The laws of Q. Elizabeth, K. James, and K. Charles the First concerning Jesuites, seminary priests, recusants, &c., and concerning the oaths of supremacy and allegiance, explained by divers judgments and resolutions of the reverend judges : together with other observations upon the same laws : to which is added the Statute XXV Car. II. cap. 2 for preventing dangers which may happen from popish recusants : and an alphabetical table to the whole / by William Cawley of the Inner Temple, Esq.

Stat. xxxv Eliz. cap. ii. An Act for the restraining of Popish Recusants to some certain place of abode.

FOr the better discovering and avoiding of such Traite∣rous and most dangerous Conspiracies and Attempts as are daily devised and practiced against our most gra∣cious Soveraign Lady the Queéns Majesty,* 1.1 and the happy estate of this Common-weal, by sundry wicked and sedi∣tious persons, who terming themselves Catholicks, and being (indéed) spies and intelligencers, not only for her Majesties forreign Enemies, but also for Rebellious and Traiterous Sub∣jects 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 Re∣bellion.

Be it Ordained and Enacted by our Soveraign Lady the Quéens Majesty, and the Lords Spiritual and Temporal,* 1.2 and the Commons in this present Parliament assembled, and by the Authority of the same, That every person above the age of six∣téen 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 Com∣mon Prayer, to hear Divine Service there, but forbearing the same contrary to the tenor of the Laws and Statutes hereto∣fore 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

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.

* 1.3And 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 be∣ing then a Popish Recusant, shall at any time hereafter be law∣fully convicted for not repairing to some Church, Chappel or usu∣al 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 Imprison∣ment 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,* 1.4 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, Te∣nements and Hereditaments, and all the Rents and Annuities of every such person so doing or offending during the Life of the same Offender.

* 1.5Born 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 ex∣tends not to an Alien, who is born out of the Kings Leigeance, unless he be made Denizen.

* 1.6In 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.

* 1.7By 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 privi∣ledges

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 na∣turalized.

Which being then a Popish Recusant.] This is the first pe∣nal 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.* 1.8 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.* 1.9 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 pe∣nalty or disability upon a Recusant or a Popish Recusant, unless where the not receiving of the Sacrament is particularly menti∣oned. And this appears by the explanation which the Statutes make every where of Conformity, (the opposite to Recusancy) viz. repairing to Church;* 1.10 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 Su∣premacy 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 re∣quired of him who confesseth or denieth not himself to be a Re∣cusant, or that he hath not received the Sacrament, where (Re∣cusant) cannot be understood in any other sense, then of him who forbears to come to Church.

An Information or Indictment against a Popish Recusant* 1.11 for Recusancy, is of the same form with that against any other Re∣cusant, (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 Re∣cusancy

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 di∣spose 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 Sta∣tute of 3 Jac. cap. 5.* 1.12 in a Quare Impedit* 1.13 brought by the Chan∣cellor 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,* 1.14 and afterwards becomes a Papist, being none before: It seems that he is not restrained by this Act with∣in the compass of five miles; because he was not a Popish Recu∣sant 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 re∣late to the subsequent words touching his Conviction; And, being then a Popish Recusant, is as much as to say, being a Popish Re∣cusant 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,* 1.15 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.* 1.16 by the same Parliament which made this Act against Popish Re∣cusants: 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 ac∣cording to the Statute of 23 Eliz. cap. 5. of Woods, pleaded,* 1.17 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,* 1.18 That every person above the age of sixteén years, born within any her Ma∣jesties Realms or Dominions, not having any certain place of dwelling and abode within this Realm, and being a Popish Re∣cusant, 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 with∣in forty days next after the end of this Session of Parliament, (if they be then within this Realm, and not imprisoned, re∣strained 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 dwel∣ling; and shall not at any time after remove or pass above five miles from thence,* 1.19 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 Ma∣jesty all the Lands, Tenements and Hereditaments, and all the Rents and Annuities of every such person so doing or offen∣ding during the life of the same person.

By comparing together this and the precedent Clause,* 1.20 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 Recu∣sant,

who hath a certain place of abode within this Realm, from travelling above five miles, there are three Qualifications requi∣red 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 re∣quired; 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 con∣victed 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 un∣certain 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 ob∣servable 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 con∣victed, 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 Re∣cusants 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 there∣fore 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 Ad∣ditions 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,* 1.21 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,* 1.22 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 He∣reditaments so holden by Copy of Court Roll, or customary te∣nure 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 Re∣cusant as aforesaid; And in such Case the same forfeiture to be to the Quéens Majesty.

Provided always,* 1.23 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 re∣move 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 Con∣stable,

Headborough or Tithingman of the Town, and there∣upon the said Minister or Curate shall presently enter the same into a Book, to be kept in every Parish for that purpose.

* 1.24And 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 en∣tred by the Clerk of the Peace in the Rolls of the same Sessions.

* 1.25A 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 Free∣hold, or Goods and Chattels worth forty pounds: But yet such person may be Indicted for such neglect, and fined upon the ge∣neral 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.

* 1.26And 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 Spi∣ritual and Temporal, and the Commons in this present Par∣liament 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 con∣fidence 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 for∣ty pounds) shall not, within the time before in this Act in that

behalf limited and appointed, repair to their place of usual dwelling and aboad, if they have any, or else to the place where they were born, or where their Father or Mother shall be dwel∣ling according to the tenor and intent of this present Act: And thereupon notifie their coming, and present themselves, and de∣liver their true Names in writing to the Minister or Curate of the Parish, and to the Constable, Headborough, or Tithing∣man 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 ex∣pressed, being thereunto required by the Bishop of the Diocess or any Iustice of the Peace of the County where the same per∣son shall happen to be, or by the Minister or Curate of the Pa∣rish: That in every such Case every such Offender, being there∣unto warned or required by any two Iustices of the Peace or Co∣roner of the same County where such offender shall then be, shall upon his or their corporal Oath,* 1.27 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 for∣ever: 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 Coro∣ner 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.* 1.28 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 present∣ly 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.

* 1.29Dalton 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 con∣victed, is not within this Statute, unless he were a Popish Recu∣sant, and in England, at the time of his Conviction: And the Po∣pish 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* 1.30 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 disjun∣ctive (Lands or Goods) an Estate partly of Lands,* 1.31 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 valuati∣on 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 Recu∣sant must have such an Estate in the one or the other as will an∣swer the Statute. And this is not like the Case of Jurors upon the Statute of 2 H. 5.* 1.32 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

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 in∣tent 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 na∣ture, one real, the other personal, and cannot be regularly redu∣ced under one and the same head, and therefore shall not be va∣lued together, unless the Act had expresly appointed such a Va∣luation.

But yet if a Popish Recusant hath a Lease for years,* 1.33 and perso∣nal 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* 1.34 of Lands is within the mean∣ing 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 apprehen∣ded 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 par∣ty 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 ap∣prehended,* 1.35 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 arri∣val. All great mistakes, and fit to be taken notice of by Justices of Peace, whose part it is to require the submission and abjurati∣on, that they may not be misled in the Execution of this part of their Office, by trusting to that Abridgment.

* 1.36Being thereunto required by the Bishop, &c.] If the Of∣fender 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 requi∣red afterwards, nor be compelled to abjure by force of this Act. But if he be required within the three months to make submis∣sion, 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 Abjura∣tion may be in this form or to this effect.

* 1.37You 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 Do∣minions, 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 Sta∣tute (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 Sta∣tutes of this Realm of England, I have and do refuse to come to hear Divine Service there read and exercised: I do therefore, accor∣ding 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 un∣less 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 Fe∣lony, 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 Re∣cusant is to abjure by force of this Statute: for the offence is

not his refusal to hear Divine Service; for that is but only one of the precedent Qualifications of the person. But the Offence it self is of another nature, (viz.) his not repairing to the place the Statute appoints him, or his removal from thence contrary to the Statute, or his not presenting himself, and delivering his true name as aforesaid: Either of these, if he be a Popish Recusant within the meaning of this Act, is a crime for which he ought to abjure, unless he prevents his Abjuration by a timely Submission: Nor is the Popish Recusant bound to swear, that he will not go out of the High way or return back, or will tarry but one flood and ebb, or go into the Sea up to his knees; nor ought the Coroner or Justices of Peace to require any such Oath of him: For this is a new offence made by a Statute Law, which doth not require the strict form of Abjuration as in Case of Felony. And although the Felon were tied to these circumstances, yet the Recusant is not, nor shall be a Felon for omitting them: But '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 Li∣geance, and remaineth within the Kings Protection.* 1.38 Qui abjurat Regnum, amittit regnum, sed non Regem; amittit Patriam, sed non patrem patriae. Co. 7. 9. Calvins Case.

And if any such Offender,* 1.39 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 appoin∣ted, 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 ob∣tained; 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.* 1.40] 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 Ha∣ven or Port, or over stay his time, and depart afterwards, yet he is a Felon within this Act.

Or return or come again into any her Majesties Realms or Dominions.] An Offender within this Act abjures in form aforesaid, and departs this Realm, and afterwards goes into

Ireland without Licence,* 1.41 and then returns into England with Li∣cence; such going into Ireland seems to be Felony by this Act. But quaere how the offence shall be tried;* 1.42 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.

* 1.43And be it further Enacted and Ordained by the Authority afore∣said, That if any person which shall be suspected to be a Iesuit, Seminary or Massing Priest, being examined by any person ha∣ving 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.

* 1.44Suspected.] 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.* 1.45 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;* 1.46 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, whe∣ther the party be a Priest or Jesuit or not, as well by examina∣tion 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,* 1.47 if he be suspected to be a Priest or Jesuit and re∣fuses to answer, whether he be such or no. As for Mr. Shephards Opinion in his Sure Guide, cap. 14. Sect. 5. that there must be two Justices of Peace to Commit a man, by force of this Statute,

who is suspected to be a Jesuit or Priest till he answers directly, I see no ground at all for it.

Answer to the said Questions.] That is,* 1.48 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,* 1.49 and be it further Enacted by the Au∣thority 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 travel∣ling, attending and returning as shall be comprised in the same Licence: Any thing before in this Act to the contrary notwith∣standing.

This Clause is repealed,* 1.50 and a new form of Licence appointed by the Statute of 3 Jac. cap. 5. which see there Sect. 8.

Provided also,* 1.51 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 re∣quired by any thrée or more of her Majesties Privy Council, or by any four or more of any Commissioners to be in that behalf no∣minated 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, for∣feiture or loss for travelling to make appearance according∣ly, nor for his abode concerning the same, nor for convenient time for his return back again upon the same.

Vrged by Process.] If a Popish Recusant restrained by this Act be summoned by Warrant of a Justice of Peace to appear before

him, the Recusant ought not to travel to such Justice out of his compass of 5 miles: For although a Justice of Peace his Warrant be the Kings Process,* 1.52 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 Pro∣cess, 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 no∣thing, for that it was done by compulsion: And yet if there be any Covin between the Recusant and the Justice of Peace or Offi∣cer, it may be otherwise.

* 1.53In any her Majesties Courts.] All Courts wherein the pro∣ceedings are directed by the Kings Laws, are the Kings Courts; and therefore a Court Leet,* 1.54 though of an inferiour nature and kept in the Lords name, yet is the Kings Court; Co. 5. 39. Caw∣dries Case. Hetley 18.

* 1.55If 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.

* 1.56And be it further provided and enacted by the Authority afore∣said, That if any such person or persons so restrained, as is aforesaid, shall be bound or ought to yield and render their bo∣dies 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 Tra∣velling 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,* 1.57 and is not restrained to a Proclamation upon an Indictment for Recu∣sancy. 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

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 pre∣sent Parliament,* 1.58 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 con∣tained.

Before he or they shall be thereof convicted.* 1.59 A Popish Re∣cusant confined by this Act, whose Estate is under value, is ap∣prehended for offending against this Act, and before the expira∣tion of three months next after his apprehension is convicted of such Offence; and then before the said three months expire con∣forms 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 affir∣mative 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.* 1.60] It seems clear that no Sub∣mission, 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.* 1.61 where 'tis said, That the Offender shall be committed to Pri∣son until he come to some Church, Chappel or usual place of Common Prayer, and hear Divine Service, and make such open

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 whi∣ther the Offender comes, and this shall free him from his Impri∣sonment. 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 Sub∣mission 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 usu∣ally, and therefore there being there no place appointed where this Confession and Submission shall be made, we must necessa∣rily 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 Con∣fession, or Declaration in some Parish Church, frees not the Of∣fender 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 De∣claration there, shall free an Offender within the Statute of 35 Eliz. cap. 1. from Imprisonment.

* 1.62What is a Parish Church, Vide Stat. 35 Eliz. cap. 1. Sect. 4. supra.

* 1.63Submission.] If a Popish Recusant Indicted upon this Sta∣tute 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.

* 1.64The same Submission to be as hereafter followeth, that is to say,

* 1.65I A. B. do humbly confess and acknowledge that I have grie∣vously 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

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 hear∣ing Divine Service, and do my uttermost endeavour to maintain and defend the same.

Over her Majesty or within any her Majesties Realms or Dominions.* 1.66] And not over her Majesty within any her Do∣minions, 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.* 1.67] These words, which are a very material part of the Submission, are likewise omitted by Wingate.

Her Majesties Laws and Statutes.* 1.68] 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,* 1.69 shall presently enter the same into a Book to be kept in every Parish for that pur∣pose, and within ten days then next following, shall certifie the same in writing to the Bishop of the same Diocess.

Provided nevertheless,* 1.70 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 de∣grée, to all intents, as though such Submission had never beén made.

Such Relapse, with the Indictment thereof,* 1.71 is to be certi∣fied 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.

* 1.72Provided always, and be it Enacted by the Authority afore∣said, That all and every Woman married, or hereafter to be married, shall be bound by all and every Article, branch and mat∣ter 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 not∣withstanding.

Notes

• * 1.1

  Stat. Sect. 1.
• * 1.2

  A Popish Re∣cusant convi∣cted,
• * 1.3

  Stat. Sect. 2. Or to be con∣victed, shall repair to his usual dwelling and not re∣move above five miles.
• * 1.4

  The punish∣ment of an Offender.
• * 1.5

  What Popish Recusants are not within this Act,
• * 1.6

  And which are.
• * 1.7

  Denizen, who.
• * 1.8

  What is Recu∣sancy.
• * 1.9

  Stat. 1 Eliz 1. 3 Jac. 4.
• * 1.10

  What is Con∣formity.
• * 1.11

  Information or Indictment a∣gainst a Popish Recusant.
• * 1.12

  Stat. 3 Jac. 5.
• * 1.13

  Quare Impedit.
• * 1.14

  What Popish Recusants are not within this Act.
• * 1.15

  Miles.
• * 1.16

  Stat. 35 Eliz. 6.
• * 1.17

  23 Eliz. 5.
• * 1.18

  Stat. Sect. 4. What a Popish Recusant shall do having no place of abode
• * 1.19

  The punish∣ment of the Offender.
• * 1.20

  A Popish Re∣cusant not con∣victed may be within this Act
• * 1.21

  Licence to Travel. Stat. 3 Jac. 5.
• * 1.22

  Stat. Sect. 4. A Popish Re∣cusant Copy-holder.
• * 1.23

  Stat. Sect. 5. Popish Recu∣sants shall no∣tifie their com∣ing, and deli∣ver in their names.
• * 1.24

  Which shall be certified to the Sess••ons, and enrolled there.
• * 1.25

  Goods and Lands where not forfeited.
• * 1.26

  Stat. Sect. 6. The penalty of a Popish Re∣cusant of small ability offend∣ing against this Act.
• * 1.27

  Abjuration.
• * 1.28

  Abjuration to be entred of Record and certified.
• * 1.29

  What Popish Recusants are within this Branch, and which not.
• * 1.30

  Clear yearly value.
• * 1.31

  Goods and Lands not to be valued to∣gether.
• * 1.32

  Stat. 2 H. 5. 3.
• * 1.33

  But leases for years and per∣sonal goods may:
• * 1.34

  Mortgage.
• * 1.35

  The three months relate to the time of the Offenders being appre∣hended.
• * 1.36

  Required to submit, within what time.
• * 1.37

  Oath of Ab∣juration.
• * 1.38

  He that ab∣jures, yet ow∣eth the King his Ligeance.
• * 1.39

  Stat. Sect. 7. The punish∣ment for refu∣sing to abjure not departing or returning without Li∣cence.
• * 1.40

  When, and whence the Offender must depart.
• * 1.41

  Return.
• * 1.42

  How triable.
• * 1.43

  Stat. Sect. 8. A Jesuit or Priest refusing to answer shall be imprisoned.
• * 1.44

  Cause of suspi∣cion.
• * 1.45

  Stat. 27 Eliz. 2.
• * 1.46

  Who shall ex∣amine a Jesuit, &c.
• * 1.47

  And commit him.
• * 1.48

  To what point he may be ex∣amined.
• * 1.49

  Stat. Sect. 9. Licence to tra∣vel above five miles. Alt. 3 Jac. 5.
• * 1.50

  Repeal. Stat. 3 Jac. 5.
• * 1.51

  Stat. Sect. 10. Persons urged by Process or commanded to appear.
• * 1.52

  Wha•• Process is here meant.
• * 1.53

  The Kings Courts.
• * 1.54

  Court Leet.
• * 1.55

  Ecclesiastical Court.
• * 1.56

  Stat. Sect. 11. Persons which are to yield their bodies to the Sheriff.
• * 1.57

  Proclamation.
• * 1.58

  Stat. Sect 12. An Offender upon open submission shall be dis∣charged.
• * 1.59

  Where sub∣mission will save abjura∣tion.
• * 1.60

  It must be in some Parish Church.
• * 1.61

  Stat. 35 Eliz 1.
• * 1.62

  Parish Church.
• * 1.63

  Two several Submissions.
• * 1.64

  Stat. Sect. 13.
• * 1.65

  The form of the Submissi∣on.
• * 1.66

  What Autho∣rity of the Pope is to be renounced.
• * 1.67

  Dispensation.
• * 1.68

  The Queens Laws. Stat. 27 Eliz. 2.
• * 1.69

  Stat. Sect. 14. The Minister shall enter the Submission in∣to a Book.
• * 1.70

  Stat. Sect. 15. A Recusant submitting and falling into Relapse.
• * 1.71

  Relapse, where to be certified
• * 1.72

  Stat. Sect. 16. Married Wo∣men bound by this Act, saving in the Case of Abjuration.