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inhabiting within this realm; but if it shall happen any such offender then not to be within this realm, the party shall be relieved by plea to be put in and not otherwise: And upon the indictment of such offender, a proclamation shall be made at the assizes in which the indictment shall be taken (if the same be taken at any assize) by which it shall be commanded, that the body of such offender shall be rendered to the sheriff before the next assizes; and if at the said next assizes the offender so proclaimed shall not appear of record, then upon such default recorded, the same shall be as sufficient a conviction in law of the said offence as if a trial had been by verdict. § 5.

Provided, that when such offender shall make submission and conform, or shall die; no forfeiture of 20l. for any month or seizure of the lands of the offender, from such submission and conformity or death, and satisfaction of all the arrearages of 201. monthly, before such seizure due or payable, shall ensue or be continued against such offender. § 6.

And the lord treasurer, chancellor, and chief baron of the exchequer, or two of them, may assign such third part given to the poor by the former act, as well for relief of the poor, and of the houses of correction as of impotent and maimed soldiers; as they [142] or any two of them shall appoint. § 7.

And this act shall not extend to continue any seizure of any lands of such offender in the queen's hands, after the offender's death, which lands he shall have only for term of his life, or in the right of his wife. § 9.

May seize all the goods] The king, according to the better opinion, may seize the goods, but not grant them over, without an inquisition to be taken. 1 Haw. 20.

And two parts of the lands] But the king cannot seize the lands till it appears by the return of an inquisition to that purpose to be awarded, of what lands the offender was seised; because the king's title to lands ought always to appear of record. 1 Haw. 20. [see 3 Jac. 1. c. 4. § 11, 12. infra, 143.]

Shall not appear of record] If a recusant who was proclaimed at the assizes, render himself at the next assizes to plead or traverse; he must appear in person, and he is to be in custody; for the words of the statute and of the proclamation are, that he shall render his body to the sheriff. Kelyng. 35.

Of record] An actual personal appearance of the defendant will no way avail him, unless the same be entered of record. 1 Haw. 16.

And by the 1J. c. 4. Where any seizure shall be had of the two parts of the lands for the not payment of 201. a month; such two parts shall, according to the extent thereof, go towards the payment of such 201. a month being unpaid by any such recusant: and the third part thereof shall not be extended or seized by the

king for not payment of the said 20%. a month. And where any
seizure shall be had of the two parts as aforesaid, and such re-
cusant shall die, the debt or duty by reason of his recusancy not
being discharged; in such case the same two parts shall continue
in his majesty's possession until the residue of the said debt or
duty shall be discharged: and the king shall not seize or extend
any third part descending to any such heirs, either by reason of
the recusancy
of his ancestors, or the recusancy of any such

heirs. § 5.

And moreover, by the 3J. c. 4. it is further enacted, that every offender in not repairing to divine service, being 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 201. 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 in[143] dictment or conviction, forfeit 20l. and pay into the receipt of the exchequer aforesaid at two times in the year, viz. in every Easter and Michaelmas term, as much as shall then remain unpaid after the rate of 201. for every month after such conviction; except in such cases where the king may by this act refuse the same, and take two parts of the lands 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. § 8.

And every conviction so recorded, shall by the justices before whom the record of the conviction shall be, be certified into the 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 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 hereinbefore limited; then, and so often, the king may by process out of the exchequer seize all the goods, and two parts as well of all the lands, leases, and farms of such offender, as of all other lands liable to seizure or to the penalties aforesaid by the true meaning of this act, leaving the third part only of the said lands, leases, and farms for the maintenance of the offender, his wife, children, and family. §9.

And the king shall have power to refuse the 201. a month though it be tendered ready to be paid, and thereupon to seize two parts in three to be divided as well of all the lands, leases, and farms that at the time of such seizure shall be or afterwards shall come to any such offender in not coming to church, or to any other to his use, as of all other lands liable to such seizure, or to the penalties aforesaid, and the same to retain till such offender shall conform himself, in lieu of the 201. monthly that during such his seizure and retainer shall incur. Saving to all

persons (other than the offender, his heirs, or others claiming to his or their use) all leases, rents, conditions, and other rights and titles made and done without fraud. § 11.

But the king 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, nor put over the said two parts, nor any part thereof, to any recusant, nor to his use: And whosoever shall take the same in lease or otherwise of his majesty, shall give such security not to commit nor suffer waste, as by the court of exchequer shall be allowed. § 12.

And no indictment against any person for not coming to [144 ] church, nor any proclamation, outlawry, or other proceeding thereupon shall be reversed for any default in form, nor otherwise than by direct traverse to the point of not coming to church. § 16.

Provided, that if such person indicted shall submit and conform and repair to church, he may from thence be admitted to avoid and reverse the indictment and all proceedings thereupon, as if this act had not been made. § 17.

And every of the said offences against this act may be inquired of, heard, and determined before the justices of the king's bench or of assise, or before the justices of the peace in sessions. § 36.

Shall be reversed for any default in form.] But it hath been resolved, that the party is only restrained from taking advantage of defects in the record itself, and that he may plead any collateral matter, as a pardon, or a former conviction. 1 Haw. 17.

And that he may even reverse a judgment after verdict for any such defect in the record itself, as tends to the king's prejudice, as the omission of a capiatur or the like: and that he may reverse an outlawry for any common defect, upon putting in bail, and traversing the indictment as to the point of not coming to church; which is very agreeable to the purport of the whole clause, the latter part whereof seems manifestly to qualify the generality of the former. 1 Haw. 17.

[By the 31 G. 3. c. 32. § 3. No person who shall take and subscribe the oath therein before appointed to be taken and subscribed by papists (for which see Daths, 20 B.), shall be convicted or prosecuted upon, or shall be liable to be prosecuted upon the last recited statutes, or any of them, or upon any other statute, or any other law of this realm, by indictment, information, action of debt or otherwise, or shall be prosecuted in any ecclesiastical court, for not resorting or repairing to his or her parish church or chapel, or some other usual place of common prayer, to hear divine service, and join in public worship, according to the forms and rites of the church of England, as by law established. But the laws for frequenting divine service on Sunday, shall continue in force against all persons except those who shall come to some congregation or place of religious worship

permitted by that act (for which see infra XLVI.) or the act of Toleration.]

[145] XVI. Perverting others, or being perverted to popery.

By the 23 El. c. 1. All persons who shall have or pretend to have power or shall put in practice to absolve, persuade or withdraw any of the subjects from their natural obedience, or to withdraw them for that intent from the established to the Romish religion, or to move them to promise any obedience to any pretended authority of the see of Rome or of any other prince, state, or potentate to be had or used within this realm, or shall do any overt act to that intent or purpose, shall be guilty of high treason. § 2.

And if any person shall be willingly absolved or withdrawn as aforesaid, or willingly be reconciled, or shall promise any obedience to any such pretended authority, prince, state, or potentate; he, his procurers and counsellors, shall be guilty of high treason. § 2.

And all persons that shall wittingly be aiders or maintainers of such persons so offending, knowing the same, or shall conceal any such offence, and shall not within twenty days after their knowledge of the offence disclose the same to a justice of the peace or other high officer, shall be guilty of misprision of treason. § 3.

Pretend to have power, or shall put in practice] Upon the indictment against Campion and others, 33 El. concerning which the judges were assembled at Serjeants Inn, it was resolved by them, that if any person shall pretend to have power to absolve, though he move none with an intent to draw them from their obedience; or shall move any with an intent to draw them from their obedience, though he pretend not to have power to absolve; both these acts, singly taken, are treason within the purview of this statute. Gibs. 536. [Savil. 3.]

XVII. Entering into foreign service.

By the 3 Jac. c. 4. If any gentleman or person of higher degree, or any person that shall bear any office or place of captain, lieutenant, or any other place, charge, or office, in camp, army, or company of soldiers, or conduct of soldiers, shall go voluntarily out of the realm to serve any foreign prince, state, or potentate, or shall voluntarily serve any such, before he shall become bound by obligation with two such sureties, as shall be allowed of by the officers, who shall take the bond unto the king in the sum of 201. at the least with condition to the effect following, shall be a felon. The tenor of which condition followeth; § 19.

That if the within bounden A. B. shall not at any time then after

be reconciled to the pope or see of Rome, nor shall enter into or consent unto any plot or conspiracy whatsoever against the king's majesty, his heirs and successors, or any his and their estate and estates, realms or dominions, but shall within convenient time after knowledge thereof had, reveal and disclose to the king's majesty, his heirs and successors, or some of the lords of his or their honourable privy council, all such practices, plots, and conspiracies; that then the said obligation to be void. § 20.

And the customer and comptroller of every port, haven, or creek, or one of them, or their or either of their deputy, may take the said bond; taking for the same 6d. and no more. Which said customer and comptroller shall register and certify every such bond into the court of exchequer once every year, on pain of 5l. § 21.

And where any such person shall pass out of the cinque ports or any member thereof; the lord warden of the cinque ports, or any person by him appointed, may take such bond as aforesaid. $42.

XVIII. Refusing the oaths and subscriptions.

1. By the 7 J. c. 6. If any person of or above the degree of a baron or baroness, and above the age of eighteen years, shall stand and be presented, indicted, or convicted for not coming to church, or not receiving the sacrament according to law, before the ordinary, or other having lawful power to take such presentment or indictment; then three of the privy council, whereof the lord chancellor, lord treasurer, lord privy seal, or principal secretary to be one, upon knowledge thereof shall require such person to take the oaths of allegiance and supremacy: And if any other person of and above the said age and under the said degree, shall so stand and be presented, indicted, or convicted; or if the minister, petty constable, and churchwardens, or any two of them, shall complain to any justice of the peace, near adjoining to the place where any person complained of shall dwell, and the said justice shall find cause of suspicion; then any one justice of within whose commission or power peace, such person shall be, or to whom complaint shall be made, shall upon notice thereof require such person to take the said oaths. And if any person being of the age of eighteen years or above shall refuse to take [147] the said oaths duly tendered; then the persons authorised to give the said oaths, shall commit him to the common gaol till the next assises or sessions, where the said oaths shall be again in the said open sessions required of such person, by the justices of assize or of the peace then and there present; and if he shall then also refuse, he shall incur a præmunire. (Except women

the

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