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
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
Parliament Assembled tending to the utter subversion of the whole State lately undertaken by the instigation of Iesuits and Seminaries and in advancement of their Religion by their Schollers taught and instructed by them to that purpose which attempt by the only goodness of Almighty God was discovered and defeated And where divers persons Popishly affected do nevertheless the better to cover and hide their false hearts and with the more safety to attend the opportunity to execute their mischievous designs repair sometimes to Church to escape the penalty of the Laws in that behalf provided For the better discovery therefore of such persons and their evil affections to the Kings Majesty and the State of this his Realm Stat. Sect. 2. to the end that being known their evil purpose may be the better prevented Be it enacted by the Kings most excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same That every Popish Recusant convicted or hereafter to be convicted which heretofore hath conformed him or her self or which shall hereafter conform him or her self and repair to the Church and continue there during the time of Divine Service according to the Laws and Statutes in that behalf made and provided shall within the first year next after the end of this Session of Parliament if he or she be conformed as aforesaid before the end of this Session of Parliament or within the first year next after that he or she shall after this Session of Parliament so conform him or her self and repair to Church as aforesaid and after the said first year shall once in every year following at the least receive the blessed Sacrament of the Lords Supper in the Church of that Parish where he or she shall most usually abide or be within the said year wherein by the true meaning of this Statute he or she ought so to receive The forfeiture of a conformed Recusant which doth not receive the Sacrament of the Lords Supper yearly And if there be no such Parish Church then in the Church next adjoyning to the place of his or her such most usual abode And if any Recusant so conformed shall not receive the said Sacrament of the Lords Supper accordingly he or she shall for such not receiving lose and forfeit for the first year Twenty pounds and for the second year for such not receiving Forty pounds and for every year after for such not receiving thréescore pounds until he or she shall have received the said Sacrament as is aforesaid And if after he or she shall have received the said Sacrament as is aforesaid and after shall eftsoons at any time offend in not receiving the said Sacrament as is aforesaid by the space of one whole year that in every such Case the person so offending shall for every such offence lose and forfeit Threescore pounds of lawful English money the one moiety to be to our Soveraign Lord the Kings Majesty his Heirs and Successors and the other moiety to him that will sue for the same And to be recovered in any of the Kings Courts or Record at Westminster or before Iustices of Assize or general Goal delivery or before Iustices of the Peace at their general Quarter Sessions by Action of Debt Bill Plaint or Information wherein no Essoin Protection or wager of Law shall be allowed Popish Recusants Every Popish Recusant convicted Wingate tit Crowne numb 98. speaks indefinitely as if this extended to all Recusants whatsoever which is contrary to the express words of the Statute Conviction must be shewed in certain In an Information upon this Statute for not receiving the Sacrament the Conviction of the party for Recusancy ought to be shewed in certain before whom in what Court c. For before he is convicted of Recusancy he is not liable to the penalty inflicted by this Act for not receiving And yet if it be only generally shewed in the Information that the Defendant was convicted in due form of Law and the Defendant doth not demur thereto but pleads not guilty and it be found against him there Judgment shall not be stayed for this defect for he hath lost his advantage and by his Plea hath admitted the point of Conviction and at the Trial the only thing in issue was whether he had received the Sacrament and not whether he was convicted Tanfeild Chief Baron compared this Case to that of Debt upon an Obligation and in the Declaration no place is shewn That is not good But if the Defendant Pleads a Release he shall never afterwards take advantage of the Defect in the Declaration Cro. Hill 12. Jac. 365.366 Sivedale versus Sir Edward Lenthall Which shall hereafter conform him or her self Conformity generally shewed sufficient c. This conformity need not be set forth in the Information in every particular circumstance as when or before whom the Popish Recusant conformed himself For 't is sufficient if it be said that he went to Church and continued there during Divine Service and afterwards neglected to receive the Sacrament c. And upon such Conformity and neglect he is liable to the penalty inflicted by this Act although he never went before the Ordinary Ordinary Cro. Hill 12. Jac. 366. And for every year after for such not receiving thréescore pounds Note the Statute saith not that the Offender shall forfeit for the first second and third offence but for the first and second year and for every year after for if it had been said he should have forfeited Twenty pounds for the first offence Forty pounds for the second and Threescore pounds for the third he must have been convicted and have had Judgment of the first offence before he could have incurred the penalty for the second and of the second before he could have incurred the penalty for the third And every one of these offences must have appeared judicialiter which could not be ante Judicium But here where 't is said he shall forfeit Twenty pounds for the first year Forty pounds for the second and Threescore pounds for every year after it is otherwise And the Offender shall forfeit Threescore pounds for the third year although he was never convicted for the first or second year In an Information for the third year conviction for the first or second year not necessary And therefore in an Information brought upon this Statute for Threescore pounds against a Popish Recusant convicted for Recusancy who hath conformed and neglected to receive the Sacrament the third year after his Conformity It 's sufficient to set forth that he was a Popish Recusant and was convicted and conformed himself and went to Church c. two years before such a day and that after the said day he failed for a whole year to receive the Sacrament without mentioning what he did the first or second year after his conformity And so was the Information in
Vide Rolles abridg tit Temps 521. Counsel and Trial by Peers Praemunire In the aforesaid Case of the Lord Vaux who was Indicted of a Praemunire for refusing this Oath the Court of Kings Bench denied him Counsel or Trial by his Peers And it was there held that the Trial of a Nobleman by his Peers is at Common Law in four Cases only viz. Treason Felony Misprision of Treason and Misprision of Felony but not to be allowed in the Case of a Praemunire for that in effect it is no more then a Contempt Bulstrode 1. 197 198 199. Stat. Sect. 32. Who shall take the Oath in the Cinque Ports Provided also and be it Enacted by Authority of this Parliament That where any person or persons shall go or pass out of the Cinque Ports or any Member thereof to any parts beyond the Seas to serve any Forreign Prince State or Potentate that in every such Case the Lord Warden of the Cinque Ports for the time being or any person by him in that behalf appointed or to be appointed shall have full Power and Authority by virtue hereof to take the Bond and minister the Oath to such Passengers as is above mentioned If the Warden of the Cinque Ports Warden of the Cinque Ports do take such Bond and minister such Oath and do not certifie them into the Exchequer this seems to be Casus omissus and not provided for by the Act For he shall not be liable to the penalty inflicted on the Customer and Controller For that although it be within the same mischief there are no express words here to reach him And penal Statutes shall not be taken or construed by Equity Lee 77. Bishop of Chichester versus Freeland Rolles 2. 420. Jones versus Lord Sheffeild Ratcliffe Yelverton 22. Brode versus Owen Plowden 17. Fogassa's Case Et 86. Partridges Case Co. 1. Inst. 238. Keilwey 96. Stat. iii Jac. cap. v. An Act to prevent and avoid dangers which may grow by Popish Recusants Stat. Sect. 1. WHereas divers Iesuits Seminaries and Popish Priests dayly do withdraw many of his Majesties Subjects from the true Service of Almighty God and the Religion established within this Realm to the Romish Religion and from their Loyal Obedience to his Majesty and have of late secretly perswaded divers Recusants and Papists and encouraged and emboldened them to commit most damnable Treasons tending to the overthrow of Gods true Religion the destruction of his Majesty and his Royal Issue and the overthrow of the whole State and Commonwealth if God of his goodness and mercy had not within few hours before the intended time of the execution thereof revealed and disclosed the same wherefore to discover and prevent such secret damnable conspiracies and Treasons as hereafter may be put in ure by such evil disposed persons if remedy be not therefore provided Stat. Sect. 2. The reward of him which discovereth a Popish Priest or Mass Be it Enacted by the Kings most Excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same That such person as shall first discover to any Iustice of Peace any Recusant or other person which shall entertain or relieve any Iesuite Seminary or Popish Priest or shall discover any Mass to have beén said and the persons that were present at such Mass and the Priest that said the same or any of them within threé days next after the offence committed and that by reason of such discovery any of the said Offenders be taken and Convicted or Attainted That then the person which hath made such discovery shall not only be fréed from the danger and penalty of any Law for such offence if he be an Offender therein but also shall have the third part of the forfeiture of all such sums of Money Goods Chattels and Debts which shall be forfeited by such offence so as the same total forfeiture exceéd not the sum of One hundred and fifty pounds and if it excéed the sum of One hundred and fifty pounds the said person so discovering the said offence shall have the sum of Fifty pounds only for every such discovery And such person so discovering the same after conviction of the offender shall have a Certificate from the Iudges or Iustices of Peace before whom such Conviction shall happen to be directed to the Sheriff or other Officer of the same County Limit or Place that shall seize the Goods or levy the said forfeiture commanding the said Sheriff or other Officer to pay the same accordingly to him that so discovered the same out of the monies to be levyed by vertue of the said forfeitures which Warrant and payment shall be effectual in the Law for that purpose and a sufficient discharge in that behalf for the Sheriff or other Officer upon his Accompt Within threé days next after the Offence committed Discovery within what time So that if three days next after the Offence committed elapse before the discovery is made the discoverer shall have no benefit by this Act. And therefore if the person discovering had no notice of the Offence till the three days expire although he discovers it presently upon such notice given him yet he comes too late much less shall he have three days after notice as Wingate tit Crowne numb 128. mistakes the meaning of this Clause Commanding the said Sheriff or other Officer to pay the same In the late additions to Dalton cap. 81. tit Recusants Who is to pay the discoverer Sect. 57. 't is said that the Sheriff is to grant his Warrant for the payment of the discoverer but that is a misrecital of the Statute for the Sheriff himself is to pay him And whereas the repair of such evil affected persons to the Court or to the City of London may be very dangerous to his Majesties person and may give them more liberty to méet Stat. Sect. 3. A Popish Recusant shall not come to Court consult and plot their Treasons and practices against the State then if they should be restrained and confined unto their private Houses in the Country For remedy hereof Be it Enacted by the Authority aforesaid That no Popish Recusant Convicted or to be Convicted shall come into the Court or House where the Kings Majesty or his Heir apparent to the Crown of England shall be unless he be commanded so to do by the Kings Majesty his Heirs and Successors or by Warrant in writing from the Lords and others of the most Honourable Privy Council of the Kings Majesty his Heirs and Successors or any of them upon pain to forfeit for every time so offending one hundred pounds the one moiety to the Kings Majesty his Heirs and Successors the other moiety to him that will discover and sue for the same by Action of Debt Bill Plaint or Information in any one of his Majesties Courts of Record wherein no Essoign protection or wager
a farther distance although they inhabited in that which was within London or ten miles for three months next before that Session of Parliament yet if they were not Tradesmen at the time of making of this Act they should have had no benefit by this Proviso but ought within ten days after such Indictment or Conviction for Recusancy to have removed out of the compass of ten miles Stat. Sect. 7. And whereas by a Statute made at Westminster in the Five and thirtieth year of the Reign of Queén Elizabeth Intituled An Act for the restraining of Popish Recusants to some certain place of abode it was amongst other things Ordained and Enacted That every Popish Recusant then or after Convicted for not repairing to Church Chappel or usual place of Common Prayer A Recusant confined having any certain place of dwelling and abode within this Realm should within the time limited by the said Statute repair to their place of usual dwelling and abode or not having any certain place of dwelling or abode within this Realm should likewise within the time limited by the said Statute repair to the place where such person was born or where the Father or Mother of such person should be dwelling and not at any time remove or pass above five miles from thence under the pains in the said Statute limited and provided Which Statute by reason of sundry Licences given unto such Recusants under colour of a Proviso in the said Statute contained hath not wrought that good effect in the Commonwealth as was hoped Be it therefore Enacted Ordained by this present Parliament and by the Authority of the same That the said Statute made in the said Five and thirtieth year of the said Quéen Elizabeth for and concerning the confining of the said Recusants under the pains and penalties therein contained shall by this Act and by the Authority of the same be confirmed and be hereafter put in due execution according to the tenour true intent and meaning of the said Statute in that behalf made Repeal of a Proviso in 35 Eliz. 2. And that the said Proviso in the said Statute contained giving power to grant Licence or Licences unto the said Recusants to go and Travel from or out of the compass of the said five miles shall be from and after the end of this present Session of Parliament utterly repealed and void Any thing in the said Statute to the contrary notwithstanding Then or after Convicted Vide Sect. 8. infra Giving power to grant Licence or Licences unto the said Recusants The Proviso in the Statute of 35 Eliz. cap. 2. here repealed is only that which there impowers the Justices of Peace For that is the only Proviso which gives power to grant Licences And the cause here alledged for the Repeal is the giving of sundry Licences to Recusants under colour of a Proviso in 35. which can be construed only of those which were to be given by the Justices of Peace and not of the other Licences given by 35. in several other cases so that the Proviso's there permitting the Popish Recusant to Travel in case of Process or commandment by Privy Counsellors or the Queens Commissioners or Proclamation to render his body to the Sheriff remain still in force and unrepealed and the Recusant may take the benefit thereof at this day Stat. Sect. 8. Provided nevertheless and be it further Enacted by this present Parliament and by the Authority of the same That it shall and may be lawful for the Kings most excellent Majesty his Heirs and Successors or for thrée or more of his Majesties most Honourable Privy Council or for threé or more of the Privy Council of his Heirs or Successors in writing under the hands of the said Privy Counsellors Licence to a Popish Recusant confined to give Licence to every such Recusant to go and Travel out of the compass of the said five miles for such time as in the said Licence shall be contained for their travelling attending and returning and without any other Cause to be expressed within the said Licence And if any of the persons which are so confined by virtue of the said Statute as is aforesaid shall have necessary occasion or business to go and Travel out of the compass of the said five miles That then and in every such Case upon Licence in writing in that behalf to be gotten under the Hands and Seals of four of the Iustices of Peace of the same County Limit Division or place next adjoyning to the place of abode of such Recusant with the privity and assent in writing of the Bishop of the Diocess The effect of a Licence to be granted by four Justices of Peace or of the Lieutenant or of any Deputy Lieutenant of the same County residing within the said County or Liberty under their Hands and Seals In every of which Licence or Licences in writing so to be had and made shall be specified and contained both the particular cause of the said Licence and the time how long the said party licensed shall be absent in travelling attending and returning It shall and may thereupon be lawful for every such person so licenced to go and Travel about such their necessary business and for such time only for their travelling attending and returning as shall be comprized in the said Licence the said party so licenced first taking his corporal Oath before the said Four Iustices of the Peace or any of them who shall have Authority by virtue of this Act to minister the same that he hath truly informed them of the Cause of his Iourney and that he shall not make any causless stays And that all and every Licence hereafter to be made in this behalf contrary to the tenor effect and true meaning of this Statute shall be utterly void frustrate and of none effect Any thing in the said former Act or in this Act to the contrary notwithstanding And every person so confined which shall depart or go above five miles from the place whereunto he is or shall be confined not having such Licence and not having taken such Oath as aforesaid shall incur the pain and penalty and forfeit as a Recusant Convicted and passing or going above five miles from the said place whereunto he is or shall be confined by the said Statute of tricesimo quinto Elizabethae should do For the Kings most Excellent Majesty c. or for thrée or more of his Majesties most Honorable Privy Councel c. to give Licence to every such Recusant What recusants may be Licensed to travel above five miles By such Recusant is intended here such Recusant as is confined by the Statute of 35 Eliz. 2. and not only such as was mentioned in the foregoing Clause of recital For that recital is imperfect in that it mentions only the Popish Recusant Convicted Stat. 35 Eliz. 2 Imperfect recital here whereas 35 Eliz. speaks as well of the Popish
Recusant not Convicted who hath no certain place of aboad as of the Popish Recusant Convicted And the benefit of having Licences from the King or three Privy Counsellors by force of this Act is intended as well to the one as the other although the Convicted only are mentioned in the recital and this will plainly appear first by the following words here which impower the Justices of Peace to grant Licences and expresly extend to all persons confined by vertue of the said Statute that is the Statute of 35 Eliz. now it cannot be presumed that the makers of the Law intended any difference between the persons to be licenced by the King or Privy Counsellors and the persons to be Licensed by the Justices of Peace the only difference being in the manner of granting the Licence the power given to the King or Privy Counsellors being more absolute and not under such precautions as is that which is given to the Justices of Peace For the King or Privy Counsellors may grant a Licence to the Recusant to travel without any particular cause shewn in the Licence or the assent of any other person and without any Oath to be made by the Recusant which the Justices of Peace cannot do And there is no reason to think that the Power here given to the King or Privy Counsellors which in all other particulars is so much more absolute and extensive then that given to the Justices of Peace should be yet less extensive as to the persons to be Licensed Secondly It were absurd to think that the Makers of the Law intended to confer a greater priviledge upon the Recusant convicted whose Offence appears upon Record then to such as are not convicted Et ealis interpretatio in ambiguis semper fienda est ut evitetur inconveniens absurdum But if by such Recusant should be meant only such as are mentioned in the recital viz. those Convicted and not all who are Confined by 35 Eliz. It would follow that the Convicted Recusant who is the more notorious Offender may have a Licence without any cause shewn or Oath made But he who is not Convicted is barred of that priviledge and can apply himself only to the Justices of Peace for a Licence clogged with divers circumstances which are not required in a Licence granted by the King or the three Privy Counsellors Shall not impeach 35 El. 2. Much less shall this Recital of the Statute of 35 Eliz. impeach the express words of that Statute as if no other Popish Recusants were intended to be confined thereby but only such as are Convicted because no other are mentioned in the Recital For the Recital of an Act of Parliament in another Act of Parliament being only by way of Preface or Introduction cannot add to or diminish the Act recited or make it liable to any other construction then what shall naturally flow from the Act it self Vide Co. 4. Inst 331. Vide Stat. 35 Eliz. cap. 2. Sect. 3. Without any other cause to be expressed Here is one difference between a Licence by the King or three of the Privy Counsel Necessary business where requisite to a Licence where not and a Licence by Justices of Peace For by these it ought not to be granted unless the Popish Recusant hath necessary occasions or business But the Kings or Privy Counsellors Licence may be granted in any Case at the Recusants request Seals and Subscription Vnder the Hands and Seals An Indictment was brought upon the Statute of 35 Eliz. 2. for travelling out of the compass of five miles The Recusant pleaded a Licence under the Seals of four Justices of Peace and exception was taken to the Plea For that the Licence ought to have been under their Hands as well as their Seals Cro. Mich. 12 Jac. 352. Maxfeilds Case And this is a good exception for a Licence by Justices of Peace although in Writing is not sufficient without Seals and Subscription both Rolles 1. 108. C. 47. Mucclefields Case Four Justices Peace Of four of the Iustices of Peace And a Licence from less then four will not now serve since the repeal of the aforesaid Branch of 35 Eliz. touching Licences Stat. 35 Eliz. 2 and therefore the Case of Mucclefield Mich. 12 Jac. in Rolles 1. 108. C. 47. is misreported in that particular For there mention is made of a Licence from two Justices of Peace as if no more were then requisite and that Case could not be grounded upon the Proviso in 35 Eliz. which required only two Justices as well for the distance of time being nine years after the Repeal of the said Proviso as for that in the said Case of Mucclefield there is mention of a Licence under the Seals of the Justices of Peace and of the Oath to be taken by the Recusant neither of which was appointed by the said Proviso in 35 Eliz. but by this Statute of 3 Jac. which must therefore necessarily be there intended and not any Statute of 1 Jac. which is another mistake in the Report of that Case Vide the Case and the objections urged against the Licence there in question With the privity and assent in Writing of the Bishop c. the Lieutenant or of any Deputy Lieutenant An Information was brought against a Popish Recusant Convict for removing above five miles from the place of his confinement who pleaded a Licence from four Justices of Peace but the Plea was disallowed saith the Reporter because he did not set forth that the Licence was granted with the privity of the Bishop or Lieutenant Mich. 12 Jac. Moore 836. C. 1127. Mansfields Case Assent of a Deputy Lieutenant sufficient But yet if it had been granted with the assent of any Deputy Lieutenant residing in the County there 's no doubt but it had been good enough The Bishop Lieutenant or Deputy Lieutenant Five persons viz. four to Licence and one to assent who gives his assent must be a distinct person from the Justices of Peace who grant the Licence And therefore if one and the same person be a Justice of Peace and Deputy Lieutenant he cannot Act herein in both Capacities For una persona non potest supplere vicem duarum And if he Sign and Seal the Licence as a Justice of Peace the assent of some other Deputy Lieutenant or of the Bishop or Lieutenant must be had thereto or the Licence is void Cro. Mich. 12 Jac. 352. Maxfields Case Moore 836. C. 1127. Mansfields Case Rolles 1. 108. C. 47. Mucclefields Case And although the Rule be Quando duo jura concurrunt in una persona aequum est ac si essent in diversis yet that Rule holds not in such Cases where distinct persons are necessarily required by the Law Co. 7. 14. Calvins Case and here four persons are necessarily required to grant the Licence and another person to assent to it In Maxfields Case B. R. one exception to the Licence was Licence and
assent in one Writing that the assent of the Deputy Lieutenant was contained in the Licence granted by the four Justices of Peace and was not separate and distinct by it self Cro. Jac. supra but to this the Court made no answer And it seems that such an Assent is well enough though in the same Writing with the Licence if it be expressed that the four Justices do Licence and the Deputy Lieutenant doth assent and such Writing be under the Hands and Seals of all five Residing within the said County or Liberty Residence in the County These words seem to refer as well to the Bishop and Lieutenant as to the Deputy Lieutenant so that if a Bishops Diocess extends into divers Counties and he resides in one of them His assent can be good only for the Popish Recusants of that County where he resides and not for those of any other part of his Diocess so if a Lieutenant reside out of the County whereof he is Lieutenant his assent to such Licence is void And that these words residing within the said County or Liberty cannot be restrained to the Deputy Lieutenant only appears by those next beforegoing viz. of the same County which clearly relate to the Lieutenant as well as to the Deputy Lieutenant and by consequence so must the word immediately subsequent viz. Residing And as to the Bishop the inconvenience is the same as in the Case of the Lieutenant For by their remoteness they are disabled to judge of the condition and behaviour of the Recusant to be Licenced and of the circumstances wherein he stands and whether such Licence may be granted to him without hazard of the publick safety which seems to be the reason of this restriction to the County or Liberty where the party who is to assent resides and holds as well in the Case of the Bishop or Lieutenant as of any Deputy Lieutenant residing out of the County Particular cause of the Licence The particular cause of the said Licence In Maxfields Case B. R. another exception to the Licence granted by the four Justices was that it was said to be granted for certain urgent Causes but no particular Cause for the Recusants travel was expressed in the Licence Cro. Jac. supra And this seems to be a good exception for the inserting into the Licence that the Popish Recusant hath urgent or necessary occasion or business answers only the former part of this Proviso which gives the four Justices power to Licence him if he hath necessary occasion or business to travel out of the compass of five miles but withal it ought to be mentioned in the Licence particularly what that occasion or business is which is the cause of the Licence for so this Act here expresly appoints And therefore that form of a Licence for the Recusant to Travel which Dalton V. cap. 124. tit Licences hath set down wherein no other Cause is mentioned but urgent and necessary business seems too short and general and is not to be relied on which defect the Author of the late Additions to Dalton would have done well to have rectified Oath of Allegiance First taking his Corporal Oath In Mansfields Case Moore 836. C. 1127. There is another Oath mentioned for the Popish Recusant to take before he can be Licensed to Travel and that is the Oath of Allegiance prescribed by the Stat. of 3 Jac. cap. 4. Stat. 3 Jac. 4. For it s there said That in an Information brought against the Recusant for Travelling out of the compass of five miles the Defendant pleaded a Licence from four Justices of Peace and his Plea was disallowed because among other things he did not shew that before the Licence he had taken the Oath of Allegiance yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void But I rather think it to be a mistake and that such an exception might be moved but the Plea not disallowed for that reason One Justice may give the Recusant his Oath Before the said four Iustices of the Peace or any of them Mr. Sheapard thinks that no less then two of the four Justices of Peace can minister this Oath to the Recusant Sure guide cap. 14. Sect. 5. But I take it to be clear that any one of the four Justices may minister the Oath in this Case And there is a great difference between any Justices for that denotes the plural number as in the subsequent Clause about Armor where any Justices may imprison the Offender that is any two Justices or more and any of the Justices as here which denotes the singular number and the following words who shall have Authority by vertue of this Act to minister the same may be well enough applied to any one Justice of Peace That he hath truly informed them of the cause of his Iourney Averment that the cause is true If an Information be brought against a Popish Recusant for travelling out of his compass of five miles and he plead a a Licence from four Justices of Peace it seems necessary that he aver in his Plea that the Cause contained in his Licence was true and real Vide Moore 836. C. 1127. And be it further Enacted by the Authority aforesaid Stat. Sect. 9. A Recusant disabled to execute certain Offices and Functions That no Recusant convict shall at any time after the end of this Session of Parliament practise the Common Law of this Realm as a Chancellor Clerk Attorney or Solicitor in the same nor shall practise the Civil Law as Advocate or Proctor nor practise Physick nor exercise or use the Trade or Art of an Apothecary nor shall be Iudge Minister Clerk or Steward of or in any Court or kéep any Court nor shall be Register or Town Clerk or other Minister or Officer in any Court nor shall bear any Office or Charge as Captain Lieutenant Corporal Sergeant Ancient-bearer or other Office in Camp Troup Band or Company of Souldiers nor shall be Captain Master Governor or bear any Office or Charge of or in any Ship Castle or Fortress of the Kings Majesties his Heirs and Successors but be utterly dissabled for the same and every person offending herein shall also forfeit for every such offence One hundred pounds the one moity whereof shall be to the Kings Majesty his Heirs and Successors and the other moiety to him that will sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed And be it also Enacted by the Authority aforesaid Stat. Sect. 10. No Popish Recusant shall be a publick Officer That no Popish Recusant convict nor any having a Wife being a Popish Recusant convict shall at any time after the end of this Session of Parliament or any Popish Recusant hereafter to be convict or having a Wife which hereafter shall
the person Co. 1. Inst 128. Plea in disability is peremptory The Defendant in Debt upon an Obligation pleads that the Plaintiff is a Popish Recusant Convict who replies nul tiel Record Such Plea in disability of the person is peremptory and nul tiel Record is an Issue and Judgment shall be given against the Defendant upon failer of the Record Hetley 18. But yet if there be a Plea of a Conviction of Recusancy had before Justices of Gaol delivery and the Defendant mistakes and takes out a Certiorari Certiorari to the Justices of Peace this shall not be a failer of the Record Failer of Record although the Defendant hath it not at the day For that the issuing of the Certiorari was the Award of the Court But a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted Hobart 135. Pye against Thrill Note if the Defendant be sued in the Common Pleas or any other of the principal Courts at Westminster and he plead a Conviction of Recusancy before Justices of Gaol delivery or Justices of Peace he need not take his Certiorari Certiorari out of what Court out of the Chancery and so bring it by Mittimus But the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted as was held in that Case of Pye and Thrill vide 19 H. 6. 19. And the Justices themselves And by whom before whom the Conviction was had must certifie and therefore if the Conviction was before Justices of Peace the Certificate cannot be by the Custos Rotulorum Custos rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of Peace Hobart 135. A Popish Recusant is convicted of Recusancy in a popular Suit and after such Conviction sues the Informer Qui tam c. Who may take advantage of this disability Informer upon some other matter or cause of Action arising between them Quaere whether the Defendant may plead such Conviction in disability of the Recusant For this Conviction disables the Recusant to sue as if he were excommunicated and no otherwise Now if a Bishop Excommunicate any one and the Bishop Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated the Bishop cannot plead this Excommunication in disability of the Plaintiff who sues him Co. 1. Inst 134. Swinborne Part 5. Sect. 6. p. 305. And the reason given for this in Trollops Case Co. 8. 68. is because the Bishop was a party to the Excommunication and therefore shall take no advantage by it which reason seems to hold likewise in the Case of an Informer Qui tam c. who is a party to the Conviction of the Recusant upon the popular Suit which Conviction renders the Recusant disabled to all intents as an Excommunicant person And therefore he being a party to it by the same Rule shall not take advantage of it in disability of the Recusant in any Action brought by the Recusant against him But yet notwithstanding I conceive the Informer Qui tam c. at whose Suit the Recusant was convicted may well take advantage of this Conviction and plead it in disability of the person of the Recusant And that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by himself in disability of the person Excommunicated is not because he is a party to the Excommunication but because in matters of Excommunication the Bishop acts as a Judge and 't is by his Sentence and Authority that the party is Excommunicated and he shall not take advantage in another Suit of a Sentence given by himself judicially And this will not hold in the Case of an Informer who though he be a party to the Suit in which the Recusant is disabled as an Excommunicate person yet is no Judge in the Case whether the party Sued shall be disabled or no as the Bishop is in the other Case where the party is actually Excommunicated by him And if the Bishop should be barred to Plead and take advantage of such Excommunication because he is a party thereunto it would follow that the person who Sues in the Spiritual Court and at whose instance the person Sued is Excommunicated should be barred likewise to take advantage of such disability in the Plaintiff at Law for he is a party to the Excommunication for that he is a party to the Suit upon which the Excommunication is originally founded But the contrary to this is strongly implied in 14 H. 4. 14. where the Case was A. was Excommunicated in a Suit depending between him and B. and afterwards A. Sues B. upon the Statute of Praemunire who pleads this Excommunication in disability of the Plaintiff Here the Plea was disallowed because the principal Suit on which the Excommunication depended was brought before the Pope But in the debate of the Case there was not the least word of exception to the Plea upon this ground because the Excommunication was at the instance of the Defendant or that the Defendant should not take advantage of the Plaintiffs disability for that he was a party to the Excommunication which disabled him Executor or Administrator disabled If an Executor or Administrator becomes a Popish Recusant convict it seems he is disabled by this Act to Sue in either of those Capacities For the Act saith He shall be disabled to all intents as an Excommunicate person Now a person actually Excommunicated cannot Sue as Executor or Administrator as is held in 21 E. 4. 49. 21 H. 6. 30. 14 H. 6. 15. Co. 1. Inst 134. Although there are some opinions to the contrary Vide Finch 27. Stat. Sect. 13. What Suits a Popish Recusant may prosecute Provided nevertheless That it shall and may be lawful for any such person so disabled for and notwithstanding any thing in this Law contained to sue or prosecute an Action or Suit for or concerning only such of his or her Lands Tenements Leases Rents Annuities and Hereditaments or for the Issues and Profits thereof which are not to be seized or taken into the Kings hands his Heirs or Successors by force of any Law for or concerning his or her Recusancy or any part thereof Which are not to be seized or taken into the Kings hands c. These words are not restrained to such Lands Lands seized into the Kings hands c. as cannot be seized into the Kings hands for Recusancy For then the Recusant could in no case Sue for more then the third part for that the King may if he please make his Election and seize the other two parts in lieu of the Twenty pounds per month But they are intended of all Lands c. of the Recusant which neither the King hath seized nor are by Law to be seized by vertue of any thing
happen it is good reason not to strain the words farther then they reach but to say it is casus omissus and that the Law intended quae frequentius accidunt Vaughan 373. And yet there is no question but such Lands are a Joynture The extent of the word and if made with the Wives assent before marriage shall bar her Dower by the Statute of 27 H. 8. cap. 10. which speaks of an Estate or purchase made to the Wife for her Joynture generally not saying by whom Mr. Sheapard therefore in his Epitome p. 523. falls very short of the full description of a Joynture when he limits it only to be of the Franktenement of her Husband which restriction dayly experience confutes For that it is commonly made by the Ancestor of the Husband of Lands in which the Husband never had any Franktenement nor perhaps ever shall have Custom By vertue of any custom of any County City or Place And not of Cities only as 't is restrained in the late additions to Dalton cap. 85. tit Recusants Sect. 48. Where in force The Custom here mentioned viz. that the Wife shall have a certain portion of her Husbands goods after his decease is of force throughout the whole Province of York and in divers other places of England and if he gives them away from her by his Will the bequest is void Vide Swinburne Part 3. cap. 14. p. 151. 152. What goods are not within the Act. A Woman is an offender within this Branch and her Husband by his last will gives her all or part of his goods not claimable by custom she is not by this Act disabled to enjoy them after his death For the words here are plainly restrictive to such goods as she claims by custom Where not Tenant by Curtesie not One hundred pounds forfeited Whereof he may be intituled to be Tenant by the Curtesie A Popish Recusant convicted marries an Inheritrix in other form then is appointed by this Act The Wife dies without issue born alive of the marriage In this Case although the Husband is not intituled to be Tenant by the Courtesie yet the possibility which he once had to be so intituled seems to satisfie the intent of the Act and he shall not forfeit the hundred pounds So that here is another Casus omissus For it may so happen that a Popish Recusant Convict may have a great Portion in money with his Wife and but a small Estate in Lands with her perchance but a few Acres yet if he be an Offender within this branch the Lands for that he may be intituled to be Tenant of them by the Courtesie shall save his hundred pounds and if his Wife die having had no issue born alive he is wholly exempted out of the Act and cannot be punished either way Stat. Sect. 16. Baptism of Popish Recusants Children And that every Popish Recusant which shall hereafter have any Child born shall within one month next after the Birth thereof cause the same Child to be baptized by a lawful Minister according to the Laws of this Realm in the open Church of the same Parish where the Child shall be born or in some other Church near adjoyning or Chappel where Baptism is usually administred or if by infirmity of the Child it cannot be brought co such place then the same shall within the time aforesaid be baptized by the lawful Minister of any of the said Parishes or places aforesaid upon pain that the Father of such Child if he be living by the space of one month next after the Birth of such Child or if he be dead within the said month then the Mother of such Child shall for every such Offence forfeit one hundred pounds of lawful money of England one third part whereof to be to the Kings Majesty his Heirs and Successors one other third part to the Informer or him that will sue for the same and the other third part to the Poor of the said Parish to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed And if any Popish Recusant man or woman Stat. Sect. 17. Burial of Popish Recusants not excommunicate not being Excommunicate shall be buried in any place other than in the Church or Churchyard or not according to the Ecclesiastical Laws of this Realm That the Executors or Administrators of every such person so buried knowing the same or the party that causeth him to be so buried shall forfeit the sum of twenty pounds the one third part whereof shall be to our Soveraign Lord the King the other third part to the Informer or him or them that will sue for the same and the other third part to the Poor of the Parish where such person died to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or Wager of Law shall be admitted or allowed The Exception here of a Popish Recusant Excommunicate That is not actually Excommunicate is intended only of one actually Excommunicated and not of him who is a Popish Recusant convicted who shall not be reputed as a person Excommunicate to this intent but only as to the point of a disability as hath been said Sect. 12. So that if any Popish Recusant not actually Excommunicate be buried elsewhere or otherwise then is here mentioned although he were convicted yet 't is an Offence punishable by this Law And be it further Enacted by this present Parliament Stat. Sect. 18. Children departing the Realm That if the Children of any Subject within this Realm the said Children not being Soldiers Mariners Merchants or their Apprentices or Factors to prevent their good Education in England or for any other cause shall hereafter be sent or go beyond Seas without Licence of the Kings Majesty or six of his Honourable Privy Council whereof the principal Secretary to be one under their Hands and Seals The forfeiture of such as depart That then all and every such Child and Children so sent or which shall so go beyond the Seas shall take no benefit by any gift conveyance descent devise or otherwise of or to any Lands Tenements Hereditaments Leases Goods or Chattels until he or they being of the age of eighteén years or above take the Oath mentioned in an Act of Parliament made this present Session Intituled An Act for the better discovering and repressing of Popish Recusants before some Iustice of Peace of the County Liberty or Limit where such Parents of such Children as shall be so sent did or shall inherit and dwell And that in the mean time the next of his or her kin which shall be no Popish Recusant shall have and enjoy the said Lands Tenements Hereditaments Leases Goods and Chattels so given conveyed descended or devised until such time
meét to be Executors or Administrators to any person or persons whatsoever nor to have the Education of their own Children much less of the Children of any other of the Kings Subjects nor to have the marriage of them Be it therefore Enacted by the Authority aforesaid A Recusant shall not be Executor or Administrator That such Recusants convicted or which shall be convicted at the time of the death of any Testator or at the time of the granting of any Administration shall be disabled to be Executor or Administrator by force of any Testament hereafter to be made or Letters of Administration hereafter to be granted Or Guardian nor shall have the custody of any Child as Guardian in Chivalry Guardian in Socage or Guardian in nurture of any Lands Tenements or Hereditaments being Fréehold or Copyhold but shall be adjudged disabled to have any such Wardship or Custody of any such Child or of their Lands Tenements or Hereditaments being Fréehold or Copyhold as aforesaid Who shall have the Wardship And that for the better Education and Preservation of the said Children and of their Estates the next of the kin to such Child or Children to whom the said Lands Tenements or Hereditaments of such Child or Children cannot lawfully descend who shall usually resort to some Church or Chappel and there hear Divine Service and receive the holy Sacrament of the Lords Supper thrice in the year next before according to the Laws of this Realm shall have the Custody and Education of the same Child and of his said Lands and Tenements being holden in Knights Service until the full age of the said Ward of one and twenty years And of his said Lands Tenements and Hereditaments being holden in Socage as a Guardian in Socage And of the said Lands Tenements and Hereditaments holden by Copy of Court Roll of any Mannor so long as the Custom of the said Mannor shall permit and allow the same and in every of the said Cases shall yield an Accompt of the profits thereof to the said Ward as the Case shall require And that if at any time hereafter any of the Wards of the Kings Majesty or of any other shall be granted or sold to any Popish Recusant Convict such Grant or Sale shall be utterly void and of none effect Convicted at the time of the death of any Testator or at the time of the granting of any Administration Granting of Administration These words are to be construed reddendo singula singulis viz. That the Recusant shall be disabled to be Executor if he be convicted at the time of the death of the Testator or to be Administrator if he be Convicted at the time of the granting of Letters of Administration For so these words at the time of the granting of any Administration are here to be understood And therefore if a man makes his Will and therein appoints a Recusant Convict to be his Executor Executor where not disabled and before the Testators death the Conviction is removed by Reversal of the Judgment or avoided or discharged for some defect in the Indictment Proclamation or other proceedings and then the Testator dies In such Case the Recusant is not by this Act disabled to be Executor For although the naming of an Executor is in Law a granting of Administration And if a man by his last Will grants the Administration of his Goods and Chattels to J. S. without more saying thereby J. S. is made his Executor Dyer 290. So that the naming of an Executor and the granting of Administration seem to be the same thing yet this is not a granting of Administration within the meaning of this Act Administration here relating only to an Administrator and not to an Executor besides the naming of an Executor amounts not to a compleat grant of Administration until the Testators death For then and not before the Will becomes in force And if the party stands not then convicted he is not disabled Much less shall he be disabled to be Executor who is not convicted at the time of the Testators death although he be convicted at the time of the Probate of the Will For if these words granting of Administration should relate to an Executor as well as to an Administrator which in truth they do not yet the power given to the Executor by the Ordinary or Ecclesiastical Judge upon the probate of the Will cannot be called a granting but only a committing of Administration Committing of Administration What the Ordinary grants to an Executor according to the Will of the deceased And in such Case all that the Ordinary or Ecclesiastical Judge can grant are Letters testifying what the Testator hath already given to the Executor and a Power or Authority to execute the Will As Guardian in Chivalry Although the Recusant seized in Chivalry and Convicted could not have been Guardian yet if he had granted the Seigniory Seigniory granted over to one who was no Recusant the Grantee should have been Guardian notwithstanding this Act for the mischief here intended to be prevented was removed when the Seigniory was granted to another who was no Recusant By Jones Justice C. B. Hill 20. Jac. Jones 19. So if the King had seized Seized by the King the Recusants Seigniory as part of his two parts the King should have had the Wardship and not the next of kin for the same reason Jones 21. Stat. Sect. 22. Popish Books And be it further Enacted by the Authority of this present Parliament That no person or persons shall bring from beyond the Seas nor shall Print sell or buy any Popish Primmers Ladies Psalters Manuels Rosaries Popish Catechisms Missals Breviaries Portalls Legends and Lives of Saints containing superstitious matter Printed or Written in any Language whatsoever nor any other superstitious Books Printed or Written in the English Tongue upon pain of forfeiture of Forty shillings for every such Book one third part thereof to be to the Kings Majesty his Heirs and Successors one other third part to him that will sue for the same and the other third part to the Poor of the Parish where such Book or Books shall be found to be recovered by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoin Protection or Wager of Law shall be admitted or allowed and the said Books to be burned Stat. Sect. 23. Popish Reliques and Books And that it shall be lawfull for any two Iustices of Peace within the Limits of their Iurisdiction or Authority and to all Mayors Bailiffs and Chief Officers of Cities and Towns Corporate in their Liberties from time to time to search the Houses and Lodgings of every Popish Recusant Convict or of every person whose Wife is or shall be a Popish Recusant Convict for Popish Books and Reliques of Popery And that if any Altar Pix Beads Pictures or such like Popish Reliques or any Popish Book
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
185. Actions Popular see Informations Acts of Parliament See Statutes Administration and Administrators See Excommengement Executor Probate Recusants Who is disabled to be an Administrator 212. 234 235. 258. 263. The Mother shall administer before the Brother or Sister 225. Advowson See Covin Recusants Vniversity An Advowson is comprehended under the word Hereditament 106. 171. 172. It may be seized for Recusancy 106. 171 172. Where the King hath seized the Advowson of a Popish Recusant whether the King or University shall present 172. 231 232. By the Kings seizure of two parts of a mannor two parts of an Advowson appendant are seized by consequence 172. 233. In such case the King shall present alone by his Prerogative 172. 233. His two parts shall not pass from him by general words 173. Where upon reversal of an utlawry the Patron of an Advowson shall be restored to his Presentment and where not 180. Age 198. Agnus Dei c. Where the bringing in offering delivering or receiving of an Aguns Dei c. is a Praemunire and where not 51 52 53. Where the offender must be apprehended or his name disclosed and to whom 53 54. The Penalty for concealing the offenders name 55 56. Aid see Notice Aiders Maintainers Relievers c. of offenders where and how punishable 12. 17. 34 35. 42. 47. 50 51. 59. 90 91. 93 94. 184 185. Alien An Information lies against an Alien and a Writ of Error for him 76. An Alien though indenized or naturalized is no natural Subject 185. Indictment of High Treason against an Alien by birth 185. It shall not be contra naturalem Dominum 185. An Alien indenized or naturalized in Scotland or Ireland is still an Alien here 189. Where an Alien shall forfeit 12 d. per Sunday or Holiday for not coming to Church and where not 190. Allegiance see Oath of Allegiance Appearance See Baron Feme What appearance upon Proclamation shall save the Recusants default and what not 108. 164 165. Where he cannot appear by Attorney 164. His Remedy if his Appearnce be not recorded 164. Appropriation Where the King may make an Appropriation 7. Archbishop See Bishop Archbishop of Canterburies concurrent jurisdiction abrogated 5. Armour See Iustices of Peace Where the Arms of a Popish Recusant convict may be seized by force of 3 Jac. 5. and where not 237 238. The penalty for refusing to discover or hindring the delivery of such Arms 237. A Popish Recusant Convict shall maintain his Armour 239. Arraignment See Witnesses The party must be first arraigned and convicted before he can be fined and imprisoned at the Kings pleasure 97. Assent see Licence Attainder see Vniversity Attorney see Appearance Audita Querela Audita Quaerela against the Informer 148. It lies not against the King 148. Averment See Covin Indictment Iointure Licence Quare Impedit Bail SPecial Bail where not necessary 75. Baptism The penalty where the child of a Popish Recusant convict is baptized contrary to 3 Jac. 5.222 223. Baron Feme See Conformity Covin Custom Oath Plea Sacrament A married woman is liable to the Penalties for Recusancy 26. 68. And may 〈◊〉 imprisoned for non-payment thereof 86. 252 253. She ought in such case to have hard and close imprisonment 86. Where the Husband may save her imprisonment by paying 10 l. per month or yielding the thirds of his Lands to the King 252 253 254 255 256. Where the Husband is chargeable for the Wives Recusancy and where not 68. 75 76. 79. 122 123. 167. And may be imprisoned for non-payment of the Forfeiture 86. 253. Where the Wife cannot appear or plead without her Husband 75. The penalty by 7 Jac. 6. of a married woman convicted as a Popish Recusant if she conforms not 252. Where she shall forfeit the profits of two thirds of her Jointure and Dower and be otherwise disabled if she conform not in her Husbands life time 212 213. 214. Of what Dower she shall not forfeit any profits 215. Where a Woman may have Jointure and Dower both 213 214 215. Whether the Conviction of the Wife on an Indictment of Recusancy shall bar the King of his action of Debt and the Informer of his popular suit 79. 167. 254. A Feme Covert is within 1 Eliz. 2. of depraving c. the Common Prayer 24. And punishable by 35 Eliz. 1. of Conventicles and by 35 Eliz. 2. of Popish Recusants save as to Abjuration 123 124. 146. In what cases she may be punished upon 3 Jac. 4. and in what cases not 195. Where the Wife of a man abjured may sue without her Husband and shall have her Dower or Jointure in his life time and where not 124 125. Where the Husband of a Popish Recusant convict shall not bear any office 111 112. The penalty on a Popish Recusant convict who is married contrary to 3 Jac. 5. 220 221 222. In what case the Recusant so married cannot be punished by 3 Jac. 5. 222. Bar. See Baron Feme Informers King Good Behaviour see Recusants Benefice See Cura animatum Nomination Recusants Birth Birthright is Character indelebilis 247. Bishop See Archbishop Conformity Ecclesiastical Iurisdiction Excommengement Ordinary Before whom Archbishops and Bishops shall take the Oath of Supremacy 8. And the Oath of Allegiance 241 242. To whom an Archbishop or Bishop may tender or minister the Oath of Supremacy 39. 186. Where an Archbishop or Bishop may associate himself to the Justices of Over and Determiner or of Assise 29. But they 〈◊〉 associate themselves to Head-officers of Corporations 30. Where a Schoolmaster may be license◠〈◊〉 allowed by the Archbishop or Bishop 64 65 1â—5â— Submission to an Archbishop or Bishop in what case 95. Submission and Conformity before the Bishop of the Diocess in what cases 69. 92. 186. The Penalty on an offender who is required by the Bishop of the Diocess and yet refuses to conform and submit himself 118 135 138. Where 〈…〉 and Conformity must be certified to the Bishop 119. 145. Where the Bishop of the Diocess nay 〈◊〉 and â—â—â—â—â—ter the Oath of Allegiance and to whom 174 175. 186. 196 197 198. 242 243 244 245. And may commit the Party refusing it 174. 250. Where he may imprison a married woman convicted as a Popish Recusant and where not 252 253 254. Where his assent to a licence for a Popish Recusant to travel out of his compass of five miles is good and where not 206. 208 209 210. Blood See Corruption of Blood 〈◊〉 What they ought to do who are to be restored in Blood â—40 Books Books maintaining the Authority of the Bishop or See of Rome 34. Popish Books prohibited and the penalty for bringing them in c. 236. Bulls The effect of Bulls brought from Rome 49. Getting â—â— putting them iniure is High Treason 49 50. Bull why so called â—◠〈◊〉 The Penalty if a Popish Recusant be buried contrary to â— Jac. 5.223 Ceremonies Who may ordain Ceremonies and Rites of the Church 31
go out of the compass of five miles if required to appear before the Privy Councel 141. Three Privy Councellors may grant him a Licence to travel out of that compass 206 207 208. The nature of such Licence 207 208. The Privy Councel may send for a Popish Recusant confined to come to Court 201. To whom Privy Councellors are to give the Oath of Allegiance 195 196 197. 242. 245 246 247. They may commit the party to Prison for refusing it 250. Where a Privy Councellor may commit a married Noble woman convicted as a Popish Recusant and where not 252 253. County See Iustices of Peace Trial. Court see Recusants Courts See Certiorari Ecclesiastical Courts Informers Iustices Courts of Record what Courts are meant 82 83. 85. What Courts are the Kings Courts 142. In what Courts the King may sue for the penalties given him by 23 Eliz. 1. 122. Court of Kings Bench. See Informers Marshalsie The Justices of the Kings Bench are the Soveraign Justices of Oyer and Terminer and Goal-delivery 66. What offences they may hear and determine 35 36. 94. 188. 193 194. 258. To whom they may give the Oath of Supremacy 261 262. To whom they may tender and give the Oath of Allegiance 251. 261 262. Court of Exchequer see Exchequer High Commission Court Taken away by Act of Parliament 8. Cura animarum A Donative may be cum Cura animarum 233. A Deanry Archdeaconry Prebend are not Benefices with cure of Souls 233. Custom Custom for the Wife to have a part of the husbands goods where in force 222. Day FRactions of a day rejected in Law 198. Death see Recusants Default See Appearance Conviction Denizen Who 128. Naturalization includes Denization 128 129. Deprivation See Notice Pardon Deprivation ipso facto 12. 22 23. Sentence declaratory by the Ecclesiastical Judge where not necessary 22 23. Where a sentence of Deprivation by the Ecclesiastical Judge ought not to be questioned by the temporal Judge 31. Deputy see Officers Deputy Lieutenant see Licences Dignities Ecclesiastical see Cura animarum Disability See Plea Recusants A Popish Recusant convict is disabled as a person Excommunicate 193. 215 216. 223. Is disabled to sue 215 216 217 218 219 220. Such Disability is but quousque c. 216. Disabled to bear office 211 212. To be Executor 212. 234 235. Or Administrator 212. 234 235. Or Guardian 234. To be a witness 216. Or surety for the good behaviour 64. To present or nominate to a Benefice or Donative or to grant the next avoidance 226 227 228 229. Where disabled to be Tenant by the Courtesie 220. Or to have Dower 220. Or Jointure 220 221. Or any Goods by Custom 212 213. 220. 222. The Husband of a Popish Recusant convict where disabled to bear Office 211 212. A Recusant convict to what intents disabled 211. Disabilities inflicted on such as go beyond Seas without Licence 223 224. Or educate their Children in the Popish Religion or are so educated 264. Or send any person beyond Seas to be so educated or are so sent 257 258. Or who refuse the Oath of Supremacy 10. 43 44. Or the Oath of Allegiance 243. 251. Or execute any Office without taking the Oaths and Test injoined by 25 Car. 2.2.263 264. Discharge See Conformity Indictments Seizure Discontinuance see Informations Discovery See Iustices of Peace The reward of him who discovers the entertainer or reliever of a Jesuite or Popish Priest or Mass to have been said c. 200 201. To whom and within what time the discovery must be made 200 201. How the Reward shall be recovered 201. Disjunctive Where a Disjunctive shall be taken for a Copulative 184. Dispensation Dispensation by the King where void 44.243 Distribution see Penalty Donative See Recusants A Donative may be cum cura animarum 233. Dower See Baron Feme Dower in what cases saved 43.124 194. Where a woman shall be disabled to have any Dower 220. Ecclesiastical Courts and Iurisdiction See Church Deprivation Heresie King Parish FOrraign Ecclesiastical Jurisdiction abrogated 4 5. The Ecclesiastical Judge ought not to usurp upon the Temporal Law 6. The nature of his offence if he so usurps 6. The Queen might grant Commissions for the exercise of Ecclesiastical Jurisdiction 7 8. And that without the aid of 1 Eliz. 1.8 Archbishops and Bishops shall punish absence from Church and other offences against 1 Eliz. 2. by Ecclesiastical Censures 28. 30. Ecclesiastical Court not restrained by 1 Eliz. 2.31 Ecclesiastical Jurisdiction saved to Archbishops Bishops c. 88. 194. 239. Ecclesiastical Laws see Laws Ecclesiastical Persons See Common Prayer Clericus what it implies 21. Every Priest or Minister is Clericus 45. Election See Executors King Enquiry See Iustices What is meant by Enquire 68. Equity see Statutes Examination see Iustices of Peace Error see Alien Exchequer Principal Officers of the Court of Exchequer who 71. Principal Officers of the Receipt of Exchequer who 71. Excommengement See Recusants Where the Sheriff or other Officer may break the House to take one Excommunicated for Recusancy 193. Recusant Excommunicate i. e actually Excommunicate 223. Excommunication cannot be pleaded by the Bishop who Excommunicated the party and the reason of it 217 218. A person Excommunicate cannot sue as Executor or Administrator 218. Executors See Excommengement The offender hath his Election to pay the Forfeiture or be imprisoned and dies Quaere whether his Executors shall be charged 25 26. A man grants the Administration of his Goods and Chattels to J. S. thereby J. S. is made Executor 235. Who is disabled to be an Executor 212. 234 235. 258. 263. Failer of Records WHere Judgment shall be given on Failer of the Record 217 Where the not having the Record at the day shall be no Failer of the Record 217. Felony 90 91. 117. 139 140. 181 182 183. 194. See Vniversity Feme see Baron Feme Fine see Iustices Forfeiture See Abjuration Baron Feme Copyholds Penalty Recusants Forfeiture how a gift in Law 232. Forfeiture given without saving to whom shall be to the King 61. 70. Forfeiture in a Praemunire 46. 152. Forfeiture for Treason 152. Forfeiture of Lands generally shall not include intailed Lands 46. 152. Forraign see Iurisdiction Fraud See Covin Recusants Fraudulent Conveyances void 86 87. 99 100. 105. 231. Gaol see Imprisonment Goods See Seizure What is included within the word Goods 105. Grants by the King see King Grants by a Recusant See Covin Recusants Guardian See Kin. Recusants Who is disabled to be a Guardian 234. 263. Who shall be Guardian where the Recusant is disabled so to be 234 235. Heir Where there shall be no disherison of the Heir 42. 124. 194. Where the Conformity of the Heir of a Recusant shall discharge the arrears incurred in the Ancestors life time and where not 148 149 150. Hereditament What passes by Hereditament 106. 171 172. Heresie What the Ecclesiastical Commissioners might adjudge to be Heresie 16. What shall not be deemed Heresie or
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
University 231 232 233. The King is Patron in that case 232 233. And shall present alone 172. 233. Difference between a Bond to the King and a Bond to the Kings use 182. Licences by the King 116. 139. 155. 206. 223. Dispensation by the King where void 44. 243. Fine and Imprisonment at the Kings pleasure by whom to be inflicted 97. Lapse see Notice Laws See Ecclesiastical Iurisdiction Statutes What is meant by the Kings or Queens Laws 95. The Ecclesiastical Laws are the Kings Laws 5 6. Ecclesiastical and Temporal Laws are to be administred distinctly 6. The Laws of Scotland or Ireland not obligative to England 189. Lease See Confirmation Trust Licence See Abjuration Bishop Councel Iustices of Peace King Schoolmaster What Licence a Popish Recusant may have to travel out of the compass of five miles and from whom 206. 208. To what Popish Recusants such Licence may be granted 206 207. What is a good Licence and what not 206. Where it may be granted without any particular cause shewed and where not 206 207 208. 210. Where it ought to be averred that the cause contained in the Licence is true 211. Where the Licence must be under hand and where under hand and seal both 206 207 208. Where there must be a person to assent as well as persons to Licence and where not 206 207 208 209 210. Where the Lieutenant or a Deputy Lieutenant may assent to such Licence and where not 206 208 209 210. They who Licence and he who assents must be all distinct persons 209. The Licence and Assent may be both in one writing 209. The person assenting must be resident in the County 209 210. Where the Recusant Licenced must take an Oath and what Oath and before whom and where not 206 207 208 210 211. Lieutenant see Licence Ligeance see Subjection London see Recusants Mayor see Corporations Mansion See Recusants Mansion-house what 173. Marriage see Baron Feme Marshalsie Is the ordinary Prison of the Court of Kings Bench 251. Masse Saying and hearing of Masse and the Penalties 24 25 26. 45. 59. 200 201. Miles How to be accounted 130 131. Minister See Common Prayer Ecclesiastical Persons Misprision of Treason 51. 59. Mittimus see Indictments Month. How to be accounted 13 14. 61. Mortgage see Chattels Mother See Administration Kin. Naturalization See Alien Naturalization is a Fiction in Law 185. It s effect 185. It includes Denization 128 129. What they ought to do who are to be naturalized 240. Natural King Natural King and natural Subject are Correlatives 185. Next of Kin see Kin Nobility See Councel Nobility by Birth is Character indelebilis 247. Nobility gotten by Marriage may be lost by marriage 198. 247. Where a Nobleman or Noblewoman may be committed to prison for refusing the Oath of Allegiance 250 251. Nomination See Recusants Vniversity The Presentment is in him who hath the right of Nomination to a Benefice 229. He is in effect the Patron and may have a Quare Impedit 228. Nonsuit See Informers King Notice Aiders or Relievers of an offender not punishable unless they had notice of the offence 17. Where a lapse will incur upon Deprivation without notice to the Patron 23. All men are bound to take notice of an Act of Parliament 23. To what cases only the clause in 13 Eliz. 12. of notice to the Patron extends 23. Number Pluralis numerus est duobus contentus 238. Oaths See Bishop Councel Indictments Iustices of Peace Nobility Oath of Abjuration see Abjuration and Coroner Oath of Supremacy 9. Called the Oath of Obedience 147. How to be expounded 43. Who must take it and before whom 8 10 11. 38 39 40. 43 44. 92. 95. 149. 186. 240. 261 262. 264. 266. The Penalties for refusing or neglecting to take it 9 10. 40. 42 43 44. 263. see Disability He that hath an Office of Inheritance if he refuse it and afterwards take it shall be restored 11. The penalty for not certifying the refusal of it 40. Where the party refusing it is to be tried 41. Where the Refusal of it upon the second tender is not Treason 45. Who not bound to take it 44. Oath of Allegiance 176 177 178 179. Sequitur personam non locum 246. 249. Who is to give it and who must take it and in what cases 173 174 175 176. 181 182 183. 186. 195 196 197 198. 215. 224. 240 241 242 243 244 245 246 247 248. 261 262. 264. 266 267. Where the party taking it must set to his name or mark 179. Where and whither the taking of it is to be certified and the Certificate recorded 174. 249 250. The penalties for refusing it or not taking it 174 175 176. 181 182. 195 196. 215. 224. 243. 250 251. 263. see Disability The party refusing it shall be committed to Gaol and by whom 174 175. 250 251. He may be committed either until the Assizes or Sessions at the discretion of him who tenders it 175. In that case sureties cannot be taken 175. Where a married woman refusing it shall be imprisoned till she takes it 175. 250. What tender and refusal of it shall be binding and what not 251 Refusal of any word of it is a refusal of the whole 179. Serving or going to serve a forraign Prince c. without first taking the said Oath is Felony 181 182. What service is there meant 182. Who shall give the Oath in that case 183. 198. The penalty for not certifying it and on whom 183 184. 198 199. The penalty for not certifying the Oaths of Supremacy and Allegiance taken by a person submitting 186. Certificate of Oaths taken by a Jesuite c. or a person returning from a Seminary see Conformity An Office of Inheritance saved to him who takes not the Oaths of Supremacy and Allegiance 265 266. Where and before whom persons who are to be restored in Blood or naturalized are to take the said Oaths 240. Oath by a Popish Recusant licenced to travel 206 207 208. 210 211. Obedience See Oaths Perswading or withdrawing the Kings Subjects from their Natural Obedience or being perswaded or withdrawn is High Treason 57 58. 184 185 186. What is Natural Obedience 185. A Jesuite c. submitting must continue in his due Obedience 95. Obligation See King Service Offence see Iudgment Office Where necessary before seizure 104. Offices and Officers See Excommengement Oaths Port. Recusants Where the Husband of a Popish Recusant convict shall not bear any Office 211 212. Officers of the Exchequer 71. Officers shall answer for their Deputies 184. What persons are disabled to bear office and in what cases 10. 43 44. 211 212. 243. 251. 257 258. 263 264. The penalty on him who executes any Office and doth not receive the Sacrament and take the Oaths and Test injoined by 25 Car. 2. 2. 263 264 265. A saving of some Offices 265 266 267. Ordinary See Probate Ordinary who 45. The King is supream Ordinary 6 7. The name c. of
King Presentation See Advowson Nomination Recusants Vniversity Vtlawry Presentment Presentment what 37. What Presentments of Offences against 5 Eliz. 1. are to be certified into the Kings Bench 35 36. The penalty for not certifying them 35. Where Popish Recusants are to be presented 160 161. see Recusants Priest Every Priest is Clerieus 21. 45. And is bound celebrare coenam Dominicam c. 21. Popish Priest see Seminary Printers 34 Prison See Imprisonment To what Prison the Justices of the Kings Bench use to commit him who refuses the Oath of Allegiance 251. Privy Councel see Councel Probate Upon Probate of a Will Administration is committed not granted 235. What is granted by the Ordinary upon Probate of a Will 235. Process see Informations Proclamation See Appearance Conviction Seminary Proclamation for Recusancy where it may be waved 67. 162. In what case the Recusant cannot be proclaimed 122. Proclamation of the Recusant where erroneous 163. To whom the Recusant is to render himself upon Proclamation 107. 162 163 164. Prohibition In what cases 6. 28. Proof See Witness What proof allowable 47. Protection See Praemunire Protection natural and Protection legal 47. Protection by the Law of nature whether indelebilis immutabilis 47. Punishment A man shall not be twice punished for the same offence 31. 189. 253 254 255. Quare Impedit See Nomination Vniversity Recital Where a Statute need not be specially recited 24. Imperfect recital of a branch of 35 Eliz. 2. 206 207. Imperfect recital of an Act of Parliament shall not impeach the Act recited 208. Recognisance See King Recusants Recognisance in anothers name forfeited 105. Reconciliation see Rome Record See Certiorari Failer of Records Courts of Record what Courts are meant 82 83. 85. Recusants See Church Iustices of Peace King Parish Abjuration by a Popish Recusant see Abjuration Seizure of the Advowson of a Popish Recusant see Advowson An Alien Recusant see Alien A Recusants appearance upon Proclamation see Appearance Arms of a Popish Recusant see Armour Baptism of the Child of a Popish Recusant see Baptism Married women Recusants see Baron Feme Bishop Councel Licences to a Popish Recusant see Bishop Councel Licences Burial of a Popish Recusant see Burial Conformity of a Recusant or of the Husband of a Popish Recusant see Conformity Conviction of Recusants see Conviction Forfeiture of Copyholds for Recusancy see Copyholds Covin by a Recusant see Covin Recusants Excommunicate see Excommengement Indictment for Recusancy see Indictments Information for Recusancy see Informations Plea in disability of the Recusant see Plea Proclamation of a Recusant see Proclamation Seizure of a Recusants Lands or Goods see Seizure Trées Rendring a Recusants body to the Sheriff see Sheriff Trust of or for a Recusant see Trust Presentatlon where the Patron is a Popish Recusant convict given to the University see Vniversity Wast in a Recusants Lands see Wast What is Recusancy 129. To what time it shall have relation 228. It consists in omitting not committing and no place need be alledged 60. 73. And yet in some sense it may be said to be committed 74. Recusancy is not within 31 Eliz. 5. of laying the offence in the proper County 60. The penalties for Recusancy see Church The Recusant may forfeit for 13 months in the year 61. Where and when the penalty of 20 l. per month for Recusancy shall be paid into the Exchequer 102. 104. 165 166. Where it shall run on for the time to come after Conviction and where not 103 104. 166 167 168. 219. 252. 254. Where a Recognisance and all debts and personal chattels and actions are Goods and forfeited by the Recusant 105. But not before seizure 105. A Rent or Advowson may be seized for Recusancy 106. 171 172. The third part of a Recusants Lands shall be left to him 102. 268. His chief Mansion house shall be left to him as part of his two parts 173. By 29 Eliz. 6 the profits of the two parts of his Lands should not have gone towards satisfaction of the 20 l. per month 105. 110. 151. The Law altered in that point 105. 110. 150 151. Assurances of a Recusants Lands made bona fide are not to be impeached 211 112. A Recusant outlawed is not within that Branch of 23 Eliz. 1. touching fraudulent conveyances 87. In what cases the death of the Recusant shall discharge the arrears of the 20 l. per month and in what not 109 110 111. 148 149 150 151 152 153. see Commission The forbearance from Church must be for a whole month or the 20 l. are not forfeited 63. Divine Service in a mans house in what case it shall excuse him from the penalty for Recusancy 86. Where the Recusant forfeits nothing before Judgment 104. At what Sessions a Recusant may be indicted 67. Recusants are to be bound in the Kings Bench to the good Behaviour 60. 63. But Popish Recusants Convict are not to be taken for sureties 64. What Offices and Functions a Recusant convict is disabled to exercise 211. The penalty if he exercise such Office or Function 211. Where he cannot be Executor Administrator or Guardian 234 235. What Conviction disables or incapacitates him 216. The penalty for keeping or maintaining Recusants 191 192 193. see Service Where it must be averred that the party is Papalis Recusans 129. Presentments of Popish Recusants where and by whom and what the Officers are to present and what not 160 161. The penalty for omitting it 161. The penalty on the Clerk of the Peace or Town-Clerk not entring and recording such Presentments 161. The Officers reward for making such Presentments 161 162. Popish Recusants may be punished on 35 Eliz. 1. of Conventicles save as to Abjuration 114 115. What Popish Recusants are to be confined within five miles and what not 128. 130 131 132 133. 136. What a Popish Recusant confined must do 134. Where and what he shall forfeit and where not 128. 131. 134. Where he may travel above five miles and where not 141 142. 206 207 208 209 210 211. What Proviso of 35 Eliz. 2. giving him leave to travel is repealed by 3 Jac. 4. and what not 205. To what intents a Popish Recusant convict shall be as a person Excommunicate and to what not 193. 215 216. 223. Whether a Popish Recusant convict may qua such be attached upon a writ of Excommunicate capiendo 216. Where he is disabled to sue and where not 215 216 217 218 219 220. Or to be a Witness 216. Or to exercise any Office 211 212. A Popish Recusant convict is disabled to present or nominate to a Benefice or Donative or to grant any Avoidance 226 227 228 229. And yet where his grant of such Avoidance shall be good 228. Notwithstanding such disability the Recusant is still Patron 230. And may grant the Advowson in see or tail or for life or years and good 230 231. Such disability respects his voluntary acts only 232. The Kings Wards are not to
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
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
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
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
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
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
of Law shall be allowed Stat. Sect. 4. Popish Recusants shall depart from London And that all Popish Recusants Indicted or Convicted and all other persons which have not repaired to some usuall Church or Chappel and there heard Divine Service but have forborn the same by the space of thrée months last past contrary to the Laws and Statutes of this Realm dwelling abiding or remaining within the City of London or the Liberties thereof or within ten miles of the said City shall within thrée months next after the end of this Session of Parliament depart from the said City of London and ten miles Compass of the same and also shall deliver up their names to the Lord Mayor of London in case such Recusant do dwell or remain within the said City of London or the Liberties thereof And in case the said Recusant shall dwell or remain in any other County within Ten miles of the same City Then the said Recusant shall deliver up his or her name to the next Iustice of Peace within such County where the said Recusant shall so dwell or remain within forty days after the end of this Session of Parliament upon pain that every person offending herein shall forfeit to our Soveraign Lord the Kings Majesty his Heirs and Successors the sum of One hundred pounds The one moiety whereof shall be to the Kings Majesty his Heirs and Successors the other moiety to him or them that will sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign Protection or wager of Law shall be admitted or allowed Stat. Sect. 5. And that all Popish Recusants which shall hereafter come dwell or remain within the said City of London or the Liberties thereof or within ten miles of the said City which now are or hereafter shall be Indicted or Convicted of such Recusancy or which shall at any time hereafter not repair unto some Church or Chappel and there hear Divine Service but shall forbear the same by the space of threé months contrary to the Laws and Statutes of this Realm shall within ten dayes after such Indictment or Conviction depart from the said City of London and ten miles Compass of the same and also shall deliver up their names to the Lord Mayor of London for the time being in Case such Recusant shall dwell or remain within the said City of London or the Liberties thereof And in Case the said Recusant shall dwell or remain in any other County within ten miles of the said City then the said Recusant shall deliver up his or her name to the next Iustice of Peace within such County where the said Recusant shall so dwell or remain within the said ten days next after such Indictment or Conviction upon pain that every person offending herein shall likewise forfeit to our said Soveraign Lord the Kings Majesty his Heirs and Successors the like sum of an hundred pounds The one moiety whereof shall be to the Kings Majesty his Heirs and Successors and the other to him or them that will sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record wherein no Essoign protection or wager of Law shall be admitted or allowed In the late Additions to Dalton cap. 81. tit Recusants Sect. 45. this Clause is otherwise recited viz. That the Recusant Delivery up of the Recusants name if he live within ten miles distance of London is to deliver up his name to the Lord Mayor there and if he live above ten miles distance then to the next Justice of Peace But the Statute is there mistaken in both points For if the Recusant dwell within ten miles of London and not in London he is to deliver up his name to the next Justice of Peace and not to the Lord Mayor And if he dwell above ten miles from London he is not within this Act nor bound by force thereof to deliver up his name at all For miles Vide Stat. 35 Eliz. cap. 2. Sect. 2. Provided always Stat. Sect. 6. Tradesmen and dwellers in or about London That such person or persons as now use any Trade mystery or manual Occupation within the said City of London or within ten miles of the same and such as have or shall have their only dwelling within the said City or ten miles Compass of the same not having any other dwelling or place of abode elsewhere shall or may remain and continue in such place within the said City or ten miles of the same as they have dwelled inhabited or remained in by the space of thrée months next before this present Session of Parliament Any thing herein contained to the contrary notwithstanding This Proviso is by some taken to be in force at this day At this day not excepted But yet under favour as the Proviso is penned it seems to the contrary and that now all Popish Recusants Convicted or Indicted of Recusancy or not repairing to Church but forbearing by the space of three months are by this Act to depart London and ten miles compass of the same notwithstanding they are Tradesmen or have no other place of dwelling For as to Tradesmen here are no other excepted then such as when this Act was made used some Trade Mystery or manual Occupation And as to both Tradesmen and such as had or should have their only dwelling within London or ten miles compass the Statute limits them to that place where they inhabited three months next before that Session of Parliament wherein this Act was made which cannot by any strained construction extend to those in future times But the meaning seems to be That Popish Recusants Indicted or Convicted of Recusancy or not repairing to Church c. who were then Tradesmen within London or ten miles compass or such as then resided within London or ten miles compass and should have no other place of abode might continue there so that they removed not to any other dwelling then where they inhabited by the space of three months next before that Session of Parliament or if they did they were to lose the benefit of this Proviso and must have removed above ten miles from London as well as other Popish Recusants Convicted or Indicted or not repairing to Church as aforesaid As for those words such as shall have their only dwelling within the said City c. the future Tense shall have doth not intend such Recusants as should have their dwelling there or within ten miles compass after the making of this Act and not before But only such who having their dwelling there before that Session of Parliament should at the time of their being Indicted or Convicted have their only dwelling there and no other place of dwelling elsewhere For if they had at such time of their being Convicted or Indicted two several Houses one within London or ten miles and the other at
proved that it was for her Joynture or if a man devise Lands by his last Will to his Wife generally and there is no mention in the Will that 't is for her Joynture for in this Case an Averment that it was so intended will not serve unless there be express words in the Will to that purpose These Estates so gained by the Wife as they do not bar her Dower out of the residue of her Husbands Estate but that she shall enjoy both the one and the other Co. 4. 4. so they are not within the meaning of this Act because not made for her Joynture And she shall not forfeit the profits of two parts of them although she may forfeit the profits of 2 parts of her Dower which she hath out of the residue of her Husbands Estate If Lands be conveyed to the Wife before marriage for part of her Joynture and other Lands are conveyed to her after Marriage in full satisfaction of her Jointure and she refuse those conveyed after Marriage in this Case she may retain those conveyed before Marriage and yet be endowed of the residue of her Husbands Estate For that the Lands first setled on her were not for her whole Joynture Co. 1. Inst 35. Co. 4. 3. Forfeiture of the profits of part of her Jointure And if she be a Popish Recusant Convict and her Husband none and she conform not within the year next before his death she shall forfeit the profits of two parts both of such Dower and of the Estate so conveyed to her before her Marriage And as the Wife shall have her Joynture and Dower both Where the Jointure is pursuant to the Statute in such Cases where the Joynture is not pursuant to the Statute of 27 H. 8. so in some Cases likewise where she hath a Joynture pursuant to that Statute As where she hath such a Joynture made to her by the Husband before Marriage and he afterwards endow her ad ostium Ecclesiae or if she hath a Joynture made by the Husband in his life time and after his death his Heir or Feoffee assign other Lands to her in Dower or the Heir plead to her in a Writ of Dower ne unque seisi que Dower c. or nient accouple in Loyal Matrimony or any other Plea save Joynture in bar of Dower and it be found against him In these Cases the Wife shall hold her Joynture and yet be endowed and if she be an Offender within this branch of the Act shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow Dower not forfeited who is indowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant Convicted by whom she hath a Jointure and she becomes a Popish Recusant Convict and the second Husband dies and the Wife is an Offender within this Act In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Jointure both but only of her Jointure For that her Dower is not out of the Lands of her said Husband that is of the Husband in whose life time she stood convicted and after such Conviction forbore to conform c. within the year next before his death And be it further Enacted by the Authority aforesaid Stat. Sect. 12. A Popish Recusant shall be disabled as an Excommunicate person That every Popish Recusant which is or shall be convicted of Popish Recusancy shall stand and be reputed to all intents and purposes disabled as a person lawfully and duly Excommunicated and as if he or she had béen so denounced and excommunicated according to the Laws of this Realm until he or she so disabled shall conform him or her self and come to Church and hear Divine Service and receive the Sacrament of the Lords Supper according to the Laws of this Realm and also take the Oath appointed and prescribed in one other Act made this present Session of Parliament Intituled An Act for the better discovering and repressing of Popish Recusants And that every person or persons sued or to be sued by such person so disabled shall and may plead the same in disabling of such Plaintiff as if he or she were Excommunicated by Sentence in the Ecclesiastical Court What Conviction disables him Convicted of Popish Recusancy The Conviction mentioned here and in the other branches of this Statute seems to be intended not only of a Conviction according to the Statute of 29 Eliz. 6. or 3 Jac. 4. Stat. 29 Eliz. 6. 3 Jac. 4. upon Proclamation and default of appearance but of a Judgment likewise upon an Indictment or popular Suit on the Statute of 23 Eliz. 1. or an Action of Debt c. by the King alone by force of the Statute of 35 Eliz. 1. 35 Eliz. 1. For Convicted in relation to these three last mentioned remedies is to be taken for adjudged or attainted Vide for this the Statute of 23 Eliz. 1. Sect. 5. And the Popish Recusant who is either convicted upon Proclamation and default of appearance or against whom Judgment is had upon an Indictment popular Suit or Action of Debt c. at the Kings Suit is hereby disabled as an Excommunicate person and liable to all other the penalties and incapacities inflicted by this Act on a Popish Recusant convicted To what intent as excommunicate Reputed to all intents and purposes disabled as a person c. Excommunicated And not reputed to all intents as an Excommunicate person as Wingate tit Crown numb 135. misrecites the Statute For as it seems by the words of the Statute the Popish Recusant convicted is not to be reputed as a person Excommunicate in any other respect or to any other intent but as to his disability only And yet the Opinion of the Court of Kings Bench Mich. 11 Jac. in the Case of Griffith and others seems to be to the contrary and that a Popish Recusant convicted may by force hereof be attached upon a Writ of Excommunicato capiendo Excommmnicato capiendo Bulstrode 2. 155. Tamen Quaere whether this Statute being a penal Law and speaking only of the point of disability shall be extended by Equity to other Cases or the Recusant be attached upon an Excommunicato capiendo unless he be first actually Excommunicated A Popish Recusant Convict is disabled as an Excommunicate person Witness to be a Witness in any Cause between party and party By Coke Chief Justice Bulstrode 2. 155. This disability but quousque May plead the same in disabling of such Plaintiff This disability in the Popish Recusant convicted is but quousque c. until he Conform c. and take the Oath of Allegiance And the Defendant must in this Case plead the Conviction at large and must as in a Plea of Excommengement demand if the Plaintiff shall be answered Hetley 18. which is the legal conclusion of a Plea in disability of
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
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
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
Periam Justices of Assize by vertue of their Commission of Oyer and Terminer For the Certificate here mentioned which is to be sent into the Kings Bench is required only of the Justices of Assize and Justices of Peace And of Oyer and Terminer But Justices of Oyer and Terminer upon Indictments taken before them may proceed to hear and determine as Manwood and Periam did in that Case as well for the first as second Offence Savile 46. 47. C. 99. For which first Offence in extolling the Bishop of Romes Authority it seems the Justices of Assize who have a Commission of Oyer and Terminer have their election either as Justices of Assize to inquire only and then they must certifie the Presentment or Indictment into the Kings Bench or to inquire hear and determine as they are Justices of Oyer and Terminer and then they are not bound to certifie For Commissioners of Oyer and Terminer are not within the meaning of this Branch of the Statute as was held in that Case of Slade and Bodye By what hath been said it appears that the question there put by Ayloffe scil how they could proceed upon such an Indictmen not certified into the Kings Bench within forty days was grounded upon a double mistake 1. That Justices of Oyer and Terminer were bound to certifie into the Kings Bench all Indictments for extolling the Authority of the Bishop of Rome taken before them 2. That Indictments for the second Offence were within the meaning of this Branch of the Statute For he speaks there of the second Indictment which was for High Treason Every Presentment Presentment what By Presentment here is to be understood not only that which is properly so called which the Jurors find and present to the Court without any former Indictment delivered them but also an Indictment which is drawn and ingrossed in form of Law and delivered to the Jurors to be inquired of which Indictment the Justices here named have power to take by force of the word inquire and is included within the word Presentment being a species of it For every Indictment found by the Jurors is a Presentment and the Record saith Juratores praesentant c. when they find an Indictment But every Presentment is not an Indictment Co. 2. Inst. 739. And as well the one as the other touching the Offences aforesaid must be certified into the Kings Bench. If the Term be then open First day of the Term. The Essoin day is the first day of the Term properly so called and on that day the Term is open At the first day of full Term. That is Quarto die post Full Term. which is the usual day of appearance and the first day of every Term in common reputation For the Essoin day is the first day of the Term only to some particular intents and 't is not full Term till quarto die post Savile 124. Co. 193. Matthew vers Harcourt So that if the Forty days expire on the day before the Essoin day the Presentment need not be certified until quarto die post Presentments when to be certified which is the day of appearance but if they expire on the Essoin day or afterwards and before the quarto die post the Justices here named must not stay till the quarto die post but are bound to certifie by the last day of the Forty days under the penalty here limited for the Term was then open Stat. Sect. 4. Who shall take the Oath set forth A◠1 E. 1. And moreover be it Enacted by the Authority aforesaid That as well all manner of Persons expressed and appointed in and by the Act made in the first year of the Quéens Majesties Reign that now is intituled an Act restoring to the Crown the antient Iurisdiction over the estate Ecclesiastical and Spiritual and abolishing all Forraign Powers repugnant to the same to take the Oath expressed and set forth in the same As all other Persons which have taken or shall take Orders commonly called Ordines Sacros or Ecclesiastical Orders have béen or shall be promoted preferred or admitted to any Degreé of Learning in any Vniversity within this Realm or Dominions to the same belonging And all Schoolmasters and publick and private Teachers of Children as also all manner of Person and Persons that have taken or hereafter shall take any Degreé of Learning in or at the Common Laws of this Realm as well utter Barristers as Benchers Readers Ancients in any House or Houses of Court and all principal Treasurers and such as be of the grand Company of every Inn of Chancery and all Attorneys Prothonotaries and Philizers towards the Laws of this Realm and all manner of Sheriffs Escheators and Feodaries and all other Person and Persons which have taken or shall take upon him or them or have béen or shall be admitted to any Ministry or Office in at or belonging to the Common Law or any other Law or Laws of to or for the Execution of them or any of them used or allowed or at any time hereafter to be used or allowed within this Realm or any of the Dominions or Countries belonging or which hereafter shall happen to belong to the Crown or Dignity of the same and all other Officers or Ministers of or towards any Court whatsoever and every of them shall take and pronounce a Corporal Oath upon the Evangelists before he or they shall be admitted allowed or suffered to take upon him or them to use exercise supply or occupy any such Vocation Office Degrée Ministry Room or Service as is aforesaid and that in the open Court whereunto he doth or shall serve or belong And if he or they do not or shall not serve or belong to any Ordinary or open Court then he or they shall take and pronounce the Oath aforesaid in an open place before a convenient Assembly to witness the same and before such Person or Persons as have or shall have Authority by common use or otherwise to admit or call any such Person or Persons as is aforesaid to any such Vocation Office Ministry Room or Service or else before such Person or Persons as by the Queéns Highness her Heirs or Successors by Commission under the Great Seal of England shall be named or assigned to accept and take the same according to the tenor effect and form of the same Oath Verbatim which is and as it is already set forth to be taken in the aforesaid Act made in the First year of the Queéns Majesties Reign Admitted to any Ministry or Office What Officers are to take the Oath of Supremacy All persons who are preferred to any such Ministry or Office whether of the gift of the King or of a Subject are bound to take this Oath and not only such as are preferred by the King as 't is restrained in the late Additions to Dalton Cap. 81. tit Recusants Sect. 9. Belonging to the Common Law
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
the Feast of Pentecost next coming shall kéep or maintain any School-master which shall not repair to Church as is aforesaid or be allowed by the Bishop or Ordinary of the Diocess where such School-master shall be so kept shall forfeit and lose for every month so kéeping him ten pounds Provided That no such Ordinary or their Ministers shall take any thing for the said allowance The penalty on such School-master And such School-master or Teacher presuming to teach contrary to this Act and being thereof lawfully convict shall be disabled to be a Teacher of youth and shall suffer Imprisonment without Bail or Mainprize for one year Any School-master An Usher Usher or Assistant in teaching is a Master in the School and seemeth to be included within the word School-master And the following words here or Teacher explain who is intended viz. every Teacher of Youth A School-master conforms or is licensed either of them sufficient Stat. 1 Jac. 4. 14 Car. 2. What he must do by Stat. 14 Car. 2. Repair to Church as is aforesaid or be allowed This Clause being in the dis-junctive It seems That although a School-master doth not come to Church yet if he be licensed by the Bishop or Ordinary it shall excuse the penalty And this is not altered in that particular either by the Statute of 1 Jac. cap. 4. Sect. 9. quod vide postea nor by the Statute of 14 Car. 2. But then he must by that of 14 Car. 2. among other things for which Vide the Statute at large subscribe a Declaration or Acknowledgment that he will conform to the Liturgie of the Church of England as it is now by Law Established or he shall for the first Offence suffer three months Imprisonment without Bail and for the second and every other Offence shall suffer three months Imprisonment without Bail and also forfeit five pounds But if he be licenced and subscribe and do as aforesaid and so cannot be punished by this or either of the other said Acts yet now by the Statute of 17 Car. 2.2 unless he take the Oath there mentioned and frequent Divine Service established by the Laws of this Kingdom and carry himself there as in the said Statute is appointed he shall forfeit for every offence 40 l. So that now Conformity in repairing to Church is necessarily required of every such School-master No such Ordinary c. shall take anything Twelve pence for a Licence But now by the Statute of 14 Car. 2. there may be 12 pence taken for such Licence And be it likewise Enacted Stat. Sect. 7. What Justices may enquire of Offences done against the Stat. of 1 Eliz. 1. 5 El. 1. 13 El. 2. That all and every Offences against this Act or against the Acts of the first fifth or thirtéenth years of her Majesties Reign touching acknowledging of her Majesties Supream Government in Causes Ecclesiastical or other matters touching the Service of God or coming to Church or Establishment of true Religion in this Realm shall and may be inquirable as well before Iustices of Peace as other Iustices named in the same Statutes within one year and a day after every such Offence committed Any thing in this Act or in any other Act to the contrary notwithstanding Be it likewise Enacted That Iustices of Oyer and Terminer and Iustices of Assize and of Gaol delivery in their several limits shall have power to enquire hear and determine of all Offences against this Statute And Iustices of Peace in their open Quarter Sessions of Peace shall have power by vertue of this Act to enquire hear and determine of all Offences against this Act except Treason and misprision of Treason Within one year and a day Where the Indictment of the Offender was to have been within a year and day Stat. 1 Eliz. 1. 5 Eliz. 1. 13 Eliz. 2. This limitation of time extends not to any Offence made Treason by this Act but only to such Offences mentioned in this Act or those of 1 5 and 13 Eliz. as concern the Kings Supremacy in Causes Ecclesiastical the Service of God coming to Church or Establishment of Religion and for those touching Religion this Statute enlarges the time limited by 1 Eliz. cap. 2. which saith the party must be Indicted the next Sessions or if in a Corporation within fifteen days after Easter or Michaelmas for now he may be Indicted at any time within the year and day In what cases he may be Indicted afterwards But for absolving or withdrawing or for being absolved withdrawn or reconciled which are here made Treason no time is limited for the prosecution but the Offender may be Indicted at any time after the year and day For the latter part of this Clause speaks of those Offences of Treason which the Justices of Peace cannot hear and determine and there no time is limited although there be in the former part for those Offences which are inquirable by Justices of Peace Leonard 1. 238. C. 322. Guilfords Case Vide Stat. 1 Eliz. cap. 1. Sect. 9. infra Sect 9. touching the Informer Justices of Oyer and Terminer who Iustices of Oyer and Terminer and Iustices of Assize and of Gaol delivery c. and Iustices of Peace The Justices of the Court of Kings Bench are the Soveraign Justices of Oyer and Terminer and Gaol-delivery Co. 9. 118. Lord Sanchars Case and therefore may enquire of hear and determine the Offences against this Act although they be not here especially named Two Indictments before several Justices If an Indictment be preferred upon this Statute before Justices of Oyer and Terminer or of Assize for any offence not made Treason or misprision of Treason and there is an Indictment before Justices of Peace likewise for the same Offence The Judgment of the Justices who do first enquire hear and determine the same shall stand and the Judgment given by the other shall be void as was held in the like Case upon the Statute of Inmates Co. 2. Inst 739. Justices of Peace may hear and determine the Offence of not coming to Church Stat. 29 Eliz. 6. 3 Jac. 4. The power here given the Justices of Peace in their open Quarter Sessions to hear and determine the Offence of not coming to Church is in force at this day notwithstanding the Statute of 29 El. c. 6. which saith That every Conviction for not coming to Church shall be in the Kings Bench or at the Assizes or general Gaol-delivery and not elsewhere for the Statute of 3 Jac. cap. 4. hath given power to Justices of Peace in their general or quarter Sessions to enquire hear and determine of all Offences for not coming to Church according to former Laws in such manner as the Justices of Assize and Gaol delivery might do by former Laws in the Case of Recusancy for not repairing to Church which is clearly a reviver of the Power of Justices of Peace given to them by this
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
aforesaid Stat. Sect. 5. Sending relief to any Jesuit Priest or other person abiding in a Seminary If any person under her Maiesties Subjection or obedience shall at any time after the end of the said forty days by way of Exchange or by any other shift way or means whatsoever wittingly and willingly either directly or indirectly convey deliver or send or cause or procure to be conveyed or delivered to be sent over the Seas or out of this Realm or out of any other her Majesties Dominions or Territories into any Forreign parts or shall otherwise wittingly and willingly yield give or contribute any money or other relief to or for any Iesuit Seminary Priest or such other Priest Deacon or Religious or Ecclesiastical person as is aforesaid or to or for the maintenance or relief of any Colledge of Iesuits or Seminary already erected or ordained or hereafter to be erected or ordained in any the parts beyond the Seas or out of this Realm in any forreign parts or of any person then being of or in any the same Colledges or Seminaries and not returned into this Realm with submission as in this Act is expressed and tontinuing in the same Realm That then every such person so offending for the same offence shall incur the danger and penalty of Praemunire mentioned in the Statute of Praemunire made in the sixteenth year of the Reign of King Richard the Second Convey Deliver Conveying or delivering relief to a Jesuite c. So that he who is barely a Messenger or Instrument to convey or deliver such money or other relief is within the danger of this Law as well as the sender or giver Then being of or in the same Colledges or Seminaries To what persons this extends to what not This Clause extends not to every person brought up in such Colledge or Seminary as Wingate tit Crowne n. 54. mistakes For if such person afterwards quits his Colledge or Seminary and hath no longer any relation thereunto but abides elsewhere beyond the Seas he who gives or conveys relief or maintenance to him is not within this branch of the Statute because the person relieved or maintained is not then of or in any Colledge or Seminary And yet perhaps this may be an offence within the Statute of 3 Car. 1. Stat. 3 Car. 1. 2 cap. 2. quod vide postea Stat. Sect. 6. None shall send his Child or other beyond the Seas without licence And be it further Enacted by the Authority aforesaid That it shall not be lawful for any person of or under her Highness obedience at any time after the said forty days during her Majesties life which God long preserve to send his or her Child other person being under his or her Government into any the parts beyond the Seas out of her Highness obedience without the special Licence of her Majesty or of four of her Highness Privy Councel under their hands in that behalf first had or obtained except Merchants for such only as they or any of them shall send over the Seas only for or about his her or their Trade of Merchandize or to serve as Mariners and not otherwise upon pain to forfeit and lose for every such their offence the sum of One hundred pounds Where the Offences committed against this Act shall be inquired of and determined And be it also Enacted by the Authority aforesaid That every offence to be committed or done against the tenor of this Act shall and may be enquired of heard and determined as well in the Court commonly called the Kings-Bench in the County where the same Court shall for the time be as also in any other County within this Realm or any other her Highness Dominions where the offence is or shall be committed or where the Offendor shall be apprehended and taken Transporting of Jesuits Priests c. Provided also and be it Enacted by the Authority aforesaid That it shall and may be lawful for and to every Owner and Master of any Ship Bark or Boat at any time within the said forty days or other time before limited for their departure to Transport into any the parts beyond the Seas any such Iesuit Seminary Priest or other such Priest aforesaid so as the same Iesuit Seminary Priest or other Priest aforesaid so to be Transported do deliver unto the Mayor or other Chief Officer of the Town Port or Place where he shall be taken in to be transported his Name and in what Place he received such Order and how long he hath remained in this Realm or in any other her Highness Dominions being under her Obedience Stat. Sect. 7. A Jesuit or Priest submitting himself taking the oath and obeying the Laws Provided also That this Act or any thing therein contained shall not in any wise extend to any such Iesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiastical person as is before mentioned as shall at any time within the said forty days or within threé days after that he shall hereafter come into this Realm or any other her Highness Dominions submit himself to some Archbishop or Bishop of this Realm or to some Iustice of Peace within the County where he shall arrive or Land and do thereupon truly and sincerely before the same Archbishop Bishop or such Iustice of Peace take the said Oath set forth in Anno primo and by writing under his hand confess and acknowledge and from thenceforth continue his due obedience unto her Highness Laws Statutes and Ordinances made and provided or to be made or provided in Causes of Religion Continue his due Obedience The person submitting must continue his obedience The taking of the Oath by such Jesuit Priest or other Ecclesiastical person and his acknowledgment of his due obedience doth not exempt him from the danger of this Law as Wingate mistakes tit Crowne numb 57. but he must continue his due obedience to the Laws made in Cases of Religion And this seems to be clearly the meaning of the makers of this Law so that if afterwards he shew his disobedience to any of those Laws by forbearing to come to Church c. he may be indicted as a Traitor for coming into the Realm as if he had never made any such submission and acknowledgment Vnto her Highness Laws That is Where King or Queen includes successors the Laws of her and her Successors and not only those which were made in her own time but such likewise as should be made afterwards For in Acts of Parliament King or Queen if a Sovereign includes Successors unless there be express words of restraint to that individual person Plowden 176. Hill versus Grange Co. 6. 27. Cases de Soldiers Co. 12. 109. Co. 1. Inst 9. 2. Inst 742. 3. Inst 6. 4. Inst. 352. And so it is of the Kings Grants if in his politick capacity for there his Successor shall be charged though the Grant mention neither
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
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
Verdict pass against him these are Convictions in Law but yet by these Convictions he forfeits nothing until Judgment nor shall the penalty of 20 l. per month run on or be appropriated to the King until Judgment be given By Convicted therefore is here to be understood convicted by Proclamation and Default or convicted by Verdict Confession c. and adjudged for so the word is here to be taken viz. for adjudged or attainted unless it be in Case of Conviction upon Proclamation And in such a sense it is to be taken in divers other Cases Stat. 23 Eliz. 1 Vide Stat. 23 Eliz. cap. 1. Sect. 5. When the 20 l per month is to be paid In such of the Terms of Easter or Michaelmas That is the Term of Easter or Michaelmas which shall first happen and not the next Easter and Michaelmas Terms both For the Recusant ought to pay the whole penalty for the time contained in the Indictment in the very first of those Terms next after his Conviction See for this Stat. 3 Jac. 4. Stat. 3 Jac. 4. Sect. 6. From what time the said penalty shall run on Stat. 23 Eliz. 1. 3 Jac. 4. For every month after such Conviction For what time the penalty of 20 l. per month shall run on after the Recusant is indicted and convicted and in what Cases the Informer and all others but the King shall be barred after such Conviction Vide Stat. 23 Eliz. cap. 1. antea Stat. 3 Jac. cap. 4. Sect. 6. postea Office Take seize and enjoy But as to Lands and Tenements there must first be an Office found for the King for regularly before the finding of such Office Lands or Tenements cannot be seized into the Kings hands Co. 2. Inst 573. Co. 8. 169. Paris Stoughters Case Bro. tit Office 17. 55. Plowden 486. Nicholls Case By this Statute the Queen was to have and enjoy two parts of the Recusants Lands and Hereditaments nomine poenae or districtionis The two parts not satisfactory of the twenty pounds per month until he had in some other manner satisfied her of the whole forfeiture of the Twenty pounds per month incurred for his Recusancy And the profits of those two parts should not have been accompted to go to the payment of any part of the said debt or forfeiture For the Statute inflicted this forfeiture upon him meerly as a farther penalty for his neglect of payment of the Twenty pounds per month as was resolved by the two Chief Justices and Chief Baron Trin. 43 Eliz. in Gages Case Cro. Eliz. 845. 846. and by all the Judges The Law now altered in that point 3 Jac. at Russell House Jones 24. Standen versus Vniversity d'Oxon Whitton But now the Law is altered in this point by the Statute of 1 Jac. cap. 4. Vide the Stat. infra Sect. 4. Stat. 1 Jac. 4 All the goods A Recusant is Indicted and Convicted Recusants goods when forfeited and then fails of payment of the Twenty pounds per month yet his goods are not forfeited to the King by this Statute before seizure For the King hath his Election whether he will seize them or no. By Coke Chief Justice B. R. 12. Jac. Rolles 1. 7. C. 8. Cullom versus Sherman A Recusant lends money Recognizance forfeited and for security hath a Rent-charge granted him in Fee by Deed indented with condition of redemption and takes likewise a Recognizance for performance of Covenants in the said Indenture The Recognizance is forfeited and afterwards he is Indicted and Convicted of Recusancy and fails of payment of the Twenty pounds per month In this case the King shall have the Recognizance by force of this Act for when forfeited to the Recusant it is but a chattel personal What is given to the King by this word Goods and shall pass to the King by this word goods For in an Act of Parliament where the Offenders goods are given to the King all debts and personal Chattels and Actions are thereby given him as well as goods in possession And here in this Act as take and seize refer to two parts of the Recusants Lands and Tenements so enjoy refers to goods And the King shall enjoy the debt due by the Recognizance Nor doth it alter the Case for that the Recognizance was acknowledged for performance of Covenants in an Indenture concerning a Rent-charge in fee which seems to savour of the realty for it was originally for the loan and forbearance of money which is personal Co. 12. 1. 2. Ford and Sheldons Case If a man who is a Recusant take such a Recognizance in the name of another Recognizance taken in anothers name forfeited the King upon his Conviction shall have the Recognizance for when the Recusant was such at the time of taking the Recognizance and so continued until the time of his Conviction it shall be intended that it was done by Covin and that he took it in the name of another with an intent to prevent the King of the levying of the forfeiture and such Covin shall not bar the King Co. 12. 2. 3. the same Case The Kings grant If a Recognizance or Obligation be forfeited to the King by force of this Act he may grant it over as he may any other Chattel in Action under his private Seal Rolles 1. 7. C. 8. Cullom versus Sherman Hereditaments Rent Advowson in gross Hereditaments A Rent of Inheritance and an Advowson in gross are comprehended under this word But whether the King may seize such an Advowson as part of his two parts and present by vertue thereof since the Stat. of 3 Jac. c. 5. which gives the Presentation to the Universities Stat. 3 Jac. 5 Vide that Stat. infra Sect. 19. All other the Lands Tenements and Hereditaments liable to such seisure or to the penalties aforesaid It hath been much disputed whether Copyhold Lands are within this Branch of the Statute Copyhold Lands if seizable for regularly in Acts of Parliament which are Enacted for forfeiture of Lands Tenements and Hereditaments Copyholds shall not be forfeited but only Lands Tenements and Hereditaments which are such at the Common Law and not those which are such by custom only as Copyholds are And it was agreed in Heydons Case Co. 3. 8. That where an Act of Parliament alters the service or tenure or other thing in prejudice of the Lord there general words in the Act shall not extend to Copyholds Vide Savile 67. C. 138. And if the King should seize them by force of the general words here viz. Lands Tenements and Hereditaments the Lord would during the time they are in the Kings hands lose his Seigniory Customs and Services But yet it was held by Manwood Chief Baron and Baron Clark in the Case of Sulherd and Everet Mich. 30 Eliz. That Copyholds are within this Act and although Manwood seemed to grant that they are not within
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
apprehended The three months relate to the time of the Offenders being apprehended whereas by the Act he cannot be required to abjure until three months after his apprehension and he turns the three months after his apprehension into three months after his arrival All great mistakes and fit to be taken notice of by Justices of Peace whose part it is to require the submission and abjuration that they may not be misled in the Execution of this part of their Office by trusting to that Abridgment Required to submit within what time Being thereunto required by the Bishop c. If the Offender be not before the end of the three months next after his apprehension required by the Bishop a Justice of Peace or the Minister or Curate to make such submission he cannot be required afterwards nor be compelled to abjure by force of this Act. But if he be required within the three months to make submission and refuse he may be at any time afterwards warned or required to abjure Vide Stat. 35 Eliz. cap. 1. Sect. 2. Abjure this Realm of England c. The Oath of Abjuration may be in this form or to this effect Oath of Abjuration You shall swear that you shall depart out of this Realm of England and out of all other the Kings Majesties Dominions And that you shall not return hither or come again into any of his Majesties Dominions but by the Licence of our said Sovereign Lord the King or of his Heirs So help you God Stamford 119. 120. Co. 3. Inst 217. Wilkinson P. 66. hath set down another form upon this Statute much resembling that heretofore used at the Abjuration of a Felon mutatis mutandis in these words This hear you Sir Coronor that I J. M. of H. in the County of S. am a Popish Recusant and in Contempt of the Laws and Statutes of this Realm of England I have and do refuse to come to hear Divine Service there read and exercised I do therefore according to the intent and meaning of the Statute made in the 35th year of Queen Elizabeth late Queen of this Realm of England abjure the Land and Realm of King Charles now King of England Scotland France and Ireland and I shall hast me towards the Port of P. which you have given and assigned to me And that I shall not go out of the highway leading thither nor return back again and if I do I will that I be taken as a Felon of our said Lord the King And that at P. I will diligently seek for passage and I will tarry there but one Flood and Ebb if I can have passage and unless I can have it in such space I will go every day into the Sea up to my Knees assaying to pass over So God me help and his holy Judgment But in alluding to the old Oath in Case of abjuration for Felony which began with the Confession of the particular offence for which the Felon was abjured as Ego A. B. sum latro unius Equi vel homicida unius hominis or the like as the Case was Wilkinson is mistaken in the very offence for which the Popish Recusant is to abjure by force of this Statute for the offence is not his refusal to hear Divine Service for that is but only one of the precedent Qualifications of the person But the Offence it self is of another nature viz. his not repairing to the place the Statute appoints him or his removal from thence contrary to the Statute or his not presenting himself and delivering his true name as aforesaid Either of these if he be a Popish Recusant within the meaning of this Act is a crime for which he ought to abjure unless he prevents his Abjuration by a timely Submission Nor is the Popish Recusant bound to swear that he will not go out of the High way or return back or will tarry but one flood and ebb or go into the Sea up to his knees nor ought the Coroner or Justices of Peace to require any such Oath of him For this is a new offence made by a Statute Law which doth not require the strict form of Abjuration as in Case of Felony And although the Felon were tied to these circumstances yet the Recusant is not nor shall be a Felon for omitting them But 't is sufficient if he simply abjure as the Act directs and go from the appointed Port within the time limited and not return without Licence into any of the Kings Dominions He that thus abjures the Realm doth yet owe the King his Ligeance and remaineth within the Kings Protection He that abjures yet oweth the King his Ligeance Qui abjurat Regnum amittit regnum sed non Regem amittit Patriam sed non patrem patriae Co. 7. 9. Calvins Case And if any such Offender Stat. Sect. 7. The punishment for refusing to abjure not departing or returning without Licence which by the tenour and intent of this Act is to be abjured as is aforesaid shall refuse to make such 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 and lose as in Case of Felony without benefit of Clergy And within such time c. and from thence depart When and whence the Offender must depart The Offender is strictly tied to depart from the same Haven assigned him and within the time appointed him by the Justices of Peace or Coroner so that if he depart the Realm from any other Haven or Port or over stay his time and depart afterwards yet he is a Felon within this Act. Or return or come again into any her Majesties Realms or Dominions An Offender within this Act abjures in form aforesaid and departs this Realm and afterwards goes into Ireland without Licence Return and then returns into England with Licence such going into Ireland seems to be Felony by this Act. But quaere how the offence shall be tried How triable not in Ireland for this Statute binds not that Kingdom nor can be taken notice of there nor yet can it be tried in England for that the offence was done elsewhere So that this is casus omissus and cannot be punished for that no way of Trial is appointed Stat. Sect. 8. A Jesuit or Priest refusing to answer shall be imprisoned And be it further Enacted and Ordained by the Authority aforesaid That if any person which shall be suspected to be a Iesuit Seminary or Massing Priest being examined by any person having lawful Authority in that behalf to examine such
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
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
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
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
resembles the Case of 9 10 Eliz. in the Court of Wards cited in the Case of the Chancellor c. of the University of Oxford Co. 10. 57. Tenant in Capite makes a Feoffment to the intent to deceive his Creditors And this fraudulent intent was found quod nulla alia Causa aut Collusio viz. ad defraudandam Reginam c. de custodia haeredum vel terrarum c. There it was resolved That although in truth by the event the Queen was by the Feotfment defrauded of the Wardship of the Body and Lands of the Heir yet because the fraud was found only to one particular intent scil to deceive Creditors it should not be extended to another intent scil to defeat the Queen of her Wardship A man seized inter alia of an Advowson in gross Where the King shall Present becomes a Popish Recusant Convict The King seizes the Advowson as part of his two parts The Church becomes void In this Case it was held by Justice Hutton That the University and not the King shall Present But Justice Jones held strongly to the contrary and that notwithstanding this Act the King shall have the Presentation Stat. 3 Jac. 4. For the Statute of 3 Jac. cap. 4. saith That the King may take and seize two third parts of a Recusants Hereditaments under which word an Advowson is comprehended And although the power or liberty of Presenting is here given the University yet that is to be intended only in such Cases where a Popish Recusant Convict is Patron But when the King hath seized the Advowson as part of his two parts the King is Patron and not the Recusant nor shall the Title the King hath to the Advowson by the Act of 3 Jac. 4. be devested by another Act of Parliament unless it had been there given away from the King in express terms And Hobart Chief Justice and Winch Justice declared they were of the same Opinion with Jones in the main point Jones 17. c. Standen al' versus University d' Oxon Whitton Obj. To this it hath been objected That when this Statute disables the Recusant to grant any Avoidance it disables him to grant it to the King as well as to any other person But if the Recusant may forfeit the Advowson to the King he may forfeit the Avoidance to the King And every forfeiture being a Grant or Gift in Law as is held in Hales Case Plowden 260 263. the Recusant by consequence may grant the Avoidance contrary to the express Letter of this Act Answ But to pass by the questions whether by the Recusants being disabled to grant any Avoidance generally he is disabled to grant an Avoidance to the King or whether the forfeiture of the two thirds by the Recusant can be properly called a Grant or Gift from the Recusant and not rather from the Law which creates the forfeiture It s enough for our purpose here to distinguish between voluntary Acts and Acts by compulsion For this Statute which disables the Recusant to Present or to grant any Avoidance was intended only to restrain his voluntary Acts But when he forfeits the Avoidance to the King although the offence viz. his Recusancy be voluntary yet the Conviction and Forfeiture thereupon are involuntary And the Recusant is therein potius patiens quam agens Jones 21. A Popish Recusant Convict seized in fee of an Advowson in gross is attainted of Felony or Praemunire Felony Praemunire and the Church becomes void In this Case Hutton held That the Interest which accrued to the University upon the Conviction for Recusancy should not be devested by the Attainder And that if a man seized of such an Advowson Statute Merchant acknowledge a Statute Merchant and afterwards becomes a Popish Recusant Convict and then the Statute is extended the Interest of the University shall not be devested by the extent But Jones seemed to be of a contrary Opinion in the Case of Treason or Praemunire Jones 20.26 If the King seize two parts of a Mannor belonging to a Popish Recusant Convict Advowson follows the Mannor for non-payment of the forfeiture of twenty pounds per month to which Mannor an Advowson is appendant The two parts of the Advowson shall follow the two parts of the Mannor and the King shall Present and not the University notwithstanding this Act For after such seizure the King is Patron of the Advowson and not the Recusant and in this Case the King shall present alone Hobart 126 127. The King shall Present alone Chancellor c. of Cambridge versus Walgrave al' Moore 872. C. 1214. the same Case As shall then have any other Benefice with Cure of Souls And not as is already beneficed as Wingate tit Crown numb 140. mistakes For a sine Cura is a Benefice Sint Cura and yet the University may Present or Nominate him who hath a sine cura A Donative of the Kings may be cum cura animarum Donative cum cura And so is the Church of the Tower of London Cro. Mich. 9. Car. Mackaller versus Todderick And the University cannot Present or Nominate him that hath such a Donative Notwithstanding what is said by Sir Edward Coke 3. Inst 355. Deanry Archdeaconry Prebend c. It seems that a Deanry Archdeaconry Prebend c. are not Benefices with Cure of Souls nor had they been comprehended under the name of Benefices with Cure of Souls within the Statute of 21 H. 8. Pluralities Stat. 21 H. 8. of Pluralities Although the special Proviso in that Act had been omitted For that Proviso is ex abundanti and there is no such to except them out of the Statute of 13 Eliz. cap. 12. Stat. 13 El. 12. of reading the Articles and yet if a Dean Archdeacon or Prebendary read not the Articles within the time limited by 13 Eliz. his promotion is not void by that Statute And the reason is because 't is not a Benefice with Cure of Souls The Opinion of Justice Tirrell at Lincoln Assizes in Lent 1668 9. Who in the Case of Dr. Sanderson denied the Archdeacon of Lincoln to be lawful Archdeacon For that he had not read the Articles within the time so limited and affirmed an Archdeaconry to be a Benefice with Cure within 13 Eliz. being contrary to Law and to the received meaning of that Statute And as for a Prebend the reason given for the Opinion in Bland and Maddox Case B. R. Mich. 29 30 Eliz. is expresly against what is said by Sir Edward Coke For it was there agreed that a Layman may be presented to a Prebend quia non habet curam animarum Cro. Eliz. 79. And for the same reason a Dean Archdeacon Prebendary c. may be in this Case presented or nominated by the University for their promotion is not a Benefice with Cure of Souls Stat. Sect. 21. Moreover because Recusants Convict are not thought
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
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
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
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
be granted to a Popish Recusant convict 234. The penalty on a Popish Recusant convict who comes to Court 201 202. Or departs not out of London and ten miles compass 202 203. Tradesmen and dwellers in and about London not excepted at this day 203 204. The penalties on a married woman who is a Popish Recusant convict and conforms not in her Husbands life time 86. 212 213 214. 252 253. Refusal See Abjuration Conformity Oaths Relapse Makes the submission void 119. 145. Where to be certified 145 Relation See Indictments Recusants Release see King Relief See Aide Seminary Relieving of offenders where not punishable 17. 44. Religion see Rome Rent see Recusants Repeal See Statutes Of two branches of 35 Eliz. 1. 191. Of a branch of 35 Eliz. 2. 205. Replication see Plea Resignation see King Reversal see Vtlawry Review see King Reviver see Statutes Reward See Discovery Recusants Rites see Ceremonies Rome Pope Popish Religion c. See Books Bulls Great Exactions by the See of Rome 1. Maintaining or Extolling the Bishop or See of Romes Authority where a Praemunire and where Treason 34. 41 42. What is a maintaining or extolling within 5 Eliz. 1. 34. 42. Withdrawing the Kings Subjects from the Religion Established to the Romish Religion or being so withdrawn is High Treason 57 58. 184 185 186. Reconciled to the Pope or See of Rome what meant 187. Reconciling or being reconciled to the Pope or See of Rome is High Treason 49 50. 57 58. 184 185 186. A person so reconciled and submitting afterwards 186. What reconciliation to Rome is not within 13 Eliz. 2. 50. Sacrament See Baptism Informations Offices The penalty on the Popish Recusant who after Conformity receives not the Sacrament of the Lords Supper yearly 157 158. Where a married woman may be punished for not receiving the said Sacrament during her Marriage and where not 195. 212 213. 252. Persons to be restored in Blood or to be naturalized must receive the said Sacrament and when 240. What other persons are to receive it 211 212. 215. 263 264. 266. Saving See Power Péers Pensions Schisme see Heresie Schoolmaster The penalty for keeping or being a Schoolmaster contrary to 23 Eliz. 1. or 1 Jac. 4. 64. 155. By whom a Schoolmaster is to be licenced 64 65. 155. What may be taken for such Licence 65. Conformity or allowance by the Bishop or Ordinary either of them sufficient 64. What a Schoolmaster must do by Stat. 14. Car. 2. 64 65. An Usher is within the word Schoolmaster 64. Scire facias see Informations Scotland See Alien Laws Seas See Councel Kin. Seminary The penalties for suffering Women or Children to go beyond Seas without Licence and on such as go or send them 94. 155. 223 224. 226. Seizure See Advowson Commission King Office Where a Recusants Lands may be seized or the seizure continued after his death and where not 100. 102. 104. 106 107. 109 110 111 112. 150 151 152 153. 168 169. 170 171. Where his Goods may be seized and where not 100 102. 105. 168. 172. Seminary Popish Colledge c. Iesuite Popish Priest c. See Conformity Discovery Iustices of Peace It s High Treason for a Jesuit Seminary Priest c. to be within this Realm 90. Not necessary to shew in what particular place he was born 90. Nor where ordained 90. Relieving or maintaining such is Felony at this day 90 91. The penalty for not discovering a Jesuit or Popish Priest 96. Or for not giving Information of such discovery 96. A person suspected to be a Jesuit or Seminary Priest examined and refusing to answer 140. To whom examinable 140. By what questions he is bound by 35 Eliz. 2. to answer 141. Submission by a Jesuit Popish Priest c. 94 95. He must continue in Obedience to the Laws 95. They which are in Seminaries c. shall return upon Proclamation made in that behalf 91 92. If they return and submit not 't is High Treason 92. They ought not to come into any other of the late Queens Dominions before they have submitted here 92. Where the benefit of submission was lost if the party submitting came within ten miles of the Court 98. The penalty for sending Children to a Popish Colledge Seminary or Family beyond the Seas 153. 257 258. And on such who go thither 153 154. 257 258. Or relieve any there or any Popish Colledge Seminary c. 93 94. 257 258. Sentence see Deprivation Service See Trial. Divine Service see Recusants Where serving or going to serve a forraign Prince c. without first taking the Oath of Allegiance and entring into Bond is Felony 181 182. see Oaths What kind of service is meant 182. The form of such Bond 183. It must be Domino Regi 182. Who shall take it 183. 198. Who shall certifie it and the penalty for not certifying 183 184. Where a man may keep a Recusant in his Service and where not and the penalty 191 192 193. Sessions See Iustices of Peace At what Sessions a Recusant may be indicted 67. General Quarter Sessions and General or Quarter Sessions what Sessions meant 67. Sheriff See Excommengement Sheriffs shall take the Oath of Supremacy 38. Sheriff of the County where the Kings Bench is 40. Where a Recusant proclaimed ought to render his body to the Sheriff 107. 162 163. Where a Popish Recusant may travel above five miles if required to tender his body to the Sheriff 142. The Sheriff is to pay him who discovers certain offenders 201. Statutes See Baron Feme Ieofailes Informations Notice Recital Repeal Reviver of several Statutes of H. 8. and E. 6. 2 3 4. Stat. 5 Eliz. 1. when and where to be published 43. The Statutes of 23 Eliz. 1. 29 Eliz. 6. 35 Eliz. 1. and 7 Jac. 6. against Recusants are all affirmative Laws and do not abrogate one the other 120 121. 162 163. 253. Who are within the Act of 35 Eliz. 1. of Conventicles and who not 114. Rules in construction of poenal Statutes 21 22. 64. 221. Where they shall not be construed by Equity 199. 221. 229. Where they may be construed by the intent of the makers besides or beyond the letter 21. 229. What is given by an Act of Parliament shall not be devested by a subsequent Act without express words 23◠Where a later Act of Parliament shall be guided by a former 85. A private clause in a general Act of Parliament 230. The difference between a Statute discontinued and revived and a Statute never discontinued 125 126. All men are bound to take notice of an Act of Parliament 23. Statutes of West 2. c. 1. De donis conditionalibus 46. 152 153. West 2. c. 5. of Advowsons 13. 2 E. 3. c. 3. of Armour 97. 25 E. 3. c. 22. of Provisors of Abbeys 46. 25 E. 3. of Provisors of Benefices 229. 50 E. 3. c. 6. of Fraudulent deeds 87. 16 R. 2. c. 5. of Praemunire 6. 46. 152. 2 H. 5. c. 3. of Jurors 136
but the other Justices may Stat. Sect. 8. Provided alway That every person guilty of any offence against this Statute other then Treason and misprision of Treason which shall before he be thereof Indicted or at his Arraignment or Trial before Iudgment A remedy for a guilty person conforming himself submit and conform himself before the Bishop of the Diocess where he shall be resident or before the Iustices where he shall be Indicted Arraigned or Tryed having not before made like submission at any his Tryal being Indicted for his first like offence shall upon his Recognition of such submission in open Assizes or Sessions of the County where such person shall be resident be discharged of all and every the said Offences against this Act except Treason and misprision of Treason and of all pains and forfeitures for the same Before Iudgment submit and conform himself Conformity after judgment saves the penalty Stat. 1 Jac. 4. But now by the Statute of 1 Jac. cap. 4. if the Recusant conforms after Judgment it seems it shall be time enough to save the forfeiture Vide that Statute Sect. 2. A man is convicted of Recusancy according to the Statute of 29 Eliz. cap. 6. upon Proclamation and default of appearance 29 Eliz. 6. and afterwards submits and conforms he shall by force of this Clause be discharged of the forfeiture of Twenty pounds per month for this is a submission and conformity before Judgment Conviction upon Proclamation no Judgment the conviction upon Proclamation being no Judgment but only in nature of a conviction by Verdict as was resolved by all the Judges Mich. 37 38 Eliz. vide Dr. Fosters Case Rolls 1. 94 C. 41. Certain persons Indicted upon this Statute for not coming to Church were Outlawed upon the Indictment Submission after Outlawry the Court of Kings-Bench would not in this Case receive their submission but advised them to purchase their pardon for the Outlawry which they did and then their submission was accepted of and they were discharged Leonard 4. 54. n. 138. Note in the Report of this Case the Statute of 13 Eliz. is mistaken for this of 23 Eliz. for no Indictment for not coming to Church lies on 13. Stat. 13 Eliz. 2 Before the Bishop of the Diocess Conformity where and how to be pleaded If a man be Indicted for Recusancy before Justices of Pcace and he submits and conforms before the Bishop of the Diocess he may remove the Indictment by Certiorari into the Kings-Bench and there plead his conformity by Certificate under the Bishops Hand and Seal Vide Styles 26. For the manner of a Recusants submission and conformity before the Bishop after conviction Submission and Certificate and the Bishops certificate thereupon Vide Co. lib. intr 569. Stat. Sect. 9. Who shall have the money forfeited by this Statute And be it likewise Enacted That all forfeitures of any sums of money limited by this Act shall be divided in thrée equal parts whereof one third part shall be to the Queéns Majesty to her own use one other third part to the Queens Majesty for the relief of the Poor in the Parish where the offence shall be committed to be delivered by Warrant of the principal Officers in the Receipt of the Exchequer without further Warrant from her Majesty and the other third part to such person as will sue for the same in any Court of Record by Action of Debt Bill Plaint or Information In which Suit no Essoin Protection or Wager of Law shall be allowed And that every person which shall forfeit any sums of money by vertue of this Act He shall be imprisoned that is not able or doth not pay the forfeiture and shall not be able or shall fail to pay the same within thrée months after Iudgment thereof given shall be committed to Prison there to remain until he have paid the said sums or conform himself to go to Church and there do as is aforesaid Distribution of the penalties All forfeitures of any sums of money limited by this Act. So that the distribution here appointed extends not only to the forfeitures of Two hundred and One hundred Marks for saying or hearing Mass and the Ten pounds a month for keeping a Schoolmaster contrary to this Act but likewise to the Twenty pounds per month for not repairing to Church In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases For although by the foregoing clause the whole Twenty pounds per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by this Act shall be disposed of And 't is usual in Acts of Parliament to give the whole penalty for any criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in the Statutes of 3 H. 6. Stat. 3 H. 6. 3. 3 H. 7. 7. cap. 3. and 3 H. 7. cap. 7. and others And the subsequent distribution shall always stand good notwithstanding the precedent words of limitation of the whole to the King For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter Interest then they would have had if they had been omitted and it had been only said shall forfeit without appointing to whom And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be distributed that qualifies the former general words and such distribution shall be made as the Statute appoints Co. 11. 60. Rolles 1. 89. 90. C. 41. Dr. Fosters Case Anderson 1. 139. 140. C. 190. Cuff against Vachell Vide supra Sect. 5. For relief of the Poor in the Parish Scot was Indicted upon this Statute for Recusancy Anno 26 Eliz. by the name of William Scot of Southwark Gent. and exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applied to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the Offence was nor to what Parish the third part of the penalty belongs But the whole Court of Kings-Bench were clear of Opinion The Parish need not be mentioned that the Indictment was good enough notwithstanding 't is not said of what Parish the Recusant was For the whole penalty of