A Treatise of the Pleas of the Crown

Penalty on per

"still in force, and executed, against all persons who shall offend against the said laws, unless such persons shall come to some congregation or assembly of religious worship permitted by this act, or the toleration act."

Sect. 8. By 31 Geb. 3. c. 32. s. 10. it is further enacted, sons disturbing "That if any person or persons do and shall, willingly and of congregations,, 66 or misusing maliciously or contemptuously come into any place of purpose, priests. "congregation, or assembly of religious worship, permitted by "this act, and disquiet or disturb the same, or misuse any priest, "minister, preacher, or teacher therein, such person or persons, "upon proof thereof, before any justices of the peace, by two or more sufficient witnesses, shall find two sureties of the peace, "to be bound, by recognizance, in the penal sum of fifty pounds, and, in default of such sureties, shall be committed to prison, "there to remain till the next general or quarter-sessions; and, upon conviction of the said offence, at the said general or quarter-sessions, shall suffer the pain and penalty of twenty pounds, "to the use of the king's majesty, his heirs and successors.'

The act not to extend to Roman Catholic ecclesiastics in certain cases;

nor to exempt Roman Catho

tithes, &c.;

nor to repeal any part of

Sect. 9. By 31 Geo. S. c. 32. s. 11. "Provided always, that 66 no benefit in this act contained shall extend, or be construed to "extend, to any Roman Catholic ecclesiastic permitted by this "act, who shall officiate in any place of congregation or assembly "for religious worship permitted by this act, with a steeple and "bell, or at any funeral in any church or churchyard, or who "shall exercise any of the rites or ceremonies of his religion, or "wear the habits of his order, save within some place of congregation or assembly for religious worship permitted by this act, or in a private house, where there shall not be more than five per"sons assembled, besides those of the household, or who shall "not, previously to his so officiating or exercising his functions as aforesaid, have taken and subscribed the oath of allegiance, ab"juration, and declaration, hereby appointed to be taken as afore66 said."

Sect. 10. By 31 Geo. 3. c. 32. s. 12. Provided also, "That nothing herein contained shall be construed to exempt any lics from paying such person professing the Roman Catholic religion from pay"ing tithes or parochial duties, or any other duties to the church "or minister, or from any prosecution in any ecclesiastical court, or elsewhere, for the same; or to repeal any part of the Marriage Act, or any parts of any other statutes concerning marriages; or to give any ease, benefit, or advantage, to any person "who shall, by preaching, teaching, or writing, deny or gainsay "the oath of allegiance, abjuration, and declaration, herein before " mentioned and appointed to be taken as aforesaid, or the decla"rations or doctrines therein contained, or any of them; or to repeal or affect any law now in force concerning the right or suc"cession to, or the limitation of, the crown.'

26 Geo. 2. cap. 33, &c.

Ministers of any

congregation

Sect. 11. By 31 Geo. 3. c. 32. s. 8. " Every priest, or other Roman Catholic person in holy orders, or pretended holy orders, being a minis"ter, teacher, or preacher of any congregation of persons professing the Roman Catholic religion, who shall take and subscribe oath, exempted the aforesaid oath of allegiance, abjuration, and declaration, in

"manner hereinbefore prescribed, shall from thenceforth be ex"empted from serving upon any jury, or from being chosen or appointed to bear the office of churchwarden, overseer of the poor, or any other parochial or ward office, or other office, in "any hundred of any shire, city, town, parish, division, or wapen"take."

Of not making a Declaration against Popery.

The offence of refusing to make a declaration against some of the principal doctrines of the popish religion puts all persons under the following restraints:-FIRST, From sitting in parliament. SECONDLY, From holding a place at court. THIRDLY, From living within ten miles of London. FOURTHLY, From keeping arms. FIFTHLY, It puts them under a disability of presenting to a church.

mons.

Sect. 1. As to the FIRST of the above-mentioned restraints, Roman Cathoviz. that which relates to the sitting in parliament, it is enacted by lics restrained 30 Car. 2. st. 2. c. 1. "That no peer shall vote or make his proxy the House of from sitting in "in the House of Peers, or sit there during any debate; and that Peers or in the no member of the House of Commons shall vote or sit there House of Comduring any debate after the speaker is chosen, until such peer "or member shall take the oaths of allegiance and supremacy, "and make a declaration of his belief that there is no transubstan"tiation in the sacrament of the Lord's Supper; and that the in"vocation or adoration of the Virgin Mary, or any other saint, "and the sacrifice of the mass, as they are now used in the "Church of Rome, are superstitious and idolatrous, &c., on pain "that every such offender shall be adjudged a popish recusant

"convict, and disabled to hold or execute any office, &c., or from 1 Geo. 1. c. 13. "thenceforth to sit or vote in either house of parliament, to sue in

"law or equity, or to be guardian, executor, or administrator, or capable of any legacy or deed of gift, and shall forfeit for every "wilful offence five hundred pounds."

Sect. 2. As to the SECOND of the above-mentioned restraints, Roman Cathoviz. that which relates to the holding a place at court, it was en- lics restrained from holding a acted by the 30 Car. 2. st. 2. s. 9. 12, 13. "That every sworn place at court. "servant to the king shall take the said oaths, and make the de"claration in Chancery, the next Term after he shall be so sworn "a servant, &c.; and that if any such person neglecting so to do, "should advisedly come into or remain in the presence of the king or queen, or come into the court or house where they or "any of them reside, he shall suffer all the penalties expressed in "the foregoing section, unless such person so coming into the "king's presence, shall first have license so to do." But this clause of the statute is repealed by 2 Geo. 2. c. 31. s. 9.

Reputed Catho

refuse to take

ten miles there

Sect. 3. As to the THIRD of the above-mentioned restraints, lics who shall viz. that which relates to the living within ten miles of London, it the oaths, and is enacted by 1 Will. and Mary, c. 9. "That every justice of remain in Lonpeace in London and Westminster, and within ten miles there- don, or within "of, shall cause to be arrested, and brought before him, all re- of, shall suffer as puted papists (except foreigners, being merchants, or menial popish recusant "servants to some ambassador or public agent, and except all convicts, unless "such as used some trade, mystery, or some manual occupation, statute 31 Geo. qualified as the "at 3. c. 32. directs.

"at the time of the said act, in London, &c., and also except "all such persons as had their dwelling in London, &c. within "six months before the thirteenth of February, 1688, and no "dwelling elsewhere, and certified their names to the sessions "before the first of August, 1689), and that every such justice' "shall tender the said declaration to every such person, and that every such person refusing the same, and afterwards remaining " in London, &c., or within ten miles thereof, or being certified "to the King's Bench or quarter-sessions, at the next term or sessions, as having refused to make the said declaration, and neglecting to make the same in such court, shall suffer as a "popish recusant convict, &c."-But by 31 Geo. 3. c. 32, s. 19. it is enacted," shall not extend, or be deemed, taken, or con"strued to extend, to any person professing the Roman Catholic religion, who shall take and subscribe the oath of allegiance, "abjuration, and declaration, therein appointed to be taken and "subscribed."

Sect. 4. As to the FOURTH of the above-mentioned restraints, viz. that which relates to the keeping arms, it is enacted by 1 Will. and Mary, c. 15. "That any two justices of the peace I may and ought to tender the said declaration to any person "whom they shall know, or suspect, or have information of, as "being a papist, or suspected to be such; and that no such person so required, and not making and subscribing the said de«claration, or not appearing before the said justices upon notice "to him given, or left at his usual abode, by one authorised by "warrant under the hands and seals of the said justices, shall keep any arms or ammunition, or horse above the value of five pounds, in his own possession, or in the possession of any "other person to his use (other than such necessary weapons as "shall be allowed him by the quarter-sessions for the defence of "his house or person); and that any two justices of peace, by "warrant under their hands and seals, may authorise any person "in the day-time, with the assistance of the constable or his de"puty, or the tithing-man, to search for all such arms, &c. and "horses, and seize them to the king's use; and that the said jus"tices shall deliver the said arms and ammunition at the next "quarter-sessions in open court; and that whoever shall conceal, "&c., or shall be aiding to the concealing any such arms or "horses, shall be committed to the common gaol, by warrant un"der the hands and seals of any two justices of peace, and also "forfeit treble the value; and that those who discover any such "arms or ammunition, so as the same may be seized, shall have "the full value thereof, to be awarded to them by the sessions, &c., and that such refusers of the said declaration, &c. shall be discharged whenever they shall make the same." But by 31 Geo. 3. c. 32. s. 18. " No person shall be summoned to make "the declaration, or be prosecuted for not obeying such sum"mons."

Sect. 5. FIFTHLY, As to the above-mentioned disability of presenting to a church, it is enacted by 1 Will. and Mary, c. 26. "That whoever shall refuse to make the said declaration upon "such a tender thereof as is prescribed by the said act, shall be

66 disabled

disabled to present to any benefice, &c." But it seems needless to set forth the clause of the said statute relating to this matter at large in this place, inasmuch as, by 12 Ann. c. 14. "All persons whatsoever making profession of the popish By 4 Geo. S. c. "religion are under the like disability," as will appear from 2. s. 57. papists the following section.

are made liable to pay double

land-tax, if they do not conform in the manner directed by the act.

Of promoting the Popish Religion.

Offences in promoting or encouraging the popish religion seem 1 Comm. 451. to be reducible to the following heads: FIRST, Giving or receiv- 4 Comm. 55. ing popish education: SECONDLY, Professing the popish religion: THIRDLY, Buying or selling popish books.

I. Giving or receiving popish education.

115.

cating protestant children,

catholic faith,

Sect. 1. This depends upon several statutes. And first, it is Persons eduenacted by 1 Jac. 1. c. 4. s. 6, 7. "That if any person or per“sons under the king's obedience shall go or send, or cause to or sending them "be sent, any child, or any other person under their or any of abroad to be "their government, beyond the seas, out of the king's obedience, educated in the "to the intent to enter into, or reside in, or repair to any college, shall forfeit "&c. of any popish order, profession, or calling, to be instructed, £100, and be "persuaded, or strengthened in the popish religion, or in any "sort to profess the same, every such person so sending such Lucas, 113. child, &c. shall forfeit £100, and every such person, so pass- 356. 406. ing or being sent, &c. shall in respect of him or herself only, 10 Mod. 113. " and not in respect of any of his heirs or posterity, be disabled. Comyns, 207. "to inherit, purchase, take, have or enjoy, any profits, heredita"ments, chattels, debts, legacies, or sums of money, &c. whatso

ever: and that all estates, terms, or other interests whatsoever "to be made, suffered, or done, to the use or behoof of any such "person, or upon any trust or confidence, mediately or imme"diately, to or for the benefit or relief of any such person, shall "be utterly void."

disabled, &c.

Str. 318.

years age,

oaths, &c.

Keb. 263.

Sect. 2. And it is further enacted by 3 Jac. 1. c. 5. s. 16. The children of "That if the children of any subject within the realm (the said English subjects ❝ children not being soldiers, mariners, merchants, or their ap- be sent abroad who shall go, or prentices or factors) shall be sent or go beyond sea, to prevent without license, "their good education in England, or for any other cause, with- shall be disabled " out the license of the king or six of his privy council (whereof years of a "the principal secretary to be one), under their hands and seals, they take the "that then every such child shall take no benefit by any gift, conveyance, descent, devise, or otherwise, of or to any heredita- Vide 3 Bac. "ment or chattel, till such child, being of the age of eighteen Abr. 789. and 66 years or above, take the oath of obedience before some justice the cases, &c. "of peace of the county, liberty, or limit, where the parent of "such child did and shall inhabit; and that in the meantime "the next of kin to such child, who shall be no popish recusant, "shall have the said hereditaments, &c. so given, &c. until such "child shall conform, &c. and take the said oath, and receive Vide 11 & 12 "the sacrament: and that after such conformity, &c. he who hath Will. S. c. 4. "received the profits of the said hereditaments, &c. shall account 18 Geo. 3. ch. "for the same, and in reasonable time make payment thereof, "and

there cited.

60.

Persons who shall go themselves, or send others abroad,

to be trained up

nary, shall be

disabled, and forfeit their

estates real and personal;

"and restore the value of the said goods, &c. And that who66 ever shall send such child over seas, shall forfeit one hundred pounds."

Sect. 3. Also it is enacted by S Car. 1. c. 2. "That if any person under the obedience of the king shall go, or shall convey or send, or cause to be sent or conveyed, any person out "of the king's dominions, into any parts beyond the seas, out of any nunnery"the king's obedience, to the intent to enter into, or be resident or popish semi-or trained up in, any priory, abbey, nunnery, popish university, college, or school, or house of jesuits, priests, or in a private "popish family, and shall be there by any popish person in"structed, persuaded, or strengthened in the popish religion in any sort to profess the same; or shall convey or send, or cause "to be conveyed or sent, any thing towards the maintenance of any person so going or sent, and trained and instructed, as is aforesaid, or under the colour of any charity towards the relief "of any priory, &c. or religious house whatsoever; every person "so sending, &c. any such person or thing, and every person passing or sent, being thereof convicted, &c. shall be disabled "to prosecute any suit in law or equity, or to be executor or administrator to any person, and be incapable of any legacy or "deed of gift, or to bear any office within the realm; and shall "forfeit all his goods and chattels, with all his hereditaments, "offices, and estates of freehold, during his life."

unless such person shall be

31 Geo. 3. c. 32. directs.

But by the 31 Geo. 3. c. 32. s. 4. "No person who shall "take and subscribe the oath before-mentioned shall be prequalified as the «sented, indicted, sued, impeached, prosecuted, or convicted for being a papist, or reputed papist, or for professing or being "educated in the popish religion, or for entering into, or belonging to any ecclesiastical order or community of the church of "Rome, or for maintaining or assisting others therein."

No person professing the Roman Catholic religion shall

take any estate in lands, by de

scent, devise, &c. Sed vide infra.

1 Atk. 526.

II. Professing the popish religion is punished with the following disabilities: FIRST, Of taking an estate in lands: SECONDLY, Of presenting to a church. And with the following restraints: FIRST, From keeping school: SECONDLY, From withholding a competent maintenance from a protestant child.

Sect. 4. As to the FIRST of the above-mentioned disabilities, viz. that of taking an estate in lands, it is enacted by 11 and 12 W. 3. c. 4. " That every person educated in, or professing the popish religion, who shall not, within six months after the age " of eighteen years, take the oath of allegiance and supremacy, "and subscribe the declaration against popery mentioned in "30 Car. 2. stat. 2. chap. 1. in the Chancery, or King's Bench, or quarter-sessions of the county where such person shall "reside, shall in respect of himself or herself only, and not in 2 Atk. 65. 155. “respect of any of his or her heirs or posterity, be disabled to "inherit or take by descent, devise, or limitation, in possession, reversion, or remainder, any lands, tenements, or hereditaments, " in England or Wales, &c. And during the life of such person, "and until he take the said oaths, &c. his next of kin, being a "protestant, shall enjoy the same, without being accountable for "the profits, but shall not do wilful waste under the pain of forfeiting

537.

210.

S Atk. 155. 457. 8 Mod. 167.

2 P. Will. 5.

155. 364.
10 Mod. 89.
230.

Strange, 1096.

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A Treatise of the Pleas of the Crown: Or, A System of the ..., Volume 1