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cause_n	woman_n	year_n	yield_v	19	3	6.7750	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
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

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

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

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

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