singular persons which shall offend within any their Iurisdictions or Diocess after the said Feast of the Nativity of St. John Baptist next coming against this Act and Statute Any other Law Statute Priviledge Liberty or Provision heretofore made had or suffered to the contrary notwithstanding Not necessary to go to the Parish Church The Ordinary or Ecclesiastical Judge cannot legally punish any man for not coming to the Church of that Parish where he inhabits if he goes to any other although he shews not any reasonable Lett. For it shall be a good Plea for the party to say that that is not his Parish Church but that he had used to frequent another Church and did resort thereunto And if the Ecclesiastical Court will not receive this plea the party shall have a Prohibition Prohibition For the Spiritual Court hath no power to judge what shall be said to be a mans Parish Church And so it was resolved by the whole Court of Kings-Bench Trin. 9. Jac. Bulstrode 1. 159. Nor can the Spiritual Court try the limits or bounds of Parishes but they shall be tried by the Common Law Co. 13. 17. Stat. Sect. 10. What Justices may punish these Offences And it is ordained and enacted by the Authority aforesaid That all and every Iustices of Oyer and Determiner or Iustices of Assize shall have full Power and Authority in every of their open and general Sessions to enquire hear and determine all and all manner of Offences that shall be committed or done contrary to any Article contained in this present Act within the limits of the Commission to them directed and to make process for the execution of the same as they may do against any person being indicted before them of Trespass or lawfully convicted thereof Provided always and be it enacted by the Authority aforesaid A Bishop may joyn with the Justices to enquire of Offenders That all and every Archbishop and Bishop shall or may at all time and times at his liberty and pleasure joyn and associate himself by vertue of this Act to the said Iustices of Oyer and Determiner or to the said Iustices of Assize at every of the said open and general Sessions to be holden in any place within his Diocess for and to the enquiry hearing and determining of the Offences aforesaid Provided also and be it enacted by the Authority aforesaid At whose charges the Book of Common Prayer shall be gotten That the Books concerning the said Services shall at the Costs and Charges of the Parishioners of every Parish and Cathedral Church be attained and gotten before the said Feast of the Nativity of St. John Baptist next following and that all such Parishes and Cathedral Churches or other places where the said Books shall be attained and gotten before the said Feast of the Nativity of St. John Baptist shall within thrée weeks next after the said Books so attained and gotten use the said Service and put the same in ure according to this Act. And be it further enacted by the Authority aforesaid Within what time the Offenders shall be impeached That no person or persons shall be at any time hereafter Impeached or otherwise molested of or for any the Offences above-mentioned hereafter to be committed or done contrary to this Act unless he or they so offending be thereof Indicted at the next general Sessions to be holden before any such Iustices of Oyer and Determiner or Iustices of Assize next after any Offence committed or done contrary to the tenour of this Act. Provided always Trial of Peers and be it ordained and enacted by the Authority aforesaid That all and singular Lords of the Parliament for the third Offence above-mentioned shall be tried by their Peers Provided also Stat. Sect. 11. Chief Officers of Cities and Boroughs shall enquire of Offenders and be it ordained and enacted by the Authority aforesaid That the Mayor of London and all other Mayors Bayliffs and other head Officers of all and singular Cities Boroughs and Towns Corporate within this Realm Wales and the Marches of the same to the which Iustices of Assize do not commonly repair shall have full Power and Authority by virtue of this Act to enquire hear and determine the Offences aforesaid and every of them yearly within fifteen days after the Feast of Easter and St. Michael the Archangel in like manner and form as Iustices of Assize and Oyer and Determiner may do These words In like manner and form appoint in what manner the Offences shall be enquired of Mayors and Head Officers of Corporations heard and determined by Mayors and Head Officers of Corporations c. by Indictment for so much enquire imports and Trial and Verdict of twelve men or such other Legal proceedings upon the said Indictment as are used by the Justices of Oyer and Determiner and Assizes in their general Sessions For the Mayor or Head Officer is not left by this Act to his own Arbitrary Will or Discretion in the hearing and determining the Offence but must proceed according to the rules and forms of Law in the Conviction of the Offender And the Statute saith To which Justices of Assize do not commonly repair So that the Mayor or Head Officer of such places were only intended in the lieu and room of Justices of Assize and are therefore to proceed by the same Rules as they do in the Counties at large Within what time to proceed But these words extend not to the point of time limited for Indicting such Offender nor are Mayors and Head Officers tied to their next Sessions as the Justices of Oyer and Determiner and of Assize are as Wingate tit Service and Sacraments numb 26. mistakes the meaning of the Statute For in like manner and form is intended in such respects only where 't is not otherwise provided for by the Statute But 't is expresly provided here that Mayors and Head Officers of Corporations shall enquire of these Offences only twice in the year viz. within fifteen days after Easter and Michaelmas and not at their next general Sessions unless it happen to be the Sessions after one of those two Feasts To whom the Bishop cannot associate himself Nor can the Archbishop or Bishop associate himself in this Case to any Mayor or Head Officer of a Corporation as Wingate tit Service and Sacraments number 25. mistakes Stat. Sect. 12. The Ordinaries Jurisdiction in these Cases Provided always and be it ordained and enacted by the Authority aforesaid That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Iurisdiction shall have full Power and Authority by virtue of this Act as well to enquire in their Visitation Synods and elsewhere within their Iurisdiction at any other time and place to take Accusations and Informations of all and every the things above-mentioned done committed or perpetrated within the limits of
as aforesaid after notice thereof to him or them given by the Ordinary of the Diocess any Iustice of Assizes of the Circuit or any Iustice of Peace of the County or the Minister Curate or Churchwardens of the Parish where such person shall then be or by any of them shall forfeir to the Queéns Majesty for every person so relieved maintained retained or kept after such notice as aforesaid ten pounds for every month that he or they shall so relieve maintain retain or kéep any such person so offending What sort of Recusants may be reliev'd or kept Rep. 3 Jac. 4. Provided nevertheless That this Act shall not in any wise extend to punish or impeach any person or persons for relieving maintaining or kéeping his or their Wife Father Mother Child or Children Wards Brother or Sister or his Wives Father or Mother not having any certain place of habitation of their own or the Husbands or Wives of any of them or for relieving maintaining or keéping any such person as shall be committed by Authority to the custody of any by whom they shall be so relieved maintained or kept Any thing in this Act contained to the contrary notwithstanding Repeal Stat. 3 Jac. 4. This Branch is repealed by the Statute of 3 Jac. cap. 4. Quod vide infra Sect. 24. Stat. Sect. 8. The Queens Remedy to recover forfeitures c. And for the more spéedy levying and recovering for and by the Quéens Majesty of all and singular the pains duties forfeitures and payments which at any time hereafter shall accrue grow or be payable by virtue of this Act or of the Statute made in the threé and twentieth year of her Majesties Reign concerning Recusants Be it Enacted by the Authority aforesaid That all and every the said pains duties forfeitures and payments shall and may be recovered and levied to her Majesties use by Action of Debt Bill Plaint Information or otherwise in any of the Courts commonly called the Kings Bench Common Pleas or Exchequer in such sort and in all respects as by the ordinary course of the Common Laws of this Realm any other Debt due by any such person in any other Case should or may be recovered or levied wherein no essoign protection or wager of Law shall be admitted or allowed A new remedy given to the Queen Stat. 23 Eliz. 1 All and every the said pains duties forfeitures and payments These words are not to be understood simpliciter or exclusive as if the forfeitures upon the Statute of 23 Eliz. cap. 1. could be recovered no other way then what is prescribed here But only they give the Queen a new remedy for the recovery of them which she had not before and take not away the Remedy given by 23 Eliz. upon Indictment 29 Eliz. 6. nor that by the Statute of 29 Eliz. cap. 6. upon Indictment and Proclamation nor the Informers popular Suit given him by 23. For all these three are affirmative Laws and do not abrogate one the other The former Laws not abrogated but may well stand together And the meaning of them taken together is That if the Informer recover the forfeiture upon that of 23. he shall have his part thereof But if the Offender were Indicted at the Queens Suit and Judgment had against him upon 23. or if he were convicted upon Proclamation and default upon 29. The Queen should have the whole penalty excluding the Informer for he shall not be punished again for the same offence at the Suit of the Informer But if the offender were neither Indicted nor Sued by the Informer Qui tam c. the Queen should have another Remedy to recover the intire forfeiture by Action of Debt c. upon this Statute and the Informer shall have no part thereof So that the Remedies given by these three Statutes are Cumulative and not Privative and there is no Repugnancy or disagreement between them but they have a dependance on each other The informer not aided here But as this Statute doth not abrogate any of the former Laws touching Recusancy nor takes away the Informers popular Suit so it adds nothing as to the Informer nor gives him any more speedy remedy for the recovery of the forfeiture but leaves him in the same condition as he was in before to take his remedy upon 23. Co. 11. 61 62. Rolles 1. 90 91 93. c. 41. Dr. Fosters Case Cro. Pasch 16 Jac. 481. Bridgman 121. 122. Parker vesus Webb To her Majesties use A more speedy remedy here given Stat. 23 Eliz. 1 Before this Statute the Queen had no other way to recover the intire penalty for Recusancy or any other offence within the Statute of 23 Eliz. cap. 1. but by Indictment only but by this Statute a more speedy remedy was given her by Action of Debt Bill Plaint or Information Vide the Cases before cited Shall and may be recovered The King by the Statute of 31 Eliz. cap. 5. 31 Eliz. 5. Within what time the King must sue is restrained in this Case to three years after the offence committed within which time he must pursue the remedy here given him for the recovery of the forfeiture but it seems that he is not restrained to two years for where the forfeiture is limited to the King and him that will sue there the Informer hath one year and the King the next two years if the Informer doth not sue within the first year of the three and the restraint in 31. of the King to 2 years next after the Offence committed where the forfeiture is limited to the King extends not to this Case For although the King is enabled by this Statute to sue for the intire forfeiture yet the intire forfeiture was not originally limited to the King only for the Informer may sue upon 23 Eliz. as well as the King may upon this Act. And where the Informer may sue it was not the meaning of 31 Eliz. to limit the King to two years after the offence committed but he may stay if he please till the Informers year is expired and then the Statute gives him two years afterwards to sue for the penalty Where the King is limited to a year and a day where not Much less is the King limited to sue upon this Statute within a year and a day and what is said in Dr. Fosters Case Co. 11. 65. viz. that for any forfeiture before the year and day neither the King nor the Informer hath any remedy for that that time is limited in certain by 23 Eliz. is a clear mistake of the meaning of that Statute of 23. touching the year and day for the limitation there of a year and a day extends only to the Kings Suits by Indictment and not to the popular Suit given by 23. much less to the Action of Debt c. given to the King by this Statute See more of this matter supra in the Statute of 23 Eliz.
Common Law preferred or other Law or Laws used or allowed within this Realm c. This takes in so much of the Canon and Civil Law as is allowed here But the Common Law as the peculiar Law of this Kingdom is here preferred and particularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton Cap. 81. tit Recusants Sect. 11. As have or shall have Authority by Common use c. Who are to administer the Oath The Statute saith not That those who belong not to any Court shall take the Oath before those who are authorized by Common use to give it as Wingate tit Crown numb 20. mistakes the meaning of this Clause For this being then a new Oath devised by the makers of the Act of 1 Eliz. no person could have Authority by Common use to administer it And the Act plainly enough speaks of those who have Authority by Common use to admit the party to the Office and not Authority by Common use to give the Oath And also Stat. Sect. 5. The Bishop may tender the Oath to any Spiritual person Be it Enacted by the Authority of this present Parliament That every Archbishop and Bishop within this Realm and Dominions of the same shall have full Power and Authority by virtue of this Act to tender or minister the Oath aforesaid to every or any Spiritual or Ecclesiastical person within their proper Diocess as well in Places and Iurisdictions exempt as elsewhere If a man be Indicted for refusing this Oath before him who is reputed to be Bishop of the Diocess Bishop or not Bishop and he plead to the Indictment Non culp he may upon that issue give in Evidence Quod non fuit Episcopus tempore oblationis Sacramenti Dyer 6 7 Eliz. 234. Bonners Case Stat. Sect. 6. The Lord Chancellor may direct Commissions to take the Oath of any person And be it Enacted by the Authority aforesaid That the Lord Chancellor or Kéeper of the Great Seal of England for the time being shall and may at all times hereafter by vertue of this Act without further Warrant make and direct Commission or Commissions under the Great Seal of England to any person or persons giving them or some of them thereby Authority to tender and minister the Oath aforesaid to such person or persons as by the aforesaid Commission or Commissions the said Commissioners shall be authorized to tender the same Oath unto The penalty for the first refusal of the Oath And be it also further Enacted by the Authority of this present Parliament That if any person or persons appointed or compellable by this Act or by the said Act made in the said first year to take the said Oath Or if any person or persons to whom the said Oath by any such Commission or Commissions shall be limited and appointed to be tendred as is aforesaid do or shall at the time of the said Oath so tendred refuse to take or pronounce the said Oath in manner and form aforesaid that then the party so refusing and being thereof lawfully Indicted or presented within one year next after any such refusal and convicted or attainted at any time after according to the Laws of this Realm shall suffer and incur the dangers penalties pains and forfeitures ordained and provided by the Statute of Provision and Praemunire aforesaid made in the 16th year of the Reign of King Richard the second Stat. Sect. 7. Certificate of Refusal into the Kings-Bench And furthermore be it Enacted by the Authority aforesaid That all and every such person and persons having Authority to tender the Oath aforesaid shall within forty days next after such refusal or refusals of the said Oath if the Term be then open and if not then at the first day of the full Term next following the said forty days make true Certificate under his or their Seal or Seals of the names places and degrees of the person or persons so refusing the same Oath before the Quéen her Heirs or Successors in her or their Court commonly called the Kings-Bench upon pain that every of the said persons having such Authority to tender the said Oath making default of such Certificate shall for every such default forfeit 100 l. to the Queens Highness her Heirs or Successors And that the Sheriff of the County where the said Court commonly called the Kings-Bench shall for the time be holden shall or may by vertue of this Act impannel a Iury of the same County to enquire of and upon every such refusal and refusals Indictment of the Offender Which Iury shall or may upon every such Certificate and other Evidence to them in that behalf to be given by vertue of this Act proceed to Indict the person and persons so offending in such sort and degree to all intents and purposes as the same Iury may do of any Offence or Offences against the Queens Majesties Peace perpetrated committed or done within the same County of and for the which the same Iury is so Impannelled Terme When the Term Term. is open and which is the first day of full Term Vide supra Sect. 3. Make true Certificate c. in the Kings-Bench Certificate of refusal by whom brought in not material It is not necessary that it be mentioned of Record in the Kings-Bench how or by whom the Certificate was brought in thither And in Bonners Case where the Bishop of Winchester certified the refusal of this Oath And exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi the exception was dissallowed for that reason Dyer 6. 7. Eliz. 234. Impannel a Iury of the same County to inquire A Jury of the County where the Kings-Bench is And a Jury of the County where the Kings-Bench is can do no more in this Case then inquire that is Indict the party refusing the Oath unless where the refusal is in the same County Horne Bishop of Winchester tendred this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London By what Jury the Offender shall be Tryed who refused to take it and this was certified by the Bishop of Winchester into the Kings-Bench then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act the Question was by what County he should be Tryed whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the offence was committed And it was resolved that he should be Tryed by a Jury of Surrey for this Statute extendeth to the Indictment only and leaveth the Trial to the Common Law which appoints it to be where the Offence is committed for regularly by the Common Law debet quis juri subjacere ubi deliquit Dyer 6. 7. Eliz. 234. Co. 3.
Inst 34. Which Iury shall or may c. proceed to Indict Who to Indict him So that the Jury is to Indict and not the Sheriff as is mistaken in the late additions to Dalton cap. 81. tit Recusants Sect. 11. And for stronger defence and maintenance of this Act Stat. Sect. 8. It shall be Treason the second time to maintain the Authority of the Bishop or See of Rome it is further Ordained Enacted and Established by the Authority aforesaid That if any such Offender or Offenders as is aforesaid of the first part or Branch of this Estatute that is to say by Writing Cyphering Printing Preaching or Teaching Deed or Act Advisedly and Wittingly hold or stand with to extol set forth maintain or defend the Authority Iurisdiction or Power of the Bishop of Rome or of his See heretofore claimed used or usurped within this Realm or in any Dominion or Country being of within or under the Queens Power or Obeysance or by any Speech open Deed or Act Advisedly and Wittingly attribute any such manner of Iurisdiction Authority or Preheminence to the said See of Rome or to any Bishop of the same See for the time being within this Realm or in any the Queens Dominions or Countries or be to any such Offender or offenders Abetting Procuring or Counselling or Aiding Assisting or Comforting upon purpose and to the intent to set forth further and extol the said usurped Power Authority or Iurisdiction After such Conviction and Attainder as is aforesaid do eftsoons commit or do the said Offences or any of them in manner and form aforesaid and be thereof duly convicted and attainted as is aforesaid Or to refuse the Oath And also that if any the persons abovenamed and appointed by this Act to take the Oath aforesaid do after the space of thrée months next after the first tender thereof the second time refuse to take and pronounce or do not take or pronounce the same in form aforesaid to be tendred that then every such Offender or Offenders for the same second Offence and Offences shall forfeit lose and suffer such like and the same pains forfeitures Iudgment and Execution as is used in Cases of High Treason What is an advised or witting maintenance Advisedly and wittingly Slade and Body were condemned in a Praemunire upon this Statute before Justices of Oyer and Terminer for extolling the Authority of the Bishop of Rome and remained in Prison for the space of two years and afterwards were brought to the Assizes and demanded whether they were still of the same Opinion To which they answered that they were and one of them said that if they had a thousand Lives they would lose them all in this Case upon which they were Indicted and Arraigned and Convicted upon this second Branch of the Statute for High Treason And it was Resolved by the greater part of the Justices that the words should be taken to be spoken Advisedly and Wittingly and were within the meaning of this second Branch Savile 46. 47. C. 99. Tender and refusal For tender and refusal Vide Stat. 7. Jac. cap. 6. Sect. 4. 5. postea Stat. Sect. 9. Provided always That this Act nor any thing therein contained nor any Attainder to be had by force and vertue of this Act shall not extend to make any corruption of Blood the disheriting of any Heir forfeiture of Dower No corruption of Blood disheriting of Heir or forfeiture of Dower for any Attainder by this Act nor to the prejudice of the Right or Title of any person or persons other then the Right or Title of the Offender or Offenders during his her or their natural Lives only And that it shall and maybe lawful to every person and persons to whom the Right or Interest of any Lands Tenements or Hereditaments after the death of any such Offender or Offenders should or might have appertained if no such Attainder had been to enter into the same without any Ouster le maine to be sued in such sort as he or they might have done if this Act had never been had ne made Provided also That the Oath expressed in the said Act How the Oath expressed An. 1. Eliz. 1. shall be expounded made in the said first year shall be taken and expounded in such form as is set forth in an Admonition annexed to the Queens Majesties Injunctions published in the first year of her Majesties Reign That is to say to confess and acknowledge in her Majesty her Heirs and Successors none other Authority then that was challenged and lately used by the Noble King Henry the Eighth and King Edward the Sixth as in the said admonition more plainly may appear And be it Enacted by the Authority aforesaid In what Courts and places this Act shall be published That this Act shall be openly Read and Published and Declared at every Quarter Sessions by the Clerk of the Peace and at every Leet and Law-day by the Steward of the Court and once in every Term in the open Hall of every House and Houses of Court and Chancery at the times and by the persons thereunto to be limited and appointed by the Lord Chancellor or Keeper of the Great Seal for the time being And be it further Enacted Stat. Sect. 10. Every Knight Citizen and Burgess of the Parliament shall take the said Oath That every person which hereafter shall be Elected or appointed a Knight Citizen or Burgess or Baron for any of the five Ports for any Parliament or Parliaments hereafter to be holden shall from henceforth before he shall enter into the Parliament House or have any Voice there openly receive and pronounce the said Oath before the Lord Steward for the time being or his Deputy or Deputies for that time to be appointed And that he which shall enter into the Parliament House without taking the said Oath shall be deemed no Knight Citizen Burgess nor Baron for that Parliament nor shall have any Voice but shall be to all intents constructions and purposes as if he had never been Returned nor Elected Knight Citizen Burgess or Baron for that Parliament and shall suffer such pains and penalties as if he had presumed to sit in the same without Election Return or Authority The Kings dispensation void The King cannot dispence with any Member of the Commons House from taking this Oath For the reason given by the late Lord Chief Justice Vaughan in the Case of Thomas and Sorrell touching the Oath of Allegiance holds here viz. Because by this Statute he is persona inhabilis until he hath taken it Vaughan 355. Stat. Sect. 11. Where no temporal person of or above the degree of a Baron shall be compelled to take the said Oath Provided alway That forasmuch as the Quéens Majesty is otherwise sufficiently assured of the Faith and Loyalty of the Temporal Lords of her High Court of Parliament Therefore this Act nor any thing therein contained shall
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