MOst humbly beseech your most excellent Majesty, Stat. Sect. 1. your faithful and obedient Subjects, the Lords Spiritual and Temporal, and the Commons in this your present Parliament assembled, that where in the time of the Reign of your most dear Father, of worthy memory, K. Henry the Eighth, divers good Laws and Sta­tutes were made and established as well for the utter extin­guishment and putting away of all usurped and Forreign Powers and Authorities out of this your Realm and other your Highnesses Dominions and Countries, as also for the resto­ring and uniting to the Imperial Crown of this Realm the ancient Iurisdictions, Authorities, Superiorities and Prehe­minences to the same of right belonging and appertaining, by reason whereof We your most humble and obedient Subjects, Great Exacti­ons were taken by Forreign Power before the 25th year of K. H. 8. of the Inhabitants of this Realm. from the five and twentieth year of the Reign of your said dear Father, were continually kept in good Order, and were dis­burthened of divers great and intolerable charges and exacti­ons, before that time unlawfully taken, and exacted by such Forreign Power and Authority as before that was usurped, until such time as all the said good Laws and Statutes by one Act of Parliament made in the first and second years of the Reigns of the late K. Philip and Q. Mary, your Highnesses Sister, entituled, An Act repealing all Statutes, Articles and Provisions made against the See Apostolick of Rome, since the twentieth year of K. Henry the Eighth, and also for the Esta­blishment of all Spiritual and Ecclesiastical Possessions and He­reditaments conveyed to the Laity, were all clearly repealed and made void, as by the same Act of Repeal more at large doth and may appear. By reason of which Act of Repeal your said humble Subjects were eftsoons brought under an usurped [Page 2] Forreign Power and Authority, and yet do remain in that bon­dage to the intolerable charges of your loving Subjects, if some redress (by Authority of this your High Court of Parliament with the assent of your Highness) be not had and provided.

Stat. Sect. 2.May it therefore please your Highness, for the repressing of the said usurped Forreign Power, and the restoring of the Rights, Iurisdictions and Preheminences appertaining to the Imperial Crown of this your Realm, that it may be enacted by Authority of this present Parliament, That the said Act made in the said first and second years of the Reigns of the said late K. Philip and Q. Mary, A repeal of the Stat. of the 1 & 2 Ph. & M. 8. and all and every Branches, Clauses, and Articles therein contained (other than such Branches and Sentences as hereafter shall be excepted) may from the last day of this Session of Parliament, by Autho­rity of this present Parliament, be repealed, and shall from thenceforth be utterly void and of none effect.

The Statute of 1. and 2. Ph. & Mar. here mentioned, re­pealed, The King de­clared supream Head. Stat. 1 & 2. Ph. & Mar. 8. 26 H. 8. 1. 35 H. 8. 3. the Statutes of 26 H. 8. cap. 1. and 35 H. 8. cap. 3. By both which King Henry the Eighth, his Heirs and Successors, were declared supream Head of the Church of England; And by the repeal of that of 1. and 2. Ph. & Mar. those other of 26 and 35 H. 8. were revived, and are again in force. Co. 4. Inst. 325. Vide Sect. 5.

Stat. Sect. 3. A reviver of several Stat.And that also for the reviving of divers of the said good Laws and Statutes made in the time of your said dear Father, it may also please your Highness, That one Act and Statute made in the three and twentieth year of the Reign of the said late King Henry the Eighth, entituled, An Act that no person shall be cited out of the Diocess where he or she dwelleth, except in certain Cases.

And one other Act made in the Four and Twentieth year of the Reign of the said late King, entituled, An Act that Ap­peals in such cases as hath been used to be pursued to the See of Rome, shall not be from henceforth had ne used, but within this Realm.

And one other Act made the five and twentieth year of the said late King concerning restraint of payment of Annates and First-fruits of Archbishopricks and Bishopricks to the See of Rome.

And one other Act in the said five and twentieth year, enti­tuled, An Act concerning the submission of the Clergy to the Kings Majesty.

And also one Act made in the five and twentieth year, enti­tuled, An Act restraining the payment of Annates or First-fruits to the Bishop of Rome, and of the Electing and Consecrating of Archbishops and Bishops within this Realm.

And one other Act made in the said five and twentieth year, entituled, An Act concerning the Exoneration of the Kings Subjects from Exactions and Impositions heretofore paid to the See of Rome, and for having Licences and Dispensations within this Realm without suing further for the same.

And one other Act made in the six and twentieth year of the said late King, entituled, An Act for Nomination and Conse­cration of Suffragans within this Realm.

And also one other Act made in the eight and twentieth year of the Reign of the said late King, entituled, An Act for the Release of such as have obtained pretended Licences and Di­spensations from the See of Rome; And all and every Branches, Words, and Sentences in the said several Acts and Statutes contained, The Sentences and Branches in the afore­said Statutes shall extend to the Queen. by Authority of this present Parliament from and at all times after the last day of this Session of Parliament, shall be revived, and shall stand and be in full force and strength to all intents, constructions and purposes; And that the Branches, Sentences and Words of the said several Acts, and every of them from thenceforth shall and may be judged, déemed and taken to extend to your Highness, your Heirs and Suc­cessors, as fully and largely as ever the same Acts or any of them did extend to the said late King Henry the Eighth, your Highnesses Father.

And that it may also please your Highness, that it may be enacted by the Authority of this present Parliament, That so much of one Act or Statute made in the two and thirtieth year of the Reign of your said dear Father King Henry the Eighth, entituled, An Act concerning Precontracts of Marriages, and touching degrees of Consanguinity, as in the time of the late King Edward the sixth, your Highnesses most dear Brother, by one other Act or Statute was not repealed.

And also one Act made in the seven and thirtieth year of the Reign of the said late King Henry the Eighth, entituled, An Act that Doctors of the Civil Law being married may exercise Ecclesiastical Jurisdiction; And all and every Branches and Ar­ticles in the said two Acts last mentioned, and not repealed in the time of the said late King Edward the sixth may from henceforth likewise stand and be revived, and remain in their full force and strength to all intents and purposes: Any thing contained in the said Act of repeal before mentioned, or any other matter or cause to the contrary notwithstanding.

What Stat. re­pealed by the Stat. of 1 & 2 P. & M. 8. shall continue re­pealed.And that it may also please your Highness that it may be fur­ther enacted by the Authority aforesaid, That all other Laws and Statutes, and the Branches and Clauses of any Act or Statute repealed and made void by the said Act of Repeal, made in the time of the said late King Philip and Quéen Mary, and not in this present Act specially mentioned and revived, shall stand, remain, and be repealed and void in such like man­ner and form as they were before the making of this Act, any thing herein contained to the contrary notwithstanding.

A reviver of the Stat. of 1 Ed. 6. 1.And that it may also please your Highness, That it may be enacted by the Authority aforesaid, that one Act and Statute made in the first year of the Reign of the late King Edward the sixth, your Majesties most dear Brother, entituled, An Act against such persons as shall unreverently speak against the Sacrament of the Body and Blood of Christ, commonly called the Sacrament of the Altar, and for the receiving thereof under both kinds, and all and every Branches, Clauses and Sentences therein contained, shall and may likewise from the last day of this Session of Parliament, be revived, and from thenceforth shall and may stand, remain, and be in full force, strength and effect, to all intents, constructions and purposes, in such like manner and form as the same was at any time in the first year of the Reign of the said late King Edward the Sixth, any Law, Statute, or other matter to the contrary in any wise not­withstanding.

A repeal of the Statute of 1 & 2 P. & M. 6. and several o­ther Statutes.And that also, it may please your Highness, That it may be further established and enacted by the Authority aforesaid, that one Act and Statute made in the first and second years of the late King Philip and Queen Mary, entituled, An Act for the reviving of three Statutes made for the punishment of Heresies, and also the said three Statutes mentioned in the said Act, and by the same Act revived; And all and every Branches, Articles, Clauses and Sentences contained in the said several Acts and Sta­tutes, and every of them, shall be from the last day of this Session of Parliament deemed and remain utterly repealed, void, and of none effect to all intents and purposes; Any thing in the said several Acts, or any of them contained, or any other matter or cause to the contrary notwithstanding.

Stat. Sect. 4. The abolishing of Forreign Authority.And to the intent that all usurped and Forreign Power and Authority Spiritual and Temporal may for ever be clearly ex­tinguished, and never to be used or obeyed within this Realm, or any other your Majesties Dominions or Countries: may it please your Highness, That it may be further enacted by the Authority aforesaid, That no Forreign Prince, Person, Pre­late, [Page 5] State, or Potentate, Spiritual or Temporal, shall at any time after the last day of this Session of Parliament, use, enjoy or exercise any manner of Power, Iurisdiction, Supe­riority, Authority, Preheminence, or Priviledge, Spiritual or Ecclesiastical within this Realm, or within any other your Majesties Dominions or Countries, that now be or hereafter shall be, but from thenceforth the same shall be clearly abolished out of this Realm, and all other your Highnesses Dominions for ever: Any Statute, Ordinance, Custom, Constitutions, or any other matter or cause whatsoever to the contrary in any wise notwithstanding.

By the abrogating the Jurisdiction of any Forreign Prelate, Archbishop of Canterburies concurrent Ju­risdiction ab­rogated. all Jurisdiction derived from such Forreigner is abrogated like­wise. And therefore the concurrent Jurisdiction which the Archbishop of Canterbury is supposed to have in the inferiour Diocesses, ought not now to be exercised by him, but is utterly taken away by this Act: For he had it not as Archbishop but as Legatus natus to the Pope, and if continued to be exercised is a meer Usurpation: Hobart. 17. Dr. James's Case.

And that also it may likewise please your Highness, Stat. Sect. 5. Ecclesiastical Jurisdiction annexed to the Crown. that it may be established and enacted by the Authority aforesaid, that such Iurisdictions, Priviledges, Superiorities and Prehemi­nences Spiritual and Ecclesiastical, as by any Spiritual or Ecclesiastical Power or Authority hath heretofore béen or may lawfully be exercised or used for the Visitation of the Ecclesia­stical State and Persons, and for Reformation, Order and Correction of the same; And of all manner of Errors, Here­sies, Schisms, Abuses, Offences, Contempts and Enormi­ties, shall for ever by Authority of this present Parliament be united and annexed to the Imperial Crown of this Realm.

Sir Edward Coke 4. Inst. 325. calls this an Act of Restitution of the ancient Jurisdiction Ecclesiastical, which always belonged of Right to the Crown of England, That is a restitution of the exercise of it.

For in truth this Statute is not introductory of a new Law, The Kings an­cient Jurisdi­ction Ecclesi­astical. but declaratory of the old; and annexes not any Jurisdiction to the Crown, but that which was, or of right ought to be by the ancient Laws of this Realm parcel of the Kings Jurisdiction. By which Laws the King as supream Head hath full and intire Power in all causes Ecclesiastical as well as Temporal: For the Ecclesiastical Laws are the Kings Laws as well as the Temporal; [Page 6] And the Judges of either of those Laws derive their Authority from him alone, Co. 5.8, 9. Cawdries Case; where are several instances of Ecclesiastical Jurisdiction exercised by the Kings of this Realm in several Ages, Moore 755. b. 1043.

The King is Persona mixta. And in this respect the King is said to be Persona mixta, and Persona mixta & unita cum Sacerdotibus: for that he hath both Ecclesiastical and Temporal Jurisdiction. 10 H. 7.18. Co. 2.44. Bishop of Winchesters Case. Coke 13.17. Case of Modus De­cimandi. Vid. Co. lib. 6. Praefac'.

And supream Ordinary. The King is the supream Ordinary; and by the ancient Laws of this Realm, may without any Act of Parliament make Ordi­nances and Institutions for the Government of the Clergy, and may deprive them if they obey not, Moore 755. C. 1043. Cro. Trin. 2. Jac. 37. And if there be a controversie between Spiri­tual Persons concerning their Jurisdiction, the King is Arbitra­tor, and 'tis a right of his Crown to distribute to them, and to declare their Bounds. Hobart. 17. Dr. James's Case.

Laws to be ad­ministred di­stinctly. And yet although these Jurisdictions Ecclesiastical and Tem­poral are both in the King, they are not to be confounded; For although both Laws are the Kings Laws, yet they are to be ad­ministred distinctly, so that he who hath Ecclesiastical Jurisdicti­on derived from the King ought not to usurp upon the temporal Law: And the Ecclesiastical Judge who meddles in Temporal Causes or Suits, and draws the Interest or Cause of the Subject which ought to be determined by the Common Law, ad aliud examen, viz. to be decided by the Ecclesiastical Law offends, contra Coronam & dignitatem Regiam, In confounding those Ju­risdictions of the King which ought to be kept separate and di­stinct.

Prohibition. And in such Cases not only a Prohibition lies, but the Eccle­siastical Judge, if the Cause originally belongs to the Common Law, Pramunire. and not to the Ecclesiastical Court, incurs a Praemu­nire, for depriving the Subject of the benefit of the Com­mon Law, which is his Birthright, Co. 12.37, 38, 39, 40. Co. 3. Inst. 120.

And therefore it was Resolved, That if a man be excommu­nicated in the Bishops Court for a matter which belongs to the determination of the Common Law, 'tis no less than a Praemu­nire: Praemunire. And that by force of the word (elsewhere) in the Sta­tute of 16 R. 2. cap. 5. Stat. 16 R. 2. 5. If any man pursue in the Court of Rome or elsewhere, &c. 5 E. 4.6.

The King may do what the Pope might by the Canon Law. By this and the former Clause which restores to the King the Title and Exercise of the Power of Supream Head of the Church of England, and annexes to the Crown all Ecclesiasti­cal Jurisdiction heretofore exercised by any Forreigner, The [Page 7] King as supream Head may do whatever the Pope might formerly do within this Realm by the Canon Law; And upon this ground it was resolved, Trin. 39 Eliz. in Hollingworths Case in the Kings-Bench, That notwithstanding the Statute of 25 H. 8. cap. 19. Stat. 25 H. 8. 19 which makes the sentence of the Delegates definitive, and saith, that no further Appeal shall be had, yet the King after such definitive Sentence may grant a Commission of Review. Commission ad revidendum. For that after a definitive Sentence the Pope as supream Head by the Canon Law used to grant a Commission ad revidendum, Co. 4. Inst. 341.

Upon this ground it was likewise resolved in the Case of Grendon versus the Bishop of Lincoln & al', That the King with the consent of the Patron, and without the Bishop, may make an Appropriation; Appropriation And in such Case the King doth it Authoritate sua regia suprema & Ecclesiastica, qua fungitur; for so are the words in the Charter there. Plowden 497, 498, 500. Vide Co. 5. 10. Cawdries Case, Co. 11. 10, 11. Pridle and Nappers Case.

And where the King is Patron, an Appropriation may be made by him alone; Addition to Popham 145.

And as he is supream Head and supream Ordinary, a Resig­nation Resignation. made to him of a Deanry is as good as if it were made to the Bishop. Dyer 12 & 13 Eliz. 293. Pollard and Walronds Case. Plowden 498. Palmer 493. Hayward and Fulchers Case

And that your Highness, your Heirs and Successors, Stat. Sect. 6. The Queen may assign Commissioners to exercise Ec­clesiastical Ju­risdiction. Kings or Queens of this Realm, shall have full Power and Autho­rity by vertue of this Act by Letters Patents under the Great Seal of England, to assign, name, and authorize, when, and as often as your Highness, your Heirs or Successors shall think meet and convenient; And for such and so long time as shall please your Highness, your Heirs or Successors, such person or persons being natural born Subjects to your Highness, your Heirs or Successors, as your Majesty your Heirs or Suc­cessors shall think meet to exercise, use, occupy, and execute under your Highness your Heirs and Successors, all manner of Iurisdictions, Priviledges and Preheminencies, in any wise touching or concerning any Spiritual or Ecclesiastical Iurisdiction within these your Realms of England and Ireland, or any other your Highnesses Dominions and Countries; And to visit, reform, redress, order, correct and amend all such Errors, Heresies, Schisms, Abuses, Offences, Contempts and Enormities whatsoever, which by any manner of Spiritual, or Ecclesiastical Power, Authority or Iurisdiction, can or may [Page 8] lawfully be reformed, ordered, redressed, corrected, restrained or amended, to the pleasure of Almighty God, the increase of Virtue, and the conservation of the Peace and Vnity of this Realm: And that such person or persons so to be named, as­signed, authorized, and appointed by your Highness, your Heirs or Successors, after the said Letters Patents to him or them made and delivered, as is aforesaid, shall have full Power and Authority by virtue of this Act, and of the said Letters Patents under your Highness, your Heirs or Succes­sors, to exercise, use and execute all the premisses according to the tenor and effect of the said Letters Patents: Any matter or cause to the contrary in any wise notwithstan­ding.

High Commis­sion Court. The Jurisdiction and Authority here by given to the late Court, commonly called the High Commission Court, are now taken away by Act of Parliament, but the Power here given the Queen to constitute such Commissioners, was no more than she had before by ancient Prerogative, and the Laws of England; For thereby she might have made such an Ecclesiastical Com­mission, if this Act of 1 Eliz. had never been made. Co. 5.8, 9. Cawdries Case, Cro. Trin. 2. Jac. 37.

Stat. Who are com­pellable to take the Oath. Ecclesiastical Persons and Officers, Judge, Justice, Mayor, Temporal Of­ficer. He that hath the Queens Fee.And for the better observation and maintenance of this Act, may it please your Highness, That it may be further enacted by the Authority aforesaid, That all and every Archbishop, Bishop, and all and every other Ecclesiastical person, and other Ecclesiastical Officer and Minister, of what Estate, Dignity, Preheminence or Degree soever he or they be, or shall be, and all and every temporal Iudge, Iustice, Mayor, and other Lay or Temporal Officer and Minister, and every other person having your Highnesses Fees or Wages within this Realm, or any your Highnesses Dominions, shall make, take and receive, a corporal Oath upon the Evangelist, be­fore such person or persons as shall please your Highness, your Heirs or Successors, under the Great Seal of England to assign and name, to accept and to take the same accor­ding to the tenor and effect hereafter following, that is to say, ‘ [Page 9]I A. B. do utterly testifie and declare in my Conscience, The Oath for the Queens Su­premacy. That the Queens Highness is the only Supream Governour of this Realm, and of all other Her Highness Dominions and Countries, as well in all Spiritual or Ecclesi­astical Things or Causes, as Temporal; And that no Forreign Prince, Person, Prelate, State, or Potentate, hath or ought to have any Ju­risdiction, Power, Superiority, Preheminence or Authority Ecclesiastical or Spiritual within this Realm; And therefore I do utterly re­nounce and forsake all Forreign Jurisdictions, Powers, Superiorities and Authorities, and do promise that from henceforth I shall bear Faith and true Allegiance to the Queens High­ness, her Heirs and lawful Successors, and to my Power shall assist and defend all Jurisdicti­ons, Priviledges, Preheminences, and Autho­rities, granted or belonging to the Queens High­ness, her Heirs and Successors, or united and annexed to the Imperial Crown of this Realm. So help me God, and by the Contents of this Book.’

And that it may also be Enacted, The penalty for refusing the Oath. That if any such Arch­bishop, Bishop, or other Ecclesiastical Officer or Minister, or any of the said Temporal Iudges, Iusticiaries, or other Lay-Of­ficer or Minister, shall peremptorily or obstinately refuse to take or receive the said Oath, That then he so refusing shall forfeit and lose only during his life, all and every Ecclesiastical and Spiri­tual Promotion, Benefice and Office, and every Temporal and [Page 10] Lay-Promotion and Office which he hath solely at the time of such refusal made: And that the whole Title, Interest and In­cumdency, in every such Promotion, Benefice, and other Office as against such person only so refusing, during his life, shall clearly cease and be void, as though the party so refusing were dead.

And that also all and every such person and persons so refu­sing to take the said Oath, shall immediately after such refusal be from thenceforth during his life, disabled to retain or exer­cise any Office or other Promotion, which he at the time of such refusal hath joyntly or in Common with any other person or persons.

And that all and every person and persons that at any time hereafter shall be preferred, promoted or collated to any Arch­bishoprick, or Bishoprick, or to any other Spiritual or Eccle­siastical Benefice, Promotion, Dignity or Office, or Ministry, or that shall be by your Highness, your Heirs or Successors, preferred or promoted to any Temporal or Lay-Office, Ministry or Service within this Realm, or in any your Highness Domi­nions, before he or they shall take upon him or them to receive, use, exercise, supply, or occupy any such Archbishoprick, Bishop­rick, Promotion, Dignity, Office, Ministry or Service, shall likewise make, take, and receive the said Corporal Oath before mentioned upon the Evangelist, before such persons as have or shall have Authority to admit any such person to any such Of­fice, Ministry or Service, or else before such person or persons as by your Highness, your Heirs or Successors, by Commis­sion under the Great Seal of England, shall be named, assigned or appointed to minister the said Oath.

And that it may likewise be further enacted by the Authority aforesaid, That if any such person or persons as at any time hereafter shall be promoted, preferred, or collated to any such Promotion, Spiritual or Ecclesiastical, Benefice, Office or Ministry, or that by your Highness, your Heirs or Successors, shall be promoted or preferred to any Temporal or Lay Office, Ministry or Service, shall and do peremptorily and obstinately refuse to take the same Oath so to him to be offered, that then he or they so refusing shall presently be judged, disabled in the Law to receive, take, or have the same Promotion Spiritual, or Ecclesiastical, or the same Temporal Office, Ministry or Service within this Realm, or any other your Highnesse Dominions, to all intents, constructions and purposes.

He that sues Livery or [...].And that it may be further enacted by the Authority aforesaid, that all and every person and persons Temporal, suing Livery or Oustre le maine out of the hands of your Highness, your [Page 11] Heirs or Successors, before his or their Livery or Oustre le maine sued forth and allowed: He that doth homage to the Queen. He that shall be received into the Queens ser­vice. and every Temporal person or per­sons doing any homage to your Highness, your Heirs or Suc­cessors, or that shall be received into Service with your High­ness, your Heirs or Successors, shall make, take and receive the said Corporal Oath before mentioned, before the Lord Chancellor of England, or the Lord Keeper of the Great Seal for the time being, or before such person or persons, as by your Highness, your Heirs or Successors, shall be named and ap­pointed to accept or receive the same.

And that also all and every person and persons taking Or­ders, He that taketh Orders. He that taketh Degrees in any University. and all and every other person and persons which shall be promoted or preferred to any Degree of Learning in any Vniversity within this your Realm or Dominions, before he shall receive or take any such Orders, or be preferred to any such Degree of Learning, shall make, take and receive the said Oath by this Act set forth and declared, as is aforesaid, before his or their Ordinary, Commissary, Chancellor, or Vice-Chan­cellor, or their sufficient Deputies in the said Vniversity.

Provided always, He that having an Estate of Inheritance in a temporal Of­fice, first refu­seth, and then taketh the Oath. and that it may be further enacted by the Authority aforesaid, That if any person having any Estate of Inheritance in any Temporal Office or Offices, shall hereafter obstinately and peremptorily refuse to accept and take the said Oath as is aforesaid, and after at any time during his life, shall willingly require to take and receive the said Oath, and so do take and accept the same Oath before any person or per­sons that shall have lawful Authority to minister the same: that then every such person immediately after he hath so received the same Oath, shall be vested, judged and deemed in like estate and possession of the said Office, as he was before the said re­fusal, and shall and may use and exercise the said Office in such manner and form as he should or might have done before such refusal: Any thing in this Act contained to the contrary in any wise notwithstanding.

And for the more sure Observation of this Act, Stat. Sect. 8. The penalty of the mainte­nance of For­reign Authori­ty. and the utter Extinguishment of all Forreign and usurped Power and Au­thority, may it please your Highness that it may further be enacted by the Authority aforesaid, That if any person or per­sons dwelling or inhabiting within this your Realm, or in any other your Highnesses Realms or Dominions, of what Estate, Dignity or Degree whatsoever he or they be, after the end of 30 days next after the determination of this Session of this pre­sent Parliament, shall by Writing, Printing, Teaching, Preach­ing, express words, deed or act, advisedly, maliciously and di­rectly [Page 12] affirm, hold, stand with, set forth, maintain or defend the Authority, Preheminence, Power, or Iurisdiction Spiri­tual or Ecclesiastical, of any Forreign Prince, Prelate, Person, State or Potentate whatsoever heretofore claimed, used or usurped within this Realm, or any Dominion or Country, be­ing within or under the Power, Dominion or Obeysance of your Highness: or shall advisedly, maliciously and directly put in ure, or execute any thing for the extolling, advancement, setting forth, maintenance or defence of any such pretended or usurped Iurisdiction, Power, Preheminence or Authority, or any part thereof: that then every such person and persons so doing and offending, their abettors, aiders, procurers, and Counsellors, being thereof lawfully convicted and attainted ac­cording to the true order and course of the Common Laws of this Realm for his or their first offence, shall forfeit and lose unto your Highness, your Heirs and Successors, all his and their Goods and Chattels as well real as personal.

The forfeiture for the first Of­fence.And if any person so convicted or attainted shall not have, or be worth of his proper Goods and Chattels, to the value of twenty pounds at the time of his Conviction or Attainder: That then every such person so convicted and attainted over and besides the forfeiture of all his said Goods and Chattels, shall have and suffer Imprisonment by the space of one whole year without Bail or Mainprise.

And that also all and every the Benefices, Prebends, and other Ecclesiastical Promotions and Dignities whatsoever of every spiritual person so offending, and being attainted, shall immediately after such Attainder be utterly void to all intents and purposes, as though the Incumbent thereof were dead: And that the Patron and Donor of every such Benefice, Pre­bend, spiritual Promotion and Dignity, shall and may law­fully present unto the same, or give the same in such manner and form, as if the said Incumbent were dead.

The forfeiture for the second Offence.And if any such Offender or Offenders after such Conviction or Attainder, do eftsoons commit or do the said Offences, or any of them, in manner and form aforesaid, and be thereof duly convicted and attainted as is aforesaid: That then every such Offender and Offenders shall for the same second Offence, incur into the dangers, penalties and forfeitures ordained and provided by the Statute of Provision and Praemunire, made in the sixteenth year of the Reign of King Richard the second.

The forfeiture for the third Offence.And if any such Offender or Offenders at any time after the said second Conviction and Attainder, do the third time com­mit and do the said Offences, or any of them, in manner and [Page 13] form aforesaid, and be thereof duly convicted and attainted as is aforesaid: That then every such Offence or Offences shall be deemed and adjudged High Treason, and that the Offender or Offenders therein, being thereof lawfully convicted and at­tainted according to the Laws of this Realm, shall suffer pains of death, and other penalties, forfeitures, and losses, as in case of High Treason by the Laws of this Realm.

Vide Stat. 1 Eliz. cap. 2. Sect. 3. 6. Stat. 1 Eliz. 2.

And also that it may likewise please your Highness, Stat. Sect. 9. Within what time an Offen­der shall be im­peached. That it may be enacted by the Authority aforesaid, That no manner of person or persons shall be molested, or impeached for any the Offences aforesaid, committed or perpetrated only by Preach­ing, teaching, or words, unless he or they be thereof lawfully indicted, within the space of one whole year next after his or their Offences so committed. And in Case any person or per­sons shall fortune to be imprisoned for any of the said Offences committed by Preaching, Teaching, or words only, and be not thereof indicted within the space of one half year next after his or their such Offence so committed and done: That then the said person so imprisoned shall be set at liberty, and be no longer detained in prison for any such cause or offence.

Within the space of one whole year. Indictment within what time.] If a man had done any Deed or Act, or executed any thing which amounted to the holding, standing with, or maintaining the Spiritual or Ec­clesiastical Jurisdiction of any Forreign Prelate, &c. he might before the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1. have been indicted for it after the year expired: For the Restraint here in point of time extends to Offences committed by Preaching, Teaching, or words only, and not to all cases within this Branch, as Wingate tit. Crown numb. 10. mistakes the meaning of the Clause; But now by the Statute of 23. it seems that the prosecution must be within a year and a day for all Offences whatsoever against this Act.

Within the space of one half year.] The half year Half-year. here mentioned is not to be understood of six months (as Wingate again mistakes) which is in Law to be accounted secundum nu­merum singulorum dierum, allowing 28 days to every month, and not according to the Solar month, nor according to the Kalendar, unless it be upon the Statute of W. 2. cap. 5. W. 2. 5. 2 & 3 E. 6. 13. For the account of the lapse in a Quare Impedit, and 2 & 3 E. 6. 13. of proving a suggestion. Co. 1. Inst. 135. Cro. Trin. 5. Jac. 166. 167. Bishop of Peterborough versus Catesby. Yelverton 100. [Page 14] Catesby versus Baker. Hobart. 179. Copley versus Collins. But the half year here is to be understood according to the Ka­lendar.

Sir Edward Coke 4. Inst. 331. in his construction of this Sta­tute saith, That no persons shall be impeached for any of the Offences by Preaching, Teaching, or words, unless they be law­fully indicted within the space of half a year; But yet it seems that the words of the Statute will not bear such a Construction, neither if they did, is it Law at this day, nor was when those Institutes were written. For 1. The Statute where it speaks of half a year, refers only to the Case of Imprisonment, That where the Offender by Preaching, Teaching, or words, is im­prisoned, and is not indicted within half a year after the Offence committed, he shall be set at liberty, and be no longer detained in Prison for any such Cause or Offence, and this was done in favour of liberty, and to prevent a long Imprisonment upon a malicious and groundless Accusation. But there is no colour to extend the words to the Offender who was never imprisoned, although the Offence was by Preaching, Teaching, or words only. 2. But the Case that an Offender by Preaching, Teach­ing, or words, had been imprisoned within the half year, yet it seems very questionable, whether at the half years end when he was set at liberty (as he ought to be by this Act, if he be not in the mean time indicted) he should have been clearly dis­charged by this Act from any prosecution Prosecution. during the half year then next following. For although it be said he shall be no longer detained in Prison for any such Cause or Offence, yet that seems to refer only to his Imprisonment before Conviction; and (detained) imports as much, viz. That he should not be continued, or remain in the same Imprisonment which he suf­fered within the first half year before any Indictment was found against him, but not that he should not be indicted after­wards within the compass of the year, and if found guilty, suffer the Imprisonment, and other penalties inflicted by this Act. And it might so have happened, that an Offender by Preaching, Teaching, or words, might have been accused, taken and imprisoned a day or two before the half year next after the offence expired. In which Case it cannot be thought to be the meaning of the makers of the Law, that by his Imprisonment for a day or two he should escape the penalties of the Law, and could not be afterwards indicted within the compass of the year. And yet in that case he ought to be set at liberty by the express words of the Act, which saith, He shall be set at liberty if not indicted within half a year after the Offence, and not half a year after his Imprisonment. 3. It seems now to be out [Page 15] of doubt but that any Offender against this Act, although by Preaching, Teaching, or words, may be indicted at any time within a year and a day after the Offence committed, and that by force of the Statute of 23 Eliz. cap. 1. which saith, Stat. 23 Eliz. 1. that all Offences against the Acts of 1 Eliz. touching Acknowledgment of her Majesties supream government in Causes Ecclesiastical, shall and may be inquirable within a year and a day after the Offence committed. And the affirming or maintaining the Spi­ritual or Ecclesiastical Jurisdiction of a Forreigner, was without question an Offence against her Majesties supream Government in Causes Ecclesiastical, and against the acknowledgment thereof, so that the year limited by this Statute is now extended to a day farther, and whatever the meaning of it was as to the half year: All Offences against it, whether by Preaching, Teaching, or words, or otherwise (for that of 23. is general, and reaches all Offences whatsoever against the Act of 1 ^0. touching the Su­premacy Ecclesiastical) may now be inquired of within a year and a day, whether the party be in Prison or not. Within what time. But yet it seems that in Case of Imprisonment within the first half year, this Provision here for the setting at liberty of the Prisoner at the end thereof, if he be not before that time Indicted, remains still in force, and is not abrogated by 23.

Provided always, Stat. Sect. 10. All things touching the Praemunire in the Statute. 1. & 2. P. & M. 8. do continue in force. and be it enacted by the Authority afore­said, That this Act, or any thing therein contained, shall not in any wise extend to repeal any clause, matter, or sentence contained or specified in the said Act of Repeal made in the said first and second years of the Reigns of the said late King Philip and Quéen Mary, as doth in any wise touch or concern any matter or cause of Praemunire, or that doth make or ordain any matter or cause to be within the Case of Praemunire, but that the same for so much only as toucheth or concerneth any Case or matter of Praemunire, shall stand and remain in such force and effect, as the same was before the making of this Act: Any thing in this Act contained to the contrary in any wise not­withstanding.

Provided also, and be it enacted by the Authority aforesaid, Offences com­mitted against Statutes revi­ved. That this Act, or any thing therein contained, shall not in any wise extend or be prejudicial to any person or persons, for any Offence or Offences committed or done, or hereafter to be com­mitted or done, contrary to the tenour and effect of any Act or Statute now revived by this Act, before the end of thirty days next after the end of the Session of this present Parliament: Any thing in this Act contained, or any other matter or cause to the contrary notwithstanding.

Stat. Sect. 11. Trial of Peers.And if it happen that any Peér of this Realm shall fortune to be indicted of and for any Offence that is revived or made Praemunire or Treason by this Act, that then he so being in­dicted, shall have his Trial by his Péers, in such like man­ner and form as in other Cases of Treason hath been used.

Provision for Trial of Peers. The provision made in this and other Acts of Parliament for the Trial of a Peer by his Peers in case of Treason, where he was to be tried according to the course of the Common Law, is Ex abundanti, and he should have such Trial if no such Pro­viso were inserted; the like in the Case of Felony. Stamford Pl. Coron. 153.

Stat. Sect. 12. No matter of Religion, &c. made by this Parliament shall be ad­judged Error, Heresie, or Schism.Provided always, and be it enacted as is aforesaid, That no manner of Order, Act or Determination for any matter of Religion, or cause Ecclesiastical, had or made by the Authority of this present Parliament, shall be accepted, deémed, inter­preted, or adjudged at any time hereafter to be any Error, Heresie, Schism, or schismatical Opinion: Any Order, De­creé, Sentence, Constitution or Law whatsoever the same be, to the contrary notwithstanding.

What things the Commissi­ners may ad­judge to be He­resie.Provided always, and be it enacted by the Authority aforesaid, That such person or persons to whom your Highness, your Heirs or Successors, shall hereafter by Letters Patents under the Great Seal of England, give Authority to have, or exe­cute any Iurisdiction, Power or Authority Spiritual, or to visit, reform, order, or correct any Errors, Heresies, Schisms, Abuses or Enormities by virtue of this Act, shall not in any wise have Authority or Power to Order, determine or adjudge any matter or cause to be Heresie, but only such as heretofore have been de­termined, ordered or adjudged to be Heresie by the Authority of the Canonical Scriptures, The Scripture. Four general Counsels. or by the first four general Coun­sels, or any of them, or by any other general Counsel, where­in the same was declared Heresie by the express and plain words of the said Canonical Scriptures, or such as hereafter shall be ordered, judged, or determined to be Heresie by the high Court of Parliament of this Realm, with the assent of the Clergy in their Convocation: Any thing in this Act contained to the contrary notwithstanding.

None shall be indicted or ar­raigned but by Witnesses.And be it further enacted by the Authority aforesaid, That no person or persons shall be hereafter indicted or arraigned for any of the Offences made, ordained, revived or adjudged by this Act, unless there be two sufficient Witnesses or more to [Page 17] testifie and declare the said Offences, whereof he shall be in­dicted or arraigned. And that the said Witnesses, or so many of them as shall be living and within this Realm at the time of Arraignment of such person so indicted, shall be brought forth in person face to face before the party so arraigned, and there shall testifie and declare what they can say against the party so arraigned, if he require the same.

Provided also, A Proviso for them that give relief to Offen­ders. and be it further enacted by the Authority aforesaid, That if any person or persons shall hereafter hap­pen to give any relief, aid, or comfort, or in any wise be aid­ing, helping or comforting to the person or persons of any that shall hereafter happen to be an Offender in any matter or case of Praemunire or Treason revived or made by this Act: that then such relief, aid or comfort given, shall not be judged or taken to be any Offence, unless there be two sufficient Wit­nesses at the least, that can and will openly testifie and declare that the person or persons that so give such relief, aid or com­fort, had notice and knowledge of such Offence committed and done by the said Offender, at the time of such relief, aid or com­fort so to him given or ministred: Any thing in this Act con­tained, or any other matter or cause to the contrary in any wise notwithstanding.

And where one pretenced sentence hath heretofore béen given in the Consistory in Pauls before certain Iudges De Legate, by the Authority Legantine of the late Cardinal Poole, by rea­son of a Forreign usurped Power and Authority against Richard Chetwood, Esq; and Agnes his Wife, Chetwoods Ap­peal to the Court of Rome. by the name of Agnes Woodhull, at the suit of Charles Tyrrel, Gent. in a Cause of Matrimony solemnized betweén the said Richard and Agnes, as by the same pretended Sentence more plainly doth appear, from which Sentence the said Richard and Agnes have appealed to the Court of Rome, which Appeal doth there remain, and yet is not determined.

May it therefore please your Highness, that it may be enacted by the Authority aforesaid, That if Sentence in the said Ap­peal shall happen to be given at the said Court of Rome, for and in the behalf of the said Richard and Agnes for the reversing of the said pretenced Sentence before the end of threéscore days next after the end of this Session of this present Parliament: that then the same shall be judged and taken to be good and effectual in the Law, and shall and may be used, pleaded and allowed in any Court or Place within this Realm: Any thing in this Act, or in any other Act or Statute contained to the con­trary notwithstanding.

And if no Sentence shall be given at the Court of Rome in the said Appeal, for the reversing of the said pretenced Sen­tence before the end of the said thréescore days, that then it shall and may be lawful for the said Richard and Agnes and ei­ther of them, at any time hereafter to commence, take, sue and prosecute their said Appeal from the said pretenced Sen­tence, and for the reversing of the said pretenced Sentence within this Realm, in such like manner and form as was used to be pursued, or might have béen pursued within this Realm at any time since the xxiv. year of the Reign of the said late King Henry the Eighth, upon Sentences given in the Court or Courts of any Archbishop within this Realm.

And that such Appeal as so hereafter shall be taken or pur­sued by the said Richard Chetwood and Agnes, or either of them, and the Sentence that herein or thereupon shall hereafter be given, shall be judged to be good and effectual in the Law to all intents and purposes: any Law, Custom, Vsage, Canon, Constitution, or any other matter or cause to the contrary not­withstanding.

An Appeal be­tween Richard Harcourt and Anthony Fydell.Provided also, and be it enacted by the Authority aforesaid, That where there is the like Appeal now depending in the said Court of Rome, betweén one Richard Harcourt, Merchant of the Staple, and Elizabeth Harcourt, otherwise called Elizabeth Robins, of the one party, and Anthony Fydell Merchant Stran­ger, on the other party, that the said Robert, Elizabeth and Anthony, and every of them, shall and may for the prosecuting and trying of their said Appeal, have and enjoy the like reme­dy, benefit and advantage, in like manner and form as the said Richard and Agnes, or any of them, hath, may, or ought to have and enjoy: this Act or any thing therein contained to the contrary in any wise notwithstanding.

WHere at the death of our late Soveraign Lord King Edward the Sixth, Stat. Sect. 1. there remained one uni­form Order of Common Service and Prayer, and of the Administration of Sacraments, Rites and Ceremonies in the Church of England, which was set forth in one Book, Intituled, The Book of Common Prayer and Administration of Sacraments, and other Rites and Cere­monies in the Church of England, Authorized by Act of Par­liament holden in the Fifth and Sixth years of our said late Sovereign Lord King Edward the Sixth, Intituled, An Act for the Vniformity of Common Prayer, and Administration of the Sacraments; the which was repealed and taken away by Act of Parliament in the First year of the Reign of our late Sove­reign Lady Quéen Mary, to the great decay of the due honour of God, and discomfort to the Professors of the Truth of Christ's Religion.

Be it therefore Enacted by the Authority of this present Par­liament, That the said Estatute of Repeal, A repeal of the Statute of 1 M. 2. And the Book of Common Prayer shall be in force. and every thing therein contained, only concerning the said Book, and the Ser­vice, Administration of the Sacraments, Rites and Cere­monies contained or appointed in or by the said Book shall be void and of none effect, from and after the Feast of the Na­tivity of Saint John Baptist next coming: And that the said Book, with the Order of Service and of the Administration of Sacraments, Rites and Ceremonies, with the alteration and additions therein added and appointed, by this Estatute, shall stand and be from and after the said Feast of the Nativity of Saint John Baptist in full force and effect according to the tenor and effect of this Estatute: Any thing in the aforesaid Estatute of Repeal to the contrary notwithstanding.

Stat. Sect. 2. The Book of Common Prayer shall be used.And further, Be it Enacted by the Queens Highness, with the assent of the Lords and Commons in this present Parlia­ment assembled, and by the Authority of the same, That all and singular Ministers in any Cathedral or Parish Church, or other place within this Realm of England, Wales, and the Marches of the same, or other the Quéens Dominions, shall from and after the Feast of the Nativity of Saint John Bap­tist next coming, be bounden to say and use the Mattens, Evensong, Celebration of the Lords Supper, and Admini­stration of each of the Sacraments, and all the Common and open Prayer, The alteration of the Book set forth 5 & 6 Ed. 6. in such Order and Form as is mentioned in the said Book, so Authorized by Parliament in the said Fifth and Sixth years of the Reign of King Edward the Sixth, with one alteration or addition of certain Lessons to be used on every Sunday in the year; and the Form of the Letany altered and corrected, and two sentences only added in the delivery of the Sacrament to the Communicants, and none other or other­wise.

The forfeiture of those which use any other Service then the Book of Common Prayer.And that if any manner of Parson, Vicar, or other, what­soever Minister that ought or should sing or say Common Pray­er, mentioned in the said Book, or Minister the Sacraments from and after the Feast of the Nativity of Saint John Baptist next coming, refuse to use the said Common Prayers, or to Ad­minister the Sacraments, in such Cathedral or Parish Church, or other places, as he should use to Minister the same, in such Order and Form as they be mentioned and set forth in the said Book: or shall wilfully or obstinately, standing in the same, use any other Rite, Ceremony, Order, Form, or Manner of ce­lebrating the Lords Supper, openly or privily, or Mattens, Evensong, Administration of the Sacraments or other open Prayers then is mentioned and set forth in the said Book, (open Prayer, in and throughout this Act, is meant that Prayer which is for others to come unto, or hear, either in common Churches, The Penalty for depraving the Book of Common Prayer. or private Chappels, or Oratories, commonly called the Service of the Church) or shall Preach, Declare or Speak any thing in the Derogation or Depraving of the said Book, or any thing therein contained, or of any part thereof, and shall be thereof lawfully convicted according to the Laws of this Realm, by Verdict of twelve Men, or by his own Con­fession, or by the notorious Evidence of the Fact, shall loose and forfeit to the Queens Highness, her Heirs and Successors, for his first offence, the profit of all his Spiritual Benefices or Promotions, coming or arising in one whole year next after his conviction. And also that the person so convicted shall for [Page 21] the same Offence suffer Imprisonment for the space of Six months without Bail or Mainprize.

That ought or should sing or say Common Prayer, &c. What Minister is here meant.] Although the first part of this Clause, (viz.) All and singular Ministers in any Cathedral or Parish Church, or other place, seems to intend a local Minister only, and not one who is neither Parson, Vicar, or Stipendiary Chaplain, yet the next words, If any Parson, Vicar, or other Minister that ought to say Com­mon Prayer or minister the Sacraments, &c. clearly compre­hend all lawful Ministers and Priests whatsoever: For 'tis held in our Law, that as he is Sacerdos, he ought and is bound jure divino celebrare Coenam Dominicam, & dictae Coenae orationes, &c. And if he be indicted upon this Statute with the addition of Clericus, that word implies him to be a Priest or Minister within the meaning thereof, Dyer 3. Eliz. 203.

Note, That by the Statute of 14 Car. 2. Stat. 14 Car. 2. This and all other Laws which were then in force for the Uniformity of Prayer and Administration of the Sacraments within the Realm of England, are now applicable to the Book of Common Prayer, Book of Com­mon Prayer. authorized by that Act of 14 Car. and are to be put in ure with relation to the said Book.

Wilfully or obstinately standing in the same.] These words (wilfully or obstinately standing in the same) seem to restrain the Law to such other Prayers as are used in hindrance of, or oppo­sition to the Common Prayer, or after admonition or warning to the contrary, Prayers in the Pulpit. and therefore the Prayers used in the Pulpit be­fore Sermon, seem not to be within the meaning of this Law, nor to be forbidden by it, because generally tolerated by those in Authority, and so not obstinately used; And were those words wanting, although the words of the Statute are general, (any other form or open Prayers) yet they ought to have a particular construction according to reason, and the intent of the makers of the Law, (viz.) That no Minister shall use any other form to the hindrance of, or in opposition to this: For a penal Law shall not always be construed according to the words of it, but according to the intent of the makers of it. Plowden 18. Fo­gassa's Case. Ib. 465, 466, 467. Eyston versus Studd. Ibib. 109, 110. Fulmerston versus Stewarde. And the words of a Law may be infringed, and yet the Law it self may not be infringed, un­less the intent be likewise: Plowden 18. which intent shall never be construed to be against reason: For many things are excepted out of Statutes by the Law of reason, which yet are not excepted by express words, Plowden 13. Fogassa's Case. And 'tis a gene­ral Rule to be allowed in construction of Statute Laws, Quamvis [Page 22] Lex-generaliter loquitur, restringenda tamen est, ut cessante ratione & ipsa cesset: cum enim ratio sit anima, vigor (que) ipsius Legis non videtur Legislator id sensisse, quod ratione careat, etiamsi verborum generalitas aliter suadeat. Co. 4. Inst. 330, 331.

Stat. Sect. 3. The penalty for the second Offence.And if any such person once convict of any Offence concerning the premisses, shall after this first conviction eftsoons offend, and be thereof in form aforesaid lawfully convict, that then the same person shall for his second offence, suffer imprisonment by the space of one whole year, and also shall therefore be deprived, ipso facto, of all his spiritual Promotions, and that it shall be law­ful to all Patrons or Donors of all and singular the same spiri­tual Promotions, or of any of them, to present or collate to the same, as though the person or persons so offending were dead.

The penalty for the third Offence.And that if any such person and persons, after he shall be twice convicted in form aforesaid, shall offend, against any of the pre­misses the third time, and shall be thereof in form aforesaid law­fully convicted, that then the person so offending, and convicted the third time, shall be deprived ipso facto, of all his spiri­tual Promotions, and also shall suffer Imprisonment during his Life.

Where the second Indict­ment must mention the first conviction where not.For his second Offence.] One is Indicted upon this Statute for administring Baptism in other form than is thereby prescri­bed: And is convicted, and afterwards he is again indicted for the like Offence. By the Opinion of Clench Justice, B. R. the se­cond Indictment must mention the first Conviction: or the Judg­ment cannot be for the second Offence, (viz.) Imprisonment for a year and deprivation: But Wray Chief Justice held, That if both Indictments were before the same Justices, they are to take notice of the first Conviction, although it be not mentioned in the second Indictment, and ought to give Judgment accor­dingly: But if the second Indictment be taken by other Justices, then without mention therein of the first Conviction, they can­not give Judgment for the second Offence. Leonard 1. 295. C. 403.

The Benefice void without any Sentence.To present or collate, &c.] If the Offender against this Branch of the Act be judicially convicted of Record for the se­cond or third Offence, It seems that there needs not any Sentence declaratory by the Ecclesiastical Judge, but his Benefices or spiri­tual Promotions are void, ipso facto, upon such Conviction: For although the word (void) be not here as it is in the Statute of 21 H. 8. Stat. 21 H. 8. 13 13 Eliz. 12. c 13. of Pluralities. And of 13 Eliz. cap. 12. about read­ing the 39 Articles; Upon which Statutes 'tis resolved that a Sen­tence [Page 23] declaratory is not necessary, but that the Benefice is actu­ally void without it. Co. 4. 75. Hollands Case. Co. 4. 79. Dig­bies Case. Co. 6. 29. Greens Case; yet the words here (that the Patron may present or collate, as if the person so offending were dead) are tantamount, and of as large an extent as if it had been said that his spiritual Promotions should be void: And there­fore if a Parson be convicted for the second or third Offence against this Statute, and after such Conviction sues the Parishio­ners for Tythes, its a good plea to say, that he stands convicted, &c. For he is thereby no longer Parson, nor can sue for the Tythes, no more than if he neglected to read the 39 Articles. And that he is disabled in this last Case, was adjudged Trin. 30 Eliz. in a Prohibition inter Morrice & Eaton. Vide Leonard 2. 212. C. 267. Wiggen and Arscotts Case, nor will the Kings Par­don The Kings Pardon. help or restore an Offender against this Act after the second or third Conviction, no more than it will him who neglects to read the 39 Articles. Vide Cro. Trin. 41 Eliz. 679, 680. Baker versus Brent & Robinson.

The Patron must at his peril take notice of a Conviction of the Incumbent upon this Statute: Notice to the Patron not ne­cessary. For if he present not within six months after, a Lapse will incur against him, although no notice be given him: For all men at their perils ought to take notice of an Act of Parliament, to which every one is party. 39 E. 3. 7. Bishop of Chichesters Case. Dyer 7 Eliz. 237. Co. Hollands Case and Digbies Case; supra. In which three last Cases it was held, That no notice to the Patron is necessary upon an avoidance by the Statute of 21 H. 8. of Pluralities. Vide Termes de la Ley, Stat. 21 H. 8. 13 13 El. 12. 111. Deprivation: And the Statute of 13 Eliz. touching the 39 Articles, which provides, that no Title to present by Lapse shall accrue upon any Deprivation, ipso facto, until six months after notice thereof given by the Ordinary to the Patron, al­though it be penned in general terms, extends only to the par­ticular Cases in that Statute, and to no other Case of Depriva­tion ipso facto, by Act of Parliament.

And if the person that shall offend and be convicted in form aforesaid, concerning any of the premisses, shall not be Beneficed, Stat. Sect. 4. The penalty of an Offender having no Spi­ritual Promo­tion. nor have any spiritual Promotion, that then the same person so offending and convict, shall for the first Offence suffer Imprison­ment during one whole year next after his said Conviction, with­out Bail or Mainprize.

And if any such person not having any spiritual Promo­tion, after his first Conviction, shall eftsoons offend in any thing concerning the premisses, and shall in form aforesaid, be thereof lawfully convicted, that then the same person [Page 24] shall for his second Offence suffer Imprisonment during his Life.

Stat. Sect. 5. The forfeiture of them which do any thing, or speak in the derogation of the Book of Common Pray­er. Causing other Prayer to be said or sung.And it is ordained and enacted by the Authority aforesaid, That if any person or persons whatsoever after the said Feast of the Nativity of St. John Baptist next coming, shall in any In­terludes, Plays, Songs, Rhimes, or by other open words declare, or speak any thing in the derogation, depraving or de­spising of the same Book, or of any thing therein contained, or any part thereof; or shall by open fact, deed, or by open threatnings compell or cause, or otherwise procure or maintain any Parson, Vicar or other Minister in any Cathedral or Parish Church, or in Chappel, or in any other place to sing or say any Common or open Prayer, or to minister any Sacrament otherwise, or in any other manner and form than is mentioned in the said Book, or that by any of the said means shall unlawfully interrupt, or let any Parson, Vicar, or other Minister in any Cathedral, or Parish Church, Chappel, or any other place, to sing or say Common and open Prayer, or to minister the Sacraments, or any of them, in such manner and form as is mentioned in the said Book: The forfeiture of 100 marks for the first Of­fence. That then every such person, being thereof law­fully convicted in form abovesaid, shall forfeit to the Queén our Soveraign Lady, her Heirs and Successors, for the first Offence, an hundred marks.

Any person or persons whatsoever.] A Feme Covert is with­in the meaning of this Branch, and shall be liable to the Penalties thereby inflicted, Feme Covert. Hobart 97. Moore versus Hussey. Dyer 3 Eliz. 203. Sir Edward Walgraves Case.

The beginning of this Parlia­ment uncer­tain. There hath been a great question when this Parliament of 1 Eliz. began, Poulton saith the 23d. of January. Dyer 3 Eliz. 203. The 25th of January. Co. 4. Inst. 7. the 25th of February: And for the incertainty when it commenced, an Information was brought upon this Branch of the Statute against Sir Edward Wal­grave and his Wife, by the Queens Attorney, without any spe­cial recital of the Statute, Recital of Sta­tutes. only supposing the Offence to be, Con­tra formam & effectum cujusdam Statuti in Parliamento tenent apud Westmonasterium anno primo Reginae nunc, &c. Dyer 3 Eliz. 203. For this is a general Statute, and general Statutes need not be particularly recited. Plowden 53. Wimbish vers. Talbois: Ibid. 79. 81. Partridges Case, Ibid. 231. Lord Barkleys Case.

Hearing Mass.Compel or cause, or otherwise procure or maintaine.] The hearing of Mass is a maintaining within this Statute, and the per­son hearing it is Indictable thereupon. Hobart 97. Dyer 3 Eliz. 203. ibid. 15 Eliz. 323. Fermors Case.

And if any person or persons being once convict of any such Offence, eftsoons offend against any of the last recited Offences, Stat. Sect. 6. The forfeiture of four hun­dred Marks for the second Offence. ānd shall in form aforesaid, be thereof lawfully convict: That then the same person so offending and convict, shall for the second Offence forfeit to thr Queén our Soveraign Lady, her Heirs and Successors, four hundred marks.

And if any person after he in form aforesaid shall have been twice convict of any Offence concerning any of the last recited Offences, shall offend the third time, The forfeiture for the third Offence. and be thereof in form abovesaid, lawfully Convict: That then every person so offen­ding and convict, shall for his third Offence forfeit to our Sove­raign Lady the Quéen, all his Goods and Chattels, and shall suffer Imprisonment during his Life.

The Offender in any of these Cases cannot be punished for the second Offence, before he be adjudged for the first; The Offender not punishable for the second offence until adjudged for the first. and that se­cond Offence must be committed after the Judgment given for the first; nor for the third Offence before he be adjudged for the second, and that third must be committed after the Judgment for the second: For Quod non apparet non est, & non apparet Judici­aliter ante Judicium. Co. 2. Inst. 479. Vide Dyer 323.

And if any Person or Persons, Stat. Sect. 7. The penalty if the party con­victed do not pay his forfei­ture within the time limitted. that for his first Offence con­cerning the premises, shall be convict in forme aforesaid, do not pay the sum to be paid by vertue of his conviction in such man­ner and form as the same ought to be paid, within six weeks next after his conviction: That then every Person so convict, and so not paying the same, shall for the same first Offence, instead of the said sum, suffer Imprisonment by the space of six months without Bail or Mainprize.

And if any Person or Persons that for his second Offence, concerning the premises, shall be convict in form aforesaid, do not pay the said sum to be paid by vertue of his conviction, and this Statute, in such manner and form as the same ought to be paid, within six wéeks next after his said second conviction; That then every person so convicted and not so paying the same, shall for the same second Offence, in the stead of the said sum, suffer Imprisonment during twelve months without Bail or Main­prize.

An Information was brought by the Attorney General in the Kings Bench, upon the Statute for hearing Mass, The Offender dies within the six weeks. and Judgment given, Trin. 3 Eliz. Quod foris facereth Dominae Reginae: Et si non solvet infra, &c. tunc imprisonabitur, &c. The forfeiture was [Page 26] estreated into the Exchequer within the six weeks mentioned in the Statute, and before the six weeks expire the Defendant in the Information dies. Quaere, Whether his Executors shall be charged with the forfeiture of 100 Marks, for that the Offender died within the six weeks, and so by the Act of God his body cannot suffer Imprisonment for six months in lieu of the forfei­ture: And the Statute gave his election in this Case, whether he would suffer Imprisonment or pay the one hundred Marks, Dyer 3 Eliz. 203. Et 6 & 7 Eliz. 231. Sir Edward Walgraves Case. But this Question may now be prevented, for the Offender may be Indicted upon the Statute of 23 Eliz. cap. 1. Stat. 23 El. 2. 1 which inflicts for such Offence the 100 Marks and Imprisonment both.

Stat. Sect. 8. Every person shall resort to the Church upon Sundays and Holidays.And that from and after the said Feast of the Nativity of Saint John Baptist next coming, all and every person and per­sons inhabiting within this Realm or any other the Quéens Majesties Dominions, shall diligently and faithfully, having no lawful or reasonable excuse to be absent, endeavour themselves to resort to their Parish Church or Chappel accustomed, or, up­on reasonable let thereof, to some usual place where Common Prayer and such Service of God shall be used in such time of let, upon every Sunday and other days ordained and used to be kept as Holy-days; and then and there to abide orderly and soberly during the time of the Common Prayer, Preaching or other Service of God there to be used and ministred upon pain of punishment by the Censures of the Church, The forfeiture for not coming to Church. and also upon pain that every person so offending shall forfeit for every such Offence twelve pence, to be levied by the Church-Wardens of the Parish where such Offence shall be done, to the use of the Poor of the same Parish, of the Goods, Lands and Tenements of such Offender by way of distress.

Every person and persons.] A Feme Covert Feme Covert. is within this Statute, and shall forfeit twelve pence if she repair not to Church every Sunday and Holiday. Co. 11. 61. Dr. Fosters Case, Bul­strode 3. 87. The King against Law, Rolles 1. 93. C. 4. 1. Dr. Fosters Case. Hobart 97. Moore versus Hussey.

Inhabitant within the Realm.Inhabiting within this Realm, &c.] In an Indictment upon this Statute for not coming to Church, it need not be averred that the Offender is an Inhabitant within this Realm, &c. for if he be not, that ought to come of the other side. Godbolt 148. C. 191. Anne Mannocks Case.

Reasonable ex­cuse.Having no lawful or reasonable Excuse, &c.] Nor need it be averred in such Indictment, That the party had no lawful or reasonable Excuse to be absent, but that ought likewise to come [Page 27] of the other side. Leonard 2. 5. C. 6. Elizabeth Dormers Case. Note, in the Report of that Case, these words ( having no law­ful or reasonable, &c.) are by mistake supposed to be in the Sta­tute of 23 Eliz. 1. cap. 1.

To their Parish Church or Chappel accustomed, Not necessary to go to a mans Parish Church. or upon rea­sonable lett thereof, &c.] If a man doth not resort to the Church of the Parish wherein he dwells, nor to the Chappel of Ease whereunto the place of his abode belongs; yet if he goes to that Church or Chappel to which he hath been accustomed to resort, it seems to be sufficient to satisfie the intent of this Act. Vide Bulstrode 1. 159. & infra.

Common Prayer. Common Prayer.] For the Book of Common Prayer now established. Vide supra, Sect. 2.

Diligently and faithfully, &c. and then and there to abide orderly and soberly during, &c.] Although the words of the Statute be in the dis-junctive, Staying at Church during the whole time. (viz.) That he shall abide there du­ring the time of Common Prayer, Preaching, or other Service of God, yet they are to be taken conjunctively, and the party ought not to depart when the Service is ended, if there be Preaching, but must continue there for the whole time. Godbolt 148. C. 191 Mannocks Case.

And yet if he abides there during the whole time he may be liable to the penalty of this Law: Behaviour there. For there are four Adverbs in the Statute. 1. Diligently, which denotes attention. 2. Faith­fully, devotion. 3. Soberly, gravity. And 4. Orderly, de­cency. All which ought to be observed: so that if he walk or talk in the Church during the Service of God there, he may be punished upon this Act as if he were absent: By Coke Chief Justice. B. R. Rolles 1. 93. C. 41. Doctor Fosters Case.

Shall forfeit for every such Offence Twelve pence.] This forfeiture still remains, notwithstanding the Statute of 23 Eliz. cap. 1. which gives the 20 l. per month. Stat. 23 Eliz. 1.3 Jac. 4. And that appears by the Statute of 3 Jac. cap. 4. which gives a more speedy remedy for the recovery of the forfeiture of Twelve pence: And by the different times when these two forfeitures are due, and the dif­ferent Offences for which they are due, which shews that the one was not intended in the room of the other: For the 20 l. per month is due for a months absence, and cannot be sued for till the month is past: But the twelve pence is due for every absence either Sunday or Holiday: For 'tis forfeited as soon as the Sunday or Holiday is past, and may be sued for every Week, so that the Recusant may be punished both by this Statute for his weekly absence, and by 23. The 12 pence and 20 pounds both forfeited. Conformity. for his month­ly absence; nor is he helped by this Act in case of Conformity, as he is by 23. Co. 11. 63. Dr. Fosters Case, Rolls 1. 94. C. 41. [Page 28] The same Case; But yet although this Act doth not discharge him of this Twelve pence upon Conformity, it seems that the Statute of 1 Jac. cap. 4. Stat. 1. Jac. 4. will.

Stat. Sect. 9.And for due execution hereof, the Queéns most excellent Ma­jesty, the Lords Spiritual, and all the Commons in this pre­sent Parliament assembled, do in Gods name earnestly require and charge all the Archbishops, Bishops, and other Ordinaries, that they shall endeavour themselves to the utmost of their knowledges, that the due and true execution hereof may be had throughout their Diocess, and Charges, as they will answer before God, for such evils and plagues wherewith Almighty God may justly punish his People for neglecting this good and whol­some Law.

The Ordinary may punish Of­fenders by the Censures the Church.And for their Authority in this behalf, be it further enacted by the Authority aforesaid, That all and singular the said Arch­bishops, Bishops, and all other their Officers exercising Ec­clesiastical Iurisdiction, as well in place exempt as not exempt, within their Diocess, shall have full Power and Authority by this Act, to reform, correct, and punish by Censures of the Church, all and 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 [Page 29] 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 'tis not otherwise provided for by the Statute; But 'tis 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 their Iurisdictions and Authority, and to punish the same by admonition, excommunication, sequestration or de­privation, and other censures and process, in like form as here­tofore hath béen used in like Cases, by the Quéens Ecclesiasti­cal Laws.

Provided always, and be it enacted, None shall be punished twice for the same Offence. That whatsoever per­sons offending in the premisses, shall for their offences, first, re­ceive punishment of the Ordinary, having a Testimonial there­of under the said Ordinaries Seal, shall not for the same Of­fence eftsoons be convicted before the Iustices. And likewise re­ceiving for the said first Offence punishment by the Iustices, shall not for the same Offence eftsoons receive punishment of the Ordinary: Any thing contained in this Act to the contrary not­withstanding.

This Clause being in the affirmative doth not abrogate the Ju­risdiction Ecclesiastical, Ecclesiastical Jurisdiction not abrogated. which was in the Ecclesiastical Judge be­fore the making of the Statute, for that no Negative words are here added, as that he should proceed no otherwise, or in no other manner or form than this Statute directs, And therefore if any Parson, Vicar, &c. deprave or observe not the Book of Common Prayer, although this Act inflicts only the forfeiture of a years value, and six months Imprisonment for the first Offence, yet the Ecclesiastical Judge may for the first Offence deprive him notwithstanding this Act, as he might have done if no form of punishment had been here appointed.

And the said Book being enjoined by Authority, the Offence of depraving or non-observing it, is punishable by the Ecclesi­astical Judge, according to the Ecclsiastical Law, without the fur­ther aid of any Temporal Law, then the commanding it to be observed, Co. 5.5, 6. Cawdries Case: And in such Case the Sen­tence of Deprivation given by the Ecclesiastical Judge, though it exceed the punishment inflicted by the Temporal Law, is not to be questioned by the Temporal Judges, but they ought to give Faith and Credit to it: For cuilibet in sua arte perito, est credendum. Cawdries Case, fol. 7. Co. 4.29. Bunting and Heppingwells Case.

Provided always, and be it enacted, Stat. Sect. 13. Ornaments of the Church and Ministers. That such Ornaments of the Church, and of the Ministers thereof, shall be retained and be in use, as was in this Church of England, by Authority of Parliament in the second year of the Reign of King Ed­ward the Sixth, until other Order shall be therein taken by the Authority of the Quéens Majesty, with the advice of her Com­missioners, appointed and authorized under the Great Seal of England, for Causes Ecclesiastical, or of the Metropolitan of this Realm.

And also, That if there shall happen any Contempt or Irre­verence to be used in the Ceremonies or Rites of the Church, by the mis-using of the Orders appointed in this Book, the Queéns Majesty may by the like advice of the said Commissioners or [Page 32] Metropolitan, ordain and publish such further Ceremonies or Rites, as may be most for the advancement of Gods Glory, the Edifying of his Church, and the due Reverence of Christs holy Mysteries and Sacraments.

All Laws and Ordinances made for other Service shall be void.And be it further Enacted by the Authority aforesaid, That all Laws, Statutes, and Ordinances wherein or whereby any other Service, Administration of Sacraments, or Common Prayer, is limited, established, or set forth to be vsed within this Realm, or any other the Queéns Dominions or Countries, shall from henceforth be utterly void and of none effect.

FOR preservation of the Queéns most Excellent High­ness, her Heirs and Successors, Stat. and the Dignity of Sect. 1 the Imperial Crown of this Realm of England: And for the avoiding both such hurts, perils, dishonors and inconveniencies as have before time befallen, as well to the Quéens Majesties noble Progenitors, Kings of this Realm, as for the whole Estate thereof, by means of the Iurisdiction and Power of the Sée of Rome, unjustly Claimed and Vsur­ped within this Realm, and the Dominions thereof; and also of the dangers by the fauters of the said usurped Power, at this time grown to marvelous outrage and licentious boldness, and now requiring more sharp restraint and correction of Laws, than hitherto in the time of the Queéns Majesties most mild and merciful Reign have béen had, used or established.

Be it therefore Enacted, Ordained and Established, Stat. by the Quéen our Soveraign Lady, and the Lords Spiritual and Sect. 2 Temporal, The Penalty for maintain­ing the Autho­rity of the Bi­shop or See of Rome. and the Commons in this present Parliament as­sembled, and by Authority of the same, That if any Person or Persons dwelling, inhabiting or resiant, within this Realm or within any other the Quéens Dominions, Seigniories or Coun­tries, or in the Marches of the same, or elsewhere, within or under her Obeysance and Power, of what Estate, Dignity, Preheminence, Order or Condition soever he or they be, after the first day of April, which shall be in the year of our Lord God One thousand five hundred sixty thrée, shall by Writing, Typhering, Printing, Preaching or Teaching, Déed 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 Sée, heretofore claimed, used or usurped within this Realm, or in any Dominion or Country, [Page 34] being of, within, or under the Queéns Power, or Obeisance, or by any Spéech, open Déed or Act, advisedly and wittingly at­tribute any such manner of Iurisdiction, Authority or Prehe­minence, to the said Sée of Rome, or to any Bishop of the same Sée, for the time being, within this Realm, or in any the Quéens Dominions or Countries, that then every such Person or Persons, so doing or offending, their Abbettors, Procurers and Counsellors, and also their aiders, assistants and comfor­ters, upon purpose, and to the intent to set forth, further and extol the said usurped Power, Authority or Iurisdiction, of any of the said Bishop or Bishops of Rome, and every of them, be­ing thereof lawfully Indicted or Presented, within one year next after any such Offences by him or them Committed, and being lawfully Convicted or Attainted at any time after, according to the Laws of this Realm, for every such Default and Offence, shall incur into the dangers, penalties, pains and forfeitures, Ordained and Provided by the Statute of Provision and Prae­munire, made in the Sixtéenth year of the Reign of King Ri­chard the Second.

Hold or stand with, &c. or attribute.] The Printers of any Book which attributes to the Pope or See of Rome any such Au­thority or Jurisdiction within this Realm, Printing, bringing in, offering and delivering of Books. &c. and the utterers thereof, in most Cases are within the danger of this Law; and if any man bring over such Books, Written beyond the Seas, knowing the Contents thereof, or secretly deliver out such Books to others, he knowing the Contents thereof, unless in this last Case he be a Trader in them, and deliver them out upon that Account, without any act or attribution by conference or allowance, he is an Offender within this Act, by the words, (Hold and stand with to maintain, &c.) and so is the receiver likewise, if he afterwards Reads and Confers upon any such Book with any other person, and in his Conference by any Words or Speeches, allows the Book to be good, or conveys it secretly to his Friend, to the intent he should Read it and be per­swaded to be of that Opinion; or if a man hear of the Con­tents of such Book, by the report of others, and doth by any overt Speech commend or affirm it to be good: In all these Cases the Person so doing, especially he that reads it, and then al­lows of it, is an Offender within this Act, and shall for the first Offence incur a Praemunire, and for the second be Guilty of high Treason. So likewise if any Book, to that effect, be made and Written within the Realm, and sent over Seas, as if it were made out of the Realm, and be afterwards Bought, Read or Confe­rence be had thereupon, ut supra, such Offences are within the danger of this Law, Dyer 11 El. 281. 282. vide Co. l. 6. Praefat'.

Vpon purpose and to the intent. The intent material.] A. was Indicted upon this Statute, and that of 13 Eliz. cap. 2. of a Praemunire for aiding one B. knowing him to be a principal maintainer of the Authority and Jurisdiction of the Bishop and See of Rome, con­tra formam Statut' praedict', and the Indictment was certified into the Kings Bench: And it was held, by the greater part of the Justices, that the Indictment was insufficient, for want of those words (Ʋpon 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 [Page 36] 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 'tis 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 [Page 37] 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 'tis 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 [Page 38] 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 [Page 39] 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 'tis restrained in the late Additions to Dalton. Cap. 81. tit. Recusants Sect. 9.

Belonging to the Common Law, 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, [Page 41] 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 [Page 42] 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 [Page 43] 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 not extend to compell any Temporal person, of or above the degrée of a Baron of this Realm to take or pronounce the Oath abovesaid, nor to incur any penalty limited by this Act for not taking or re­fusing the same: Any thing in this Act to the contrary in any wise notwithstanding.

Where he ought to take it.This Act.] Although by this Act no Temporal person of or above the degree of a Baron is compellable to take this Oath, yet if he be made a Justice of Peace he ought to take it by force of the Statute of 1 Eliz. cap. 1. Jones 152, 153. Earl of Lincolns Case.

Stat. 1 Eliz. 1. A Bishop must take it.Temporal Person.] By these words and the Preamble, Forasmuch as, &c. Archbishops and Bishops, although their pos­sessions be Temporalties, are excluded out of this Proviso; and therefore are to take the Oath: For every person who is of the degree of a Baron is not excused, as Wingate tit. Crown numb. 29. mistakes, but only the Temporal Lords of Parliament.

Stat. Sect. 12. Charitable gi­ving Alms to Offenders shall be no cause of forfeiture.Provided, and be it Enacted by the Authority aforesaid, That charitable giving of reasonable Alms to any of the Offender or Offenders above specified without fraud or covin, shall not be taken or interpreted to be any such abettment, procuring, coun­selling, aiding, assisting or comforting, as thereby the giver of such Alms shall incur any pain, penalty, or forfeiture appointed in this Act.

Peers offend­ing shall be tried by their Peers.Provided also, and be it Enacted by the Authority of this pre­sent Parliament, That if any Peér of this Realm shall here­after offend contrary to this Act, or any Branch or Article there­of, that in that and all such Case and Cases they shall be tried by their Péers, in such manner and form as in other Cases of Treasons they have used to be tried, and by none other means.

Provided also further, and be it Enacted, Stat. Sect. 13. Who only shall be compelled to take the Oath upon the second tender. That no person shall be compelled by vertue of this Act to take the Oath above­mentioned, at or upon the second time of offering the same, ac­cording to the form appointed by this Statute, except the same person hath beén, is, or shall be an Ecclesiastical person, that had, hath, or shall have, in the time of one of the Riegns of the Queéns Majesties most Noble Father, Brother or Sister, or in the time of the Reign of the Queéns Majesty, her Heirs or Successors, Charge, Cure, or Office in the Church: Or such person or per­sons as had, hath, or hereafter shall have any Office or Mini­stry in any Ecclesiastical Court of this Realm, under any Arch­bishop or Bishop, in any the times or Reigns aforesaid: Or such person or persons as shall wilfully refuse to observe the Orders and Rites for Divine Service that be authorized to be used and observed in the Church of England, after that he or they shall be publickly by the Ordinary, or some of his Officers for Ecclesi­astical Causes, admonished to kéep and observe the same: Or such as shall openly and advisedly deprave by words, writings, or any other open fact, any of the Rites and Ceremonies at any time used and authorized to be used in the Church of England: Or that shall say or hear the private Mass prohibited by the Laws of this Realm, and that all such persons shall be compellable to take the Oath upon the second tender or offer of the same, and incur the Penalties for not taking of the said Oath, and none other.

Charge, Cure, or Office in the Church. What Clergy-men are pu­nishable upon the second ten­der and refu­sal.] So that every Clergy-man or Person in Orders is not within the danger of this Law upon the second tender and refusal of the Oath, as Wing. tit. Crown, n. 30. mistakes: For every Priest or Minister is Clericus, Dyer 3 Eliz. 203. and yet shall not incur the penalty of High Treason upon the second refusal, unless he be a local Minister, or have some Charge, Cure or Office in the Church.

By the Ordinary. Ordinary, what.] Ordinary in the Common Law is pro­perly taken for the Bishop of the Diocess, but yet usually in the Common Law and in Statutes for every Commissary or Official of the Bishop, or other Judge that hath Ordinary Jurisdiction with­in his limits in Causes Ecclesiastical, Stat. W. 2. cap. 19. Stat. 31 E. 3. cap. 11. Termes de la Ley, 212. Ordinary, 8 H. 6. 3. Co. 1. Inst. 344.

Or hear the private Mass. Hearing Mass.] If a man once in his life time heareth private Mass, it seems he is within this qualification, and incurs High Treason upon the second refusal of the Oath; and not only if he used to hear it, as Wingate tit. Crown numb. 30. misrecites the Statute.

Stat. Sect. 14. It shall not be lawful to slay any one at­tainted in a Praemunire.And forasmuch as it is doubtful, whether by the Laws of this Realm there be any punishment for such as kill or slay any person or persons attainted in or upon a Praemunire, Be it therefore Enacted by Authority aforesaid, That it shall not be lawful to any person or persons to slay or kill any person or persons in any manner attainted, or hereafter to be attainted of, in, or upon any Praemunire by pretence, reason, or authority of any Iudg­ment given, or hereafter to be given in or upon the same, or by pretence, reason, or force of any word or words, thing or things contained or specified in any Statute or Law of Provision and Praemunire, or in any of them: Any Law or Statute, or Opinion, or Exposition of any Law or Statute, to the contrary in any wise notwithstanding.

Punishments inflicted by former Laws.Saving always the due execution of all and every person and persons attainted, or to be attainted for any Offence whereupon Iudgment of death now is, or ought to be, or hereafter may lawfully be given by reason of this Statute, or otherwise; And saving always all and every such pains of death, or other hurt or punishment as heretofore might without danger of Law be done upon any person or persons that shall send or bring into this Realm, or any other the Queéns Dominions, or within the same, shall execute any Summons, Sentence, Excommu­nication, or other Process against any person or persons from the Bishop of Rome for the time being, or by or from the See of Rome, or the Authority or Iurisdiction of the same See.

The Judgment in a Praemunire. The Judgment in a Praemunire is to be out of the Kings Pro­tection, his Lands, Tenements, Goods and Chattels to be for­feited to the King, and that his body shall remain in Prison at the Kings pleasure, Co. 1. Inst. 129, 130. Co. 3. Inst. 218. Rastal Entr. 466. Judgment: But his entailed Lands he shall forfeit only during his Life: For this Forfeiture must be understood of such an Estate as he may lawfully forfeit. And the general words of the Statute of Praemunire, Stat. 16 R. 2. 5. W. 2. 1. 16 R. 2. c. 5. scil. Lands and Tenements, shall not take away the force of the Statute de donis Conditionaelibus, Co. 1. Inst. 130. 391. Co. 11. 63. Godbolt 308. Lord Sheffeild and Ratcliffe. And the person attainted in a Praemunire is dis­abled to be a Witness in any Cause, Co. 1. Inst. 6. or to Sue; For Attainder in a Praemunire is a good plea in disability of the Plaintiff, A person at­tainted in a Praemunire, was out of the Kings Protection. Sc. 25 E. 3. 22. according to Littleton 41.

By the Statute of 25 E. 3. cap. 22. which saith, That a man attainted in a Praemunire shall be out of the Kings Protection, and it may be done with him as with the Kings Enemy. It seemeth [Page 47] that any man might have lawfully slain such a person, as was held 24 H. 8. Bro. Coron. 196. Vide Bulstrode 2. 299. Sir Anthony Mildmay's Case. And this Sir Edward Coke, Co. 7. 14. Calvins Case, Co. 12. 38. seemeth to allow for Law before this Statute of 5 Eliz. and positively affirms it to have been Law in his 1 Inst. 130. and yet in the same Case of Calvin he saith, that in that Statute of 25 E. 3. is intended only a legal Protection according to Littleton 41. (and so likewise he expounds it in his 3 ^d Inst. 126.) But yet that the party attainted was still under that Pro­tection which the Law of Nature giveth to the King, which he explains to be such a Protection as a person attainted of Felony or Treason is under, notwithstanding his Attainder, so that if any man had killed him without Warrant, he should have been punished by Law as a manslayer: And this sort of Protection by the Law of Nature, (saith he) is indelebilis & immutabilis, which the Parliament could not take away: But yet under fa­vour, if a man attainted in a Praemunire were before this Act of 5 Eliz. under that indeleble and immutable Protection of the King given by the Law of Nature, then the Opinion held in Brooke, and allowed by himself, was not Law: But if that Opi­nion in Brooke were Law, and any man might before this Statute have killed a man attainted in a Praemunire, and that by force of the Statute of 25 E. 3. it follows, that the Protection which the Law of Nature giveth, is not indelebilis or immutabilis, but that an Act of Parliament might in a particular Case take it away; But there is now no further need of this Question in the Case of a Praemunire: For if this Protection by the Law of Nature were taken away by 25 E. 3. it is now restored by this Statute, and no man can lawfully slay a person attainted in a Praemunire, no more than he can without Warrant, a man attainted of Felony or Treason.

Provided always, Stat. Sect. 15. Upon what proof only any person may be in­dicted. and be it Enacted by the Authority afore­said, That no person or persons shall hereafter be Indicted for assisting, aiding, maintaining, comforting, or abetting of any person or persons for any the said Offences, in extolling, setting forth or defending of the usurped Power and Authority of the Bishop of Rome, unless he or they be thereof lawfully accused by such good and sufficient testimony or proof as by the Iury by whom he shall so be Indicted, shall be thought good, lawful, and sufficient to prove him or them guilty of the said Offences.

Stat. Sect. 1. A rehearsal of the Stat. of 5 El. 1. touch­ing the abo­lishing of the Authority of the Bishop and See of Rome.WHere in the Parliament holden at Westminster, in the fifth year of the Reign of our Sovereign Lady the Quéens Majesty that now is, by one Act and Statute then and there made, Intituled, An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Highness Dominions, it is among other things very well ordained and provided for the abolishing of the usurped Power and Iurisdiction of the Bishop of Rome, and of the See of Rome, heretofore unlawfully claimed and usurped within this Realm and other the Domini­ons to the Quéens Majestie belonging, That no person or per­sons shall hold or stand with to set forth, maintain, defend or extol the same usurped Power, or attribute any manner of Iu­risdiction, Authority or Preheminence to the same, to be had or used within this Realm, or any the said Dominions upon pain to incur the danger, penalties and forfeitures, ordained and pro­vided by the Statute of Provision and Praemunire, made in the sixteenth year of the Reign of King Richard the second, as by the same Act more at large it doth and may appear. And yet nevertheless divers seditious and very evil disposed people, with­out respect of their Duty to Almighty God, or of the Faith and Allegiance which they ought to bear and have to our said Sove­reign Lady the Quern, and without all fear and regard had to the said good Law and Statute, or the pains therein limited; but minding as it should seem very seditiously and unnaturally, not only to bring this Realm and the Imperial Crown thereof (being in very deed of it self most free) into the thraldom and subjection of that Forreign, usurped and unlawful Iurisdiction, Preheminence and Authority, claimed by the said See of Rome; [Page 49] but also to estrange and alienate the minds and hearts of sun­dry her Majesties Subjects from their dutiful obedience, and to raise and stir Sedition and Rebellion within this Realm, to the disturbance of the most happy peace thereof, have lately procu­red and obtained to themselves from the said Bishop of Rome, The effect of Bulls brought from Rome. and his said Sée, divers Bulls and Writings, the effect where­of hath been and is to absolve and reconcile all those that will be contented to forsake their due obedience to our most graci­ous Sovereign Lady the Queens Majesty, and to yield and sub­ject themselves to the said fained, unlawful and usurped Autho­rity; and by colour of the said Bulls and Writings, the said wicked persons, very secretly and most seditiously, in such parts of this Realm, where the people for want of good instruction are most weak, simple and ignorant, and thereby farthest from the good understanding of their Duties towards God and the Quéens Majesty; have by their lewd and subtile practises and perswasion, so far forth wrought, that sundry simple and igno­rant persons have been contented to be reconciled to the said usurped Authority of the See of Rome, and to take absolution at the hands of the said naughty and subtile practicers, whereby hath grown great dissobedience and boldness in many, not only to withdraw and absent themselves from all Divine Service, now most Godly set forth and used within this Realm, but also have thought themselves dischorged of and from all Obedience, Duty and Allegiance to her Majesty, whereby most wicked and unnatural Rebellion hath ensued, and to the further danger of this Realm is hereafter very like to be renewed, if the ungodly and wicked attempts in that behalf, be not by severity of Laws restrained and bridled.

For remedy and redress whereof, Stat. Sect. 2. Putting in ure any Bull of Ab­solution or re­conciliation from the Bi­shop of Rome. and to prevent the great mischiefs and inconveniencies that thereby may ensue, Be it Enacted by the Queens most Excellent Majesty, with the assent of the Lords Spiritual and Temporal, and the Commons in this present Parliament assembled, and by Authority of the same, That if any person or persons, after the first day of July next coming, shall use or put in ure in any place within this Realm, or in any the Queens Dominions, any such Bull, Writing or Instrument, Written or Printed, of Absolution or Reconciliation, at any time heretofore obtained and gotten, or at any time hereafter to be obtained and gotten from the said Bishop of Rome or any his Successors, or from any other per­son or persons Authorized or claiming Authority by or from the said Bishop of Rome, his Predecessors or Successors, or See of Rome: Or if any person or persons after the said first day of [Page 50] July, Absolving or reconciling of any person, and being ab­solved or re­conciled. shall take upon him or them by colour of any such Bull, Writing, Instrument or Authority, to absolve or reconcile any person or persons, or to grant or promise to any person or per­sons within this Realm, or any other the Queens Majesties Dominions, any such absolution or reconciliation by any Speéch, Preaching, Teaching, Writing, or any other open Déed: Or if any person or persons within this Realm, or any of the Quéens Dominions, after the said first day of July shall wil­lingly receive, and take any such absolution or reconciliation.

Getting of any Bull from Rome containing any matter what­soever, or pub­lishing or put­ting in ure the same.Or else if any person or persons have obtained or gotten since the last day of the Parliament, holden in the first year of the Queens Majesties Reign, or after the said first day of July, shall obtain or get from the said Bishop of Rome, or any his Successors, or See of Rome, any manner of Bull, Writing, or Instrument, Written or Printed, containing any thing, matter or cause whatsoever, or shall Publish, or by any ways or means put in ure any such Bull, Writing or Instrument: That then all and every such act and acts, offence and offences, shall be deemed and adjudged by the Authority of this Act to be High Treason, and the Offender and Offenders therein, their Procurors, Abettors, and Counsellors to the Fact, and com­mitting of the said offence or offences, shall be deemed and ad­judged High Traitors to the Queen and the Realm: and being thereof lawfully Indicted and Attainted, according to the course of the Laws of this Realm, shall suffer pains of Death, and also loose and forfeit all their Lands, Tenements, Heredita­ments, Goods and Chattels, as in Cases of High Treason by the Laws of this Realm ought to be lost and forfeited.

The Popes Bull.Bull.] The Popes Bulls in Latin called Bullae, are so called, Quod Bullis plumbeis obsignentur, and in them, consilium & volun­tas Papae continentur. Vide Termes de la Ley 43. Bull.

Absolution and Reconcili­ation.Absolution or Reconciliation.] A man absolves or reconciles, or is absolved or reconciled to the Pope or See of Rome, with­out any Bull, Writing, or Instrument to that purpose: This Case seems not to be within the meaning of this Statute: For there must be some Bull, Writing or Instrument, to Authorize such Absolution or Reconciliation, or the person who gives or receives it is not punishable by this Act, Stat. 23 Eliz. 1. 3 Jac. 4. although he may be by 23 Eliz. cap. 1. and 3 Jac. cap. 4.

Stat. Sect. 3.And be it further Enacted by the Authority aforesaid, That all and every aiders, comforters or maintainers of any the said Offender or Offenders, after the committing of any the said Acts or Offences, to the intent to set forth, uphold, or allow the doing [Page 51] or execution of the said usurped Power, Aiders, Com­forters, and Maintainers of Offenders after the Offence. Iurisdiction or Autho­rity touching or concerning the premises, or any part thereof, shall incur the pains and penalties contained in the Statute of Praemunire, made in the sixteénth year of the Reign of King Richard the second.

To the intent.] Vide supra, Stat. 5 Eliz. cap. 1. Sect. 2. Intent. Stat. 5 Eliz 1. & postea Sect. 6.

Provided always, Stat. Sect. 4. Concealing or not disclosing of a Bull or re­conciliation offered. and be it further Enacted by the Authority aforesaid, That if any person or persons to whom any such Ab­solution, Reconciliation, Bull, Writing or Instrument, as is aforesaid, shall after the said first day of July be offered, moved or perswaded to be used, put in ure, or executed, shall conceal the same offer, motion or perswasion, and not disclose and signifie the same by writing or otherwise, within six weéks than next fol­lowing, to some of the Queéns Majesties Privy Counsel, or else to the President or Vice-president of the Queéns Majesties Counsel established in the North parts, or in the Marches of Wales, for the time being: that then the same person or persons so concealing and not disclosing, or not signifying the said offer, motion or perswasion, shall incur the loss, danger, penalty and forfeiture of Misprision of High Treason.

Note, Concealers of the Offence. All concealers of this Offence are not within the danger of this Law, as Wingate misrecites the Clause, tit. Crown numb. 35. And therefore if a man be present at such offer, motion or perswasion, and conceal it, he shall not incur Misprision of Treason, unless he be the party to whom any such Bull, &c. or Absolution, &c. was offered.

And that no person or persons shall at any time hereafter be impeached, molested, Stat. Sect. 5. or troubled in or for misprision of Trea­son, for any Offence or Offences made Treason by this Act, other than such as by this Act are before declared to be in Case of Misprision of High Treason.

And be it further Enacted by the Authority aforesaid, Stat. Sect. 6. Bringing into the Realm, or using of Agnus Dei, Pictures, Crosses, &c. That if any person or persons shall at any time after the said first day of July, bring into this Realm of England, or any the Dominions of the same, any token or tokens, thing or things, called or named by the name of Agnus Dei, or any Crosses, Pictures, Beads, or such like vain and superstitious things, from the Bishop or Sée of Rome, or from any person or persons authorized, or claiming Authority by or from the said Bishop or Seé of Rome, to Con­secrate [Page 52] 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 [Page 53] 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 [Page 54] 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 th [...]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 [Page 56] 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 'tis plain that any one Privy Counsellor sufficeth, and the Justice of Peace is not bound to signifie the Offence to the Privy Coun­cil, as Wingate tit. Crown numb. 138. misrecites the Statute.

Stat. Sect. 10. Trial of a No­bleman by his Peers.Provided also, and be it further Enacted by the Authority aforesaid, That if any Nobleman being a Peér of this Realm, shall at any time hereafter happen to be Indicted for any the Of­fence or Offences aforesaid, That then every such Nobleman and Péer of this Realm shall have his Trial by his Péers, as in cases of High Treason and Misprision of Treason hath hereto­fore béen accustomed or used.

A saving of the right of others.Saving to all and every person and persons, bodies Politick and Corporate, their Heirs and Successors, and the Heirs and Successors of every of them, other then the said Offenders, and their Heirs claiming only as Heir or Heirs to such Offenders, and such person and persons as claim to any their uses, all such Rights, Titles, Interests, Possessions, Leases, Rents, Re­versions, Remainders, Offices, Fées, and all other Profits, Commodities and Hereditaments as they or any of them shall have at the day of committing such Offence or Offences, or any time before, in as large ond ample manner to all intents and purposes, as if this Act had never béen had nor made: Any thing herein contained to the contrary thereof notwithstanding.

WHere sithence the Statute made in the thirteénth year of the Reign of the Queén our Soveraign Lady, Entituled, Stat. Sect. 1. An Act against the bringing in, and putting in Execution of Bulls, Writings and Instruments, and other Superstitious things from the See of Rome, divers evil affected persons have practised, contrary to the meaning of the said Statute, by other means than by Bulls or Instruments, Written or Printed, to withdraw divers the Queéns Majesties Subjects from their natural Obedience to her Majesty, and to obey the said usurped Authority of Rome, and in respect of the same, to perswade great numbers to withdraw their due Obedience to her Majesties Laws, established for the due Service of Almighty God.

For Reformation whereof, Stat. Sect. 2. Treason to withdraw any from the Reli­gion Establish­ed, to the Ro­mish Religion. and to declare the true meaning of the said Law: Be it declared and enacted by the Authority of this present Parliament, That all persons whatsoever, which have or shall have, or shall pretend to have power, or shall by any ways or means put in practice to absolve, perswade or with­draw any of the Queéns Majesties Subjects, or any within her Highnesses Realms and Dominions, from their natural Obedience to her Majesty, or to withdraw them for that intent from the Religion now by her Highnesses Authority established within her Highnesses Dominions, to the Romish Religion, or to move them, or any of them, to promise any Obedience to any pretended Authority of the Seé of Rome, or of any other Prince, State or Potentate, to be had or used within her Dominions, or shall do any overt act to that intent or purpose, and every of them, shall be to all intents adjudged to be Traytors: And being thereof lawfully convicted, shall have Iudgment, suffer and forfeit as in case of High Treason. And if any person shall after the end of this Session of Parliament, by any means be [Page 58] willingly absolved, or withdrawn as aforesaid, or willingly be reconciled, It shall be Treason to be reconciled or withdrawn to the Romish Re­ligion. or shall promise any Obedience to any such pretended Authority, Prince, State, or Potentate as is aforesaid; that then every such person, their Procurers and Counsellors thereun­to, being thereof lawfully convicted, shall be taken, tried and judg­ed, and shall suffer and forfeit as in Cases of High Treason.

Perswade or withdraw.] It was held in Lovett and Faulk­ners Case, Mich. 12. Jac. B. R. That if a man were Indicted for endeavouring and practising voluntarie, felonice, & proditorie, to perswade and withdraw any of the Kings Subjects from his Obedience unto the Romish Religion, and was afterwards, debito modo acquietatus, yet an Action upon the Case in nature of a Conspiracy would not lye against the party who procured him to be Indicted, Cro. Mich. 12. Jac. 357, 358. Rolls 1. 209. C. 49. Bulstrode 2. 271. and the main reason given was, That forasmuch as every man is bound to discover Treason, and 'tis dangerous to conceal any thing which may tend to Treason, therefore the pro­curing one to be Indicted concerning it was no Cause of Action: And in that Case Coke Chief Justice said, That such an Action was never before that time brought. But later Resolutions have been to the contrary of this Opinion: Action lies for indicting a man of High Trea­son. And 'tis held for Law at this day, That if a man procures another to be Indicted of High Treason, an Action upon the Case in nature of Conspiracy lies against him that procures it, as well as if it were for Felony. The first leading Case of this nature which was resolved upon any solemn argument or debate, was that of Smith versus Cran­shaw or Crashaw, and others, where it was adjudged, upon great deliberation by all the Four Judges of the Court of Kings Bench, Hill. 1. Car. 1. That an Action in nature of a Conspiracy doth well lye in such Case, and that not only in Case of Acquittal upon Trial, but upon the exhibiting a Bill of Indictment for High Treason to the Court or Jury, if the Jury bring in Ignora­mus, although in this last Case a Writ of Conspiracy lyeth not: And Lovett and Faulkners Case was denied to be Law: Addition to Bendloes 152. Latch 79, 80. Jones 93, 94, 95. And Justice Dodderidge who concurred in Opinion with the other Judges in the Case of Lovett and Faulkner, changed his Opinion in that of Smith and Cranshaw, and held that the Action was maintainable, Bulstrode 2. 271, 272. so that whosoever of meer malice, with­out probable cause, causes any person to be Indicted upon this Statute, Stat. 3. Jac. 4. or that of 3 Jac. cap. 4. for endeavouring or practising so to perswade or withdraw any Subject, or prefers a Bill to the Court or Jury for that purpose, is liable to an Action of the Case for so doing, if the party be acquitted, or the Jury bring in Ignoramus, as in other Cases of Felony.

Any of the Queens Majesties Subjects. Queens Sub­jects, Stat. 3 Jac. 4.] What is meant by the Queens Subjects. Vide Stat. 3 Jac. cap. 4. Sect. 19.

And be it likewise Enacted and declared, Stat. Sect. 3. The penalty of aiders, main­tainers and concealers. That all and every person and persons that shall wittingly be aiders or maintainers of such persons so offending, as is above expressed, or of any of them knowing the same, or which shall conceal any offence aforesaid, and shall not within twenty days at the furthest, after such persons knowledge of such offence, disclose the same to some Iustice of Peace or other higher Officer, shall be taken, tried and judged, and shall suffer and forfeit as Offenders in misprision of Treason.

These words ( And shall not within twenty days, Aiders or maintainers punishable, though disco­verers. &c. dis­close the same) have no reference to those who are aiders or maintainers of the Offender, but only to those who have barely a knowledge of the Offence without aiding or maintaining the party. And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty days, yet such discovery shall not free them from the guilt of misprision of Treason, as Wingate mistakes in his Abridgment of this Clause, tit. Crown, numb. 42. but if they once aid or maintain the party, knowing him to be an Offender, they are guilty whether they disclose or conceal the offence, and shall have no benefit of the twenty days.

And be it likewise Enacted, Stat. Sect. 4. The forfeiture for saying or hearing of Mass. That every person which shall say or sing Mass, being thereof lawfully convicted, shall forfeit the sum of Two hundred Marks, and be commited to Prison in the next Goal, there to remain by the space of one year, and from thence forth till he have paid the said sum of Two hundred Marks. And that every person which shall willingly hear Mass, shall forfeit the sum of One hundred Marks, and suffer Imprison­ment for a year.

One hundred Marks.] And not Two hundred pounds, Forfeiture. as 'tis mistaken in the late Additions to Dalton, cap. 81. tit. Recu­sants, Sect. 59.

Be it also further Enacted by the Authority aforesaid, Stat. Sect. 5. The penalty for not com­ing to the Church by the space of a Month. That every person above the age of sixteen years which shall not re­pair to some Church, Chappel or usual place of Common Prayer, but forbear the same, contrary to the tenor of a Sta­tute made in the first year of her Majesties Reign, for unifor­mity of Common Prayer, and being thereof lawfully convicted, [Page 60] shall forfeit to the Quéens Majesty for every month after the end of this Session of Parliament, which he or she shall so forbear, twenty pounds of lawful English money: and that over and besides the said forfeitures, every person so forbearing by the space of twelve months, as aforesaid, shall for his or her ob­stinacy, after Certificate thereof in writing made into the Court, commonly called the Kings-Bench, by the Ordinary of the Diocess, a Iustice of Assize and Goal-delivery, or a Iustice of Peace of the County where such offender shall dwell or be, be bound with two sufficient sureties in the sum of Two hundred pounds at the least to the good behaviour, and so to continue bound until such time as the persons so bound do conform them­selves, and come to the Church, according to the true meaning of the said Statute made in the said first year of the Queéns Majesties Reign.

Existens aetatis &c. shall refer to the time of absence. Above the age of sixteen years.] Talbot was Indicted upon this Statute. Quod existens aetatis 16 annorum & amplius non ac­cessit ad Ecclesiam, &c. The question was, whether the Existens aetatis 16 annorum, should refer to the time of his Indictment, or to the time of his absence. And the Judges conceived, that the Indictment was well enough and pursuant to the Statute. And that Existens should in this Case refer to the time of his ab­sence, Moore. 606. C. 838.

Recusancy consists in omission. Not repair, &c. but forbear.] This offence Consists not in committing but in omitting, and is but a nonfeasance and there­fore cannot be said to be in any certain place. And for this rea­son, in a Popular Action brought by the Informer, qui tam, &c. there needs no place be alledged in the Declaration, Anderson, 1. 139. C. 190. Cuffe versus Vachel, nor is Recusancy within that Branch of the Statute of 31 Eliz. cap. 5. Stat. 31 El. 5. which saith, That the offence shall be laid in the proper County where it was done or committed: For to speak properly, it was not committed any where, Hobart 251. Grimstone versus Molineux. Vide infra, Sect. 9.

Conviction in the same Suit sufficient. Being thereof lawfully convicted.] By this is not meant that the party must be convicted in some former Suit: But a con­viction upon the same Indictment or Information which is brought against him for the recovery of the 20 l. per month, is a suffici­ent conviction within the meaning of this Statute: And so are all penal Statutes, which have in them those words (being thereof lawfully convicted) to be understood, that is, of a conviction in the same Suit, whereupon the penalty is to be recovered: For the meaning only is, that the Offender shall forfeit nothing be­fore conviction, which is no more then the Law implies. And [Page 61] therefore in truth these words are but superfluous, and might have been as well omitted, Co. 11. 59. & Rolls 1. 90. C. 41. Dr. Fosters Case, Rolls 1. 234. C. 6. & Bulstrode 3. 87. The King against Law.

Nor is (Conviction) here intended only of a Convicton by Verdict: What Convi­ction is here meant. And therefore if the Offender be convicted upon his Confession of the fact, and Judgment thereupon be had, and con­sequently if Judgment be had against him upon a Demurrer (which is a Confession of the matter of fact) or if Judgment be given against him on nihil dicit, for any other Cause, any of these are sufficient Convictions whereupon to recover this Pe­nalty: For Convicted is here to be taken for Attainted, as 'tis in many other Cases: For until Judgment he shall forfeit nothing. And although he that is Convicted is not therefore Attainted, yet every one who is Attainted or Adjudged is Convicted: And of such a Conviction is this Statute to be understood, Dr. Fosters Case, Rolles 1. 89. 90. C. 41. & Co. 11. 60. where several Cases are cited which prove that Convicted is oftentimes put for At­tainted.

Shall forfeit to the Queens Majesty. Shall forfeit, i. e. to the King.] These words (to the Queens Majesty) are but surplusage, and import no more than the Law would have given the Queen without them; for where a Statute gives a forfeiture, and limits it not to any particular per­son, the King shall have it by Construction of Law, as was agreed in the Case of Agard and Tandish. Anderson 2. 128. C. 73. and so should he have this whole 20 l. per month, if the Statute had staid here, and had not afterwards made another express appoint­ment. Vid. Sect. 9.

For every month. Month, what.] It seems that the month here mentioned shall be accounted secundum numerum singulorum dierum, allowing but 28 days to a month: For so are all Statutes to be understood which speak of the month, unless W. 2. cap. 5. W. 2. 5. 2 & 3 E. 6. 13 for the account of a Lapse and 2 & 3 E. 6. of proving a suggestion, Co. 1. Inst. 135. Cro. Trin: 5 Jac. 166. 167. Bishop of Peterburgh versus Catesby, Yelverton 100. Catesby versus Baker, Hobart 179. Copley versus Collins. And of this Opinion the Court of Kings-Bench seemed to be upon Construction of the Statute of Liveries in the Case of Donner and Smith, Trin. 43 Eliz. Cro. 835. The Recusant may forfeit for 13 months in a year. so that by this ac­count the Recusant shall forfeit thirteen score pounds in the whole year.

In an Information brought by Parker, Qui tam, Conformity in part not avail­able. &c. against Sir John Curson and his Wife, for the Recusancy of the Wife for eleven months, and non culp. pleaded. It was proved at the Trial, B. R. Pasch. 17. Jac. that she conformed and came to Church for part of the time in the Information, yet forasmuch as she was a [Page 62] Recusant both before and after, it was said by the Court that her Conformity for some part of the time should not excuse her, and she was found guilty for the whole time, Cro. Jac. 529.

The Informer demands less then is due.The Informer shewed, that the Recusant was absent from Church from the 10 of September 15 Jac. unto the 9 of Sept. 16. Jac. and demanded Two hundred and twenty pounds for eleven monthes: upon non culp. pleaded, it was found against the De­fendant: And it was resolved, that although the Informer had de­manded less then by his own shewing was due (for the time men­tioned in the Information was thirteen months compleat except one day) yet the Information was well enough: For the Recovery shall be intended to be for the eleven months, when the Recu­sant was first absent, and the addition of more time is not ma­terial, Cro. Pasch. 17 Jac. 529. 530. & Rolles 2. 90. Parker ver­sus Sir John Curson and his Wife. And this is not like the Case of Bawderock versus Mackaller, where the Informer Qui tam, &c. upon the Statute of Symony demanded less than the penalty, and the Court seemed to be of Opinion, that although it was good enough for the King notwithstanding that misprision, yet it was not so for the Informer, and compared it to the Case of Agard and Candish, where an Information was brought upon the Sta­tute of Liveries after the year, and it was Adjudged to be good for the King but not for the Informer, Cro. Mich. 9. Car. 331. For upon the Statute of Symony which gives one intire penalty for the offence, if less be demanded, the Statute is not pursued: And there is a clear variance between that and the Information. But in the Case of Recusancy, when he demands Two hundred pound for eleven moneths, the Statute is pursued, and though it appears by the Information that the Recusant was absent for a longer time, yet the Informer is at liberty whether he will de­mand the penalty for his absence during that supernumerary time.

The Informer demands for 13 months, and the Jury find for 12.If it be shewed in the Information that the Recusant was ab­sent from Church from a day certain to a day certain, which in all makes 13 months, and the penalty is demanded for that time, and the Jury find the party guilty for 12 months; It hath been held by some, that the Verdict shall be good for 12 months; But whether for the first 12 months is a question: For in Sir J. Cursons Case, (supra) the demand was but for 11 months. And when the Jury finds the Defendant guilty, it shall be intended to be for the 11 months for which the penalty is demanded, and that shall be accounted from the 10 of September, which was the first day of absence alledged in the Information; and the rest of the time to the ninth of September following after the first eleven months, is [Page 63] to be accounted as Surplusage. But in this Case where the Jury abridges the time for which the penalty is demanded, it may be questioned whether the Verdict shall be intended to be for the first twelve months of the thirteen: And the Judges of the Kings Bench to salve a question of the like nature in an Information brought by Donner against Smith upon the Statute of Liveries, seemed to be of Opinion, That it is not material which were the twelve months wherein the party offended, Cro. Trin. 43 Eliz. 835. But if that Opinion be Law, it must follow that the party can never be punished for the thirteenth month, but that must be remitted to him: because it's left uncertain which of the thirteen shall be accounted the month not found by the Jury: And it ra­ther seems for this reason, That the Verdict is void for the uncer­tainty which twelve months of the thirteen the party offended, unless it shall be intended of the first twelve.

Mr. Shephard in his Sure Guide, cap. 6. Sect. 5. raises this Question, (viz.) Stat. 1 Eliz. 2. This Statute having reference to that of 1 Eliz. cap. 2. which saith, every one shall come to Church every Sunday and Holy-day, whether he that is not at Church every Holy-day doth not rigore juris forfeit 20 l. a month by force of this Sta­tute of 23. But this Question seems altogether needless: The forbea­rance from Church must be for a whole month, or no forfeiture of 20 l. For 'tis clear by the express words here, that it must be a forbearance from Church contrary to 1 Eliz. for a whole month together that makes the party liable to the forfeiture of 20 l. and if he comes to Church on any Sunday or Holy-day within the month, he is freed from the penalty of 20 l. although not from the twelve pence by 1 Eliz. for the days of his absence, if he comes not every Sunday and Holy-day both.

Be bound.] Some have made a question, Recusants where to be bound to the good behavi­our. and among them Mr. Shephard in his Sure Guide, cap. 6. Sect. 5. by whom, or in what Court the Recusant shall be bound to the good behaviour by force of this Statute: For that the Court is not expresly mentioned. And Wingate in his Abridgment of this Clause, tit. Crown numb. 44. hath stumbled upon a Conceit, That after Cer­tificate made into the Kings Bench, a Justice of Assize, Goal de­livery, or Peace, shall bind the party to the good behaviour, and misrecites the Statute accordingly. But it seems, That the in­tention of the Law-makers was, that he should be bound in the Kings Bench, (and of that Opinion is Dalton V. cap. 75. title Good Behaviour) For where any proceedings are appointed to be upon, or after a Certificate sent to any Court, there by com­mon Intendment the proceedings are to be in that Court to whom the Certificate is sent, if no other Court be named: And it can­not be presumed by any reasonable construction of this Act, That the Certificate into the Kings Bench is to any other end than for the [Page 64] Justices there to proceed in such manner as the Act directs to be done after such Certificate, as no question they may in this Case as well as upon Certificate of a Presentment, or of refusal of the Oath of Supremacy against the Statute of 5 Eliz. cap. 1. Stat. 5 Eliz. 1. quod vide supra. And 'tis a rule in construction of Statutes, that where the intention plainly appears, the Law ought to be advanced according to its end, though the words be short and imperfect, especially Laws made for Religion, as is held in Colt and Glovers Case. Hobart 157. and Magdalen Colledge Case, Co. 11. Vide Bulstrode 2. 155. the Case of Griffith and others.

Popish Recu­sants convict, not sufficient sureties. Sufficient sureties.] Popish Recusants convicted are not to be reputed sufficient sureties, and therefore were refused by the Court of Kings Bench, in the Case of Griffith, and other Recu­sants who were brought thither to be bound to their good Beha­viour, Bulstrode 2. 155.

And be it further Enacted, That if any person or persons, body Politick or Corporate, Stat. Sect. 6. The forfeiture for keeping of a Schoolmaster not repairing to Church, or allowed by the Ordinary. after 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 [Page 65] 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 [Page 66] 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 JusticesIf 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 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 [Page 67] 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. 'tis 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, 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 [Page 69] 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 'tis 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 [Page 71] 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 'tis not said of what Parish the Recusant was: For the whole penalty of Twenty pounds per month is at first given to the Queen: and the Inhabitants of the Parish where the Offence was are to Sue in the Exchequer for their third part, The Parish must Sue for their third part in the Exchequer. and surmise in their Bill that the Offence was in their Parish, and if it were so, it shall be delivered to them as the Act directs. Leonard 2. 167. C. 204.

The principal Officers in the Receipt of Exchequer. Principal Offi­cers of the Exchequer.] The principal Officers of the Court of Exchequer are the Trea­surer and Barons, but the principal Officers of the Receipt of the Exchequer are the Treasurer and Chamberlains. Savile 38. C. 87.

To such person as will sue for the same. Rules and Ca­ses touching the common Informer.] This Branch of the Statute being the Axis upon which all popular Suits for Recusancy by the common Informer turn and move, I shall be the larger thereupon, and shall here set down the several Rules, Cases and Resolutions in our Books which concern the common Infor­mer or Plaintiff qui tam, &c. as far as they are applicable to the Case of Recusancy, or the other Cases within this Statute.

Upon a penal Statute where part af the forfeiture is given to the King, and part to him that will Sue; Tam pro Domi­no Rege, &c. material. the Informer or Plaintiff qui tam, &c. sequitur tam pro Domino Rege, quam pro seipso, and so it must be said in the Information or Declaration, and not only there, but in the joyning of Issue, and the Venire facias, it must be entred, qui tam pro Domino Rege, &c. or the omission of it is Error. Cro. Mich. 9 Car. 336.

In an Information upon this Statute, the usual way is, The particu­lar Statute must be named that the Informer for himself petit inde tertiam partem, juxta formam, Sta­tut'. Vide Co. 11. 56. Dr. Fosters Case. But then the Statute must be named, for in an Information by Broughton, Qui tam, &c. [Page 72] against Moore, for forbearing to come to Church, contra formam Statuti, without naming which Statute, in which Case the In­former demanded the third part for himself; it was adjudged by the Court of Kings-Bench to be ill: For there are several Sta­tutes against Recusancy, and it did not appear which of them was meant. Cro. Mich. 4 Jac. 142.

Judgment of a Moiety to the King, and a Moiety to the Informer, where good.But if this Statute be named in certain, and the party who sues demands the whole forfeiture for the King and himself, and Judgment be given that the King recover one moiety, and the Informer or Plaintiff Qui tam, &c. the other moiety, in that case the Judgment is well enough: For the Information or Declara­tion being, Quod actio accrevit Domino Regi & praefat. A. ad ha­bend' & exigend' the full forfeiture, the Judgment doth not va­ry therefrom, when it saith, that a moiety shall be to the King, and a moiety to the Plaintiff or Informer; And although the Statute saith, That he which will sue shall have but a third part, yet that is by way of distribution only. And such distribution of the penalty is an Act subsequent to the Judgment, and is to be made as well out of the moiety given by the Judgment to the Informer or Plaintiff, Qui tam, &c. as out of the moiety given thereby to the King. And this I conceive to be the reason of the resolution in Chambers Case, where such a Judgment in the Case of Recusancy upon this Statute was allowed to be good, Rolles 2. 437.

The Informers demand must be certain.But if the whole forfeiture be not demanded in certain, there, although the party who sues demands his own share, 'tis ill; And so it was adjudged in an Information upon a poenal Statute, which concluded, Ʋnde petit advisamentum Curiae, & quod foris­faciat 5 l. pro qualibet offens. unde ipse petit medietatem. For the Informer doth not make his demand certain, but leaves it to the Court or Jury to cast up the sum it amounts to. Hobart 245. Pie versus Westly.

Where Contra formam Statuti, and where Sta­tutorum.If there be several Statutes, and each of them prohibit one and the same thing, and inflict a penalty, and give an Information for recovery of it, the Information may conclude contra formam Statuti, and good; because the best shall be taken for the King. 5 H. 7. 17. So if one Statute make the Offence, and another in­flicts the penalty or forfeiture, and the Information be for the Offence only, it may conclude contra formam Statuti, which is to be understood of that Statute which makes the Offence. But if the Information both lay down the Offence, and demand the penalty, there both Statutes must be recited, or at least the Infor­mation must conclude contra formam Statutorum: Owen 135. Wests Case, Vide supra Sect. 7.

In the late Additions to Dalton cap. 191. tit. Informations, Informations within which Statute of Jeo­failes. St. 32 H. 8. 30. 18 Eliz. 14. 21 Jac. 13. Sect. 6. its said, That Informations and Suits on penal Statutes are stricti juris, and excepted out of all the Statutes of Jeofailes; which is a mistake: For they are not excepted out of the Sta­tute of 32 H. 8. cap. 30. It's true, they are out of the Statutes of 18 Eliz. cap. 14. and 21 Jac. cap. 13. and that as it seems in all Cases within those two Statutes: Vide Styles 307. Theoballs against Newton. And in the Case of Scott versus Lawes, Hobart 328. it seems to be intimated that they are excluded out of all three, where the Case was, that in an Action of Debt brought by an Informer, Qui tam, &c. upon a penal Statute the Defen­dant pleads non debet praefato J. meaning the Informer, and not the King; and the issue was found against the Defendant. In that Case it was resolved that this was a good Cause to stay Judg­ment, and there it's said, that it being upon a penal Statute, the Statute of Jeofailes would not help it; But that reason was ex abundanti, (it being an incurable fault not aided by any Statute of Jeofailes, in any sort of Action) and under favour might well have been spared: For the Statute of 32 H. 8. seems to ex­tend to all popular Suits whatsoever; and in Wallers Case in an Information brought against him, 18 Eliz. by Topcliffe, Qui tam pro Domina Regina quam pro seipso, &c. upon the Statute of 37 H. 8. cap. 9. of Ʋsury, it was adjudged, 37 H. 8.9. that the mis-conveying of Process, and mis-joyning of issue in the said Information, were aided by 32 H. 8. Dyer 346, 347.

By the Statute of 31 Eliz. cap. 5. an Informer Qui tam, 31 Eliz. 5. &c. must begin his Suit within one year after the Offence committed, The Informer must sue with­in the year. otherwise he shall not have any part of the penalty, Godbolt 158. C. 216. Cro. Hill. 12 Jac. 366. Sivedale versus Sir Edward Len­thall: But popular Suits upon the Statute of Tillage are excepted, and not upon the Statute of Tallage, as 'tis mistaken in the late Additions to Dalton, cap. 191. tit. Informations, Sect. 3.

In Dr. Fosters Case, Co. 11.65. it's said. That the Informer hath no Remedy for recovery of the forfeiture for Recusancy, after the year and day is expired, for that time is limited in cer­tain by this Act; But yet with submission it seems the Clause in this Act which limits to a year and a day, And hath not a year and a day. relates to Indictments only: And so it was held in this very Case of Dr. Foster, Co. 11. 60. & Rolles 1.93. C. 41. and in Pie and Lovells Case, Hobart 205. and there was no limitation of time for the Informer, Qui tam, &c. upon this Statute, until the said Statute of 31 Eliz. which limits him to a year after the Offence committed, and not a year and a day. And although this Offence of Recusancy cannot in strictness be said to be committed, for that in truth it is but a bare omission as hath been said, and therefore there needs not be [Page 74] any place alledged, yet in common parlance it will pass well enough for an Offence committed, To what in­tent Recusancy may be said to be committed. and seems to be within the meaning of that Branch of 31 Eliz. which limits the time of pro­secution: And in this very Clause of the Statute of 23 Eliz. it's said, the third part of the forfeiture for Recusancy shall be to the Poor in the Parish where the Offence is committed. Now if it be objected, That if Recusancy be not an Offence which is to be laid in the proper County by that Statute of 31 Eliz. because 'tis not an Offence which can be properly said to be committed; By the same reason the Informer who is restrained by that Statute to a year after the Offence committed, is not restrained in the Case of Recusancy; Nor the Poor of any Parish can take any benefit by this Statute as to the third part of the forfeiture, for that there is no Parish wherein Recusancy can be said to be commit­ted: I answer, there is a great difference between those Cases: For in the Cases of limitation of time when the Offence must be prosecuted, and that of the Poor of the Parish, where the for­feiture is to be distributed, the word (committed) is no part of the substance of the matter, and 'tis no more then if the Sta­tutes had said, within a year after the Offence, and to the Parish where the Offence was; And there (committed) may be taken well in that sense; And to what intent, not. but it cannot be so in that other Case about the proper County: For the Statute of 31 Eliz. which appoints, that in any Declaration or Information the Offence against any penal Statute shall not be laid to be done in any other County but where the matter alledged to be the Offence, was in truth done, and the Defendant may traverse, and alledge that the Of­fence supposed to be committed was not committed in such Coun­ty where the Offence is alledged, &c. makes the Commission of the Offence matter of substance, and whether it were committed or not committed in the County where it is laid in the Informa­tion or popular Suit, goes now to the merits of the Cause. For if it were not committed in that County, and the Defendant al­ledge and traverse it, and it be found for him, the Plaintiff shall be barred: And those words (that he may traverse that it was not committed) clearly shew, that Offences which consist only in omission, were not intended: For otherwise neither Recu­sancy, nor any other Offence of that nature could be punished by any Information or popular Action: For the Jury upon their Oaths must of necessity find that it was not committed in any County, for that in truth and propriety of speech it was not committed at all. Vide supra Sect. 5.

Suit by the King within what time. Stat. 31 Eliz 5.By the said Statute of 31 Eliz. if the Informer Qui tam, &c. doth not prosecute within a year after the Offence, yet the King may at any time within two years after that year ended: And [Page 75] there­fore it was resolved in the Case of Syvedale and Sir Edward Len­thall before recited, where an Information was brought in the Court of Exchequer, Tam pro Domino Rege quam pro seipso upon the Statute of 3 Jac. cap. 4. 3 Jac. 4. for three years forbearance to re­ceive the Sacrament after Conformity, that although it was not good for the Informer, yet it was well enough as to the King. Cro. Jac. 366.

A natural born Subject, or a Denizen being Defendant in any Suit upon a penal Law in the Kings Bench, Common Pleas, Special Bail. or Exchequer, is not compellable to put in special Bail, but may appear by Attorney. Stat. 29 Eliz. cap. 5.31 Eliz. cap. 10. St. 29 Eliz. 5 31 Eliz. 10. Yel­verton 53. St. Georges Case.

An Action of Debt or Information Tam pro Domino Rege quam &c. lies upon this Statute against the Husband and Wife for the Recusancy of the Wife, Baron and Feme and the Husband in that Case is liable to pay the 20 l. per month, notwithstanding he himself be no Recusant, Bulstrode 3. 87. The King against Law, Rolles 1. 93. C. 41. Dr. Fosters Case, Hobart 97. Moore versus Hussey, Savile 25. C. 59.

But the Wife cannot appear by Supersedeas alone without her Husband, for both must appear or both be out-lawed, Hobart 179. Lovedens Case.

Nor can she plead or join issue without her Husband, Must both plead. Rolles 2. 90. Sir George Curson and his Wives Case; And therefore where in an Information brought against the Husband and Wife for the Recusancy of the Wife, the Record was entred, & praedict. J. & M. veniunt, & praedicta M. dicit quod ipsa non est inde culpabilis, & de hoc ponit se super Patriam: this was adjudged to be ill, for the Husband pleads not at all; But in this Case the Dockett be­ing Quod J. C. & M. uxor ejus, &c. placitant non culp: and it being manifest that they both appeared, Record a­mended. the Record was amended by the Dockett after Verdict: For it was but the misprision of the Clerk in drawing the Plea, Cro. Pasch. 17 Jac. 530. Parker versus Sir John Curson and his Wife, which is the same Case with that in Rolles, only the Christian name of the Husband varies.

At the end of the Report of this Case in Croke there is a sub­sequent note added, that if Sir John Curson and his Wife had pleaded Quod ipsi non sunt culpabiles, it had been ill. But yet it seems that the Law is contrary to that Opinion, Non sunt cui­pabiles, where good. for where an Action or Information is brought against the Husband and Wife for an offence or wrong done by the Wife, there the Husband is charged quoad poenam, though not quoad culpam; and when they both plead, quod ipsi non sunt culpabiles, the meaning is that he is not chargeable quoad poenam, and she is not guilty quoad culpam, [Page 76] and therefore it was resolved in the Case of Browne against Audley and his Wife, Trin. 22 Jac. in an Action upon the Case for scan­dalous words by the Wife, that where they both pleaded non culp. and the Jury found the Feme guilty, the Plaintiff should have Judgment: For the issue was good for the reason aforesaid, and the finding of the Jury was a good ground for the Judgment; for if the Wife were guilty, quoad culpam, as the Verdict must necessarily be understood, she being the wrong doer, the Hus­band by consequence was chargeable, quoad poenam, and Judg­ment shall be against both: Addition to Bendloes 148. and the Resolution in the Case of Needler versus Symnell and his Wife, reported by Justice Croke, Cro. Mich. 11. Car. 417. in the like Action brought for words spoken by the Wife, is directly con­trary to that opinion at the end of Sir John Cursons Case: For there 'tis adjudged, that ipsi non sunt culpabiles, by Baron and Feme is a good issue, although the wrong were by the Wife alone.

Writ of Error by an Alien.An Information of Recusancy lies against an Alien upon this Statute, if he inhabits within the Realm, and if Judgment be had against him, he may have a Writ of Error to relieve himself, Co. 1. Inst. 129.

Popular Suit appropriatedWhen once the Informer, Qui tam, &c. hath commenced his Suit, he hath of a popular Action made it his own private Acti­on, Co. 65. Dr. Fosters Case, Vaughan 343. Thomas versus Sorrel. And in this Case it is not necessary that the Defendant be served with Process to answer it, Without Pro­cess. for if the Informer put his Informati­on into Court, 'tis enough to appropriate to him his share of the penalty, Godbolt 158. C. 216. But yet a Note ought first to be made of the day, month and year, when it was exhibited; for before, Stat. 18 Eliz. 5. by the Statute of 18 Eliz. cap. 5. it is not to be taken to be of Record, nor shall operate any thing either in appropria­ting the penalty, or barring any other Informer, but when that is done, no other Informer can Sue for the same Offence; and 'tis a good Plea in Bar Bar. of the second Information for the Defendant to say, that there is another Information depending against him for the same Offence: For as soon as the first Information is de­livered in and entred upon Record, according to the said Statute of 18 Eliz. it shall be said to be depending, Popular Suit when depen­ding. although it be not alleadged that any Writ or Process is Sued out against the De­fendant thereupon. Cro. Mich. 33 & 34 Eliz. 261. the Queen versus Harris, Styles 417, Hobart 209. Parry versus Paris, Pal­mer 40. Webbs Case, Termes de la Ley 7. Action Popular.

Two Informa­tions for the same offence. Bar.The Defendant in an Information pleads, that heretofore ano­ther Information was exhibited against him such a day in another Court for the same Offence, but mistakes and names in his Plea a [Page 77] wrong day, and not that wherein the first Information was exhi­bited. The Plaintiff replies, nul tiel Record; yet if it appears that in truth the Information pleaded in Bar, was exhibited be­fore the other, which is the substance of the matter, this mispri­sion shall not vitiate the Defendants Plea in Bar, but Judgment shall be for the Defendant. Hobart 209. Parry versus Paris. Note, this Case is cited in the late Additions to Dalton, cap. 191. tit. Informations, Sect. 6. to prove that one person cannot exhibit two Informations in the same or in several Courts. But that was not the Question there, nor I think ever was made a Question, but that the same person may exhibit two several Informations, so they be not both for one and the same Offence.

An Information was exhibited in the Kings-Bench upon the Statute of 5 E. 6. cap. 7. for buying of Wools. Stat. 5 E. 6. 7. The Defen­dant pleads that there is another Information depending against him in the Common-Bench at the Suit of L. and avers that they are both for the same Offence: but in truth that in the Common-Pleas supposed the Offence to be done at one time, and that in the Kings-Bench at another time, yet this is a good Plea in Bar Bar. of the latter Information, being with an Averment that they are both for the same Offence: for otherwise by the Informers false supposal of the day the Defendant shall be put to double trouble. Cro. Mich. 33 & 34 Eliz. 261. The Queen versus Harris.

And the same advantage no question any man may take, against whom two Informations are exhibited upon this Statute for hear­ing of Mass: Mass. for perchance he never heard Mass above once in his life time, and there is no reason he should be put to double trouble for one offence.

But otherwise it seems to be in the Case of Recusancy: The absence from Church must be for a month. For if an Information be brought upon this Statute for not coming to Church for a month, there if the Defendant proves that he was at Church any time within that month, it shall be sufficient to avoid the penalty of Twenty pounds. And as the Defendants giving in Evidence that he was at Church within the compass of any other month, then that which is laid in the Information, shall not excuse him; so the Informers proof of his absence any other month shall not hurt him, but the Evidence must go to the very same month which the Information mentions: And the reason is, for that this Offence is punishable according to the time of its duration or continuance, and the Offender is to forfeit for every month of his absence; so that if another Information be exhibi­ted against him for not coming to Church during another month, it cannot be supposed to be for the same absence with that in the first Information, but for the like absence at [Page 78] another time, and therefore cannot be pleaded in Bar there­of.

Two Informa­tions on the same day, &c. Bar.If two Informers, on one and the same day, exhibit Informati­ons against the same person for the same Offence, they are both void and may be pleaded the one in Bar of the other, for that there is no priority to Attach the right of Action in one of the Informers, more than in the other. Hobart 128. Pie versus Coke.

Although Sunday Sunday. be not dies Juridicus, so as to award a Ju­dicial Process or enter a Judgment of Record on that day, yet an Information may be exhibited in Court on that day, and good. Jones 156. 157. Bedoe versus Alpe.

Information delivered.In the Common-Pleas an Information may by the course of that Court be brought in and delivered to one of the Judges there out of Term, No antedate. Stat. 18 Eliz. 5. and shall be dated then: For the Statute of 18 Eliz. cap. 5. forbids all antedates. Rolls 2.33. Smith versus Carter.

Conviction on Indictment, pending the Information.An Information is brought by an Informer, Qui tam, &c. upon this Statute for Recusancy; and pending the Information, the Re­cusant is convicted at the Kings Suit upon an Indictment for the same absence; the Question is, what remedy the Recusant hath in this Case that he may not Bis puniri pro uno delicto? And to this it was Answered by Coke Chief Justice, B. R. in the Case of Dr. Foster, that he may plead this Conviction, puis le darreine continuance, to discharge himself of the Information, Rolles 1. 95. C, 41. But, as the Reporter there well observes, the Infor­mer when he hath begun his popular Action, hath appropriated the Action to himself: And if it shall be admitted that the King can devest him of this Action when he pleases, Action appro­priated. by Indictment at his own Suit, this would prove very mischievous to Informers. Quaere, therefore how in this Case the Recusant shall defend himself from being doubly punished for one and the same Of­fence.

But if the Recusant be once convicted at the Kings Suit, either by Indictment upon this Statute, or according to the Sta­tutes of 29 Eliz. cap. 6. Stat. 29 Eliz. 6 3 Jac. 4. or 3 Jac. cap. 4. upon Proclamation, the Informer, Qui tam, &c. cannot afterwards charge him, but is barred for ever after: Informer bar­red. For the intention of this Statute is, that the Informer may exhibit Informations against such only as are concealed, or not charged at the Kings Suit: so that the In­former is neque falcator, neque messor, but spicelegus, a gleaner. And that in such Cases only where the King doth not prosecute, par­don or release before the Informers Action is commenced. Co. 11. 65. Dr. Fosters Case, Bridgman 121.122. Parker against Sir John Webb and his Wife. Lane 60.

But whether this Rule be general, and will not admit of an exception in the Case of a Feme Covert, Feme Covert. is a Question: for by some Opinions, if a Feme Covert be Indicted and Convicted of Recusancy, that shall not Bar the Informer of his popular Action upon this Statute against her and her Husband for the Recusancy of the Wife: Because upon the Conviction by Indictment, she cannot be compelled to pay the forfeiture of Twenty pounds per month while her Husband lives, nor can it be levied of her goods and lands: For that during the Coverture, she hath nothing of her own to forfeit, but all is her Husbands. Vide Bridgman 122. 123. Parker versus Sir John Webb and his Wife. Vide Stat. 3 Jac. cap. 4. Sect. 6.

The Condemnation or Acquittal of the party at the Suit of the Informer, is a good Barr against the King and all others, Bar. Co. 11. 66.

Before the Statute of 4 H. 7. cap. 20. Popular Acti­on by Covin. it seems that if a popu­lar Action had been brought by Covin, and with the consent of the Defendant, and the Defendant was for want of Evidence or other Cause found not guilty, and the Covin appeared to the Court, yet Judgment should have been given thereupon against the King, and it should have been a good Barr against all others, 9 E. 4. 4. But now by that Statute of H. 7. Stat. 4 H. 7. 20 If any person sue with good Faith any Action popular, and the Defendant plead a Recovery in an Action popular in Barr, or that before that time he had barred the Plaintiff in such Action, the Plaintiff may aver such Recovery or Bar was by Covin, and upon such Covin found, the Plaintiff shall have Judgment; and the Defendant so attainted or condemned of Covin, shall have Imprisonment for two years by process of Capias or Outlawry, as well at the Kings suit as any other, and the Release of the party shall not avail the Defen­dant; which Covin may be averred generally. Vide Wymbishe and Talbois Case, Plowden 49, 50, 54, 55.

If a man bring upon a penal Statute an Action of Debt tam pro Domino Rege quam pro seipso, Who is to re­ply in a popu­lar Action of debt. and the Defendant pleads there­unto, the party Plaintiff may reply without the Kings Attorney; And in Princes Case in an Action of Debt upon this Statute, the Defendants demurred, and the Plaintiff qui tam, &c. joined in Demurrer without the Kings Attorney, and held to be good, Cro. Trin. 1 Car. 10, 11. Lionel Farringtons Case. But in an Information tam, &c. quam, And who in a popular Infor­mation. &c. the Kings Attorney ought to reply, Rolles 2.33. Smith versus Carter. And this difference be­tween an Action of Debt and an Information, was taken in the aforesaid Case of Farrington versus Arundell, Hutton 82. But yet if in an Information the Defendant plead a special Plea, and the Kings Attorney will not reply, and prosecute for the Kings part, [Page 80] the Informer shall be admitted to reply and prosecute for his part, as was adjudged in the Case of Stretton and Taylor, Co. 11.65. Dr. Fosters Case, Co. 3. Inst. 194.

Where the King may par­don or release the penalty.The King before any Information or other popular Suit com­menced, may pardon or release the whole penalty incurred, and it shall be a good Bar against all men, Co. 11.65, 66. Dr. Fosters Case. Co. 3. Inst. 194, 195. 37 H. 6. 4. 2 R. 3. 12. Termes de la Ley, 102. Decies tantum, 1 H. 7. 3. And if the Defendant in the Information do not take advantage of such pardon or release by his Plea, but is condemned in the Suit, and the Kings share of the penalty be put in the Pipe in magno rotulo, yet he may then discharge himself thereof upon a Compertum fuit in magno rotulo, by shewing forth the whole matter by way of Plea, and shall not lose the effect of his pardon or release. Vide Savile 23. C. 56. Tirringhams Case.

And where not.But when once the Informer hath brought his popular Suit, the King cannot discharge it, and if he then pardon or release, or his Attorney enter an ulterius non vult prosequi, this is good for the Kings part only, but is no Bar quoad the Informer, who may proceed notwithstanding for his part of the penalty: And there­fore neither can the Kings Attorney discharge the Jury when they come to deliver their Verdict. Hutton 82. Vaughan 343. Thomas versus Sorrell. Leonard 1.119. C. 161. Stretton and Taylors Case. Cro. Trin. 31 Eliz. 138. the same Case. Ibid. Mich. 39 & 40 Eliz. 583. Hammon versus Griffith, 1 H. 7. 3. Co. 3. Inst. 194.

Such Entry of a non vult prosequi by the Attorney General, hath the same effect with a Nonsuit of a private person; The King can­not be non­suited. But the King cannot be said properly to be nonsuited, because he is in Judg­ment of Law ever present in Court, Co. 1. Inst. 139.227. Hutton 82. Goldsborough 53. Leighs Case. Savile 56. C. 119. Weare versus Adamson.

Where upon the demise of the King, the proceedings shall be void.Upon the death of Queen Elizabeth it was resolved by the Judges, That where an Information tam pro Domina Regina, quam &c. was brought upon a penal Statute, and pending the same, and before Judgment the Queen died, the Information it self should stand, for that otherwise the Suit might be lost, there being a time limited for the bringing of it, but all the proceed­ings thereupon were lost and void, and the Defendant should plead de novo, Cro. Pasch. 1 Jac. 14. Co. 7. 30, 31. Case Of dis­continuance of Process. And to that purpose the Case of Pasch. 5 E. 6. Rot. 38. is there cited, where in a popular Action the King died after Demurrer upon the Evidence, and before Judg­ment, and the Defendant pleaded de novo.

And where not.But yet in a popular Action of Debt brought upon this Sta­tute against Prince and his Wife, where the Defendants demurred [Page 81] upon the Declaration, and the Plaintiff, Qui tam, &c. joyned in Demurrer in Hillary Term, and King James died the Vacation following. It was resolved, that not only the Writ and Declara­tion, but all the other proceedings thereupon should stand, not­withstanding the Demise of the King: For that in such Case it is meerly the Suit of the party, Stat. 1 E. 6. 7. and is aided by the Statute of 1 E. 6. cap. 7. of Discontinuances, and he only joyned in Demurrer: Cro. Trin. 1 Car. 10. 11. Lionell Farringtons Case, Hobart. 82. the same Case.

Which Resolutions are in appearance flatly contrary each to other, for that upon the death of the Queen seems to take in all popular Suits whatsoever, and as well a popular Action of Debt as an Information. But yet 'tis observable, that in Farringtons Case the Plaintiff only joyned in Demurrer, and not the Kings Attorney: And this seems to be the reason why in that Case the proceedings should stand notwithstanding the Demise of the King: For where the party alone joynes in Demurrer, or Re­plies, and not the Kings Attorney, there the Suit may properly be said to be depending between party and party, and within the express words of 1 E. 6. which provides, that although the King die, all proceedings in Suits depending between party and party shall stand: But the Resolution of the Judges upon the death of the Queen is to be understood of such Cases where after a Plea or Demurrer by the Defendant, the Attorney Ge­neral alone replies or joyns in Demurrer, there the proceedings shall be void, and the Defendant shall plead de novo. But the In­formation it self shall stand, to avoid a manifest inconvenience; for that the Informer is limited to a certain time wherein to ex­hibit his Information: And so I conceive are these two Opinions (which seem so contrary) to be reconciled.

An Informer, Qui tam, Nonsuit, re­lease, &c. of the Informer, &c. may be nonsuited although the King cannot, Co. 1. Inst. 139. Hutton. 82. Farrington versus Arundell.

If pending the popular Action or Information the Plaintiff, or Informer, Qui tam, &c. be nonsuited, or release, or enter a nolle prosequi, or dye, none of these shall Bar the King, but the Attorney General may proceed upon the Information for the Kings part, Leonard 1. 119. C. 161. Stretton and Taylors Case. No Bar for the Kings part. Cro. Trin. 31 Eliz. 138. The same Case, Ibid. Mic. 39 & 40 Eliz. 583. Hammon versus Griffith. Co. 3. Inst. 194. Moore 541. C. 715. Co. 11.66. Dr. Fosters Case. Bulstrode 2. 261, 262. Sir Thomas Waller versus Hanger, Rolles 2.33. Smith versus Carter: And therefore the Opinions in 37 H. 6.5. and 38 H. 6. 2. That if the Plaintiff in a Decies tantum (which is a popular Action) be nonsuit, the King is without Remedy but by Indictment; or if such Plaintiff will relinquish his Suit, [Page 82] the King hath nothing further to do, seem not to be Law at this day.

Information in a wrong Court.And if a popular Information be brought upon a penal Sta­tute in a wrong Court where the Informer cannot sue, yet it was held in Agar and Candishes Case, that the King should not for that lose his advantage of the Suit, but the Information should be good for his part of the penalty. Moore 564, 565, 566. C. 770.

Stat. 18 Eliz. 5.By the Statute of 18 Eliz. cap. 5. if an Informer or Plaintiff upon a penal Statute, where any forfeiture is generally limited to him that will sue, shall delay or discontinue his suit, or be non­suit, The Informer shall pay costs. or shall have the trial or matter pass against him by Verdict or Judgment of Law, he shall pay to the Defendant his Costs, Charges and Damages. Vide Addition to Bendloes 141. Rhobo­tham versus Vincent; and if it be upon special Verdict or De­murrer, those Cases are within the Statute, and he shall pay Costs by force thereof. Hutton 36. Pies Case.

But not find Sureties.But an Informer is not compellable to find Sureties to answer Costs; howbeit, the Court if they see cause, may order him to appear in person, before the Defendant answer the Information. Bulstrode 2.18. Martin and Gunnystons Case.

It was held in the Exchequer Chamber, That if a Writ of Er­ror Writ of Error. be brought upon a Judgment given for the King at the Suit of an Informer, a Scire facias Scire facias. ought to be awarded against the In­former, Savile 10. C. 26. Wilkes Case.

Courts of Re­cord in penal Statutes, are the four Courts at Westminster. In any Court of Record.] By any Court of Record is here meant the four Ordinary Courts of Record at Westminster: For they are the general Courts of Record, and the Courts where the Kings Attorney may acknowledge or deny; and the words of this Statute being general, are left to the construction of Law, where the Rule is verba aequivoca & in dubio posita intelliguntur in digniori & potentiori sensu. And in this sense shall these words (Court of Record) be construed in all penal Statutes, where the penalty is to be recovered in a popular Suit; So that the Informer, Qui tam, &c. cannot sue before Justices of Assize, Goal delivery, or Oyer and Terminer, or Justices of Peace, as in Borough or Corporate Towns, or in a Court of Pipowders, Stannary Courts, &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 [Page 83] 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 [Page 84] 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 [Page 85] 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 sue; And as for Sir Edward Cokes Opinion, that since the said Statute of 21 Jac. the Courts at Westminster cannot receive or hold Plea of any Information brought by a common Informer, not only common Experience ever since that Statute is against it, but the Judgments and Resolutions both of the Kings Bench, Mich. 4 Car. 1. in the Case of Greene and Guy, upon the Statute of 21 H. 8. cap. 13. of Non-residence, Stat. 21 H. 8. 13. and of the Common Pleas. Trin. 4 Car. 1. in the Case of Farrington and Leymer upon the Statute of 23 H. 8. cap. 4. of Brewers, 23 H. 8. 4. are directly in point contrary thereunto. Cro. Car. 146. ibid. 112, 113. Hutton 99. And so is the Opinion of Rolles upon the Statute of 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wines without Licence. Styles 340. Buckstone against Shurlock, and the Resolution in Jones 193.

And yet although in penal Statutes (any Court of Record) shall be restrained to the ordinary Courts of Record at Westminster, In what Sta­tutes Courts of Record may be taken in a large sense. possibly in other Statutes those words may admit of a larger Construction. Vide Rolles 1. 51. C. 21. Floyde versus Beste.

By Action of Debt, Bill, Plaint or Information. An Informer may sue upon this Statute by Bill. Stat. 18 Eliz. 5.] By the Statute of 18 Eliz. cap. 5. it is Enacted, That none shall be ad­mitted or received to pursue against any person upon any penal Statute, but by way of Information or original Action, and not otherwise. Vide, Co. 6. 19, 20. Gregories Case, Moore 412. C. 565. & 600. C. 827. the same Case. Cro. Hill. 39 Eliz. 544. Gadley versus Whitecot. And this seems to extend to as well penal Sta­tutes made afterwards, as to those which were in force when the said Act was made: For 'tis usual for a later Act of Parliament to be guided by a former, of which see several Instances in Vernons Case. Co. 4.4.

But then that must be in such Cases where there are not ex­press words in the later Act to controul the former. And there­fore although the words of 18 Eliz. be in the Negative, that the Informer shall not pursue otherwise then by Information or origi­nal Action, yet the Affirmative words of this subsequent Statute of 23 Eliz. that the Informer may Sue by Bill, hath taken away the force of that Negative in 18, in relation to the Offences mentioned in 23. And the prosecutor, Qui tam, &c. upon this Statute may Sue by Bill in the Kings-Bench, as well as by Infor­mation, [Page 86] which otherwise (had there been no direct words here to that purpose) he could not do, as it seems by the resolution given in Woodson and Clarks Case, in a Suit brought by Bill in the Kings-Bench, 23 H. 6. 10. upon the Statute of 23 H. 6. cap. 10. of Sheriffs, Co. 3. Inst. 194. and in Ʋdeson and the Mayor of Nottinghams Case, Moore 248. C. 390. contrary to the opinion in Styles 381. 382. Hill against Dechair.

Within threé months after Iudgment thereof given shall be committed to Prison.] Qui non habet in aere, luet in corpore.

The Judgment shall be abso­lute.And yet the Judgment in this Case shall be absolute, that the King and Informer recover, &c. Anderson 1. 140. C. 190. Vachels Case.

A Feme Covert Feme Covert. Recusant, if the forfeiture be not paid within the time here limited, may be imprisoned by force of this Statute, until she pay or conform, Co. 11. 61. Dr. Fosters Case. Hobart 97. Moore vesus Hussey.

And if she be convicted upon Indictment at the Kings Suit, in which Case the Husband is not bound to pay the penalty, she ought by the opinion of Manword to have hard and close Impri­sonment, Imprisoned. and be sequestred from all Company until she conform, or the forfeiture be paid, Savile 25. C. 59. But if the Husband and Wife be Sued upon this Statute in a popular Action or Infor­mation for the Recusancy of the Wife, Her Husband chargeable. and Judgment be had against them, and the forfeiture is not paid within the three months, the Husband in that Case may be imprisoned likewise. Savile 25. C. 59.

Stat. Sect. 10. Service in a mans private House. Provided also, That every person, which usually on the Sun­day shall have in his or her house the Divine Service which is established by the Law of this Realm, and be thereat himself, or her self usually or most commonly present, and shall not obstinately refuse to come to Church, and there to do as is aforesaid; and shall also four times in the year at the least be present at the Divine Service in the Church of the Parish where he or she shall be resident, or in some other open Common Church, or such Chappel of ease, shall not incur any pain or penalty limited by this Act for not repairing to Church.

Stat. Sect. 11. Fraudulent Assurances to defeat forfei­tures. And be it likewise Enacted and Declared, That every Grant, Conveyance, Bond, Iudgment and Execution, had or made since the beginning of this Session of Parliament, or hereafter to be had or made, of Covinous purpose to defraud any inte­rest, right or title that may or ought to grow to the Queén, or to any other person by means of any Conviction or Iudgment, by vertue of this Statute, or of the said Statute of the said [Page 87] thirteenth year, shall be, and be adjudged to be utterly void against the Quéen, and against such as shall Sue for any part of the said penalties in form aforesaid.

Since the beginning of this Session of Parliament.] And yet a Covenons Conveyance though made before that Session of Parliament, should not have defeated the interest, Fraudulent conveyances. right or title which was given to the Queen by this Statute. And therefore in the Case or Sir John Southwell who in An. 19 Eliz. conveyed his lands to certain Feoffees and their heirs in Trust for the mainte­nance of him and his Family, marriage of his Daughters, pay­ment of his Debts, &c. and to answer to him the Surplusage of the mean profits, with a Clause of Revocation; after which he granted Trees, took fines for Leases, &c. and then came this Sta­tute upon which he was Indicted and Convicted: It was resolved by all the Judges of England, that the said Lands were liable to this Statute; and the Jurors charged to inquire what Lands he had, were committed to the Fleet, and fined each of them Fifty pounds, for that they would not find those Lands to be his. Leo­nard. 3. 147. 148.

By means of any Conviction or Iudgment.] Pauncefoot be­ing Indicted of Recusancy, A [...] Outlaw [...] made a Deed of Gift of all his Leases and Goods to a great value, coloured over with fained conside­rations, to defeat the Queen of what might accrew to her by his recusancy or flight; and then went beyond Sea, and afterwards was outlawed upon the said Indictment; and it was Resolved, 36 Eliz. by the whole Court of Exchequer, that this was a frau­dulent Conveyance within the Statute of 13 Eliz. cap. 5. Stat. 13 Eliz. 5 which was made for the Relief of the Queen, and other persons as well as Creditors: But as this Case is related in Twines Case. Co. 3. 82. 'Tis observable, that although it was debated whether the Queen should avoid this Conveyance by force of the Statute of 50 E. 3. 50 E. 3. 6. cap. 6. or that of 3 H. 7. cap. 4. 3 H. 7. 4. or that of 13 Eliz. before men­tioned, yet there is no mention made of this branch of 23 Eliz. for 'tis clear, that the Queen could not avoid such a fraudulent Conveyance by force of this Statute, unless Judgment had been first given against the Recusant, or he had been convicted: And Pauncefoot was neither convicted or adjudged to be a Recusant, but the Queens interest accrued to her by means of the Outlawry only.

Provided alway, Stat. Sect. 12. Tryal of a Peer by his Peers. That if any Peér of this Realm shall hap­pen to be Indicted of any Offence made Treason or misprision of Treason by this Act, he shall have his Trial by his Péers, as in other like Cases is accustomed.

Indictment of Peers by whom.Although a Peer shall be tried per pares, yet he is to be Indict­ed by an Inquest under the Degree of Nobility. And may be Indicted before Commissioners of Oyer and Terminer, or in the Kings-Bench, if the Offence be committed in the County where the Kings-Bench is. Co. 2. Inst. 49.

Stat. Sect. 13. Ecclesiastical Censures. Provided also, That neither this Act, nor any thing therein contained, shall extend to take away or abridge the Authority or Iurisdiction of the Ecclesiastical Censures for any cause or matter: But that the Archbishops and Bishops, and other Ec­clesiastical Iudges may do and proceed, as before the making of this Act they lawfully did or might have done: Any thing in this Act to the Contrary notwithstanding.

WHereas divers persons called or professed Iesuits, Stat. Sect 1. The Causes why Jesuits and Priests do come into this Realm. Seminary Priests, and other Priests which have been and from time to time are made in the parts beyond the Seas, by or according to the Order and Rites of the Romish Church, have of late years comen and béen sent, and dayly do come and are sent into this Realm of England, and other the Queéns Majesties Domi­nions, of purpose (as it hath appeared as well by sundry of their own examinations and confessions, as by divers other manifest means and proofs) not only to withdraw her Highness Subjects from their due obedience to her Majesty, but also to stir up and move Sedition, Rebellion, and open Hostility within the same her Highness Realms and Dominions, to the great indanger­ing of the safety of her most Royal Person, and to the utter ruine, desolation, and overthrow of the whole Realm, if the same be not the sooner by some good means foreséen and prevented.

For reformation whereof, be it Ordained, All Jesuits and Priests shall depart out of this Realm. Established and Enacted by the Queens most Excellent Majesty, and the Lords Spiritual and Temporal, and the Commons in this present Parliament Assembled, and by the Authority of the same Par­liament, That all and every Iesuits, Seminary Priests, and other Priests whatsoever, made or Ordained out of the Realm of England, or other her Highnesse Dominions, or within any of her Majesties Realms or Dominions, by any Authority, Power or Iurisdiction, derived, challenged or pretended from the See of Rome, since the Feast of the Nativity of St. John Baptist, in the first year of her Highness Reign, shall within forty days next after the end of this present Session of Parliament, de­part out of this Realm of England, and out of all other her Highness Realms and Dominions, if the wind, weather and passage shall serve for the same: or else so soon after the end of [Page 90] the said forty days, as the Wind, Weather, and passage shall so serve.

Stat. Sect. 2. No Jesuits or Priests shall come into or remain in this Realm.And be it further Enacted by the Authority aforesaid, That it shall not be lawful to or for any Iesuit, Seminary Priest, or other such Priest, Deacon, or Religious or Ecclesiastical person whatsoever being born within this Realm, or any other her Highnesse Dominions, and heretofore since the said Feast of the Nativity of St. John Baptist, in the first year of her Maje­sties Reign made, ordained or professed, or hereafter to be made, ordained or professed by any Authority or Iurisdiction derived, challenged or pretended from the Sée of Rome, by or of what name, title, or degrée soever the same shall be called or known; to come into, be or remain in any part of this Realm, or any other her Highnesse Dominions after the end of the same forty days, other then in such special Cases, and upon such special occasions only, and for such time only as is expressed in this Act: And if he do, that then every such Offence shall be taken and adjudged to be High Treason, and every person so offending shall for his Offence be adjudged a Traytor, and shall suffer, lose and forfeit as in Case of High Treason.

A Priest born within this Realm.Being born within this Realm, &c.] And this must be com­prised in the Indictment, but it need not be shewn in what particular place he was born, but generally, Quod J. S. natus infra hoc regnum Angliae, &c. Popham 94. Southwells Case.

A Priest Or­dained, &c.Made, ordained or professed.] And so it must be alledged in the Indictment that he was made a Jesuit or Priest, &c. by Authority challenged or pretended from the See of Rome; but it need not be shewn where he was made a Jesuit or Priest, &c. whether beyond Sea, or within the Realm: for whereso­ever it was, it is within this Law, if he were made so by the pretended Authority of the See of Rome. Popham 94. Southwells Case.

Stat. Sect. 6. Receiving or relieving a Je­suit or Priest shall be felonyAnd every person which after the end of the same forty days, and after such time of departure as is before limited and ap­pointed, shall wittingly and willingly receive, relieve, comfort, aid or maintain any such Iesuit, Seminary Priest or other Priest, Deacon, or Religious or Ecclesiastical person as is aforesaid, being at liberty, or out of hold, knowing him to be a Iesuit, Seminary Priest, or other such Priest, Deacon, or Religious or Ecclesiastical person as is aforesaid, shall also for offence be adjudged a Felon without benefit of Clergy, and suffer death, lose and forfeit as in Case of one attainted of Felony.

In the late Additions to Dalton cap. 140. tit. High Treason, Sect. 13. 'tis said, That the Clause in this Statute touching those who receive, relieve or maintain a Jesuit, Receiving or relieving a Je­suit, Priest, &c. at this day is Felony by this Act. &c. relates only to such as had before that time taken Orders; which conceit I sup­pose is grounded upon those words, (viz. who at the end of the said forty days, and after such time of departure as aforesaid, shall receive, &c.) as if no Jesuit or Priest were here intended, but such an one as was then a Jesuit or Priest, and had forty days given him for his departure, nor no person a Felon by this Act who receives or relieves any other. But the words here ( viz. such Iesuit, &c.) seem to be more extensive, and to relate as well to the receivers or relievers of a Jesuit or Priest in Orders at this day, as to those who were in Orders at the time of making this Statute. And if we weigh the Grammatical construction of the words, with much more reason the for­mer then the later: For the proximum antecedens to (such) is the Jesuit or Priest, who was to be made, ordained or pro­fessed, and not he that was then made, ordained or professed already. And those words in this Clause of relieving, (viz.) Every person which after the end of the same forty days, &c. shall receive, &c. that is, forty days next after the end of that Session of Parliament, may well be construed to extend to all Cases, as well of receiving or relieving such who should be after­wards in Orders, and should be found within the Realm for the time to come, at any time after those forty days, as of such who were then in Orders, and were to depart before the forty days were expired: so that the receiving, relieving or maintaining of a Jesuit, Popish Priest, or other Popish Ecclesiastical person at liberty, and known by the party to be such, is Felony at this day by this Act, and the Offender shall lose the benefit of his Clergy; and so hath the Law been taken upon Actions of the Case for saying the Plaintiff kept a Seminary Priest or Jesuit in his House, knowing him to be such. Cro. Pasch. 10 Jac. 300. Smith versus Flynt. Palmer 410. Clerke and Loggins Case.

And be it further Enacted by the Authority aforesaid, Stat. Sect. 4. They which be in Semina­ries shall after Proclamation return and take the Oath. If any of her Majesties Subjects (not being a Iesuit, Seminary Priest, or other such Priest, Deacon, or Religious or Ecclesiastical person as is before mentioned) now being, or which hereafter shall be of, or brought up in any Colledge of Iesuits or Semi­nary already erected or ordained, or hereafter to be erected or ordained in the parts beyond the Seas, or out of this Realm in any Forraign parts, shall not within six months next after Proclamation in that behalf to be made in the City of London [Page 92] under the great Seal of England, return into this Realm, and thereupon within two days next after such Return, before the Bishop of the Diocess, or two Iustices of Peace of the County where he shall arrive, submit himself to her Majesty and her Laws, and take the Oath set forth by Act in the first year of her Reign, That then every such person which shall otherwise re­turn, come into, or be in this Realm, or any other her High­nesse Dominions, for such Offence of returning, or being in this Realm, or any other her Highnesse Dominions without submission as aforesaid, shall also be adjudged a Traytor, and suffer, lose and forfeit as in Case of High Treason.

Persons sent out of this Realm.Return into this Realm, and thereupon within two days, &c.] By this word (Return) it seems that none are intended here, but such as were sent out of this Realm: For others born and re­sident in some other part of the Kings Dominions until their en­try into such Collledge or Seminary, cannot be properly said to return hither. The Queens Laws.

And her Laws.] What Laws are here meant, Vide Sect. 7.

Whither a per­son sent be­yond Seas must first return.Or any other her Highnesse Dominions.] A Subject of the Kings sent out of England to a Popish Colledge or Seminary, is commanded by Proclamation made in London to return into this Realm, and within the six months here limited, first goes into Ireland and then comes into England, and within two days submits himself, and takes the Oath of Supremacy; In this Case notwithstanding his return into England within the six months, he shall be guilty of High Treason: For after such Proclamation he ought to have come directly into England, and into no other of the late Queens Dominions before he had been in England, and if he doth, he comes into the said Dominions otherwise then is appointed by this Act: For the intent of the Act seems to be, That he should not remain in any of the said Dominions until he submits and takes the Oath; which submission must be made, and Oath taken in England within two days after his arrival here and not elsewhere. And although the Oath of Supremacy be in force in Ireland, yet his taking it there will not serve, nor yet his submission there: For he is to submit to the King and his Laws, by which are intended the Laws of England and no other: But a submission in Ireland to the Kings Laws, can be taken to be of such Laws only as are in force in Ireland. Trial in En­gland, of Trea­son done in Ireland. And in this Case the Offender may be tryed here in England, although his Offence was committed in Ireland, and that by force of the Statute of 35 H. 8. Stat. 35 H. 8. 2. 1 & 2 Ph. & Mar. 10. cap. 2. notwithstanding the Statute of 1 & 2 Ph. & Mar. cap. 10. For it was resolved by all the Judges of England in the Case of Ororke, 33 Eliz. that Treason committed in Ire­land [Page 93] may be tryed in England. And the like resolution was in Sir John Perrots Case. 34 Eliz. Co. 7. 23. Calvins Case. Co. 1. Inst. 261. Co. 3. Inst. 11. Dyer 13 Eliz. 298. Dr. Stories Case. Ander­son 1. 263. C. 269. Ororkes Case.

And if a Subject of England, who is a Peer of Ireland, Trial of Peers. be sent to any such Colledge or Seminary, and offend as aforesaid, he may be tried in England by a common Jury, notwithstanding the offence was in Ireland where he is a Peer; contrary to Dyer, 19 & 20 Eliz. 360. where 'tis said that Wray, Dyer and Gerard Attor­ney General, were of opinion, That a Peer of Ireland cannot be tryed in England for Treason done in Ireland, because he cannot here have his Tryal by his Peers; but this is not Law, and Sir Chri­stopher Wray protested, he never gave any such opinion but held the contrary. Co. 1. Inst. 261.

And be it further Enacted by the Authority 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 [Page 94] 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 [Page 95] 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 [Page 96] 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 [Page 97] 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.

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 [Page 100] 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 [Page 101] 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 Conviction, do yet remain unpaid, in form as [Page 102] hereafter ensueth; that is to say, the one moiety thereof before the end of the next Trinity Term, and the other moiety there­of before the end of the next Hillary Term, or at any such other times, as by the Lord Treasurer, Chancellor and Chief Baron of the Exchequer, or any two of them, shall by composition, upon good Bond and Surety taken, be limited before the end of the said next Trinity Term, if any such Composition shall hap­pen to be: And shall also in every Easter and Michaelmas Term, until such time as the same person do make Submission and be Conformable, according to the true meaning of the said Statute, pay into the said Receipt of the Exchequer twenty pounds for every month, which shall incur in all that mean time.

Stat. Sect. 4. And be it also Enacted by the Authority aforesaid, That every such Offender in not repairing to Divine Service, but forbear­ing the same contrary to the said Estatute, as hereafter shall fortune to be thereof once convicted, shall in such of the Terms of Easter or Michaelmas, as shall be next after such Conviction, pay into the said Receipt of the Exchequer after the rate of twen­ty pounds for every month, which shall be contained in the In­dictment whereupon such Conviction shall be: And shall also for every month after such Conviction, without any other Indict­ment or Conviction, pay into the Receipt of the Exchequer aforesaid at two times in the year, that is to say, in every Easter Term and Michaelmas Term, as much as then shall remain un­paid, after the rate of Twenty pounds for every month after such Conviction. The Queen may take all the Goods and two parts of the Lands and Leases of the Offender who pays not 20 l. a month. And if default shall be made in any part of any payment aforesaid, contrary to the form herein before limited, that then and so often the Quéens Majesty, shall and may by Process out of the said Exchequer, take, seize and enjoy all the Goods, and two parts as well of all the Lands, Tenements and Hereditaments, Leases and Farms of such Offender, as of all other the Lands, Tenements and Hereditaments liable to such seizure, or to the penalties aforesaid by the true meaning of this Act, leaving the third part only of the same Lands, Tene­ments and Hereditaments, Leases and Farms to and for the maintenance and relief of the same Offender, his Wife, Chil­dren and Family.

What Convi­ction is here meant, and when the pe­nalty is appro­priated to the King. Once convicted.] This Statute meddles not with any other way of Conviction, then at the Queens Suit by Indictment, as hath been said. And so is the Conviction here mentioned to be understood: For this Statute is not introductory of a new Law, nor gave the Queen any new or other remedy then what she had against the Recusant by the Statute of 23 Eliz. cap. 1. that is, by [Page 103] Indictment, but only gave her a more speedy way of proceeding upon that fundamental remedy. Co. 11. 60. Dr. Fosters Case. Rolles 1. 93. C. 41. the same Case; so that a Conviction upon an Information against the Recusant upon 23. or any other way save by Indictment, doth not appropriate the penalty of twenty pounds per month to the King for the time to come, by force of this Statute. Hobart 205. Pye and Lovells Case; nor (for the same reason) by force of that 3 Jac. cap. 4. where the same words are used, and a Conviction by Indictment only intended, as here.

In that Case of Pye and Lovell its said, That if a man at the making of this Statute, had been convicted of Recusancy by any other means then by Indictment, he had not been bound by this Law to pay the twenty shillings (It should be twenty pounds) a month from the Conviction. And if a man be now convicted in the Kings Bench by Indictment or otherwise, he cannot be pro­claimed nor otherwise his penalty run on; which last words in­fer, that the Conviction here intended, is only a Conviction ac­cording to this Statute by Proclamation upon default. But if we compare together this Clause which speaks of a Conviction after the making of this Statute, and the former Clause which speaks of a Conviction before this Statute, the contrary will evi­dently appear: For the former Clause touching Conviction be­fore this Statute, must necessarily be intended of Convictions ac­cording to 23 Eliz. cap. 1. without any Proclamation: For the Proclamation in the Case of Recusancy was not given until 29. And if a man had been convicted of Recusancy upon Indictment in the Kings Bench or elsewhere before this Act, the forfeiture of 20 l. per month should by force of this Act have run on from the time of such Conviction, that's clear by the express words of the former Clause. Then comes this Clause, which provides what shall be done upon Convictions for the future, and appoints in that Case likewise the forfeiture of 26 l. per month to run on from the time of Conviction. Both which Convictions, as well before as after this Statute, are granted to be meant only of Con­victions upon Indictment; And there is no difference between the penning of these two Clauses, but that one respects the time past, and the other the time to come, but both appoint the pe­nalty to run on. Now there is no reason to suppose that the makers of the Law intended the word (Convicted) in a more restrained sense in this Clause, then in the former Clause where the penalty should have run on upon any conviction whatsoever upon Indictment, or that the conviction in the former Clause by Indictment upon 23. without Proclamation should be wholly shut out of the later Clause. By (Conviction) therefore in these two Clauses seems to be meant such Convictions upon Indictment [Page 104] as were warranted by the Statutes in force at the several and re­spective times here mentioned: That is, in the former which speaks of the time foregoing, a Conviction upon 23 Eliz. with­out Proclamation, and in this later which speaks of the time to come, a Conviction either with or without a Proclamation: In either of which Cases the penalty of 20 l. per month shall run on by force of this Act; and consequently it shall run on, if the Recusant be Indicted, Convicted and adjudged in the Kings Bench, although he cannot be proclaimed there. And accor­dingly it was agreed in Dr. Fosters Case, that where the Recu­sant is convicted upon Indictment, the penalty should ever after run on, and be appropriated to the King, Roiles 1. 93. C. 41. And 'tis not restrained there to a Conviction upon Proclamation only.

But yet although this Clause extends as well to a Conviction upon 23 Eliz. as to a Conviction by Proclamation, yet every Conviction upon 23 Eliz. is not here intended: For if a man Indicted of Recusancy do upon his Arraignment confess the In­dictment to be true and plead guilty, or upon Trial a 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 Ʋniversity 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 [Page 106] 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 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 [Page 107] 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 [Page 108] 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 [Page 109] 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 arrearages of twenty pounds monthly, before such seizure due or payable, shall ensue or be continued against such Offender, so long as the same person shall continue in coming to Divine Service, according to the intent of the said Estatute.

It was resolved by all the Judges Mich. 37 & 38 Eliz. That if a man had been convicted according to this Statute by Proclama­tion upon default, and afterwards conformed himself, Where Con­formity dis­charges the penalty. he should be discharged of the penalty due upon his Conviction, notwith­standing these words, (and full satisfaction of all the Arrear­ages:) And the reason of this given by Coke Chief Justice B. R. in Dr. Fosters Case, is, for that this Statute saith, That such Con­viction should be as sufficient as if there were a Verdict recorded, but 'tis only a Judgment which converts the penalty into a Debt, and not a Verdict: And here all penalties are discharged upon Conformity, unless such as are converted into a Debt. But other­wise it would have been, if there had been a Judgment against the Recusant upon Trial or Confession on the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1. For then his Conformity would have come too late to have saved the penalty incurred by his Conviction: For by the Judgment the penalty was converted into a Debt. Rolles 1. 94. C. 41.

Quaere tamen, Whether these words here (due and pay­able) are to be understood, due and payable upon a Judgment only.

However now by the Statute of 1 Jac. cap. 4. 1 Jac. 4. if the Recusant conform either before or after Judgment, he shall be discharged of all penalties.

But the profits of the Recusants Lands taken before his Con­formity, shall never be restored. Savile 130. C. 201. The profits not to be re­stored.

It hath been questioned upon this Statute, Where the pe­nalty is dis­charged upon the death of the Recusant, where not. if a Recusant con­victed by Proclamation upon default had died before seizure of two parts of his Lands, whether his Lands might have been seized after his death for the Arrearages of the 20 l. per month; or if they were seized in his life time, whether they should have been discharged after his death without payment of such Arrears. And the Opinion of those who held that the seizure should neither ensue nor continue after his death, but that the Arrears were dis­charged, was principally grounded upon the aforesaid constructi­on of this Statute, viz. that (due and payable) extended only [Page 110] to Arrearages due and payable upon a Judgment, and converted into a Debt: But when the Recusant was convicted by Procla­mation, the penalty was never converted into a Debt, and there­fore when he died there were no Arrearages due in the sense of this Statute for the heir to pay; And yet that by (such Offen­der) here is generally intended all Recusants convicted, as well by Proclamation upon default as upon Judgment; and the heirs of either should have had the benefit of this Proviso, (viz.) That upon the death of the Ancestor no seizure should ensue, or be continued; only in the Case of a Judgment the Arrears were to have been paid.

But there seems now to be no further need of this Question, for the Statute of 1 Jac. cap. 4. Stat. 1 Jac. 4. meets with both these Cases: For if there be no seizure of the Recusants Lands in his life time, the discharge of the heir will depend upon his Conformity; and if there were a seizure, the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied.

Intailed Lands when dischar­ged, and when not.But this is not intended of intailed Lands: For without any aid of this Proviso, if a Recusant Tenant in Tail be con­victed by Proclamation upon default and dies, neither any seizure for the Arrears of the 20 l. per month shall ensue after his death; nor if they were seized in his life time shall the seizure be continued after his death; nor is the Heir in Tail bound to pay any such Arrears: But if a Judgment be had against the Recu­sant Tenant in Tail in his life time, the Heir is bound in that Case, of which see farther in Stat. 1 Jac. cap. 4. Sect. 4.

If a Judgment was had against the Recusant before the said Statute of 1 Jac. and he had died before seizure of the two parts of his Lands, The question was, whether after his death they might have been seized by force of this Statute of 29. for the Arrears of the penalty incurred in his life time: For that the seizure here given is meerly in nature of a nomine poenae, or pe­nalty inflicted for his contempt in not paying the 20 l per month, and should not have gone in satisfaction of the Debt; But the Queen should have held the Land till the 20 l. per month were otherwise paid and satisfied; And when this penalty of seizure was not executed in the Recusants life time, by his death the con­tempt was gone, and consequently the penalty inflicted for that contempt could not then be put in Execution. Vide Lane 92, 93. Beckets Case. Ibid. 107. Halseys Case.

Stat. 1 Jac. 4.But now by the Statute of 1 Jac. 4. the seizure is not as a meer penalty for the contempt of non-payment, but for the satis­fying of the King of the Arrears of the 20 l. per month, and the profits of the Land shall go towards the payment and satisfaction [Page 111] thereof; so that now there is no question but the two parts of the Recusants Lands may be seized after his death, Seizure after the Recusants death. unless the Heir discharge himself by his Conformity.

Note, Discharge up­on Affidavit. in all these Cases of seizure where the Land is to be dis­charged upon the death of the Recusant, although an Affidavit be made of his death, and a discharge obtained thereupon, yet 'tis a Rule in the Court of Exchequer, Commission to enquire. That a Commission shall be awarded first to enquire. Savile 130. Case 201.

And where by the said former Estatute, Stat. Sect. 8. The third part of the forfei­ture how to be disposed of. the third part of the forfeitures for not coming to Divine Service is limited to the Poor: Be it further Enacted by the Authority aforesaid, That it shall and may be lawful to and for the Lord Treasurer of England, Chancellor and Chief Baron of the Exchequer for the time being, or two of them, to assign and dispose of the full third part of the twenty pounds for every month, paid or to be paid into the Receipt of the Exchequer as is aforesaid, for the relief and maintenance as well of the Poor, and of the Houses of Correction, as of impotent and maimed Soldiers, as the same Lord Treasurer, Chancellor and Chief Baron, or any two of them, shall order or appoint: Any thing in the said Esta­tute made in the said thrée and twentieth year of her Majesties Reign mentioned to the contrary thereof in any wise notwith­standing.

This Branch seems not to extend to all forfeitures for Recu­sancy: For the power here given the Lord Treasurer, To what cases of Conviction this Clause ex­tends, and to what not. &c. is only in relation to those forfeitures which are by this Act appointed to be paid into the Receipt of the Exchequer, which are the forfeitures due to the Queen by Conviction upon Indictment: for this Act meddles with no other; so that if the twenty pounds per month be recovered in a popular Suit by the Informer Qui tam, &c. one third part thereof ought still to be paid to the Poor of the Parish only, according to 23 Eliz. cap. 1. notwith­standing this Act.

Provided always, That this Act, Stat. Sect. 9. Assurances made bona fide not to be im­peached. or any thing therein con­tained, shall not in any wise extend or be construed to make void or impeach any Grant or Lease heretofore to be made bona fide, without fraud or covin, whereupon any yearly Rent or payment is reserved or payable, or any Grant or Lease hereafter to be made bona fide without fraud or covin, whereupon the accu­stomed yearly Rent or more shall be reserved, or any other Con­veyance, Assurance or Assignment whatsoever heretofore made bona fide, upon good consideration and without fraud or covin, [Page 112] which is not, or shall not be revokable at the pleasure of such Offender, otherwise then to give benefit and title to her Majesty her Heirs and Successors, to have, perceive and enjoy such Rents and Payments during the continuance of such Lease or Grant, according to the true meaning of this Act.

Seizure of Lands whereof the Offender hath but an Estate for life, or in his Wives right. And provided also, That this Act or any thing therein con­tained, shall not in any wise extend or be construed to continue any seizure of any Lands or Tenements of such Offender in her Majesties hands, or in the hands of her Heirs or Successors, after the said Offenders death, which Lands or Tenements he shall have or be seized of only for term of his life, or in the Right of his Wife: Any thing in this Act to the contrary in any wise notwithstanding.

FOR preventing and avoiding of such great inconveni­encies and perils as might happen and grow by the wicked and dangerous practices of seditious Sectaries and disloyal persons. Stat. Sect. 1. The penalty of a Recusant perswading others to im­pugne the Queens Eccle­siastical power Be it Enacted by the Queéns most Excellent Majesty, and by the Lords Spiritual and Tem­poral, and the Commons in this present Parliament assembled, and by the Authority of the same, That if any person or persons above the age of sixteen years, which shall obstinately refuse to repair to some Church, Chappel or usual place of Common Prayer to hear Divine Service, established by her Majesties Laws and Statutes in that behalf made, and shall forbear to do the same by the space of a month next after, without any lawful cause, shall at any time after forty days next after the end of this Session of Parliament, by Printing, Writing or express words or speéches, advisedly or purposely, practise or go about to move or perswade any of her Majesties Subjects, or any other within her Highness Realms or Dominions to deny, withstand and impugne her Majesties Power and Authority in cases Ec­clesiastical, united and annexed to the Imperial Crown of this Realm, or to that end or purpose shall advisedly and malicious­ly move or perswade any other person whatsoever to forbear or abstain from coming to Church to hear Divine Service, Or to forbear coming to Church. or to receive the Communion according to her Majesties Laws and Statutes aforesaid, or to come to, or to be present at any un­lawful Assemblies, Conventicles or Meétings, under colour or pretence of any exercise of Religion, Or to be pre­sent at unlaw­ful Conventi­cles. contrary to her Ma­jesties said Laws and Statutes. Or if any person or persons which shall obstinately refuse to repair to some Church, Chappel or usual place of Common Prayer, and shall forbear by the space of a month to hear Divine Service, as is aforesaid, shall after the said forty days, either of him or themselves, or by the mo­tion perswasion, inticement or allurement of any other, willingly [Page 114] joyn in, or be present at any such Assemblies, Conventicles or Méetings under colour or pretence of any such exercise of Reli­gion, contrary to the Laws and Statutes of this Realm, as is aforesaid, That then every such person so offending as aforesaid, and being thereof lawfully convicted, shall be committed to Prison, there to remain without Bail or Mainprize, until they shall conform and yield themselves to come to some Church, Chappel or usual place of Common Prayer, and hear Divine Service, according to her Majesties Laws and Statutes afore­said, and to make such open submission and Declaration of their said Conformity, as hereafter in this Act is declared and ap­pointed.

Which shall obstinately refuse to repair, &c. shall &c. by Prin­ting, &c.] Wingate in abridging of this Statute, tit. Crowne numb. 70. saith, that if any person above sixteen years of age ob­stinately refuses to come to Church for a month, or impugnes the Queens Authority in Causes Ecclesiastical, he shall be committed to Prison, which is a great mistake; for no man shall be punished by this Act for either of those Causes only: The not coming to Church being only a precedent Qualification required in the per­son whom the Act makes liable to the penalties thereof, for the other offences therein mentioned: Who may be an offender within this Act, and who not. And therefore if a man never comes to Church, yet he is no offender within this Act, unless he advisedly or purposely move or perswade another to deny or im­pugne the Kings Authority in Causes Ecclesiastical, or to that end or purpose advisedly and maliciously move or perswade some other to forbear to come to Church or receive the Com­munion, or to be present at Conventicles, &c. or he himself be present at such Conventicles, &c. And on the other hand, if a man move or perswade any other to deny or impugne the Kings Authority in Causes Ecclesiastical, or to forbear to come to Church or receive the Communion, or to be present at Conventicles, &c. or if he himself be present at any Conventicles, &c. yet he is no Offender within this Act, if he goes to Church once within the compass of a month: so that the party must both forbear to come to Church, and be guilty of some other of the offences here enumerated, or he is not punishable by this Act: And as for the denying or impugning the Kings Authority in Causes Ecclesiastical, its no offence within this Statute, unless the party moves or 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 [Page 115] 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 'tis 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 [Page 116] 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 [Page 117] 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 Eli [...]. [...].

And furthermore be it Enacted by the Authority of this pre­sent Parliament, Stat. S [...]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 publick and open Submission and Declaration of his and their Conformity to her Majesties Laws and Statutes as hereafter in this Act is declared and appointed, That then the same Offender shall thereupon be clearly discharged of and from all and every the penalties and punishments inflicted or imposed by this Act for any of the Offences aforesaid.

The former part of this Statute appoints the Conformity and Submission to be at any Church, Submission where to b [...] made. Chappel or usual place of Com­mon Prayer, but this limits it to be at some Parish Church; the meaning whereof seems to be, That if a man be an Offender against this Act and convicted, he may within the three months after his Conviction conform and submit in any Church, Chappel or usual place of Common Prayer, where there is Common Prayer, and either a Sermon or the Gospel read; But if he be required within the three months to Conform and make Submissi­on, and he refuses so to do, but the three months expire, then his Conformity and Submission must be more solemn and publick, (viz.) in some Parish Church where, it is presumed, there will be the greatest number of People to be Witnesses thereof: And by this construction the seeming difference between these two branches of the Statute, one whereof limits the Offender to a Parish Church, and the other leaves him at large to any Church, Chappel or usual place of Common Prayer, is reconciled.

And this construction naturally flows from the Order wherein these two branches are placed: For the Statute speaks of a Church, Chappel or usual place of Common Prayer, before it mentions the parties refusal to conform and submit within three months next after Conviction; But when it hath mentioned such refusal, then it speaks of the Parish Church only: And the second time [Page 118] here limited to the Offender when he may conform and submit, viz. before he be warned or required to abjure, presupposes his refusal to conform and submit within the three months: For other­wise he could not be required to abjure.

But if the Offender be not required within the three months, according to this Act, to conform and submit, it seems he is not afterwards limited to some Parish Church, but may do it accor­ding to the former branch of this Act, in any Church, Chappel or usual place of Common Prayer, for he is then in no danger of Abjuration; and his Conformity and Submission is then to no other end, but to free himself from the Imprisonment inflicted on him upon his Conviction: And in that Case the Act saith, he may conform and submit in any Church, Chappel or usual place of Common Prayer.

Of this difference between the places of Conformity and Sub­mission, no notice is taken in the late Additions to Dalton, but any Church or Chappel is made to serve the turn in all Cases. cap. 81. tit. Recusants Sect. 13.

What is a Pa­rish Church.By Parish Church is to be understood not only that which hath been always the Mother Church and never belonged to any other, but every Church which hath the Administration of Sacraments and Sepulture. For that, in Law, is a Parish Church, although it anciently belonged to another Church. Co. 2. Inst. 363. where the issue was, whether it had Baptisterium & Sepulturam: And the Church of Stoke Goldenham, though the Town was parcel of the Rectory of Hinckley, whose Church was anciently the Mo­ther Church, yet having all Parochial Rights and Church-war­dens, was adjudged a Parish Church, and within the meaning of the Statute of 43 Eliz. cap. 2. of the Poor. Hutton 93. Hilton and Paules Case.

Stat. Sect. 5. The same Submission to be as hereafter followeth, that is to say,

The form of the Submissi­on.I A. B. do humbly confess and acknowledge that I have grie­vously offended God, in contemning her Majesties godly and lawful Government and Authority, by absenting my self from Church, and from hearing Divine Service contrary to the Godly Laws and Statutes of this Realm, and in using and frequenting disordered and unlawful Conventicles and Assemblies under pretence and co­lour of Exercise of Religion; And I am heartily sorry for the same, and do acknowledge and testifie in my Conscience, that no other person hath or ought to have any Power or Authority over her Majesty: And I do promise and protest without any dissimulation, or any colour or means of any Dispensation, That [Page 119] from henceforth I will, from time to time, obey and perform her Majesties Laws and Statutes in repairing to the Church, and hear­ing Divine Service, and do my uttermost endeavour to maintain and defend the same.

Or any colour or means of any Dispensation. Dispensation.] These words are omitted by Wingate tit. Crown numb. 72. And the form there set down faulty in several other particulars, and not to be relied upon.

Her Majesties Laws and Statutes. The Queens Laws. Stat. 27 Eliz. 2.] What is meant by her Majesties Laws, Vide Stat. 27 Eliz. cap. 2. Sect. 7.

And that every Minister or Curate of every Parish where such Submission and Declaration of Conformity shall hereafter be so made by any such Offender as aforesaid, Stat. Sect. 6. The Minister shall enter the Submission in­to a Book. shall presently enter the same into a Book to be kept in every Parish for that pur­pose, and within ten days next following, shall certifie the same in writing to the Bishop of the same Diocess.

Provided nevertheless, The Offender submitting and falling into Relapse. That if any such Offender after such Submission made as is aforesaid, shall fall into Relapse, or eft­soons obstinately refuse to repair to some Church, Chappel or usual place of Common Prayer to hear Divine Service, and shall forbear the same as aforesaid, or shall come or be present at any such Assemblies, Conventicles or Méetings under colour or pretence of any exercise of Religion, contrary to her Majesties Laws and Statutes: That then every such Offender shall lose all such benefit as he or she might otherwise by virtue of this Act, have or enjoy by reason of their said Submission; And shall thereupon stand and remain in such plight, condition and de­grée, to all intents, as though such Submission had never beén made.

And for that every person having House and Family, Stat. Sect. 7. The forfeiture for relieving or keeping a Recusant after notice. Rep. 3 Jac. 4. is in duty bounden to have special regard to the good Government and or­dering of the same: Be it Enacted by the Authority aforesaid, That if any person or persons shall at any time hereafter relieve, maintain, retain or keép in his or their House, or otherwise, any per­son which shall obstinately refuse to come to some Church, Chappel or usual place of Common Prayer to hear Divine Service, and shall forbear the same by the space of a mouth together, contrary to the Laws and Statutes of this Realm, That then every person which shall so relieve, maintain, retain or keép any such person offending 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, [Page 120] 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 [Page 121] 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 [Page 122] 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. cap. 1. Sect. 9. in that part touching the Informer, and the Cases there cited to prove that no other Suits are restrained by that Statute to a year and a day, but only Suits by Indictment.

By Action of Debt, Bill, Plaint, Information.] If the King sue by any of these ways, no Proclamation Proclamation. can be made thereupon: For the Proclamation given by the Statutes of 29 Eliz. 6. & 3 Jac. 4. Stat. 29 Eliz. 6 3 Jac. 4 in Case of Recusancy at the Kings Suit, is upon Indictment only. Co. 11. 62. Dr. Fosters Case.

The Kings-Bench, Common-Pleas, or Exchequer.] This Statute adds two other Courts where the King may sue for Recu­sancy, Two Courts added where the King may sue. Stat. 29 Eliz. 6 or for saying or hearing of Mass: For by 29 Eliz. cap. 6. the Queen was limited to the Kings-Bench, the Assizes or general Goal delivery, and that only by way of Indictment: but now by this Statute she might sue not only in those Courts by Indictment, but in the Kings-Bench, Common-Pleas or Exchequer, by Acti­on of Debt, Bill, Plaint or Information. Co. 11. 61. Dr. Fosters Case.

But whereas 'tis there said that this Statute of 35 takes not off the restriction of the Informer, Qui tam &c. by the Statute of 29 Eliz. cap. 6. to the Courts there mentioned (viz.) the Kings-Bench, Assizes, and general Goal delivery. This passage was oc­casioned by an opinion there held in the said Case of Dr. Foster, that the Informer Qui tam &c. was restrained by 29. to those Courts: The Informer not restrained by 29 Eliz. 6. But that opinion is not Law, nor was there ever any such restriction of the Informer; for the Statute of 29 Eliz. in­tends only Suits by Indictment, but touches not the popular Acti­on or Information. Vide Stat. 29 Eliz. cap. 6. Sect. 2.

As &c. any other Debt &c. should or may be recovered.] Be­fore this Statute the Queen had no way to recover of the Hus­band the intire forfeiture for the Recusancy of his Wife: For if the Wife had been Indicted of Recusancy at the Queens Suit, and convicted thereupon, this had not affected the Husband, who shall never be charged for the Act or default of his Wife, but [Page 123] where he may be made party to the Action or Suit, as in an Acti­on of Debt, Trespass, Action of the Case for scandalous words by the Wife, &c. but not upon an Indictment. And in this re­spect the Queen having before this Statute no remedy for recove­ry of the forfeiture but by Indictment, where the Husband could not be charged for his Wife, the Informer was then in better Case then the Queen: For he may charge the Husband and Wife both for the Recusancy of the Wife, and shall recover the forfeiture of him by force of the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 Vide that Stat. Sect. 9. But upon the Conviction of the Wife upon Indictment, the Queen must have staid till the death of the Husband before she could have levied the forfeiture; and if the Wife had died before her Husband, it was utterly lost in most Cases. Baron and Feme may be charged for Recusancy of the feme. But by this Act the Queen might, and the King may at this day charge the Husband and Wife joyntly by Action of Debt, Bill, Plaint or Information, for the Recusancy of the Wife, in such sort as he may be charged in any other Action at Common Law for the Debt or Trespass of his Wife, and the forfeiture for her Recusan­cy shall be recovered of him. And this was the principal end and scope of making this Branch of the Statute, and to this purpose were these words added here, 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. Co. 11. 61, 62. Dr. Fosters Case. Rolles 1. 233, 234. Roy versus Law & son feme. Savile 25. C. 59.

Provided always, Stat. Sect. 9. How the third part of the Penalties shall be imployed. That the third part of the penalties to be had or received by vertue of this Act shall be imployed and be­stowed to such good and charitable uses, and in such manner and form as is limited and appointed in the Statute made in the 28. year of her Majesties Reign touching Recusants.

The Statute here mentioned, Stat. 29 Eliz. 6 and called the Statute of 28 Eliz. is the same with 29 Eliz. cap. 6. before recited. It being in some Books called the Statute of 28, in others of 29, but (as it seems) more properly 29. For the Session wherein it was made was by Prorogation held the 15 of February 29. Eliz.

Provided also, That no Popish Recusant, Stat. Sect. 10. Popish Recu­sant or Feme Covert not to abjure. Popish recu­sant. or Feme Covert shall be compelled or bound to abjure by vertue of this Act.

No Popish Recusant.] Here Wingate, tit. Crowne n. 77. leads his Reader into a great mistake; for he mentions only a Feme Covert, leaving out the Popish Recusant.

Feme Covert not here ex­cepted in all Cases. Or Feme Covert.] In the late additions to Dalton, cap. 81. tit. Recusants, Sect. 7. 'tis said, that no married Woman is punish­able by this Statute, but are thereout excepted; whereas in truth they are no where excepted throughout this Statute, save only that they shall not be compelled or bound to abjure: For if a married Woman comes not to Church, but forbears for a month, and goes to Conventicles or any other Meetings or Assemblies, under colour or pretence of the exercise of Religion, contrary to Law, whether they be Popish or other, or perswades others so to do, or to forbear the Church, or to impugne the Kings Authority in Causes Ecclesiastical, she shall be imprisoned by force of this Act, until she conform and submit her self; but she can­not be further proceeded against, so as to require her to abjure. A married Woman with her Husband is likewise punishable by this Act for her Recusancy, by Action of Debt, &c. brought against her and her Husband at the Kings Suit; so that 'tis a great mistake to say she is not punishable by this Statute.

Stat. Sect. 11. The forfeiture of him that abjures or re­fuses to abjure. The Wise shall lose no Dower nor the heir any Land for these Offences. Provided also, That every person that shall abjure by force of this Act, or refuse to abjure, being thereunto required as afore­said, shall forfeit and lose to her Majesty all his goods and chat­tels forever; and shall further lose all his Lands, Tenements and Hereditaments, for and during the life only of such offen­der, and no longer: and that the Wife of any Offender, by force of this Act, shall not lose her dower: nor that any cor­ruption of Blood shall grow, or be by reason of any offence mentioned in this Act, but that the heir of every such Offender, by force of this Act, shall and may after the death of every Of­fender, have and enjoy the Lands, Tenements and Heredita­ments of such Offender, as if this Act had not beén made.

Every Abjuration, Abjuration. as well as that for Felony, is an Exile or Banishment, and if perpetual, and by Authority of Parliament, amounts to a civil death; and therefore the Wife of a Man ba­nished or abjured forever might sue or be sued without her Hus­band; Suit. as was ruled in the Case of the Lady Maltravers, 10 E. 3. and of the Lady Belknap, 1 H. 4. 1. 2 H. 4. 7. And if a man be perpetually banished by Authority of Parliament, unless is be for Felony, or by force of this Act, his Wife shall be endowed living the Husband: And if he had been perpetually banished or ab­jured for Felony, the Wife should have had her joynture Jointure. present­ly, although not her Dower, Dower. as was resolved in Weylands Case, 19 E. 1. and the reason is, because though the Husband be natu­rally living, yet he is civilly and in the Eye of the Law as a dead man. But yet these Cases are to be understood of a Banish­ment [Page 125] or abjuration forever, and not of a Relegation or Exile for a time: For in such Case neither could the Wife sue or be sued without her Husband, nor could she have her Dower or Joyn­ture during the natural life of her Husband: Co. 1. Inst. 132. 133. Co. 2. Inst. 47. Bulstrode 3. 188. Rolles 1. 400. C. 27. Wil­mores Case. Moore 851. C. 1159. Wilmots Case.

But if a man be abjured by force of this Act, What dower is here saved. the Wife shall not have her Dower or Joynture during the natural life of her Husband, although he be abjured forever; but she is in worse Case then the Wife of a person perpetually banished was at the Common Law: For this Act, by express words, gives his Lands, Tenements and Hereditaments to the Queen during his life, which is to be understood of his natural life: And the saving here of the Wives Dower, is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband, nor shall make void the former words of the Act, by which all his Lands are given to the Queen during his natural life; but is only the usual Provision made in Acts of Parliament which create any new Felony, for the saving of the Dower of the Wife after the death of the Husband: So that the meaning of this Branch is, that if the Husband refuse to abjure, or abjure and refuse to depart according to this Act, or return without lieence, yet the Wife shall be endowed, and the heir inherit his Lands af­ter he is naturally dead.

And this Act to continue no longer than to the end of the next Session of Parliament. Stat. Sect. 12.

Note, this Act being at first but temporary, This Act at first but tem­porary. was afterwards dis­continued, Hutton 61. 62. but is since revived by the Statute of 3 Car. 1. c. 4. and is in full force at this day.

And in such Case it hath been questioned if a Statute be dis­continued, and afterwards revived, how an Indictment thereup­on shall conclude, whether contra formam Statuti or Statutorum: Where if a Statute be dis­continued and revived, it shall be contra for­mam Statuti, and where contra formam Statutorum. For if a Statute be temporary, and afterwards continued for a longer time or made perpetual, and never discontinued, there without doubt it shall be contra formam Statuti; but it hath been held by some that where it was once discontinued and then revi­ved, there it is as if there were two several and distinct Statutes, and the Indictment shall conclude contra formam Statutorum. Palmers Case. 9 Eliz. But others have held the contrary, and that there is not any difference in the Case of a Statute at first temporary, and afterwards before any discontinuance continued for a longer time or made perpetual, and a Statute discontinued and then revived, but that it shall in both Cases be held but as [Page 126] one Statute, and the conclusion shall be contra formam Statuti and not Statutorum, unless where the Act of Reviver makes any addition to the former Act, or increaseth the penalty or forfei­ture: For then there is no doubt but they are two distinct Acts of Parliament. And according to this later opinion hath the practice been in Informations upon the Statute of 5 Eliz. cap. 9. of Per­jury, Stat. 5 Eliz. 9 which determined 14 Eliz. and was revived 29 Eliz. And yet all Informations thereupon conclude Contra formam Statuti: And so as it seems ought all Indictments upon this Statute of 35. notwithstanding its discontinuance and reviver. Vide Owen 135. Wests Case.

FOr the better discovering and avoiding of such Traite­rous and most dangerous Conspiracies and Attempts as are daily devised and practiced against our most gra­cious Soveraign Lady the Queéns Majesty, Stat. Sect. 1. and the happy estate of this Common-weal, by sundry wicked and sedi­tious persons, who terming themselves Catholicks, and being (indéed) spies and intelligencers, not only for her Majesties forreign Enemies, but also for Rebellious and Traiterous Sub­jects born within her Highness Realms and Dominions, and hiding their most detestable and divellish purposes under a false pretext of Religion and Conscience, do secretly wander and shift from place to place within this Realm to corrupt and seduce her Majesties Subjects, and to stir them to Sedition and Re­bellion.

Be it Ordained and Enacted by our Soveraign Lady the Quéens Majesty, and the Lords Spiritual and Temporal, A Popish Re­cusant convi­cted, and the Commons in this present Parliament assembled, and by the Authority of the same, That every person above the age of six­téen years, born within any of the Quéens Majesties Realms and Dominions, or made Denizen, being a Popish Recusant, and before the end of this Session of Parliament convicted for not repairing to some Church, Chappel or usual place of Com­mon Prayer, to hear Divine Service there, but forbearing the same contrary to the tenor of the Laws and Statutes hereto­fore made and provided in that behalf, and having any certain place of dwelling and abode within this Realm, shall within forty days next after the end of this Session of Parliament (if they be within this Realm and not restrained or stayed, either by Imprisonment, or by her Majesties Commandment, or by order or direction of some six or more of the Privy Council, or by such sickness and infirmity of body as they shall not be able to Travel without imminent danger of Life, and in such Cases of [Page 128] absence out of the Realm, restraint or stay, then within 20 days next after they shall return into the Realm and be enlarged of such Imprisonment or Restraint, and shall be able to Travel) repair to their place of dwelling, where they usually heretofore made their common abode, and shall not at any time after pass or remove above five miles from thence.

Stat. Sect. 2. Or to be con­victed, shall repair to his usual dwelling and not re­move above five miles. And also, That every person being above the age of sixtéen years, born within any her Majesties Realms or Dominions, or made Denizen, and having or which hereafter shall have any certain place of dwelling and abode within this Realm, which be­ing then a Popish Recusant, shall at any time hereafter be law­fully convicted for not repairing to some Church, Chappel or usu­al place of Common Prayer to hear Divine Service there, but forbearing the same contrary to the said Laws and Statutes, and being within this Realm at the time that they shall be convicted, shall within forty days next after the same Conviction, (if they be not restrained or stayed by Imprisonment or otherwise as is aforesaid, and in such Cases of restraint and stay, then within twenty days next after they shall be enlarged of such Imprison­ment or Restraint, and shall be able to Travel) repair to their place of usual dwelling and abode, and shall not at any time after pass or remove above five miles from thence, The punish­ment of an Offender. upon pain that every person and persons that shall offend against the tenor and intent of this Act in any thing before mentioned, shall lose and forfeit all his and their Goods and Chattels, and shall also lose and forfeit to the Quéens Majesty all the Lands, Te­nements and Hereditaments, and all the Rents and Annuities of every such person so doing or offending during the Life of the same Offender.

What Popish Recusants are not within this Act, Born within any her Majesties Realms or Dominions, or made Denizen.] So that all Popish Recusants are not within this Branch, as Wingate tit. Crown n. 78. mistakes: For it ex­tends not to an Alien, who is born out of the Kings Leigeance, unless he be made Denizen.

And which are.In the late Additions to Dalton cap. 81. tit. Recusants Sect. 14. this Clause is restrained to such as are born in England, but it is clear that it extends to all the Kings natural Subjects, if they live in England, although they were born in Ireland, or any other of the late Queens Dominions besides England.

Denizen, who.By Denizen, is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance, whether he be made Denizen by the Kings Letters Patents, or be naturalized by Act of Parliament: For Naturalization includes all the privi­ledges [Page 129] of a Denizen, and something more; and every one who is naturalized is thereby made a Denizen, although he that is made a Denizen by the Kings Letters Patents is not thereby na­turalized.

Which being then a Popish Recusant.] This is the first pe­nal Statute which was made against Popish Recusants, by that name, and as distinguished from other Recusants.

In the late Additions to Dalton cap. 81. tit. Recusants, Sect. 7. What is Recu­sancy. it's said, That the matter of Recusancy stands in two particulars; First, absenting from the Church; Secondly, refusing the Oaths prescribed by 1 Eliz. 1. and 3 Jac. 4. Stat. 1 Eliz 1. 3 Jac. 4. But this description of Recusancy is either too narrow or too large: For if the word, Recusancy, be taken in a large sense, then the refusing to receive the Sacrament contrary to the Statute of 3 Jac. 4. by him that conforms and comes to Church may be as fitly called a point of Recusancy as the refusing the Oaths of Supremacy or Allegiance. But if Recusancy be taken in a strict and proper sense, then it extends only to the point of not coming to Church, and not to refusing the Oaths of Supremacy or Allegiance. And in this last sense are all the Statutes to be understood which inflict any pe­nalty or disability upon a Recusant or a Popish Recusant, unless where the not receiving of the Sacrament is particularly menti­oned. And this appears by the explanation which the Statutes make every where of Conformity, (the opposite to Recusancy) viz. repairing to Church; What is Con­formity. and more particularly the said Statute of 3 Jac. 4. which saith, That the Popish Recusant convicted, which conforms himself and repairs to the Church shall receive the Sacrament: which words (and repairs to the Church) are explanatory of the former, (viz.) which conforms himself: so that this Conformity is not intended of taking the Oaths of Su­premacy or Allegiance, but consists only in repairing to Church, and consequently Recusancy (its opposite) properly so called, consists in absenting from Church: And this appears further by that Branch of the said Statute of 3 Jac. cap. 4. which relates to the Oath of Allegiance, where 'tis said, That the Oath shall be re­quired of him who confesseth or denieth not himself to be a Re­cusant, or that he hath not received the Sacrament, where (Re­cusant) cannot be understood in any other sense, then of him who forbears to come to Church.

An Information or Indictment against a Popish Recusant Information or Indictment a­gainst a Popish Recusant. for Recusancy, is of the same form with that against any other Re­cusant, (viz.) That he came not to his Parish Church, or any other Church, Chappel or usual place of Common Prayer, but forbore the same by the space of &c. Vide Co. lib. intr. 569. Co. 11. 56. Dr. Fosters Case; so that upon his Conviction for Re­cusancy [Page 130] it doth not appear of Record whether the Offender be a Popish or other Recusant: And therefore where this, or any of the subsequent Statutes commands or prohibits a Popish Recusant convict to do a thing, and a person convicted of Recusancy who is a Popish Recusant be Indicted thereupon, his Conviction must be set forth in the Indictment with this or the like confusion: Per quod praedict. A.B. devenit Papalis Recusans convictus: so it is, if a Popish Recusant Convict be incapacitated to take or to give or di­spose of any thing, and another person be substituted by the Statute in his stead, as in the Case of a Presentation by force of the Sta­tute of 3 Jac. cap. 5. Stat. 3 Jac. 5. in a Quare Impedit Quare Impedit. brought by the Chan­cellor and Schollars of the University, His Conviction must be be set forth, with an averment that he is Papalis Recusans. Vide Co. 10. 54. And if a Popish Recusant, whether convicted or not convicted, be so commanded, prohibited or incapacitated; in an Indictment or Information upon the Statute, it must be averred that he is Papalis Recusans.

A person who hath a certain place of abode is convicted for not coming to Church, What Popish Recusants are not within this Act. and afterwards becomes a Papist, being none before: It seems that he is not restrained by this Act with­in the compass of five miles; because he was not a Popish Recu­sant at the time of his Conviction: For the Adverb (then) cannot have relation to the foregoing words, (viz.) having any certain place of dwelling and abode within this Realm; For then the sense would be, That if he be a Popish Recusant at any time when he hath a certain place of dwelling and abode within this Realm, and he were formerly convicted for not coming to Church, he shall repair to his dwelling within forty days after his Conviction, which may be a meer impossibility, For perhaps the forty days after his Conviction expired before he became a Popish Recusant; and therefore the word (then) must of necessity re­late to the subsequent words touching his Conviction; And, being then a Popish Recusant, is as much as to say, being a Popish Re­cusant at the time of his Conviction: so that if he be convicted as a Recusant, yet if he be not then a Popish Recusant, he is not restrained by this Act, if he be within this branch of the Statute, (viz.) one who hath a certain place of dwelling and abode within this Realm.

Above five miles.] When an Act of Parliament speaks of miles, Miles. they are not to be taken as a Bird or Arrow may fly, but according to the nearest and most usual way. Cro. Hill. 33 Eliz. 212. Minge versus Earle.

The Miles here I take to be intended of English miles. An English mile contains eight Furlongs, each Furlong forty Perches or Poles, and every Perch or Pole sixteen foot and a half. Co. 4. Inst. 274. Dalton. V. cap. 65. tit. Weights and Measures; and so much was a mile explained to be by the Statute of 35 Eliz. cap. 6. Stat. 35 Eliz. 6. by the same Parliament which made this Act against Popish Re­cusants: Rastall. London 252. where 'tis said eight Furlongs to a mile, and not five Furlongs, as 'tis mistaken in Poulton.

And yet in that Case of Minge and Earle, the Defendant in maintenance that locus in quo, &c. was four miles from Rye ac­cording to the Statute of 23 Eliz. cap. 5. of Woods, pleaded, 23 Eliz. 5. that it was four thousand paces from Rye, reckoning five Foot to every Pace, where is meant the Italian mile, viz. 5000 Foot, and not the English, which is 5280 Foot; and no exception was taken to it by the Plaintiff, or the Court. Vide Dalton, V. supra.

And be it also Enacted by the Authority aforesaid, Stat. Sect. 4. What a Popish Recusant shall do having no place of abode That every person above the age of sixteén years, born within any her Ma­jesties Realms or Dominions, not having any certain place of dwelling and abode within this Realm, and being a Popish Re­cusant, not usually repairing to some Church, Chappel or usual place of Common Prayer, but forbearing the same contrary to the same Laws and Statutes in that behalf made, shall with­in forty days next after the end of this Session of Parliament, (if they be then within this Realm, and not imprisoned, re­strained or stayed as aforesaid, and in such case of absence out of the Realm, imprisonment, restraint or stay, then within twenty days next after they shall return into the Realm, and be enlarged of such imprisonment or restraint, and shall be able to Travel) repair to the place where such person was born, or where the Father or Mother of such person shall then be dwel­ling; and shall not at any time after remove or pass above five miles from thence, The punish­ment of the Offender. upon pain that every person and persons which shall offend against the tenor and intent of this Act in any thing before-mentioned, shall lose and forfeit all his and their Goods and Chattels, and shall also forfeit to the Quéens Ma­jesty all the Lands, Tenements and Hereditaments, and all the Rents and Annuities of every such person so doing or offen­ding during the life of the same person.

By comparing together this and the precedent Clause, A Popish Re­cusant not con­victed may be within this Act it will appear plainly that the Statute puts a great difference between the Popish Recusant who hath a certain place of abode in this Realm, and him that hath none: For to restrain a Popish Recu­sant, [Page 132] who hath a certain place of abode within this Realm, from travelling above five miles, there are three Qualifications requi­red by the Act. 1. That he be convicted of Recusancy. 2. That he be a Popish Recusant at the time of his Conviction. 3. That at the time of such Conviction he be within this Realm; And if either of these fail, he is not restrained by this Act. But if a Popish Recusant have no certain place of abode within this Realm, but is ubiquitary, there no such Qualifications are re­quired; but if he be a Papist, and doth not usually repair to Church, but forbears so to do, he ought to repair to the place where he was born, or where his Father or Mother dwelt, and not to remove above five miles from thence; and that whether he be convicted or not: For the Statute, when it comes to speak of him who hath no certain place of abode, leaves out all the aforesaid Qualifications required in him who hath a certain place of abode; and it clearly distinguishes between him who is con­victed for not repairing to some Church, &c. (which is required in those whose abode is certain) and him who doth not usually repair to some Church, &c. which in those whose abode is un­certain is sufficient to bring them within the danger and penalty of this Law, if they repair not to the place appointed them by the Act, or remove above five miles from thence: And 'tis ob­servable that in this Clause which speaks of the Popish Recusant, who hath no certain place of abode, there is no mention made of Forty days to be allowed him after his Conviction, to repair to the place appointed him, the reason whereof is because it takes in the whole kind of such Popish Recusants, as well the not con­victed, as the convicted, and makes no distinction between them, if they have no certain place of abode, Et ubi lex non distinguit, nec nos distinguere debemus.

Nor was it without great reason, that ubiquitary Popish Re­cusants should be confined, whether they were convicted or not convicted: As for the other who have a certain place of abode, it is to be presumed, that the most considerable of them would be prosecuted and convicted for their Recusancy in the respective places where they dwell, and de mini mis non curat lex may in this Case be applied to persons, as well as in other Cases to things: But as for him who is fixed to no certain place, as he is the more dangerous of the two, so the more unlikely to be prosecuted to a Conviction, being here one day and gone the next, and there­fore the less taken notice of: And had the Statute taken in only such as are convicted, it would have been eluded, and rendred ineffectual for want of a Conviction of the greater part of such ubiquitary Recusants.

The want of due consideration of this Statute in each of these parts of it, hath occasioned some mistakes in those who have handled it: And Wingate tit. Crown numb. 78. restrains both parts of it, as well relating to those that have no certain place of abode, as those whose place of abode is certain, to Recusants convicted, and makes no mention that this later sort must be in England at the time of their Conviction. And in the late Ad­ditions to Dalton cap. 81. tit. Recusants, Sect. 14. 'tis 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, [Page 134] 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 Sess [...]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 [Page 135] 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 'tis 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 'tis 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 [Page 137] 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 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 [Page 139] 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 'tis 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 [Page 140] 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 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, [Page 141] 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 [Page 142] 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 or covin, nor for convenient time taken for their return back again upon the same.

This extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation, Proclamation. and is not restrained to a Proclamation upon an Indictment for Recu­sancy. And therefore if a Popish Recusant confined by this Act had been proclaimed upon the Statute of Marlebridge in a Plea de Custodia as a Deforceor, he might lawfully have gone out of the compass of five miles. The like he may do at this day upon [Page 143] any other Proclamation commanding him to render his body to the Sheriff.

Vide Stat. 3 Jac. cap. 5. Sect. 7.

And furthermore be it Enacted by the Authority of this pre­sent Parliament, Stat. Sect 12. An Offender upon open submission shall be dis­charged. That if any person or persons that shall at any time hereafter offend against this Act, shall before he or they shall be thereof convicted, come 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 publick and open Submission and Declaration of his and their Conformity to her Majesties Laws and Statutes as hereafter in this Act is declared and appointed, That then the same Offender shall thereupon be clearly discharged of and from all and every pains and forfeitures inflicted or imposed by this Act for any of the said Offences in this Act con­tained.

Before he or they shall be thereof convicted. Where sub­mission will save abjura­tion. A Popish Re­cusant confined by this Act, whose Estate is under value, is ap­prehended for offending against this Act, and before the expira­tion of three months next after his apprehension is convicted of such Offence; and then before the said three months expire con­forms and makes such Submission and Declaration as is here and in the former branch appointed: In this Case, although he comes too late after Conviction to save the forfeiture of his Lands and Goods, yet he shall not be compelled to abjure: For the affir­mative words here, that upon such Conformity, Submission and Declaration before Conviction he shall be discharged of all pains and forfeitures, do not carry in them the force of a negative, (viz.) That if it be after Conviction, he shall not be discharged of any of them. And by the former branch of the Statute he is not compellable to abjure, if at any time within three months next after his apprehension he conforms, confesses and submits as is there appointed.

To some Parish Church. It must be in some Parish Church.] It seems clear that no Sub­mission, Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any pain or forfeiture thereby inflicted, unless it be performed in some Parish Church: For there is a great difference between the penning of this Statute, and that branch of 35 Eliz. cap. 1. Stat. 35 Eliz 1. where 'tis said, That the Offender shall be committed to Pri­son until he come to some Church, Chappel or usual place of Common Prayer, and hear Divine Service, and make such open [Page 144] Submission and Declaration of his Conformity as in the Act is appointed: For there, there is an express designation of the place where such Submission and Declaration shall be, (viz.) in any Church, Chappel or usual place of Common Prayer whi­ther the Offender comes, and this shall free him from his Impri­sonment. Vide that Statute Sect. 4. supra. But here where 'tis said in the former part of this Act, That he shall abjure unless he comes usually to Church, and make such Confession and Sub­mission as is therein afterwards appointed and expressed, His coming usually to Church cannot be applied to his Confession and Submission, for that is to be made but once and not usu­ally, and therefore there being there no place appointed where this Confession and Submission shall be made, we must necessa­rily have recourse to this later branch of the Act where a place is appointed, (viz.) some Parish Church; so that the coming usually to Church, without this formal Submission and Con­fession, or Declaration in some Parish Church, frees not the Of­fender here in any Case from abjuration; although the coming to any Church, Chappel or usual place of Common Prayer and hearing Divine Service, and making open Submission and De­claration there, shall free an Offender within the Statute of 35 Eliz. cap. 1. from Imprisonment.

Parish Church.What is a Parish Church, Vide Stat. 35 Eliz. cap. 1. Sect. 4. supra.

Two several Submissions. Submission.] If a Popish Recusant Indicted upon this Sta­tute makes his Submission, and brings with him into the Court of Kings Bench a Testimonial thereof, its the course of that Court to cause him there to make his Submission again upon his knees, which the Clerk of the Crown reads to him; And so was it done in the Case of one Thoroughgood Pasch. 2. Car. 1. But Justice Jones said there was no Statute to compell him to this second Submission; And Thoroughgood complained that he was not therein dealt with according to Law. Latch. 16.

Stat. Sect. 13. The same Submission to be as hereafter followeth, that is to say,

The form of the Submissi­on.I A. B. do humbly confess and acknowledge that I have grie­vously offended God, in contemning her Majesties godly and lawful Government and Authority, by absenting my self from Church, and from hearing Divine Service, contrary to the Godly Laws and Statutes of this Realm, and I am heartily sorry for the same, and do acknowledge and testifie in my Conscience, that the Bishop or See of Rome hath not, nor ought to have any Power or Authority over her Majesty, or within any her Majesties Realms or Dominions: And I do promise and protest without any [Page 145] dissimulation, or any colour or means of any Dispensation, That from henceforth I will, from time to time, obey and perform her Majesties Laws and Statutes in repairing to the Church, and hear­ing Divine Service, and do my uttermost endeavour to maintain and defend the same.

Over her Majesty or within any her Majesties Realms or Dominions. What Autho­rity of the Pope is to be renounced.] And not over her Majesty within any her Do­minions, as Wingate tit. Crown numb. 85. grosly misrecites this Submission: For that denies only the Popes or See of Romes Authority over her Majesty, but not any other Authority which they might claim over her Subjects: And 'tis clear by the disjunctive, or, (which Wingate omits) that both these Authorities are intended to be denied by this Submission.

Or any colour or means of any Dispensation. Dispensation.] These words, which are a very material part of the Submission, are likewise omitted by Wingate.

Her Majesties Laws and Statutes. The Queens Laws. Stat. 27 Eliz. 2.] What is meant by her Majesties Laws, Vide Stat. 27 Eliz. cap. 2. Sect. 7.

And that every Minister or Curate of every Parish where such Submission and Declaration of Conformity shall hereafter be so made by any such Offender as aforesaid, Stat. Sect. 14. The Minister shall enter the Submission in­to a Book. shall presently enter the same into a Book to be kept in every Parish for that pur­pose, and within ten days then next following, shall certifie the same in writing to the Bishop of the same Diocess.

Provided nevertheless, Stat. Sect. 15. A Recusant submitting and falling into Relapse. That if any such Offender after such Submission made as is aforesaid, shall afterward fall into Relapse, or eftsoons become a Recusant in not repairing to Church to hear Divine Service, but shall forbear the same contrary to the Laws and Statutes in that behalf made and provided: That then every such Offender shall lose all such benefit as he or she might otherwise by virtue of this Act, have or enjoy by reason of their said Submission; And shall thereupon stand and remain in such plight, condition and de­grée, to all intents, as though such Submission had never beén made.

Such Relapse, with the Indictment thereof, Relapse, where to be certified is to be certi­fied into the Court of Exchequer, as was done by the Justices of the Kings Bench in the Case of Francis Holt. Pasch. 9 Jac. Bulstrode 1. 133.

Stat. Sect. 16. Married Wo­men bound by this Act, saving in the Case of Abjuration. Provided always, and be it Enacted by the Authority afore­said, That all and every Woman married, or hereafter to be married, shall be bound by all and every Article, branch and mat­ter contained in this Statute, other then the Branch and Article of Abjuration before mentioned; And that no such Woman married, or to be married, during marriage shall be in any wise forced or compelled to abjure, or be abjured by virtue of this Act: Any thing therein contained to the contrary thereof not­withstanding.

FOr the better and more due execution of the Statutes heretofore made aswell against Iesuits, Stat. Sect. 1. All Statutes made against Jesuits, Priests and Recusants shall be put in Execution. Seminary Priests, and other such like Priests, as also against all manner of Recusants: Be it Ordained and Enacted by Authority of this present Parliament, That all and every the Statutes heretofore made in the Reign of the late Quéen, of famous memory, Elizabeth, as well against Iesuits, Seminary Priests, and other Priests, Deacons, Religious and Ecclesi­astical persons whatsoever, made, ordained or professed, or to be made, ordained or professed, by any Authority or Iurisdiction derived, challenged or pretended from the Sée of Rome, as those which do in any wise concern the withdrawing of the Kings Subjects from their due obedience, and the Religion now pro­fessed, and the taking of the Oath of obedience unto the Kings Majesty, his Heirs and Successors, together with all those made in the said late Quéens time against any manner of Re­cusants, shall be put in due and exact execution.

Oath of Obedience.] By the Oath of Obedience, Oath of Obe­dience. Stat. 1 Eliz. 1. is here meant the Oath of Supremacy in the Stat. of 1 Eliz. cap. 1. which see there Sect. 7. and by that name it is here called after­wards Sect. 3.

Provided nevertheless, Stat. Sect. 2. A Recusant conforming himself shall be discharged. and be it Enacted by the Authority of this present Parliament, That if any that is or shall be a Re­cusant, shall submit or reform him or her self, and become obedient to the Laws and Ordinances of the Church of Eng­land, and repair to the Church and continue there during the time of the Divine Service and Sermons, according to the true meaning of the Statutes in that behalf, in the said late Quéens time made and provided: That then every such per­son, [Page 148] for and during such time as he or she shall so continue in such conformity and obedience, shall from thenceforth be freed and discharged of and from any the penalties and losses which the same person might otherwise sustain and bear, in respect or by reason of such persons Recusancy.

According to the true meaning of the Statutes in that be­half.] It hath been doubted whether these words do refer only to the manner of the Recusants conformity, or to the time like­wise when it is to be done, as well as to the manner: For if they refer to the time, then the Recusant is still bound notwithstand­ing this Statute to conform before Judgment, according to the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 or his conformity afterwards shall not discharge him of the penalty: But the better opinion is, that by these words (according to the true meaning of the Statutes) is to be intended only, that the Recusant must conform in such manner as is there appointed; but as to the time, the general words here have inlarged the time limited by 23 Eliz. If the Recu­sant conforms after Judg­ment, 'tis suf­ficient. For this Statute is made in further favor of the Recusant. So that now, if he conforms after Judgment, 'tis time enough, and he shall be discharged of all penalties in respect of his Recusancy: And if an Information tam pro Domino Rege quam pro seipso be brought upon the Statute of 23 Eliz. against the Recusant, and after Judgment had against him thereupon, he conforms, he shall be discharged of the Judgment; but first his Conformity must ap­pear of Record, otherwise the Court cannot take notice of it; and, as for that, his remedies against the King and the Informer must be several: His remedies against the King and in­former: Audita Quaerela Plea. for against the Informer he must bring his Audita Quaerela, and against the King he must plead his conformity, which he may do in this Case after Judgment, for that no Audita Quae­rela lies against the King, 11 H. 7. 10. and if he should not be admitted to plead, he would be without any legal Remedy to discharge himself of the forfeiture and Judgment, as to the Kings part, whose execution will not be hindred by the Audita Quae­rela against the Informer. But if the Defendant neglect to put in his Plea, and Execution issues for the King, and he be taken in Execution, he comes too late to plead his Conformity, and hath then no other way left to relieve himself as to the Kings part, but by his Petition Petition. to the King to pardon the Debt. Bulstrode 2. 324, 325. Dr. Fosters Case. Rolles 1. 95. C. 41. the same Case. Vide Savile 23. C. 56. Tirringhams Case.

Stat. Sect. 3. And if any Recusant shall hereafter die, his heir being no Recusant, that in every such Case every such heir shall be freed and discharged of all and singular the penalties, charges and in­cumbrances [Page 149] happening upon him or her, In what Cases a Recusants heir shall be charged, in what not. in respect or by reason of his or her Ancestors Recusancy. And if, at the decease of any such Recusant, his heir shall happen to be a Recusant, and af­ter shall become conformable and obedient to the Laws and Or­dinances of the Church of England, and repair to the Church and continue there during the time of the Divine Service and Sermons, according to the intent and true meaning of the said Statutes and Ordinances in that behalf made as is aforesaid, and also shall take the Oath of Supremacy, in such sort as that Oath is expressed in one Act of Parliament made in the first year of the Reign of our late Sovereign Lady Quéen Elizabeth, before the Archbishop or Bishop of the Diocess; that in every such Case, every such heir shall be freed and discharged of all and singular the penalties, charges and incumbrances, happening upon him or her in respect or by reason of any of his or her An­cestors Recusancy.

Provided always, and be it Enacted by Authority of this pre­sent Parliament, That if the heir of any Recusant shall hap­pen to be within the age of sixtéen years at the time of the de­cease of his or her Ancestor, and shall after his or her said age of sixteen years become or be a Recusant; that in every such Case any such heir shall not be freéd or discharged of all or any of the penalties, charges and incumbrances, happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy, until he or she shall submit or reform him or her self, and become obedient to the Laws and Ordinances of the Church of England, and repair to the Church, and continue there during the time of the Divine Service and Sermons, according to the intent and true meaning of the said Statutes and Ordinances in that behalf as is aforesaid, and shall take the said Oath of Supremacy, in manner and form afore expressed; and yet nevertheless from and after such submission and Oath had and taken, every such heir shall be fréed and discharged of all and singular the penalties, charges and incumbrances, hap­pening upon him or her in respect or by reason of any of his or her Ancestors Recusancy.

If any Recusant shall hereafter die.] That is, Convicted Recusant. a Recusant either Convicted upon Proclamation and Default, or Convicted by Verdict, Confession, &c. and adjudged: For, in both those cases, if the Recusant die, the discharge of the heir depends up­on his Conformity.

Of all and singular the penalties, Judgment against Tenant in Tail. charges and incumbran­ces.] If Judgment be had at the Kings Suit against a Recu­sant Tenant in Tail for Recusancy, this is a charge and incum­brance [Page 150] within this Statute, of which the heir in Tail shall not be discharged, unless he conforms, but must satisfie all the ar­rears incurred in the life time of his Ancestor: For, it being a Debt to the King upon a Judgment, the intailed Lands are liable thereto by the Statute of 33 H. 8. cap. 39. Stat. 33 H. 8. 39

But these two Clauses discharge the arrears of the Twenty pounds per month incurred in the Recusants life time, upon the conformity of the heir, in such Cases only where the two parts of the Recusants Lands were not seized before his death: Seisure in the Recusants life time. for if they are seized in his life time, and continue so till his death, nei­ther his Fee-simple Lands, nor his Intailed Lands (if a Judgment were had against him for his Recusancy at the Kings Suit) shall be discharged upon the heirs conformity, without payment of the arrears; for which Vide postea, Sect. 4.

Stat. Sect. 4. The two parts of a Recusants Lands shall go towards satis­faction of the Twenty pounds per month. And be it further Enacted by Authority of this present Parlia­ment, That where any seizure shall be had of the two parts of any Lands, Tenements, Hereditaments, Leases or Farmes, for the not payment of the Twenty pounds due and payable for each month, according to the Statute in that Case lately made and provided: That in every such Case, every such two parts shall, according to the extent thereof, go towards the satisfacti­on and payment of the Twenty pounds due and payable for each month and unpaid by any such Recusant; and that the third part thereof shall not be extended or seized by the Kings Majesty, his Heirs or Successors for not-payment of the said Twenty pounds payable for each month, forfeited or lost by any such Recusant. And after his death shall re­main in the Kings hands until the ar­rears be satis­fied. And where any such seizure shall be had of the two parts of the Lands, Tenements, Hereditaments, Leases or Farmes of any such Recusant as is aforesaid, and such Recusant shall die (the debt or duty by reason of his Recusancy not paid, satisfied or discharged) that in every such Case the same two parts shall continue in his Majesties possession, until the residue or remainder of the said debt or duty be thereby or other­wise paid, satisfied or discharged: And that his Majesty, his Heirs or Successors, shall not seize or extend any third part de­scending to any such heirs, or any part thereof, either by reason of the Recusancy of his or her Ancestors, or the Recusancy of any such heir.

What seizure is here meant. Where any seizure shall be had.] That is, a seizure upon ei­ther a Judgment against the Recusant, by Indictment on the Sta­tute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 29 Eliz 6 or on Indictment and Conviction by Pro­clamation and default of appearance according to the Statute of 29 Eliz. cap. 6. For the seizure of two parts of the Recusants [Page 151] Lands was given the King by 29. upon default of payment of the Twenty pounds per month in either of those Cases, as hath been said, for which see that Statute, Sect. 4.

Go towards the satisfaction and payment of the Twenty pounds. Stat. 29 Eliz 6 altered.] Hereby a principal branch of the Statute of 29 Eliz. cap. 6. is altered: For whereas by 29. the Queen might for non-payment of the forfeiture, have seized two parts of a con­victed Recusants Lands nomine poenae, and as a gage or penalty un­til the Twenty pounds per month had been paid, and yet the pro­fits should not have gone towards the satisfaction of the said Twenty pounds per month: This Statute was made for the ease and benefit of the Recusant in that point; The two parts satisfactory of the penalty. so that now if two parts of his Lands be seized for default of payment of the for­feiture, the profits received to the Kings use, shall go towards satisfaction thereof; and when the forfeiture is paid out of the profits, the Recusant shall have his Land again, unless in such Case where the King by force of the Statute of 3 Jac. cap. 4. Stat. 3 Jac. 4. makes his Election, and seizes two parts in lieu of the Twenty pounds per month.

And therefore the Resolution or Judgment said to be given in the Case of one Gray, Anno 1. or 2. Jac. and cited in Beckets Case, 8 Jac. Lane 93. and by Sergeant Bridgman in his Argu­ment of Parker and Webbs Case. 16 Jac. Rolles 2. 25. and ap­plied thereunto (viz.) That if a Recusant convicted fails of the payment of the Twenty pounds per month, the King shall have his Lands as a gage or penalty, and the profits shall not go towards satisfaction thereof: However it were true as the Law stood upon 29 Eliz. and before the making of this Act of 1 Jac. yet 'tis not Law at this day, nor could be applicable to either of those Cases of Becket or Parker and Webb, which came to be debated long after this Act was made, and the Law of 29 Eliz. altered in that point. Vide Stat. 29 Eliz. cap. 6. Sect. 7.

Where any such seizure shall be had, &c.] This Rela­tive (such) takes in both the seizures beforementioned (viz.) a seizure upon Indictment and Judgment thereupon by force of the Statute of 23 Eliz. and a seizure upon Conviction on Pro­clamation and default according to the Statute of 29 Eliz. And, What seizure is here meant. Stat. 23 Eliz 1 29 Eliz. [...] as in both those Cases the Recusant who fails of the payment of the Twenty pounds per month, shall have the benefit to discount the profits received by the King, so the King shall in the like Cases of seizure retain the two parts in his hands after the Recusants death, until the residue of the Debt or Duty due and payable to the King be satisfied.

Where this extends not to Intailed Lands.Two parts of the Lands, &c. of any such Recusant.] This Clause extends not to Intailed Lands, unless where there is a Judgment for the King against the Ancestor for his Re­cusancy: And therefore if the Recusant, convicted upon Pro­clamation and default, be Tenant in Tail, and two parts of his Lands be seized in his Life time for non-payment of the Twenty pounds per month, and he die, the arrears not being satisfied to the King, yet the heir in Tail shall have the Land out of the Kings hands without payment of the arrears: For that such Conviction is in the nature of a Verdict only, Conviction upon Procla­mation no Judgment. and not of a Judgment, as was held in Doctor Fosters Case, Rolles 1.94. C. 41. And where a Statute gives to the King a seizure or forfeiture of Lands, it shall not be intended of Lands in Tail, unless it be expresly so appointed by the Statute, or by force of some other Statute cooperating therewith: In which Case the Intailed Lands may be charged by general words in the Statute which gives the forteiture or seizure. An instance whereof we have in the Case of a Recusant Tenant in Tail, Indicted, Stat. 23 Eliz. 1 Convicted and Adjudged upon 23 Eliz. 1. for his Intailed Lands shall remain after his death in the Kings pos­session until the arrears be satisfied, 29 Eliz. 6 33 H. 8. 39 and that by force of 29 Eliz. c. 6. and this Statute cooperating with the Statute of 33 H. 8. cap. 39. which charges the Lands of the heir in Tail with debts due to the King upon a Judgment had against the Ancestor: Praemunire. Stat. 16 R. 2. 5 But otherwise 'tis in the Case of a Praemunire upon the Statute of 16 R. 2. cap. 5. which saith the Lands and Te­nements of the Offender shall be forfeit to the King; for there his Intailed Lands shall be forfeit during his life only: And the reason is, for that general words in an Act of Par­liament, unless aided by some other Act of Parliament, shall never take away the force of the Statute, de donis conditio­nalibus. Co. 1. Inst. 130. 391. Co. 11.63. Godbolt 308. Lord Sheffeild and Ratcliffe: Treason. Stat. 26 H. 8. 13 5 E. 6. 11 And therefore in the Statutes of 26 H. 8. cap. 13. and 5 E. 6. cap. 11. which make Intailed Lands forfeitable for Treason, the word (inheritance) was added (any Estate of Inheritance) which expresly denotes Lands in Fee Tail as well as Feesimple: Now there being nei­ther in this Act or that of 29 Eliz. any express appoint­ment, that the two parts of all Lands seized in the Recusants life time, wherein he had any Estate of Inheritance, shall af­ter his death continue in the Kings possession, nor no other Statute which charges the heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and De­fault, the general words here (that his Lands, Tenements, &c. shall continue in the Kings possession] shall not inforce a [Page 153] construction in prejudice of the Heir in Tail, who claims by the Statute de donis conditionalibus, but (where there is no Judg­ment) the Recusants Fee simple Lands shall after his death satis­fie the intent of these Statutes.

And so was the Law, in reference to intailed Lands, up­on the Statute of 29 Eliz. cap. 6. which speaks of the full satisfaction of Arrearages in Case of the death of the Recu­sant: Arrears where to be paid by the Heir in Tail, where not And the Arrears were to have been paid by the Heir in Tail only in such Case where there was a Judgment ob­tained by the King against the Ancestor for his Recusancy, but not where the Ancestor Tenant in Tail was convicted only upon Proclamation and default; for in this last Case, the Heir in Tail was not bound by the Statute of 33 H. 8. cap. 39. because 'tis not a Debt by Judgment as that Statute requires. Moore 523. C. 691.

And thus the Opinion of the two Chief Justices, Trin. 43 Eliz. is to be understood: for they held, That if intailed Lands had been seized for non-payment of the 20 l. per month, and the Tenant in Tail had died, the issue in Tail should not have had the Land out of the Queens hands before the Debt were satisfied, but should have been charged with the said Debt. Cro. Eliz. 846. At the end of which Case is added a Dubitatur; But yet the Opinion there held stands good, if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession, and not of a Conviction upon Pro­clamation and default.

And be it further Enacted by the Authority of this present Parliament, Stat. Sect. 2. None shall go or send any o­ther to a Se­minary, &c. That all and every person and persons under the Kings Obedience, which at any time (after the end of this Ses­sion of Parliament) shall pass or go, or shall send or cause to be sent any Child, or any other person under their or any of their Government into any the parts beyond the Seas out of the Kings Obedience, to the intent to enter into or be resi­dent in any Colledge, Seminary, or House of Iesuits, Priests or any other Popish Order, Profession or Calling whatso­ever, or repair in or to any the same to be instructed, per­swaded or strengthned in the Popish Religion, or in any sort to profess the same; every such person so sending or causing to be sent any Child or other person beyond the Seas to any such purpose or intent, shall for every such Offence for­feit to his Maiesty, his Heirs and Successors, the sum of one hundred pounds: and every such person so passing or be­ing sent beyond the Seas to any such intent and purpose as is aforesaid, shall by Authority of this present Act, as in [Page 154] respect of him or her self only, and not to or in respect of any of his Heirs or Posterity, be disabled and made uncapable to inherit, purchase, take, have or enjoy any Mannors, Lands, Tenements, Annuities, Profits, Commodities, Heredita­ments, Goods, Chattels, Debts, Duties, Legacies or Sums of money within this Realm of England or any other his Majesties Dominions: And that all and singular Estates, Terms and other Interests whatsoever hereafter to be made, suffered or done to or for the use or behoof of any such person or persons, or upon any trust or confidence mediately or imme­diately to or for the benefit or relief of any such person or per­sons, shall be utterly void and of none effect to all intents, con­structions and purposes.

Publick Col­ledges, &c. only, here in­tended.To any Colledge, &c.] This Act extends only to pub­lick Houses or Colledges, but not to such as are bred be­yond the Seas in any private Popish Family. And therefore the Statute of 3 Car. 1. cap. 2. Stat. 3 Car. 1. 2. was made to supply that de­fect.

Stat. Sect. 6. They who are in Seminaries, &c. shall returnAnd be it further Enacted by the Authority aforesaid, That if any person born within this Realm, or any the Kings Ma­jesties Dominions, be at this present in any Colledge, Se­minary, House or place in any parts beyond the Seas (to the end to be instructed or strengthned in the Popish Religion) which shall not make return into this Realm, or some of his Majesties Dominions, within one year next coming after the end of this Session of Parliament, and submit himself as is aforesaid, shall be in respect of himself only, and not to or in respect of any of his Heirs or Posterity, utterly disabled and uncapable to inherit, have or enjoy any Mannors, Lands, Tenements, Hereditaments, Goods, Chattels, Debts or other things aforesaid within this Realm, or any other his Majesties Dominions.

Stat. Sect. 7. Remedy for such as return into the Realm and become conformable.Provided always, That if any such person or Child so passing, sent, sending or now being beyond the Seas as aforesaid, to such intent as is before mentioned, shall after become Conformable and Obedient unto the Laws and Ordinances of the Church of England, and shall repair to the Church, and there remain and be as is aforesaid, and continue in such Conformity according to the true intent and meaning of the said Statutes and Ordinances: That in every such Case every such person and Child, for and during such time as he or she shall continue in such Conformity and Obe­dience, [Page 155] shall be fréed and discharged of all and every such disa­bility and incapacity as is before mentioned.

And be it further Enacted by the Authority of this present Parliament, That no Woman, Stat. Sect. 8. No Woman or Child shall pass over the Seas without Li­cence, except, &c. nor any Child under the age of one and twenty years (except Sailers or Ship-boys, or the Apprentice or Factor of some Merchant in Trade of Mer­chandize) shall be permitted to pass over the Seas, (ex­cept the same shall be by Licence of the King, his Heirs or Successors, or of some six or more of the Kings Privy Council, thereunto first had under their hands) upon pain that the Officers of the Port that shall willingly or negli­gently suffer any such to pass, The forfeiture of the Officer of the Port. Owner of the Ship. or shall not enter the names of such Passengers licensed shall forfeit his Office, and all his Goods and Chattels; And upon pain that the Owner of any Ship or Vessel, that shall wittingly or willingly carry any such over the Seas without Licence as is aforesaid, shall forfeit his Ship or Vessel, and all the Tackle; and every Master or Marriner Master and Marriners. of or in any such Ship or Vessel, offend­ing as aforesaid, shall forfeit all their Goods, and suffer Impri­sonment by the space of twelve months without Bail or Main­prize.

And be it further Enacted by the Authority aforesaid, Stat. Sect. 9. The forfeiture for being or keeping a Schoolmaster contrary to this Act. That no person after the Feast of St. Michael the Archangel next, shall kéep any School, or be a Schoolmaster out of any of the Vniversities or Colledges of this Realm, except it be in some publick or frée Grammar School, or in some such Noblemans or Noblewomans, or Gentlemans or Gentle­womans House as are not Recusants, or where the same Schoolmaster shall be specially licensed thereunto by the Arch­bishop, Bishop or Guardian of the Spiritualties of that Dio­cess, upon pain that as well the Schoolmaster, as also the party that shall retain or maintain any such Schoolmaster con­trary to the true intent and meaning of this Act, shall forfeit each of them for every day so wittingly offending forty shil­lings.

Note, All Grammar Schools are not here excepted, Grammar Schools. Gentlemens Houses. but only publick or free Grammar Schools, nor yet all Gen­tlemens Houses, but only of such as are not Recusants, in both which respects this Statute is defectively recited, in the late Additions to Dalton cap. 87. tit. Schoolmaster, Sect. 1.

Stat. Sect. 10. The forfei­tures how to be recovered.The one half of all the penalties and sums of money before­mentioned to be forfeited, to be to the King his Heirs and Suc­cessors, the other to him or them that shall or will sue for the same, in any the Courts of Record in Westminster, by Action of Debt, Bill, Plaint or Information, in which no Essoign, Protection or Wager of Law shall be allowed.

FOrasmuch as it is found by daily experience that many his Majesties Subjects, Stat. Sect. 1. that adhere in their hearts to the Popish Religion, by the infection drawn from thence, and by the wicked and devillish Counsel of Ie­suites, Seminaries, and other like persons dangerous to the Church and State, Some Popishly affected do re­pair to the Church. are so far perverted in the point of their Loyalties and due Allegiance unto the Kings Majesty and the Crown of England, as they are ready to entertain and execute any treasonable conspiracies and practices, as evidently appears by that more then barbarous and horrible attempt to have blown up with Gunpowder the King, Queén, Prince, Lords and Commons in the House of 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 [Page 158] 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 [Page 159] 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 'tis 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 'tis 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: [Page 160] And so was the Information in 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, [Page 161] 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 'tis 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 Church­wardens 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 [Page 162] under their Hands and Seals then and there ordered and ap­pointed.

Stat. S [...]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; [Page 163] 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 'tis 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 although he be there personally present, and openly confess himself to be the same person who was Indicted, and against whom the Pro­clamation issued, yet if he deny to appear upon the Proclamati­on, or to consent that his appearance be entred of Record, it seems that his appearance cannot be Recorded, but his default shall, and he shall stand Convicted thereupon: And this is no more an appearance then where a Prisoner is brought to the Com­mon Pleas Bar by habeas Corpus, to the intent to have him appear to an Original brought against him, and he denies to appear to the Action, in which Case his appearance cannot be Re­corded, [Page 165] as was resolved in Ascoughs Case, 43 Eliz. Gouldsborough 118.

Shall be as sufficient a conviction in Law.] That is, a Re­cusant thus Convicted upon Proclamation and Default of appear­ance, shall be in the same Condition as if he were convicted by Verdict, but no Judgment is given. Bridgman 122. Parker ver­sus Webb.

But this Conviction upon Proclamation is no Judgment, as was resolved in Doctor Fosters Case, Co. 11.65. Conviction upon Procla­mation, no Judgment. And although it shall make the Recusant liable to the several forfeitures, penalties and incapacities inflicted on Recusants convict, yet it shall not operate as a judgment, as hath been already shewed in divers instances.

For this reason, it hath been questioned whether, if a Recusant be Convicted upon Indictment and Proclamation, the King may not wave his advantage of this Conviction, and bring his Action of Debt given him by the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 For that such Conviction is no Judgment, and consequently ought not to bind the King, as a Judgment against the Recusant should have done. Palmer 40.41. Sir John Webbs Case.

Worsley obtained a Patent to have all the Penalties of Recu­sants convict. Although such a Patent was illegal, for that the King cannot grant the penalty of a penal Law to a Subject, for which Vide Rolles 1.10. C. 11. Roy versus Tollin, Hobart 155. Colt & Glover versus the Bishop of Coventry and Litchfield, Ib. 183. Davison versus Barber; yet, admitting the Patent to be good, The King can­not grant the forfeiture on a penal Law. it was resolved that the penalties of Recusants convicted by Pro­clamation should not pass by those general words, Rolles 1. 94, 95. C. 41. Doctor Fosters Case.

And be it further Enacted, Stat. Sect. 6. The penalty of a convicted Recusant. That every offender in not re­pairing to Divine Service, but forbearing the same contrary to the Statutes in that behalf made and provided, that hereafter shall fortune to be thereof once convicted, shall in such of the Terms of Easter and Michaelmas as shall be next after such Conviction, pay into the Receipt of the Exchequer, after the rate of Twenty pounds, for every month which shall be con­tained in the Indictment whereupon such conviction shall be: And shall also for every month after such Conviction, without any other Indictment or Conviction, forfeit Twenty pounds, and pay into the Receipt of the Excheqver aforesaid, at two times in the year, that is to say, in every Easter and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction, except in such Cases, where the King shall and may by force of this Act refuse [Page 166] the same, and take two parts of the Lands, Tenements, He­reditaments, Leases and Farms of such Offender, till the said party being Indicted for not coming to Church, contrary to for­mer Laws, shall conform himself, and come to Church accor­ding to the meaning of the Statute in that behalf made and provided.

What Convi­ctions are here meant. Once Convicted.] This extends to all Convictions whatso­ever upon Indictment, whether by Verdict, Confession, &c. whereupon Judgment is given, as well as to Convictions upon Proclamation and default: And the penalty of Twenty pounds per month shall in any of the said Cases run on forever after, and be appropriated to the King. Stat. 29 Eliz. 6 Vide Stat. 29 Eliz. cap. 6. Sect. 4.

In what Term the forfeiture is to be paid. In such of the Terms of Easter and Michaelmas as shall be next after such conviction.] Here Easter and Michaelmas is to be taken disjunctively for Easter or Michaelmas, as it is in the Statute of 29 Eliz. cap. 6. Sect. 4. For the meaning is not, that the Recusant shall have both of the Terms of Easter and Mitha­elmas next after his Conviction, wherein to pay the forfeiture of Twenty pounds for every month contained in the Indictment. But he ought to pay the whole into the Exchequer the next Easter or Michaelmas Term, which shall first happen after his Conviction: And therefore if he be convicted in February, he ought to pay the whole the next Easter Term (unless where the King chooses to seize the two thirds of his Lands by force of this Statute) as was admitted in the Case of Standen and the University of Oxford, Hill. 20 Jac. Jones 24. 25. And in the Lady Webbs Case, who was convicted in March, the pleading was, that in the Easter Term then next following, the said Katherine did not pay into the Exchequer according to the rate of 20 l. per month, without any mention of Michaelmas Term; Bridgman Pasch. 16 Jac. 121.

For every month after such Conviction.] By this Clause and that of 29 Eliz. cap. 6. Sect. 4. 29 Eliz. 6. Penalty ap­propriated to the King. to the same purpose, after the Recusant is once Convicted, the penalty of Twenty pounds per month shall run on without any new Indictment or Convicti­on, and shall be for ever afterwards appropriated to the King alone, and paid into the Exchequer: so that the Informer can­not bring any popular Action or Information for the Twenty pounds per month, Informer bar­red. for any time incurred after such Conviction, but is utterly barred, Co. 11.61. Doctor Fosters Case. Rolles 1. 93. C. 41. the same Case. Owen 37. Sulherd and Evererds Case.

The Lady Webb was Indicted and Convicted of Recusancy up­on Proclamation and default of appearance, Whether bar­red in the Case of a Feme Co­vert. and afterwards an Informer Qui tam &c. sued her and her Husband for a new of­fence of Recusancy in the Wife, subsequent to such Conviction, to which they both pleaded the said Conviction at the Kings Suit: The question was whether the Informer should be barred by this Plea, or whether the Information was maintainable not­withstanding such former Conviction of the Wife; for that the Wife seems not to be such an Offender as is here intended; be­cause she can have no Goods or Lands during the Husbands life which may be seized for non-payment of the penalty: But it was granted on all hands, that, if she had been a Feme sole, this had been a good Plea in bar of the Informers popular Suit, for then she had been bound to pay the Twenty pounds per month into the Exchequer, and she should not be doubly punish­ed both that way and at the Suit of the Informer: And for the same reason it was urged, that this Information would not lye against the Husband and Wife; for after the Husbands death, she would be liable to pay into the Exchequer all the arrears after the rate of Twenty pounds per month from the time of her Conviction, and her goods and two parts of her Lands might be then seized for non-payment thereof: And if the Husband and Wife should in the mean time, at the Suit of the Informer, pay Twenty pounds per month for part of the same time, for which the Wife was liable to pay after the Husbands death, this would be a double punishment for one and the same offence; and it was further said, that it was usual where the Wife was Indicted and Convicted for Recusancy, Seizure of the Wives Lands and Leases. to seize by Exchequer Process the Lands and Leases which the Husband had in her right; and one Woods Case was cited to this purpose, which proves that a Feme Covert is within the meaning of the Act; and therefore after she is once Convicted upon Indictment, shall be no more subject to the Informers popular Suit, then a Feme sole: Cro. Pasch. 16 Jac. 481.482.

But this last point is much to be questioned, for the Lands and Leases of the Wife are the Husbands during the Coverture: and 'tis a general rule, that his Goods or Lands cannot be seized for the forfeiture or penalty, where the Wife only is Indicted and Convicted of the Offence.

See more of this matter antea, Stat. 23 Eliz. cap. 1. Stat. 23 Eliz 1 Sect. 9.

A Recusant is Indicted for absenting himself from Church for 12 months, and afterwards is Convicted upon that Indictment: Where an In­former may sue after Con­viction upon Indictment. Quaere, whether nevertheless the Informer Qui tam &c. may not sue him for his absence for the months intervening between the [Page 168] time laid in the Indictment, and the time of his Conviction: For these words here, viz. (after such Conviction) seem to relate to the proximum antecedens, (every month) and to imply, that the penalty here appropriated to the King, is only the penalty due for the months which incur after such Conviction upon In­dictment at the Kings Suit; but not to hinder the Informer after Conviction from suing for the months incurred before Con­viction.

Except in such Cases where the King shall &c. refuse the same. The King may seize two parts presently after Conviction.] If a man be Indicted and Convicted of Recusancy, the King is not bound to stay till the next Easter or Michaelmas Term, to see whether the Recusant will tender twenty pounds for every month contained in the Indictment, and incurred after such Con­viction; for the King having his Election whether he will accept thereof, or seize two parts of the Recusants Lands, A Commissi­on for seizure of the Lands may issue out presently, if the King will wave the twenty pounds per month: For he may take his Election as soon as he will, after Conviction: By Jones Justice in the Case of Standen and the University of Oxford. Jones 24.

Stat. Sect. 7. Every Convi­ction shall be certified into the Exchequer And that every Conviction recorded for any Offence before-mentioned, shall from the Iustices before whom the Record of such Conviction shall be remaining, be certified into the Kings Majesties Court of Exchequer, before the end of the Term fol­lowing such Conviction, in such convenient certainty for the time and other circumstances, as the Court of Exchequer may thereupon award out Process for the seizure of the Lands and Goods of every such Offender, as the Cause shall require: And if default shall be made in any part of any payment aforesaid contrary to the form herein before limited, that then and so often, the Kings Majesty his Heirs and Successors shall and may by process out of the said Exchequer, take, seize and enjoy all the Goods, and two parts as well of all the Lands, Tene­ments and Hereditaments, Leases and Farms of such Offender, as of all other the Lands, Tenements and Hereditaments lia­ble to such seizure, or to the penalties aforesaid, by the true meaning of this Act, leaving the third part only of the same Lands, Tenements and Hereditaments, Leases and Farms to and for the maintenance and relief of the same Offender, his Wife, Children and Family.

Timber Trees. All the Goods.] A Recusant convicted is Tenant for Life, the Remainder to a Stranger in Fee: He in the Remainder, with the Recusants assent, cuts down Timber Trees and sells them: In [Page 169] this Case the King can be no ways intitled to the Trees. Bul­strode 1.133.

Vide Stat. 29 Eliz. cap. 6. Sect. 4.

Aswell of all the Lands &c. Leases and Farms of such Offender. Lease in trust for another.] Elizabeth Bowes was convicted of Recusancy, and she standing so Convicted, a Lease was made to her in trust which she conveyed over according to the trust: The question was, whether the King might seize this Lease. And the reason given in Lane 39. why the King should have the Term is, because the Recusant after she was Convicted was not capable of any trust, and therefore the Conveyance made by her was as if it had been voluntary, with­out relation to the Trust; Tamen quaere, by what Law a Recu­sant, meerly for the matter of Recusancy, is incapable of any Trust, although Convicted.

All other the Lands &c. liable to such seizure, Copyhold Lands. Stat. 29 Eliz. 6. or to the penal­ties aforesaid.] Whether Copyholds be liable to such seizure, vide Stat. 29 Eliz. cap. 6. Sect. 4.

Lands are conveyed to A. in trust for B. a convicted Recusant; Lands in trust for a Recusant. Quaere whether the King may seize such Lands for the Recusants non-payment of the twenty pounds per month; for if he make his Election and accepts of two thirds in lieu of the twenty pounds per month, there is no question but such Lands are liable to seizure; For the words of the subsequent Clause are, That the King may seize two parts of all Lands that shall come to any other person to the use of or in Trust for such Recusant; But in this Clause, which relates to the seizure of two parts for non-payment, the words seem to be more restrictive. Vide, Lane 105. 106. Halseys Case.

And whereas by an Act made in the Session of Parliament holden by Prorogation at Westminster in the thrée and twentieth year of the Reign of the late Queén Elizabeth, entituled, Stat. Sect. 8. The Stat. of 23 Eliz. 1. touching a Re­cusants month­ly forfeiture. An Act to retain the Subjects of the said late Quéen in their due Obedience, It was, amongst other things, Enacted by Autho­rity of the said Parliament, That every person above the age of sixtéen years, which should not repair to some Church, Chap­pel or usual place of Common Prayer, but forbear the same contrary to the tenor of a Statute made in the first year of the Reign of the said late Quéen for Vniformity of Common Prayer, and being thereof lawfully convicted, should forfeit to the said Quéen for every month, after the end of the said Session of Parliament, which he or she should so forbear, twenty pounds of lawful English money, as in and by the said Act of Parlia­ment more at large appeareth.

And whereas afterward by another Act of Parliament of the said Quéen, It was further Enacted by the Authority of the said Parliament, (amongst other things) how and when the said pay­ments of the said 20 l. should be made, and that if default should be made in any part of any payment of the said twenty pounds, contrary to the form in the said last specified Statute limited, that then and so often the said Quéen should and might, by Process out of her Highness Exchequer, take, seize and en­joy all the Goods and two parts as well of all the Lands, Tene­ments and Hereditaments, Leases and Farms of such Offen­der, as of all other the Lands, Tenements and Hereditaments liable to such seizure or to the penalties aforesaid, by the true meaning of the said Act of Parliament, leaving the third part only of the same Lands, Tenements and Hereditaments, Leases and Farms to and for the maintenance and relief of the same Offender, his Wife, Children and Family, as in and by the last specified Statute more at large also may appear: Now, foras­much as the said penalty of twenty pounds monthly is a greater burden unto men of small living, then unto such as are of better ability, and do refuse to come unto Divine Service as afore­said, who rather then they will have two parts of their Lands to be seized, will be ready always to pay the said twenty pounds according to the limitation of the said Statutes, and yet re­tain the residue of their livings and Inheritance in their own hands, being of great yearly value, which they do for the most part imploy (as experience hath taught) to the maintenance of Superstition and Popish Religion, and to the relief of Ie­suits, Seminaries, Popish Priests and other dangerous per­sons to the State: Therefore; to the intent that hereafter the penalty for not repairing to Divine Service might be inflicted in better proportion upon men of great ability: Be it Enacted by the Authority of this present Parliament, The King may refuse 20 l. a month, and take two parts of a Recusants Lands. That the Kings Ma­jesty his Heirs and Successors, shall from and after the Feast of St. Michael the Archangel next coming after the end of this Session of Parliament, have full power and liberty to refuse the penalty of twenty pounds a month, though it be tendred ready to be paid according to the Law, and thereupon to seize and take to his own use, and the uses, intents and purposes hereafter limited, two parts in threé to be divided, as well of all the Lands, Tenements and Hereditaments, Leases and Farms, that at the time of such seizure shall be, or afterward shall come to any the said Offenders in not coming to Church, or any other to his or her use, or in trust for him or her, or at his or her disposition, or whereby or wherewith, or in consideration whereof such Offender or his Family, or any of them shall be [Page 171] relieved, maintained or kept, as of all other Lands, Tene­ments and Hereditaments in any wise or at any time liable to such seizure, or to the penalties aforesaid, and the same to re­tain to his own and other uses, intents and purposes hereafter in this Act appointed, till every such Offender shall conform him or her self respectively as aforesaid, in lieu and full recompence of the twenty pounds monthly that, during his such seizure and retainer, shall incur any thing in the said Statutes or any of them, or any other Statute to the contrary in any wise notwith­standing: saving to our Soveraign Lord the Kings Majesty his Heirs and Successors, and all and every person and persons, Saving the Right of o­thers. bodies politick and corporate their Heirs and Successors, (other then the said Offender his or her Heirs, and all claiming to his or their use, or in trust for him or them, or at his or their will or disposition) all and all manner of Leases, Rents, Condi­tions, and other Rights and Titles whatsoever had, made and done (bona fide) and without fraud and covin before such seizure.

Though it be tendred, or ready to be paid.] By this Branch of the Act, a new advantage is given to the King against the Re­cusant: For whereas by the Statute of 29 Eliz. cap. 6. Stat. 29 Eliz. 6. the con­victed Recusant had his Election to pay the King twenty pounds per month, and so prevent the seizure of the two third parts of his Lands; now by this Statute that Election is taken away, Election taken from the Re­cusant, and gi­ven to the King. and the choice is given to the King whether he will accept of the twenty pounds per month, or refuse it and seize two third parts of the Recusants Lands in lieu thereof; and if the King chooses the Lands, the tender of the twenty pounds per month at the Exche­quer will not save the seizure, but the King shall enjoy the Lands notwithstanding. Jones 24, 25. Standen versus University of Oxford.

Hereditaments.] An Advowson is an Hereditament, Hereditament, Advowson. and passes by that word. 18 Eliz. Dyer 351. and is devisable by the Statute of 32 H. 8. cap. 1. of Wills as an Hereditament; and, if it be an Advowson in gross, yet it may be seized by the King by force of this Act as part of his two parts of the Recusants Hereditaments: Jones 23, 24. Standen versus University of Ox­ford: For 'tis a thing valuable, and shall be Assets, and is ex­tendable for the Kings Debt; and upon a Writ of right of an Advowson there shall be a Recovery in value, scil. for every mark twelve pence. Fitzh. Recovery in value 9. 11. Hobart 304. London versus the Chapter of Southwell. Co. 1. Inst. 374. Brit­ton 185.

In the late Additions to Dalton, cap. 81. tit. Recusants Sect. 23. 'tis said, That the King may refuse the twenty pounds per month, and take to two parts of the Recusants Lands, and all the Goods &c. And an Advowson is without that Clause: and the said Case of Standen and the University of Oxon is there cited for Authority; But this is a mistake as to the Clause it self, and as to the point in Law, and the Authority brought for it: For in truth there is no such Clause in this Statute, nor in any other, that the King upon refusal of the twenty pounds per month should take the Recusants Goods: For the seizure of the Goods is given where the Offender fails of payment of the twenty pounds per month, Where a Re­cusants Goods cannot be seized. but not 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 [Page 174] 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 [Page 175] 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 'tis 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. [Page 176] 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. 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 [Page 201] (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. 'tis 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 [Page 202] 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 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, [Page 203] 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, [Page 204] 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 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 [Page 205] 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 [Page 209] 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 [Page 210] 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 its 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. [Page 211] 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 be a Popish Recusant convict, at any time after his or her conviction, shall [Page 212] exercise any publick Office or Charge in the Commonwealth, but shall be utterly disabled to exercise the same by himself, or by his Deputy, (except such Husband himself, and his Children which shall be above the age of nine years abiding with him, and his Servants in houshold, shall once every month at the least, not having any reasonable excuse to the contrary, repair to some Church or Chappel, usual for Divine Service, and there hear Divine Service; And the said Husband, and such his Children and Servants as are of méet age, receive the Sacrament of the Lords Supper, at such times as are limited by the Laws of this Realm, and do bring up his said Children in true Reli­gion).

This Clause extends not to all sorts of Recusants who are con­victed, or have Wives who are Recusants convicted, as is mis­taken in the late additions to Dalton, cap. 81. tit. Recusants, Sect. 46. To whom this clause extends: But at this day only to the Popish Recusant convicted, or ha­ving a Wife who is a Popish Recusant convicted.

To whom not.A Popish Recusant not convicted, hath a Wife who is convict­ed of Recusancy, but is no Popish Recusant; The Husband is not disabled by this Statute to exercise any publick Office or Charge, for that neither the Husband is a convicted Recusant, nor the Wife a Popish Recusant.

A person who is convicted of Recusancy, but is no Popish Recusant, hath a Wife who is a Popish Recusant, but not convict­ed: The Husband is out of this Branch of the Statute, for that neither the Husband is a Popish Recusant, nor the Wife con­victed.

Stat. Sect. 11. A Married Woman being a Popish Re­cusant. And be it also Enacted by the Authority aforesaid, That every Married Woman being, or that shall be a Popish Recusant con­vict (her Husband not standing convicted of Popish Recusancy) which shall not conform her self and remain conformed, but shall forbear to repair to some Church or usual place of Common Prayer, and there to hear Divine Service and Sermon, if any then be, and within the said year receive the Sacrament of the Lords Supper, according to the Laws of this Realm, by the space of one whole year next before the death of her said Hus­band, shall forfeit and loose to the Kings Majesty, his Heirs and Successors, the issues and profits of two parts of her Ioyn­ture, and two parts of her Dower in thrée parts to be divided during her life, of or out of any the Lands, Tenements or Hereditaments, which are or were her said Husbands; and also be disabled to be Executrix or Administratrix of her said Hus­band, and to have or demand any part or portion of her said [Page 213] late Husbands Goods or Chattels, by any Law, custom or usage whatsoever.

The issues and profits of two parts of her Ioynture and two parts of her Dower.] A Woman may have Joynture and Dower both. And not of two parts of her Joynture or Dower, as Wingate tit. Crown numb. 134. For there are di­vers Cases, where notwithstanding the Statute of 27 H. 8. cap. 10. the Wife shall have her Dower and Joynture both; And forfeit two parts of both. And if she offend against this branch, she shall forfeit the profits of two parts of both.

And that not only where the Joynture made to her is not warranted by that Statute, but in some Cases where the Joyn­ture is pursuant and according to the Statute, she shall have her Dower and Joynture both.

Of the first sort are these. Where the Joynture is not warranted by Stat. 27 H. 8. 10.

If an Estate be made of Lands to the Wife for the life of ano­ther. Co. 4. 3. Vernons Case.

Or for a thousand years, or for a thousand years if she live so long. Co. 1. Inst. 36.

Or if a Rent be granted to the Wife for the life of another, or for years, or any other way not pursuant to that Statute. Vide Anderson 1. 288. c. 296. Bickley's Case. Anderson 2. 30, 31. c. 20. Wentworths Case.

Or if an Estate be made to others in fee, or for the Wives life upon Trust for her benefit. Co. 1. Inst. 36.

Or if a man Covenant to stand seized to the use of himself in Tail, the Remainder to the use of his Wife for life. Pasch. 16. Jac. B. R. Woods Case.

Or if the Husband make a Feoffment in see to the use of him­self for life, the remainder to another for life, or years, the re­mainder to the Wife for her life. Co. 4. 2. 3. Hutton 51. Sher­wells Case.

In all these Cases, although the Lands or Rent were conveyed to the Wife for her Joynture, yet the Estate not being within the Statute of 27 H. 8. her acceptance thereof shall not bar her Dower, but she shall have such Joynture, and her Dower also.

And the reason why in the two last Cases the Wife shall not be barred of her Dower, although there be an Estate limited to her for her life, is, because the Estate is not in its first Creation appointed to take immediately after the death of the Husband; And no matter which arises ex post facto, can salve this, or make it a Joynture within that Statute, to bar her Dower.

And therefore if, in the first of those two Cases, the Husband Tenant in Tail dies without issue, or if in the last Case he in the [Page 214] remainder die before the Husband, or the term for years deter­mines in the Husbands life time, so that the Wife may enter pre­sently after his death, yet because the Estate to the Wife for her life, was not originally limited to take immediately after his death, it shall not bar her Dower; For quod ab initio non valet, in tractu temporis non convalescet. Co. 4. 2, 3. Hutton 51.

And as in all the Cases before mentioned, if the Estate were made for her Joynture, the Wife shall have such Joynture and her Dower both, so (if she be an Offender within this branch of the Act, and conform not within the year next before her Husbands death) she shall forfeit the profits of two parts of both.

Of what Lands she shall not forfeit the profits.But otherwise it is where an Estate is given or limited by the Husband to the Wife, and its neither expressed, nor can be averred and proved to be given or limited for her Joynture, or in recom­pence of her Dower.

And therefore if any of the Estates before mentioned, which are not within the Statute of 27 H. 8. be granted or limited to the Wife by the Husband, or any other Estate for her life or otherwise, which would be a good Joynture within the said Sta­tute, if it were intended for a Joynture, as if a man, before or after Marriage, Covenants to stand seized of Lands to the use of him­self for life, the Remainder to his Wife for her life, and it is nei­ther expressed in the Deed, nor can be averred and 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 'tis 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 quous (que) &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 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 [Page 217] 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 'tis 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 [Page 219] 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 which the King hath already done, or in respect of what the Recusant (after his conviction) hath omitted to do: And therefore, if a man be convicted of recusancy upon a popu­lar Suit, or an Action of Debt at the Kings Suit alone (in which Cases the penalty of Twenty pounds per month is not appro­priated to the King for the time to come) and he pays the penal­ty recovered: or if he be Convicted upon Indictment, and after such Conviction duly pays the Twenty pounds per month into the Exchequer, and the King makes no Election to take the two third parts of his Estate in lieu thereof; such Recusant may by this Proviso in either of those Cases, Sue or Prosecute for any of his Lands, Tenements, Leases, Rents, Annuities or Heredita­ments whatsoever, notwithstanding his Conviction: For when the penalty recovered is satisfied, or the forfeiture, appropriated to the King, is duly paid into the Exchequer, his Lands, &c. are not to be seized by force of any Law for Recusancy, unless the King make his Election to have the two parts: And until that Election, they cannot in the sense of this Proviso be said to be Lands to be seized or taken into the Kings hands, for that the King cannot have the two parts, and the Twenty pounds per month both; But if the King make no such Election, and the Twenty pounds per month be duly paid into the Exchequer, the Recusant is to hold and enjoy all his Lands, Tenements, &c. as if he had never been convicted: And during that time, there can be no distinction made between the two parts, and the Recusant's third part: so that in this Case, the Recusant must either be en­abled to Sue and Prosecute for all his Lands, &c. or none; and to think the latter of these, were to render this Proviso nugatory and vain: But when once the King hath seized the two thirds for recusancy, either by way of Election, or for nonpayment of [Page 220] the penalty, then the Recusant is enabled to Sue only for the other third part, whether in the hands of the King, or of a com­mon person.

Stat. Sect. 14. And for that Popish Recusants are not usually Married, nor their Children Christned, nor themselves Buried according to the Law of the Church of England, but the same are done su­perstitiously by Popish Persons in secret, whereby the days of their Marriages, Births and Burials cannot be certainly known.

Stat. Sect. 15. Marriages of Popish Recu­sants. Be it further Enacted by Authority of this present Parlia­ment, That every man being, or which shall be a Popish Re­cusant convicted, and who shall be hereafter Married otherwise then in some open Church or Chappel, and otherwise then ac­cording to the Orders of the Church of England, by a Minister lawfully Authorized, shall be utterly disabled and excluded to have any Estate of Fréehold into any the Lands, Tenements and Hereditaments of his Wife, as Tenant by the Courtesie of England: And that every Woman being, or which shall be a Popish Recusant convicted, and who shall be hereafter Married in other form then as aforesaid, shall be utterly excluded and disabled not only to claim any Dower of the Inheritance of her Husband, whereof she may be endowable, or any Iointure of the Lands and Hereditaments of her Husband or any of his Ancestors, but also of her Widows Estate and Frank-bank in any Customary Lands, whereof her Husband died seized, and likewise be disabled and excluded to have or enjoy any part or portion of the goods of her said Husband by vertue of any cu­stom of any County, City or Place where the same shall lie or be: And if any such man shall be Married with any Woman contrary to the intent and true meaning of this Act, which Woman hath or shall have no Lands, Tenements or Heredita­ments, whereof he may be intituled to be Tenant by the Curte­sie, Then such man so Marrying as aforesaid, shall forfeit and lose One hundred pounds, the one half thereof to be to the Kings Majesty, his Heirs and Successors, and the other moie­ty to such person or persons as shall 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.

Where the Husband is no offender. Every man being or which shall be a Popish Recusant Con­victed.] A Man who is no Popish Recusant Convicted, marries a Woman who is a Popish Recusant Convicted, in other form [Page 221] then is here appointed: He shall not forfeit any thing, or be dis­abled by this Act.

By a Minister lawfully Authorized. Minister law­fully Authori­zed.] In an Information up­on this Statute, for being married otherwise then is here appoint­ed, it is sufficient for the Defendant to say, that he was married, &c. by a Minister lawfully Authorized, without shewing in par­ticular how, or where, or when; but if a Traverse come of the other side, then the Defendant is in his Rejoynder to shew the time and place. Vide Bulstrode 2. 50. 52. Creswich against Rookesby.

Every Woman being or which shall be a Popish Recusant Convicted.] A Woman who is no Popish Recusant Convicted, Where the Wife is no of­fender. marries a Man who is a Popish Recusant Convicted, in other form than is here appointed, she shall not be disabled by this Branch of the Act: For the forfeiture or disability extends only to the Po­pish Recusant Convicted; and as, in the Case before recited, the Woman only shall be disabled, so in this Case the Man only shall forfeit or be disabled.

Or any Ioynture of the Lands and Hereditaments of her Husband, or any of his Ancestors. Joynture.] A Feme who is a Popish Recusant Convicted, and married otherwise then is appointed by this Act, is not therefore disabled to have any sort of Joynture, as Wingate tit. Crowne n. 136. mistakes; but only such Joynture as is of the Lands or Hereditaments of her Husband, or some of his Ancestors; and therefore if in consideration of some service done, or for some other consideration, and for the advancement of A. in marriage, Lands are setled upon his intended Wife for her Joynture, by some person besides A. who is not any of the Ance­stors of A. such Joynture is not within this Act; nor shall the Wife, although a Popish Recusant Convicted, and married otherwise, &c. be disabled by any strained construction of this Law, to enjoy the Lands after her Husbands death: For a pe­nal Law shall be taken strictly, and not by equity or intendment, especially where the intent of the Lawmakers doth not appear to the contrary, and the Case such as doth but rarely happen: And 'tis a good Rule in the construction of Statute Laws, which the late Lord Chief Justice Vaughan hath laid down in his Argu­ment of Bole and Hortons Case, Mich. 25. Car. 2. (viz.) when the words of a Law extend not to an inconvenience rarely hap­pening, and do to those which often 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 [Page 222] 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 'tis 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 [Page 223] 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 'tis 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 [Page 224] 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 as the person so sent or gone beyond the Seas shall conform him or her self, and take the aforesaid Oath, and receive the Sacrament of the Lords Supper. And after such Oath taken and conforming of him­self, and receiving the Sacrament of the Supper of the Lord, he or they which have so received the profits of the said Lands, Tenements, Hereditaments, Goods and Chattels, or any of them, shall make account of the profits so received, and in rea­sonable time make payment thereof, and restore the value of the said Goods to such person as shall so conform him or her self as aforesaid. And of him that sendeth them. And that all such persons as shall send the said Child or Children over Seas without Licence as aforesaid (un­less the said Child or Children be Merchants, or their Appren­tices or Factors, Marriners or Soldiers) shall forfeit one hun­dred pounds, to be divided, had and recovered in thrée equal parts, whereof the one third part shall be to the King, his Heirs and Successors, the other third part to such as shall sue for the same, and the other third part to the Poor of such Parish where such Offender doth inhabit or remain, by Action of Debt, Bill, Plaint or Information in any the Kings Majesties Courts of Record, wherein no Essoign, Protection or Wager of Law shall be admitted or allowed.

Next of kin, who, The next of his or her kin.] It hath been a great Question formerly, whether the Mother can be said to be of kin to the Child, and it hath been held in the negative as well by the Com­mon Lawyers as Civilians, as appears by the Case in 5 E. 6. called the Duke of Suffolks Case; and that of Browne and Shelton. Bro. tit. Administr' 47.

But the Law is now held to be otherwise, (viz.) That the Mother shall be taken to be of kin to the Child, and that in a nearer degree then is the Brother or Sister: And that she shall be preferred in the Case of an Administration upon the Statute of 21 H. 8. cap. 5. and of Guardianship by the Statute of Marlebridge, where a man dies seized of Lands holden in Socage. Which later Opinion agreeth with that of Littleton in his tenures fo. 1. where he saith, That the Parent is nearer of blood to the Child then the Uncle; vide Co. 1. Inst. 88. And in Ratcliffes Case, Co. 3.40. the Duke of Suffolks Case is denied to be Law. So that if any Child be sent or go beyond the Seas contrary to this Act, his Mother shall be preferred before his Brother or Sister, and as next of kin may have and enjoy his Lands, &c. unless she be a Popish Re­cusant.

For next of kin, And who not. or next of blood shall not be accounted here by course of descent, but as in the Case of a purchase, where a Remainder is limited to the next of blood or kin; And there­fore if a man hath issue three Sons, A. B. and C. and dieth, A. and B. have issue each of them a Son and die, The Son of B. goeth beyond the Seas contrary to this Act; In this Case C. the youngest Uncle shall by force of this Act have and enjoy the Lands of the Offender until his Conformity, and not the Son of A. the elder Uncle: For that C. hath in him jus propinquitatis, as being the Uncle, and so nearer of kin then the Cousin german. And yet the Son of A. is heir at Law jure representationis, as being the Son of the eldest Brother. Vide Co. 1. Inst. 10. Palmer 304, 305. Periman versus Pierce.

Shall have and enjoy the said Lands, &c.] What is for­feited. It was held by Montague and Hobart Chief Justices, Pasch 15 Jac. in Tredway's Case, That if a person goes beyond the Seas contrary to this Act, yet the State of the Land is not forfeited, nor setled in the next of kin, but vests in the heir himself who is the Offender: For the Statute saith not that he shall not take by descent, but only that he shall take no benefit by descent, and that therefore this Sta­tute differs from those of 5 R. 2. of consenting to Ravishment, Stat. 5 R. 2. 11 H. 7. Sale by the heir. and 11 H. 7. of discontinuances by Women: And Hobart said, That if the Heir beyond Sea bargain and sell the Land descended to him, he shall prevent the next of kin, if he hath not entred; And if he hath entred, the Land shall be taken from him. Quaere of this, for Tanfeild Chief Baron seemed to be of a contrary Opinion in the main point, and held that the State of the Land is setled by this Act in the next of kin. Ley 59. Note in the Re­port of this Case of Tredway, its said to be the meaning of this Act, that the profits of the Land should be received by the next of kin during the Offenders Non-conformity; But these words [Page 226] (have and enjoy) seem to imply some what more, and that the next of kin shall have the Land it self.

All such persons as shall send the said Child or Children, &c.] Here Wingate tit. Crown numb. 139. mistakes the person who shall forfeit the hundred pounds, Forfeiture of 100 l. applying it to the Child who goes beyond Sea, and not to the person who sends him.

Stat. Sect. 19. The forfeiture of those alrea­dy gone be­yond the Seas. And for that many Subjects of this Realm, being neither Merchants, nor their Factors nor Apprentices, Soldiers, nor Mar­riners, are of late gone beyond the Seas without Licence and are not as yet returned: Be it further Enacted by the Authority of this present Parliament, That if any of the said persons so gone beyond the Seas without Licence, which are not yet returned, shall not within six months next after their return into this Realm, then being of the age of Eighteén years or more, take the Oath above specified before some Iustice of Peace of the County, Liberty or Limit where such person shall inhabit or re­main, that then every such Offender shall take no benefit by any gift, conveyance, descent, devise, or otherwise of or to any Lands, Tenements, Hereditaments, Goods or Chattels, until he or they, being of the said age of Eightéen years or above, take the said Oath, and that likewise in the mean time the next of kin to the person so offending, which shall be no Popish Re­cusant, shall have and enjoy the said Lands, Tenements, He­reditaments, Goods and Chattels so given, conveyed, descended or devised, until such time as the person so offending shall con­form himself, and take the aforesaid Oath, and receive the said Sacrament of the Lords Supper. And after such conforming, taking of the said Oath, and receiving of the said Sacrament, he or they that shall have so received the profits of the said Lands, Tenements, Hereditaments, Goods and Chattels, shall make account of the profits so received, and in reasonable time make payment thereof, and of the value of such Goods and Chattels, to such person as shall so conform him or her self as aforesaid.

Stat. Sect. 20. A Popish Re­cusant shall not Present to a Benefice, nor grant the next avoidance, &c. And be it further Enacted by the Authority of this present Par­liament, That every person or persons that is or shall be a Popish Recusant Convict, during the time that he shall be or remain a Recusant, shall from and after the end of this present Session of Parliament, be utterly disabled to present to any Benefice with cure or without cure, Prebend, or any other Ecclesiastical living, or to collate or nominate to any Freé-school, Hospital or Donative whatsoever, and from the beginning of this present [Page 227] Session of Parliament, shall likewise be disabled to grant any avoidance to any Benefice, Prebend or other Ecclesiastical living.

And that the Chancellor and Schollers of the Vniversity of Oxford, so often as any of them shall be void, shall have the Presentation, Nomination, Collation, and Donation of and to every such Benefice, Prebend or Ecclesiastical Living, School, Hospital and Donative, set, lying and being in the Counties of Oxford, Kent, Middlesex, Sussex, Surrey, Hamp­shire, Berkshire, Buckinghamshire, Gloucestershire, Worcester­shire, Staffordshire, Warwickshire, Wiltshire, Somersetshire, Devonshire, Cornwall, Dorsetshire, Herefordshire, Northamp­tonshire, Pembrokeshire, Carmarthenshire, Brecknockshire, Monmouthshire, Cardiganshire, Montgomeryshire, the City of London, and in every City and Town being a County of it self, The Chancel­lor and Schol­lers of Oxford and Cambridge shall Present to a Popish Re­cusants Bene­fice, &c. lying and being within any of the Limits or Precincts of any of the Counties aforesaid, or in or within any of them, as shall hap­pen to be void, during such time as the Patron thereof shall be and remain a Recusant Convict as aforesaid.

And that the Chancellor and Schollers of the Vniversity of Cambridge shall have the Presentation, Nomination, Collation and Donation of and to every such Benefice, Prebend or Ec­clesiastical Living, School, Hospital and Donative, set, lying and being in the Counties of Essex, Hartfordshire, Bedford­shire, Cambridgeshire, Huntingtonshire, Suffolk, Norfolk, Lincoln­shire, Rutlandshire, Leicestershire, Darbyshire, Nottinghamshire, Shropshire, Cheshire, Lancashire, Yorkshire, the County of Durham, Northumberland, Cumberland, Westmerland, Radnorshire, Den­bighshire, Flintshire, Carnarvonshire, Angleseyshire, Merionethshire, Glamorganshire, and in every City and Town being a County of it self, lying within any of the Limits or Precincts of any of the Counties last before mentioned, or in or within any of them, as shall happen to be void, during such time as the Patron thereof shall be and remain a Recusant Convict as afore­said.

Provided, None shall be presented who hath another Benefice with cure of Souls. That neither of the said Chancellors and Schol­lers of either the said Vniversities, shall present or nominate to any Benefice with Cure, Prebend, or other Ecclesiastical living, any such person, as shall then have any other Benefice with cure of Souls. And if any such Presentation or Nomination shall be had or made of any such person so beneficed, the said Presen­tation or Nomination shall be utterly void; Any thing in this Act to the contrary notwithstanding.

Grant of the next avoidance where void. From and after the end of this present Session of Parlia­ment.] A man seized of an Advowson grants the next avoid­ance, and then becomes a Popish Recusant Convict; The grant of the next Avoidance is void, and the University shall Present; For the foregoing words (during his Recusancy) do not im­port the time when his disability shall begin, but when it shall end, viz. when he remains no longer a Recusant. But when once he becomes a Popish Recusant Convict, his disability shall have relation Relation. to all the time going before, scil. from the end of that Session of Parliament wherein this Act was made. Co. 10. 55, 56. Case of the Chancellor, &c. of the University of Ox­ford: Jones 20. Standen & al' versus University d' Oxon & Whit­ton. Retrospects. And such retrospects are usual in Acts of Parliament, For which see the Cases cited in Co. 10. supra.

Recusancy by Covin.And yet if after the Grant of the next Avoidance, the Patron or Grantor becomes a Popish Recusant convict by Covin, and to the intent to make void such his Grant, this shall not defeat the interest of the Grantee, but he may present when the Church be­comes void, notwithstanding such Conviction. Jones 20.

Averment, Verdict.But then the Covin must be averred by the Grantee, and found by the Jury to be to that particular intent, as in the Case herein after mentioned, where the Recusant grants away the Advowson by Covin, which vide postea.

A Recusant disabled to nominate. Be utterly disabled to Present to any Benefice, &c.] A man hath the right of nomination to a Benefice which is presenta­tive, and another hath the right of Presentation; If he who hath the right of Nomination become a Popish Recusant Convict, I conceive he is disabled by this Act to nominate: For although only the word (Present) be here used as to a Benefice or Eccle­siastical living presentative, yet this shall extend as well to Nomi­nation: For the intent of the Act is, to prevent a Recusant from appointing who shall be Incumbent, and the Case of Nominati­on is in equal mischief with that of Presentation: And if the Recusant should not be disabled to Nominate as well as to Pre­sent, the intent of the Act would be eluded: For he that hath the right of Nomination is in effect the Patron; and he that Presents at the Nomination of another, is but as a Messenger be­tween him and the Ordinary; 14 H. 4. 11. And if he who is to Present, Presents any other then the person nominated to him, or doth not Present the person nominated, he who nominates may bring a Quare Impedit against him: And he who hath the Nomination must joyntly with him who hath the Presentation, confirm the Lease of the Incumbent. Moore 49. C. 147. Fitz. n. b. 33.

'Tis true, the general Rule is, Penal Statues, how expound­ed. that penal Statutes shall not be taken by Equity, from whence may be inferred, that this Statute only disabling a Recusant to present to a Benefice presentative, shall not be extended to disable him to nominate, although it be within the same mischief; but that Rule hath some exceptions, and where the intent of the makers of the Law plainly appeares by other words in the same Statute, a penal Statute shall be expoun­ded largely, and according to that intent beyond the Letter, as in the Case of Simony upon the Statute of 31 Eliz. cap. 6. Stat. 31 Eliz. 6. Hobart 75. Now in the subsequent Clause touching the University, the nomination as well as presentation is given to them, and conse­quently the Recusant was intended to be disabled in the one Case as well as the other: Besides, the words (disabled to present) may be aptly enough expounded, disabled to nominate: Presentment, in whom. For the presentment is truly and really in him who hath the right of nomination, as is held in 14 H. 4. 11.

Chancellor and Schollers of the Vniversity.] Chancellor and Schollers a good de­scription. Although the University be incorporated by the name of Chancellor, Masters and Schollers, yet the description here made of them by the name of Chancellor and Schollers is well enough, and sufficiently denotes the persons intended: And the University shall have the presentation, &c. as if the true name of the Incorporation had been expressed: For Acts of Parliament, as well as Wills, are to be taken according to the intent of the Makers, and not according to the strict Letter, Co. 10. 57.

Shall have the presentation, &c.] What is given the University. It hath been made a Que­stion what is given the University by these words, whether only a bare power or liberty to present, or a setled estate and interest in the Partronage or Advowson; See the before cited Case of Standen versus University d'Oxon; Jones 22, 23, 25, 26. where two Justices Hutton and Jones were divided in opinion upon this point: For Hutton held, that that which is given to the University by this Act, is a setled estate and interest, and compared it to the interest or estate of the Lord, who was to hold the Land, until he was satisfied the value of the marriage of the Heir; and to that of the Conusee by the Statute of Acton Burnell; and to an estate gi­ven to a Man until a hundred pounds be paid: In all which Cases the party hath a setled estate and interest in the Land. But Jones held the contrary, and that the University hath by this Act, only a power or liberty to Present when the Church becomes void, and compared it to the power given to the Bishop to Pre­sent by lapse after the six months, and to that given by the Sta­tute of Proviso's 25 E. 3. where the Pope provides, Stat. 25 E. 3. 31 Eliz. 6 and to that given the King by the Statute of 31 Eliz. of Simony: In which Cases, no Estate or Interest is transferred, but only a power or [Page 230] liberty granted to Present: For this Act doth not remove the Patronage from the Popish Recusant, The Recusant is still Patron. but that continues still in him, and he is Patron notwithstanding his Conviction, and as Patron shall confirm a Lease made by the Incumbent, as he might have done before his Conviction, which proves that the Interest of the Patronage is not devested out of him, nor consequently setled in the University.

Private clause.Note, Although this be a general Statute, and that part of it which disables the Recusant to Present &c. or to grant any Avoidance, be general, of which the Judges ought to take no­tice; yet this part of it, which gives the Presentation &c. to the Universities, is special and private, for that it concerns only particular persons, and must be pleaded or specially found, or otherwise the Judges cannot take notice of it. Hobart 227. Anne Needler versus the Bishop of Winchester. Co. 10. 57. See the Rules touching publick and private Acts of Parliament, and touching special or private Clauses in general Acts of Parliament, 13 E. 4. 8. Co. 4. 76, 77. Hollands Case.

During such time as the Patron thereof shall be and remain a Recusant Convict.] Conviction, when requisite If the University bring a Quare Impedit upon this Statute, they must averr that the Popish Recusant Con­vict was and remained such, at the time when the Church became void; For without that, they do not enable themselves to Pre­sent: But they need not averr, that he remains a Popish Recusant Convict at the time of the bringing of the Quare Impedit, for when the Presentment hac vice is once vested in the University, al­though the Recusant conform or die, yet the University shall Present. Co. 10.57, 58.

University hath a limited power.These words are words of restraint, and the Statute gives only a limited power to the University, scil. so long as the Recusant shall be Patron, or the Patron shall be a Recusant; So that if, be­fore the Church becomes void, the Recusancy be removed from the Patron by his Conformity, or the Patronage be removed from the Recusant, although he continues a Recusant, the University have lost their power to Present. Jones 19.

And therefore if the Patron grant the Advowson in Fee, or in Tail, Grants which bar the Uni­versity. or for life or years, these Cases are out of the Statute; And although after the Grant he becomes a Popish Recusant Convict, and then the Church becomes void, yet the University shall not Present. And it seems, that although the Patron make such Grant of the Advowson after his Conviction, and before the Church is void, yet this shall bar the University: For the Patronage was before the Avoidance removed from the Recusant. Jones 19. Co. 10. 56. contrary to the Opinion of Hutton, who held, that if a man make a Lease for years of an Advowson, yet if afterwards [Page 231] he becomes a Popish Recusant Convict, the University shall have the Presentation, as a future interest given to them by this Act, notwithstanding such Lease. Jones 26.

And the reason why by such Grants the University shall be barred, is, for that the disability here inflicted on the Recusant, is only a disability to Present, or to grant the next Avoidance, which extends not to any of the Grants beforementioned, nor severs the Patronage from the Patron, as those other Grants do. And the intent of the Statute is to prevent a Presentation by the Recusant, or by him to whom he should grant the next Avoidance, Intent of the Statute. who it was presumed, would Present such an one as the Recusant should appoint: But now, when he grants the Advowson it self away, that mischief is prevented, and the Statute intended not in that Case, to give away the Presentation from the Grantee to the University. Jones 19, 20.

And yet if the Recusants Grant of the Advowson in Fee, Covinous Grant. or in Tail, or for life or years, were by Covin or in Trust on pur­pose to avoid this Statute, and be averred and found so to be, such Grant shall not bar the University. Jones 20. Co. 10. 56. Vide Godbolt 216. C. 309.

But then the Averment Averment: in such Case, must not be of Covin or Fraud to any other intent only, but it must be averred to be to the particular intent to avoid this Statute, and defeat the Univer­sity of the Presentment, and so it must be found by the Jury: Verdict. For if it be averred, or the Jury find that the Recusant granted away the Advowson for any other Covinous purpose, Intent. as to de­ceive Creditors, or the like, and not to avoid this Act, this will not help the University, nor shall they take advantage thereof, so as to devest or impeach the Interest or Estate of the Grantee in the Advowson: And this 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, [Page 232] 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; Its 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 [Page 233] 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 'tis 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 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 [Page 235] 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 [Page 237] 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 'tis sufficient in this Case, for pluralis numerus est duobus contentus: But a Warrant from any one Justice will not serve, contrary to Wingate tit. Crowne numb. 145.

Of such County. County:] That is, of the County where the Popish Recusant is resident, for no other County was named before.

In what Case the party can­not be impri­soned:A Popish Recusant lives in one County, and his Arms are kept in another County by one who is no Popish Recusant. The Ju­stices of Peace of that other County cannot by force of this Act imprison him that keeps them, for they are not named here; but the power in this Case is expresly limited to other Justices, and no other can intermedle therein; neither will the Warrant of the Justices of Peace of the County where the Recusant is resident, reach him who is in another County: For the coercive Authority [Page 239] 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.

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.

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 [Page 242] 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 [Page 243] 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 [Page 246] 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 partyThe 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 [Page 247] 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 'tis 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 [Page 248] 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 [Page 249] offence consisting of several particulars: First, In giving just cause of suspition, without which the party complained of according to this Act, cannot be tendred the Oath by one Justice of Peace; then, in refusing the Oath before the Justice of Peace who tendred it; and lastly, in refusing it upon the second tender at the Assizes or Sessions; all which must be comprised in the In­dictment: so that the cause of suspition is pars criminis, and that arising in the County where the party dwelt, and was complain­ed of, cannot be punished in another County, unless the Statute had expresly made it examinable there; Vide Stat. 3 Jac. cap: 4. Stat. 5 Jac. 4. Sect. 11.

True it is, that some Statutes do enable Justices of Peace to punish an offence done in another County, but that is, where they enable them likewise to examine the truth of the Fact, and take proofs and evidence thereof; so the Statutes of 1 Jac. cap. 27. and 7 Jac. cap. 11. 1 Jac. 27. 7 Jac. 11. impower the Justices of Peace where the party is apprehended, to examine and punish the offence: But in our Case, the cause of suspition arising in one County, is not made examinable, and consequently not punishable in another County; and if not punishable there, no Justice of Peace of that other County can proceed upon that cause of suspition, notwith­standing the party happen to be within his Commission or power: But yet the party, so flying into another County, may without any new complaint or cause of suspition, be tendred the Oath, But yet he may be tend­red the Oath there. and proceeded against there by two Justices of Peace, Quorum unus, &c. by vertue of the foregoing words of this Clause, al­though he dwell in another County, and that for the reason be­fore given, viz. because this Oath sequitur personam, non locum.

But Wingate, in abridging this Clause, tit. Crowne numb. 150. saves us the labour of this Question, for he erroneously restrains the power of tendring the Oath in this Case to the Justice of Peace to whom the complaint is made, as if no other Justice of Peace of that County could proceed therein, which is contrary to the express words as well as meaning of the Statute.

Note, that Dalton, V. cap. 45. tit. Recusants speaking first of the Certificate to be made by force of 3 Jac. 4. Stat. 3 Jac. 4 Certificate of taking the Oath. saith, It seems requisite, That the Justice or Justices of Peace do make like Cer­tificate, at the next Assizes or Quarter Sessions, of such persons as have taken this Oath before them by force of this Statute of 7 Jac. 6. But upon what ground Mr. Dalton thought this requi­site to be certified at the Assizes, I know not seeing there is no such Certificate to be made by the Statute of 3 Jac. 4. to the Assizes, but only to the General or Quarter Sessions of the Peace; and as for the Sessions, I conceive neither the Justices of Peace, if they proceed upon this Statute and not upon 3 Jac. [Page 250] are bound to make such Certificate, nor the Clerk of the Peace or Town-Clerk to Record it; for 'tis 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 'tis 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 Privy Council of your High­ness, your Heirs or Successors, or by the Bishop of the Diocess, if she be a Baroness, or, if she be under that De­grée, by two Iustices of the Peace of the same County, whereof one to be of the Quorum, there to remain without Ball or Mainprize, until she shall conform her self, and come to Church, and receive the Sacrament of the Lords Sup­per, unless the Husband of such Wife shall pay to the Kings Majesty, his Heirs or Successors, for the Offence of his said Wife, for every month ten pounds of lawful money of En­gland, or else the third part (in thrée parts to be divided) of all his Lands and Tenements, at the choice of the Hus­band whose Wife is so convicted as aforesaid, for and during so long time as she, remaining a Recusant convicted, shall continue out of Prison, during which time (and no longer) she may be at liberty.

What Convi­ction is here meant. Stat. 23 Eliz. 1. Being lawfully convicted as a Popish Recusant.] That is, upon Indictment at the Kings Suit, or a popular Action or Information on the Statute of 23 Eliz. 1. or an Action of Debt at the Kings Suit alone according to the Statute of 35 Eliz. 1. 35 Eliz. 1. In which two last Cases the former Laws are some­what altered by this Statute; For by the former Laws, if a person had been convicted of Recusancy any other way then by In­dictment, no more could have been demanded, either by the King or Informer, then for the months mentioned in the In­formation or Count, And the penalty should not have run on in such Case: For that the Statutes of 29 Eliz. 6. and 3 Jac. 4. 29 Eliz. 6. 3 Jac. 4. which appropriate the penalty to the King after Conviction, intend no other Conviction then by Indictment, as hath been there said; Baron and seme. But by this Statute, if a popular Action or Infor­mation, or an Action of Debt, &c. at the Kings Suit alone, be brought against the Husband and Wife for the Recusancy of the Wife, and Judgment be had against them, the Husband shall not only pay for the time contained in the Informa­tion or Count, but the Wife shall be imprisoned ever af­terwards, unless she conform, or the Husband pay ten pounds [Page 253] per month, or yield the third part of his Lands to the King.

And yet this Statute doth not, after such Conviction of the Wife in a popular Suit Suits upon former Sta­tutes not ta­ken away. or Action of Debt, &c. at the Kings Suit, take away the popular Action or Information from the Informer, or the Action of Debt, &c. from the King for the time to come, but that they may be brought against the Husband and Wife, for the Recusancy of the Wife, for any month or months wherein she is absent from Church after such Conviction: For this Statute and 23 Eliz. 1. and 35 Eliz. 1. Stat. 23 Eliz. 1 35 Eliz. 1 are all affirmative Laws, and may well stand together, so that any of the three remedies given by these Statutes may be pursued: This Statute not abrogating any former Law, but only pro­viding another way of punishment for the Wife after she is once convicted, Howbeit she shall not be punished by any more then one of these three ways. Co. 11. 63, 64. & Rolles 1. 94. Doctor Fosters Case. Cro. Pasch. 17 Jac. 529. Parker versus Curson; And therefore if the King bring an Action of Debt, &c. upon 35 Eliz. against the Husband and Wife, Where the Wife shall not be imprisoned. or the Informer sue them upon 23 Eliz. for any absence of the Wife from Church after she is once convicted by either of those ways, and recover, the Privy Counsellor, Bishop, or Justices of Peace here mentioned, cannot imprison her by force of this Act for the non-payment of the ten pounds per month by the Husband, for those months for which the King or Informer hath recovered, or for his not yielding the thirds of his Lands to the King: And the reason is, for that when the Husband stands charged with the penalty of twenty pounds per month for the absence of the Wife, the intent of the Act is satisfied in respect of those months of her absence for which he stands so charged: For, if he pay not the twenty pounds per month so recovered, the King or Informer hath the or­dinary remedy after Judgment by Process of Capias against them both both; And the intent of the Act was no more, then that the Husband should pay for the Recusancy of his Wife, or the Wife be imprisoned.

And if in this Case the Privy Counsellor, Bishop or Justices of Peace should have power to imprison the Wife, unless the Husband would pay ten pounds for the months for which the King or Informer hath recovered, it would follow that the Husband hath his Election whether he will pay ten pounds per month to the King by force of this Act, or the twenty pounds per month so recovered against him by the King or Informer; For he shall not pay both the one and the other, [Page 254] for that were bis puniri pro uno delicto: And if he shall have his Election, the King or Informer might by this device be eluded of the penalty of twenty pounds per month so recovered, which could not be the intent of the makers of this Law.

The King and Informer bar­red by her Imprisonment.But if the Wife be after such Conviction imprisoned by force of this Act, neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife; For she is already punished by this Act, and must remain in Pri­son until the Husband pay the ten pounds for every month, or yield the thirds of his Lands to the King, or the Wife conforms.

Or if the Hus­band yields the thirds:So if the Husband yields the thirds of his Lands to save his Wives imprisonment, he is already punished by this Act and shall not again be punished or Sued by the King or Informer either up­on 23 Eliz. or 35 Eliz.

Or pay Ten pounds per month.And, if after such conviction of the Wife, he pay Ten pounds per month to save her imprisonment; he cannot be sued with his Wife for the Twenty pounds per month, upon either of those Sta­tutes, by the King or Informer, for those months of her absence from Church incurred after her conviction, for which he hath paid the Ten pounds monthly to the King; for he shall not Bis puniri pro uno delicto.

Hitherto hath been spoken of the Conviction of the Wife at the Suit of the King alone by Action of Debt, &c. or by the In­former Qui tam &c. which doth not appropriate the penalty to the King by 29 Eliz. 6. or 3 Jac. 4.

Conviction upon Indict­ment.If the Wife be convicted of Recusancy upon an Indictment, it hath been much debated, whether that doth not so appropriate the penalty of Twenty pounds per month to the King for the time to come, by the said Statute of 29 Eliz. 6. and 3 Jac. 4. Stat. 29 Eliz. 6 3 Jac. 4. that the King cannot bring an Action of Debt, or the Informer any popular Suit against the Husband and Wife for any offence of Recusancy committed by the Wife, after such Conviction; see for this Stat. 23 Eliz. cap. 1. 23 Eliz. 1 Sect. 9. and 3 Jac. cap. 4. Sect. 6. However, admitting they may, yet now if the King take advan­tage of this Statute, and the Wife be either Imprisoned, or the Husband yields the third part of his Lands to the King, there is no question but the King and Informer are both barred The King and Informer bar­red. to sue for the Twenty pounds per month, for any time incur­red after her Conviction, For the King hath made his Electi­on to punish her this way, and the Informer cannot sue her, for she is punished already at the Suit of the King: And if the Husband pay the Ten pounds per month, the King and [Page 255] Informer are likewise barred, for those months of her absence from Church incurred after her Conviction, for which the Husband hath paid the Ten pounds monthly to the King, for he shall not be twice punished for the same offence.

Of all his Lands and Tenements.] By Tenements, Tenements, what. are to be understood Offices, Rents, Commons, Profits apprender out of Lands, Advowsons and the like, wherein a man hath any Franktenement, and whereof he is seized ut de libero te­nemento; for all these are included under the word Tene­ment, as well as Lands and other Inheritances which are holden, Co. 1. inst. 6. Perkins Sect. 114, 115. 11 H. 6. 22: Bro. Grant 143. Finch 130. Womans Lawyer lib. 3. 188. Anderson 2. 4. But, Tenement, extends not to a Chattel, or Lease for years, Bro. Done. 41. & Grant 87. Bulstrode 1. 101. Turpine against Forreyner. So that the Husband need not yield to the King the third part of his Leases for years, for the Recusancy of his Wife.

Shall continue out of Prison.] A married Woman, Imprisonment of the Wife for other cause con­victed as a Popish Recusant, is (after her Conviction, and before any further prosecution, or any Election made by the Husband whether he will pay the Ten pounds per month or yield the third part of his Lands) imprisoned by process of Law, or for some other Cause not relating to such Convicti­on, and afterwards is set at Liberty: It seems that the Husband shall not pay the Ten pounds per month for the time she was in Prison, for the Act speaks only of the time during which she continues out of Prison; and although she were not imprison­ed for her Recusancy, yet seeing she had not during such her Imprisonment the benefit intended to her in consideration of the Ten pounds per month, or third part (viz.) her Liberty, the Husband shall not for that time pay the penalty here appoint­ed to save her Imprisonment, but if he pay it for the time af­ter she is set at Liberty, that is sufficient to satisfie the intent of this Act.

But if after such Conviction, Covinous Im­prisonment. the Wife be imprisoned by Covin upon some pretence not relating to such Conviction, that shall not save the Husbands payment of the Ten pounds per month for the time she was imprisoned; but, after she is set at Liberty, she may be again Imprisoned by force of this Act, unless the Husband pay the Ten pounds per month, or satisfie to the King the third part of the profits of his Lands, as well for the time of such covinous Imprisonment, as for the future; for the covinous Imprisonment was upon the matter her own Act, and no person shall take advantage of an Imprisonment covi­nously [Page 256] caused by him or her self, 16 E. 4. 5. And here, she con­tinued out of Prison in the sence of this Act, because her Im­prisonment was not by Process of Law in invitam.

Outlawry by Covin.And so if a Man be Outlawed while he is in Prison, yet the Outlawry shall not be avoided for that Cause, if the Imprison­ment were by Covin or consent of the party Outlawed. Co. 1. Inst. 259. 38. Assiz. Pl. 17.

FOrasmuch as divers ill affected persons to the true Re­ligion established within this Realm, Stat. Sect. 1. have sent their Children into Forreign parts to be bred up in Popery, notwithstanding the restraint thereof by the Statute made in the first year of the Reign of our late Soveraign Lord King James of famous memory; Be it Enacted that the said Statute shall be put in due execution. And be it further Enacted by the Kings most Excellent Majesty, and the Lords Spiritual and Temporal, and Commons in this present Parliament as­sembled, and by the Authority of the same, that in Case any person or persons under the Obedience of the King, his Heirs and Successors, He that goes himself, or sends any o­ther beyond the Seas to be trained up in Popery, &c. shall be dis­abled to sue, &c. and shall lose all his Goods, and shall forfeit all his Lands, &c. for life. at any time after the end of this Session of Parliament, shall pass or go, or shall convey or send, or cause to be sent or conveyed any Child, or other person, out of any of the Kings Dominions into any the parts beyond the Seas, out of the Kings Obedience, to the intent and purpose to en­ter into, or be resident or trained up in any Priory, Abbey, Nunnery, Popish Vniversity, Colledge or School, or House of Iesuites, Priests, or in any private Popish Family, and shall be there by any Iesuite, Seminary Priest, Friar, Monk, or other Popish Person instructed, perswaded or strengthned in the Popish Religion, in any sort to profess the same, or shall convey or send, or cause to be conveyed or sent, by the hands or means of any person whatsoever, any sum or sums of money or other thing, for or towards the maintenance of any Child or other person already gone or sent, or to go or to be sent, and trained and instructed as is aforesaid, or under the the name or colour of any Charity, Benevolence or Alms to­wards the relief of any Priory, Abbey, Nunnery, Colledge, School, or any Religious House whatsoever; Every person so sending, conveying, or causing to be sent and conveyed, as well any such Child or other person, as any sum or sums of money or other thing, and every person passing or being sent [Page 258] beyond the Seas, being thereof Lawfully Convicted in or upon any Information, Presentment or Indictment, as is aforesaid, shall be disabled from thenceforth to sue or use any Action, Bill; Plaint or Information, in course of Law, or to prosecute any Suit in any Court of Equity, or to be Committée of any Ward, or Executor or Administrator 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 [Page 259] 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.

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 [Page 262] 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 [Page 263] 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 [Page 264] 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 [Page 265] 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 hurt or prejudice the Péerage of any Péer of this Realm, or to take away any Right, Power, Priviledge or Profit, which any person (being a Péer of this Realm) hath, or ought to enjoy by reason of his Péerage, either in time of Parliament, or otherwise, or to take away creation-money, or Bills of Impost, nor to take away or make void any Pension or Salary granted by His Majesty to any person for valuable and sufficient Consideration for Life, Lives, or Years, other then such as relate to any Office, or to any Place of Trust under His Majesty, and other then Pensions of bounty, or vo­luntary Pensions; nor to take away, or make void any Estate of Inheritance granted by His Majesty, or any His Predeces­sors, to any person or persons, of or in any Lands, Rents, Tithes, or Hereditaments, not being Offices; nor to take away, or make void any Pension or Salary already granted by His Majesty to any person who was Instrumental in the happy preservation of His Sacred Majesty after the Battel at Worce­ster, in the year One thousand six hundred fifty one, until His Ma­jesties arrival beyond the Seas; nor to take away or make void the Grant of any Office or Offices of Inheritance, or any Fée, Salary or Reward for executing such Office or Offices, or there­to any way belonging, granted by His Majesty or any his Pre­decessors [Page 266] to, or enjoyed, or which hereafter shall be enjoyed by any person or persons who shall refuse or neglect to take the said Oaths, or either of them, or to receive the Sacrament, or to subscribe the Declaration mentioned in this Act, in manner therein expressed; Nevertheless so as such person or persons ha­ving or enjoying any such Office or Offices of Inheritance, do or shall substitute and appoint his or their sufficient Deputy or De­puties (which such Officer or Officers respectively are hereby impowred from time to time to make or change, any former Law or Vsage to the contrary notwithstanding) to exercise the said Office or Offices, until such time as the person or per­sons having such Office or Offices, shall voluntarily in the Court of Chancery, before the Lord Chancellor or Lord Keeper for the time being, or in the Court of Kings Bench, take the said Oaths, and receive the Sacrament according to Law, and subscribe the said Declaration; and so as all and every the Deputy and Deputies so as aforesaid to be appointed, take the said Oaths, receive the Sacrament, and subscribe the said De­claration from time to time, as they shall happen to be so ap­pointed, in manner as by this Act such Officers whose De­puties they be, are appointed to do; and so as such Deputies be from time to time approved of by the Kings Majesty under His Privy Signer: But that all and every the Péers of this Realm shall have, hold, and enjoy what is provided for as aforesaid, and all and every other person or persons before men­tioned, denoted or intended within this Proviso, shall have, hold, and enjoy what is provided for as aforesaid, notwithstanding any incapacity or disability mentioned in this Act.

Provided also, That the said Péers, and every of them may take the said Oaths, and make the said Subscription, and de­liver the said Certificates before the Péers sitting in Par­liament, if the Parliament be sitting within the time limi­ted for doing thereof, and in the intervals of Parliament, in the High Court of Chancery, in which respective Courts all the said proceédings are to be recorded in manner afore­said.

Provided always, That no married Woman, or person un­der the age of Eightéen years, or being beyond, or upon the Seas, or found by the lawful Oaths of Twelve men, to be non compos mentis, and so being and remaining at the end of Trinity Term, in the year of our Lord One thousand six hun­dred seventy thrée, having any Office, shall by vertue of this Act, loose or forfeit any such his or her Office (other then such married Woman during the life of her Husband only) for any neglect or refusal of taking the Oaths, and doing the other [Page 267] things required by this Act to be done by persons having Offices, so as such respective persons within Four months after the death of the Husband, coming to the age of Eighteen years, returning into this Kingdom, and becoming of sound mind, shall respectively take the said Oaths, and perform all other things in manner as by this Act is appointed for persons to do, who shall happen to have any Office or Offices to them given or fallen after the end of the said Trinity Term.

Provided also, That any person who by his or her neglect or refusal, according to this Act, shall lose or forfeit any Office, may be capable by a new Grant of the said Office, or of any other, and to have and hold the same again, such person taking the said Oaths, and doing all other things required by this Act, so as such Office be not granted to, and actually enjoyed by some other person at the time of the regranting thereof.

Provided also, That nothing in this Act contained, shall ex­tend to make any Forfeiture, Disability, or Incapacity in, by, or upon any non-Commission-Officer or Officers in His Maje­sties Navy, if such Officer or Officers shall only subscribe the Declaration therein required, in manner as the same is di­reted.

Provided also, That nothing in this Act contained, shall ex­tend to prejudice George Earl of Bristol, or Anne Countess of Bristol his Wife, in the Pension or Pensions granted to them by Patent under the Great Seal of England, hearing date the Sixtéenth day of July, in the year of our Lord One thousand six hundred sixty and nine, being in lieu of a just Debt due to the said Earl from His Majesty, particularly expressed in the said Patent.

Provided also, That this Act, or any thing therein contained, shall not extend to the Office of any High Constable, Petty Constable, Tithingman, Headborough, Overseer of the Poor, Church-wardens, Surveyor of the High-ways, or any like in­ferior Civil Office, or to any Office of Forester, or Kéeper of any Park, Chace, Warren, or Game, or of Bailiff of any Manor or Lands, or to any like private Offices, or to any person or per­sons having only any the before mentioned, or any the like Of­fices.