persons authorized or claiming Authority by or from the said Bishop or Seé of Rome to Consecrate or Hallow the same which said Agnus Dei is used to be specially Hallowed and Consecrated as it is termed by the said Bishop in his own person and the said Crosses Pictures Beads and such like superstitious things been also hallowed either by the same Bishop or by others having power or pretending to have power from him or his said Sée and divers Pardons Immunities and Exemptions granted by the Authority of the said Sée to such as shall receive and use the same and that if the same person or persons so bringing in as is aforesaid such Agnus Dei and other like things as have been before specified shall deliver or cause or offer to be delivered the same or any of them to any Subject of this Realm or of any the Dominions of the same to be worn or used in any wise that then as well the same person and persons so doing as also all and every other person or persons which shall receive and take the same to the intent to use or wear the same being thereof lawfully Convicted and Attainted by the order of the Common Laws of this Realm shall incur into the dangers penalties pains and forfeitures ordained and provided by the Statute of Praemunire and Provision made in the sixteenth year of the Reign of King Richard the Second Bringers in offerers and deliverers And that if the same Person or Persons so bringing in A man brings into the Kings Dominions such Agnus Dei or other like superstitious things and another offers or delivers them It seems that neither he that brings them in nor he that offers or delivers them is within this Act or liable to the penalty for by the express words it must be the same person So that neither the bringer in unless he offer or deliver them or cause them to be delivered nor he who delivers them or causeth or offereth them to be delivered unless he be the person who brought them in is an Offender within the Act. To whom an Agnus Dei c. may not be offered or delivered To any Subject of this Realm c. The offer or delivery of such Agnus Dei or other superstitious thing to any sort of person is not an offence within this Act as Wingate supposes it to be tit Crown Numb 37. But to make it an Offence it must be delivered or offered to a Subject of this Realm or of the Dominions of the same The intent material To be worn or used c. to the intent to use or wear the same The Intent is material in this Case an◠therefore If a man be Indicted upon this Statute for bringing in and offering or delivering such Agnus Dei c. or receiving the same the intent must be mentioned in the Indictment as it must be in Indictments upon all Statutes where the intent as here is made part of the offence So in an Indictment upon the Statute of 5 E. 6. cap. 4. Stat. 5 E. 6. 4. it is not enough to say the party drew his Dagger in the Church against J. S. but it must be averred that he did it with an intent to strike him as was Resolved by the Court of Kings-Bench Trin. 33 Eliz. in Penhalls Case Leonard 4. 49. C. 127. It seems by the words of this Statute that to make the Receiver of such superstitious things an offender within it there must be a concurrence of intentions for the using or wearing them both in the giver and receiver And that therefore if a person coming from beyond the Seas brings into this Realm any such superstitious things but with no intent that they should be worn or used and gives them to his friend at his request who receives them with an intent to wear or use them this is penal to neither Not to the giver for he had no superstitious intent and the intent is material nor to the receiver for that the offering or delivering them to be worn or used is expresly made in the Statute a condition precedent to the obliquity of the fact in receiving them for the Statute saith Then as well the person so doing as also every other person receiving them to that intent shall incur a Praemunire So that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incur a Praemunire But yet there needs not any such concurrence of intentions in the giver and receiver to make the giver an offender And therefore if a man brings into the Realm such superstitious things and delivers them to be worn or used though the party receive them not to the intent to use or wear them but defaces burns or otherwise destroies them yet he that gave or delivered them incurs a Praemunire for the words in the Act relating to the Offerer or Deliverer are intire in themselves and have no dependance on the subsequent words relating to the receiver but generally make all Offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them Provided nevertheless Stat. Sect. 7. Apprehending an Offender or disclosing his name and be it further Enacted by the Authority aforesaid That if any person or persons to whom any such Agnus Dei or other the things aforesaid shall be tendered and offered to be delivered shall apprehend the party so offering the same and bring him to the next Iustice of Peace of that Shire where such tender shall be made if he shall be of power and able so to do or for lack of such ability shall within the space of three days next after such offer made as is aforesaid disclose the name or names of such person or persons as so shall make the same offer and the dwelling place or place of resort of the same person or persons which he shall indeavor himself to know by all the ways and means he can to the Ordinary of that Diocess or to any Iustice of Peace of that Shire where such person or persons to whom such offer shall be made as is aforesaid shall be resiant And also Delivering of Agnus Dei received to the Ordinary or a Justice of Peace if such person or persons to whom such offer shall be made shall happen to receive any such Agnus Dei or other thing above remembred and shall within the space of one day next after such receipt deliver the same to any Iustice of Peace within the same Shire where the party so receiving shall be then resiant or shall happen to be That then every such person or persons doing any the Acts or things in this Proviso above mentioned in forme above declared shall not by force of this Statute incur any danger or penalty appointed by this Statute or
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
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
c. Jones 193. And such a construction hath been made of those words Court of Record upon several Statutes Stat. 4 5 Ph. Mar. 5. as that of 4 5 Ph. Mar. cap. 5. of Woollen Cloathes Co. 6. 19 20. Gregories Case 21 H. 8. 13. Moore 600. C. 827. The same Case Stat. 21 H. 8. cap. 13. Of Non-residence Cro. Mich. 4. Car. 146. Greene versus Guy 23 H. 8. 4. Stat. 23 H. 8. cap. 4. of Brewers Cro. Trin. 4. Car. 112 113. Farrington versus Keymer Hutton 99. the same Case Stat. 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wine without Licence Styles 340. Buckstone against Shurlock 5 Eliz. 4. Stat. 5 Eliz. cap. 4. of Trades and Apprentices Cro. Hill 42 Eliz. 737. Barnabee versus Goodale Cro. Trin. 17 Jac. 538. Millers Case Styles 383. Hodges Case the Statutes of Tanning of Leather Moore 421. C. 581. and divers others It was held Mich. 6 7 Eliz. by all the Justices but three That where a Statute appoints a penalty for any Offence made thereby which was not an Offence at the Common Law to be recovered in any of the Queens Courts of Record by Action of Debt and no other Court is appointed The Statute intends the four ordinary Courts of Record at Westminster and the offence and penalty cannot be punished and determined by Commissioners of Oyer and Terminer in Patriam Dyer 236. But Dyer makes a Quaere hereupon and Sir Edward Coke in Scarlets Case 10 Jac. lib. 12.98 saith That the Opinion of Catlin Sanders and Whiddon which were the three dissenting Justices before mentioned is at this day held for good Law And the Opinion aforesaid of the rest of the Justices that any Courts of Record are restrained to the Ordinary Courts of Record at Westminster is not held for Law Continual experience saith he being against it For that Justices of Assize in respect of their Commission of Oyer and Terminer have always enquired of Offences where the penalty is appointed to be sued in any Court of Record as upon the Statutes of 33 H. 8. 9. of unlawful Games 35 H. 8. 17. of Woods 5 E. 6. 14. of Forestallers 33 H. 8. 9. 35 H. 8. 17. 5 E. 6.14 Ingrossers and Regrators and other Statutes But under favour although Commissioners of Oyer and Terminer may take Indictments for the doing of that which is made malum prohibitum by a Statute Law yet that part of the Opinion in Dyer which relates to the Action of Debt and the Courts of Record where such Action must be brought is good Law and where only Courts of Record are named such Action cannot be brought in any other Court than the four ordinary Courts of Record at Westminster as appears by the several Cases and Resolutions before recited By the Statute of 21 Jac. cap. 4. it is enacted 21 Jac. 4 That all Offences to be committed against any penal Statute for which any common Informer or Promoter may lawfully ground any popular Action Bill Plaint Suit or Information before Justices of Assize Justices of Nisi prius or Goal delivery Justices of Oyer and Terminer or Justices of Peace in their General or Quarter Sessions shall be prosecuted tried and determined by way of Action Plaint Bill Information or Indictment before the said Justices of the Counties or Liberties where such offences shall be committed in any of the Courts places of Judicature or liberties aforesaid respectively and not elsewhere save only in the said Counties or places usual for those Counties or any of them And that in all Informations Bills Counts Plaints and Declarations in any Action or Suit by or on the behalf of the King or any other concerning any Offence committed against any penal Statute the Offence shall be laid alledged to have been committed in the County where such Offence was in truth committed and not elsewhere But this Act shall not extend to any Information or Suit grounded upon any Law against Popish Recusants Suits against Recusants there excepted or such who do not frequent the Church and hear Divine Service nor to any Information or Suit for other Offences named in the said Statute of 21. but that such Offences may be laid or alledged to be in any County at the pleasure of any Informer Sir Edward Coke 3. Inst 193. and 4 Inst 174. saith That this Exceptiom of Recusancy in the said Statute of 21 Jac. doth not extend to the Courts wherein the Informer is to sue but only to the County where the Offence is to be laid so that notwithstanding that exception the Kings Bench Chancery Common Pleas Exchequer or Exchequer Chamber cannot receive or hold Plea of any Information for Recusancy either by the Kings Attorney or any common Informer but the matter shall be heard and determined before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or Justices of Peace in their general Sessions according to this Statute of 21 Jac. But the Informer if it be for Recusancy may by force of that Exception lay or alledge such Offence in what County he will For the said Exception extends only to the County and not to the Courts where the Informer is to sue Which Opinion of his touching the extensiveness of the Exception is probable enough viz. That it shall extend only to the County and not to the Courts where the Informer is to sue for the latter part of it speaks only of the County But this is unaptly applied to popular Informations upon this Statute of 23 Eliz. for Recusancy for they are not within the meaning of that Branch of 21 Jac. touching the Courts where the Informer is to sue For that part of the Statute which speaks of the Courts In what Courts an Informer may sue meddles not with Informations upon those penal Laws which give the Informer no other remedy for recovery of the penalty but by Action of Debt Bill Plaint or Information in the Courts of Record at Westminster nor doth it give the Justices of Assize or other Justices there named any new or further power than they had before but only appoints that where Informations might have been brought before them or in the Courts of Westminster at the Election of the Informer now they shall be brought before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or at the Sessions of the Peace in the County where the Offence was committed for the ease of the Subjects who are Defendants and not in the Courts at Westminster Cro. Trin. 4 Car. 112 113. But in our Case of Recusancy there is no such Election given the Informer by this Statute of 23 Eliz. or any other Statute but he is strictly tied to take his Remedy by Action of Debt Bill Plaint or Information in one of the Courts at Westminster and therefore 21 Jac. extends not to it in that branch touching the Courts where the Informer is to
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
perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Where this Act extends to Popish Recusants Vnder colour or pretence of any exercise of Religion Although this Act is commonly called the Act against Sectaries as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except in the point of abjuration For the Popish service is performed under colour or pretence of exercise of Religion and the Assembly or Meeting of Popish Recusants under such colour or pretence is an Assembly or Meeting contrary to the Laws and Statutes And they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a moneth and be present at any part of the Popish service or move or perswade ut supra And may be imprisoned without Bail until they conform and make submission as by this Act is appointed But they cannot be required to abjure unless they offend against the Statute of 35 Eliz. cap. 2. Stat. 35 Eliz. 2 A Popish Recusant is likewise subject to the Action of Debt c. given to the Queen by this Statute Being thereof lawfully convicted That is What conviction sufficient convicted both of his absence from Church and of that other Offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no Offence within this Act as hath been said And 't is not necessary that the party be convicted of such absence upon any Prior Indictment for although there was never any former conviction of him for Recusancy yet if he offend against this Act in any of the other particulars he may be convicted both of that Offence and of his absence upon one and the same Indictment And so was the Indictment in the Case of Lee and others who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles To which they pleaded not guilty and the Indictment was removed into the Kings-Bench to be tried there Cro. Mich. 16 Car. 593. Trial. Provided always Stat. Sect. 2. An Offender not conforming himself abjure shall the Realm and be it further Enacted by the Authority aforesaid That if any such person or persons which shall offend against this Act as aforesaid shall not within thrée months next after they shall be convicted for their said Offence conform themselves to the obedience of the Laws and Statutes of this Realm in coming 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 the Parish That in every such Case every such Offender being thereunto warned or required by any Iustice of the Peace of the same County where such Offenders shall then be shall upon his and their Corporal Oath before the Iustices of the Peace in the open Quarter Sessions of the same County or at the Assizes and Goal delivery of the same County before the Iustices of the same Assizes and Goal delivery abjure this Realm of England and all other the Queéns Majesties Dominions forever unless her Majesty shall licence the party to return And thereupon shall depart out of this Realm at such Haven or Port and within such time as shall in that behalf be assigned and appointed by the said Iustices before whom such abjuration shall be made unless the same Offender be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for Felony as is aforesaid And that the Iustices of Peace before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes and Goal delivery of the County at the next Assizes of Goal delivery to be holden in the same County In what case the offender is not bound to abjure Being thereunto required by the Bishop c. or any Iustice of the Peace c. But put the Case that the Offender is convicted and the Three months next after his Conviction elapse before he is required by the Bishop or any Justice of Peace or the Minister or Curate of the Parish to conform and make the submission here appointed and afterwards he is required by one of them so to do It seems in this Case such request comes too late for he ought to conform and submit within the three months if he be required but if he be not required he is not bound to abjure for omitting it although he shall remain in prison till he conforms and submits But if within the three months he be required to conform and submit and refuse there is no question but he may be at any time afterwards warned or required to abjure Abjuration Abjure this Realm of England c. Vide Stat. 35 Eliz. cap. 2. Sect. 6. Stat. Sect. 3. The punishment for refusing to abjure not departing or returning without Licence And if any such Offender which by the tenor and intent of this Act is to be abjured as is aforesaid shall refuse to make Abjuration as is aforesaid or after such Abjuration made shall not go to such Haven and within such time as is before appointed and from thence depart out of this Realm according to this present Act or after such his departure shall return or come again into any her Majesties Realms or Dominions without her Majesties special Licence in that behalf first had and obtained That then in every such Case the person so offending shall be adjudged a Felon and shall suffer as in Case of Felony without benefit of Clergy Vide Stat. 35 Eliz. cap. 2. Sect. 7. Stat. 35 Eliâ— â— And furthermore be it Enacted by the Authority of this present Parliament Stat. Sâ—ct 4. An Offender shall be discharged upon his open submission That if any person or persons that shall at any time hereafter offend against this Act shall before he or they be so warned or required to make Abjuration according to the tenor of this Act repair to some Parish Church on some Sunday or other Festival day and then and there hear Divine Service And at Service time before the Sermon or reading of the Gospel make
person which shall be so suspected shall refuse to answer directly and truly whether he be a Iesuit or a Seminary or Massing Priest as is aforesaid every such person so refusing to answer shall for his Disobedience and Contempt in that behalf be committed to Prison by such as shall examine him as is aforesaid and thereupon shall remain and continue in Prison without Bail or Mainprize until he shall make direct and true answer to the said Questions whereupon he shall be so examined Cause of suspicion Suspected Although the party be no Jesuit Seminary or Massing Priest yet if there be cause to suspect him and he refuse to answer whether he be so or no such suspicion and refusal is ground enough for his Commitment Having lawful Authority in that behalf This Clause seems to refer to the Statute of 27 Eliz. cap. 2. Stat. 27 Eliz. 2. which appoints that the discovery of a Popish Priest or Jesuit shall be made to some Justice of Peace or higher Officer who is to give Information thereof to some of the Privy Council c. under the penalty of two hundred marks Who shall examine a Jesuit c. which Statute of 27. though it do not in express terms say that the Justice of Peace or other higher Officer shall examine the Priest or Jesuit so discovered yet inasmuch as it gives him power to take Cognizance of the matter it seems implicitely to impower him to inform himself of the truth whether the party be a Priest or Jesuit or not as well by examination of the party as otherwise that he may be the better enabled to give Information thereof to some of the Privy Council c. And one Justice of Peace having by 27. lawful Authority to examine him he hath Authority likewise by this Statute of 35. to commit him And commit him if he be suspected to be a Priest or Jesuit and refuses to answer whether he be such or no. As for Mr. Shephards Opinion in his Sure Guide cap. 14. Sect. 5. that there must be two Justices of Peace to Commit a man by force of this Statute who is suspected to be a Jesuit or Priest till he answers directly I see no ground at all for it Answer to the said Questions That is To what point he may be examined whether he be a Jesuit Seminary or Massing Priest for he is not bound to answer to any other question nor can be committed by force of this Act for his Refusal Provided nevertheless Stat. Sect. 9. Licence to travel above five miles Alt. 3 Jac. 5. and be it further Enacted by the Authority aforesaid That if any of the persons which are hereby limited and appointed to continue and abide within five miles of their usual dwelling place or of such place where they were born or where their Father and Mother shall be dwelling as is aforesaid shall have necessary occasion or business to go and Travel out of the compass of the said five miles That then and in every such Case upon Licence in that behalf to be gotten under the hands of two of the Iustices of Peace of the same County with the privity and assent in writing of the Bishop of the Diocess or of the Lieutenant or of any Deputy Lieutenant of the same County under their hands it shall and may be lawful for every such person to go and Travel about such their necessary business and for such time only for their travelling attending and returning as shall be comprised in the same Licence Any thing before in this Act to the contrary notwithstanding This Clause is repealed Repeal Stat. 3 Jac. 5. and a new form of Licence appointed by the Statute of 3 Jac. cap. 5. which see there Sect. 8. Provided also Stat. Sect. 10. Persons urged by Process or commanded to appear That if any such person so restrained as is aforesaid shall be urged by Process without fraud or covin or be bounden without fraud or covin to make appearance in any her Majesties Courts or shall be sent for commanded or required by any thrée or more of her Majesties Privy Council or by any four or more of any Commissioners to be in that behalf nominated and assigned by her Majesty to make appearance before her Majesties said Counsel or Commissioners That in every such Case every such person so bounden urged commanded or required to make such appearance shall not incur any pain forfeiture or loss for travelling to make appearance accordingly nor for his abode concerning the same nor for convenient time for his return back again upon the same Vrged by Process If a Popish Recusant restrained by this Act be summoned by Warrant of a Justice of Peace to appear before him the Recusant ought not to travel to such Justice out of his compass of 5 miles For although a Justice of Peace his Warrant be the Kings Process Wha◠Process is here meant yet it is not intended here For these words urged by Process are restrained by the subsequent words to such Process as requires the Recusants appearance in some one of the Kings Courts and extend not to all Cases of Summons and Process as Wingate tit Crown numb 83. mistakes But if in the Case aforesaid the Warrant be to Arrest the Recusant and by force thereof he be carried by the Constable c. out of the compass of five miles there he is excused and shall forfeit nothing for that it was done by compulsion And yet if there be any Covin between the Recusant and the Justice of Peace or Officer it may be otherwise The Kings Courts In any her Majesties Courts All Courts wherein the proceedings are directed by the Kings Laws are the Kings Courts and therefore a Court Leet Court Leet though of an inferiour nature and kept in the Lords name yet is the Kings Court Co. 5. 39. Cawdries Case Hetley 18. Ecclesiastical Court If a Popish Recusant restrained by this Act be cited into the Ecclesiastical Court he may by force of this Proviso Travel out of the compass of five miles to appear there for all Ecclesiastical Courts are the Kings Courts and the Laws by which they proceed there are the Kings Laws Vide Cawdries Case supra Vide Stat. 3 Jac. cap. 5. Sect. 7. Stat. Sect. 11. Persons which are to yield their bodies to the Sheriff And be it further provided and enacted by the Authority aforesaid That if any such person or persons so restrained as is aforesaid shall be bound or ought to yield and render their bodies to the Sheriff of the County where they shall happen to be upon Proclamation in that behalf without fraud or covin to be made That then in every such Case every such person which shall be so bounden or ought to yield and render their body as aforesaid shall not incur any pain forfeiture or loss for Travelling for that intent and purpose only without any fraud
which it shall be commanded that the body of every such Offender shall be rendred to the Sheriff of the same County or Bailiff or other kéeper of the Goal of the Liberty before the next Assizes and general Goal delivery or before the next general or Quarter Sessions respectively to be holden for the said Shire Limit Division or Liberty And if at the said next Assizes and general Goal delivery or Sessions the same Offender so proclaimed shall not make appearance of Record Conviction of a Recusant That then upon every such Default recorded the same shall be as sufficient a Conviction in Law of the said Offence whereof the party shall stand Indicted as aforesaid as if upon the same Indictment a Trial by Verdict thereupon had proceéded and béen found against him or her and recorded General or Quarter Sessions Stat. 23 Eliz. 1 Power of Justices of Peace revived Stat. 23 Eliz. 1 29 Eliz. 6. At their said Sessions c. General or Quarter Sessions c. What Sessions are here meant vide 23 Eliz. cap. 1. Sect. 7. To enquire hear and determine This is intended of Indictments only and revives the power of Justices of Peace given them by the Statute of 23 Eliz. cap. 1. and taken from them by the negative words of the Statute of 29 Eliz. cap. 6. so that now the Justices of Peace may proceed to Judgment against the Recusant upon 23. or convict him upon Proclamation and default of appearance and so may the Justices of Assize and Goal-delivery Justices of Assize and Goal delivery proceed either way For the words of this Statute and that of 29. which give the Proclamation being in the affirmative The Proclamation may be waved do not take away the proceedings upon 23. but that the Justices may wave the Conviction by Proclamation if they please Nor is the Informers Informer popular Suit taken away by 29. or by this Statute Co. 11.61 Dr. Fosters Case vide Stat. 23 Eliz. cap. 1. Sect. 7. Against any Person either for not repairing to Church This branch extends to all Recusants c. So that this Branch of the Statute which gives the Conviction by Proclamation extends to other Recusants besides Popish Recusants and is not restrained to this latter sort but is misrecited in this particular by Dalton V. cap. 110. tit Forfeiture for Felony Shall be rendred to the Sheriff c. before the next Assizes c. In an Action brought against Sir John Webb and his Wife for recovery of twenty pounds per month for the Recusancy of the Wife The Defendants plead that the Feme was before that time convicted for the same absence upon Indictment at the Kings Suit Proclamation erroneous and Proclamation made that she should render her self at the next Assizes and default of appearance thereupon But it was resolved by the Court of Kings Bench That the Plea was ill and that this was not a Conviction according to Law and therefore was in effect as no Conviction For the Proclamation was erroneous in two points 1. In the person to whom the Statute saith it shall be proclaimed that the Offenders body shall be rendred to the Sheriff c. But this Proclamation was That she should render her self to the Justices of Assize For the rendring of the body to the Sheriff is a material point And the intent of the Statute is not pursued in this Proclamation For the intent was that Recusants being dangerous members of the Commonwealth should be in the Custody of the Sheriff c. ne nocere valeant 2. In the time when The Proclamation was that she should render her self at the next Assizes but the Statute saith before the next Assizes And when the Proclamation is ill the Conviction for default of appearance thereupon cannot be good nor shall bar the King or the Informer of their Action And although by the subsequent Clause in this Act That no Proclamation shall be avoided for any defect c. the Recusant perhaps may be estopped to take such exception to the Proclamation yet the King is not Palmer 40.41 Bridgman 122. Rolles 2.108 Note that Palmer in his Report of this Case hath stated the first difference between the Statute and Proclamation as 't is here laid down and so the truth of the Case was But in reciting Bridgmans Argument he reports it quite contrary viz. That the Proclamation was That the Recusants body should be rendred to the Sheriff and that it ought to have been that it should be rendred to the Justices of Assize But this is a mistake and contrary to the Statute and the truth of the Case Or other kéeper of the Goal Keeper of a Goal A keeper of a Goal may be by usage or prescription Lib. Assiz 259. A. 42. Pl. 7. Co. 1. Inst 114. And if the person indicted for Recusancy live in a Corporation where the Sheriff hath not to do and he be Proclaimed upon this Statute he may render himself to the keeper of the Goal there Shall not make appearance of Record And if the Recusant do appear of Record at the Assizes Appearance shall save the default Goal delivery or general or quarter Sessions it shall be sufficient to save his default although he did not render himself to the Sheriff upon the Proclamation and this is clear by the words of the Statute which is grosly mistaken in this particular by Wingate tit Crowne numb 102. who saith the Recusant shall be convicted if he render not his Body to the Sheriff or Bailiff of the Liberty and that default be recorded Appearance how to be made This appearance must be in proper person and not by Attorney for none can at first appear by Attorney unless enabled by some Statute and all appearances by the Defendant in any Court ought by the Common Law to be in person Co. 10.101 Bewfages Case But after a Plea pleaded to an Indictment an Attorney may be admitted at the discretion of the Court if they think fit but not otherwise and in some Cases not without a special Writ directed to the Justices to that purpose Vide 16 E. 4. 5. Fitz. N. B. 26. It must be entred of record The party Indicted and Proclaimed who appears at the Assizes or Sessions must take care that his appearance be entred of Record For if the Clerk of the Assizes or Clerk of the Peace should mistake and instead thereof record his default he hath no way to avoid his standing convicted Action upon the Case But is put to his Action upon the Case against such Clerk of the Assizes or Peace Vide Popham 29. Keilway 180. What is a good appearance and what not The personal presence at the next Assizes or Sessions of the party indicted of Recusancy and Proclaimed although he continue there from the beginning to the ending is no sufficient ground to record his appearance nor shall save his default For
one as conceals his true Name or Quality or cannot give a good Accompt what he is For so it must be reasonably intended and not of all Travellers through the Country as Wingate tit Crowne numb 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just cause of suspition Stat. Sect. 11. Refusal of the Oath And be it further Enacted That if any such person or persons other than Noblemen or Noblewomen shall refuse to answer upon Oath to such Bishop or Iustices of Peace examining him or her as aforesaid or to take the said Oath so duly tendred unto him or her by such Bishop or two such Iustices of Peace out of Sessions that then the said Bishop or Iustices of Peace shall and may commit the same person to the common Goal there to remain without Bail or Mainprize until the next Assizes or General or Quarter Sessions to be holden for the said Shire Division Limit or Liberty where the said Oath shall be again in the said open Assizes or Sessions required of such person by the said Iustices of Assize or Iustices of Peace then and there present or the greater number of them And if the said person or persons or any other person whatsoever other then Noblemen or Noblewomen of the age of Eightéen years or above shall refuse to take the said Oath being tendred unto him or her by the Iustices of Assize and Goal delivery in their open Assizes or the Iustices of Peace or the greater part of them in their said general Quarter Sessions every person so refusing shall incur the danger and penalty of Praemunire mentioned in the Statute of Praemunire Praemunire made in the sixtéenth year of the Reign of King Richard the Second except Women Covert Women Covert who upon refusal of the said Oath shall be by the said Iustices of Assize in their open Assize or Iustices of Peace in their General or Quarter Sessions for the said Offence committed only to the common Goal there to remain without Bail or Mainprize till they will take the said Oath There to remain without Bail or Mainprize Sureties cannot be taken The Bishop or two Justices cannot take Sureties of him who refuses the Oath for his appearance at the Assizes or Sessions as Wingate tit Crowne numb 107. mistakes but must commit him immediately to Goal nor can any other Court or Justices Bail him in this Case Vntil the next Assizes or General or Quarter Sessions This being in the Disjunctive Commitment till Assizes or Sessions the Bishop or two Justices have their election to commit the party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit For some may be more aptly committed until the next Assizes and some until the next Sessions Co. 12. 131 132. What Sessions is here meant Sessions Stat. 23 Eliz. 1 Vide Stat. 23 Eliz. cap. 1. Sect. 7. And if the said person or persons or any other person whatsoever c shall refuse These words any other person whatsoever are exclusive of the said person or persons who are committed for refusal For 't is here in the disjunctive To whom the Oath may be tendred so that it seems that if any person whatsoever of the age of eighteen years or above and under the degree of a Nobleman or Noblewoman be at the Assizes or general Quarter Sessions of the Peace whether voluntarily or brought in upon Process on an Indictment of Recusancy or for any other matter and be there tendred this Oath and refuse to take it although it were never tendred to him before yet upon his refusal there he incurs a Praemunire And in this respect this Statute is more extensive then that of 7 Jac. cap. 6. Stat. 7 Jac. 6. where there must be a Prior tender and refusal of this Oath otherwise a refusal of it at the Assizes or Sessions doth not make a Praemunire by that Act. Vide Co. 12. 131. Shall incur the danger and penalty of Praemunire If a man be committed by the Bishop or two Justices of Peace for refusal of this Oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal and after they have there made the party a second tender of the Oath and he refuses it Indictments of Praemunire upon this Statute by which he incurs a Praemunire the Indictment against him to convict and attaint him of a Praemunire must contain all the special matter viz. that he stood Convicted or Indicted of Recusancy or that he had not received the Sacrament twice within the year next before or that passing through the Country and unknown being examined upon Oath he confessed or denied not c. as the Case is and that the Oath was tendred to him by the Bishop or two Justices of Peace Quorum unus c. and he refused it and that it was again tendred to him in open Court and he again refused it For in this Case the Mittimus Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions But if the first tender and refusal be not expressed in the Mittimus or Warrant of commitment there although there was a tender and refusal of the Oath before the Bishop or two Justices yet the Justices of Assize or Justices of Peace in their Sessions can take no notice of it But they must there tender him the Oath without reference to any Prior tender which they may do by force of the said general words any other person whatsoever and if he refuse it he incurs a Praemunire And in this Case the Indictment may be short and general scil that he was tendred the Oath in open Court and refused it c. And so it must be in all Cases where in truth there was never any Prior tender and refusal Co. 12. 131 132. Stat. 7 Jac. 6. Justices of Peace Vide the Statute of 7. Jac. cap. 6. whereby the power of the Justices of Peace is in some particular Cases inlarged in reference to this Oath Stat. Sect 12. The Oath of Allegiance The form of which Oath hereafter followeth I A. B. do truly and sincerely acknowledge profess testifie and declare in my Conscience before God and the World That our Sovereign Lord King James is Lawful and Rightful King of this Realm and of all other his Majesties Dominions and Countries and that the Pope neither of himself nor by any Authority of the Church or See of Rome or by any other means with any other hath any Power or Authority to depose the King or to dispose any of his Majesties Kingdoms or Dominions or to Authorize any Foreign Prince to
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
Colledges that now are or hereafter shall be received into the same being under the Degrée of a Baron before the President Master Provost Warden or other head or chief Governour of that Colledge Hall or House whereinto he shall be received and in the open Hall And all Doctors of Physick Doctors and Practisers of Physick and all other who practise Physick that now are or hereafter shall be admitted into the Colledge of Physitians in London before the President of the same Colledge for the time being And all Aldermen Sheriffs or Vnder-Officers whatsoever of the Cities and Towns Corporate Aldermen Sheriffs Under-Officers and Freemen of Cities and Towns Corporate and all such as hereafter shall be made Fréemen of the said City or Town Corporate before the Mayor Bailiffs or other Chief Officer of the said City or Town in the open Hall And to the intent that due execution may be had of the premisses without delay When the said persons shall take the said Oath It is further Enacted by the Authority aforesaid That all the persons beforenamed who have any certain time limited or expressed when to take the aforesaid Oath shall at the time therein prescribed take the same and the rest within six months next after the end of this present Session of Parliament And be it further Enacted by Authority of this present Parliament Stat. Sect. 4. Who may tender the said Oath and to whom That it shall and may be lawful to and for any one of the Privy Council of your Highness or of your Heirs and Successors and to and for every Bishop within his Diocess to require any Baron or Baroness of the age of Eightéen years or above to take the said Oath and to and for any two Iustices of Peace within any County City or Town Corporate whereof one to be of the Quorum to require any person or persons of the age of Eightéen years or above under the Degrée of a Baron or Baroness to take the said Oath And if any person or persons of or above the said age and degrée now stand or hereafter any time shall stand and be Presented Indicted or Convicted for not coming to Church or not receiving the Holy Communion or Sacrament of the Lords Supper according to the Laws and Statutes of this Realm before the Ordinary or other having lawful power to take such Presentment or Indictment Then thrée of the Privy Council of your Highness your Heirs and Successors whereof the Lord Chancellor Lord Treasurer Lord Privy Seal or Principal Secretary to be one upon knowledge thereof shall require such person or persons to take the said Oath And if any other person or persons whatsoever of and above the said age and under the said degrée now stand or at any time hereafter shall stand and be Presented Indicted or Convicted for not coming to Church or receiving the Holy Communion or Sacrament of the Lords Supper according to the Laws and Statutes of this Realm before the Ordinary or any other having lawful power to take such Presentment or Indictment Or if the Minister Petty Constable and Church-wardens or any two of them shall at any time hereafter complain to any Iustice of Peace near adjoyning to the place where any person complained of shall dwell and the said Iustice shall find cause of suspition That then any one Iustice of Peace within whose Commission or Power such person or persons shall at any time hereafter be or to whom complaint shall be made as aforesaid shall upon notice thereof require such person or persons to take the said Oath For any two Iustices of Peace within any County City or Town Corporate c. The two Justices of Peace may require this Oath of any person that shall happen to be within their Jurisdiction although his habitation be in another County or Liberty For the Oath of Allegiance sequitur personam non locum This Oath sequitur personam non locum Bulstrode 2. 155. The King against Griffith al' To require any person or persons This is an enlargement of the power given to two Justices of Peace Power of Justices of Peace enlarged by 3 Jac. cap. 4. For thereby they could have required the Oath but only in some particular Cases vide that Statute Sect. 10. But by this Statute they may require it of any person whatsoever of competent age and under the degree of a Baron or Baroness Warrant to bring the party The Justices of Peace in this Case or the Justice of Peace in the following Case may make his or their special Warrant to the Constable to bring the party before the said Justice or Justices to take the Oath For the Statute by giving them power to require the Oath doth implicitely authorize them to make such a Warrant Quando lex aliquid alicui concedit conceditur id sine quo res ipsa esse non potest And it is against the Office of the Justices of Peace and the Authority hereby given them to go and seek the party Co. 12. 130. But the Constable cannot by virtue of such Warrant break the House Breaking the House where the party is For he is no Offender before he refuse the Oath or commit some Contempt to the King Ibid. And if any person or persons of or above the said age and degreée That is of the said age and above the said Degree of a Baron Persons above the degree of a Baron or Baroness For so the words must be taken viz. conjunctively and not of such who are of the degree of a Baron or Baroness and no more For the precedent words appointed that the Oath may be tendred to such by any Privy Counsellor or the Bishop of the Diocess in all cases although they were never Convicted Indicted or Presented But to such Noblemen or Noblewomen as are above that degree it cannot be tendred by virtue of this Act unless they have been before Convicted Indicted or Presented for not coming to Church or not receiving the Sacrament And in those Cases no less then three Privy Counsellors Quorum unus c. can tender it Co. 12. 130 131. And if any other person or persons whatsoever c. under the said Degreé A Baroness or any Woman above that Degree Noblewoman by Marriage who is not Noble by birth but only by Marriage becomes a Widow and takes a second Husband under the Degree of Nobility and is Convicted Indicted or Presented of Recusancy or complained of by the Minister c. to a Justice of Peace who finds cause of suspition The Justice of Peace may require her to take this Oath although she were once Noble For by her second Marriage she hath lost her Nobility and name of Dignity together with the priviledges of her Nobility Quando mulier Nobilis nupserit ignobili desinit esse Nobilis which is to be understood of Nobility acquired by Marriage For that which was gotten by
suprema Ecclesiastica qua fungitur for so are the words in the Charter there Plowden 497 498 500. Vide Co. 5. 10. Cawdries Case Co. 11. 10 11. Pridle and Nappers Case And where the King is Patron an Appropriation may be made by him alone Addition to Popham 145. And as he is supream Head and supream Ordinary a Resignation Resignation made to him of a Deanry is as good as if it were made to the Bishop Dyer 12 13 Eliz. 293. Pollard and Walronds Case Plowden 498. Palmer 493. Hayward and Fulchers Case And that your Highness your Heirs and Successors Stat. Sect. 6. The Queen may assign Commissioners to exercise Ecclesiastical Jurisdiction Kings or Queens of this Realm shall have full Power and Authority by vertue of this Act by Letters Patents under the Great Seal of England to assign name and authorize when and as often as your Highness your Heirs or Successors shall think meet and convenient And for such and so long time as shall please your Highness your Heirs or Successors such person or persons being natural born Subjects to your Highness your Heirs or Successors as your Majesty your Heirs or Successors shall think meet to exercise use occupy and execute under your Highness your Heirs and Successors all manner of Iurisdictions Priviledges and Preheminencies in any wise touching or concerning any Spiritual or Ecclesiastical Iurisdiction within these your Realms of England and Ireland or any other your Highnesses Dominions and Countries And to visit reform redress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Iurisdiction can or may lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God the increase of Virtue and the conservation of the Peace and Vnity of this Realm And that such person or persons so to be named assigned authorized and appointed by your Highness your Heirs or Successors after the said Letters Patents to him or them made and delivered as is aforesaid shall have full Power and Authority by virtue of this Act and of the said Letters Patents under your Highness your Heirs or Successors to exercise use and execute all the premisses according to the tenor and effect of the said Letters Patents Any matter or cause to the contrary in any wise notwithstanding High Commission Court The Jurisdiction and Authority here by given to the late Court commonly called the High Commission Court are now taken away by Act of Parliament but the Power here given the Queen to constitute such Commissioners was no more than she had before by ancient Prerogative and the Laws of England For thereby she might have made such an Ecclesiastical Commission if this Act of 1 Eliz. had never been made Co. 5.8 9. Cawdries Case Cro. Trin. 2. Jac. 37. Stat. Who are compellable to take the Oath Ecclesiastical Persons and Officers Judge Justice Mayor Temporal Officer He that hath the Queens Fee And for the better observation and maintenance of this Act may it please your Highness That it may be further enacted by the Authority aforesaid That all and every Archbishop Bishop and all and every other Ecclesiastical person and other Ecclesiastical Officer and Minister of what Estate Dignity Preheminence or Degree soever he or they be or shall be and all and every temporal Iudge Iustice Mayor and other Lay or Temporal Officer and Minister and every other person having your Highnesses Fees or Wages within this Realm or any your Highnesses Dominions shall make take and receive a corporal Oath upon the Evangelist before such person or persons as shall please your Highness your Heirs or Successors under the Great Seal of England to assign and name to accept and to take the same according to the tenor and effect hereafter following that is to say I A. B. do utterly testifie and declare in my Conscience The Oath for the Queens Supremacy That the Queens Highness is the only Supream Governour of this Realm and of all other Her Highness Dominions and Countries as well in all Spiritual or Ecclesiastical Things or Causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm And therefore I do utterly renounce and forsake all Forreign Jurisdictions Powers Superiorities and Authorities and do promise that from henceforth I shall bear Faith and true Allegiance to the Queens Highness her Heirs and lawful Successors and to my Power shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the Queens Highness her Heirs and Successors or united and annexed to the Imperial Crown of this Realm So help me God and by the Contents of this Book And that it may also be Enacted The penalty for refusing the Oath That if any such Archbishop Bishop or other Ecclesiastical Officer or Minister or any of the said Temporal Iudges Iusticiaries or other Lay-Officer or Minister shall peremptorily or obstinately refuse to take or receive the said Oath That then he so refusing shall forfeit and lose only during his life all and every Ecclesiastical and Spiritual Promotion Benefice and Office and every Temporal and Lay-Promotion and Office which he hath solely at the time of such refusal made And that the whole Title Interest and Incumdency in every such Promotion Benefice and other Office as against such person only so refusing during his life shall clearly cease and be void as though the party so refusing were dead And that also all and every such person and persons so refusing to take the said Oath shall immediately after such refusal be from thenceforth during his life disabled to retain or exercise any Office or other Promotion which he at the time of such refusal hath joyntly or in Common with any other person or persons And that all and every person and persons that at any time hereafter shall be preferred promoted or collated to any Archbishoprick or Bishoprick or to any other Spiritual or Ecclesiastical Benefice Promotion Dignity or Office or Ministry or that shall be by your Highness your Heirs or Successors preferred or promoted to any Temporal or Lay-Office Ministry or Service within this Realm or in any your Highness Dominions before he or they shall take upon him or them to receive use exercise supply or occupy any such Archbishoprick Bishoprick Promotion Dignity Office Ministry or Service shall likewise make take and receive the said Corporal Oath before mentioned upon the Evangelist before such persons as have or shall have Authority to admit any such person to any such Office Ministry or Service or else before such person or persons as by your Highness your Heirs or Successors by Commission under the Great Seal of England shall be named assigned or appointed to minister the
Contents thereof or secretly deliver out such Books to others he knowing the Contents thereof unless in this last Case he be a Trader in them and deliver them out upon that Account without any act or attribution by conference or allowance he is an Offender within this Act by the words Hold and stand with to maintain c. and so is the receiver likewise if he afterwards Reads and Confers upon any such Book with any other person and in his Conference by any Words or Speeches allows the Book to be good or conveys it secretly to his Friend to the intent he should Read it and be perswaded to be of that Opinion or if a man hear of the Contents of such Book by the report of others and doth by any overt Speech commend or affirm it to be good In all these Cases the Person so doing especially he that reads it and then allows of it is an Offender within this Act and shall for the first Offence incur a Praemunire and for the second be Guilty of high Treason So likewise if any Book to that effect be made and Written within the Realm and sent over Seas as if it were made out of the Realm and be afterwards Bought Read or Conference be had thereupon ut supra such Offences are within the danger of this Law Dyer 11 El. 281. 282. vide Co. l. 6. Praefat ' Vpon purpose and to the intent The intent material A. was Indicted upon this Statute and that of 13 Eliz. cap. 2. of a Praemunire for aiding one B. knowing him to be a principal maintainer of the Authority and Jurisdiction of the Bishop and See of Rome contra formam Statut ' praedict ' and the Indictment was certified into the Kings Bench And it was held by the greater part of the Justices that the Indictment was insufficient for want of those words Vpon purpose and to the intent to set forth and extol the Authority c. And contra formam Statut ' will not supply that defect Trin. 20 Eliz. Dyer 363. Note in the Report of this Case the Statute of 1 Eliz. is mistaken for this of 5 Eliz. there being no mention of the intent in that of Primo Stat. 1 Eliz. 1. The intent is a hidden thing and lies in the Heart and therefore there must be some overt Act or Speech which declares the intent for the intent it self is not traversable What traversable but that by which it is made manifest as was adjudged in Boothes Case Co. 5. 77. And it is also Enacted by the Authority aforesaid Stat. That as well Iustices of Assize in their Circuits as Iustices of Peace within Sect. 3 the limits of their Commission and Authorities What Justices may inquire of and certifie the Offences aforesaid or two of every such Iustices of Peace at the least whereof one to be of the Quorum shall have full Power and Authority by vertue of this Act in their Quarter or open Sessions to inquire of all Offences Contempts and Transgressions perpetrated committed or done contrary to the true meaning of the Premises in like manner and form as they may of other Offences against the Quéens Peace and shall certifie every Presentment before them or any of them had or made concerning the same or any part thereof before the Queén her Heirs and Successors in her or their Court commonly called the Kings Bench within forty days next after any such Presentment had or made if the Term be then open and if not at the first day of the full Term next following the said forty days upon pain that every of the Iustices of Assize or Iustices of the Peace The Penalty for default of Certificate of the said Offences before whom such Presentment shall be made making default of such Certificate contrary to this Statute to lose and forfeit for every such default One hundred pounds to the Quéens Highness her Heirs and Successors And it is Enacted by the Authority aforesaid The Justices of the Kings Bench may hear and determine the Offences aforesaid That the Iustices of the Kings Bench as well upon every such Certificate as by enquiry before themselves within the limits of their Authorities shall have full Power and Authority to hear order and determine every such Offence done or committed contrary to the true meaning of this present Act according to the Laws of this Realm in such like manner and form to all intents and purposes as if the Person or Persons against whom any Presentment shall be had upon this Estatute had beén Presented upon any matter of offence expressed in the said Estatute made in the said Sixteenth year of King Richard the Second All Offences c. contrary to the true meaning of the Premises That is the Offences in holding or standing with to extol c. the Jurisdiction of the See or Bishop of Rome or attributing such Jurisdiction c. or Procuring Counselling c. which is here for the first Offence made a Praemunire For these are the only Premises in the Act and this Clause extends not to the Oath of Supremacy or any Offence in refusing of it much less to all Offences against this Act as 't is mistaken in the late Additions to Dalton cap. 140. tit High Treason Sect. 11. Nor doth it seem to be the intent of the Statute to give the Justices of Peace any Power to inquire of any Offence made High Treason thereby The Power of Justices of Peace herein For the Power here given to the Justices of Peace is only to inquire of Offences contrary to the true meaning of the Premises and the Premises extend only to those Offences made a Praemunire And this clearly appears by the subsequent words viz. That the Presentment thereof shall be certified into the Kings Bench who shall hear and determine every such Offence as if the Offender had been Presented upon any matter in the Statute of 16 R. 2. Now that cannot be intended of High Treason And of Justices of Assize The like may be said of Justices of Assize for as they are meerly Justices of Assize they cannot by force of this Act inquire of either the first or second Offence in refusing the Oath of Supremacy nor of the second Offence in extolling the Bishop of Romes Authority only for the first Offence of this last kind they may inquire and take Indictments thereof and certifie them into the Kings Bench but then by their Commission of Oyer and Terminer they may not only inquire of the first or second Offence in extolling the Bishop of Romes Authority or refusing the Oath of Supremacy but may hear and determine them And accordingly were Slade and Bodye Indicted Arraigned and Tried in the County of Southampton of a Praemunire for the first Offence in extolling the Bishop of Romes Authority upon which they were Attainted and afterwards of Treason for the second Offence before Sir Roger Manwood and Justice
one year and from thence forth till he have paid the said sum of Two hundred Marks And that every person which shall willingly hear Mass shall forfeit the sum of One hundred Marks and suffer Imprisonment for a year One hundred Marks And not Two hundred pounds Forfeiture as 't is mistaken in the late Additions to Dalton cap. 81. tit Recusants Sect. 59. Be it also further Enacted by the Authority aforesaid Stat. Sect. 5. The penalty for not coming to the Church by the space of a Month. That every person above the age of sixteen years which shall not repair to some Church Chappel or usual place of Common Prayer but forbear the same contrary to the tenor of a Statute made in the first year of her Majesties Reign for uniformity of Common Prayer and being thereof lawfully convicted shall forfeit to the Quéens Majesty for every month after the end of this Session of Parliament which he or she shall so forbear twenty pounds of lawful English money and that over and besides the said forfeitures every person so forbearing by the space of twelve months as aforesaid shall for his or her obstinacy after Certificate thereof in writing made into the Court commonly called the Kings-Bench by the Ordinary of the Diocess a Iustice of Assize and Goal-delivery or a Iustice of Peace of the County where such offender shall dwell or be be bound with two sufficient sureties in the sum of Two hundred pounds at the least to the good behaviour and so to continue bound until such time as the persons so bound do conform themselves and come to the Church according to the true meaning of the said Statute made in the said first year of the Queéns Majesties Reign Existens aetatis c. shall refer to the time of absence Above the age of sixteen years Talbot was Indicted upon this Statute Quod existens aetatis 16 annorum amplius non accessit ad Ecclesiam c. The question was whether the Existens aetatis 16 annorum should refer to the time of his Indictment or to the time of his absence And the Judges conceived that the Indictment was well enough and pursuant to the Statute And that Existens should in this Case refer to the time of his absence Moore 606. C. 838. Recusancy consists in omission Not repair c. but forbear This offence Consists not in committing but in omitting and is but a nonfeasance and therefore cannot be said to be in any certain place And for this reason in a Popular Action brought by the Informer qui tam c. there needs no place be alledged in the Declaration Anderson 1. 139. C. 190. Cuffe versus Vachel nor is Recusancy within that Branch of the Statute of 31 Eliz. cap. 5. Stat. 31 El. 5. which saith That the offence shall be laid in the proper County where it was done or committed For to speak properly it was not committed any where Hobart 251. Grimstone versus Molineux Vide infra Sect. 9. Conviction in the same Suit sufficient Being thereof lawfully convicted By this is not meant that the party must be convicted in some former Suit But a conviction upon the same Indictment or Information which is brought against him for the recovery of the 20 l. per month is a sufficient conviction within the meaning of this Statute And so are all penal Statutes which have in them those words being thereof lawfully convicted to be understood that is of a conviction in the same Suit whereupon the penalty is to be recovered For the meaning only is that the Offender shall forfeit nothing before conviction which is no more then the Law implies And therefore in truth these words are but superfluous and might have been as well omitted Co. 11. 59. Rolls 1. 90. C. 41. Dr. Fosters Case Rolls 1. 234. C. 6. Bulstrode 3. 87. The King against Law Nor is Conviction here intended only of a Convicton by Verdict What Conviction is here meant And therefore if the Offender be convicted upon his Confession of the fact and Judgment thereupon be had and consequently if Judgment be had against him upon a Demurrer which is a Confession of the matter of fact or if Judgment be given against him on nihil dicit for any other Cause any of these are sufficient Convictions whereupon to recover this Penalty For Convicted is here to be taken for Attainted as 't is in many other Cases For until Judgment he shall forfeit nothing And although he that is Convicted is not therefore Attainted yet every one who is Attainted or Adjudged is Convicted And of such a Conviction is this Statute to be understood Dr. Fosters Case Rolles 1. 89. 90. C. 41. Co. 11. 60. where several Cases are cited which prove that Convicted is oftentimes put for Attainted Shall forfeit to the Queens Majesty Shall forfeit i. e. to the King These words to the Queens Majesty are but surplusage and import no more than the Law would have given the Queen without them for where a Statute gives a forfeiture and limits it not to any particular person the King shall have it by Construction of Law as was agreed in the Case of Agard and Tandish Anderson 2. 128. C. 73. and so should he have this whole 20 l. per month if the Statute had staid here and had not afterwards made another express appointment Vid. Sect. 9. For every month Month what It seems that the month here mentioned shall be accounted secundum numerum singulorum dierum allowing but 28 days to a month For so are all Statutes to be understood which speak of the month unless W. 2. cap. 5. W. 2. 5. 2 3 E. 6. 13 for the account of a Lapse and 2 3 E. 6. of proving a suggestion Co. 1. Inst 135. Cro. Trin 5 Jac. 166. 167. Bishop of Peterburgh versus Catesby Yelverton 100. Catesby versus Baker Hobart 179. Copley versus Collins And of this Opinion the Court of Kings-Bench seemed to be upon Construction of the Statute of Liveries in the Case of Donner and Smith Trin. 43 Eliz. Cro. 835. The Recusant may forfeit for 13 months in a year so that by this account the Recusant shall forfeit thirteen score pounds in the whole year In an Information brought by Parker Qui tam Conformity in part not available c. against Sir John Curson and his Wife for the Recusancy of the Wife for eleven months and non culp pleaded It was proved at the Trial B. R. Pasch 17. Jac. that she conformed and came to Church for part of the time in the Information yet forasmuch as she was a Recusant both before and after it was said by the Court that her Conformity for some part of the time should not excuse her and she was found guilty for the whole time Cro. Jac. 529. The Informer demands less then is due The Informer shewed that the
Recusant was absent from Church from the 10 of September 15 Jac. unto the 9 of Sept. 16. Jac. and demanded Two hundred and twenty pounds for eleven monthes upon non culp pleaded it was found against the Defendant And it was resolved that although the Informer had demanded less then by his own shewing was due for the time mentioned in the Information was thirteen months compleat except one day yet the Information was well enough For the Recovery shall be intended to be for the eleven months when the Recusant was first absent and the addition of more time is not material Cro. Pasch 17 Jac. 529. 530. Rolles 2. 90. Parker versus Sir John Curson and his Wife And this is not like the Case of Bawderock versus Mackaller where the Informer Qui tam c. upon the Statute of Symony demanded less than the penalty and the Court seemed to be of Opinion that although it was good enough for the King notwithstanding that misprision yet it was not so for the Informer and compared it to the Case of Agard and Candish where an Information was brought upon the Statute of Liveries after the year and it was Adjudged to be good for the King but not for the Informer Cro. Mich. 9. Car. 331. For upon the Statute of Symony which gives one intire penalty for the offence if less be demanded the Statute is not pursued And there is a clear variance between that and the Information But in the Case of Recusancy when he demands Two hundred pound for eleven moneths the Statute is pursued and though it appears by the Information that the Recusant was absent for a longer time yet the Informer is at liberty whether he will demand the penalty for his absence during that supernumerary time The Informer demands for 13 months and the Jury find for 12. If it be shewed in the Information that the Recusant was absent from Church from a day certain to a day certain which in all makes 13 months and the penalty is demanded for that time and the Jury find the party guilty for 12 months It hath been held by some that the Verdict shall be good for 12 months But whether for the first 12 months is a question For in Sir J. Cursons Case supra the demand was but for 11 months And when the Jury finds the Defendant guilty it shall be intended to be for the 11 months for which the penalty is demanded and that shall be accounted from the 10 of September which was the first day of absence alledged in the Information and the rest of the time to the ninth of September following after the first eleven months is to be accounted as Surplusage But in this Case where the Jury abridges the time for which the penalty is demanded it may be questioned whether the Verdict shall be intended to be for the first twelve months of the thirteen And the Judges of the Kings Bench to salve a question of the like nature in an Information brought by Donner against Smith upon the Statute of Liveries seemed to be of Opinion That it is not material which were the twelve months wherein the party offended Cro. Trin. 43 Eliz. 835. But if that Opinion be Law it must follow that the party can never be punished for the thirteenth month but that must be remitted to him because it 's left uncertain which of the thirteen shall be accounted the month not found by the Jury And it rather seems for this reason That the Verdict is void for the uncertainty which twelve months of the thirteen the party offended unless it shall be intended of the first twelve Mr. Shephard in his Sure Guide cap. 6. Sect. 5. raises this Question viz. Stat. 1 Eliz. 2. This Statute having reference to that of 1 Eliz. cap. 2. which saith every one shall come to Church every Sunday and Holy-day whether he that is not at Church every Holy-day doth not rigore juris forfeit 20 l. a month by force of this Statute of 23. But this Question seems altogether needless The forbearance from Church must be for a whole month or no forfeiture of 20 l. For 't is clear by the express words here that it must be a forbearance from Church contrary to 1 Eliz. for a whole month together that makes the party liable to the forfeiture of 20 l. and if he comes to Church on any Sunday or Holy-day within the month he is freed from the penalty of 20 l. although not from the twelve pence by 1 Eliz. for the days of his absence if he comes not every Sunday and Holy-day both Be bound Some have made a question Recusants where to be bound to the good behaviour and among them Mr. Shephard in his Sure Guide cap. 6. Sect. 5. by whom or in what Court the Recusant shall be bound to the good behaviour by force of this Statute For that the Court is not expresly mentioned And Wingate in his Abridgment of this Clause tit Crown numb 44. hath stumbled upon a Conceit That after Certificate made into the Kings Bench a Justice of Assize Goal delivery or Peace shall bind the party to the good behaviour and misrecites the Statute accordingly But it seems That the intention of the Law-makers was that he should be bound in the Kings Bench and of that Opinion is Dalton V. cap. 75. title Good Behaviour For where any proceedings are appointed to be upon or after a Certificate sent to any Court there by common Intendment the proceedings are to be in that Court to whom the Certificate is sent if no other Court be named And it cannot be presumed by any reasonable construction of this Act That the Certificate into the Kings Bench is to any other end than for the Justices there to proceed in such manner as the Act directs to be done after such Certificate as no question they may in this Case as well as upon Certificate of a Presentment or of refusal of the Oath of Supremacy against the Statute of 5 Eliz. cap. 1. Stat. 5 Eliz. 1. quod vide supra And 't is a rule in construction of Statutes that where the intention plainly appears the Law ought to be advanced according to its end though the words be short and imperfect especially Laws made for Religion as is held in Colt and Glovers Case Hobart 157. and Magdalen Colledge Case Co. 11. Vide Bulstrode 2. 155. the Case of Griffith and others Popish Recusants convict not sufficient sureties Sufficient sureties Popish Recusants convicted are not to be reputed sufficient sureties and therefore were refused by the Court of Kings Bench in the Case of Griffith and other Recusants who were brought thither to be bound to their good Behaviour Bulstrode 2. 155. And be it further Enacted That if any person or persons body Politick or Corporate Stat. Sect. 6. The forfeiture for keeping of a Schoolmaster not repairing to Church or allowed by the Ordinary after
Statute to proceed against Recusants and taken from them by 29 Eliz. nor doth that following Clause in 3 Jac. touching Conviction by Proclamation impeach this or restrain the Justices of Peace to proceed to Conviction upon Proclamation only and default of appearance no more than the Justices of Assize or Gaol delivery are restrained thereby or by 29 Eliz. which gives them likewise Authority to proceed by Proclamation For both these Clauses of 3 Jac. are in the Affirmative viz. First That the Justices of Peace shall have power to hear and determine the Offence of not coming to Church according to former Laws in such manner as Justices of Assize and Gaol delivery might do And those Justices might hear and determine that Offence according to this Statute of 23 Eliz. 23 Eliz. 1. And then comes the next Clause of 3 Jac. That the Justices of Peace shall have power to convict by Proclamation which is purely Affirmative also and therefore abrogates no part of the power given them by the former Clause And this agrees with what Sir Edward Coke saith lib. 12. fol. 13. That if a man be Indicted for Recusancy at the Assizes or Sessions of the Peace the Court may waive the proceedings by Proclamation upon the Statute of 3 Jac. 4. and may still if they please proceed against the party by Process upon this Statute of 23 Eliz. Upon this Stature In which Case the Process must be by Venire facias capias c. as in Indictments of Trespass And if saith he the party be fugitive in another County the Indictment may be removed into the Kings Bench and then Process may be there made out against him into any County of England In their open Quarter Sessions of Peace What is meant by Quarter Sessions By Quarter Sessions is intended here only the Sessions of the Peace held at four times of the year and not any other although it be a general Sessions And therefore the Justices of Peace in London who hold a Sessions every month cannot take Indictments upon this Statute at any of them unless it be the Quarter Sessions For that their Authority is given them only at a certain time as was resolved in the like Case upon the Statute of 5 Eliz. cap. 9. of Perjury Mich. 17 Jac. B.R. Palmer 44. Taylors Case Stat. 5 Eliz 9. 3 Jac. 4. And the Statute of 3 Jac. c. 4. which gives Justices of Peace Power to take Indictments of Recusancy at their General or Quarter Sessions for so the word said there imports having reference to the General or Quarter Sessions mentioned before about Presentments yet doth not enlarge the Power of the Justices of Peace in this particular nor enable them to take such Indictments at any Sessions but their four Quarter Sessions For although it be put there dis-junctively General or Quarter yet the latter word is but Explicative of the former and shews what General Sessions are meant as appears by the said Statute of 3 Jac. 4. and that other of 7 Jac. cap. 6. touching the Oath of Allegiance 7 Jac. 6. For in 3 Jac. 4. 't is said That if the party refuse the Oath he shall be committed to Goal until the next Assizes General Quarter Sessions and General or Quarter Sessions or General or Quarter Sessions And if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or by the Justices of Peace in their said general Quarter Sessions he shall incur a Praemunire And in 7 Jac. 6. That the party refusing shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or Goal delivery or the Justices of Peace or the greater part of them in their general or Quarter Sessions he shall incur a Praemunire which clearly shews that the same thing is intended by general Quarter Sessions and General or Quarter Sessions And that all general Sessions which are not Quarter Sessions are excluded out of the meaning of those Statutes Vide Stat. 3 Jac. cap. 4. Sect. 11. 7 Jac. cap. 6. Sect. 5. Indictments only here intended To enquire hear and determine The Justices named in this Branch of the Statute are hereby impowered to proceed by Indictment only and no other way For they are to hear and determine after Inquiry And the word enquire implies an Indictment and is always so to be expounded And so are the other words hear and determine where other proceedings are not specially named as here they are not For the Action of Debt Information c. in any Court of Record is given to the Informer Qui tam c. afterwards in a distinct Branch by it self without any reference to this so that by this Statute and before that of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 which gave the Queen an Action of Debt c. The Queen had no other remedy to recover the entire forfeitures given hereby but by Indictment only Co. 11. 60. Rolls 1. 93. C. 41. Dr. Fosters Case Vide Jones 193. For that and the Suit by the Common Informer are the only ways appointed by this Statute and the subsequent Clause of Submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tried shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hobart 205. Pie versus Lovell Offence and Penalty by two several Statutes Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reversed For the Offence is made by the Statute of 1 Eliz. cap. 2. Stat. 1 Eliz. 2 and the penalty is given by this Statute and therefore it should have been Contra formam Statutorum Owen 135. Wests Case Feme Covert when chargeable If a Feme Covert be Indicted at the Kings Suit for an offence within this Act she may be charged with the penalty after her Husbands death but the Husband is not chargeable nor shall pay the penalty for that he is no party to the Judgment And this was one of the causes of making the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 By which Statute the King may have an Action of debt and recover the forfeiture against the Husband Rolles 1. 93. 94. Roy versus Foster Savile 25 C. 59. Except Treason and misprision of Treason This exception of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal delivery as Wingate hath mistaken in his Abridgment of this Clause tit Crown numb 46. Where the Justices of Peace cannot meddle but only to the Justices of Peace who are not to meddle in those two Cases
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
it directly by express words yet they both conceived they were within the intent of the Act by reason as Manwood said of these words all other the Lands c. liable to such seizure or to the penalties aforesaid But it was granted on all hands that by these general words here the King hath not any estate given him in the Recusants Copyhold Lands but only a right or title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his Customs and Services as he would be if the King should seize the Land it self And a difference was there taken between an Act of Parliament which transfers an Estate to the King and an Act of Parliament which gives him only the profits of the Estate For in the first Case the Rule in Heydons Case that Copyhold Lands shall not pass by general words shall stand good for the prejudice that may otherwise accrew to the Lord But where the Lords Seigniory Customs and Services are not to be Impeached or taken away as here they will not by the Kings bare receiving of the profits there it was said Copyholds shall be included within the general words of Lands Tenements and Hereditaments Leonard 1. 97. C. 126. And yet Vide Owen 37. where this Case is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within this Statute nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are liable to such seizure And for the more spéedy conviction of such Offender Stat. Sect. 5. The Indictment sufficient though it be not mentioned that the party is within the Realm in not repairing to Divine Service but forbearing the same contrary to the said Estatute Be it Enacted by the Authority aforesaid That the Indictment of every such Offender mentioning the not coming of such Offender to the Church of the Parish where such person at any time before such Indictment was or did keép House or Residence nor to any other Church Chappel or usual place of Common Prayer shall be sufficient in the Law And that it shall not be neédful to mention in any such Indictment that the party Offender was or is inhabiting within this Realm of England or any other the Queens Majestis Dominions But if it shall happen any such Offender then not to be within this Realm or other her Majesties Dominions that in such case the party shall be relieved by Plea to be put in in that behalf and not otherwise And that upon the Indictment of such Offender Stat. Sect. 6. A Proclamation that the party Indicted shall render his Body to the Sheriff a Proclamation shall be made at the same Assizes or Goal delivery in which the Indictment shall be taken if the same be taken at any Assize or Goal delivery by which it shall be commanded that the body of such Offender shall de rendred to the Sheriff of the same County before the said next Assizes or general Goal delivery to be holden in the same County And if at the said next Assizes or Goal delivery the same Offender so proclaimed shall not make appearance of Record that then upon such default Recorded the same shall be as sufficient a conviction in Law of the said Offence whereof the party so standeth Indicted as is aforesaid as if upon the same Indictment a Trial by Verdict thereupon had proceeded and been recorded If the same be taken at any Assize or Goal delivery For if the Indictment had been taken before Justices of Peace Proclamation by whom to be made no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal delivery as was resolved in the Case of Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment into the Kings-Bench And there process might have been made out against the Recusant and he convicted For the Justices of Peace could do no more then Indict all other proceedings being taken away from them by this Statute Co. 11. 63. Dr. Fosters Case Rolles 1. 94. C. 41. the same Case But now by the Statute of 3 Jac. cap. 4. the Law is altered in this point Stat. 3 Jac. 4. and the Justices of Peace upon Indictments taken before them may proceed to proclaim and convict the Recusant as well as Justices of Assize and Goal delivery Shall be rendred to the Sheriff Vide Stat. 3 Jac. cap. 4. Sect. 5. Before the said next Assizes or general Gaol delivery Vide Stat. 3 Jac. cap. 4. Sect. 5. Appearance Make appearance of Record What appearance will serve in this Case Vide Stat. 3 Jac. cap. 4. Sect. 5. Vpon such default That is upon his default of appearance of Record at the next Assizes or Goal delivery For if he makes such appearance Default saved that shall save his default of not rendring his Body to the Sheriff and the not rendring himself to the Sheriff shall be no conviction as Wingate would make it to be Tit. Crowne numb 66. As sufficient a Conviction in Law That is as if he were convicted by Verdict Conviction upon Proclamation no Judgment but not as sufficient as if a Judgment were had against the Recusant For although by force of this and other Statutes the conviction upon Proclamation and default of appearance make the Recusant liable to divers penalties and incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment And therefore it was resolved 37 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant convicted upon Proclamation was within the pardon and the forfeitures due upon such conviction were thereby pardoned For the debt was not due to the Queen by Judgment but upon conviction only But otherwise it had been if he had been convicted according to the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 without Proclamation and Judgment had been given thereupon Vide Co. 11. 65. Dr. Fosters Case Stat. Sect. 7. Provided always That whensoever any such Offender as is aforesaid shall make submission and become conformable according to the form limited by the same Estatute made in the thrée and twentieth year of the Quéens Majesties Reign The Offender submitting or dying no forfeiture shall ensue or be continued or shall fortune to die that then no forfeiture of twenty pounds for any month or seizure of the Lands of the same Offender from and after such Submission and Conformity or Death and full satisfaction of all
as aforesaid after notice thereof to him or them given by the Ordinary of the Diocess any Iustice of Assizes of the Circuit or any Iustice of Peace of the County or the Minister Curate or Churchwardens of the Parish where such person shall then be or by any of them shall forfeir to the Queéns Majesty for every person so relieved maintained retained or kept after such notice as aforesaid ten pounds for every month that he or they shall so relieve maintain retain or kéep any such person so offending What sort of Recusants may be reliev'd or kept Rep. 3 Jac. 4. Provided nevertheless That this Act shall not in any wise extend to punish or impeach any person or persons for relieving maintaining or kéeping his or their Wife Father Mother Child or Children Wards Brother or Sister or his Wives Father or Mother not having any certain place of habitation of their own or the Husbands or Wives of any of them or for relieving maintaining or keéping any such person as shall be committed by Authority to the custody of any by whom they shall be so relieved maintained or kept Any thing in this Act contained to the contrary notwithstanding Repeal Stat. 3 Jac. 4. This Branch is repealed by the Statute of 3 Jac. cap. 4. Quod vide infra Sect. 24. Stat. Sect. 8. The Queens Remedy to recover forfeitures c. And for the more spéedy levying and recovering for and by the Quéens Majesty of all and singular the pains duties forfeitures and payments which at any time hereafter shall accrue grow or be payable by virtue of this Act or of the Statute made in the threé and twentieth year of her Majesties Reign concerning Recusants Be it Enacted by the Authority aforesaid That all and every the said pains duties forfeitures and payments shall and may be recovered and levied to her Majesties use by Action of Debt Bill Plaint Information or otherwise in any of the Courts commonly called the Kings Bench Common Pleas or Exchequer in such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other Debt due by any such person in any other Case should or may be recovered or levied wherein no essoign protection or wager of Law shall be admitted or allowed A new remedy given to the Queen Stat. 23 Eliz. 1 All and every the said pains duties forfeitures and payments These words are not to be understood simpliciter or exclusive as if the forfeitures upon the Statute of 23 Eliz. cap. 1. could be recovered no other way then what is prescribed here But only they give the Queen a new remedy for the recovery of them which she had not before and take not away the Remedy given by 23 Eliz. upon Indictment 29 Eliz. 6. nor that by the Statute of 29 Eliz. cap. 6. upon Indictment and Proclamation nor the Informers popular Suit given him by 23. For all these three are affirmative Laws and do not abrogate one the other The former Laws not abrogated but may well stand together And the meaning of them taken together is That if the Informer recover the forfeiture upon that of 23. he shall have his part thereof But if the Offender were Indicted at the Queens Suit and Judgment had against him upon 23. or if he were convicted upon Proclamation and default upon 29. The Queen should have the whole penalty excluding the Informer for he shall not be punished again for the same offence at the Suit of the Informer But if the offender were neither Indicted nor Sued by the Informer Qui tam c. the Queen should have another Remedy to recover the intire forfeiture by Action of Debt c. upon this Statute and the Informer shall have no part thereof So that the Remedies given by these three Statutes are Cumulative and not Privative and there is no Repugnancy or disagreement between them but they have a dependance on each other The informer not aided here But as this Statute doth not abrogate any of the former Laws touching Recusancy nor takes away the Informers popular Suit so it adds nothing as to the Informer nor gives him any more speedy remedy for the recovery of the forfeiture but leaves him in the same condition as he was in before to take his remedy upon 23. Co. 11. 61 62. Rolles 1. 90 91 93. c. 41. Dr. Fosters Case Cro. Pasch 16 Jac. 481. Bridgman 121. 122. Parker vesus Webb To her Majesties use A more speedy remedy here given Stat. 23 Eliz. 1 Before this Statute the Queen had no other way to recover the intire penalty for Recusancy or any other offence within the Statute of 23 Eliz. cap. 1. but by Indictment only but by this Statute a more speedy remedy was given her by Action of Debt Bill Plaint or Information Vide the Cases before cited Shall and may be recovered The King by the Statute of 31 Eliz. cap. 5. 31 Eliz. 5. Within what time the King must sue is restrained in this Case to three years after the offence committed within which time he must pursue the remedy here given him for the recovery of the forfeiture but it seems that he is not restrained to two years for where the forfeiture is limited to the King and him that will sue there the Informer hath one year and the King the next two years if the Informer doth not sue within the first year of the three and the restraint in 31. of the King to 2 years next after the Offence committed where the forfeiture is limited to the King extends not to this Case For although the King is enabled by this Statute to sue for the intire forfeiture yet the intire forfeiture was not originally limited to the King only for the Informer may sue upon 23 Eliz. as well as the King may upon this Act. And where the Informer may sue it was not the meaning of 31 Eliz. to limit the King to two years after the offence committed but he may stay if he please till the Informers year is expired and then the Statute gives him two years afterwards to sue for the penalty Where the King is limited to a year and a day where not Much less is the King limited to sue upon this Statute within a year and a day and what is said in Dr. Fosters Case Co. 11. 65. viz. that for any forfeiture before the year and day neither the King nor the Informer hath any remedy for that that time is limited in certain by 23 Eliz. is a clear mistake of the meaning of that Statute of 23. touching the year and day for the limitation there of a year and a day extends only to the Kings Suits by Indictment and not to the popular Suit given by 23. much less to the Action of Debt c. given to the King by this Statute See more of this matter supra in the Statute of 23 Eliz.
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 the Parish That in every such Case every such Offender being thereunto warned or required by any two Iustices of the Peace or Coroner of the same County where such offender shall then be shall upon his or their corporal Oath Abjuration before any two Iustices of the Peace or Coroner of the same County abjure this Realm of England and all other the Queéns Majesties Dominions forever And thereupon shall depart out of this Realm at such Haven and Port and within such time as shall in that behalf be assigned and appointed by the said Iustices of Peace or Coroner before whom such abjuration shall be made unless the same Offenders be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such Cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for felony as is aforesaid Abjuration to be entred of Record and certified And that every Iustice of Peace and Coroner before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes or Goal delivery of the said County at the next Assizes or Goal delivery to be holden in the same County If any such person or persons being a Popish Recusant That is any Popish Recusant within the former Branches of the Statute and none but such What Popish Recusants are within this Branch and which not Dalton V. cap. 45. tit Recusants applies this Clause to Popish Recusants convicted as if it concerned them and them only and so both at once extends and restrains the Statute contrary to its true meaning For these words any such person or persons neither extend to all that are convicted nor are restrained to such only as are convicted For the Popish Recusant who hath a certain place of aboad within this Realm although he be convicted is not within this Statute unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no certain place of aboad within this Realm is within this Statute although he were never convicted so that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no certain place of aboad and he who having a certain place of aboad was convicted when a Popish Recusant and in England and no other are liable by this Act to Abjuration Of the clear yearly value Clear yearly value of Twenty marks above all Charges A Rent-charge of 40 l. per Annum is issuing out of Lands worth 100 l. per Annum a Popish Recusant liable to be confined by this Statute purchases for his Life or in Fee parcel of the Lands of the clear yearly value of Twenty marks over and above what his proportion of the said Rent-charge comes to This is an Estate of the clear yearly value of Twenty marks within the meaning of this Act and shall free him from abjuration For although in strictness of Law his Estate be not clearly so much above all charges For that 't is chargeable with an yearly Rent of Forty pounds yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yield Twenty marks per Annum clearly besides Or Goods and Chattels This Statute being in the disjunctive Lands or Goods an Estate partly of Lands Goods and Lands not to be valued together and partly of Goods will not satisfie the intent thereof And therefore if a Popish Recusant who offends against this Act hath fifteen Marks per Annum clearly in Lands and be worth Thirty pounds in goods although this taken together be in truth an Estate of more value then is here required yet it shall not free him from Abjuration For the Statute doth not warrant any valuation of the Lands and Goods together so as to supply the defect of the yearly value of the Lands by the Goods or the defect of the value of the Goods by the Lands and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute And this is not like the Case of Jurors upon the Statute of 2 H. 5. Stat. 2 H. 5. 3. cap. 3. where 't is said That the Iuror shall have Lands of the clear yearly value of Forty shillings if the Debt or Damage declared amount to Forty marks in which Case although it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages both amount to Forty marks it is sufficient and the Juror must have Forty shillings per Annum Co. 1. Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more then one intire thing viz. the value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law that no Cause declared to be of the value of Forty marks shall be tried by Jurors of a less Estate but in our Case the Lands and Goods are things of different nature one real the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless the Act had expresly appointed such a Valuation But yet if a Popish Recusant hath a Lease for years But leases for years and personal goods may and personal Goods and both do amount in value to above Forty pounds he shall be out of the danger of Abjuration For although the Lease is in the realty and the Goods are personal yet they shall in this Case be valued together For that by this Copulative and the Statute expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value Money secured upon a Mortgage Mortgage of Lands is within the meaning of these words Goods and Chattels And if the Popish Recusant hath above Forty pounds owing to him upon such Mortgage he cannot be required to abjure Within three months next after such person shall be apprehended or taken Wingate in abridging this Clause tit Crowne numb 80. clearly mistakes the meaning of it For he saith that a Popish Recusant whose estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of aboad which is a complicated Error For he quite leaves out him who is to repair to the place where he was born or his Father or Mother dwels He makes the party liable to such submission before he becomes an offender by not repairing or not presenting himself and giving in his true name or travelling above five miles He speaks nothing of his being
the Exchequer in the Case of Sir Edward Lenthal Cro. Hill 12 Jac. 365. Shall for every such offence lose and forfeit Thréescore pounds Receiving the Sacrament and neglecting it afterwards If a Popish Recusant once receive the Sacrament after his Conformity and afterwards neglect so to do within the time prescribed by this Act and is guilty of such neglect for two years together although he was never convicted for the first year yet an Information lies against him and he shall forfeit Threescore pounds for the second year For he is liable to pay so much for every offence that is for every year wherein he neglects to receive the Sacrament after he hath once received it The Informer may sue for any year and the Informer is at his liberty for which offence or year he will inform whether for the first second c. And the reason of this is because here are no steps or gradations to increase the penalty for the second or third offence but the penalty is equal and a like in this Case for every offence It is observable that the Popish Recusant who after his conformity receives the Sacrament and afterwards neglects so to do for the space of one or more years is in worse Condition then he who conforms and receives it not at all For in this last Case he shall forfeit but Twenty pounds for the first and Forty pounds for the second year But if he once receive the Sacrament and afterwards neglect it for the space of two years he shall forfeit for each of those years Threescore pounds To him that will sue for the same An Information upon this Branch of the Statute must be brought by an Informer Qui tam c. within a year after the offence or neglect Within what time he must sue or he can take no advantage thereof For such an Information is within the Statute of 31 Eliz. cap. 5. Stat. 31 Eliz. 5 Cro. Hill 12 Jac. 366. Vide Statute 23 Eliz. cap. 1. Sect. 9. Before whom a Common Informer cannot sue Or before Iustices of Assize c. Note that notwithstanding these words an Information on this Statute by an Informer Qui tam c. for not receiving the Sacrament cannot be brought before Justices of Assize or Goal delivery or Justices of Peace For no Common Informer can sue for the King and himself before any of those Justices but must sue in one of the Courts of Record at Westminster as was resolved Mich. 4. Car. 1. Jones 193. Vide Stat. 23. Eliz. cap. 1. Stat. 23 Eliz. 1 Sect. 9. Stat. Sect. 3. Presenting the monthly absence from Church of a Recusant And be it further Enacted by the Authority of this present Parliament That the Churchwardens and Constables of every Town Parish or Chappel for the time being or some one of them or if there be none such then the chief Constables of the Hundred where such Town Parish or Chappel is or shall be or one of them as well in places exempt as not exempt shall once in every year present the monthly absence from Church of all and all manner of Popish Recusants within such Towns and Parishes and shall present the names of every of the Children of the said Recusants being of the age of nine years and upwards abiding with their said Parents and as near as they can the age of every of the said Children A Recusants Children and Servants as also the names of the Servants of such Recusants at the general or Quarter Sessions of that Shire limit division or liberty Of all and all manner of Popish Recusants Whose monthly absence from Church must be presented and whose not As this Act is penned it seems that the Churchwardens and Constables are not bound thereby to present the monthly absence from Church of any of the Children or Servants of a Popish Recusant although such Children or Servants be Recusants unless they are Popish Recusants And that 't is sufficient to satisfie the Statute to present their names without taking any notice of their absence from Church But if they be Popish Recusants they fall within the general words of the Act and their monthly absence ought to be presented as well as that of their Parents or Masters Wingate in his Abridgment of this Statute tit Crown numb 100. hath clearly mistaken the meaning thereof in this particular for he tells us that the monthly absence of all the Children and Servants of a Popish Recusant ought to be presented At the general or Quarter Sessions General or Quarter Sessions Stat. 23 Eliz. 1 What is meant by those words vide Stat. 23 Eliz. cap. 1. Sect. 7. And be it further Enacted by the Authority aforesaid Stat. Sect. 4. The presentments recorded That all such presentments shall be accepted entred and recorded in the said Sessions by the Clerk of the Peace or Town-Clerk for the time being or his Deputy without any Fée to be had asked or taken for the same And in default of such presentment to be made the said Churchwardens Constables or High Constables respectively shall for every such default forfeit twenty shillings And in default of such accepting entring and recording without Feé as aforesaid the said Clerk of the Peace or Town-Clerk shall for every such Offence forfeit and lose forty shillings And that upon every Presentment of such monthly absence as aforesaid The reward of the Church-wardens and Constables whereupon such party so presented shall after happen to be Indicted and Convicted not being for the same absence before presented Then the said Churchwardens Constables or High Constables respectively so making such Presentments shall have a reward of forty shillings to be levied out of the Recusants Goods and Estate in such manner and form as by the more part of the said Iustices shall be by Warrant under their Hands and Seals then and there ordered and appointed Stat. Sâ—ct 5. What Justices shall hear and determin these Offences And be it further Enacted by the Authority aforesaid That the Iustices of Assize and Goal delivery at their Assizes and the said Iustices of Peace at their said Sessions shall have Power and Authority by virtue of this Act to enquire hear and determine of all Recusants and Offences as well for not receiving the Sacrament aforesaid according to the true meaning of this Law as for not repairing to Church according to the meaning of former Laws in such manner and form as the said Iustices of Assize and Goal delivery do or may now do by former Laws in the Case of Recusancy for not repairing to Church And also shall have power at their Assizes and Goal delivery and at the Sessions in which any Indictment against any person either for not repairing to Church according to former Laws or not receiving the said Sacrament according to this Law The effect of the Proclamation shall be taken to make Proclamation By
where the King discharges him of that payment by refusing it so that where the King refuses the twenty pounds per month the Recusants Goods cannot be seized but only two parts of his Lands The Law likewise is mistaken For if the King refuses the twenty pounds per month he may seize an Advowson as part of his two parts as hath been said so that an Advowson is within this Clause An Advowson is within this Clause and not without it And the Case of Standen and the University of Oxon is quite contrary to that Opinion in the late Additions to Dalton For Justice Jones held strongly that an Advowson was within this Clause And Hobart Chief Justice and Justice Winch declared themselves to be of the same mind and Justice Hutton denied not that an Advowson was within it only held that the force of it as to an Advowson in gross was taken away by the Statute of 3 Jac. cap. 5. Stat. 3 Jac. 5. University which gives the Presentation to the University But the three other Justices were against him and held That where the King had seized it as part of his two parts and the Incumbent died The King should present and not the University See of this matter more at large Stat. 3 Jac. car 5. Sect. 19. If the King seize by Inquisition two parts of a Mannor belonging to a Recusant Convict to which an Advowson is Appendant Two parts of an Advowson Appendant seized by seizure of two parts of the Mannor by such seizure two parts of the Advowson are likewise seized by consequence although it be not named in the Inquisition as was resolved in the Case of the Chancellor c. of Cambridge and Walgrave Hobart 126 127. Moore 872. C. 1214. The King shall present alone And there although the King hath Title but to two parts of the Advowson yet he shall present alone by his Prerogative as was resolved in that Case and so he should have done where there were three Coparceners of an Advowson two of full age and one under age and in Ward to the King the King only should by his Prerogative have presented during the Wardship 47 E. 3. 14. 38 H. 6. 9. But yet His two parts shall not pass from him by general words although two parts of an Advowson shall pass to the King by the word Hereditaments and the seizure of the Mannor shall draw with it the seizure of the Advowson yet the Kings two parts of the Advowson shall not pass from him by such general words And therefore if the King seizes two parts of a Mannor belonging to a Recusant Convict to which an Advowson is Appendant and grants over his two parts of the Mannor to a Subject with all Hereditaments Appurtenances c. yet two parts of the Advowson will not pass unless specially named or the grant be adeo plene integre in tam amplis modo forma prout c. the Recusant had the Mannor Hobart 126 127. Moore 872. C. 1214. All other Lands c. liable to such seizure or to the Penalties aforesaid Whether Copyhold Lands Copyhold Lands are seizable by force of these words Vide Stat. 29 Eliz. cap. 6. Sect. 4. Stat. 29 Eliz. 6. In lieu and full Recompence of the twenty pounds monthly So that if the King make his Election to seize the two parts the Recusant is no longer liable to pay the twenty pounds per month The twenty pounds per month discharged but the two parts of his Lands shall go in lieu and full Recompence thereof Jones 24. Standen versus University of Oxon. Provided always Stat. Sect. 9. A Recusants Mansion house shall be reserved to him and be it Enacted by the Authority aforesaid That the Kings Majesty his Heirs and Successors shall not take into his two parts but leave to such Offender his chief Mansion House as part of his third part and shall not Demise Lease or put over the said two parts nor any part thereof to any Recusant nor to or for the use of any Recusant The Kings two parts shall not be demised to a Recusant And that whosoever shall take the same in Lease or otherwise of his Majesty his Heirs and Successors shall give such security not to commit nor suffer wast to be committed in or upon any the said premises as by the Court of Exchequer shall be allowed sufficient His chief Mansion House Mansion House Mansion house is in Law most commonly taken for the chief Messuage or habitation of the Lord of a Mannor or the Mannor House where he most remains or continues Termes de la Ley 199. Mansion But it is to be taken here in a larger sence for any other House which is the Recusants chief dwelling House And for the better Tryal how his Majesties Subjects stand affected in point of their Loyalty and due Obedience Stat. Sect. 10. Who are compellable to take the Oath Be it also Enacted by the Authority aforesaid That from and after the end of this present Session of Parliament it shall be lawful to and for any Bishop in his Diocess or any two Iustices of Peace whereof one of them to be of the Quorum within the limits of their Iurisdiction out of the Sessions to require any person of the age of Eightéen years or above being or which shall be Convict or Indicted of or for any Recusancy other then Noblemen or Noblewomen for not repairing to Divine Service according to the Laws of this Realm or which shall not have received the said Sacrament twice within the year then next past Noblemen and Noblewomen excepted or any person passing in or through the County Shire or Liberty and unknown except as is last before excepted that being examined by them upon Oath shall confess or not deny himself or her self to be a Recusant or shall confess or not deny that he or she had not received the said Sacrament twice within the year then last past to take the Oath hereafter following upon the holy Evangelist Certificate of the name and place of abode of him which taketh the Oath Which said Bishop or two Iustices of the Peace shall certifie in writing subscribed with his or their Hands at the next General or Quarter Sessions for that Shire Limit Division or Liberty within which the said Oath shall be so taken the Christen Name Surname and place of aboad of every person which shall so take the said Oath which Certificate shall be there recorded by the Clerk of the Peace or Town-Clerk and kept amongst the Records of the said Sessions Where this Oath cannot be tendred Passing in or through the County Shire or Liberty and unknown These words passing and unknown being in the Conjunctive it seems that the Bishop or two Justices ought not to examine upon Oath or tender this Oath to any Passenger or Traveller quatenus such unless he be unknown viz. such an
invade or annoy him or his Countries or to discharge any of his Subjects of their Allegiance and Obedience to his Majesty or to give licence or leave to any of them to bear Arms raise Tumult or to offer any Violence or hurt to his Majesties Royal Person State or Government or to any of his Majesties Subjects within his Majesties Dominions Also I do swear from my Heart that notwithstanding any Declaration or sentence of Excommunication or deprivation made or granted or to be made or granted by the Pope or his Successors or by any Authority derived or pretended to be derived from him or his See against the said King his Heirs or Successors or any Absolution of the said Subjects from their Obedience I will bear Faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my power against all conspiracies and attempts whatsoever which shall be made against his or their Persons their Crown and Dignity by reason or colour of any such sentence or declaration or otherwise and will do my best indeavour to disclose and make known unto his Majesty his Heirs and Successors all Treasons and Traiterous Conspiracies which I shall know or hear of to be against him or any of them And I do further swear That I do from my Heart abhor detest and abjure as Impious and Heretical this damnable Doctrine and Position That Princes which be Excommunicated or Deprived by the Pope may be Deposed or Murthered by their Subjects or any other whatsoever And I do Believe and in Conscience am Resolved That neither the Pope nor any Person whatsoever hath Power to absolve me of this Oath or any part thereof which I acknowledge by good and full Authority to be lawfully Ministred unto me and do renounce all Pardons and Dispensations to the contrary And all these things I do plainly and sincerely acknowledge and swear according to these express words by me spoken and according to the plain and common sense and understanding of the same words without any Equivocation or mental Evasion or secret Reservation whatsoever And I do make this Recognition and Acknowledgment heartily willingly and truly upon the true Faith of a Christian So help me God Vnto which Oath so taken the said person shall subscribe his or her Name or Mark. If a man refuse to take any word of this Oath What is a refusal of the Oath 't is a refusal of the whole Bulstrode 1. 198. Lord Vaux his Case And be it further Enacted by the Authority aforesaid Stat. Sect. 13. No Indictment or other proceedings against a Recusant shall be discharged or reversed for default of form That no Indictment or Indictments had or found or hereafter to be had or found against any person or persons for not repairing to some Church or Chappel or usual place of Common Prayer but absenting him or her self by the space of one month contrary to the Laws and Statutes in that behalf provided or for not receiving the said Sacrament contrary to this present Law nor any Proclamation Vtlawry or other procéeding thereupon shall at any time hereafter be avoided discharged or reversed by reason of any default in form or lack of form or other defect whatsoever other then by direct traverse to the point of not coming to Church or not receiving the said Sacrament whereof such person or persons hath beén or shall be Indicted but the same Indictment shall stand in force and be procéeded upon Any such default of form or other defect whatsoever notwithstanding Vtlawry A term for years sold upon an Outlawry restored A termor for years was outlawed upon an Indictment of Recusancy The Term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the Outlawry was reversed The Question was whether upon Reversal of the Outlawry the Recusant should have restitution of his Term again And Periam Justice doubted thereof and observed that the Book of 11 H. 4. 65. which saith that the party outlawed shall upon reversal of the Outlawry have restitution speaks only of Goods seized but not of a term sold before But Anderson Chief Justice and Walmesly Justice held That the Termor in this Case should have his Term again in whose soever hands the Land came and upon whatsoever Consideration and not the money for which the Term was sold For the Outlawry being reversed it is as if there were no Record of it And the Queens Interest was but conditional scil if the Outlawry were good Nor is this like the Case where a Sheriff upon a Fieri facias Fieri facias and venditioni exponas sells a Term For there if the Judgment be reversed the party shall have the money for which the Term was sold but not restitution of the Term it self as was resolved 26 Eliz. Dyer 363. And the reason is because the Sheriff did no more then he was commanded For he was commanded to sell and therefore the Sale shall be good to all intents But in the Case of an Outlawry it is otherwise and there is no such Command which difference between a Fieri facias and Capias utlagatum was agreed in Dr. Drury's Case Co. 8. 143. And in the principal Case here Judgment was given for the Termor according to the Opinion of Anderson and Walmesly Cro. Pasch 34 Eliz. C. B. 278. Eyre versus Woodfine Where the Patron outlawed shall be restored to his presentment A man is seized of an Advowson in gross the Church becomes void and then the Patron is outlawed upon an Indictment of Recusancy whereupon the King presents the Presentee is instituted and inducted and afterwards the Outlawry is reversed In this Case the Patron shall be restored to his presentment So if the Patron of an Advowson in gross hath Judgment in a Quare Impedit and is afterwards outlawed for Recusancy and the King presents and the presentee is instituted and inducted In this Case the Patron shall have a Scire facias to execute the Judgment and shall oust the Presentee of the King And the reason in both these Cases is because upon the Reversal of an Outlawry the party shall be restored to all things which are principal and here the presentment was the principal thing forfeited by the Outlawry and therefore upon reversal the Patron shall be restored to it Vide Moore 269 270. C. 421. Beverleigh versus Cornwall Savile 89. C. 166. the same Case And where not But if the King upon an Outlawry seize a Mannor to which an Advowson is appendant and the Church becomes void whereupon the King presents and the presentee is inducted There 't is otherwise and the Kings presentee shall not be removed upon reversal of the Outlawry For the presentment in that Case is but as an accessary that follows the principal which is the Mannor the profits of which Mannor the King was to have during the Outlawry and consequently the
so the word taken is to be expounded and the like Exposition hath been made of the Statutes of 2 3 E. 6. cap. 2. of Soldiers and 1 Jac. cap. 11. of having two Wives living Stat. 1 3 E. 6. 2 1 Jac. 11. Hutton 131. If the Offence be committed out of this Realm yet it cannot be tried upon the Statute of 35 H. 8. cap. 2. Stat 35 H. 8. 2. of Trial of Treasons committed out of the Realm For this Act hath prescribed a special form of a Trial in this Case which must be observed And if such Offender be a Peer of England Indictment of a Peer the Indictment cannot be taken before any others then the Justices of Assize and Goal delivery in the County where he is imprisoned or the Justices of the Kings Bench Hutton 131. Lord Digbies Case Stat. Sect. 22. Trial of Peers Provided always That if any Peér of this Realm shall happen to be Indicted of any Offence made Treason by this Act he shall have his Trial by his Péers as in other like Cases of Treason is accustomed Stat. Sect. 23. And be it further Enacted That if any Subject of this Realm at any time after one month next after the end of this present Session of Parliament shall not resort or repair every Sunday to some Chuch Chappel or some other usual place appointed for Common Prayer and there hear Divine Service according to the Statute made in that behalf in the first year of the Reign of the late Q. Elizabeth that then it shall and may be lawful to and for any one Iustice of Peace of that Limit Division or Liberty wherein the said party shall dwell upon proof unto him made of such default by confession of the party or Oath of witness to call the said party before him and if he or she shall not make a sufficient excuse and due proof thereof to the satisfaction of the said Iustice of Peace That it shall be lawful for the said Iustice of Peace to give Warrant to the Churchwarden of the said Parish wherein the said party shall dwell under his Hand and Seal to levy twelve pence for every such default by distress and sale of the Goods of every such Offender rendring to the said Offender the Overplus of the money raised of the said Goods so to be sold and that in default of such distress it shall and may be lawful for the said Iustice of Peace to commit every such Offender to some Prison within the said Shire Division Limit or Liberty wherein such Offender shall be inhabiting until payment be made of the said sum or sums so to be forfeited which forfeiture shall be imployed to and for the use of the Poor of that Parish wherein the Offender shall be resident or abiding at the time of such Offence committed Provided That no man be impeached upon this Clause Within what time the Offender shall be impeached except he be called in question for his said default within one month next after the said default made And that no man being punished according to this Branch But once punished for one Offence shall for the same Offence be punished by the forfeiture of twelve pence upon the Law made in the first year of the late Quéen Elizabeth If any Subject of this Realm By a Subject of this Realm Subject of this Realm who here meant is to be understood a natural born Subject or an Alien naturalized here by Act of Parliament or made a Denizen of England by the Kings Letters Patents And who not But these words here are exclusive of two sorts of Subjects 1. Of an Alien inhabiting in this Realm who oweth to the King a local Subjection or Ligeance and is neither naturalized or made Denizen For the word Subject is as a mark of distinction and must be necessarily exclusive of some persons or other within this Realm and therefore cannot be supposed to take in meer Aliens who if neither naturalized or made Denizens are only local Subjects and of the lowest form For if no person inhabiting within the Realm were here intended to be excepted the word Subject would be idle and to no purpose 2. An Alien Naturalized by Act of Parliament in Scotland or Ireland or made Denizen of either of those Kingdoms by the Kings Letters Patents is for the same reason out of the meaning of this Branch although he live in England For it seems that such a person is still an Alien here and shall not partake of any priviledges in England by his being Naturalized or made Denizen in Scotland or Ireland Their Acts or Laws not being Obligative or concluding to us in England Vide Vaughan 278 279 280 285 287. Craw versus Ramsey And therefore the power here given any one Justice of Peace to levy the twelve pence per Sunday doth not extend to either sort of these Aliens An Alien within Stat. 1. Eliz. 2 but yet they may forfeit twelve pence per Sunday for their absence from Church upon an Indictment of the Statute of 1 Eliz. cap. 2. and that by force of the general words there Every person and persons inhabiting within this Realm so that what is said in Dr. Fosters Case Co. 11.63 viz. That this Statute gives a more speedy remedy for the Recovery of the twelve pence is not to be understood of all persons within 1 Eliz. but only of the Subjects of this Realm in the sense of this Branch of the Statute And if a man be born within any of the Kings Dominions which were such and united with England in their subjection at the time of his birth although he be not born within England Natural Subjection not local yet if he live here he is a Subject of this Realm within the intent of this Act For Natural Subjection and Ligeance are not local or confined to that Kingdom or Country where he was born But he is a natural Subject in any of the Dominions belonging at the time of his Birth to the Prince under whom he was born And upon this ground it was resolved in Calvins Case Co. lib. 7. Postnati That a man born in Scotland after the Union of the two Kingdoms should inherit in England So that a man born in Scotland or Ireland or any other of the Kings Dominions which were such and so united at the time of his birth if he live in England is punishable by this Act and any one Justice of Peace may grant his Warrant to levy the twelve pence for his absence from Church vide antea Sect. 19. Morning and Evening Prayers Every Sunday This repairing to Church every Sunday must be as well to Evening Prayers as to Morning Prayers For it ought to be an entire day and an entire Service By Hutton and Berkley Justices Dalton V. cap. 45. tit Recusants To the satisfaction of the said Iustice of Peace In this Case the Justice of
all causes where any Bishop or Iustices of the Peace may by force of this Act require and take of any Subject the Oath above mentioned That the Lords of the Privy Counsel for the time being or any six of them whereof the Lord Chancellor Lord Treasurer or the principal Secretary for the time being to be one shall have full Power and Authority by force of this Act at any time or times to require and take the said Oaths before mentioned of any Nobleman or Noblewoman then being above the age of Eighteén years And if any such Nobleman or Noblewoman other then Women married shall refuse to take such Oath or Oaths that in every such Case such Nobleman and Noblewoman shall incur the pain and danger of a Praemunire Where any Bishop or Iustices of the Peace The Justices of Peace Justices of Peace have a twofold power given them by this Act in reference to the Oath of Allegiance 1. Out of Sessions and so any two Justices of Peace quorum unus c. may tender the Oath to any person eighteen years old or above other then Noblemen or Noblewomen 2. In their general or Quarter Sessions and there they may tender the Oath to any such person who hath before refused it or to any person whatsoever of or above that age other then Noblemen or Noblewomen Now whether the six Privy Counsellors Six Privy Counsellors here mentioned may require this Oath of Noblemen and Noblewomen in all Cases where the Justices of Peace may require the same of any Subject either in or out of Sessions or only in such Cases where they may require it out of Sessions seems to be a Question For if the power here given to the six Privy Counsellors be the same with that of the Justices of Peace in their Sessions they may by force of this Act tender it to any Nobleman or unmarried Noblewoman whatsoever above eighteen years old For the Justices of Peace in their Sessions may tender it there to any other person whatsover But if it be meant of the power given the Justices of Peace out of Sessions then the six Privy Counsellors can tender it by force of this Act to such Noblemen or unmarried Noblewomen only who stand Convicted or Indicted of Recusancy for not coming to Church or who have not received the Sacrament twice within the year next before or who passing through the Country unknown shall upon examination confess or not deny their Recusancy or that they have not so received the Sacrament To whom they may tender this Oath For the solving of which doubt it is to be considered 1. That the Bishop and not the Justices of Assize are here joyned with the Justices of Peace And these words where any Bishop or Iustices of Peace seem to bear this Construction viz. where any Bishop or Justices of Peace either the one or the other indifferently may require the Oath and that can be intended only of the power given out of Sessions For in Sessions the Bishop hath nothing to do But had the Justices of Assize been here added scilicet in all Causes where the Bishop Justices of Assize or Justices of Peace may require this Oath it had been clear that the Power here given the six Privy Counsellors was as extensive as that which is given the Justices of Assize or Justices of Peace in their Sessions and they might have required the Oath of any Nobleman or unmarried Noblewoman whatsoever of competent age so if the Justices of Peace only had been here named it had been clearly intended of the Justices of Peace in either Capacity either in or out of Sessions But Bishop seems here to be a restrictive word and to give the Privy Counsellors no more power in respect of the Nobility then the Bishop had in reference to any other Subject 2. These words in all causes where c. seem to be restrictive likewise and exclusive of some Causes But the Power of the Justices of Peace in Sessions extends to all Causes and Persons under the Degree of Nobility whatsoever which therefore cannot be here intended but only some particular Causes ejusdem generis which can be no other then the Causes before mentioned wherein the Bishop or two Justices out of Sessions may deal viz. where the party was before Convicted or Indicted or had not received the Sacrament or passed unknown and confessed c. And yet as 't is reported in Bulstrode 1. 197. the Case of the Lord Vaux Pasch 10. Car. 1. is to the contrary For 't is said there he was committed to the Fleet by the Privy Council for refusing this Oath and afterwards Indicted in the Kings Bench of a Praemunire for such his refusal he being then of the age of eighteen years and above And the said Oath being lawfully tendred c. All which was certified to the Court by divers of the Privy Council upon which Indictment he was attainted and no word in the Indictment of his standing Convicted or Indicted of Recusancy or not having received the Sacrament c. and yet the Indictment was grounded upon this Statute and not upon that of 7 Jac. 6. For by that Statute of 7 Jac. he could not have been Indicted of a Praemunire for the first refusal but must have been Committed until the next Assizes or Sessions and if he had there refused it the second time he might have been Indicted of a Praemunire and not otherwise But whether this Indictment were according to Law or only passed sub silentio Quaere Note by the Statute of 7 Jac. cap. 6. any Privy Counsellor Stat. 7 Jac. 6. or the Bishop of the Diocess may now require this Oath of any Baron or Baronesse of or above the age of eighteen years in all Cases And in some Cases three Privy Counsellors Quorum unus c. may require it of persons above the said Degree vide the Statute A Noblewoman by Marriage Noblewoman A Noblewoman who was such by Marriage only becomes a Widow and takes to her second Husband a person under the Degree of Nobility By this her second Marriage she hath lost her Nobility And if she again becomes a Widow the Oath shall not be tendred her by Privy Counsellors But the Bishop or two Justices of Peace quorum unus c. may by force of this Act require her to take it and upon her refusal may proceed against her as is above directed in the Case of a common person see more of this matter Stat. 7 Jac. cap. 6. Sect. 4. Age. Then being above the age of Eightéen years In this Case that day Eighteen years on which the party was born must be wholly elapsed for before this Oath cannot be tendred although the hour of his birth be elapsed For the Law rejects all Fractions and Divisions of a day for the incertainty Fractions of a day rejected which is always the Mother of Contention Co. 5.1 Claytons Case
a farther distance although they inhabited in that which was within London or ten miles for three months next before that Session of Parliament yet if they were not Tradesmen at the time of making of this Act they should have had no benefit by this Proviso but ought within ten days after such Indictment or Conviction for Recusancy to have removed out of the compass of ten miles Stat. Sect. 7. And whereas by a Statute made at Westminster in the Five and thirtieth year of the Reign of Queén Elizabeth Intituled An Act for the restraining of Popish Recusants to some certain place of abode it was amongst other things Ordained and Enacted That every Popish Recusant then or after Convicted for not repairing to Church Chappel or usual place of Common Prayer A Recusant confined having any certain place of dwelling and abode within this Realm should within the time limited by the said Statute repair to their place of usual dwelling and abode or not having any certain place of dwelling or abode within this Realm should likewise within the time limited by the said Statute repair to the place where such person was born or where the Father or Mother of such person should be dwelling and not at any time remove or pass above five miles from thence under the pains in the said Statute limited and provided Which Statute by reason of sundry Licences given unto such Recusants under colour of a Proviso in the said Statute contained hath not wrought that good effect in the Commonwealth as was hoped Be it therefore Enacted Ordained by this present Parliament and by the Authority of the same That the said Statute made in the said Five and thirtieth year of the said Quéen Elizabeth for and concerning the confining of the said Recusants under the pains and penalties therein contained shall by this Act and by the Authority of the same be confirmed and be hereafter put in due execution according to the tenour true intent and meaning of the said Statute in that behalf made Repeal of a Proviso in 35 Eliz. 2. And that the said Proviso in the said Statute contained giving power to grant Licence or Licences unto the said Recusants to go and Travel from or out of the compass of the said five miles shall be from and after the end of this present Session of Parliament utterly repealed and void Any thing in the said Statute to the contrary notwithstanding Then or after Convicted Vide Sect. 8. infra Giving power to grant Licence or Licences unto the said Recusants The Proviso in the Statute of 35 Eliz. cap. 2. here repealed is only that which there impowers the Justices of Peace For that is the only Proviso which gives power to grant Licences And the cause here alledged for the Repeal is the giving of sundry Licences to Recusants under colour of a Proviso in 35. which can be construed only of those which were to be given by the Justices of Peace and not of the other Licences given by 35. in several other cases so that the Proviso's there permitting the Popish Recusant to Travel in case of Process or commandment by Privy Counsellors or the Queens Commissioners or Proclamation to render his body to the Sheriff remain still in force and unrepealed and the Recusant may take the benefit thereof at this day Stat. Sect. 8. Provided nevertheless and be it further Enacted by this present Parliament and by the Authority of the same That it shall and may be lawful for the Kings most excellent Majesty his Heirs and Successors or for thrée or more of his Majesties most Honourable Privy Council or for threé or more of the Privy Council of his Heirs or Successors in writing under the hands of the said Privy Counsellors Licence to a Popish Recusant confined to give Licence to every such Recusant to go and Travel out of the compass of the said five miles for such time as in the said Licence shall be contained for their travelling attending and returning and without any other Cause to be expressed within the said Licence And if any of the persons which are so confined by virtue of the said Statute as is aforesaid shall have necessary occasion or business to go and Travel out of the compass of the said five miles That then and in every such Case upon Licence in writing in that behalf to be gotten under the Hands and Seals of four of the Iustices of Peace of the same County Limit Division or place next adjoyning to the place of abode of such Recusant with the privity and assent in writing of the Bishop of the Diocess The effect of a Licence to be granted by four Justices of Peace or of the Lieutenant or of any Deputy Lieutenant of the same County residing within the said County or Liberty under their Hands and Seals In every of which Licence or Licences in writing so to be had and made shall be specified and contained both the particular cause of the said Licence and the time how long the said party licensed shall be absent in travelling attending and returning It shall and may thereupon be lawful for every such person so licenced to go and Travel about such their necessary business and for such time only for their travelling attending and returning as shall be comprized in the said Licence the said party so licenced first taking his corporal Oath before the said Four Iustices of the Peace or any of them who shall have Authority by virtue of this Act to minister the same that he hath truly informed them of the Cause of his Iourney and that he shall not make any causless stays And that all and every Licence hereafter to be made in this behalf contrary to the tenor effect and true meaning of this Statute shall be utterly void frustrate and of none effect Any thing in the said former Act or in this Act to the contrary notwithstanding And every person so confined which shall depart or go above five miles from the place whereunto he is or shall be confined not having such Licence and not having taken such Oath as aforesaid shall incur the pain and penalty and forfeit as a Recusant Convicted and passing or going above five miles from the said place whereunto he is or shall be confined by the said Statute of tricesimo quinto Elizabethae should do For the Kings most Excellent Majesty c. or for thrée or more of his Majesties most Honorable Privy Councel c. to give Licence to every such Recusant What recusants may be Licensed to travel above five miles By such Recusant is intended here such Recusant as is confined by the Statute of 35 Eliz. 2. and not only such as was mentioned in the foregoing Clause of recital For that recital is imperfect in that it mentions only the Popish Recusant Convicted Stat. 35 Eliz. 2 Imperfect recital here whereas 35 Eliz. speaks as well of the Popish
Recusant not Convicted who hath no certain place of aboad as of the Popish Recusant Convicted And the benefit of having Licences from the King or three Privy Counsellors by force of this Act is intended as well to the one as the other although the Convicted only are mentioned in the recital and this will plainly appear first by the following words here which impower the Justices of Peace to grant Licences and expresly extend to all persons confined by vertue of the said Statute that is the Statute of 35 Eliz. now it cannot be presumed that the makers of the Law intended any difference between the persons to be licenced by the King or Privy Counsellors and the persons to be Licensed by the Justices of Peace the only difference being in the manner of granting the Licence the power given to the King or Privy Counsellors being more absolute and not under such precautions as is that which is given to the Justices of Peace For the King or Privy Counsellors may grant a Licence to the Recusant to travel without any particular cause shewn in the Licence or the assent of any other person and without any Oath to be made by the Recusant which the Justices of Peace cannot do And there is no reason to think that the Power here given to the King or Privy Counsellors which in all other particulars is so much more absolute and extensive then that given to the Justices of Peace should be yet less extensive as to the persons to be Licensed Secondly It were absurd to think that the Makers of the Law intended to confer a greater priviledge upon the Recusant convicted whose Offence appears upon Record then to such as are not convicted Et ealis interpretatio in ambiguis semper fienda est ut evitetur inconveniens absurdum But if by such Recusant should be meant only such as are mentioned in the recital viz. those Convicted and not all who are Confined by 35 Eliz. It would follow that the Convicted Recusant who is the more notorious Offender may have a Licence without any cause shewn or Oath made But he who is not Convicted is barred of that priviledge and can apply himself only to the Justices of Peace for a Licence clogged with divers circumstances which are not required in a Licence granted by the King or the three Privy Counsellors Shall not impeach 35 El. 2. Much less shall this Recital of the Statute of 35 Eliz. impeach the express words of that Statute as if no other Popish Recusants were intended to be confined thereby but only such as are Convicted because no other are mentioned in the Recital For the Recital of an Act of Parliament in another Act of Parliament being only by way of Preface or Introduction cannot add to or diminish the Act recited or make it liable to any other construction then what shall naturally flow from the Act it self Vide Co. 4. Inst 331. Vide Stat. 35 Eliz. cap. 2. Sect. 3. Without any other cause to be expressed Here is one difference between a Licence by the King or three of the Privy Counsel Necessary business where requisite to a Licence where not and a Licence by Justices of Peace For by these it ought not to be granted unless the Popish Recusant hath necessary occasions or business But the Kings or Privy Counsellors Licence may be granted in any Case at the Recusants request Seals and Subscription Vnder the Hands and Seals An Indictment was brought upon the Statute of 35 Eliz. 2. for travelling out of the compass of five miles The Recusant pleaded a Licence under the Seals of four Justices of Peace and exception was taken to the Plea For that the Licence ought to have been under their Hands as well as their Seals Cro. Mich. 12 Jac. 352. Maxfeilds Case And this is a good exception for a Licence by Justices of Peace although in Writing is not sufficient without Seals and Subscription both Rolles 1. 108. C. 47. Mucclefields Case Four Justices Peace Of four of the Iustices of Peace And a Licence from less then four will not now serve since the repeal of the aforesaid Branch of 35 Eliz. touching Licences Stat. 35 Eliz. 2 and therefore the Case of Mucclefield Mich. 12 Jac. in Rolles 1. 108. C. 47. is misreported in that particular For there mention is made of a Licence from two Justices of Peace as if no more were then requisite and that Case could not be grounded upon the Proviso in 35 Eliz. which required only two Justices as well for the distance of time being nine years after the Repeal of the said Proviso as for that in the said Case of Mucclefield there is mention of a Licence under the Seals of the Justices of Peace and of the Oath to be taken by the Recusant neither of which was appointed by the said Proviso in 35 Eliz. but by this Statute of 3 Jac. which must therefore necessarily be there intended and not any Statute of 1 Jac. which is another mistake in the Report of that Case Vide the Case and the objections urged against the Licence there in question With the privity and assent in Writing of the Bishop c. the Lieutenant or of any Deputy Lieutenant An Information was brought against a Popish Recusant Convict for removing above five miles from the place of his confinement who pleaded a Licence from four Justices of Peace but the Plea was disallowed saith the Reporter because he did not set forth that the Licence was granted with the privity of the Bishop or Lieutenant Mich. 12 Jac. Moore 836. C. 1127. Mansfields Case Assent of a Deputy Lieutenant sufficient But yet if it had been granted with the assent of any Deputy Lieutenant residing in the County there 's no doubt but it had been good enough The Bishop Lieutenant or Deputy Lieutenant Five persons viz. four to Licence and one to assent who gives his assent must be a distinct person from the Justices of Peace who grant the Licence And therefore if one and the same person be a Justice of Peace and Deputy Lieutenant he cannot Act herein in both Capacities For una persona non potest supplere vicem duarum And if he Sign and Seal the Licence as a Justice of Peace the assent of some other Deputy Lieutenant or of the Bishop or Lieutenant must be had thereto or the Licence is void Cro. Mich. 12 Jac. 352. Maxfields Case Moore 836. C. 1127. Mansfields Case Rolles 1. 108. C. 47. Mucclefields Case And although the Rule be Quando duo jura concurrunt in una persona aequum est ac si essent in diversis yet that Rule holds not in such Cases where distinct persons are necessarily required by the Law Co. 7. 14. Calvins Case and here four persons are necessarily required to grant the Licence and another person to assent to it In Maxfields Case B. R. one exception to the Licence was Licence and
or Books shall be found in their or any of their Custody as in the Opinion of the said Iustices Mayor Bailiff or Chief Officer as aforesaid shall be thought unméet for such Recusant as aforesaid to have or use the same shall be presently defaced and burnt if it be méet to be burned And if it be a Crucifix or other Relique of any price the same to be defaced at the General Quarter Sessions of the Peace in the County where the same shall be found and the same so defaced to be restored to the owner again Shall be thought unmeét for such Recusant So that the Justices of Peace are not bound by this Act to deface all Reliques of price or to burn or deface Not all to be defaced or burnt all other Reliques or Popish Books as Wingate tit Crown numb 144. misleads them in this particular Unmeet sense of it here And although herein much is referred to the discretion of the Justices of Peace yet where the Husband is a Protestant and only the Wife a Popish Recusant it seems by these words that they are not to consider what is unmeet for the Husband but what is unmeet for the Recusant viz. the Wife and that it was not intended that they should seize burn or deface any Books of the Husbands though Popish unless such whereby the Wife might be aided or confirmed in her Superstition so that in this Case Books written in a Language or Stile unintelligible to the Wife are not within the meaning of this Act nor ought by colour thereof to be taken from the Husband who is no Popish Recusant At the General Quarter Sessions Vide Stat. 23 Eliz. cap. 1. Sect. 7. General Quarter Sessions Stat. 23 Eliz. 1 And be it also Enacted by the Authority aforesaid Stat. Sect. 24. A Popish Recusants Armour shall be seized That all such Armour Gunpowder and Munition of whatsoever kinds as any Popish Recusant Convict within this Realm of England hath or shall have in his House or Houses or elsewhere or in the hands or possession of any other at his or their disposition shall be taken from such Popish Recusants or others which have or shall have the same to the use of such Popish Recusant by Warrant of four Iustices of Peace at their General or Quarter Sessions to be holden in the same County where such Popish Recusant shall be resident other than such necessary weapons as shall be thought fit by the said four Iustices of Peace to remain and be allowed for the defence of the person or persons of such Recusants or for the defence of his her or their House or Houses and that the said Armour and Munition so taken shall be kept and maintained at the Costs of such Recusants in such places as the said Four Iustices of Peace at their said Sessions of the Peace shall set down and appoint And be it further Enacted by the Authority aforesaid The forfeiture for not delivering it That if any such Recusant having or which shall have any such Armour Gunpowder and Munition or any of them or if any other person or persons which shall have any such Armour Gunpowder and Munition or any of them to the use of any such Recusant shall refuse to declare or manifest unto the said Iustices of Peace or any of them what Armour he she or they have or shall have or shall lett hinder or disturb the delivery thereof to any of the said Iustices or to any other person or persons authorized by their Warrant to take and seize the same then every such person so offending contrary to this Statute in this behalf shall forfeit and lose to the Kings Majesty his Heirs and Successors his and their said Armour Gunpowder and Munition and shall also be imprisoned by Warrant of or from any Iustices of Peace of such County by the space of thrée months without Bail or Mainprize General or Quarter Sessions Stat. 23 Eliz. 1 Where such Arms cannot be seized At their General or Quarter Sessions Vide Stat. 23 Eliz. cap. 1. Sect. 7. In the same County where such Popish Recusant shall be resident A Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant such Arms cannot be seized by force of this Act by the Justices of Peace of either County not by the Justices of the County where the Arms are kept for the seizure or taking is here limited to be by Warrant at the Sessions in the County where the Recusant resides and the Statute must be strictly pursued in that particular nor by the Justices of the County where the Recusant is resident for the Arms are in another County where they have nothing to do Power of a Justice of Peace out of his County And although in some Cases where a Statute appoints a Justice of Peace to do a thing he may do it out of his County Power of a Justice of Peace out of his County as to take an examination upon the Statute of Winton of a Robbery as was resolved in the Case of Helier and the Hundred of Benhust Pasch 7. Car. 1. B. R. Jones 239. Cro. Car. 213. yet he cannot exercise any coercive power out of his County as was resolved in that Case for his potestas Jurisdictionis is confined to his County as well as that of a Bishop is confined to his Diocess Vide Palmer 473. Ascuithes Case And here the taking of the Recusants Armor is a coercive Act and therefore can be executed by Warrant of the four Justices of Peace in that County only where they are Justices So that this is clearly Casus omissus and not provided for by this Act. Vide postea Four Justices In such places as the said four Iustices of Peace c. shall set down and appoint And not where one Justice shall appoint as is mistaken in the late additions to Dalton cap. 81. tit Recusants Sect. 40. Imprisoned by Warrant of or from any Iustices of Peace Any two Justices may grant their Warrant for Imprisoning the Offender Two sufficient and 't is sufficient in this Case for pluralis numerus est duobus contentus But a Warrant from any one Justice will not serve contrary to Wingate tit Crowne numb 145. Of such County County That is of the County where the Popish Recusant is resident for no other County was named before In what Case the party cannot be imprisoned A Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant The Justices of Peace of that other County cannot by force of this Act imprison him that keeps them for they are not named here but the power in this Case is expresly limited to other Justices and no other can intermedle therein neither will the Warrant of the Justices of Peace of the County where the Recusant is resident reach
him who is in another County For the coercive Authority of a Justice of Peace Justice of Peace limited to his County cannot exceed his limits or bounds as is held in Plowden 37. in the Case of the Sheriffs of London And therefore in the Case of the Lord Say it was resolved that if a Justice of Peace of the County where the Felony was committed pursue a Felon into another County and take him there the Felon must be imprisoned in the County where he is taken and the Justice of Peace who pursued him hath no power to carry him to the Goal of the County where he did the Felony for he is a Prisoner in the County where he was taken and there the Justice of Peace hath no more to do then an ordinary person 13 E. 4. 8. Bro. Freshsuite 3. so that as it seems in this Case the party who keeps such Arms cannot be imprisoned by this Act But this likewise is Casus Omissus and not here provided for And yet nevertheless be it Enacted by the Authority aforesaid Stat. Sect. 25. A Popish Recusant shall maintain his Armor That notwithstanding the taking away of such Armor Gunpowder and Munition the said Popish Recusant shall and may be charged with the maintaining of the same and with the buying providing and maintaining of Horse and other Armor and Munition in such sort as other his Majesties Subjects from time to time shall be appointed and commanded according to their several Abilities and Qualities and that the said Armor and Munition at the Charge of such Popish Recusant for them and as their own provision of Armor and Munition shall be shewed at every Muster shew or use of Armor to be had or made within the said County Provided always That neither this Act Stat. Sect. 26. Ecclesiastical Censures nor any thing therein contained shall extend to take away or abridge the Authority or Iurisdiction of the Ecclesiastical Censures for any cause or matter but that the Commissioners of his Majesty his Heirs and Successors in Causes Ecclesiastical for the time being Archbishops Bishops and other Ecclesiastical Iudges may do and procéed as before the making of this Act they lawfully did or might have done Any thing in this Act to the contrary in any wise notwithstanding Stat. vii Jac. cap. ii An Act that all such as are to be Naturalized or restored in Blood shall first receive the Sacrament of the Lords Supper and the Oath of Allegiance and the Oath of Supremacy What they shall be bound unto who shall be Naturalized or restored in Blood FOrasmuch as the Naturalizing of Strangers and restoring to Blood persons Attainted have béen ever reputed matters of méer grace and favour which are not fit to be bestowed upon any others then such as are of the Religion now established in this Realm Be it therefore Enacted by the Kings most Excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled that no person or persons of what Quality Condition or Place whatsoever being of the age of Eightéen years or above shall be Naturalized or restored in Blood unless the said person or persons have received the Sacrament of the Lords Supper within one month before any Bill exhibited for that purpose and also shall take the Oath of Supremacy and the Oath of Allegiance in the Parliament House before his or her Bill be twice Read And for the better effecting of the premises Be it further Enacted by the Authority aforesaid That the Lord Chancellor of England or Lord Keeper of the Great Seal for the time being if the Bill begin in the Vpper House and the Speaker of the Commons House of Parliament for the time being if the Bill begin there shall have Authority at all times during the Session of Parliament to minister such Oath and Oaths and to such person and persons as by the true intent of this Statute is to be ministred This Act to take place from and after the end of this present Session of Parliament Stat. vii Jac. cap. vi An Act for Administring the Oath of Allegiance and Reformation of married Women Recusants WHereas by a Statute made in the Third year of your Majesties Reign intituled Stat. Sect. 1. an Act for the better discovering and repressing of Popish Recusants the form of an Oath to be ministred and given to certain persons in the same Act mentioned is limited and prescribed tending only to the Declaration of such Duty as every true and well affected Subject not only by bond of Allegiance but also by the commandment of Almighty God ought to bear to your Majesty your Heirs and Successors which Oath such as are infected with Popish superstition do oppugne with many false and unsound Arguments the just defence whereof your Majesty hath heretofore undertaken and worthily performed to the great contentment of all your loving Subjects notwithstanding the gainsayings of contentious Adversaries And to shew how greatly your Loyal Subjects do approve the said Oath they prostrate themselves at your Majesties Féet beséeching your Majesty that the same Oath may be administred to all your Subjects To which end we do with all humbleness beseech your Highness that it may be Enacted Every person above the age of 18 years herein intended shall take the Oath of Allegiance and before whom And be it Enacted by the Authority of this present Parliament That all and every person and persons as well Ecclesiastical as Temporal of what Estate Dignity Preheminence Sex Quality or Degrée soever he she or they be or shall be above the age of Eightéen years being in this Act mentioned and intended shall make take and receive a Corporal Oath upon the Evangelists according to the tenor and effect of the said Oath set forth in the forementioned Statute before such person or persons as hereafter in this Act is expressed That is to say All and every Archbishop and Bishop Archbishops and Bishops that now is or hereafter shall be before the Lord Chancellor or Lord Kéeper of the Great Seal for the time being Ecclesiastical Judges and Officers And all and every Ecclesiastical Iudge Officer and Minister of what Estate Dignity Preheminence or Degree soever he or they be or shall be before the Archbishop of the Province or Bishop or other Ordinary of the Diocess for the time being wherein such Ecclesiastical Iudge Officer or Minister ought to exercise his said Office Place or Function A Baron or Baroness or above that Degree Privy Counsellors Presidents And all and every person and persons of or above the Degree of a Baron of Parliament or Baroness of this your Highness Realm of England and all of your Highness Privy Counsel residing in London or Westminster or within thirty miles thereof and the Presidents of Wales and the North Parts before any four of your Highness Privy Counsel whereof the Lord Chancellor Lord Treasurer Lord Privy Seal
or principal Secretary for the time being to be one And if such person or persons live and reside in the Country distant above thirty miles from London then before the Lord Bishop of the Diocess or such other person or persons as the Lord Chancellor or Lord Kéeper of the Great Seal for the time being shall thereto by Writ of Dedimus potestatem Authorize The sworn Servants of the King Queen Prince c. And all and every the sworn Servants ordinary and extraordinary of your Highness the Quéens Grace or of the Houshold of the Prince of Wales and of the rest of your Highness Children before the Lord Steward the Lord Chamberlains and Vicechamberlains to your Highness and the Quéen the Treasurer and Controller of your Highness Houshold the Master of your Highness Horse the Dean of the Chappel and the Knight Marshal for the time being the Officers of the Gréen-cloth or any thrée of them Temporal Judges Ministers of Justices They which receive any Fée of the King All and every temporal Iudge Iustices of Peace Sheriffs Escheators Feodaries and other Officers and Ministers of Iustice in this present Act not specially mentioned and every other person or persons that doth or shall receive any Fée of your Highness your Heirs and Successors before the Lord Chancellor or Lord Kéeper of the Great Seal Lord Treasurer Lord Admiral Lord Warden of the Five Ports for the time being or one of them or before one of the Chief Iustices either of your Majesties Bench or of the Common Pleas or before Iustices of Assize of the same County where the parties reside or other such persons as the Lord Chancellor or Keeper of the Great Seal shall thereto Authorize Chief Officers of Cities and Towns Corporate And all Mayors Bailiffs or other chief Officers of Cities and Towns Corporate by what name soever they be called or known before such person or persons as usually administer the Oath to them at their first entrance into their said Offices And all and every the Knights Citizens Burgesses and Barons of the Five Ports of the Commons House of Parliament Stat. Sect. 2. Knights Citizens Burgesses and Barons of the Commons House of Parliament at any Parliament or Session of Parliament hereafter to be Assembled before he or they shall be permitted to enter into the said House before the Lord Steward for the time being or his Deputy or Deputies The King cannot dispence with any Member of the Commons House of Parliament from taking this Oath The Kings dispensation void For that he is here declared to be persona inhabilis until he take it Vaughan 355. Thomas and Sorrel's Case And the Master of the Ordnance Lieutenant of the Tower Stat. Sect. 3. Master of the Ordnance Lieutenant of the Tower c. of London and Mint-master there the four principal Officers of your Navy under the Lord Admiral before the Lord Chancellor or Lord Keeper of the Great Seal and the Lord Admiral for the time being or any of them And all the Officers Ministers Officers and Servants in the Tower Servants and others within your said Tower of London before the Lieutenant of the Tower And all the Vice-Admirals Captains Masters Officers Ministers and Souldiers in your Highness Ships or any of them before the said four principal Officers of your Navy or any two of them And all persons having charge of Castles Fortresses Captains of Castles and Souldiers Block-houses or Garrisons and all Captains who shall have Charge of Souldiers within this your Highness Realm before the Iustices of Assize of the same County or before two Iustices of the Peace of the same County City or Liberty where the same Castles Fortresses or Block-houses shall stand or the Charge of Souldiers shall be All Doctors Advocates and Proctors of the Civil Law Doctors Advocates and Proctors of the Civil Law and their Clerks before the Bishop of the Diocess where they shall for the most part dwell or reside And all and every person or persons Temporal that hereafter shall Sue Livery or Ouster le maine Suers of Livery and Ouster le maine out of the Hands of your Highness your Heirs or Successors before his or their Ouster le maine Sued forth and allowed before the Master of the Wards and Liveries or before the Surveyor and Attorney of your Highness said Court in open Court Sergeants at Law and the Judges Servants All the Sergeants at Law Servants to the Iudges in your Highness Courts at Westminster and all other in the Sergeants Inns before the Chief Iustice of your Majesties Bench the Chief Iustice of the Common Pleas and the Chief Baron of your Exchequer or some or one of them Gentlemen of the Inns of Court Principals and Treasurers of the Inns of Chancery All your Highness Subjects in the Inns of Court or that hereafter shall be admitted thereinto and the Principals and Treasurers of every Inn of Chancery before the Readers and Benchers of the several houses whereto they belong or four of them at the least in their open Halls All others of the Inns of Chancery All other your Majesties Subjects as well Ancients as other not being Principal or Treasurer that now are or hereafter shall be admitted into any Inn of Chancery before the Principal or Treasurer and Ancients of the several Inns of Chancery or four of them in their open Halls Prothonotaries Philizers Officers Attorneys Clerks All Prothonotaries Philizers Officers Ministers Attorneys and Clerks that now are or hereafter shall be admitted to write or practice in any of your Highness Courts at Westminster or in any other Court of Record before the Iudge or Iudges of the same Court Clerks and Officers of the Chancery All Clerks of the Chancery and all their under-clerks and all other Officers of the said Court of Chancery and their Clerks before the Master of the Rolls for the time being or before two of the Masters of the said Court of Chancery Parsons Vicars Curates persons in Orders Schoolmaster Usher All Parsons Vicars and Curats and all other persons Ecclesiastical taking Orders and all and every School-master or Vsher before the Bishop of the Diocess or other Ordinary in the same sitting in open Court The Vice-chancellors of both the Universities Heads of Colledges and Halls Proctors Beadles The Vice-Chancellors of both the Vniversities for the time being and the Presidents Wardens Provosts Masters of Colledges and Halls and all other Heads and Principals of Houses Proctors and Beadles of the Vniversities publickly in the Convocation before the Senior Masters there present Persons taking Degrees in School And all and every other persons whatsoever that is or shall be promoted to any Degrée in School before the Vice-Chancellor of the said Vniversity for the time being in the Congregation house Fellows and Schollers of Halls or Colledges All Fellows of Houses and all Schollers of Halls or
Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur And in such Case she shall not be tried by Noblemen For they are no longer her Peers Co. 2. Inst 50. But if a Woman be Noble by birth By birth or descent whomsoever she marries yet she remaineth Noble For birthright is Character indelebilis vide Co. 4. 118. Actons Case Co. 6. 53. Countess of Rutlands Case Dyer 6 7 E. 6. 79. Bro. Nosme de Dignity 31. 69. Co. 1. Inst 69. And 't is observable that the Statute of 21 H. 8. cap. 13. Stat. 21 H. 8. 13 provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the Degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expresly provided for by the Statute and the reason is given in Actons Case because by such Marriage her Dignity is determined But here there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a Common person Shall stand and be Presented Indicted or Convicted Conviction not necessary These words being in the dis-junctive it is not necessary that the party be convicted But if he stand Presented or Indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of Peace ought to tender him this Oath And the said Iustice shall find Cause of suspition There must be cause of suspicion And not if the party be suspected as Wingate tit Crowne n. 150. mistakes for the bare suspition of the Justice of Peace or any other person is no sufficient ground to require the Oath or commit the party for refusal But there must be some good Cause for that suspition and the same must be alledged in the Justice of Peace his Plea or Justification if he be sued for committing him to Prison for such refusal So if a man be arrested on suspition of Felony and bring his Action for false Imprisonment the Defendant ought to shew some matter in fact to induce his suspition For in these and the like Cases a bare suspition is no sufficient Justification it being a matter secret and not traversable but the Cause of suspition is traversable Bulstrode 3. 284 285. Weale versus Wells 7 E. 4. 20. 17 E. 4. 5. 5 H. 7. 4. It shall be tried by the Justices And whether the suspition be just and lawful shall be tried and determined by the Justices Co. 2. Inst 52. 11 E. 4. 4. That then any one Iustice of Peace What was said by Coke Chief Justice B. R. in the Case of Griffith and others Bulstrode 2. 155. viz. that any one Justice of Peace One Justice of Peace may minister this Oath is to be understood of some Cases only Co. 12. 130. which are no other then those here mentioned as he explains his meaning in his said 12th Part p. 132. where he saith that one Justice of Peace cannot commit any for refusal of this Oath unless they be Prosecuted Indicted or Convicted c. according to this Statute Vide Stat. 3 Jac. cap. 4. Sect. 10. 11. Within whose Commission or Power such person or persons shall at any time hereafter be A person complained of and against whom cause of suspition is found by the Justice of Peace flies into another County A person complained of and justly suspected flies into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and commit him upon refusal For he seems to be impowred thereunto by the express words of the Statute for that the party is fallen within his Commission or Power But yet I conceive that by these words any one Iustice of Peace within whose Commission or Power c. is designed or intended no other Justice then a Justice of that County where the party was complained of and suspected The Justices there cannot proceed thereupon And that if he flie into another County no proceedings can be there upon the complaint and suspition in the County whence he came nor any one Justice tender him the Oath or commit him for refusal without a new Complaint and cause of suspition in the County whither he flies For where the party cannot be Indicted of a Praemunire for refusing the Oath upon the second tender at the Assizes or Sessions there the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for refusal For the Commitment is in Order to a second tender and an Indictment of Praemunire thereupon But in this Case the party cannot be Indicted of a Praemunire in the County where he flies for refusing it upon the second tender For the offence for which the party must be Indicted is a complicated offence consisting of several particulars First In giving just cause of suspition without which the party complained of according to this Act cannot be tendred the Oath by one Justice of Peace then in refusing the Oath before the Justice of Peace who tendred it and lastly in refusing it upon the second tender at the Assizes or Sessions all which must be comprised in the Indictment so that the cause of suspition is pars criminis and that arising in the County where the party dwelt and was complained of cannot be punished in another County unless the Statute had expresly made it examinable there Vide Stat. 3 Jac. cap 4. Stat. 5 Jac. 4. Sect. 11. True it is that some Statutes do enable Justices of Peace to punish an offence done in another County but that is where they enable them likewise to examine the truth of the Fact and take proofs and evidence thereof so the Statutes of 1 Jac. cap. 27. and 7 Jac. cap. 11. 1 Jac. 27. 7 Jac. 11. impower the Justices of Peace where the party is apprehended to examine and punish the offence But in our Case the cause of suspition arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of suspition notwithstanding the party happen to be within his Commission or power But yet the party so flying into another County may without any new complaint or cause of suspition be tendred the Oath But yet he may be tendred the Oath there and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the foregoing words of this Clause although he dwell in another County and that for the reason before given viz. because this Oath sequitur personam non locum But Wingate in abridging this Clause tit Crowne numb 150. saves us the labour of this Question for
he erroneously restrains the power of tendring the Oath in this Case to the Justice of Peace to whom the complaint is made as if no other Justice of Peace of that County could proceed therein which is contrary to the express words as well as meaning of the Statute Note that Dalton V. cap. 45. tit Recusants speaking first of the Certificate to be made by force of 3 Jac. 4. Stat. 3 Jac. 4 Certificate of taking the Oath saith It seems requisite That the Justice or Justices of Peace do make like Certificate at the next Assizes or Quarter Sessions of such persons as have taken this Oath before them by force of this Statute of 7 Jac. 6. But upon what ground Mr. Dalton thought this requisite to be certified at the Assizes I know not seeing there is no such Certificate to be made by the Statute of 3 Jac. 4. to the Assizes but only to the General or Quarter Sessions of the Peace and as for the Sessions I conceive neither the Justices of Peace if they proceed upon this Statute and not upon 3 Jac. are bound to make such Certificate nor the Clerk of the Peace or Town-Clerk to Record it for 't is not here required to be done But yet in such Cases where the same persons are impowred by both these Statutes to require and Minister this Oath as where the party is Convicted or Indicted of Recusancy in which Case two Justices of Peace Quorum unus c. may require the Oath by force either of the special words in 3 Jac. or of the general words in this Clause of 7 Jac. viz. any person or persons of Eighteen years or above under the degree of a Baron or Baroness And it doth not appear upon which of these Statutes they proceed as it may sometimes so happen There if the party take it it will be safest for the two Justices to make such Certificate to the next General or Quarter Sessions as is appointed by 3 Jac. and for the Clerk of the Peace or Town-Clerk to Record it Stat. Sect. 5. The penalty for refusing to take the said Oath And that if any person or persons being of the age of Eighteén years or above shall refuse to take the said Oath duely tendred to him or her according to the true intent and meaning of this Statute That then the persons authorized by this Law to give the said Oath shall and may commit the same Offender to the Common Gaol there to remain without Bail or Mainprize until the next Assizes or General Quarter Sessions to be holden for the said Shire Division Limit or Liberty where the said Oath shall be again in the said open Sessions required of such person by the said Iustices of Assize or Iustices of the Peace then and there present or the greater number of them And if the said person or persons of the age of Eightéen years or above shall refuse to take the said Oath being tendred to him or her by the said Iustices of Assize or Gaol-delivery in their open Assizes or Gaol-delivery or the Iustices of Peace or the greater part of them in their General or Quarter Sessions Every person so refusing shall incur the danger and penalty of Praemunire mentioned in a Statute made in the sixteénth year of the Reign of King Richard the Second Except Women Covert who shall be committed only to Prison there to remain without Bail or Mainprize till they will take the said Oath If any person or persons This Clause is general and extends to all before so that if any of the Nobility The Nobility may be committed refuse this Oath they may be committed to the Common Gaol c. by such as are by this Act authorized to tender it Co. 12. 131. Shall refuse to take the said Oath duly tendred to him or her If the persons authorized to tender this Oath What is a good tender what not ask the party whether he will take it and he saith he will not Quaere whether this be such a tender and refusal as shall make the refuser liable to be imprisoned and proceeded against by force of this Act unless he or they who tender it have in readiness both the form of the Oath and the Book to swear on For it is to be presumed that the Act intends all requisite circumstances ready to enable the one to minister and the other to take the Oath And 't is held by some The Oath read that before there can be any such refusal of this Oath as is here intended it ought to be read or offered to be read to the party especially if he be illiterate or if he be not yet that at least it ought to be offered to him for himself to read it For perhaps the party never saw or heard it And in such Case it would be against reason that the refusal should be penal And therefore in 9 Jacobi upon the tender of this Oath at Sergeants Inn in Fleetstreet it was read by Order of the Judges there To the Common Gaol The Justices of the Court of Kings Bench Refusal in the Kings Bench. have used to tender this Oath in Court as Justices of Peace of Middlesex and upon refusal the party is to be committed to the Prison of the Marshalsie which is the Ordinary Prison of that Court until the next Sessions Bulstrode 2. 155. The King against Griffith and others Vide Dyer 297. General Quarter Sessions Sessions Stat. 23 Eliz. 1. c. and General or Quarter Sessions What Sessions are here meant vide Stat. 23 Eliz. cap. 1. Sect. 7. Praemunire Indictment of Praemunire Stat. 3. Jac. 4. For the form of the Indictment upon refusal of this Oath Vide Stat. 3 Jac. cap. 4. Sect. 11. And be it further Enacted That every person Stat. Sect. 6. Disabled to execute or practice certain Offices or Sciences refusing to take the said Gath as above shall be disabled to all intents and purposes to execute any publick place of Iudicature or bear any other Office being no Office of Inheritance or Ministerial Function within this your Highness Realm of England or to use or practise the Common Law or Civil Law or the Science of Physick or Surgery or the Art of an Apothecary or any Liberal Science for his or their gain within this Realm until such time as the same person shall receive the same Oath according to the intent of this Statute Stat. Sect. 7. The penalty of a married woman who is a Popish Recusant convicted And be it further Enacted That if any married Woman being lawfully Convicted as a Popish Recusant for not coming to Church shall not within threé months next after such Conviction conform her self and repair to the Church and receive the Sacrament of the Lords Supper according to the former Laws and Statutes made and provided in that behalf touching Recusants that then she shall be committed to prison by one of the
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
his Warrant to bring the party before him 246. But the house cannot be broken by virtue of such Warrant 246. To whom one Justice of Peace may tender or give the Oath of Allegiance 224. 245 246. 247 248 249. Where he may commit the party refusing it 250. To what Justice of Peace the person offering an Agnus Dei c. must be brought or his name disclosed 53 54. The Justice of Peace not declaring the same incurs a Praemunire 55 56. Next Justice of Peace who meant 54. Certificate of Recusancy to be made by a Justice of Peace 60. One Justice of Peace may take the submission of a Jesuite or Popish Priest 95. He may examine a person suspected to be such and commit him if he refuse to answer 140 141. Discovery of a Jesuite or Popish Priest to a Justice of Peace 96. What the Justice of Peace is to do thereupon 96. The penalty if he neglects so to do 96. What Certificate he shall have for his discharge 96 97. Discovery of the entertainer or reliever of a Jesuite or Popish Priest or of Masse said must be to a Justice of Peace 200. One Justice of Peace may require the submission on 35 Eliz. 1. of Conventicles 115. And may require the offender to abjure 115 116. One Justice of Peace may require the submission on 35 Eliz. 2. of Popish Recusants confined 135. One Justice of Peace may cause the 12 d. per Sunday to be levied for absence from Church 188 189. Within what time the party must be called into question 189. Where the Justice of Peace is sole Judge of the parties excuse 190. One Justice of Peace may give the Oath to a Popish Recusant confined by 35 Eliz. 2. 210 211. Any two Justices of Peace may take the submission of a person returning from a Seminary 91 92. And of a person reconciled to the Pope or See of Rome 186. And minister to him the Oaths of Supremacy and Allegiance 186. Where they must certifie the Oaths so taken 186. To what other persons any two Justices of Peace may give the Oath of Allegiance 243. They may require the offender against 35 Eliz. 2. of Popish Recusants to abjure and may give him the Oath of Abjuration 135. Where they may imprison him who keeps the Arms of a Popish Recusant Convict or hinders their delivery and where not 237 238 239. To whom two Justices of Peace Quorum unus c. may tender and give the Oath of Allegiance 174. 196 197 198. 245 246. 249 250. Where they must certifie the taking of it to the Sessions 174. 249 250. And commit such as refuse to take it 174 175. 250. They have their Election to commit the party to the Assizes or Sessions 175. Where they may imprison a married woman convicted as a Popish Recusant and where not 252 253 254. Four Justices of Peace may grant a Licence to a Popish Recusant to travel beyond five miles 206 207 208 209 210 211. And no less then four 208. Where four Justices of Peace by warrant at their Sessions may seize a Popish Recusants Arms and where not 237 238. What arms they may allow Popish Recusants to have 237. The power of the Justices of Peace in their Sessions revived in the case of Recusancy 66 67. 101. 162. They may now proceed there to convict the Recusant upon Proclamation and default 108. 162. At what Sessions they may hear and determine Recusancy 67. In what case they are to discharge the Recusant 68 69. They may at their Sessions give the Oath of Abjuration on 35 Eliz. 1. of Conventicles 116. And must record and certifie it 116. Where upon Conviction before them they are to give a Certificate to the discoverer of the offender 201. Popish Recusants are to be presented at the Sessions of the Peace 160 161. The Presentments are to be entred and recorded there 161. To whom the Justices of Peace in their Sessions are to minister the Oath of Supremacy 262. 264. 266 267. And the Oath of Allegiance 262. 264. 266 267. They are to tender the said Oath at their Sessions to such as have before refused it 175. 250. And are to commit Women Covert till they take it 175. 250. They may there tender it to any of competent age and under the degree of Nobility 175 176. 196. Kin. In what case and how long the next of Kin shall have the Lands and Goods of him who goes beyond Seas without Licence 224 225. Whether he shall have the Lands or only the profits 225. In whom the state of the Land vests 225. The Mother of Kin to the Child and shall be preferred before the Brother or Sister 224 225. Next of Kin or Blood shall be accounted as in the case of a purchase 225. Jus Propinquitatis Jus Representationis 225. Where the next of Kin shall be Guardian and where not 234 235. King See Advowson Baron Feme Courts Forfeiture Informations Pardon The King is the supream Head of the Church of England 2. 5 6 7. Ecclesiastical Jurisdiction restored to the Crown 5. The Kings ancient Ecclesiastical Jurisdiction 5 6. The King is Persona mixta unita cum Sacerdotibus 6. He is the supream Ordinary 6 7. He is Arbitrator between spiritual Persons touching their Jurisdiction 6. He may do what the Pope might by the Canon Law 6 7. He may grant a Commission of Review notwithstanding 25 H. 8. 19. 7. He may make an Appropriation without the Bishop 7. A resignation made to him of a Deanry good 7. The Penalty for perswading others to impugne his power in cases Ecclesiastical 113 114. He cannot be nonsuited 80. Covin shall not bar him 79. 105 106. An Audita Querela lies not against him 148. King where it includes his Successors 95. Who is a mans natural King 185. Within what time the King is to prosecute upon poenal Laws 74 75. 121 122. Where he is barred of the Forfeiture and where not 79. 81 82. 253 254 255. The Recusants remedy upon his Conformity as to the King 148. Where the King may pardon release c. the Forfeiture upon a poenal Law and where not 80. How he may grant a Recognisance or Obligation forfeited 106. He cannot grant the Penalty on a poenal Law to a Subject 165. Action of Debt c. given to the King 120. In what Courts the King may sue for the Penalties given him by 23 El. 1. 122. Where the Penalty for Recusancy shall run on and be appropriated to the King and where not 102 103 104. 166 167 168. 219. 252. 254. The King may seize two thirds of a Recusants Lands presently after Conviction 168. Election given to the King to take the 20 l. per month or two thirds of a Recusants Lands 170 171. 173. 219. But he shall not have the two parts and the 20 l. per month both 219. Where the King having seized an Advowson as part of his two parts shall present and not the
137. 3 H. 6. c. 3. of the Kings Customs 70. 184. 23 H. 6. c. 10. of Sheriffs 86. 3 H. 7. c. 4. of Fraudulent deeds 87. 3 H. 7. c. 7. of the Kings Customs 70. 4 H. 7. c. 20. of Actions popular 79. 21 H. 8. c. 13. of Pluralities and Non-residence 22 23. 82. 85. 233. 247. 23 H. 8. c. 4. of Brewers 82 85. 24 H. 8. c. 8. of Obligations to the Kings use 182. 25 H. 8. c. 19. of Delegates 7. 26 H. 8. c. 1. of the Kings Supremacy revived 2. 26 H. 8. c. 13. of Treason 152. 27 H. 8. c. 10. of Jointures 213 214. 215. 221 222. 32 H. 8. c. 1. of Wills 171. 32 H. 8. c. 30. of Jeofailes 73. 33 H. 8. c. 9. of unlawful Games 83. 33 H. 8. c. 39. of Debts to the King 150. 152 153. 182. 35 H. 8. c. 2. of Trial of Treasons 92. 188. 35 H 8. c. 3. of the Kings Supremacy revived 2. 35 H. 8. c. 17. of Woods 83. 37 H. 8. c. 9. of Usury 73. 1 E. 6. c. 7. of Discontinuance of Suits 81. 2 3 E. 6. c. 2. of Soldiers 188. 2 3 E. 6. c. 13. of Tythes 13. 5 E. 6. c. 1. for Uniformity of Common Prayer revived 19 20. 5 E. 6. c. 4. of drawing weapons in the Church 53. 5 E. 6. c. 7. of buying Wools 77. 5 E. 6. c. 11. of Treason 152. 5 E. 6. c. 14. of Forestallers Ingrossers and Regrators 83. 7 E. 6. c. 5. of selling Wines 83 85. 1 Mar. c. 2. of Repeal repealed in part 19. 1 2 Ph. Mar. c. 8. restoring the Popes usurped Authority repealed except touching Praemunire 1. 2. 15. 1 2 Ph. Mar. c. 10. of Trial of Treasons 92. 4 5 Ph. Mar. c. 5. of Woollen Cloaths 82. 5 Eliz. c. 4. of Trades and Apprentices 83. 5 Eliz. c. 9. of Perjury 67. 126. 5 Eliz. c. 14. of Forgery 258. 13 El. c. 5. of Fraudulent deeds 87. 13 Eliz. c. 12. of Reading the Articles 22 23. 233. 18 Eliz. c. 5. of Informers 76. 78. 82. 85. 18 Eliz. c. 14. of Jeofailes 73. 29 Eliz. c. 5. of Suits on Poenal Laws 75. 31 Eliz. c. 5. of Informers 60. 73 74. 121. 160. 31 Eliz. c. 6. of Simony 229. 31 El. c. 10. of Suits on poenal Laws 75. 35 Eliz. c. 6. of Buildings 131. 35 El. c. 14. of General Pardon 108. 43 Eliz. c. 2. of the Poor 118. 1 Jac. c. 11. of having two Wives living 188. 1 Jac. c. 27. for Preservation of Game 249. 7 Jac. c. 11. for Preservation of Game 249. 21 Jac. c. 4. of Informers 83 84 85. 21 Jac. c. 13. of Jeofailes 73. 14 Car. 2. of Uniformity 21. 64 65. Subjection Subject See Natural King Obedience Kings Subjects who 185. Subject of this Realm who intended 189 190. Local Subject who 189. Natural Subject who 185. 190. Natural Subjection is not local 186. 190. Where a man born out of the Kings Dominions yet may be his natural Subject 186. Submission see Conformity Successors see King Suit see Recusants Sunday An Information may be exhibited on a Sunday 78. Superstition Superstitious things brought into the Realm see Agnus Dei. Supremacy See King Oath of Supremacy Sureties Where to be taken 60. 181 182. Where not to be required or taken 82. 175. Where Popish Recusants convict cannot be Sureties 64. Suspition See Seminary A bare suspition is not sufficient Justification 247 248. Suspition not traversable but the cause of it 248. By whom to be tried and determined 248. Tail see Forfeiture Tenant by Courtesie Where a man is disabled to be Tenant by the Courtesie 220. Tender see Oaths Tenement Quid 255. Terme When the Term is open 37. When full Term 37. Test see Transubstantiation Testament see Probate Time See Discovery The several times limited for prosecution 13 14 15. 29 30. 65. 73 74 75. 121 122. 160. 189. No time limited in case of Treason 65. Tythes see Plea Town-Clerk see Recusants Tradesmen see Recusants Transubstantiation Who shall take and subscribe the Test or Declaration against Transubstantiation and the penalty if they neglect so to do 265 266. Treason See Alien Time Trial. Vniversity High Treason 13. 36. 42. 45. 50. 57 58. 90. 92. 184 185 186. Forfeiture for High Treason 152. Where the refusal of the Oath of Supremacy upon the second tender is not Treason 45. Indicting a man for High Treason where actionable 58. Trées Trees cut down not seizable for Recusancy 168 169. Trial. See Péers Where he that refuses the Oath of Supremacy shall be tried 41. Where an offender shall be tried in the County where he is imprisoned 188. Serving or going to serve a forraign Prince c. contrary to 3 Jac. 4. in what County it shall be tried 194. Where the Trial shall be in the County where part of the offence happened 194. Treason done in Ireland may be tried in England 92 93. Where Treason committed out of the Realm cannot be tried upon the Statute of 35 H. 8. 2. 188. Suspition shall be tried by the Justices 248. The Ecclesiastical Court cannot try the limits or bounds of Parishes 28. Offence where not triable 139 140. Trust Lease to a Recusant in Trust whether seizable for Recusancy 169. Whether a convicted Recusant be incapable of a Trust 169. Whether Lands conveyed in trust for a convicted Recusant may be seized 169. Value Clear yearly value 136. Where Lands and Goods shall be valued together and where not 136 137. Verdict See Covin Informations Vniversity See Advowson Covin Where the University of Cambridge or Oxford shall present or nominate to an Ecclesiastical living c. whereof a Popish Recusant convict is Patron and where not 227 228 229 230 231 232. What is thereby given them 229 230. Whom they may Present or Nominate and whom not 227. 233. Chancellor and Schollers where a good description of the University 229. They shall not Present unless the Recusant remained convict at the time of the Avoidance 230. Not necessary that he remain convict when they bring their Quare Impedit 230. What acts of the Recusant shall bar the University from presenting c. 230 231 232. Whether his being attainted of Treason Felony or Praemunire shall bar them 232 233. Void see Informations Vsher see Schoolmaster Vtlawry See Conformity A Term sold upon Utlawry shall be restored upon Reversal 179 180. Where upon Reversal of an Utlawry the Patron shall be restored to his Presentment and where not 180. Imprisonment by Covin shall not avoid an Utlawry 256. Wast See Guardian Recusants Warrant see Iustices of Peace Wast Where security must be given not to commit Wast in the Recusants Lands 173. Will see Probate Witness Where no Indictment or Arraignment without sufficient proof 16 17. 47 The Witnesses to be produced face to face at the parties Arraignment 17. A Popish Recusant convict is disabled to be a Witness 216. Women See Baron Feme Seas FINIS WHereas since the Expiration of the late Act for Printing many Persons do unjustly take liberty to Print the Copies of other Men to their great Damage and least we should be censured to be guilty of the like illegal and unjust Practise These are to satisfie all Persons Booksellers and others That the Statutes concerning RecusantS Printed in this Book were not done without the leave of the Proprietors first obtained and satisfaction to them given for the same John Wright Ric. Chiswell ERRATA Preface read concern Instead of Goal and Goal delivery read Gaol and Gaol delivery PAge 6. l. 4. r. C. p. 14. l. 20. r. Put. p. 19. l. 5. r. Whereas p 22. l. 41. r. Statutes p. 23. l. 30. r. until alter p. 24. l. 35. r. tent p. 25. l. 39. r. this p. 26. l. 7. r. him l. 34. r. 41. p. 30. l. 7. r. Assize p. 31. l. 30. r. Leppingwells p. 37. l. 37. r. the full l. 41. r. c. 193. p. 38. Margent r. Eliz. p. 41. l. 15. r. disallowed p. 60. l. 27. r. Plaintiff Qui tam c. p. 61. l. 10. r. or for p. 62. l. 28. r. two hundred and twenty pounds p. 67. l. 17. r. here given p. 69. l. 29. r. C. 138. p. 76. l. 24. r. Co. 11.65 p. 81. r. cap. 1. l. 36. r. Information c. p. 83. l. 35. r. before cited p. 85. l. 16. r. Keymer p. 86. l. 19. r. Manwood p. 87. Margent r. Sect. 12. p. 89. l. 3. r. disobedient p. 90. Margent r. Sect. 3. p. 99. Margent r. Sect. 1. p. 100. Margent r. 23 Eliz. l. 38. r. Reports p. 103. l. 32. r. 20 l. p. 104. l. 5. r. without Proclamation p. 107. l. 9. r. and that p. 125. r. Stat. 35 Eliz. p. 127. l. 3. r. places p. 130. l. 6. r. conclusion p. 131. Margent r. Sect. 3. p. 153. Margent r. Sect. 5. p. 160. l. 5. r. afterwards p. 172. l. 30. r. Sect. 20. p. 175. l. 20. dele Bishop or l. 24. r. that case p. 178. l. 17. r. in my Conscience p. 183. l. 31. r. are p. 184. l. 38. r. of p. 188. l. 19. r. of Trial. p. 190. l. 4. r. on p. 196. l. 12. r. other person p. 207. l. 34. r. on such l. 35. r. talis p. 208. l. 4. r. this recital p. 222. Margent r. Sect. 16. p. 223. l. 33. r. of disability p. 229. l. 43. r. Provisors p. 260. r. 261. In the Table title Seminary r. By whom examinable and To what questions
Peace is sole Judge whether the excuse Excuse the party makes for his absence be sufficient and sufficiently proved And the same cannot be brought into question elsewhere by the party To levy twelve pence for every such default So that this Forfeiture of twelve pence may be levied weekly For it is due for every absence as soon as the Sunday is ended and hath no relation to the forfeiture of twenty pounds per month given by the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Recusants may forfeit the twelve pence and twenty pounds both But the Offender may be punished both by this Act for his weekly absence and by 23 Eliz. for his monthly absence By Coke Chief Justice B. R. Rolles 1. 94. Dr. Fosters Case And because in one Act of Parliament begun and holden at Westminster in the five and thirtieth year of the late Quéen Eliz. Stat. Sect. 24. A Repeal of two branches of the Statute of 35 Eliz. 1. Intituled An Act to retain the Quéens Majesties Subjects in their due Obedience there are two branches contained the first beginning thus And for that every person having House and Family is in duty bounden to have especial regard of the good government and ordering of the same and so forth to the next Clause beginning thus Provided nevertheless That this Act shall not in any wise extend to punish or impeach any persons for relieving c. ending with these words Any thing in this Act contained to the contrary notwithstanding Which said two Branches or Clauses are found defective Be it therefore Enacted That the said two Branches or Clauses of the said Act and no more shall be by Authority of this present Parliament utterly repealed and made void Vide Stat. 35 Eliz. cap. 1. Sect. 7. Stat. 35 Eliz. 1 And in lieu thereof Be it Enacted Stat. Sect. 25. Maintaining or keeping a Recusant in his house that every person and persons which after one month next after the end of this present Session of Parliament shall willingly maintain retain relieve kéep or harbour in his or their House any Servant Sojourner or Stranger who shall not go to or repair to some Church or Chappel or usual place of Common Prayer to hear Divine Service but shall forbear the same by the space of one month together not having a reasonable Excuse contrary to the Laws and Statutes of this Realm shall forfeit ten pounds for every month that he she or they shall so relieve maintain retain keép or harbour any such Servant Sojourner or Estranger in his or their House so forbearing as aforesaid And that every person Retaining a Recusant in his Service fee or livery which shall within the time aforesaid retain or kéep in his her or their service fée or livery any person or persons which shall not go to or repair to some Church Chappel or usual place of Common Prayer to hear Divine Service but shall forbear the same by the space of one month together shall forfeit for every month he she or they shall so retain kéep or continue in his or their service fée or livery any such person or persons so forbearing as aforesaid knowing the same ten pounds the same penalties to be recovered and employed in manner and form hereafter following Willingly c. kéep or harbour Master where not punishable A man freely and of his own accord takes an Apprentice or Covenant Servant for a certain time not knowing him or her to be a Recusant and such Apprentice or Servant forbears to come to Church It seems that the Master shall forfeit nothing although he keeps them in his House For he doth no more then what the Law will compel him to during the time agreed on and limited for such Apprentiship or Service and this cannot be said to be done willingly for 't is not in his choice to discharge them until the time is expired Where punishable But if the Master before he took such Apprentice or other Servant knew him or her to be a Recusant or after their forbearance to come to Church retains them for a longer time then was at first agreed on this is a keeping or harbouring them willingly and he shall be liable to this penalty In his her or their service Fée or Livery This extends to all Servants whatsoever although they dwell not in the Masters House nor are his menial Servants for if they are retained in his Service Fee or Livery as Bailiff Steward or in any other capacity and forbear to come to Church the Master shall be punished for their absence Penalty Ten pounds Note in the late additions to Dalton cap. 81. tit Recusants Sect. 27. The penalty upon this Branch of the Act is mistaken and said to be in some Cases Twenty pounds per month and in other Cases One hundred pounds per month The contrary whereof is evident Stat. Sect. 26. The Father Mother Ward and Person committed by Authority Provided nevertheless That this Act shall not in any wise extend to punish or impeach any person or persons for maintaining retaining relieving keeping or harbouring his her or their Father or Mother wanting without fraud or Covin other habitation or sufficient maintenance or the Ward of any such person or any person that shall be committed by Authority to the custody of any by whom they shall be so relieved maintained or kept Any thing in this Act contained to the contrary notwithstanding Child where punishable Wanting without fraud or Covin other habitation or sufficient maintenance A Father or Mother hath no setled habitation but yet hath sufficient maintenance The Child receives such parent into his House who forbears to come to Church in this Case the Child shall forfeit Ten pounds per month For although the Parent had no habitation yet this is not a wanting habitation within the meaning of this Act seeing he wanted not sufficient means to procure one Where not But if the Parent hath an habitation yet if he want sufficient maintenance to keep him in that habitation although he refuse to come to Church the Child shall forfeit nothing for receiving him into his House for the words here are in the disjunctive and if the Parent wants either other habitation in the sense of the Act or sufficient maintenance the Child may receive him That shall be committed by Authority to the custody c. Master where not punishable The former Case of an Apprentice was put only of such an one whom the Master takes of his own accord but if it be a Parish Child bound by the Churchwardens and Overseers with the assent of the Justices of Peace if the Master be duly required to take him such Apprentice as it seems is committed to the Masters custody within the meaning of this Proviso for he is punishable if he refuse him and if he were a Recusant or forbear to come to Church yet the Master
Schisme 16. House Where a man may keep a Recusant in his house and where not and the Penalty 191 192 193. Ieofailes Informations on penal Laws within which Stat. of Jeofailes and within which not 73. Iesuite See Iustices of Peace Seminary Priest Imprisonment See Baron Feme Covin Imprisonment in what cases 12 13 14 15. 21 22 23 24 25 26. 59. 64. 70. 79. 86. 96 97. 107. 114. 162 163. 174 175. 182. 189. 193. 198. 211. 216. 237. 250 251 252 253 254. Incapacity see Disability Incertainty see Informations Indictments See Alien Conformity Iustices of Peace Parish Péers Recusants Sessions Witnesses Where 't is necessary that the Indictment for the second offence domention the first Conviction and where not 22. Two Indictments before several Justices for the same offence the first Judgment shall stand 66. Where an Indictment must conclude contra formam Statuti and where contra formam Statutorum 65. 125 126. Indictment for refusing the Oath of Supremacy 40 41. Indictment of Praemunire for refusing the Oath of Allegiance where it must be special and where it may be general 176. It must be directed by the Mittimus 176. Indicting a man of High Treason where actionable 58. Indictment for Recusancy the form of it 107. 129. It need not mention that the party was within the Realm 107. Where such Indictment or the Proceedings thereupon may be avoided or discharged without Conformity and where not 179 180 181. Existens aetatis 16. annorum shall refer to the time of the offence and not of the Indictment 60. In an Indictment on 1 Eliz. 2. for not coming to Church not necessary to aver that the party is an Inhabitant within this Realm 26. Or that he had no lawful or reasonable excuse 26 27. Informers Informations Actions Popular c. See Alien Audita Querela Baron Feme Conformity Ieofailes Plea Sunday In an Information tam c. quam c. Conviction thereupon is a sufficient Conviction within the intent of 23 Eliz. 1. 60 61. In what Courts an Informer Qui tam c. may sue and in what not 82 83 84 85. 100 101. 122. 160. Where an Informer may sue by Bill in the Kings Bench and where not 85 86. Within what time an Informer Qui tam c. must sue 73 74. 122. 160. Popular suit when depending 76. Where a Popular Action or Information becomes appropriated to a particular person 76. 78. Such Suit may be appropriated before Process 76. Two Informations for the same offence 76 77. The Defendant in an Information pleads that a prior Information is depending but mistakes the day of exhibiting it and yet good 76 77. Two Informations supposing the same offence to be done at several times where the first may be pleaded in bar of the second 77. How that case differs from the case of Recusancy 77. Two Informations exhibited the same day for the same offence are both void 78. When an Information may be delivered 78. When it must be dated 78. Action Popular brought by Covin no bar 79. Tam pro Domino Rege c. material 71. In an Information for Recusancy what the Informer is to demand for himself 71. His demand must be certain 72. He demands less then appears to be due yet good 62. He demands for 13 months and the Jury find for 12. Quaere whether the verdict be good or void for incertainty 62 63. Judgment of one moiety to the King and another to the Informer good 72. Where an Information may conclude contra formam Statuti and where it must be contra formam Statutorum 72. Where the particular Statute must be named 71 72. Where upon the demise of the King the proceedings in a popular Suit shall be discontinued and void and where not 80 81. Scire facias against an Informer 82. Where an Informer shall pay Costs 82. But he shall not find Sureties for Costs 82. In an Information for not receiving the Sacrament after Conformity the conviction of the Recusant must be shewed in certain 158 159. Where the Defendant may lose his advantage in that case 158 159. But his Conformity may be shewed generally 159. An Information lies in that case for the third year although the party were never convicted for the first or second year 159 160. Where an Informer is barred and where not 76 77 78 79 80. 163. 166. 167 168 253 254 255. An Informer Qui tam c. may be nonsuited 81. Inquisition see Office Inquiry see Enquiry Intent In what cases material 35. 52 53. Iointure See Baron Feme Where it may be averred that the Lands were for Jointure and where not 214. Where a woman shall be disabled to have a Jointure and what Jointure 220 221. What is a good Jointure within 27 H. 8. cap. 10. and what not 213 214. 221 222. Ireland See Alien Laws Treason Issue See Plea General issue where it may be pleaded 194. Iudgment See Conformity Conviction Failer of Records Informations The Judgment on 1 Eliz. 2. of the Common Prayer 25. The Judgment in a Praemunire 46. The Judgment on 23 Eliz. 1. shall be absolute 86. Where Judgment must be given for the first offence before the party can be punished for the second offence and where not 25. 159 160. Iurisdiction See Archbishop Ecclesiastical Iurisdiction King The penalty on him who holds with or maintains any forraign Jurisdiction within this Realm 11 12 13. 33 34. 36. 41 42. Within what time the offender must be prosecuted on 1 Eliz. 2.13 14 15. Iustices See Indictments Trial. The Justices shall fine and imprison the offender 97. Iustices of Assize and Gaol-delivery To whom they may tender and give the Oath of Allegiance 175 176. 242. 250. What offences they may hear and determine 28 29. 65. 107. 158. 162. 188. 193 194. 258. What offences Justices of Assize can only enquire of 35 36 37. Iustices of the Kings Bench. See Court of Kings Bench Iustices of Oyer and Terminer See Iustices of Peace What offences Justices of Oyer and Terminer may hear and determine 28 29. 36. 65. 258. Iustices of Peace Justices of Peace shall not be comprehended under the general name of Justices of Oyer and Terminer 258. What offences Justices of Peace may hear and determine and what not 65 66. 162. 193 194. 258 259. They may hear and determine the offence of not coming to Church 66. 162. What offences they can only enquire of 35 36. 65. 101. Where they cannot meddle 68. An Informer Qui tam c. cannot sue before Justices of Peace 82 83 84 85. 160. What Acts a Justice of Peace may do out of his County and what not 238 239. 249. His Potestas Jurisdictionis is confined to his County 238 239. The power of Justices of Peace in reference to the Oath of Allegiance twofold 196. Their power inlarged by 7 Jac. 6. 176. 245. The Justice of Peace impowred to tender and give the Oath of Allegiance may grant