Recusant within the former Branches of the Statute and none but such What Popish Recusants are within this Branch and which not Dalton V. cap. 45. tit Recusants applies this Clause to Popish Recusants convicted as if it concerned them and them only and so both at once extends and restrains the Statute contrary to its true meaning For these words any such person or persons neither extend to all that are convicted nor are restrained to such only as are convicted For the Popish Recusant who hath a certain place of aboad within this Realm although he be convicted is not within this Statute unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no certain place of aboad within this Realm is within this Statute although he were never convicted so that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no certain place of aboad and he who having a certain place of aboad was convicted when a Popish Recusant and in England and no other are liable by this Act to Abjuration Of the clear yearly value Clear yearly value of Twenty marks above all Charges A Rent-charge of 40 l. per Annum is issuing out of Lands worth 100 l. per Annum a Popish Recusant liable to be confined by this Statute purchases for his Life or in Fee parcel of the Lands of the clear yearly value of Twenty marks over and above what his proportion of the said Rent-charge comes to This is an Estate of the clear yearly value of Twenty marks within the meaning of this Act and shall free him from abjuration For although in strictness of Law his Estate be not clearly so much above all charges For that 't is chargeable with an yearly Rent of Forty pounds yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yield Twenty marks per Annum clearly besides Or Goods and Chattels This Statute being in the disjunctive Lands or Goods an Estate partly of Lands Goods and Lands not to be valued together and partly of Goods will not satisfie the intent thereof And therefore if a Popish Recusant who offends against this Act hath fifteen Marks per Annum clearly in Lands and be worth Thirty pounds in goods although this taken together be in truth an Estate of more value then is here required yet it shall not free him from Abjuration For the Statute doth not warrant any valuation of the Lands and Goods together so as to supply the defect of the yearly value of the Lands by the Goods or the defect of the value of the Goods by the Lands and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute And this is not like the Case of Jurors upon the Statute of 2 H. 5. Stat. 2 H. 5. 3. cap. 3. where 't is said That the Iuror shall have Lands of the clear yearly value of Forty shillings if the Debt or Damage declared amount to Forty marks in which Case although it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages both amount to Forty marks it is sufficient and the Juror must have Forty shillings per Annum Co. 1. Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more then one intire thing viz. the value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law that no Cause declared to be of the value of Forty marks shall be tried by Jurors of a less Estate but in our Case the Lands and Goods are things of different nature one real the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless the Act had expresly appointed such a Valuation But yet if a Popish Recusant hath a Lease for years But leases for years and personal goods may and personal Goods and both do amount in value to above Forty pounds he shall be out of the danger of Abjuration For although the Lease is in the realty and the Goods are personal yet they shall in this Case be valued together For that by this Copulative and the Statute expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value Money secured upon a Mortgage Mortgage of Lands is within the meaning of these words Goods and Chattels And if the Popish Recusant hath above Forty pounds owing to him upon such Mortgage he cannot be required to abjure Within three months next after such person shall be apprehended or taken Wingate in abridging this Clause tit Crowne numb 80. clearly mistakes the meaning of it For he saith that a Popish Recusant whose estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of aboad which is a complicated Error For he quite leaves out him who is to repair to the place where he was born or his Father or Mother dwels He makes the party liable to such submission before he becomes an offender by not repairing or not presenting himself and giving in his true name or travelling above five miles He speaks nothing of his being
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