Common Law preferred or other Law or Laws used or allowed within this Realm c. This takes in so much of the Canon and Civil Law as is allowed here But the Common Law as the peculiar Law of this Kingdom is here preferred and particularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton Cap. 81. tit Recusants Sect. 11. As have or shall have Authority by Common use c. Who are to administer the Oath The Statute saith not That those who belong not to any Court shall take the Oath before those who are authorized by Common use to give it as Wingate tit Crown numb 20. mistakes the meaning of this Clause For this being then a new Oath devised by the makers of the Act of 1 Eliz. no person could have Authority by Common use to administer it And the Act plainly enough speaks of those who have Authority by Common use to admit the party to the Office and not Authority by Common use to give the Oath And also Stat. Sect. 5. The Bishop may tender the Oath to any Spiritual person Be it Enacted by the Authority of this present Parliament That every Archbishop and Bishop within this Realm and Dominions of the same shall have full Power and Authority by virtue of this Act to tender or minister the Oath aforesaid to every or any Spiritual or Ecclesiastical person within their proper Diocess as well in Places and Iurisdictions exempt as elsewhere If a man be Indicted for refusing this Oath before him who is reputed to be Bishop of the Diocess Bishop or not Bishop and he plead to the Indictment Non culp he may upon that issue give in Evidence Quod non fuit Episcopus tempore oblationis Sacramenti Dyer 6 7 Eliz. 234. Bonners Case Stat. Sect. 6. The Lord Chancellor may direct Commissions to take the Oath of any person And be it Enacted by the Authority aforesaid That the Lord Chancellor or Kéeper of the Great Seal of England for the time being shall and may at all times hereafter by vertue of this Act without further Warrant make and direct Commission or Commissions under the Great Seal of England to any person or persons giving them or some of them thereby Authority to tender and minister the Oath aforesaid to such person or persons as by the aforesaid Commission or Commissions the said Commissioners shall be authorized to tender the same Oath unto The penalty for the first refusal of the Oath And be it also further Enacted by the Authority of this present Parliament That if any person or persons appointed or compellable by this Act or by the said Act made in the said first year to take the said Oath Or if any person or persons to whom the said Oath by any such Commission or Commissions shall be limited and appointed to be tendred as is aforesaid do or shall at the time of the said Oath so tendred refuse to take or pronounce the said Oath in manner and form aforesaid that then the party so refusing and being thereof lawfully Indicted or presented within one year next after any such refusal and convicted or attainted at any time after according to the Laws of this Realm shall suffer and incur the dangers penalties pains and forfeitures ordained and provided by the Statute of Provision and Praemunire aforesaid made in the 16th year of the Reign of King Richard the second Stat. Sect. 7. Certificate of Refusal into the Kings-Bench And furthermore be it Enacted by the Authority aforesaid That all and every such person and persons having Authority to tender the Oath aforesaid shall within forty days next after such refusal or refusals of the said Oath if the Term be then open and if not then at the first day of the full Term next following the said forty days make true Certificate under his or their Seal or Seals of the names places and degrees of the person or persons so refusing the same Oath before the Quéen her Heirs or Successors in her or their Court commonly called the Kings-Bench upon pain that every of the said persons having such Authority to tender the said Oath making default of such Certificate shall for every such default forfeit 100 l. to the Queens Highness her Heirs or Successors And that the Sheriff of the County where the said Court commonly called the Kings-Bench shall for the time be holden shall or may by vertue of this Act impannel a Iury of the same County to enquire of and upon every such refusal and refusals Indictment of the Offender Which Iury shall or may upon every such Certificate and other Evidence to them in that behalf to be given by vertue of this Act proceed to Indict the person and persons so offending in such sort and degree to all intents and purposes as the same Iury may do of any Offence or Offences against the Queens Majesties Peace perpetrated committed or done within the same County of and for the which the same Iury is so Impannelled Terme When the Term Term. is open and which is the first day of full Term Vide supra Sect. 3. Make true Certificate c. in the Kings-Bench Certificate of refusal by whom brought in not material It is not necessary that it be mentioned of Record in the Kings-Bench how or by whom the Certificate was brought in thither And in Bonners Case where the Bishop of Winchester certified the refusal of this Oath And exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi the exception was dissallowed for that reason Dyer 6. 7. Eliz. 234. Impannel a Iury of the same County to inquire A Jury of the County where the Kings-Bench is And a Jury of the County where the Kings-Bench is can do no more in this Case then inquire that is Indict the party refusing the Oath unless where the refusal is in the same County Horne Bishop of Winchester tendred this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London By what Jury the Offender shall be Tryed who refused to take it and this was certified by the Bishop of Winchester into the Kings-Bench then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act the Question was by what County he should be Tryed whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the offence was committed And it was resolved that he should be Tryed by a Jury of Surrey for this Statute extendeth to the Indictment only and leaveth the Trial to the Common Law which appoints it to be where the Offence is committed for regularly by the Common Law debet quis juri subjacere ubi deliquit Dyer 6. 7. Eliz. 234. Co. 3.
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
Inst 34. Which Iury shall or may c. proceed to Indict Who to Indict him So that the Jury is to Indict and not the Sheriff as is mistaken in the late additions to Dalton cap. 81. tit Recusants Sect. 11. And for stronger defence and maintenance of this Act Stat. Sect. 8. It shall be Treason the second time to maintain the Authority of the Bishop or See of Rome it is further Ordained Enacted and Established by the Authority aforesaid That if any such Offender or Offenders as is aforesaid of the first part or Branch of this Estatute that is to say by Writing Cyphering Printing Preaching or Teaching Deed 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 See heretofore claimed used or usurped within this Realm or in any Dominion or Country being of within or under the Queens Power or Obeysance or by any Speech open Deed or Act Advisedly and Wittingly attribute any such manner of Iurisdiction Authority or Preheminence to the said See of Rome or to any Bishop of the same See for the time being within this Realm or in any the Queens Dominions or Countries or be to any such Offender or offenders Abetting Procuring or Counselling or Aiding Assisting or Comforting upon purpose and to the intent to set forth further and extol the said usurped Power Authority or Iurisdiction After such Conviction and Attainder as is aforesaid do eftsoons commit or do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid Or to refuse the Oath And also that if any the persons abovenamed and appointed by this Act to take the Oath aforesaid do after the space of thrée months next after the first tender thereof the second time refuse to take and pronounce or do not take or pronounce the same in form aforesaid to be tendred that then every such Offender or Offenders for the same second Offence and Offences shall forfeit lose and suffer such like and the same pains forfeitures Iudgment and Execution as is used in Cases of High Treason What is an advised or witting maintenance Advisedly and wittingly Slade and Body were condemned in a Praemunire upon this Statute before Justices of Oyer and Terminer for extolling the Authority of the Bishop of Rome and remained in Prison for the space of two years and afterwards were brought to the Assizes and demanded whether they were still of the same Opinion To which they answered that they were and one of them said that if they had a thousand Lives they would lose them all in this Case upon which they were Indicted and Arraigned and Convicted upon this second Branch of the Statute for High Treason And it was Resolved by the greater part of the Justices that the words should be taken to be spoken Advisedly and Wittingly and were within the meaning of this second Branch Savile 46. 47. C. 99. Tender and refusal For tender and refusal Vide Stat. 7. Jac. cap. 6. Sect. 4. 5. postea Stat. Sect. 9. Provided always That this Act nor any thing therein contained nor any Attainder to be had by force and vertue of this Act shall not extend to make any corruption of Blood the disheriting of any Heir forfeiture of Dower No corruption of Blood disheriting of Heir or forfeiture of Dower for any Attainder by this Act nor to the prejudice of the Right or Title of any person or persons other then the Right or Title of the Offender or Offenders during his her or their natural Lives only And that it shall and maybe lawful to every person and persons to whom the Right or Interest of any Lands Tenements or Hereditaments after the death of any such Offender or Offenders should or might have appertained if no such Attainder had been to enter into the same without any Ouster le maine to be sued in such sort as he or they might have done if this Act had never been had ne made Provided also That the Oath expressed in the said Act How the Oath expressed An. 1. Eliz. 1. shall be expounded made in the said first year shall be taken and expounded in such form as is set forth in an Admonition annexed to the Queens Majesties Injunctions published in the first year of her Majesties Reign That is to say to confess and acknowledge in her Majesty her Heirs and Successors none other Authority then that was challenged and lately used by the Noble King Henry the Eighth and King Edward the Sixth as in the said admonition more plainly may appear And be it Enacted by the Authority aforesaid In what Courts and places this Act shall be published That this Act shall be openly Read and Published and Declared at every Quarter Sessions by the Clerk of the Peace and at every Leet and law-Law-day by the Steward of the Court and once in every Term in the open Hall of every House and Houses of Court and Chancery at the times and by the persons thereunto to be limited and appointed by the Lord Chancellor or Keeper of the Great Seal for the time being And be it further Enacted Stat. Sect. 10. Every Knight Citizen and Burgess of the Parliament shall take the said Oath That every person which hereafter shall be Elected or appointed a Knight Citizen or Burgess or Baron for any of the five Ports for any Parliament or Parliaments hereafter to be holden shall from henceforth before he shall enter into the Parliament House or have any Voice there openly receive and pronounce the said Oath before the Lord Steward for the time being or his Deputy or Deputies for that time to be appointed And that he which shall enter into the Parliament House without taking the said Oath shall be deemed no Knight Citizen Burgess nor Baron for that Parliament nor shall have any Voice but shall be to all intents constructions and purposes as if he had never been Returned nor Elected Knight Citizen Burgess or Baron for that Parliament and shall suffer such pains and penalties as if he had presumed to sit in the same without Election Return or Authority The Kings dispensation void The King cannot dispence with any Member of the Commons House from taking this Oath For the reason given by the late Lord Chief Justice Vaughan in the Case of Thomas and Sorrell touching the Oath of Allegiance holds here viz. Because by this Statute he is persona inhabilis until he hath taken it Vaughan 355. Stat. Sect. 11. Where no temporal person of or above the degree of a Baron shall be compelled to take the said Oath Provided alway That forasmuch as the Quéens Majesty is otherwise sufficiently assured of the Faith and Loyalty of the Temporal Lords of her High Court of Parliament Therefore this Act nor any thing therein contained shall
Divine Service now most Godly set forth and used within this Realm but also have thought themselves dischorged of and from all Obedience Duty and Allegiance to her Majesty whereby most wicked and unnatural Rebellion hath ensued and to the further danger of this Realm is hereafter very like to be renewed if the ungodly and wicked attempts in that behalf be not by severity of Laws restrained and bridled For remedy and redress whereof Stat. Sect. 2. Putting in ure any Bull of Absolution or reconciliation from the Bishop of Rome and to prevent the great mischiefs and inconveniencies that thereby may ensue Be it Enacted by the Queens most Excellent Majesty with the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same That if any person or persons after the first day of July next coming shall use or put in ure in any place within this Realm or in any the Queens Dominions any such Bull Writing or Instrument Written or Printed of Absolution or Reconciliation at any time heretofore obtained and gotten or at any time hereafter to be obtained and gotten from the said Bishop of Rome or any his Successors or from any other person or persons Authorized or claiming Authority by or from the said Bishop of Rome his Predecessors or Successors or See of Rome Or if any person or persons after the said first day of July Absolving or reconciling of any person and being absolved or reconciled shall take upon him or them by colour of any such Bull Writing Instrument or Authority to absolve or reconcile any person or persons or to grant or promise to any person or persons within this Realm or any other the Queens Majesties Dominions any such absolution or reconciliation by any Speéch Preaching Teaching Writing or any other open Déed Or if any person or persons within this Realm or any of the Quéens Dominions after the said first day of July shall willingly receive and take any such absolution or reconciliation Getting of any Bull from Rome containing any matter whatsoever or publishing or putting in ure the same Or else if any person or persons have obtained or gotten since the last day of the Parliament holden in the first year of the Queens Majesties Reign or after the said first day of July shall obtain or get from the said Bishop of Rome or any his Successors or See of Rome any manner of Bull Writing or Instrument Written or Printed containing any thing matter or cause whatsoever or shall Publish or by any ways or means put in ure any such Bull Writing or Instrument That then all and every such act and acts offence and offences shall be deemed and adjudged by the Authority of this Act to be High Treason and the Offender and Offenders therein their Procurors Abettors and Counsellors to the Fact and committing of the said offence or offences shall be deemed and adjudged High Traitors to the Queen and the Realm and being thereof lawfully Indicted and Attainted according to the course of the Laws of this Realm shall suffer pains of Death and also loose and forfeit all their Lands Tenements Hereditaments Goods and Chattels as in Cases of High Treason by the Laws of this Realm ought to be lost and forfeited The Popes Bull. Bull. The Popes Bulls in Latin called Bullae are so called Quod Bullis plumbeis obsignentur and in them consilium voluntas Papae continentur Vide Termes de la Ley 43. Bull. Absolution and Reconciliation Absolution or Reconciliation A man absolves or reconciles or is absolved or reconciled to the Pope or See of Rome without any Bull Writing or Instrument to that purpose This Case seems not to be within the meaning of this Statute For there must be some Bull Writing or Instrument to Authorize such Absolution or Reconciliation or the person who gives or receives it is not punishable by this Act Stat. 23 Eliz. 1. 3 Jac. 4. although he may be by 23 Eliz. cap. 1. and 3 Jac. cap. 4. Stat. Sect. 3. And be it further Enacted by the Authority aforesaid That all and every aiders comforters or maintainers of any the said Offender or Offenders after the committing of any the said Acts or Offences to the intent to set forth uphold or allow the doing or execution of the said usurped Power Aiders Comforters and Maintainers of Offenders after the Offence Iurisdiction or Authority touching or concerning the premises or any part thereof shall incur the pains and penalties contained in the Statute of Praemunire made in the sixteénth year of the Reign of King Richard the second To the intent Vide supra Stat. 5 Eliz. cap. 1. Sect. 2. Intent Stat. 5 Eliz 1. postea Sect. 6. Provided always Stat. Sect. 4. Concealing or not disclosing of a Bull or reconciliation offered and be it further Enacted by the Authority aforesaid That if any person or persons to whom any such Absolution Reconciliation Bull Writing or Instrument as is aforesaid shall after the said first day of July be offered moved or perswaded to be used put in ure or executed shall conceal the same offer motion or perswasion and not disclose and signifie the same by writing or otherwise within six weéks than next following to some of the Queéns Majesties Privy Counsel or else to the President or Vice-president of the Queéns Majesties Counsel established in the North parts or in the Marches of Wales for the time being that then the same person or persons so concealing and not disclosing or not signifying the said offer motion or perswasion shall incur the loss danger penalty and forfeiture of Misprision of High Treason Note Concealers of the Offence All concealers of this Offence are not within the danger of this Law as Wingate misrecites the Clause tit Crown numb 35. And therefore if a man be present at such offer motion or perswasion and conceal it he shall not incur Misprision of Treason unless he be the party to whom any such Bull c. or Absolution c. was offered And that no person or persons shall at any time hereafter be impeached molested Stat. Sect. 5. or troubled in or for misprision of Treason for any Offence or Offences made Treason by this Act other than such as by this Act are before declared to be in Case of Misprision of High Treason And be it further Enacted by the Authority aforesaid Stat. Sect. 6. Bringing into the Realm or using of Agnus Dei Pictures Crosses c. That if any person or persons shall at any time after the said first day of July bring into this Realm of England or any the Dominions of the same any token or tokens thing or things called or named by the name of Agnus Dei or any Crosses Pictures Beads or such like vain and superstitious things from the Bishop or Sée of Rome or from any person or
Dalton cap. 140. tit High Treason Sect. 13. 't is said That the Clause in this Statute touching those who receive relieve or maintain a Jesuit Receiving or relieving a Jesuit Priest c. at this day is Felony by this Act. c. relates only to such as had before that time taken Orders which conceit I suppose is grounded upon those words viz. who at the end of the said forty days and after such time of departure as aforesaid shall receive c. as if no Jesuit or Priest were here intended but such an one as was then a Jesuit or Priest and had forty days given him for his departure nor no person a Felon by this Act who receives or relieves any other But the words here viz. such Iesuit c. seem to be more extensive and to relate as well to the receivers or relievers of a Jesuit or Priest in Orders at this day as to those who were in Orders at the time of making this Statute And if we weigh the Grammatical construction of the words with much more reason the former then the later For the proximum antecedens to such is the Jesuit or Priest who was to be made ordained or professed and not he that was then made ordained or professed already And those words in this Clause of relieving viz. Every person which after the end of the same forty days c. shall receive c. that is forty days next after the end of that Session of Parliament may well be construed to extend to all Cases as well of receiving or relieving such who should be afterwards in Orders and should be found within the Realm for the time to come at any time after those forty days as of such who were then in Orders and were to depart before the forty days were expired so that the receiving relieving or maintaining of a Jesuit Popish Priest or other Popish Ecclesiastical person at liberty and known by the party to be such is Felony at this day by this Act and the Offender shall lose the benefit of his Clergy and so hath the Law been taken upon Actions of the Case for saying the Plaintiff kept a Seminary Priest or Jesuit in his House knowing him to be such Cro. Pasch 10 Jac. 300. Smith versus Flynt Palmer 410. Clerke and Loggins Case And be it further Enacted by the Authority aforesaid Stat. Sect. 4. They which be in Seminaries shall after Proclamation return and take the Oath If any of her Majesties Subjects not being a Iesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiastical person as is before mentioned now being or which hereafter shall be of or brought up in any Colledge of Iesuits or Seminary already erected or ordained or hereafter to be erected or ordained in the parts beyond the Seas or out of this Realm in any Forraign parts shall not within six months next after Proclamation in that behalf to be made in the City of London under the great Seal of England return into this Realm and thereupon within two days next after such Return before the Bishop of the Diocess or two Iustices of Peace of the County where he shall arrive submit himself to her Majesty and her Laws and take the Oath set forth by Act in the first year of her Reign That then every such person which shall otherwise return come into or be in this Realm or any other her Highnesse Dominions for such Offence of returning or being in this Realm or any other her Highnesse Dominions without submission as aforesaid shall also be adjudged a Traytor and suffer lose and forfeit as in Case of High Treason Persons sent out of this Realm Return into this Realm and thereupon within two days c. By this word Return it seems that none are intended here but such as were sent out of this Realm For others born and resident in some other part of the Kings Dominions until their entry into such Collledge or Seminary cannot be properly said to return hither The Queens Laws And her Laws What Laws are here meant Vide Sect. 7. Whither a person sent beyond Seas must first return Or any other her Highnesse Dominions A Subject of the Kings sent out of England to a Popish Colledge or Seminary is commanded by Proclamation made in London to return into this Realm and within the six months here limited first goes into Ireland and then comes into England and within two days submits himself and takes the Oath of Supremacy In this Case notwithstanding his return into England within the six months he shall be guilty of High Treason For after such Proclamation he ought to have come directly into England and into no other of the late Queens Dominions before he had been in England and if he doth he comes into the said Dominions otherwise then is appointed by this Act For the intent of the Act seems to be That he should not remain in any of the said Dominions until he submits and takes the Oath which submission must be made and Oath taken in England within two days after his arrival here and not elsewhere And although the Oath of Supremacy be in force in Ireland yet his taking it there will not serve nor yet his submission there For he is to submit to the King and his Laws by which are intended the Laws of England and no other But a submission in Ireland to the Kings Laws can be taken to be of such Laws only as are in force in Ireland Trial in England of Treason done in Ireland And in this Case the Offender may be tryed here in England although his Offence was committed in Ireland and that by force of the Statute of 35 H. 8. Stat. 35 H. 8. 2. 1 2 Ph. Mar. 10. cap. 2. notwithstanding the Statute of 1 2 Ph. Mar. cap. 10. For it was resolved by all the Judges of England in the Case of Ororke 33 Eliz. that Treason committed in Ireland may be tryed in England And the like resolution was in Sir John Perrots Case 34 Eliz. Co. 7. 23. Calvins Case Co. 1. Inst. 261. Co. 3. Inst 11. Dyer 13 Eliz. 298. Dr. Stories Case Anderson 1. 263. C. 269. Ororkes Case And if a Subject of England who is a Peer of Ireland Trial of Peers be sent to any such Colledge or Seminary and offend as aforesaid he may be tried in England by a common Jury notwithstanding the offence was in Ireland where he is a Peer contrary to Dyer 19 20 Eliz. 360. where 't is said that Wray Dyer and Gerard Attorney General were of opinion That a Peer of Ireland cannot be tryed in England for Treason done in Ireland because he cannot here have his Tryal by his Peers but this is not Law and Sir Christopher Wray protested he never gave any such opinion but held the contrary Co. 1. Inst 261. And be it further Enacted by the Authority
Heir or Successor as was adjudged in the Case of an Annuity granted to Sir Thomas Wroth during his life Plowden 457. Provided always Stat. Sect. 8. Trial of a Peer If it happen at any time hereafter any Péer of this Realm to be Indicted of any Offence made Treason Felony or Praemunire by this Act That he shall have his Trial by his Péers as in other Cases of Treason Felony or Praemunire is accustomed Provided nevertheless and it is declared by authority aforesaid That if any such Iesuit Seminary Priest or other Priest abovesaid shall fortune to be so weak or infirm of Body that he or they may not pass out of the Realm by the time herein limited without eminent danger of life and this understood as well by the Corporal Oath of the party as by other good means unto the Bishop of the Diocess and two Iustices of Peace of the same County where such person or persons do dwell or abide That then and upon good and sufficient Bond of the person or persons with Sureties of the sum of Two hundred pounds at the least with condition that he or they shall be of good behavior towards our Sovereign Lady the Queén and all her liege people Then he or they so licensed and doing as is aforesaid shall and may remain and be still within this Realm without any loss or danger to fall on him or them by this Act for so long time as by the same Bishop and Iustices shall be limited and appointed so as the same time of aboad exceed not the space of six months at the most And that no person or persons shall sustain any loss or incur any danger by this Act for the receiving or maintaining of any such person or persons so licensed as is aforesaid for and during such time only as such person or persons shall be so licensed to tarry within this Realm Any thing contained in this Act to the contrary notwithstanding Stat. Sect. 9. One knowing a Jesuit or Priest to remain in the Realm must discover it to a Justice of Peace or higher Officer And be it also further Enacted by Authority aforesaid That every person or persons being Subject of this Realm which after the said forty days shall know and understand that any such Iesuit Seminary Priest or other Priest abovesaid shall abide stay tarry or be within this Realm or other the Queéns Dominions and Countries contrary to the true meaning of this Act and shall not discover the same unto some Iustice of Peace or other higher Officer within twelve days next after his said knowledge but willingly conceal his knowledge therein that every such Offender shall make Fine and be imprisoned at the Quéens pleasure And that if such Iustice of Peace or other such Officer to whom such matter shall be so discovered do not within Eight and twenty days then next following give Information thereof to some of the Quéens Privy Councel or to the President or Vice-president of the Quéens Councel established in the North or in the Marches of Wales for the time being That then he or they so offending shall for every such Offence forfeit the sum of two hundred marks And be it likewise Enacted by the Authority aforesaid That such of the Privy Councel President or Vice-president to whom such Informations shall be made shall thereupon deliver a note in writing subscribed with his own Hand to the party by whom he shall receive such Information testifying that such Information was made unto him Being Subject of this Realm And not any person as Wingate tit Crowne numb 59. mistakes What is meant by a Subject of this Realm Subject of this Realm who Vide Stat. 3 Jac. cap. 4. Sect. 23. Vnto some Iustice of Peace or other higher Officer Vide Stat. 35 Eliz. cap. 2. Sect. 8. At the Quéens pleasure Fine and imprisonment at the Queens pleasure In this Case the Offender must be proceeded against according to the course of Law for he cannot be fined or imprisoned at the Kings pleasure by force of this Statute before he be Indicted Convicted and Judgment given against him And so were the proceedings against Sir Thomas Figet for going armed contrary to the Statute of 2 E. 3. Stat. 2 E. 3. 3 cap. 3. For the Book 24 E. 3. 33. saith that he was arraigned c. And if in this Case the Offender be committed to prison in order to his Trial and conviction yet before Judgment or at least before conviction he may be let to mainprize and the Fine shall be imposed by the Justices before whom he is convicted Justiciarii per eorum discretionem assessent finem non Dominus Rex per se in Camera sua nec aliter coram se nisi per Justiciarios suos haec est voluntas Regis viz. per Justiciarios suos legem suam unum est dicere 2 R. 3. 11. vide Co. 4. Inst. 71. 179. Note Sir Robert Brook in abridging the forementioned Case of Sir Thomas Figet saith that he was committed to the Prison of the Marshalsey and could not be mainprized until the King had signified his pleasure but omits the principal matter worthy of observation viz. That he was first arraigned c. Bro. Contempts 6. And be it also Enacted That all such Oaths Stat. Sect. 10. All Oaths Bonds and submissions to be certified into the Chancery Bonds and Submissions as shall be made by force of this Act as aforesaid shall be certified into the Chancery by such parties before whom the same shall be made within thrée months after such submission upon pain to forfeit and lose for every such Offence One hundred pounds of lawful English money the said forfeiture to be to the Quéen her Heirs and Successors None submitting himself shall come within ten miles of the Queen And that if any person so submitttng himself as aforesaid do at any time within the space of Ten years after such submission made come within Ten miles of such place where her Majesty shall ve without especial Licence from her Majesty in that behalf to be obtained in writing under her Hand that then and from thenceforth such person shall take no benefit of his said submission but that the same submission shall be void as if the same had never béen Stat. xxix Eliz. cap. vi An Act for the more speedy and due Execution of certain Branches of the Statute made in the 23 d. year of the Queens Majesties Reign Entituled An Act to retain the Queens Majesties Subjects in their due Obedience FOr avoiding of all Frauds and Delays heretofore practised Stat. Sect. 3. Certain assurances made by Recusants shall be void against the Queen or hereafter to be put in ure to the hindrance of the due and spéedy Execution of the Statute made in the Session of Parliament holden by Prorogation at Westminster the sixtéenth day of January in the thrée and twentieth year of
or Constitution of man Naturalization being but a fiction in Law which confers the priviledges of a natural Subject but cannot make him a natural Subject who was none before For then he would have two natural Princes one where he was born and the other where Naturalized Vaughan 279 280. 283. Craw versus Ramsey Co. 7. 5 6 7. 25. Calvins Case Dyer 3 4 Ph. Mar. 145. Hobart 171. Curteenes Case so that to absolve perswade withdraw or reconcile an Alien born whose Subjection to the King began not with his birth or for any such to be absolved perswaded withdrawn or reconciled seems not to be Treason within this Act. But this Subjection is not to be understood locally Subjection not to be understood locally or in respect of the place of a mans Birth but in respect of the Prince to whom Subjection is due at the time of his Birth And therefore if a Scot or Irishman be absolved or reconciled in England although the Offence be committed in another Kingdom then that where his Subjection begun yet being born a Subject to the King of England its Treason in the absolver or person reconciling and in him that is absolved or reconciled Nor is it necessary in all Cases that the party be born in the Kings Dominions but that he may be a natural Subject notwithstanding and consequently within this Act as in the Case of an Embassador vide Co. 7. 18. Calvins Case Vide Stat. 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Sect. 2. Stat. Sect. 20. A reconciled person taking the Oath Provided nevertheless That the last mentioned Clause of this Branch or any thing therein contained shall not extend or be taken to extend to any person or persons whatsoever which shall hereafter be reconciled to the Pope or Sée of Rome as aforesaid for and touching the point of so being reconciled only that shall return into this Realm and thereupon within six days next after such return before the Bishop of the Diocess or two Iustices of Peace joyntly or severally of the County where he shall arrive submit himself to his Majesty and his Laws and take the Oath set forth by Act in the first year of the Reign of the late Quéen Elizabeth commonly called the Oath of Supremacy as also the Oath before set down in this present Act which said Oaths the said Bishop and Iustices respectively shall have Power and Authority by this present Act to minister to such persons as aforesaid And the said Oaths so taken the said Bishop and Iustices before whom such Oaths shall be so taken respectively shall certifie at the next General or Quarter Sessions of the Peace to be holden within the said Shire Limit Division or Liberty wherein such person as aforesaid shall submit himself and take the said Oaths as aforesaid upon pain of every one neglecting to certifie the same as aforesaid the sum of Forty pounds Submission in case of Treason Which shall hereafter be reconciled In the late Additions to Dalton cap. 140. tit High Treason Sect. 12. is intimated that this Clause which provides in Case of Submission extends to no Cases of Treason or Misprision of Treason for there in reciting this part of the Statute the Cases of Treason and Misprision of Treason are excepted which is a great mistake For the Submission here spoken of is only in the Case of a declared Treason scil being reconciled to the Pope or See of Rome For and touching the point of so being reconciled only In the latter part of the former Section there are three several sorts of Offences made Treason Reconciled to the Pope c. what meant thereby 1. To be willingly absolved or withdrawn from a mans natural Obedience 2. To be willingly reconciled to the Pope or See of Rome 3. To promise Obedience to any pretended Authority of that See or to any other Prince State or Potentate but in this Clause only the second of these Offences is remitted in Case of Submission viz. the being reconciled to the Pope or Sée of Rome By which I conceive to be meant the forsaking of the Religion established by Law and embracing that which is professed and maintained by the Pope and See of Rome And in that sense those words are commonly taken at this day And that this is the meaning of those words appears by the Statute of 23 Eliz. cap. 1. which makes it Treason to absolve or withdraw the Subjects from their natural Obedience or to withdraw them from the Religion Established to the Romish Religion or to move them to promise Obedience to the See of Rome or any other Prince c. to answer which follows in that Act three other sorts of Treason viz. to be absolved or withdrawn or to be reconciled or to promise such Obedience so that the Offence of being reconciled answers to the Offence of withdrawing the Subjects from the Religion Established to the Romish Religion which explains what is meant by such Reconciliation viz. the being so withdrawn from the one Religion to the other But by this Clause if a person be thus reconciled that is change his Religion and become a Papist yet if he be capacitated to submit as is required by this Act and submit accordingly and take the Oaths of Supremacy and Allegiance such Offence of being reconciled shall not be Treason But as for being absolved or withdrawn from his natural Obedience Offences not within this Proviso or promising Obedience to the pretended Authority of the See of Rome or any other Prince State or Potentate besides his natural King such Submission and taking the Oaths shall not absolve him from that guilt but he shall have Judgment and suffer for the same as in Case of High Treason notwithstanding such Submission c. Dalton V. cap. 89. tit High Treason is therefore clearly mistaken in extending the benefit of this Submission c. generally to all who have been willingly absolved withdrawn or reconciled or have promised such Obedience Submit himself to his Majesty and his Laws The Kings Laws Stat. 27 Eliz. 2 What Laws are here meant vide Stat. 27 Eliz. cap. 2. Sect. 7. Stat. Sect. 21. Where the Trial shall be And be it further Enacted That all and every person and persons that shall offend contrary to this present branch of this Statute shall be Indicted tried and proceéded against by and before the Iustices of Assize and Goal delivery of that County for the time being or before the Iustices of the Court of Kings Bench and be there procéeded against according to the Laws and Statutes of this Realm against Traitors as if the said Offence had béen committed in the same County where such person or persons shall be so taken Any Law Custom or Statute to the contrary in any wise notwithstanding In what County The Offender may be proceeded against by force of this Act in any County where he shall be imprisoned for
to any person or capable of any Legacy or Deéd of Gift or to bear any Office within the Realm and shall lose and forfeit all his Goods and Chattels and shall forfeit all his Lands Tenements and Hereditaments Rents Annuities Offices and Estates of Fréehold for and during his natural Life Stat. Sect. 2. He that conforms shall not incur the penalties aforesaid Provided always That no person sent or conveyed as aforesaid that shall within Six months after his Return into this Realm conform himself unto the present Religion established in this Church of England and receive the Sacrament of the Lords Supper according to the Statutes made concerning conformity in other Cases required from Popish Recusants shall incur any the penalties aforesaid Within Six months after his return And not within Six weeks as Wingate tit Crowne numb 157. erroneously Stat. Sect. 3. What Justices shall hear and determine these offences And it is Enacted That all and every of the offences against this Statute may be inquired heard and determined before the Iustices of the Kings Bench or Iustices of Assize or Goal delivery or of Oyer and Terminer of such Counties where the Offenders did last dwell or abide or whence they departed out of this Kingdom or where they were taken Or of Oyer and Terminer Justices of Peace Justices of Peace here excluded cannot take an Indictment upon this Statute for no inferior Court shall take Authority by any Statute unless it be specially named Savile 135. C. 212. Agard and Candish And although Justices of Peace have in their Commission an express Clause ad audiendum terminandum and by that are Justices of Oyer and Terminer yet forasmuch as there is a Commission of Oyer and Terminer known distinctly by that name and the Commission of Peace is known distinctly by another name they shall not be included under the general words of Justices of Oyer and Terminer as was adjudged Hill 30 Eliz. B. R. in the Case of Richard Smith who was Indicted at the Sessions of the Peace in the County of Oxon upon the Statute of 5 Eliz. cap. 14. Stat. 5 Eliz. 14 of forging Deeds which impowers the Justices of Oyer and Terminer to inquire of hear and determine that offence and yet the Indictment before the Justices of Peace was quashed as taken coram non Judice Co. 9.118 Co. 3. Inst. 103. Cro. Eliz. 87. vide Cro. Mich. 39 40 Eliz. 601. Wilsons Case Ibid. Mich. 41 42 Eliz. 697. Hunts Case Or where they were taken Vide Stat. 3 Jac. cap. 4. 3 Jac. 4. Sect. 21. Provided also That if any person or Child Stat. Sect. 4. In what Case the offenders Lands shall be restored again so passing or sent or now being beyond the Seas shall after his return into this Realm conform himself to the present Religion established in this Church of England and receive the Sacrament of the Lords Supper according to the Statutes made for or concerning conformity in other Cases required from Popish Recusants for and during such time as he or she shall so continue in such conformity and obedience occording to the true intent and meaning of the said Laws and Statutes shall have his or her Lands restored to them again Addendum Stat. xxv Car. ii c. ii An Act for Preventing Dangers which may happen from Popish Recusants FOR preventing Dangers which may happen from Popish Recusants and quieting the minds of His Majesties good Subjects Be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same That all and every person or persons as well Péers as Commoners that shall bear any Office or Offices Civil or Military or shall receive any Pay Salary Fée or Wages by reason of any Patent or Grant from His Majesty or shall have Command or Place of Trust from or under His Majesty or from any of His Majesties Predecessors or by His or their Authority or by Authority derived from Him or them within the Realm of England Dominion of Wales or Town of Berwick upon Tweed or in His Majesties Navy or in the several Islands of Jersey and Guernsey or shall be of the Houshold or in the Service or Imployment of His Majesty or of his Royal Highness the Duke of York who shall inhabit reside or be within the City of London or Westminster or within Thirty miles distant from the same on the first day of Easter Term that shall be in the year of our Lord One thousand six hundred seventy threé or at any time during the said Term all and every the said person and persons shall personally appear before the end of the said Term or of Trinity Term next following in His Majesties high Court of Chancery or in His Majesties Court of Kings Bench and there in publick and open Court between the hours of Nine of the Clock and Twelve in the Forenoon take the several Oaths of Supremacy and Allegiance which Oath of Allegiance is contained in the Statute made in the third Year of King James by Law established and during the time of the taking thereof by the said person and persons all Pleas and Procéedings in the said respective Courts shall cease And that all and every of the said respective persons and Officers not having taken the said Oaths in the said respective Courts aforesaid shall on or before the First day of August One thousand six hundred seventy thrée at the Quarter Sessions for that County or place where he or they shall be inhabit or reside on the Twentieth day of May take the said Oaths in open Court betwéen the said hours of Nine and Twelve of the Clock in the Forenoon And the said respective Officers aforesaid shall also receive the Sacrament of the Lords Supper according to the Vsage of the Church of England at or before the First day of August in the year of our Lord One thousand six hundred and seventy thrée in some Parish Church upon some Lords day commonly called Sunday immediately after Divine Service and Sermon And be it further Enacted by the Authority aforesaid That all and every person or persons that shall be admitted entred placed or taken into any Office or Offices Civil or Military or shall receive any Pay Salary Fée or Wages by reason of any Patent or Grant of his Majesty or shall have Command or Place of Trust from or under his Majesty his Heirs or Successors or by his or their Authority or by Authority derived from him or them within this Realm of England Dominion of Wales or Town of Berwick upon Tweed or in his Majesties Navy or in the several Islands of Jersey and Gernsey or that shall be admitted into any Service or Imployment in his Majesties or Royal Highnesses Houshold or Family after the First day of Easter Term aforesaid and shall inhabit be
or reside when he or they is or are so admitted or placed within the Cities of London or Westminster or within Thirty Miles of the same shall take the said Oaths aforesaid in the said respective Court or Courts aforesaid in the next Term after such his or their Admittance or Admittances into the Office or Offices Imployment or Imployments aforesaid betwéen the hours aforesaid and no other and the Procéedings to cease as aforesaid And that all and every such person or persons to be Admitted after the said First day of Easter Term as aforesaid not having taken the said Oaths in the Courts aforesaid shall at the Quarter Sessions for that County or Place where he or they shall reside next after such his admittance or admittances into any of the said respective Offices or Imployments aforesaid take the said several and respective Oaths as aforesaid and all and every such person and persons so to be admitted as aforesaid shall also receive the Sacrament of the Lords Supper according to the Vsage of the Church of England within Thrée Months after his or their admittances in or receiving their said Authority and Imployment in some publick Church upon some Lords-day commonly called Sunday immediately after Divine Service and Sermon And every of the said persons in the respective Court where he takes the said Oaths shall first deliver a Certificate of such his receiving the said Sacrament as aforesaid under the Hands of the respective Minister and Church-warden and shall then make proof of the truth thereof by two credible Witnesses at the least upon Oath All which shall be inquired of and put upon Record in the respective Courts And be it further Enacted by the Authority aforesaid That all and every the person or persons aforesaid that do or shall neglect or refuse to take the said Oaths and Sacrament in the said Courts and places and at the respective times aforesaid shall be ipso facto adjudged uncapable and disabled in Law to all intents and purposes whatsoever to have occupy or enjoy the said Office or Offices Imployment or Imployments or any part of them or any matter or thing aforesaid or any profit or advantage appertaining to them or any of them and every such Office and Place Imployment and Imployments shall be void and is hereby adjudged void And be it further Enacted That all and every such person or persons that shall neglect or refuse to take the said Oaths or the Sacrament as aforesaid within the times and in the places aforesaid and in the manner aforesaid and yet after such neglect and refusal shall execute any of the said Offices or Imployments after the said times expired wherein he or they ought to have taken the same and being thereupon lawfully Convicted in or upon any Information Presentment or Indictment in any of the Kings Courts at Westminster or at the Assizes every such person and persons 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 Guardian of any Child or Executor or Administrator of any person or capable of any Legacy or Déed of Gift or to bear any Office within this Realm of England Dominion of Wales or Town of Berwick upon Tweed and shall forfeit the sum of Five hundred pounds to be recovered by him or them that shall Sue for the same to be prosecuted by any Action of Debt Suit Bill Plaint or Information in any of His Majesties Courts at Westminster wherein no Essoign Protection or Wager of Law shall lie And be it further Enacted by the Authority aforesaid That the names of all and singular such persons and Officers aforesaid that do or shall take the Oaths aforesaid shall be in the respective Courts of Chancery and Kings Bench and the Quarter Sessions Inrolled with the day and time of their taking the same in Rolls made and kept only for that intent and purpose and for no other The which Rolls as for the Court of Chancery shall be publickly hung up in the Office of the Pettybag and the Roll for the Kings Bench in the Crown Office of the said Court and in some publick place in every Quarter Sessions and there remain during the whole Term every Term and during the whole time of the said Sessions in every Quarter Sessions for every one to resort to and look upon without Fée or Reward and likewise none of the person or persons aforesaid shall give or pay as any Fée or Reward to any Officer or Officers belonging to any of the Courts as aforesaid above the sum of Twelve pence for his or their Entry of his or their taking of the said Oaths aforesaid And further That it shall and may be lawful to and for the respective Courts aforesaid to give and Administer the said Oaths aforesaid to the person or persons aforesaid in manner as aforesaid and upon the due tender of any such person or persons to take the said Oaths the said Courts are hereby required and enjoyned to Administer the same And be it further Enacted That if any person or persons not bred up by his or their Parent or Parents from their Infancy in the Popish Religion and professing themselves to be Popish Recusants shall Bréed up Instruct or Educate his or their Child or Children or suffer them to be Instructect or Educated in the Popish Religion every such person being thereof Convicted shall be from thenceforth disabled of hearing any Office or Place of Trust or Profit in Church or State And all such Children as shall be so brought up instructed or educated are and shall be hereby disabled of bearing any such Office or Place of Trust or Profit until he and they shall be perfectly Reconciled and Converted to the Church of England and shall take the Oaths of Supremacy and Allegiance aforesaid before the Iustices of the Peace in the open Quarter Sessions of the County or place where they shall inhabit and thereupon receive the Sacrament of the Lords Supper after the Vsage of the Church of England and obtain a Certificate thereof under the Hand of two or more of the said Iustices of the Peace And be it further Enacted by the Authority aforesaid That at the same time when the persons concerned in this Act shall take the aforesaid Oaths of Supremacy and Allegiance they shall likewise make and subscribe this Declaration following under the same Penalties and Forfeitures as by this Act is appointed I A. B. do Declare That I do believe that there is not any Transubstantiation in the Sacrament of the Lords Supper or in the Elements of Bread and Wine at or after the Consecration thereof by any person whatsoever Of which Subscription there shall be the like Register kept as of the taking the Oaths aforesaid Provided always That neither this Act nor any thing therein contained shall extend be judged or interpreted any ways to
the 1 2 Ph. M. 8. and all and every Branches Clauses and Articles therein contained other than such Branches and Sentences as hereafter shall be excepted may from the last day of this Session of Parliament by Authority of this present Parliament be repealed and shall from thenceforth be utterly void and of none effect The Statute of 1. and 2. Ph. Mar. here mentioned repealed The King declared supream Head Stat. 1 2. Ph. Mar. 8. 26 H. 8. 1. 35 H. 8. 3. the Statutes of 26 H. 8. cap. 1. and 35 H. 8. cap. 3. By both which King Henry the Eighth his Heirs and Successors were declared supream Head of the Church of England And by the repeal of that of 1. and 2. Ph. Mar. those other of 26 and 35 H. 8. were revived and are again in force Co. 4. Inst 325. Vide Sect. 5. Stat. Sect. 3. A reviver of several Stat. And that also for the reviving of divers of the said good Laws and Statutes made in the time of your said dear Father it may also please your Highness That one Act and Statute made in the three and twentieth year of the Reign of the said late King Henry the Eighth entituled An Act that no person shall be cited out of the Diocess where he or she dwelleth except in certain Cases And one other Act made in the Four and Twentieth year of the Reign of the said late King entituled An Act that Appeals in such cases as hath been used to be pursued to the See of Rome shall not be from henceforth had ne used but within this Realm And one other Act made the five and twentieth year of the said late King concerning restraint of payment of Annates and First-fruits of Archbishopricks and Bishopricks to the See of Rome And one other Act in the said five and twentieth year entituled An Act concerning the submission of the Clergy to the Kings Majesty And also one Act made in the five and twentieth year entituled An Act restraining the payment of Annates or First-fruits to the Bishop of Rome and of the Electing and Consecrating of Archbishops and Bishops within this Realm And one other Act made in the said five and twentieth year entituled An Act concerning the Exoneration of the Kings Subjects from Exactions and Impositions heretofore paid to the See of Rome and for having Licences and Dispensations within this Realm without suing further for the same And one other Act made in the six and twentieth year of the said late King entituled An Act for Nomination and Consecration of Suffragans within this Realm And also one other Act made in the eight and twentieth year of the Reign of the said late King entituled An Act for the Release of such as have obtained pretended Licences and Dispensations from the See of Rome And all and every Branches Words and Sentences in the said several Acts and Statutes contained The Sentences and Branches in the aforesaid Statutes shall extend to the Queen by Authority of this present Parliament from and at all times after the last day of this Session of Parliament shall be revived and shall stand and be in full force and strength to all intents constructions and purposes And that the Branches Sentences and Words of the said several Acts and every of them from thenceforth shall and may be judged déemed and taken to extend to your Highness your Heirs and Successors as fully and largely as ever the same Acts or any of them did extend to the said late King Henry the Eighth your Highnesses Father And that it may also please your Highness that it may be enacted by the Authority of this present Parliament That so much of one Act or Statute made in the two and thirtieth year of the Reign of your said dear Father King Henry the Eighth entituled An Act concerning Precontracts of Marriages and touching degrees of Consanguinity as in the time of the late King Edward the sixth your Highnesses most dear Brother by one other Act or Statute was not repealed And also one Act made in the seven and thirtieth year of the Reign of the said late King Henry the Eighth entituled An Act that Doctors of the Civil Law being married may exercise Ecclesiastical Jurisdiction And all and every Branches and Articles in the said two Acts last mentioned and not repealed in the time of the said late King Edward the sixth may from henceforth likewise stand and be revived and remain in their full force and strength to all intents and purposes Any thing contained in the said Act of repeal before mentioned or any other matter or cause to the contrary notwithstanding What Stat. repealed by the Stat. of 1 2 P. M. 8. shall continue repealed And that it may also please your Highness that it may be further enacted by the Authority aforesaid That all other Laws and Statutes and the Branches and Clauses of any Act or Statute repealed and made void by the said Act of Repeal made in the time of the said late King Philip and Quéen Mary and not in this present Act specially mentioned and revived shall stand remain and be repealed and void in such like manner and form as they were before the making of this Act any thing herein contained to the contrary notwithstanding A reviver of the Stat. of 1 Ed. 6. 1. And that it may also please your Highness That it may be enacted by the Authority aforesaid that one Act and Statute made in the first year of the Reign of the late King Edward the sixth your Majesties most dear Brother entituled An Act against such persons as shall unreverently speak against the Sacrament of the Body and Blood of Christ commonly called the Sacrament of the Altar and for the receiving thereof under both kinds and all and every Branches Clauses and Sentences therein contained shall and may likewise from the last day of this Session of Parliament be revived and from thenceforth shall and may stand remain and be in full force strength and effect to all intents constructions and purposes in such like manner and form as the same was at any time in the first year of the Reign of the said late King Edward the Sixth any Law Statute or other matter to the contrary in any wise notwithstanding A repeal of the Statute of 1 2 P. M. 6. and several other Statutes And that also it may please your Highness That it may be further established and enacted by the Authority aforesaid that one Act and Statute made in the first and second years of the late King Philip and Queen Mary entituled An Act for the reviving of three Statutes made for the punishment of Heresies and also the said three Statutes mentioned in the said Act and by the same Act revived And all and every Branches Articles Clauses and Sentences contained in the said several Acts and Statutes and every of them shall be
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
said Oath And that it may likewise be further enacted by the Authority aforesaid That if any such person or persons as at any time hereafter shall be promoted preferred or collated to any such Promotion Spiritual or Ecclesiastical Benefice Office or Ministry or that by your Highness your Heirs or Successors shall be promoted or preferred to any Temporal or Lay Office Ministry or Service shall and do peremptorily and obstinately refuse to take the same Oath so to him to be offered that then he or they so refusing shall presently be judged disabled in the Law to receive take or have the same Promotion Spiritual or Ecclesiastical or the same Temporal Office Ministry or Service within this Realm or any other your Highnesse Dominions to all intents constructions and purposes He that sues Livery or 〈…〉 And that it may be further enacted by the Authority aforesaid that all and every person and persons Temporal suing Livery or Oustre le maine out of the hands of your Highness your Heirs or Successors before his or their Livery or Oustre le maine sued forth and allowed He that doth homage to the Queen He that shall be received into the Queens service and every Temporal person or persons doing any homage to your Highness your Heirs or Successors or that shall be received into Service with your Highness your Heirs or Successors shall make take and receive the said Corporal Oath before mentioned before the Lord Chancellor of England or the Lord Keeper of the Great Seal for the time being or before such person or persons as by your Highness your Heirs or Successors shall be named and appointed to accept or receive the same And that also all and every person and persons taking Orders He that taketh Orders He that taketh Degrees in any University and all and every other person and persons which shall be promoted or preferred to any Degree of Learning in any Vniversity within this your Realm or Dominions before he shall receive or take any such Orders or be preferred to any such Degree of Learning shall make take and receive the said Oath by this Act set forth and declared as is aforesaid before his or their Ordinary Commissary Chancellor or Vice-Chancellor or their sufficient Deputies in the said Vniversity Provided always He that having an Estate of Inheritance in a temporal Office first refuseth and then taketh the Oath and that it may be further enacted by the Authority aforesaid That if any person having any Estate of Inheritance in any Temporal Office or Offices shall hereafter obstinately and peremptorily refuse to accept and take the said Oath as is aforesaid and after at any time during his life shall willingly require to take and receive the said Oath and so do take and accept the same Oath before any person or persons that shall have lawful Authority to minister the same that then every such person immediately after he hath so received the same Oath shall be vested judged and deemed in like estate and possession of the said Office as he was before the said refusal and shall and may use and exercise the said Office in such manner and form as he should or might have done before such refusal Any thing in this Act contained to the contrary in any wise notwithstanding And for the more sure Observation of this Act Stat. Sect. 8. The penalty of the maintenance of Forreign Authority and the utter Extinguishment of all Forreign and usurped Power and Authority may it please your Highness that it may further be enacted by the Authority aforesaid That if any person or persons dwelling or inhabiting within this your Realm or in any other your Highnesses Realms or Dominions of what Estate Dignity or Degree whatsoever he or they be after the end of 30 days next after the determination of this Session of this present Parliament shall by Writing Printing Teaching Preaching express words deed or act advisedly maliciously and directly affirm hold stand with set forth maintain or defend the Authority Preheminence Power or Iurisdiction Spiritual or Ecclesiastical of any Forreign Prince Prelate Person State or Potentate whatsoever heretofore claimed used or usurped within this Realm or any Dominion or Country being within or under the Power Dominion or Obeysance of your Highness or shall advisedly maliciously and directly put in ure or execute any thing for the extolling advancement setting forth maintenance or defence of any such pretended or usurped Iurisdiction Power Preheminence or Authority or any part thereof that then every such person and persons so doing and offending their abettors aiders procurers and Counsellors being thereof lawfully convicted and attainted according to the true order and course of the Common Laws of this Realm for his or their first offence shall forfeit and lose unto your Highness your Heirs and Successors all his and their Goods and Chattels as well real as personal The forfeiture for the first Offence And if any person so convicted or attainted shall not have or be worth of his proper Goods and Chattels to the value of twenty pounds at the time of his Conviction or Attainder That then every such person so convicted and attainted over and besides the forfeiture of all his said Goods and Chattels shall have and suffer Imprisonment by the space of one whole year without Bail or Mainprise And that also all and every the Benefices Prebends and other Ecclesiastical Promotions and Dignities whatsoever of every spiritual person so offending and being attainted shall immediately after such Attainder be utterly void to all intents and purposes as though the Incumbent thereof were dead And that the Patron and Donor of every such Benefice Prebend spiritual Promotion and Dignity shall and may lawfully present unto the same or give the same in such manner and form as if the said Incumbent were dead The forfeiture for the second Offence And if any such Offender or Offenders after such Conviction or Attainder do eftsoons commit or do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid That then every such Offender and Offenders shall for the same second Offence incur into the dangers 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 The forfeiture for the third Offence And if any such Offender or Offenders at any time after the said second Conviction and Attainder do the third time commit and do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid That then every such Offence or Offences shall be deemed and adjudged High Treason and that the Offender or Offenders therein being thereof lawfully convicted and attainted according to the Laws of this Realm shall suffer pains of death and other penalties forfeitures and losses as in
singular persons which shall offend within any their Iurisdictions or Diocess after the said Feast of the Nativity of St. John Baptist next coming against this Act and Statute Any other Law Statute Priviledge Liberty or Provision heretofore made had or suffered to the contrary notwithstanding Not necessary to go to the Parish Church The Ordinary or Ecclesiastical Judge cannot legally punish any man for not coming to the Church of that Parish where he inhabits if he goes to any other although he shews not any reasonable Lett. For it shall be a good Plea for the party to say that that is not his Parish Church but that he had used to frequent another Church and did resort thereunto And if the Ecclesiastical Court will not receive this plea the party shall have a Prohibition Prohibition For the Spiritual Court hath no power to judge what shall be said to be a mans Parish Church And so it was resolved by the whole Court of Kings-Bench Trin. 9. Jac. Bulstrode 1. 159. Nor can the Spiritual Court try the limits or bounds of Parishes but they shall be tried by the Common Law Co. 13. 17. Stat. Sect. 10. What Justices may punish these Offences And it is ordained and enacted by the Authority aforesaid That all and every Iustices of Oyer and Determiner or Iustices of Assize shall have full Power and Authority in every of their open and general Sessions to enquire hear and determine all and all manner of Offences that shall be committed or done contrary to any Article contained in this present Act within the limits of the Commission to them directed and to make process for the execution of the same as they may do against any person being indicted before them of Trespass or lawfully convicted thereof Provided always and be it enacted by the Authority aforesaid A Bishop may joyn with the Justices to enquire of Offenders That all and every Archbishop and Bishop shall or may at all time and times at his liberty and pleasure joyn and associate himself by vertue of this Act to the said Iustices of Oyer and Determiner or to the said Iustices of Assize at every of the said open and general Sessions to be holden in any place within his Diocess for and to the enquiry hearing and determining of the Offences aforesaid Provided also and be it enacted by the Authority aforesaid At whose charges the Book of Common Prayer shall be gotten That the Books concerning the said Services shall at the Costs and Charges of the Parishioners of every Parish and Cathedral Church be attained and gotten before the said Feast of the Nativity of St. John Baptist next following and that all such Parishes and Cathedral Churches or other places where the said Books shall be attained and gotten before the said Feast of the Nativity of St. John Baptist shall within thrée weeks next after the said Books so attained and gotten use the said Service and put the same in ure according to this Act. And be it further enacted by the Authority aforesaid Within what time the Offenders shall be impeached That no person or persons shall be at any time hereafter Impeached or otherwise molested of or for any the Offences above-mentioned hereafter to be committed or done contrary to this Act unless he or they so offending be thereof Indicted at the next general Sessions to be holden before any such Iustices of Oyer and Determiner or Iustices of Assize next after any Offence committed or done contrary to the tenour of this Act. Provided always Trial of Peers and be it ordained and enacted by the Authority aforesaid That all and singular Lords of the Parliament for the third Offence above-mentioned shall be tried by their Peers Provided also Stat. Sect. 11. Chief Officers of Cities and Boroughs shall enquire of Offenders and be it ordained and enacted by the Authority aforesaid That the Mayor of London and all other Mayors Bayliffs and other head Officers of all and singular Cities Boroughs and Towns Corporate within this Realm Wales and the Marches of the same to the which Iustices of Assize do not commonly repair shall have full Power and Authority by virtue of this Act to enquire hear and determine the Offences aforesaid and every of them yearly within fifteen days after the Feast of Easter and St. Michael the Archangel in like manner and form as Iustices of Assize and Oyer and Determiner may do These words In like manner and form appoint in what manner the Offences shall be enquired of Mayors and Head Officers of Corporations heard and determined by Mayors and Head Officers of Corporations c. by Indictment for so much enquire imports and Trial and Verdict of twelve men or such other Legal proceedings upon the said Indictment as are used by the Justices of Oyer and Determiner and Assizes in their general Sessions For the Mayor or Head Officer is not left by this Act to his own Arbitrary Will or Discretion in the hearing and determining the Offence but must proceed according to the rules and forms of Law in the Conviction of the Offender And the Statute saith To which Justices of Assize do not commonly repair So that the Mayor or Head Officer of such places were only intended in the lieu and room of Justices of Assize and are therefore to proceed by the same Rules as they do in the Counties at large Within what time to proceed But these words extend not to the point of time limited for Indicting such Offender nor are Mayors and Head Officers tied to their next Sessions as the Justices of Oyer and Determiner and of Assize are as Wingate tit Service and Sacraments numb 26. mistakes the meaning of the Statute For in like manner and form is intended in such respects only where 't is not otherwise provided for by the Statute But 't is expresly provided here that Mayors and Head Officers of Corporations shall enquire of these Offences only twice in the year viz. within fifteen days after Easter and Michaelmas and not at their next general Sessions unless it happen to be the Sessions after one of those two Feasts To whom the Bishop cannot associate himself Nor can the Archbishop or Bishop associate himself in this Case to any Mayor or Head Officer of a Corporation as Wingate tit Service and Sacraments number 25. mistakes Stat. Sect. 12. The Ordinaries Jurisdiction in these Cases Provided always and be it ordained and enacted by the Authority aforesaid That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Iurisdiction shall have full Power and Authority by virtue of this Act as well to enquire in their Visitation Synods and elsewhere within their Iurisdiction at any other time and place to take Accusations and Informations of all and every the things above-mentioned done committed or perpetrated within the limits of
Periam Justices of Assize by vertue of their Commission of Oyer and Terminer For the Certificate here mentioned which is to be sent into the Kings Bench is required only of the Justices of Assize and Justices of Peace And of Oyer and Terminer But Justices of Oyer and Terminer upon Indictments taken before them may proceed to hear and determine as Manwood and Periam did in that Case as well for the first as second Offence Savile 46. 47. C. 99. For which first Offence in extolling the Bishop of Romes Authority it seems the Justices of Assize who have a Commission of Oyer and Terminer have their election either as Justices of Assize to inquire only and then they must certifie the Presentment or Indictment into the Kings Bench or to inquire hear and determine as they are Justices of Oyer and Terminer and then they are not bound to certifie For Commissioners of Oyer and Terminer are not within the meaning of this Branch of the Statute as was held in that Case of Slade and Bodye By what hath been said it appears that the question there put by Ayloffe scil how they could proceed upon such an Indictmen not certified into the Kings Bench within forty days was grounded upon a double mistake 1. That Justices of Oyer and Terminer were bound to certifie into the Kings Bench all Indictments for extolling the Authority of the Bishop of Rome taken before them 2. That Indictments for the second Offence were within the meaning of this Branch of the Statute For he speaks there of the second Indictment which was for High Treason Every Presentment Presentment what By Presentment here is to be understood not only that which is properly so called which the Jurors find and present to the Court without any former Indictment delivered them but also an Indictment which is drawn and ingrossed in form of Law and delivered to the Jurors to be inquired of which Indictment the Justices here named have power to take by force of the word inquire and is included within the word Presentment being a species of it For every Indictment found by the Jurors is a Presentment and the Record saith Juratores praesentant c. when they find an Indictment But every Presentment is not an Indictment Co. 2. Inst. 739. And as well the one as the other touching the Offences aforesaid must be certified into the Kings Bench. If the Term be then open First day of the Term. The Essoin day is the first day of the Term properly so called and on that day the Term is open At the first day of full Term. That is Quarto die post Full Term. which is the usual day of appearance and the first day of every Term in common reputation For the Essoin day is the first day of the Term only to some particular intents and 't is not full Term till quarto die post Savile 124. Co. 193. Matthew vers Harcourt So that if the Forty days expire on the day before the Essoin day the Presentment need not be certified until quarto die post Presentments when to be certified which is the day of appearance but if they expire on the Essoin day or afterwards and before the quarto die post the Justices here named must not stay till the quarto die post but are bound to certifie by the last day of the Forty days under the penalty here limited for the Term was then open Stat. Sect. 4. Who shall take the Oath set forth A◠1 E. 1. And moreover be it Enacted by the Authority aforesaid That as well all manner of Persons expressed and appointed in and by the Act made in the first year of the Quéens Majesties Reign that now is intituled an Act restoring to the Crown the antient Iurisdiction over the estate Ecclesiastical and Spiritual and abolishing all Forraign Powers repugnant to the same to take the Oath expressed and set forth in the same As all other Persons which have taken or shall take Orders commonly called Ordines Sacros or Ecclesiastical Orders have béen or shall be promoted preferred or admitted to any Degreé of Learning in any Vniversity within this Realm or Dominions to the same belonging And all Schoolmasters and publick and private Teachers of Children as also all manner of Person and Persons that have taken or hereafter shall take any Degreé of Learning in or at the Common Laws of this Realm as well utter Barristers as Benchers Readers Ancients in any House or Houses of Court and all principal Treasurers and such as be of the grand Company of every Inn of Chancery and all Attorneys Prothonotaries and Philizers towards the Laws of this Realm and all manner of Sheriffs Escheators and Feodaries and all other Person and Persons which have taken or shall take upon him or them or have béen or shall be admitted to any Ministry or Office in at or belonging to the Common Law or any other Law or Laws of to or for the Execution of them or any of them used or allowed or at any time hereafter to be used or allowed within this Realm or any of the Dominions or Countries belonging or which hereafter shall happen to belong to the Crown or Dignity of the same and all other Officers or Ministers of or towards any Court whatsoever and every of them shall take and pronounce a Corporal Oath upon the Evangelists before he or they shall be admitted allowed or suffered to take upon him or them to use exercise supply or occupy any such Vocation Office Degrée Ministry Room or Service as is aforesaid and that in the open Court whereunto he doth or shall serve or belong And if he or they do not or shall not serve or belong to any Ordinary or open Court then he or they shall take and pronounce the Oath aforesaid in an open place before a convenient Assembly to witness the same and before such Person or Persons as have or shall have Authority by common use or otherwise to admit or call any such Person or Persons as is aforesaid to any such Vocation Office Ministry Room or Service or else before such Person or Persons as by the Queéns Highness her Heirs or Successors by Commission under the Great Seal of England shall be named or assigned to accept and take the same according to the tenor effect and form of the same Oath Verbatim which is and as it is already set forth to be taken in the aforesaid Act made in the First year of the Queéns Majesties Reign Admitted to any Ministry or Office What Officers are to take the Oath of Supremacy All persons who are preferred to any such Ministry or Office whether of the gift of the King or of a Subject are bound to take this Oath and not only such as are preferred by the King as 't is restrained in the late Additions to Dalton Cap. 81. tit Recusants Sect. 9. Belonging to the Common Law
any other pain or penalty this Act or any thing therein contained to the contrary in any wise notwithstanding Next Justice of Peace To the next Iustice of Peace If the person to whom such Agnus Dei c. is offered do bring the Offender to any Justice of Peace of the County where the offer is made although he be not the next Justice yet it is good enough and satisfies the intent of the Act For the word next is put in such Cases into Acts of Parliament but for conveniency and the more speedy execution of Justice Vide Styles 246. Maine and Sergeants Case The respective Justices of Peace here intended To any Iustice of Peace The Statute provides for the discovery of the Offender in Order to his punishment in three Cases 1. If any such superstitious thing be offered and the party be able to apprehend him that offers it he must bring him to the next Justice of Peace of the County where the offer is made 2. But if he cannot apprehend him he is to disclose his name and place of aboad or resort to the Ordinary of that Diocess or a Justice of Peace of that County where the person to whom the offer was made is resident and that within three days after such offer made 3. But if he receives the thing offered then he is not to apply to the Ordinary but is strictly tied to deliver it within a day after to some Justice of Peace of that County where he who received it shall then be resident or happen to be and in this last Case if he receives it with an intent to use or wear it and keeps it above a day or delivers it to any other person or Justice of Peace of any other County he incurs a Praemunire But these Justices of Peace are strangely confounded as well in Dalton V. cap. 89. tit High Treason as in Wingate tit Crown numb 37. And be it further Enacted by the Authority aforesaid Stat. Sect. 8. A Pardon to them that shall bring in to be cancelled thâ—se Bulls which they received That all and every person and persons which at any time since the beginning of the first year of the Quéens Majesties Reign that now is have brought or caused to be brought into this Realm any such Bulls Writings or Instruments or Reconciliation only as are abovementioned and now have any of the same Bulls Writings or Instruments in his or their hands or custody and shall and do within the space of thrée months next after the end of any Session or Dissolution of this present Parliament bring and deliver all such Bulls Writings and Instruments which they or any of them now have in his or their Custody to the Bishop of the Diocess where such Absolution hath been given and received to the intent that the same Bulls Writings and Instruments may be cancelled and defaced and shall openly and publickly before such Bishop confess and acknowledge his or their Offence therein and humbly desire to be received restored and admitted to the Church of England shall stand and be clearly pardoned and discharged of all and every Offence and Offences done or committed in any matter or cause concerning any of the said Bulls Writings or Instruments for or touching such Absolution or Reconciliation only And that all and every person or persons which have received A Pardon of all those who have been reconciled to the Bishop of Rome and do confess it and submit themselves or taken any Absolution from the said Bishop of Rome or his said Sée of Rome of any Reconciliation unto the said Bishop or to the said Sée of Rome sithence the said first year of the Reign of our said Soveraign Lady the Queen and shall within the said space of three months next after any Session or Dissolution of this present Parliament come before the Bishop of the Diocess of such place where such Absolution or Reconciliation was had or made and shall publickly and openly before the same Bishop confess and acknowledge his or their Offence therein and humbly desire to be received restored and admitted to the Church of England shall likewise stand and he clearly pardoned and discharged of all and every Offence or Offences done or committed in any matter or cause concerning the said Bulls Writings or Instruments for or touching only receiving of such Absolution or Reconciliation and for and concerning all Absolution or Reconciliation had or received by colour of any of the said Bulls Writings or Instruments only Provided also Stat. Sect. 9. The penalty of a Justice of P. not disclosing an Offence declared to him and be it further Enacted by the Authority aforesaid That if any Iustice of Peace to whom any Matter or Offence before mentioned shall be uttered shewed or declared as is aforesaid do not within the space of xiv days next after it shall be to him shewed or uttered signifie or declare the same to some one of the Queéns Majesties Privy Counsel that then the same Iustice of Peace shall incur the danger pain and forfeiture provided by the said Statute made in the said sixtéenth year of King Richard the second As is aforesaid So that if the Offence be not declared as is aforesaid No Praemunire incurred that is to such Justice of Peace as is appointed in the foregoing Clause but it shall be declared to any other Justice of Peace of a wrong County that other Justice of Peace shall not incur a Praemunire if he doth not signifie or declare it to a Privy Counsellor One Privy Counsellor sufficient To some one of the Queéns Majesties Privy Council Here 't is plain that any one Privy Counsellor sufficeth and the Justice of Peace is not bound to signifie the Offence to the Privy Council as Wingate tit Crown numb 138. misrecites the Statute Stat. Sect. 10. Trial of a Nobleman by his Peers Provided also and be it further Enacted by the Authority aforesaid That if any Nobleman being a Peér of this Realm shall at any time hereafter happen to be Indicted for any the Offence or Offences aforesaid That then every such Nobleman and Péer of this Realm shall have his Trial by his Péers as in cases of High Treason and Misprision of Treason hath heretofore béen accustomed or used A saving of the right of others Saving to all and every person and persons bodies Politick and Corporate their Heirs and Successors and the Heirs and Successors of every of them other then the said Offenders and their Heirs claiming only as Heir or Heirs to such Offenders and such person and persons as claim to any their uses all such Rights Titles Interests Possessions Leases Rents Reversions Remainders Offices Fées and all other Profits Commodities and Hereditaments as they or any of them shall have at the day of committing such Offence or Offences or any time before in as large ond ample manner to all intents and purposes as if this Act
had never béen had nor made Any thing herein contained to the contrary thereof notwithstanding Stat. xxiii Eliz. cap. i. An Act to retain the Queens Majesties Subjects in their due Obedience WHere sithence the Statute made in the thirteénth year of the Reign of the Queén our Soveraign Lady Entituled Stat. Sect. 1. An Act against the bringing in and putting in Execution of Bulls Writings and Instruments and other Superstitious things from the See of Rome divers evil affected persons have practised contrary to the meaning of the said Statute by other means than by Bulls or Instruments Written or Printed to withdraw divers the Queéns Majesties Subjects from their natural Obedience to her Majesty and to obey the said usurped Authority of Rome and in respect of the same to perswade great numbers to withdraw their due Obedience to her Majesties Laws established for the due Service of Almighty God For Reformation whereof Stat. Sect. 2. Treason to withdraw any from the Religion Established to the Romish Religion and to declare the true meaning of the said Law Be it declared and enacted by the Authority of this present Parliament That all persons whatsoever which have or shall have or shall pretend to have power or shall by any ways or means put in practice to absolve perswade or withdraw any of the Queéns Majesties Subjects or any within her Highnesses Realms and Dominions from their natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highnesses Authority established within her Highnesses Dominions to the Romish Religion or to move them or any of them to promise any Obedience to any pretended Authority of the Seé of Rome or of any other Prince State or Potentate to be had or used within her Dominions or shall do any overt act to that intent or purpose and every of them shall be to all intents adjudged to be Traytors And being thereof lawfully convicted shall have Iudgment suffer and forfeit as in case of High Treason And if any person shall after the end of this Session of Parliament by any means be willingly absolved or withdrawn as aforesaid or willingly be reconciled It shall be Treason to be reconciled or withdrawn to the Romish Religion or shall promise any Obedience to any such pretended Authority Prince State or Potentate as is aforesaid that then every such person their Procurers and Counsellors thereunto being thereof lawfully convicted shall be taken tried and judged and shall suffer and forfeit as in Cases of High Treason Perswade or withdraw It was held in Lovett and Faulkners Case Mich. 12. Jac. B. R. That if a man were Indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his Obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in nature of a Conspiracy would not lye against the party who procured him to be Indicted Cro. Mich. 12. Jac. 357 358. Rolls 1. 209. C. 49. Bulstrode 2. 271. and the main reason given was That forasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And in that Case Coke Chief Justice said That such an Action was never before that time brought But later Resolutions have been to the contrary of this Opinion Action lies for indicting a man of High Treason And 't is held for Law at this day That if a man procures another to be Indicted of High Treason an Action upon the Case in nature of Conspiracy lies against him that procures it as well as if it were for Felony The first leading Case of this nature which was resolved upon any solemn argument or debate was that of Smith versus Cranshaw or Crashaw and others where it was adjudged upon great deliberation by all the Four Judges of the Court of Kings Bench Hill 1. Car. 1. That an Action in nature of a Conspiracy doth well lye in such Case and that not only in Case of Acquittal upon Trial but upon the exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus although in this last Case a Writ of Conspiracy lyeth not And Lovett and Faulkners Case was denied to be Law Addition to Bendloes 152. Latch 79 80. Jones 93 94 95. And Justice Dodderidge who concurred in Opinion with the other Judges in the Case of Lovett and Faulkner changed his Opinion in that of Smith and Cranshaw and held that the Action was maintainable Bulstrode 2. 271 272. so that whosoever of meer malice without probable cause causes any person to be Indicted upon this Statute Stat. 3. Jac. 4. or that of 3 Jac. cap. 4. for endeavouring or practising so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is liable to an Action of the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony Any of the Queens Majesties Subjects Queens Subjects Stat. 3 Jac. 4. What is meant by the Queens Subjects Vide Stat. 3 Jac. cap. 4. Sect. 19. And be it likewise Enacted and declared Stat. Sect. 3. The penalty of aiders maintainers and concealers That all and every person and persons that shall wittingly be aiders or maintainers of such persons so offending as is above expressed or of any of them knowing the same or which shall conceal any offence aforesaid and shall not within twenty days at the furthest after such persons knowledge of such offence disclose the same to some Iustice of Peace or other higher Officer shall be taken tried and judged and shall suffer and forfeit as Offenders in misprision of Treason These words And shall not within twenty days Aiders or maintainers punishable though discoverers c. disclose the same have no reference to those who are aiders or maintainers of the Offender but only to those who have barely a knowledge of the Offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty days yet such discovery shall not free them from the guilt of misprision of Treason as Wingate mistakes in his Abridgment of this Clause tit Crown numb 42. but if they once aid or maintain the party knowing him to be an Offender they are guilty whether they disclose or conceal the offence and shall have no benefit of the twenty days And be it likewise Enacted Stat. Sect. 4. The forfeiture for saying or hearing of Mass That every person which shall say or sing Mass being thereof lawfully convicted shall forfeit the sum of Two hundred Marks and be commited to Prison in the next Goal there to remain by the space of
non sunt culpabiles it had been ill But yet it seems that the Law is contrary to that Opinion Non sunt cuipabiles where good for where an Action or Information is brought against the Husband and Wife for an offence or wrong done by the Wife there the Husband is charged quoad poenam though not quoad culpam and when they both plead quod ipsi non sunt culpabiles the meaning is that he is not chargeable quoad poenam and she is not guilty quoad culpam and therefore it was resolved in the Case of Browne against Audley and his Wife Trin. 22 Jac. in an Action upon the Case for scandalous words by the Wife that where they both pleaded non culp and the Jury found the Feme guilty the Plaintiff should have Judgment For the issue was good for the reason aforesaid and the finding of the Jury was a good ground for the Judgment for if the Wife were guilty quoad culpam as the Verdict must necessarily be understood she being the wrong doer the Husband by consequence was chargeable quoad poenam and Judgment shall be against both Addition to Bendloes 148. and the Resolution in the Case of Needler versus Symnell and his Wife reported by Justice Croke Cro. Mich. 11. Car. 417. in the like Action brought for words spoken by the Wife is directly contrary to that opinion at the end of Sir John Cursons Case For there 't is adjudged that ipsi non sunt culpabiles by Baron and Feme is a good issue although the wrong were by the Wife alone Writ of Error by an Alien An Information of Recusancy lies against an Alien upon this Statute if he inhabits within the Realm and if Judgment be had against him he may have a Writ of Error to relieve himself Co. 1. Inst. 129. Popular Suit appropriated When once the Informer Qui tam c. hath commenced his Suit he hath of a popular Action made it his own private Action Co. 65. Dr. Fosters Case Vaughan 343. Thomas versus Sorrel And in this Case it is not necessary that the Defendant be served with Process to answer it Without Process for if the Informer put his Information into Court 't is enough to appropriate to him his share of the penalty Godbolt 158. C. 216. But yet a Note ought first to be made of the day month and year when it was exhibited for before Stat. 18 Eliz. 5. by the Statute of 18 Eliz. cap. 5. it is not to be taken to be of Record nor shall operate any thing either in appropriating the penalty or barring any other Informer but when that is done no other Informer can Sue for the same Offence and 't is a good Plea in Bar Bar. of the second Information for the Defendant to say that there is another Information depending against him for the same Offence For as soon as the first Information is delivered in and entred upon Record according to the said Statute of 18 Eliz. it shall be said to be depending Popular Suit when depending although it be not alleadged that any Writ or Process is Sued out against the Defendant thereupon Cro. Mich. 33 34 Eliz. 261. the Queen versus Harris Styles 417 Hobart 209. Parry versus Paris Palmer 40. Webbs Case Termes de la Ley 7. Action Popular Two Informations for the same offence Bar. The Defendant in an Information pleads that heretofore another Information was exhibited against him such a day in another Court for the same Offence but mistakes and names in his Plea a wrong day and not that wherein the first Information was exhibited The Plaintiff replies nul tiel Record yet if it appears that in truth the Information pleaded in Bar was exhibited before the other which is the substance of the matter this misprision shall not vitiate the Defendants Plea in Bar but Judgment shall be for the Defendant Hobart 209. Parry versus Paris Note this Case is cited in the late Additions to Dalton cap. 191. tit Informations Sect. 6. to prove that one person cannot exhibit two Informations in the same or in several Courts But that was not the Question there nor I think ever was made a Question but that the same person may exhibit two several Informations so they be not both for one and the same Offence An Information was exhibited in the Kings-Bench upon the Statute of 5 E. 6. cap. 7. for buying of Wools. Stat. 5 E. 6. 7. The Defendant pleads that there is another Information depending against him in the Common-Bench at the Suit of L. and avers that they are both for the same Offence but in truth that in the Common-Pleas supposed the Offence to be done at one time and that in the Kings-Bench at another time yet this is a good Plea in Bar Bar. of the latter Information being with an Averment that they are both for the same Offence for otherwise by the Informers false supposal of the day the Defendant shall be put to double trouble Cro. Mich. 33 34 Eliz. 261. The Queen versus Harris And the same advantage no question any man may take against whom two Informations are exhibited upon this Statute for hearing of Mass Mass for perchance he never heard Mass above once in his life time and there is no reason he should be put to double trouble for one offence But otherwise it seems to be in the Case of Recusancy The absence from Church must be for a month For if an Information be brought upon this Statute for not coming to Church for a month there if the Defendant proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of Twenty pounds And as the Defendants giving in Evidence that he was at Church within the compass of any other month then that which is laid in the Information shall not excuse him so the Informers proof of his absence any other month shall not hurt him but the Evidence must go to the very same month which the Information mentions And the reason is for that this Offence is punishable according to the time of its duration or continuance and the Offender is to forfeit for every month of his absence so that if another Information be exhibited against him for not coming to Church during another month it cannot be supposed to be for the same absence with that in the first Information but for the like absence at another time and therefore cannot be pleaded in Bar thereof Two Informations on the same day c. Bar. If two Informers on one and the same day exhibit Informations against the same person for the same Offence they are both void and may be pleaded the one in Bar of the other for that there is no priority to Attach the right of Action in one of the Informers more than in the other Hobart 128. Pie versus Coke Although Sunday
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
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
publick and open Submission and Declaration of his and their Conformity to her Majesties Laws and Statutes as hereafter in this Act is declared and appointed That then the same Offender shall thereupon be clearly discharged of and from all and every the penalties and punishments inflicted or imposed by this Act for any of the Offences aforesaid The former part of this Statute appoints the Conformity and Submission to be at any Church Submission where to b◠made Chappel or usual place of Common Prayer but this limits it to be at some Parish Church the meaning whereof seems to be That if a man be an Offender against this Act and convicted he may within the three months after his Conviction conform and submit in any Church Chappel or usual place of Common Prayer where there is Common Prayer and either a Sermon or the Gospel read But if he be required within the three months to Conform and make Submission and he refuses so to do but the three months expire then his Conformity and Submission must be more solemn and publick viz. in some Parish Church where it is presumed there will be the greatest number of People to be Witnesses thereof And by this construction the seeming difference between these two branches of the Statute one whereof limits the Offender to a Parish Church and the other leaves him at large to any Church Chappel or usual place of Common Prayer is reconciled And this construction naturally flows from the Order wherein these two branches are placed For the Statute speaks of a Church Chappel or usual place of Common Prayer before it mentions the parties refusal to conform and submit within three months next after Conviction But when it hath mentioned such refusal then it speaks of the Parish Church only And the second time here limited to the Offender when he may conform and submit viz. before he be warned or required to abjure presupposes his refusal to conform and submit within the three months For otherwise he could not be required to abjure But if the Offender be not required within the three months according to this Act to conform and submit it seems he is not afterwards limited to some Parish Church but may do it according to the former branch of this Act in any Church Chappel or usual place of Common Prayer for he is then in no danger of Abjuration and his Conformity and Submission is then to no other end but to free himself from the Imprisonment inflicted on him upon his Conviction And in that Case the Act saith he may conform and submit in any Church Chappel or usual place of Common Prayer Of this difference between the places of Conformity and Submission no notice is taken in the late Additions to Dalton but any Church or Chappel is made to serve the turn in all Cases cap. 81. tit Recusants Sect. 13. What is a Parish Church By Parish Church is to be understood not only that which hath been always the Mother Church and never belonged to any other but every Church which hath the Administration of Sacraments and Sepulture For that in Law is a Parish Church although it anciently belonged to another Church Co. 2. Inst. 363. where the issue was whether it had Baptisterium Sepulturam And the Church of Stoke Goldenham though the Town was parcel of the Rectory of Hinckley whose Church was anciently the Mother Church yet having all Parochial Rights and Church-wardens was adjudged a Parish Church and within the meaning of the Statute of 43 Eliz. cap. 2. of the Poor Hutton 93. Hilton and Paules Case Stat. Sect. 5. The same Submission to be as hereafter followeth that is to say The form of the Submission I A. B. do humbly confess and acknowledge that I have grievously offended God in contemning her Majesties godly and lawful Government and Authority by absenting my self from Church and from hearing Divine Service contrary to the Godly Laws and Statutes of this Realm and in using and frequenting disordered and unlawful Conventicles and Assemblies under pretence and colour of Exercise of Religion And I am heartily sorry for the same and do acknowledge and testifie in my Conscience that no other person hath or ought to have any Power or Authority over her Majesty And I do promise and protest without any dissimulation or any colour or means of any Dispensation That from henceforth I will from time to time obey and perform her Majesties Laws and Statutes in repairing to the Church and hearing Divine Service and do my uttermost endeavour to maintain and defend the same Or any colour or means of any Dispensation Dispensation These words are omitted by Wingate tit Crown numb 72. And the form there set down faulty in several other particulars and not to be relied upon Her Majesties Laws and Statutes The Queens Laws Stat. 27 Eliz. 2. What is meant by her Majesties Laws Vide Stat. 27 Eliz. cap. 2. Sect. 7. And that every Minister or Curate of every Parish where such Submission and Declaration of Conformity shall hereafter be so made by any such Offender as aforesaid Stat. Sect. 6. The Minister shall enter the Submission into a Book shall presently enter the same into a Book to be kept in every Parish for that purpose and within ten days next following shall certifie the same in writing to the Bishop of the same Diocess Provided nevertheless The Offender submitting and falling into Relapse That if any such Offender after such Submission made as is aforesaid shall fall into Relapse or eftsoons obstinately refuse to repair to some Church Chappel or usual place of Common Prayer to hear Divine Service and shall forbear the same as aforesaid or shall come or be present at any such Assemblies Conventicles or Méetings under colour or pretence of any exercise of Religion contrary to her Majesties Laws and Statutes That then every such Offender shall lose all such benefit as he or she might otherwise by virtue of this Act have or enjoy by reason of their said Submission And shall thereupon stand and remain in such plight condition and degrée to all intents as though such Submission had never beén made And for that every person having House and Family Stat. Sect. 7. The forfeiture for relieving or keeping a Recusant after notice Rep. 3 Jac. 4. is in duty bounden to have special regard to the good Government and ordering of the same Be it Enacted by the Authority aforesaid That if any person or persons shall at any time hereafter relieve maintain retain or keép in his or their House or otherwise any person which shall obstinately refuse to come to some Church Chappel or usual place of Common Prayer to hear Divine Service and shall forbear the same by the space of a mouth together contrary to the Laws and Statutes of this Realm That then every person which shall so relieve maintain retain or keép any such person offending
enlarged of such Imprisonment or Restraint and shall be able to Travel repair to their place of dwelling where they usually heretofore made their common abode and shall not at any time after pass or remove above five miles from thence Stat. Sect. 2. Or to be convicted shall repair to his usual dwelling and not remove above five miles And also That every person being above the age of sixtéen years born within any her Majesties Realms or Dominions or made Denizen and having or which hereafter shall have any certain place of dwelling and abode within this Realm which being then a Popish Recusant shall at any time hereafter be lawfully convicted for not repairing to some Church Chappel or usual place of Common Prayer to hear Divine Service there but forbearing the same contrary to the said Laws and Statutes and being within this Realm at the time that they shall be convicted shall within forty days next after the same Conviction if they be not restrained or stayed by Imprisonment or otherwise as is aforesaid and in such Cases of restraint and stay then within twenty days next after they shall be enlarged of such Imprisonment or Restraint and shall be able to Travel repair to their place of usual dwelling and abode and shall not at any time after pass or remove above five miles from thence The punishment of an Offender upon pain that every person and persons that shall offend against the tenor and intent of this Act in any thing before mentioned shall lose and forfeit all his and their Goods and Chattels and shall also lose and forfeit to the Quéens Majesty all the Lands Tenements and Hereditaments and all the Rents and Annuities of every such person so doing or offending during the Life of the same Offender What Popish Recusants are not within this Act Born within any her Majesties Realms or Dominions or made Denizen So that all Popish Recusants are not within this Branch as Wingate tit Crown n. 78. mistakes For it extends not to an Alien who is born out of the Kings Leigeance unless he be made Denizen And which are In the late Additions to Dalton cap. 81. tit Recusants Sect. 14. this Clause is restrained to such as are born in England but it is clear that it extends to all the Kings natural Subjects if they live in England although they were born in Ireland or any other of the late Queens Dominions besides England Denizen who By Denizen is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance whether he be made Denizen by the Kings Letters Patents or be naturalized by Act of Parliament For Naturalization includes all the priviledges of a Denizen and something more and every one who is naturalized is thereby made a Denizen although he that is made a Denizen by the Kings Letters Patents is not thereby naturalized Which being then a Popish Recusant This is the first penal Statute which was made against Popish Recusants by that name and as distinguished from other Recusants In the late Additions to Dalton cap. 81. tit Recusants Sect. 7. What is Recusancy it 's said That the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed by 1 Eliz. 1. and 3 Jac. 4. Stat. 1 Eliz 1. 3 Jac. 4. But this description of Recusancy is either too narrow or too large For if the word Recusancy be taken in a large sense then the refusing to receive the Sacrament contrary to the Statute of 3 Jac. 4. by him that conforms and comes to Church may be as fitly called a point of Recusancy as the refusing the Oaths of Supremacy or Allegiance But if Recusancy be taken in a strict and proper sense then it extends only to the point of not coming to Church and not to refusing the Oaths of Supremacy or Allegiance And in this last sense are all the Statutes to be understood which inflict any penalty or disability upon a Recusant or a Popish Recusant unless where the not receiving of the Sacrament is particularly mentioned And this appears by the explanation which the Statutes make every where of Conformity the opposite to Recusancy viz. repairing to Church What is Conformity and more particularly the said Statute of 3 Jac. 4. which saith That the Popish Recusant convicted which conforms himself and repairs to the Church shall receive the Sacrament which words and repairs to the Church are explanatory of the former viz. which conforms himself so that this Conformity is not intended of taking the Oaths of Supremacy or Allegiance but consists only in repairing to Church and consequently Recusancy its opposite properly so called consists in absenting from Church And this appears further by that Branch of the said Statute of 3 Jac. cap. 4. which relates to the Oath of Allegiance where 't is said That the Oath shall be required of him who confesseth or denieth not himself to be a Recusant or that he hath not received the Sacrament where Recusant cannot be understood in any other sense then of him who forbears to come to Church An Information or Indictment against a Popish Recusant Information or Indictment against a Popish Recusant for Recusancy is of the same form with that against any other Recusant viz. That he came not to his Parish Church or any other Church Chappel or usual place of Common Prayer but forbore the same by the space of c. Vide Co. lib. intr 569. Co. 11. 56. Dr. Fosters Case so that upon his Conviction for Recusancy it doth not appear of Record whether the Offender be a Popish or other Recusant And therefore where this or any of the subsequent Statutes commands or prohibits a Popish Recusant convict to do a thing and a person convicted of Recusancy who is a Popish Recusant be Indicted thereupon his Conviction must be set forth in the Indictment with this or the like confusion Per quod praedict A.B. devenit Papalis Recusans convictus so it is if a Popish Recusant Convict be incapacitated to take or to give or dispose of any thing and another person be substituted by the Statute in his stead as in the Case of a Presentation by force of the Statute of 3 Jac. cap. 5. Stat. 3 Jac. 5. in a Quare Impedit Quare Impedit brought by the Chancellor and Schollars of the University His Conviction must be be set forth with an averment that he is Papalis Recusans Vide Co. 10. 54. And if a Popish Recusant whether convicted or not convicted be so commanded prohibited or incapacitated in an Indictment or Information upon the Statute it must be averred that he is Papalis Recusans A person who hath a certain place of abode is convicted for not coming to Church What Popish Recusants are not within this Act. and afterwards becomes a Papist being none before It seems that he is not restrained
by this Act within the compass of five miles because he was not a Popish Recusant at the time of his Conviction For the Adverb then cannot have relation to the foregoing words viz. having any certain place of dwelling and abode within this Realm For then the sense would be That if he be a Popish Recusant at any time when he hath a certain place of dwelling and abode within this Realm and he were formerly convicted for not coming to Church he shall repair to his dwelling within forty days after his Conviction which may be a meer impossibility For perhaps the forty days after his Conviction expired before he became a Popish Recusant and therefore the word then must of necessity relate to the subsequent words touching his Conviction And being then a Popish Recusant is as much as to say being a Popish Recusant at the time of his Conviction so that if he be convicted as a Recusant yet if he be not then a Popish Recusant he is not restrained by this Act if he be within this branch of the Statute viz. one who hath a certain place of dwelling and abode within this Realm Above five miles When an Act of Parliament speaks of miles Miles they are not to be taken as a Bird or Arrow may fly but according to the nearest and most usual way Cro. Hill 33 Eliz. 212. Minge versus Earle The Miles here I take to be intended of English miles An English mile contains eight Furlongs each Furlong forty Perches or Poles and every Perch or Pole sixteen foot and a half Co. 4. Inst 274. Dalton V. cap. 65. tit Weights and Measures and so much was a mile explained to be by the Statute of 35 Eliz. cap. 6. Stat. 35 Eliz. 6. by the same Parliament which made this Act against Popish Recusants Rastall London 252. where 't is said eight Furlongs to a mile and not five Furlongs as 't is mistaken in Poulton And yet in that Case of Minge and Earle the Defendant in maintenance that locus in quo c. was four miles from Rye according to the Statute of 23 Eliz. cap. 5. of Woods pleaded 23 Eliz. 5. that it was four thousand paces from Rye reckoning five Foot to every Pace where is meant the Italian mile viz. 5000 Foot and not the English which is 5280 Foot and no exception was taken to it by the Plaintiff or the Court. Vide Dalton V. supra And be it also Enacted by the Authority aforesaid Stat. Sect. 4. What a Popish Recusant shall do having no place of abode That every person above the age of sixteén years born within any her Majesties Realms or Dominions not having any certain place of dwelling and abode within this Realm and being a Popish Recusant not usually repairing to some Church Chappel or usual place of Common Prayer but forbearing the same contrary to the same Laws and Statutes in that behalf made shall within forty days next after the end of this Session of Parliament if they be then within this Realm and not imprisoned restrained or stayed as aforesaid and in such case of absence out of the Realm imprisonment restraint or stay then within twenty days next after they shall return into the Realm and be enlarged of such imprisonment or restraint and shall be able to Travel repair to the place where such person was born or where the Father or Mother of such person shall then be dwelling and shall not at any time after remove or pass above five miles from thence The punishment of the Offender upon pain that every person and persons which shall offend against the tenor and intent of this Act in any thing before-mentioned shall lose and forfeit all his and their Goods and Chattels and shall also forfeit to the Quéens Majesty all the Lands Tenements and Hereditaments and all the Rents and Annuities of every such person so doing or offending during the life of the same person By comparing together this and the precedent Clause A Popish Recusant not convicted may be within this Act it will appear plainly that the Statute puts a great difference between the Popish Recusant who hath a certain place of abode in this Realm and him that hath none For to restrain a Popish Recusant who hath a certain place of abode within this Realm from travelling above five miles there are three Qualifications required by the Act. 1. That he be convicted of Recusancy 2. That he be a Popish Recusant at the time of his Conviction 3. That at the time of such Conviction he be within this Realm And if either of these fail he is not restrained by this Act. But if a Popish Recusant have no certain place of abode within this Realm but is ubiquitary there no such Qualifications are required but if he be a Papist and doth not usually repair to Church but forbears so to do he ought to repair to the place where he was born or where his Father or Mother dwelt and not to remove above five miles from thence and that whether he be convicted or not For the Statute when it comes to speak of him who hath no certain place of abode leaves out all the aforesaid Qualifications required in him who hath a certain place of abode and it clearly distinguishes between him who is convicted for not repairing to some Church c. which is required in those whose abode is certain and him who doth not usually repair to some Church c. which in those whose abode is uncertain is sufficient to bring them within the danger and penalty of this Law if they repair not to the place appointed them by the Act or remove above five miles from thence And 't is observable that in this Clause which speaks of the Popish Recusant who hath no certain place of abode there is no mention made of Forty days to be allowed him after his Conviction to repair to the place appointed him the reason whereof is because it takes in the whole kind of such Popish Recusants as well the not convicted as the convicted and makes no distinction between them if they have no certain place of abode Et ubi lex non distinguit nec nos distinguere debemus Nor was it without great reason that ubiquitary Popish Recusants should be confined whether they were convicted or not convicted As for the other who have a certain place of abode it is to be presumed that the most considerable of them would be prosecuted and convicted for their Recusancy in the respective places where they dwell and de mini mis non curat lex may in this Case be applied to persons as well as in other Cases to things But as for him who is fixed to no certain place as he is the more dangerous of the two so the more unlikely to be prosecuted to a Conviction being here one day and gone the next and therefore the less taken notice of And had the Statute
taken in only such as are convicted it would have been eluded and rendred ineffectual for want of a Conviction of the greater part of such ubiquitary Recusants The want of due consideration of this Statute in each of these parts of it hath occasioned some mistakes in those who have handled it And Wingate tit Crown numb 78. restrains both parts of it as well relating to those that have no certain place of abode as those whose place of abode is certain to Recusants convicted and makes no mention that this later sort must be in England at the time of their Conviction And in the late Additions to Dalton cap. 81. tit Recusants Sect. 14. 't is not only said that both sorts must be convicted but that they must be in England at the time of their Conviction which two things are only requisite in such who have a certain place of abode and not in the other sort who are within the meaning and danger of this Law without any precedent Conviction for Recusancy See more of this matter Licence to Travel Stat. 3 Jac. 5. and how a Popish Recusant shall be licensed to Travel out of his compass of five miles Stat. 3 Jac. cap. 5. Sect. 8. And be it further Enacted by the Authority aforesaid Stat. Sect. 4. A Popish Recusant Copy-holder That every such Offender as is before mentioned which hath or shall have any Lands Tenements or Hereditaments by Copy of Court Roll or by any other customary tenure at the will of the Lord according to the Custom of any Mannor shall forfeit all and singular his and their said Lands Tenements and Hereditaments so holden by Copy of Court Roll or customary tenure as aforesaid for and during the life of such offender if his or her Estate so long continue to the Lord or Lords of whom the same be immediately holden if the same Lord or Lord or Lords be not then a Popish Recusant and convicted for not coming to Church to hear Divine Service but forbearing the same contrary to the Laws and Statutes aforesaid nor seized or possessed upon Trust to the use or behoof of any such Recusant as aforesaid And in such Case the same forfeiture to be to the Quéens Majesty Provided always Stat. Sect. 5. Popish Recusants shall notifie their coming and deliver in their names and be it further Enacted by the Authority aforesaid That all such persons as by the intent and true meaning of this Act are to make their repair to their place of dwelling and abode or to the place where they were born or where their Father or Mother shall be dwelling and not to remove or pass above five miles from thence as is aforesaid shall within twenty days next after their coming to any of the said places as the Case shall happen notifie their coming thither and present themselves and deliver their true names in writing to the Minister or Curate of the same Parish and to the Constable Headborough or Tithingman of the Town and thereupon the said Minister or Curate shall presently enter the same into a Book to be kept in every Parish for that purpose Which shall be certified to the Sessâ—ons and enrolled there And afterwards the said Minister or Curate and the said Constable Headborough or Tithingman shall certifie the same in writing to the Iustices of the Peace of the same County at the next general or Quarter Sessions to be holden in the same County and the said Iustices shall cause the same to be entred by the Clerk of the Peace in the Rolls of the same Sessions Goods and Lands where not forfeited A Popish Recusant repairs to the place appointed him by this Act and keeps within his compass of five miles but doth not present himself or deliver in his name he doth not forfeit his Goods or Lands For there is no particular penalty inflicted in this part of the Act for that omission nor yet in the subsequent Branch for him that hath clearly twenty marks per annum in Freehold or Goods and Chattels worth forty pounds But yet such person may be Indicted for such neglect and fined upon the general words of the Statute which commands the thing to be done For where an Act of Parliament commands any thing to be done and inflicts no penalty an Indictment lies against the person who ought to do it for his neglect or omission Co. 2. Inst. 55. 163. Vide Cro. Hill 41 Eliz. 655. Crouthers Case Stat. Sect. 6. The penalty of a Popish Recusant of small ability offending against this Act. And to the end that the Realm be not pestered and overcharged with the multitude of such Seditious and dangerous people as is aforesaid who having little or no ability to answer or satisfie any competent penalty for their contempt and disobedience of the said Laws and Statutes and being committed to Prison for the same do live for the most part in better Case there then they could if they were abroad at their own liberty The Lords Spiritual and Temporal and the Commons in this present Parliament Assembled do most humbly and instantly beséech the Quéens Majesty that it may be further Enacted That if any such person or persons being a Popish Recusant not being a Feme Covert and not having Lands Tenements Rents or Annuities of an absolute Estate of Inheritance or freehold of the clear yearly value of twenty marks above all charges to their own use and behoof and not upon any secret trust or confidence for any other or Goods and Chattels in their own right and to their own proper use and behoof And not upon any such secret trust and confidence for any other above the value of forty pounds shall not within the time before in this Act in that behalf limited and appointed repair to their place of usual dwelling and aboad if they have any or else to the place where they were born or where their Father or Mother shall be dwelling according to the tenor and intent of this present Act And thereupon notifie their coming and present themselves and deliver their true Names in writing to the Minister or Curate of the Parish and to the Constable Headborough or Tithingman of the Town within such time and in such manner and form as is aforesaid or at any time after such their repairing to any such place as is before appointed shall pass or remove above five miles from the same And shall not within three months next after such person shall be apprehended or taken for offending as is aforesaid conform themselves to the obedience of the Laws and Statutes of this Realm in coming usually to the Church to hear Divine Service and in making such publick Confession and Submission as hereafter in this Act is appointed and expressed being thereunto required by the Bishop of the Diocess or any Iustice of the Peace of the County where the same person shall happen to be or by the Minister or
Curate of every Parish where such Submission and Declaration of Conformity shall hereafter be so made by any such Offender as aforesaid Stat. Sect. 14. The Minister shall enter the Submission into a Book shall presently enter the same into a Book to be kept in every Parish for that purpose and within ten days then next following shall certifie the same in writing to the Bishop of the same Diocess Provided nevertheless Stat. Sect. 15. A Recusant submitting and falling into Relapse That if any such Offender after such Submission made as is aforesaid shall afterward fall into Relapse or eftsoons become a Recusant in not repairing to Church to hear Divine Service but shall forbear the same contrary to the Laws and Statutes in that behalf made and provided That then every such Offender shall lose all such benefit as he or she might otherwise by virtue of this Act have or enjoy by reason of their said Submission And shall thereupon stand and remain in such plight condition and degrée to all intents as though such Submission had never beén made Such Relapse with the Indictment thereof Relapse where to be certified is to be certified into the Court of Exchequer as was done by the Justices of the Kings Bench in the Case of Francis Holt. Pasch 9 Jac. Bulstrode 1. 133. Stat. Sect. 16. Married Women bound by this Act saving in the Case of Abjuration Provided always and be it Enacted by the Authority aforesaid That all and every Woman married or hereafter to be married shall be bound by all and every Article branch and matter contained in this Statute other then the Branch and Article of Abjuration before mentioned And that no such Woman married or to be married during marriage shall be in any wise forced or compelled to abjure or be abjured by virtue of this Act Any thing therein contained to the contrary thereof notwithstanding Stat. i Jac. cap. iv An Act for the due execution of the Statutes against Jesuits Seminary Priests Recusants c. FOr the better and more due execution of the Statutes heretofore made aswell against Iesuits Stat. Sect. 1. All Statutes made against Jesuits Priests and Recusants shall be put in Execution Seminary Priests and other such like Priests as also against all manner of Recusants Be it Ordained and Enacted by Authority of this present Parliament That all and every the Statutes heretofore made in the Reign of the late Quéen of famous memory Elizabeth as well against Iesuits Seminary Priests and other Priests Deacons Religious and Ecclesiastical persons whatsoever made ordained or professed or to be made ordained or professed by any Authority or Iurisdiction derived challenged or pretended from the Sée of Rome as those which do in any wise concern the withdrawing of the Kings Subjects from their due obedience and the Religion now professed and the taking of the Oath of obedience unto the Kings Majesty his Heirs and Successors together with all those made in the said late Quéens time against any manner of Recusants shall be put in due and exact execution Oath of Obedience By the Oath of Obedience Oath of Obedience Stat. 1 Eliz. 1. is here meant the Oath of Supremacy in the Stat. of 1 Eliz. cap. 1. which see there Sect. 7. and by that name it is here called afterwards Sect. 3. Provided nevertheless Stat. Sect. 2. A Recusant conforming himself shall be discharged and be it Enacted by the Authority of this present Parliament That if any that is or shall be a Recusant shall submit or reform him or her self and become obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the true meaning of the Statutes in that behalf in the said late Quéens time made and provided That then every such person for and during such time as he or she shall so continue in such conformity and obedience shall from thenceforth be freed and discharged of and from any the penalties and losses which the same person might otherwise sustain and bear in respect or by reason of such persons Recusancy According to the true meaning of the Statutes in that behalf It hath been doubted whether these words do refer only to the manner of the Recusants conformity or to the time likewise when it is to be done as well as to the manner For if they refer to the time then the Recusant is still bound notwithstanding this Statute to conform before Judgment according to the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 or his conformity afterwards shall not discharge him of the penalty But the better opinion is that by these words according to the true meaning of the Statutes is to be intended only that the Recusant must conform in such manner as is there appointed but as to the time the general words here have inlarged the time limited by 23 Eliz. If the Recusant conforms after Judgment 't is sufficient For this Statute is made in further favor of the Recusant So that now if he conforms after Judgment 't is time enough and he shall be discharged of all penalties in respect of his Recusancy And if an Information tam pro Domino Rege quam pro seipso be brought upon the Statute of 23 Eliz. against the Recusant and after Judgment had against him thereupon he conforms he shall be discharged of the Judgment but first his Conformity must appear of Record otherwise the Court cannot take notice of it and as for that his remedies against the King and the Informer must be several His remedies against the King and informer Audita Quaerela Plea for against the Informer he must bring his Audita Quaerela and against the King he must plead his conformity which he may do in this Case after Judgment for that no Audita Quaerela lies against the King 11 H. 7. 10. and if he should not be admitted to plead he would be without any legal Remedy to discharge himself of the forfeiture and Judgment as to the Kings part whose execution will not be hindred by the Audita Quaerela against the Informer But if the Defendant neglect to put in his Plea and Execution issues for the King and he be taken in Execution he comes too late to plead his Conformity and hath then no other way left to relieve himself as to the Kings part but by his Petition Petition to the King to pardon the Debt Bulstrode 2. 324 325. Dr. Fosters Case Rolles 1. 95. C. 41. the same Case Vide Savile 23. C. 56. Tirringhams Case Stat. Sect. 3. And if any Recusant shall hereafter die his heir being no Recusant that in every such Case every such heir shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her In what Cases a Recusants heir shall be
presentment as a profit of the Advowson which is parcel of the Mannor Moore ibid. The Recusant may plead collateral matter Or other defect whatsoever This is meant of defects within the Indictment or other proceedings and not of any collateral matter which the Recusant hath to discharge himself as a Pardon auterfoits convict c. For the Recusant is not hereby disabled to plead such collateral matter but may take advantage thereof Co. 11. 65. Dr. Fosters Case Nor yet is this meant of all defects whatsoever within the Indictment or other proceedings For if there be any defect Defects to the Kings prejudice which apparently tends to the Kings prejudice the Recusant may take advantage of it And therefore in the Case of the Marquess of Winchester who was Indicted and Convicted of Recusancy and had Judgment thereupon but ideo capiatur was omitted the Judgment was reversed for that omission Cro. Trin. 14 Car. 504 505. Provided always That if any person or persons Stat. Sect. 14. He that Conforms may avoid an Indictment or other proceedings so Indicted or to be Indicted shall at any time hereafter submit and conform him or her self and become Obedient to the Laws of the Church of England and repair to the Parish Church of his or her most abiding and if there be none such then to the Church next adjoyning to his or her such dwelling and there hear Divine Service according to the true meaning of the Statute in that behalf made and provided and there publickly receive the said Sacrament according to the Laws of this Realm of England now established That then every such person and persons so Indicted shall and may from thenceforth be admitted and allowed to avoid discharge reverse and undo the said Indictment and Indictments and all procéedings thereupon in such manner and form as if this present Act had not beén had nor made Any thing herein contained to the contrary in any wise notwithstanding And forasmuch as it is found by late experience Stat. Sect. 15. That such as go voluntarily out of this Realm of England to serve Forreign Princes States or Potentates are for the most part perverted in their Religion and Loyalty by Iesuits and Fugitives with whom they do there converse Be it therefore Enacted by the Authority aforesaid That every Subject of this Realm that after the Tenth day of June next coming shall go or pass out of this Realm to serve any Forreign Prince State or Potentate or shall after the said Tenth day of June pass over the Seas He shall take the Oath which goeth out of the Realm to serve another Prince and there shall voluntarily serve any such Forreign Prince State or Potentate not having before his or their going or passing as aforesaid taken the Oath aforesaid before the Officer hereafter appointed shall be a Felon And that if any Gentleman or person of higher degrée or any person or persons which hath born or shall bear any Office or place of Captain Lieutenant or any other place Certain persons to be bound to the King charge or Office in Camp Army or Company of Soldiers or Conducter of Soldiers shall after go or pass voluntarily out of this Realm to serve any such Forreign Prince State or Potentate or shall voluntarily serve any such Prince State or Potentate before that he and they shall become bound by Obligation with two such sureties as shall be allowed of by the Officers which are hereafter by this Act limited to take the same Bond unto our Soveraign Lord the Kings Majesty his Heirs or Successors in the sum of twenty pounds of currant English money at the least with Condition to the effect following shall be a Felon Subject of this Realm Every Subject of this Realm What is meant by a Subject of this Realm vide postea Sect. 23. Service Shall go or pass out of this Realm to serve The Service mentioned throughout this branch of the Statute is intended of civil or domestick Service as well as Military Co. 3. Inst. 80. and although the later part of it speaks of Officers and Soldiers yet it also speaks there of Gentlemen and persons of higher Degree without pointing at any particular sort of Service so that to serve or go to serve a Forreign Prince c. in any capacity whatsoever without first doing what is here required is Felony by this Act. Felony though the party serve not The passing or going out of this Realm to serve a Forreign Prince c. without taking the Oath or if of that quality entring into Bond is Felony by this Statute although the party be never received into actual Service For the words are in the disjunctive go or pass to serve or voluntarily serve Co. 3. Inst 80. Or intended not to serve Or shall c. pass over the Seas and there shall voluntarily serve So if he pass over the Seas upon some other occasion and not with an intent to serve a Forreign Prince c. yet if when he is there he voluntarily serve him and did not before his departing hence take the Oath and if of that quality enter into such Bond he shall incur the penalty of this Law and suffer as a Felon Co. 3. Inst 81. Bond must be Domino Regi Shall become bound by Obligation c. unto our Soveraign Lord the Kings Majesty An Obligation made to the Kings use is not sufficient nor will satisfie the intent of the Act but it must be made to the King himself For the Bond must be Domino Regi according to the Statute of 33 H. 8. cap. 39. Stat. 33 H. 8. 39 or the Officer who takes it is liable to Imprisonment for taking a Bond contrary to that Statute Wingate therefore tit Crown numb 112. lays a snare for the Officer of the Port when he directs him only to take this Bond to the Kings use And he might have informed himself out of that Statute of 33. and the Statute of 24 H. 8. cap. 8. of the difference between a Bond made to the King and a Bond made to the Kings use Vide Savile 13. C. 33. Shall be a Felon The Offender against any part of this branch of the Statute may have the benefit of his Clergy Clergy Co. 3. Inst 81. Vide postea Sect. 28. The tenor of which Condition followeth viz. Stat. Sect. 16. The Condition of the Bond. That if the within bounden c. shall not any time then after be reconciled to the Pope or See of Rome nor shall enter into or consent unto any practice Plot or Conspiracy whatsoever against the Kings Majesty his Heirs and Successors or any his and their Estate and Estates Realms or Dominions but shall within convenient time after knowledge thereof had reveal and disclose to the Kings Majesty his Heirs and Successors or some of the Lords of his or their Honourable Privy Council all such Practices Plots and
Conspiracies That then the said Obligation to be void And that for the due execution of this branch of this present Law Stat. Sect. 17. Who shall take the Obligation and minister the Oath it shall and may be lawfull to and for the Customer and Controller of every Port Haven or Creek or one of them and their or either of their Deputy or Deputies and none other to receive and accept all and every such Bond and Obligation to and for the uses aforesaid and to minister and give the Oath aforesaid according to the true intent of this Statute taking for such Bond six pence and no more and for the said Oath no Fée at all which said Customer and Controller shall Register and Certifie all and every such Bond and Oath so taken into the Court of Exchequer at Westminster once every year upon pain of five pounds for every Bond not so certified Forfeiture for not certifying and twenty shillings for every Oath not so certified Which said Customer and Controller These words Who is bound to certifie who not notwithstanding the Copulative and are not to be taken conjunctively as if every Bond and Oath is to be certified both by the Customer and Controller For if the Customer take the Bond and Oath the Controller is not to be punished for not certifying no more is the Customer if the Controller take them For each of them shall forfeit for his own default and not for the default of the other And it cannot be reasonably presumed that one of them is privy to the doings of the other And therefore these words must be construed disjunctively Customer or Controller that is he of the two who takes the Bond and Oath is to certifie them into the Court of Exchequer or to forfeit c. For where the literal sense will ingender an absurdity or impossibility such a construction must be made as will stand with reason and the intent of the Law-makers And in such Cases a Copulative shall be taken for a disjunctive or a disjunctive for a Copulative vide Plowden 289. Chapman versus Dalton Ib. 363. Lord Zouches Case But if the Deputy Deputy of the Customer or Controller take the Bond or Oath and no Certificate thereof is made the Customer or Controller himself whose Deputy he is shall forfeit for that default although he had no notice from his Deputy of the taking of the said Bond or Oath For he is answerable for all the defaults of his Deputy vide Dyer 7 Eliz. 238 239. where 't was held that the Customer should forfeit the treble value of the Merchandize upon the Statute of 3 H. 6. cap. 3. Stat. 3 H. 6. 3. for his Deputies concealing of the payment of the Customs So a Sheriff shall answer for all Officers under him Co. 4. 33. Mittons Case Crompton Jurisdict tit Court d'Eschequer 110. And so generally shall all other Officers answer for their Deputies Co. 9. 48. Earl of Shrewsburies Case Co. 9. 98. Sir George Reynells Case Termes de la Ley 111. Deputy Brooke forfeiture 27. 39 H. 6. 34. Penalty Five pounds for every Bond. Note in the late Additions to Dalton cap. 81. tit Recusants Sect. 38. this penalty for not certifying the Bond is mistaken and there said to be fifty pounds instead of five pounds Stat. Sect. 18. Provided always That this last mentioned Branch shall not extend to any person or persons which are already gone or shall go beyond the Seas to serve any Forreign Prince State or Potentate before the Tenth day of June next coming for his said going or passing before the said Tenth day of June Stat. Sect. 19. Putting in practice to absolve or withdraw any from his Obedience or to reconcile them to the Pope And further be it Enacted by the Authority aforesaid That if any person or persons at any time after the said Tenth day of June shall either upon the Seas or beyond the Seas or in any other place within the Dominions of the Kings Majesty his Heirs or Successors put in practice to absolve perswade or withdraw any of the Subjects of the Kings Majesty or of his Heirs and Successors of this Realm of England from their natural Obedience to his Majesty his Heirs or Successors or to reconcile them to the Pope or Sée of Rome or to move them or any of them to promise Obedience to any pretended Authority to the Sée of Rome or to any other Prince State or Potentate That then every such person their Procurers Counsellors Aiders and Maintainers knowing the same shall be to all intents adjudged Traytors and being thereof lawfully convicted shall have Iudgment suffer and forfeit as in Cases of High Treason And if any such person as aforesaid Being withdrawn or reconciled at any time after the said Tenth day of June shall be either upon the Seas or beyond the Seas or in any other place within the Dominions of the Kings Majesty his Heirs or Successors willingly absolved or withdrawn as aforesaid or willingly reconciled or shall promise Obedience to any such pretended Authority Prince State or Potentate as aforesaid That every such person and persons their Procurers and Counsellers Aiders and Maintainers knowing the same shall be to all intents adjudged Traytors and being thereof lawfully convicted shall have Iudgment suffer and forfeit as in Cases of High Treason Withdraw any of the Subjects of the Kings Majesty Kings Subjects who here meant c. from their natural Obedience By the Kings Subjects are to be understood here natural Subjects only that is such whose Subjection is natural and absolute due by nature and birthright and which begins with their birth And not Aliens although they are Naturalized or made Denizens much less those who are only local Subjects For none but natural Subjects can be said to be withdrawn from their natural Obedience And as the King of England cannot be said to be a natural Lord or King to an Alien born so neither can an Alien be said to be his natural Subject Natural King Natural Subject Natural Prince and natural Subject being correlatives And an Indictment of High Treason Indictment of High Treason against an Alien born who resides here although it shall be contra ligeantiae suae debitum and contra dominum Regem in respect of his local ligeance yet naturalem shall be omitted out of the Indictment And so it was 2 3 Ph. Mar. in the Case of Sherley a Frenchman and 36 Eliz. in the Cases of Stephano Ferrara de Gama and Emanuel Lewes Tinoco two Portugals who conspired with Dr. Lopez against Queen Elizabeth And so as it seems it ought to be for the same reason if the Alien were indenized or naturalized For Naturalization Naturalization it self which is by Act of Parliament and the highest priviledge an Alien is capable of yet cannot create this natural Subjection or Obedience which is not due by any Law
the Reign of our most gracious Soveraign Lady the Quéens Majesty Entituled An Act to retain the Queens Majesties Subjects in their due Obedience Be it Enacted by Authority of this present Parliament That every Feoffment Gift Grant Conveyance Alienation Estate Lease Incumbrance and Limitation of use of or out of any Lands Tenements or Hereditaments whatsoever had or made at any time since the beginning of the Quéens Majesties Reign or at any time hereafter to be had or made by any person which hath not repaired or shall not repair to some Church Chappel or usual place of Common Prayer but hath forborn or shall forbear the same contrary to the tenor of the said Statute and which is or shall be revocable at the pleasure of such offender or in any wise directly or indirectly meant or intended to or for the behoof relief or maintenance or at the disposition of any such offender or wherewith or whereby or in consideration whereof such Offender or his Family shall be maintained relieved or kept shall be déemed and taken to be utterly frustrate and void as against the Queéns Majesty for or concerning the levying and paying of such sums of money as any such person by the Laws or Statutes of this Realm already made ought to pay or forfeit for not coming or repairing to any Church Chappel or usual place of Common Prayer or for saying hearing or being at any Mass and shall also be seized and had to and for her Majesties use and behoof as hereafter in this Act is mentioned Any pretence colour faigned consideration or expressing of any use to the contrary notwithstanding Stat. Sect. 2. Conviction of Recusancy shall be certified into the Exchequer And further be it Enacted by the Authority aforesaid That every Conviction heretofore recorded for any Offence before-mentioned not already estreated or certified into the Quéens Majesties Court of Exchequer shall from the Iustices before whom the Record of such Conviction shall be remaining be estreated and certified into the Queéns Majesties Court of Exchequer before the end of Easter Term next coming in such convenient certainty for the time and other circumstances as the Court of Exchequer may thereupon award out Process for seizure of the Lands and Goods of every such Offender as hath not paid their said forfeitures according to the Laws and Statutes in such Case provided In what Courts Conviction of Recusancy shall be And that every Conviction hereafter for any offence before mentioned shall be in the Court commonly called the Kings Bench or at the Assizes or general Goal delivery and not elsewhere and shall from the Iustices before whom the Record of such Conviction shall remain be estreated and certified into the said Court of Exchequer before the end of the Term next ensuing after every such Conviction in such convenient certainty as is aforementioned Sir Edward Coke in Dr. Fosters Case lib. 11. 61. saith That by this Clause as hath been well observed the Statute of 23 Eliz. cap. 1. Stat. 33 Eliz. 1 In what Courts the Informer Qui tam c. may sue is altered in a material point viz. That whereas by 23. the Informer might sue the Recusant for the penalty in any Court of Record he is now by this Statute of 29. restrained from suing in the Common Pleas or Exchequer But this is utterly denied to be Law as the constant practice and experience ever since the making of this Statute sufficiently testifies And the Lord Chief Justice Hobart in his Report of Pie and Lovells Case saith That that Observation was made as he takes it by Sir Edward Coke himself But however this passage or observation as he calls it came to be inserted by Sir Edward Coke into his Report Sergeant Rolles in his Report of that Case of Dr. Foster lib. 1. 93. C. 41. brings him in speaking in another Language and more consonant to Law viz. That the Conviction here mentioned is intended of Convictions upon Indictments only and that no other sort of Convictions or proceedings upon the Statute of 23 Eliz. are mentioned or intended throughout this whole Act of 29. And if so then the Informer is not concerned in this Act nor restrained thereby as to the Courts wherein he is to sue but that he may sue still in the Common Pleas or Exchequer And so was it resolved in point in that Case of Pie and Lovell Hobart 204 205. where the Opinion of Sir Edward Coke reported by Rolles touching what sort of Conviction is meant here is confirmed and allowed for Law this Statute being made only for the benefit of the Queen in her Suits by Indictment and that other Opinion in the 11 Report exploded And the true reason is there given why those negative words and not elsewhere were added here viz. not to exclude the Informer out of the Common Pleas or Exchequer but to restrain Justices of Peace from proceeding to convict any person upon Indictments for Recusancy or for saying hearing or being at Mass which they were enabled to do by 23 Eliz. but again disenabled by those negative words in this Act and the hearing and determining of those offences committed only to the Justices of the Kings Bench Assizes and general Goal delivery But for Informations by a common Informer they were never intended here and the Justices of Assize and Goal delivery cannot hold Plea of such Informations as was resolved by the Judges Mich. 4 Car. 1. Jones 193. And yet this Statute did not wholly abrogate the power of the Justices of Peace Justices of P. may take Indictments for some offences against 23 El. 1 or of any other Justices to whom Authority was given by the Statute of 23 Eliz. in relation to the Offences of Recusancy or of saying or hearing Mass but that they might after this Statute of 29. take Indictments notwithstanding the negative words here For this Statute restrains them only from proceeding to Conviction but not from taking Indictments as was held in Edward Plowdens Case cited in Dr. Fosters Case Co. 11. 63. And now by the Statute of 3 Jac. cap. 4. And hear and determine the offence of not coming to Church Stat. 3 Jac. 4. The power of Justices of Peace to hear and determine the Offence of not coming to Church is again restored to them Vide that Statute Sect. 5. And be it also Enacted by the Authority aforesaid Stat. Sect. 3. At what time the money forfeited for not going to the Church shall be paid That every such Offender in not repairing to Divine Service but forbearing the same contrary to the said Estatute as hath beén heretofore convicted for such Offence and hath not made submission and béen conformable according to the true meaning of the said Statute shall without any other Indictment or Conviction pay into the Receipt of the said Exchequer all such sums of money as according to the Rate of twenty pounds for every month sithence the same