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place when and where such person shall appear before such archbishop, bishop, or other ordinary, or some persons to be
authorised by them by commission under their seal of office; who [ 165 ) shall, upon such appearance, tender or administer the said de
claration to the party making such presentation: and if he shall neglect or refuse to make and subscribe the declaration so tendered, or shall neglect or refuse to appear upon such notice, such presentation shall be void; and in such case the archbishop, bishop, or other ordinary shall within ten days after such neglect or refusal, send and give a certificate under their seal of office of such neglect or refusal to the vice-chancellor; and the presentation to such benefice, for that turn only, shall be vested in the respective chancellor and scholars. 52.
And for the better discovery of secret trusts and fraudulent conveyances made by papists, it is enacted, that when the presentation of any person presented to any benefice or ecclesiastical living shall be brought to any archbishop, bishop, or other ordinary; he shall, before he give institution, examine the person presented upon oath, whether to the best and utmost of his knowledge and belief, the person who made such presentation be the true and real patron, or made the same in his own right, or whether he be not mediately or immediately, directly or indirectly, trustee or any way intrusted for some other, and whom by name, who is a papist or maketh profession of the popish religion, or the children of such, or for any other and whom, or what he knows, has heard, or believes touching the same; and if such person so presented shall refuse to be examined, or shall not answer directly, the presentation shall be void. § 3.
And the chancellors and scholars of the respective universities, to whom the presentation to such benefices and ecclesiastical livings shall belong in case the rightful patrons had been popish recusants convict, and their presentees or clerks, may for the better discovery of such secret and fraudulent trusts, exhibit their bill in any court of equity, against such person presenting, and such person as they have reason to believe to be the cestui que trust of the advowson, or any other person who they have cause to suspect may be able to make any other or further discovery of such secret trust and practices; to which bill, the defendants being duly served with process of the court, shall forthwith directly answer: and if they shall refuse or neglect to answer, in such time as shall be appointed by the court, the bill shall be taken pro confesso, and be allowed as evidence against such per
son so neglecting and refusing, and his trustees, and his or their - 166] clerk; provided, that every person having fully answered such
bill, and not knowing of any such trust, shall be intitled to his costs to be taxed according to the course of the court. 4.
refusalebo the paid patron the exam
And the court where any quare impedit shall be depending, at the instance of the said chancellor and scholars or their clerk being plaintiffs or defendants in such suit by motion in open court, may make a rule or order requiring satisfaction upon the oath of such patron and his clerk, who in the said suit shall contest the right of the university to present, by examination of them in open court, or by commission under the seal of such court for the examination of them, or by affidavit as the said court shall find most proper, in order to the discovery of any secret trust, frauds, or practices relating to the said presentation; and if it appear to the court, upon the examination of such patron or clerk, that the said patron is but a trustee, then they shall discover who the person is and where he lives; and upon their refusal to make such discovery, or to give satisfaction as aforesaid, they shall be punished as guilty of a contempt of the court: And if the said patron or his clerk shall discover the person for whom the said patron is a trustee; then the court, on motion made in open court, shall make a rule or order, that the person for whom the patron is a trustee shall in the said court, or before commissioners to be appointed for that purpose under the seal of the said court, make and subscribe the declaration against transubstantiation of the 25 C. 2., and likewise, on pain of incurring a contempt of the said court, shall give such further satisfaction upon oath relating to the said trust, as the court shall think fit: and such person so required to make and subscribe the said declaration, and refusing or neglecting so to do, shall be esteemed as a popish recusant convict in respect of such presentation. 5.
And the answer of such patron and the person for whom he is intrusted and his and their clerk or any of them, and their examinations and affidavits taken as aforesaid by order of any court where such quare impedit shall be depending, or by any archbishop, bishop, or other ordinary, or the commissioners as aforesaid (which examinations shall therefore be reduced into writing and signed by the party examined), shall be allowed as evidence against such patron so presenting and his clerk. $ 6.
Provided, that no such bill, nor any discovery to be made by any answer thereunto, or to any such examination as aforesaid, shall be made use of to subject any person making such dis- [ 167 1 covery or not answering such bill, to any penalty or forfeiture, other than the loss of the presentation then in question. 87.
And in case of any such bill of discovery exhibited by the chancellor and scholars or their presentee, no lapse shall incur, nor plenarty be a bar against them, in respect of the benefice or ecclesiastical living, touching which such bill shall he exhibited, till after three months from the time that the answer to such bill shall be put in, or the same be taken pro confesso, or the prose
cution thereof deserted; provided that such bill be exhibited before any lapse incurred. § 8.
And the chancellor and scholars may sue a writ of quare impedit by the name of chancellor and scholars, or by their proper names of incorporation, at their election. 9.
And in case of any such trust confessed or discovered by any answer to such bill or such examination as aforesaid, the court may inforce the producing of the deeds relating to the said trusts, by such methods as they shall find proper. 10.
4. And by the 11 G. 2. c. 17. It is further enacted, that every grant to be made of any advowson or right of presentation, collation, nomination or donation of and to any benefice, prebend, or ecclesiastical living, school, hospital, or donative, and every grant of any avoidance thereof, by any papist or person making profession of the popish religion, whether such trust be declared by writing or not, shall be null and void, unless such grant be made bona fide, and for a full and valuable consideration to and for a protestant purchaser, and merely and only for the benefit of a protestant; and every such grantee or person claiming under any such grant, shall be deemed to be a trustee for a papist or person professing the popish religion within the aforesaid act of 12 Ann.; and all such grantees, and persons claiming under such grants, and their presentees, shall be compelled to make such discovery relating to such grants and presentations made thereupon, and by such methods, as by the said act. And every devise to be made by any papist or person professing the popish religion, of any such advowson or right of presentation, collation, nomination, or donation or any such avoidance, with intent to secure the benefit thereof to the heirs or family of such papist or person professing the popish religion, shall be null and void; and all such devises, and persons claiming under such devises, and their presentees, shall in like manner be compelled to discover, whether to the best of their knowledge and belief, such devises were not made to the said intent. $ 5.
XXXI. Shall be as excommunicated. 1. By the 3 J. c. 5. Every popish recusant convict shall stand and be reputed to all intents and purposes disabled, as a person lawfully and duly excommunicated, and as if he had been so denounced and excommunicated according to the laws of this realm, until he shall conform himself and come to church and hear divine service and receive the sacrament according to the laws of this realm, and take the oaths (of allegiance and supremacy, 1 W. C. 8.); and every person sued by such person so to be disabled, may plead the same in disabling of such plaintiff, as if he were so excommunicated by sentence in the ecclesiastical court. Ø 11.
· 2. And by the 3 J. c. 4. Upon any lawful: writ warrant or process awarded to any sheriff or other officer, for the taking of any popish recusant (actually) excommunicated for such recusancy ; it shall be lawful for such sheriff or other officer, if need be, to break open any house wherein such person excommunicate shall be, or to raise the power of the county, for the apprehending of such person, and the better execution of such warrant, writ, or process. § 35.
XXXII. Shall not repair to court.
1. By the 3 J. c. 5. No popish recusant convict shall come into the court or house where the king or his heir apparent to the crown shall be, unless he be commanded so to do by the king, or by warrant from the lords and others of the privy council, on pain of 100l., half to the king, and half to him that shall sue in any of his majesty's courts of record. § 2.
2. And by the 30 C. 2. st. 2. c. 1. Every peer of this realm, and member of the house of peers, and every peer of Scotland or Ireland, being of the age of one and twenty years or upwards, not having taken the oaths (of allegiance and supremacy, 1 W. C. 8.) and made and subscribed the declaration against popery of the 30 C. 2. st. 2. c. 1. and every member of the house of commons not having taken the said oaths and made and subscribed the said declaration, and every person convicted of popish recusancy, [ 169 7 who shall come advisedly into or remain in the presence of the king, or shall come into the court or house where he resides, shall suffer all the pains, forfeitures, and disabilities of this act; unless he do in the next term after such his coming or remaining take the said oaths, and make and subscribe the said declaration, in the high court of chancery, between the hours of nine and twelve in the forenoon: That is to say, he shall be disabled to execute any office or place of profit or trust, civil or military; or to sit or vote in either house of parliament or to make a proxy in the house of peers; or 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 deed of gift; and shall forfeit 5001. to him who shall sue. § 5, 6.
But this act shall not extend to the prejudice of any person for coming into or remaining in the presence of the king, who shall first have licence so to do by warrant under the hands and seals of six privy counsellors, by order of his majesty's privy couucil, upon some urgent occasion therein to be expressed; so as such licence exceed not ten days, and that it be first filed and put upon record in the office of the petty bag in chancery, for any one to
view without fee: and no person to be licensed above thirty days in any one year. $ 12.
Provided, that if any offender shall after such offence take the oaths and subscribe the declaration in the chancery in manner aforesaid; he shall from thenceforth be freed and discharged from all seizures, penalties and losses which he might otherwise sustain by reason of being a popish recusant convict by virtue of this act, and from all disabilities and incapacities incurred thereby; so as such freedom and discharge extend not to restore any such person to any office or place filled up, nor to any other office till after a year from taking the said oaths and making the said declaration; nor to make void the said forfeiture of 5001. § 13.
[But by the 31 G. 3. c. 32. § 20. This penalty of the 30 C. 2. c. 1. is repealed as to peers, or members of the house of peers of Great Britain or Ireland, professing the Roman catholic religion, who shall take and subscribe the oath prescribed by that act.]
[ 170 ) XXXIII. Shall not come within ten miles of London,
1. By the 3 J. c.5. All popish recusants who shall come, dwell, or remain within the city of London or within ten miles thereof, who shall be indicted or convicted of recusancy, or who shall not repair unto some usual church, or chapel, and there hear divine service, but shall forbear the same by the space of three months, shall within ten days after such indictment or conviction depart from the said city and ten miles compass of the same, and also shall deliver up their names to the lord mayor if such recusant be within the city or the liberties thereof; and if the said recusant shall dwell or remain in any other county within ten miles of the said city, then he shall within the said ten days deliver up his name to the next justice of the peace within such county, on pain of forfeiting to the king 100l. ; half of which shall be to the king, and half to him that will sue in any of the king's courts of record. $ 4.
2. And by the 1 W.c. 9. For the better discovering and removing all papists and reputed papists out of London and Westminster and ten miles of the same; the lord mayor, and every justice of the peace of London, Westminster, and Southwark, and of the counties of Middlesex, Surrey, Kent (and Essex, i W. c. 17.) shall cause to be arrested and brought before him every person, not being a merchant foreigner, as is reputed to be a papist, and tender to him the declaration of the 30C. 2. st. 2. c. 1. and if he refuse to make and subscribe the same, and shall after such refusal continue within the said distance, he shall forfeit and suffer as a popish recusant convict. § 2.
And every justice of the peace shall certify every such subscription before him taken, and also the names of all persons re