(1660, April 4. Cobbett’s Parliamentary History, iv. 16. Gardiner, 465-467. G. and H. 585-588.)
CHARLES R.
Charles, by the grace of God, King of England, Scotland, France and Ireland, Defender of the Faith, &c. To all our loving subjects, of what degree or quality soever, greeting.
If the general distraction and confusion which is spread over the whole kingdom, doth not awaken all men to a desire and longing that those wounds, which have so many years together been kept bleeding, may be bound up, all we can say will be to no purpose; however, after this long silence, we have thought it our duty to declare how much we desire to contribute thereunto; and that as we can never give over the hope, in good time, to obtain the possession of that right which God and nature hath made our due, so we do make it our daily suit to the Divine Providence, that He will, in compassion to us and our subjects, after so long misery and sufferings, remit and put us into a quiet and peaceable possession of that our right, with as little blood and damage to our people as is possible; nor do we desire more to enjoy what is ours, than that all our subjects may enjoy what by law is theirs, by a full and entire administration of justice throughout the land, and by extending our mercy where it is wanted and deserved.
And to the end that the fear of punishment may not engage any, conscious to themselves of what is past, to a perseverance in guilt for the future, by opposing the quiet and happiness of their country, in the restoration of king, peers and people to their just, ancient and fundamental rights, we do, by these presents, declare, that we do grant a free and general pardon, which we are ready, upon demand, to pass under our Great Seal of England, to all our subjects, of what degree or quality soever, who, within forty days after the publishing hereof shall lay hold upon this our grace and favour, and shall, by any public act, declare their doing so, and that they return to the loyalty and obedience of good subjects; excepting only such persons as shall hereafter be excepted by Parliament, those only to be excepted. Let all our subjects, how faulty soever, rely upon the word of a King, solemnly given by this present declaration, that no crime whatsoever, committed against us or our royal father before the publication of this, shall ever rise in judgment, or be brought in question, against any of them, to the least endamagement of them, either in their lives, liberties or estates, or (as far forth as lies in our power) so much as to the prejudice of their reputations by any reproach or term of distinction from the rest of our best subjects; we desiring and ordaining that henceforth all notes of discord, separation and difference of parties be utterly abolished among all our subjects, whom we invite and conjure to a perfect union among themselves, under our protection, for the re-settlement of our just rights and theirs in a free Parliament, by which, upon the word of a King, we will be advised.
And because the passion and uncharitableness of the times have produced several opinions in religion, by which men are engaged in parties and animosities against each other (which, when they shall hereafter unite in a freedom of conversation, will be composed or better understood), we do declare a liberty to tender consciences, and that no man shall be disquieted or called in question for differences of opinion in matter of religion, which do not disturb the peace of the kingdom; and that we shall be ready to consent to such an Act of Parliament, as, upon mature deliberation, shall be offered to us, for the full granting that indulgence.
And because, in the continued distractions of so many years, and so many and great revolutions, many grants and purchases of estates have been made to and by many officers, soldiers and others, who are now possessed of the same, and who may be liable to actions at law upon several titles, we are likewise willing that all such differences, and all things relating to such grants, sales and purchases, shall be determined in Parliament, which can best provide for the just satisfaction of all men who are concerned.
And we do further declare, that we will be ready to consent to any Act or Acts of Parliament to the purposes aforesaid, and for the full satisfaction of all arrears due to the officers and soldiers of the army under the command of General Monk; and that they shall be received into our service upon as good pay and conditions as they now enjoy.
Given under our Sign Manual and Privy Signet, at our Court at Breda, this 4/14 day of April, 1660, in the twelfth year of our reign.
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(1660. December 24. 12 Charles II c. 24. 5 S. R. 259.)
[Short title: Tenures Abolition Act 1660]
WHEREAS it hath been found by former experience, that the court of wards and liveries, and tenures by knights service either of the king or others, or by knights service in capite, or socage in capite of the king, and the consequents upon the same, have been much more burdensome, grievous and prejudicial to the kingdom than they have been beneficial to the king; and whereas since the intermission of the said court, which hath been from the four and twentieth day of February which was in the year of our Lord one thousand six hundred forty and five, many persons have by will and otherwise made disposal of their lands held by knights service, whereupon divers questions might possibly arise unless some seasonable remedy be taken to prevent the same: be it therefore enacted by the king our sovereign lord with the assent of the lords and commons in parliament assembled and by the authority of the same, and it is hereby enacted, that the court of wards and liveries, and all wardships, liveries, primer-seisins and ouster-le-mains, values and forfeitures of marriages, by reason of any tenure of the king’s Majesty, or of any other by knights service, and all mean rates, and all other gifts, grants, charges, incident or arising for or by reason of wardships, liveries, primer-seisins or ouster-le-mains, be taken away and discharged, and are hereby enacted to be taken away and discharged, from the said twenty-fourth day of February one thousand six hundred forty-five, any law, statute, custom, or usage to the contrary hereof any wise notwithstanding; and that all fines for alienations, seizures and pardons for alienations, tenure by homage and all charges incident or arising for or by reason of wardship, livery, primer-seisin or ouster-le-mains or tenure by knights service, scutage and also aide pur file marrier and pur fair fitz chivalier and all other charges incident thereunto, be likewise taken away and discharged from the said twenty-fourth day of February one thousand six hundred forty and five, any law, statute, custom or usage to the contrary hereof any wise notwithstanding: and that all tenures by knights service of the king, or of any other person, and by knights service in capite, and by socage in capite of the king, and the fruits and consequents thereof, happened or which shall or may hereafter happen or arise thereupon or thereby, be taken away and discharged, any law, statute, custom or usage to the contrary hereof any wise notwithstanding; and all tenures of any honours, manors, lands, tenements or hereditaments of any estate of inheritance at the common law held either of the king or of any other person or persons, bodies politic or corporate, are hereby enacted to be turned into free and common socage to all intents and purposes from the said four and twentieth day of February one thousand six hundred forty-five, and shall be so construed, adjudged and deemed to be from the said twenty-fourth day of February one thousand six hundred forty-five, and forever thereafter turned into free and common socage, any law, statute, custom or usage to the contrary hereof in any wise notwithstanding;
II. And that the same shall for ever hereafter stand and be discharged of all tenure by homage, scutage, voyages royal and charges for the same, wardships incident to tenure by knights service, and values and forfeitures of marriage, and all other charges incident to tenure by knights service. and of and from aide pur file marrier and aide pur fair fitz chivalier, any law, statute, custom or usage to the contrary in any wise notwithstanding; and that all conveyances and devises of any manors, lands, tenements and hereditaments made since the said twenty-fourth of February shall be expounded to be of such effect, as if the same manors; lands, tenements and hereditaments had been then held and continued to be holden in free and common socage only, any law, statute, custom or usage to the contrary hereof in any wise notwithstanding.
III. And be it further ordained and enacted by authority of this present parliament that one act made in the reign of King Henry the Eighth, entitled An Act for the establishment of the court of the king’s wards, and also one act of parliament made in the three and thirtieth year of the reign of the said King Henry the Eighth concerning the officers of the Court of wards and liveries, and every clause, article and matter in the said acts contained shall from henceforth be repealed and utterly void.
IV. And be it further enacted by the authority aforesaid that all tenures hereafter to be created by the king’s Majesty, his heirs or successors, upon any gifts or grants of any manors, lands, tenements or hereditaments of any estate of inheritance at the common law shall be in free and common socage, and shall be adjudged to be in free and common socage only, and not by knights service or in capite, and shall be discharged of all wardship, value and forfeiture of marriage, livery, primer-seisin, ouster-le-main, aide pur fair fitz chivalier, and pur file marrier, any law, statute or reservation to the contrary thereof any wise notwithstanding.
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VIII. And be it further enacted by the authority aforesaid, that where any person hath or shall have any child or children under the age of one and twenty years, and not married at the time of his death, that it shall and may be lawful to and for the father of such child or children * * * by his deed executed in his life-time, or by his last will and testament in writing * * * to dispose of the custody and tuition of such child or children, for and during such time as he or they shall respectively remain under the age of one and twenty years, or any lesser time, to any person or persons in possession or remainder, other than popish recusants; * * *
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XI. That from henceforth no sum or sums of money or other thing shall be taken, raised, taxed, rated, imposed, paid or levied for or in regard of any provision, carriages or purveyance for his Majesty, his heirs or successors.
XII. And that henceforth no person or persons by any warrant, commission or authority under the great seal or otherwise by colour of buying or making provision or purveyance for his Majesty, or any queen of England for the time being, or of any the children of any king or queen of England for the time being, or that shall be, or for his or their or any of their household, shall take any timber, fuel, cattle, corn, grain, malt, hay, straw, victual, cart, carriage or other thing whatsoever of any the subjects of his Majesty, his heirs or successors, without the free and full consent of the owner or owners thereof had and obtained without menace or enforcement, nor shall summon, warn, take, use or require any the said subjects to furnish or find any horses, oxen or other [cattle], carts, ploughs, wains or other carriages for the use of his Majesty, his heirs or successors, or of any queen of England, or of any child or children of any the kings or queens of England for the time being, for the carrying the goods of his Majesty, his heirs or successors, or the said queens or children or any of them, without such full and free consent as aforesaid, any law, statute, custom or usage to the contrary notwithstanding.
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XIV. * * * And now to the intent and purpose that his Majesty, his heirs and successors, may receive a full and ample recompense and satisfaction as well for * * * and other the premises and perquisites incident thereunto; * * * as also for all and all manner of purveyance and provisions hereinbefore mentioned,
* * *
XV. Be it therefore enacted by the authority aforesaid that there shall be paid unto the king’s Majesty, his heirs and successors for ever hereafter:
[Then follow clauses fixing the rate of an excise on beer, ale, cider, perry, metheglin, mead, aqua vitæ or strong-water, coffee, chocolate, sherbet, tea, the method of raising such excise, and penalties.]
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(1661, December 20. 13 Charles II, st. 2., c. 1. 5 S. R. 321. The whole reprinted in G. and H. 594-600.)
WHEREAS questions are likely to arise concerning the validity of elections of magistrates and other officers and members in corporations, as well in respect of removing some as placing others, during the late troubles, contrary to the true intent and meaning of their charters and liberties; and to the end that the succession in such corporations may be most probably perpetuated in the hands of persons well affected to His Majesty and the established government, it being too well known that notwithstanding all His Majesty’s endeavours and unparalleled indulgence in pardoning all that is past, nevertheless many evil spirits are still working:
II. Wherefore for prevention of the like mischief for the time to come, and for preservation of the public peace both in church and state, be it enacted by the king’s most excellent Majesty by and with the advice and consent of the lords spiritual and temporal and commons assembled in Parliament, and by the authority of the same, that commissions shall before the twentieth clay of February next be issued forth under the great seal of England unto such persons as His Majesty shall appoint for the executing of the powers and authorities hereinafter expressed, and that all and every the persons to be named commissioners in the said commissions respectively shall by virtue of this act be commissioners respectively for and within the said several cities, corporations and boroughs, and Cinque ports and their members, and other port towns within the kingdom of England, dominion of Wales and town of Berwick upon Tweed, for which they shall be respectively nominated and appointed.
III. And be it further enacted by the authority aforesaid, that no charter of any corporation, cities, towns, boroughs, Cinque ports and their members, and other port towns in England or Wales or town of Berwick upon Tweed shall at any time hereafter be avoided for or by reason of any act or thing done or omitted to be done before the first day of this present parliament.
IV. And be it further enacted by the authority aforesaid, that all persons who upon the four and twentieth day of December one thousand six hundred sixty and one shall be mayors, aldermen, recorders, bailiffs, town-clerks, common council men and other persons then bearing any office or offices of magistracy or places or trusts or other employment relating to or concerning the government of the said respective cities, corporations and boroughs, and Cinque ports and their members, and other port towns shall at any time before the five and twentieth day of March one thousand six hundred sixty and three, when they shall be thereunto required by the said respective commissioners or any three or more of them, take the oaths of allegiance and supremacy, and this oath following;
V. ‘I, A. B., do declare and believe, that it is not lawful upon any pretence whatsoever to take arms against the king, and that I do abhor that traitorous position of taking arms by his authority against his person or against those that are commissioned by him: So help me God.’
VI. And also at the same time shall publicly subscribe before the said commissioners or any three of them this following declaration;
‘I, A. B., do declare, that I hold that there lies no obligation upon me or any other person from the oath commonly called the Solemn League and Covenant, and that the same was in itself an unlawful oath and imposed upon the subjects of this realm against the known laws and liberties of the kingdom.’
VII. And that all such of the said mayors and other the persons aforesaid by whom the said oaths are to be taken and declarations subscribed as aforesaid, who shall refuse to take and subscribe the same within the time and in manner aforesaid, shall from and immediately after such refusal be by authority of this act (ipso facto) removed and displaced of and from the said offices and places respectively; and the said offices and places from and immediately after such refusal shall be and are hereby declared and adjudged to be void to all intents and purposes, as if the said respective persons so refusing were naturally dead.
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XII. Provided also, and be it enacted by the authority aforesaid, that from and after the expiration of the said commissions, no person or persons shall for ever hereafter be placed, elected or chosen in or to any the offices or places aforesaid, that shall not have, within one year next before such election or choice, taken the sacrament of the Lord’s Supper, according to the rites of the Church of England; and that every such person and persons so placed, elected or chosen shall likewise take the aforesaid three oaths and subscribe the said declaration, at the same time when the oath for the due execution of the said places and offices respectively shall be administered; and in default hereof every such placing, election and choice is hereby enacted, and declared to be void.
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(1662, May 19. 13 & 14 Charles II. c. 4. 5 S. R. 364. The whole reprinted in G. and H. 600-619.)
WHEREAS in the first year of the late Queen Elizabeth there was one uniform order of common service and prayer and of the administration of sacraments, rites and ceremonies in the Church of England (agreable to the word of God and usage of the primitive church) compiled by the reverend bishops and clergy, set forth in one book, entitled, ‘The Book of Common Prayer and Administration of Sacraments and other Rites and Ceremonies in the Church of England,’ and enjoined to be used by act of parliament, holden in the said first year of the said late queen, entitled, ‘An Act for the Uniformity of Common Prayer and Service in the Church and Administration of the Sacraments,’ very comfortable to all good people desirous to live in Christian conversation and most profitable to the estate of this realm, upon the which the mercy, favour and blessing of Almighty God is in no wise so readily and p1entifully poured, as by common prayers, due using of the sacraments and often preaching of the gospel with devotion of the hearers; and yet, this notwithstanding, a great number of people in divers parts of this realm, following their own sensuality and living without knowledge and due fear of God, do wilfully and schismatically abstain and refuse to come to their parish churches and other public places where common prayer, administration of the sacraments and preaching of the word of God is used upon the Sundays and other days ordained and appointed to be kept and observed as holy days; and whereas by the great and scandalous neglect of ministers in using the said order or liturgy so set forth and enjoined as aforesaid, great mischiefs and inconveniences during the times of the late unhappy troubles have arisen and grown, and many people have been led into factions and schisms, to the great decay and scandal of the reformed religion of the Church of England, and to the hazard of many souls; for prevention whereof in time to come, for settling the peace of the church and for allaying the present distempers, which the indisposition of the time hath contracted, the king’s Majesty, according to his declaration of the five and twentieth of October one thousand six hundred and sixty granted his commission under the great seal of England to several bishops and other divines to review the Book of Common Prayer, and to prepare such alterations and additions as they thought fit to offer; and afterwards the convocations of both the provinces of Canterbury and York being by his Majesty called and assembled, and now sitting, his Majesty hath been pleased to authorize and require the presidents of the said convocations, and other the bishops and clergy of the same, to review the said Book of Common Prayer and the book of the form and manner of the making and consecrating of bishops, priests and deacons, and that after mature consideration they should make such additions and alterations in the said books respectively, as to them should seem meet and convenient, and should exhibit and present the same to his Majesty in writing for his further allowance or confirmation; since which time upon full and mature deliberation they the said presidents, bishops and clergy of both provinces, have accordingly reviewed the said books and have made some alterations which they think fit to be inserted to the same, and some additional prayers to the said Book of Common Prayer to be used upon proper and emergent occasions, and have exhibited and presented the same unto his Majesty in writing in one book, entitled, ‘The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the Use of the Church of England, together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, and the Form and Manner of Making, Ordaining and Consecrating of Bishops, Priests and Deacons’; all which his Majesty having duly considered, hath fully approved and allowed the same, and recommended to this present parliament that the said Books of Common Prayer, and of the Form of Ordination and Consecration of Bishops Priests and Deacons, with the alterations and additions which have been so made and presented to his Majesty by the said convocations, be the book which shall be appointed to be used by all that officiate in all cathedral and collegiate churches and chapels, and in all chapels of colleges and halls in both the universities, and the colleges of Eton and Winchester and in all parish churches and chapels within the kingdom of England, dominion of Wales and town of Berwick upon Tweed, and by all that make or consecrate bishops, priests or deacons in any of the said places, under such sanctions and penalties as the houses of parliament shall think fit:
II. Now in regard that nothing conduceth more to the settling of the peace of this nation, (which is desired of all good men) nor to the honour of our religion and the propagation thereof, than an universal agreement in the public worship of Almighty God, and to the intent that every person within this realm may certainly know the rule to which he is to conform in public worship and administration of sacraments and other rites and ceremonies of the Church of England, and the manner how and by whom bishops, priests and deacons are and ought to be made ordained and consecrated: be it enacted by the king’s most excellent Majesty, by the advice and with the consent of the lords spiritual and temporal and the commons in this present parliament assembled, and by the authority of the same, that all and singular ministers in any cathedral, collegiate or parish church, or chapel, or other place of public worship within this realm of England, dominion of Wa1es and town of Berwick upon Tweed shall be bound to say and use the morning prayer, evening prayer, celebration and administration of both the sacraments, and all other the public and common prayer, in such order and form as is mentioned in the said book annexed and joined to this present act, and entitled, ‘The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church, according to the Use of the Church of England, together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, and the Form or Manner of Making, Ordaining and Consecrating of Bishops, Priests and Deacons’; and that the morning and evening prayers therein contained shall upon every Lord’s day and upon all other days and occasions and at the times therein appointed, be openly and solemnly read by all and every minister or curate, in every church, chapel or other place of public worship within this realm of England and places aforesaid.
III. And to the end that uniformity in the public worship of God (which is so much desired) may be speedily effected, be it further enacted by the authority aforesaid, that every parson, vicar or other minister whatsoever, who now hath and enjoyeth any ecclesiastical benefice or promotion within this realm of England or places aforesaid, shall in the church, chapel or place of public worship belonging to his said benefice or promotion, upon some Lord’s day before the feast of Saint Bartholomew which shall be in the year of our Lord God one thousand six hundred sixty and two, openly, publicly and solemnly read the morning and evening prayer appointed to be read by and according to the said Book of Common Prayer at the times thereby appointed; and after such reading thereof shall openly and publicly before the congregation there assembled declare his unfeigned assent and consent to the use of all things in the said book contained and prescribed, in these words and no other:
IV. ‘I, A. B., do here declare my unfeigned assent and consent to all and everything contained and prescribed in and by the book, entitled, ‘The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church according to the Use of the Church of England, together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, and the Form or Manner of Making, Ordaining and Consecrating of Bishops, Priests and Deacons.’
V. And that all and every such person, who shall (without some lawful impediment to be allowed and approved of by the ordinary of the place) neglect or refuse to do the same within the time aforesaid (or in case of such impediment within one month after such impediment removed) shall, ipso facto, be deprived of all his spiritual promotions; and that from thenceforth it shall be lawful to and for all patrons and donors of all and singular the said spiritual promotions or of any of them, according to their respective rights and titles, to present or collate to the same, as though the person or persons so offending or neglecting were dead.
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(1664, May 17. 16 Charles II. c. 4. 5 S. R. 516.)
WHEREAS an act made in the five and thirtieth year of the reign of our late sovereign lady Queen Elizabeth, entitled, An Act to retain the Queen’s Majesty’s subjects in their due obedience, hath not been put in due execution by reason of some doubt of late made, whether the said act be still in force, although it be very clear and evident, and it is hereby declared, that the said act is still in force and ought to be put in due execution; for providing therefore of further and more speedy remedies against the growing and dangerous practices of seditious sectaries and other disloyal persons, who, under pretence of tender consciences, do at their meetings, contrive insurrections as late experience hath showed; be it enacted by the king’s most excellent Majesty by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same, that if any person of the age of sixteen years or upwards, being a subject of this realm, at any time after the first day of July, which shall be in the year of our Lord one thousand six hundred sixty and four, shall be present at any assembly, conventicle or meeting, under colour or pretence of any exercise of religion in other manner than is allowed by the liturgy or practice of the Church of England, in any place within the kingdom of England, dominion of Wales or town of Berwick-upon-Tweed, at which conventicle, meeting or assembly there shall be five persons or more assembled together over and above those of the same household, then it shall and may be lawful to and for any two justices of the peace of the county, limit, division or liberty wherein the offence aforesaid shall be committed, or for the chief magistrate of the place where such offence aforesaid shall be committed (if it be within a corporation where there are not two justices of the peace), and they are hereby required and enjoined upon proof to them or him respectively made of such offence, either by confession of the party, or oath of witnesses, or notorious evidence of the fact (which oath the said justices of the peace and chief magistrate respectively are hereby empowered and required to administer), to make a record of every such offence and offences under their hands and seals respectively, which record so made as aforesaid shall to all intents and purposes be in law taken and adjudged to be a full and perfect conviction of every such offender for such offence, and thereupon the said justices and chief magistrate respectively shall commit every such offender so convicted as aforesaid to the gaol, or house of correction, there to remain without bail or mainprise for any time not exceeding the space of three months, unless such offender shall pay down to the said justices or chief magistrate such sum of money, not exceeding five pounds, as the justices or chief magistrate (who are hereby thereunto authorized and required) shall fine the said offender at for his or her said offence, which money shall be paid to the church wardens for the relief of the poor of the parish, where such offender did last inhabit.
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III. And be it further enacted by the authority aforesaid, that if any such offender so convicted of a second offence contrary to this act in manner aforesaid shall at any time again commit the like offence contrary to this act, then any two justices of the peace and chief magistrate as aforesaid respectively shall commit every such offender to the gaol or house of correction, there to remain without bail or mainprise, until the next general quarter sessions, assizes, gaol-delivery, great sessions or sitting of any commission of oyer and terminer in the respective county, limit, division or liberty which shall first happen, when and where every such offender shall be proceeded against by indictment for such offence, and shall forthwith be arraigned upon such indictment, and shall then plead the general issue of not guilty and give any special matter in evidence, or confess the indictment, and if such offender proceeded against shall be lawfully convicted of such offence either by confession or verdict, or if such offender shall refuse to plead the general issue or to confess the indictment, then the respective justices of the peace at their general quarter sessions, judges of assize and gaol-delivery at the assizes and gaol delivery, justices of the great sessions at the great sessions and commissioners of oyer and terminer at their sitting, are hereby enabled and required to cause judgment to be entered against such offender, that such offender shall be transported beyond the seas to any of His Majesty’s foreign plantations (Virginia and New England only excepted) there to remain seven years.
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(1665, October 31. 17 Charles II. c. 2. 5 S. R. 575. The whole reprinted in G. and H. pp. 620-623.)
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III. AND all such person and persons as shall take upon them to preach in any unlawful assembly, conventicle or meeting under colour or pretence of any exercise of religion, contrary to the laws and statutes of this kingdom, shall not at any time from and after the four and twentieth day of March which shall be in this present year of our Lord God one thousand six hundred sixty and five, unless only in passing upon the road, come or be within five miles of any city or town corporate or borough that sends burgesses to the parliament, within His Majesty’s kingdom of England, principality of Wales or of the town of Berwick upon Tweed, or within five miles of any parish town or place, wherein he or they have since the act of oblivion been parson, vicar, curate, stipendiary or lecturer, or taken upon them to preach in any unlawful assembly, conventicle or meeting under colour or pretence of any exercise of religion, contrary to the laws and statutes of this kingdom, before he or they have taken and subscribed the oath aforesaid before the justices of peace at their quarter sessions to be holden for the county, riding or division next unto the said corporation, city or borough, parish, place or town, in open court (which said oath the said justices are hereby empowered there to administer), upon forfeiture for every such offence the sum of forty pounds of lawful English money, the one third part thereof to His Majesty and his successors, the other third part to the use of the poor of the parish where the offence shall be committed, and the other third part thereof to such person or persons as shall or will sue for the same by action of debt, plaint, bill or information in any court of record at Westminster, or before any justices of assize, oyer and terminer or gaol delivery, or before any justices of the counties palatine of Chester, Lancaster or Durham, or the justices of the great sessions in Wales, or before any justices of peace in their quarter sessions, wherein no essoin, protection or wager of law shall be allowed.
IV. Provided always, and be it further enacted by the authority aforesaid, that it shall not be lawful for any person or persons restrained from coming to any city, town corporate, borough, parish, town or place as aforesaid, or for any other person or persons as shall not first take and subscribe the said oath, and as shall not frequent divine service established by the laws of this kingdom, and carry him or herself reverently, decently and orderly there, to teach any public or private school, or take any boarders or tablers that are taught or instructed by him or herself or any other, upon pain for every such offence to forfeit the sum of forty pounds, to be recovered and distributed as aforesaid,
[Part omitted]
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(1673, February 1. Cobbett’s Parliamentary History, iv, 515.)
OUR care and endeavours for the preservation of the rights and interests of the Church have been sufficiently manifested to the world by the whole course of our government, since our happy restoration, and by the many and frequent ways of coercion that we have used for reducing all erring or dissenting persons, and for composing the unhappy differences in matters of religion, which we found among our subjects upon our return. But it being evident by the sad experience of twelve years, that there is very little fruit of all those forcible courses, we think ourselves obliged to make use of that supreme power in ecclesiastical matters, which is not only inherent in us but hath been declared and recognized to he so by several statutes and acts of parliament. And therefore we do now accordingly issue out this our royal declaration, as well for the quieting the minds of our good subjects in these points, for inviting strangers in this conjuncture to come and live under us, and for the better encouragement of all to a cheerful following of their trades and callings, from whence we hope, by the blessing of God, to have many good and happy advantages to our government; as also for preventing for the future the danger that might otherwise arise from private meetings, and seditious conventicles, And in the first place, we declare our express resolution, meaning, and intention to be, that the Church of England be preserved, and remain entire in its doctrine, discipline, and government, as now it stands established by law. and that this be taken to be, as it is, the basis, rule and standard of the general and public worship of God, and that the orthodox conformable clergy do receive and enjoy the revenues belonging thereunto; and that no person, though of different opinion and persuasion, shall be exempt from paying his tithes, or other dues whatsoever, And further, we declare, that no person shall be capable of holding any benefice, living, or ecclesiastical dignity or preferment of any kind in this kingdom of England, who is not exactly conformable. We do in the next place declare our will and p1easure to be, that the execution of all and all manner of penal laws in matters ecclesiastical, against whatsoever sort of non-conformists, or recusants, be immediately suspended, and they are hereby suspended, And all judges of assize and gaol-delivery, sheriffs, justices of the peace, mayors, bailiffs, and other officers whatsoever, whether ecclesiastical or civil, are to take notice of it, and pay due obedience thereunto. And that there may be no pretence for any of our subjects to continue their illegal meetings and conventicles, we do declare, that we shall from time to time allow a sufficient number of places, as shall be desired, in all parts of this our kingdom, for the use of such as do not conform to the Church of England, to meet and assemble in, in order to their public worship and devotion; which places shall be open and free to all persons. But to prevent such disorders and inconveniences as may happen by this our indulgence, if not duly regulated, and that they may be the better protected by the civil magistrate, our express will and pleasure is, that none of our subjects do presume to meet in any place, until such place be allowed, and the teacher of that congregation he approved by us. And lest any should apprehend, that this restriction should make our said allowance and approbation difficult to be obtained, we do further declare, that this our indulgence, as to the allowance of public places of worship, and approbation of teachers, shall extend to all sorts of non-conformists and recusants, except the recusants of the Roman Catholic religion, to whom we shall no ways allow in public places of worship, but only indulge them their share in the common exemption from the executing the penal laws, and the exercise of their worship in their private houses only. And if after this our clemency and indulgence, any of our subjects shall presume to abuse this liberty, and shall preach seditiously, or to the derogation of the doctrine, discipline, or government of the established church, or shall meet in places not allowed by us; we do hereby give them warning, and declare, we will proceed against them with all imaginable severity: and we will let them see, we can be as severe to punish such offenders, when so justly provoked, as we are indulgent to truly tender consciences.
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(1673, March 29. 25 Charles II. c. 2. 5 S. R. 782. The whole reprinted in G. and H. pp. 632-640.)
FOR preventing dangers which may happen from popish recusants and quieting the minds of His Majesty’s good subjects: be it enacted by the king’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal and the commons in this present parliament assembled, and by authority of the same, that all and every person or persons, as well peers as commoners, that shall bear any office or offices, civil or military, or shall receive any pay, salary, fee or wages by reason of any patent or grant from His Majesty, or shall have command or place of trust from or under His Majesty, or from any of His Majesty’s predecessors, or by his or their authority, or by authority derived from him or them, within the realm of England, dominion of Wales or town of Berwick upon Tweed, or in His Majesty’s navy, or in the several islands of Jersey and Guernsey, or shall be of the household or in the service or employment of His Majesty, or of His Royal Highness the duke of York, who shall inhabit, reside or be within the city of London or Westminster or within thirty miles distant from the same, on the first day of Easter term that shall be in the year of our Lord, one thousand six hundred seventy-three, or at any time during the said term, all and every the said person and persons shall personally appear before the end of the said term, or of Trinity term next following, in His Majesty’s high court of chancery or in His Majesty’s court of king’s bench, and there in public and open court, between the hours of nine of the clock and twelve in the forenoon, take the several oaths of supremacy and allegiance, which oath of allegiance is contained in the statute made in the third year of King James, by law established, and during the time of the taking thereof by the said person and persons all pleas and proceedings in the said respective courts shall cease; and that all and every of the said respective persons and officers, not having taken the said oaths in the said respective courts aforesaid, shall on or before the first day of August, one thousand six hundred seventy-three, at the quarter sessions for that county or place where he or they shall be, inhabit or reside on the twentieth day of May, take the said oaths in open court between the said hours of nine and twelve of the clock in the forenoon; and the said respective officers aforesaid shall also receive the sacrament of the Lord’s Supper according to the usage of the Church of England, at or before the first day of August, in the year of our Lord one thousand six hundred and seventy-three, in some parish church, upon some Lord’s day, commonly called Sunday, immediately after divine service and sermon.
II. And be it further enacted by the authority aforesaid, that all and every person or persons that shall be admitted, entered, placed or taken into any office or offices civil or military, or shall receive any pay, salary, fee or wages by reason of any patent or grant of His Majesty, or shall have command or place of trust from or under His Majesty, his heirs or successors, or by his or their authority, or by authority derived from him or them, within this realm of England, dominion of Wales or town of Berwick upon Tweed, or in His Majesty’s navy, or in the several islands of Jersey and Guernsey, or that shall be admitted into any service or employment in His Majesty’s or royal highness’s household or family after the first day of Easter term aforesaid, and shall inhabit, be, or reside, when he or they is or are so admitted or placed, within the cities of London or Westminster or within thirty miles of the same, shall take the said oaths aforesaid in the said respective court or courts aforesaid, in the next term after such his or their admittance or admittances into the office or offices, employment or employments aforesaid, between the hours aforesaid and no other, and the proceedings to cease as aforesaid; and that all and every such person or persons to be admitted after the first day of Easter term as aforesaid, not having taken the said oaths in the said courts aforesaid, shall at the quarter sessions for that county or place where he or they shall reside, next after such his admittance or admittances into any of the said respective offices or employments aforesaid, take the said several and respective oaths as aforesaid; and all and every such person and persons so to be admitted as aforesaid shall also receive the sacrament of the Lord’s Supper, according to the usage of the Church of England, within three months after his or their admittances in, or receiving their said authority and employment, in some public church upon some Lord’s day, commonly called Sunday, immediately after divine service and sermon.
III. And every of the said persons in the respective court where he takes the said oaths shall first deliver a certificate of such his receiving the said sacrament as aforesaid, under the hands of the respective minister and churchwarden, and shall then make proof of the truth thereof by two credible witnesses at the least upon oath, all which shall be inquired of and put upon record in the respective courts.
IV. And be it further enacted by the authority aforesaid, that all and every the person or persons aforesaid, that do or shall neglect or refuse to take the said oaths and sacrament in the said Courts and places, and at the respective times aforesaid, shall be ipso facto adjudged incapable and disabled in law to all intents and purposes whatsoever to have, occupy or enjoy the said office or offices, employment or employments, or any part of them or any matter or thing aforesaid, or any profit or advantage appertaining to them or any of them, and every such office and place, employment and employments shall be void, and is hereby adjudged void.
V. And be it further enacted, that all and every such person or persons that shall neglect or refuse to take the said oaths or the sacrament aforesaid, within the times and in the places aforesaid, and in the manner aforesaid, and yet after such neglect or refusal shall execute any of the said offices or employments after the said times expired, wherein he or they ought to have taken the same, and being thereupon lawfully convicted in or upon any information, presentment or indictment in any of the king’s Courts at Westminster, or at the assizes, every such person and persons shall be disabled from thenceforth to sue or use any action, bill, plaint or information in course of law or to prosecute any suit in any court of equity, or to be guardian of any child, or executor or administrator of any person, or capable of any legacy or deed of gift, or to bear any office within this realm of England, dominion of Wales or town of Berwick upon Tweed, and shall forfeit the sum of five hundred pounds, to be recovered by him or them that shall sue for the same, to be prosecuted by any action of debt, suit, bill, plaint, or information in any of His Majesty’s courts at Westminster, wherein no essoin, protection or wager of law shall lie.
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IX. And be it further enacted by the authority aforesaid, that at the same time when the persons concerned in this act shall take the aforesaid oaths of supremacy and allegiance, they shall likewise make and subscribe this declaration following, under the same penalties and forfeitures as by this act is appointed:
I, A. B., do declare, that I do believe that there is not any transubstantiation in the sacrament of the Lord’s Supper, or in the elements of bread and wine, at, or after the consecration thereof by any person whatsoever.
X. Of which subscription there shall be the like register kept as of the taking of the oaths aforesaid.
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(1679, May 5. Cobbett’s Parliamentary History, iv. 1129.)
THE commons resolved: “That it was the opinion of this house, that the pardon pleaded by the earl of Danby was illegal and void, and ought not to be allowed in bar of the impeachment of the commons of England.” After which, Mr. Speaker, with the whole house, went up to the lords’ bar, and demanded judgment against the earl in these words:
“My lords; the knights, citizens and burgesses, in parliament assembled, are come up to demand judgment, in their own names, and the names of all the commons of England, against Thomas, earl of Danby, who stands impeached by them before your lordships of high treason, and divers high crimes and misdemeanors; to which he has pleaded a pardon: which pardon the commons conceive to be illegal and void; and therefore they do demand judgment of your lordships accordingly.”
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(1679, May 15. Cobbett’s Parliamentary History, iv. 1136.)
MAY 15. The Exclusion Bill was called for and read the first time. It set forth, after the particulars of the execrable conspiracy: “That the emissaries, priests and agents for the pope had traitorously seduced James, duke of York, presumptive heir to these crowns, to the communion of the church of Rome; and had induced him to enter into several negotiations with the pope his cardinals and nuncios, for promoting the Romish church and interest; and by his means and procurement, had advanced the power and greatness of the French king, to the manifest hazard of these kingdoms. That by descent of these crowns upon a papist, and by foreign alliances and assistance, they might be able to succeed in their wicked and villainous designs.” Then, after another preamble, they enacted to this effect: 1. “That the said James, duke of York, should be incapable of inheriting the crowns of England, Scotland, and Ireland, with their dependencies; and of enjoying any of the titles, rights, prerogatives and revenues belonging to the said crowns. 2. That in case his majesty should happen to die, or resign his dominions, they should devolve to the person next in succession, in the same manner as if the duke was dead. 3. That all acts of sovereignty and royalty that prince might then happen to perform, were not only declared void, but to be high treason, and punishable as such. 4. That if any one, at any time whatsoever, should endeavour to bring the said duke into any of the fore-mentioned dominions, or correspond with him in order to make him inherit, he should be guilty of high treason. 5. That if the duke himself ever returned into any of these dominions, considering the mischiefs that must ensue, he should be looked upon as guilty of the same offense; and all persons were authorized and required, to seize upon and imprison him; and in case of resistance made by him or his adherents, to subdue them by force of arms.”
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(1679, May 26. 31 Charles II. c. 2. 5 S. R. 935. Stubbs, Select Charters, 517-521.)
WHEREAS great delays have been used by sheriffs, gaolers and other officers, to whose custody any of the king’s subjects have been committed for criminal or supposed criminal matters, in making returns of writs of Habeas Corpus to them directed by standing out an Alias and Pluries Habeas Corpus and sometimes more, and by other shifts to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king’s subjects have been and hereafter may be long detained in prison in such cases where by law they are bailable, to their great charge and vexation.
II. For the prevention whereof and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters; be it enacted by the king’s most excellent Majesty by and with the advice and consent of the lords spiritual and temporal and commons in this present parliament assembled, and by the authority thereof that whensoever any person or persons shall bring any habeas corpus directed unto any sheriff or sheriffs, gaoler, minister or other person whatsoever for any person in his or their custody, and the said writ shall be served upon the said officer or left at the gaol or prison with any of the under officers, under keepers or deputy of the said officers or keepers, that the said officer or officers, his or their under officers, under keepers or deputies shall within three days after the service thereof as aforesaid (unless the commitment aforesaid were for treason or felony, plainly and specially expressed in the warrant of commitment) upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the same and endorsed upon the said writ, not exceeding twelve pence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be remanded by the court or judge to which he shall be brought according to the true intent of this present act, and that he will not make any escape by the way, make return of such writ; and bring or cause to be brought the body of the party so committed or restrained unto or before the lord chancellor, or lord keeper of the great seal of England, for the time being, or the judges or barons of the said court from whence the said writ shall issue, or unto and before such other person or persons before whom the said writ is made returnable, according to the command thereof; and shall then likewise certify the true causes of his detainer or imprisonment; unless the commitment of the said party be in any place beyond the distance of twenty miles from the place or places where such court or person is or shall be residing, and if beyond the distance of twenty miles and not above one hundred miles then within the space of ten days, and if beyond the distance of one hundred miles then within the space of twenty days after such delivery aforesaid, and not longer.
III. And to the intent that no sheriff, gaoler or other officer may pretend ignorance of the import of any such writ; be it enacted by the authority aforesaid, that all such writs shall be marked in this manner, Per statutum tricesimo primo Caroli Secundi regis, and shall be signed by the person that awards the same; and if any person or persons shall be or stand committed or detained as aforesaid, for any crime, unless for treason or felony plainly expressed in the warrant of commitment, in the vacation time, and out of term, it shall and may be lawful to and for the person or persons so committed or detained (other than persons convict or in execution by legal process) or any one on his or their behalf to appeal or complain to the lord chancellor or lord keeper or any one of His Majesty’s justices, either of the one bench or of the other, or the barons of the exchequer of the degree of the coif; and the said lord chancellor, lord keeper, justices or barons or any of them, upon view of the copy or copies of the warrant or warrants of commitment and detainer, or otherwise upon oath made that such copy or copies were denied to be given by such person or persons in whose custody the prisoner or prisoners is or are detained, are hereby authorised and required, upon request made in writing by such person or persons or any on his, her or their behalf, attested and subscribed by two witnesses who were present at the delivery of the same, to award and grant an habeas corpus, under the seal of such court whereof he shall then be one of the judges, to be directed to the officer or officers in whose custody the party so committed or detained shall be, returnable immediate before the said lord chancellor or lord keeper, or such justice, baron or any other justice or baron of the degree of the coif of any of the said courts; and upon service thereof as aforesaid, the officer or officers, his or their under officer or under officers, under keeper or under keepers, or deputy, in whose custody the party is so committed or detained, shall within the times respectively before limited bring such prisoner or prisoners before the said lord chancellor or lord keeper, or such justices, barons or one of them, before whom the said writ is made returnable, and in case of his absence before any other of them, with the return of such writ and the true causes of the commitment and detainer; and thereupon within two days after the party shall be brought before them, the said lord chancellor or lord keeper, or such justice or baron before whom the prisoner shall be brought as aforesaid, shall discharge the said prisoner from his imprisonment, taking his or their recognizance with one or more surety or sureties in any sum according to their discretions, having regard to the quality of the prisoner and nature of the offence, for his or their appearance in the court of king’s bench the term following or at the next assizes, sessions or general gaol-delivery of and for such county, city or place where the commitment was, or where the offence was committed, or in such other court where the said offence is properly cognizable, as the case shall require, and then shall certify the said writ with the return thereof and the said recognizance or recognizances into the said court where such appearance is to be made; unless it shall appear unto the said lord chancellor or lord keeper, or justice or justices, or baron or barons, that the party so committed is detained upon a legal process, order or warrant out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said justices or barons, or some justice or justices of the peace, for such matters or offences for the which by the law the prisoner is not bailable.
IV. Provided always, and be it enacted, that if any person shall have wilfully neglected by the space of two whole terms after his imprisonment to pray a habeas corpus for his enlargement, such person so wilfully neglecting shall not have any habeas corpus to be granted in vacation time in pursuance of this act.
V. And be it further enacted by the authority aforesaid, that if any officer or officers, his or their under-officer or under-officers, under-keeper or under-keepers, or deputy, shall neglect or refuse to make the returns aforesaid, or to bring the body or bodies of the prisoner or prisoners according to the command of the said writ, within the respective times aforesaid, or upon demand made by the prisoner or person in his behalf shall refuse to deliver, or within the space of six hours after demand shall not deliver, to the person so demanding, a true copy of the warrant or warrants of commitment and detainer of such prisoner, which he and they are hereby required to deliver accordingly; all and every the head gaolers and keepers of such prisons, and such other person in whose custody the prisoner shall be detained, shall for the first offence forfeit to the prisoner or party grieved the sum of one hundred pounds; and for the second offence the sum of two hundred pounds and shall and is hereby made incapable to hold or execute his said office; the said penalties to be recovered by the prisoner or party grieved, his executors or administrators, against such offender, his executors or administrators, by any action of debt, suit, bill, plaint or information, in any of the king’s courts at Westminster, wherein no essoin, protection, privilege, injunction, wager of law or stay of prosecution by Non vult ulterius prosequi or otherwise shall be admitted or allowed, or any more than one imparlance; and any recovery or judgment at the suit of any party grieved shall be a sufficient conviction for the first offence; and any after recovery or judgment at the suit of a party grieved for any offence after the first judgment shall be a sufficient conviction to bring the officers or person within the said penalty for the second offence.
VI. And for the prevention of unjust vexation by reiterated commitments for the same offence; be it enacted by the authority aforesaid, that no person or persons, which shall be de1ivered or set at large upon any habeas corpus, shall at any time hereafter be again imprisoned or com1mitted for the same offence by any person or persons whatsoever, other than by the legal order and process of such court wherein he or they shall be bound by recognizance to appear or other court having jurisdiction of the cause; and if any other person or persons shall knowingly contrary to this act recommit or imprison or knowingly procure or cause to be recommitted or imprisoned for the same offence or pretended offence any person or persons delivered or set at large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved the sum of five hundred pounds, any colourable pretence or variation in the warrant or warrants of commitment notwithstanding, to be recovered as aforesaid.
VII. Provided always, and be it further enacted, that if any person or persons shall be committed for high treason or felony, plainly and specially expressed in the warrant of commitment, upon his prayer or petition in open court the first week of the term or first day of the sessions of oyer and terminer or general gaol delivery to be brought to his trial, shall not be indicted sometime in the next term, sessions of oyer and terminer or general gaol delivery after such commitment; it shall and may be lawful to and for the judges of the court of king’s bench and justices of over and terminer or general gaol delivery and they are hereby required, upon motion to them made in open court the last day of the term, sessions or gaol delivery, either by the prisoner or any one in his behalf to set at liberty the prisoner upon bail, unless it appear to the judges and justices upon oath made, that the witnesses for the king could not be produced the same term, sessions or general gaol delivery; and if any person or persons, committed as aforesaid, upon his prayer or petition in open court the first week of the term or first day of the sessions of oyer and terminer or general gaol delivery to be brought to his trial, shall not be indicted and tried the second term, sessions of oyer and terminer or general gaol delivery after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment.
VIII. Provided always, that nothing in this act shall extend to discharge out of prison any person charged in debt or other action or with process in any civil cause, but that after he shall be discharged of his imprisonment for such his criminal offence, he shall be kept in custody according to law for such other suit.
IX. Provided always, and be it enacted by the authority aforesaid, that if any person or persons, subjects of this realm, shall be committed to any prison or in custody of any officer or officers whatsoever for any criminal or supposed criminal matter, that the said person shall not be removed from the said prison and custody into the custody of any other officer or officers; unless it be by habeas corpus or some other legal writ, or where the prisoner is delivered to the constable or other inferior officer to carry such prisoner to some common gaol, or where any person is sent by order of any judge of assize or justice of the peace to any common work-house or house of correction, or where the prisoner is removed from one prison or place to another within the same county, in order to his or her trial or discharge in due course of law or in case of sudden fire or infection or other necessity; and if any person or persons shall after such commitment aforesaid make out and sign or countersign any warrant or warrants for such removal aforesaid, contrary to this act, as well he that makes or signs or countersigns such warrant or warrants as the officer or officers that obey or execute the same shall suffer and incur the pains and forfeitures in this act before-mentioned, both for the first and second offence respectively, to be recovered in manner aforesaid by the party grieved.
X. Provided also, and be it further enacted by the authority aforesaid, that it shall and may be lawful to and for any prisoner and prisoners as aforesaid to move and obtain his or their habeas corpus as well out of the high court of chancery or court of exchequer as out of the court of king’s bench or common pleas or either of them; and if the said lord chancellor or lord keeper, or any judge or judges, baron or barons for the time being of the degree of the coif, of any of the courts aforesaid, in the vacation time upon view of the copy or copies of the warrant or warrants of commitment or detainer, or upon oath made that such copy or copies were denied as aforesaid, shall deny any writ of habeas corpus by this act required to be granted being moved for as aforesaid, they shall severally forfeit to the prisoner or party grieved the sum of five hundred pounds. to be recovered in manner aforesaid.
XI. And be it enacted and declared by the authority aforesaid, that an habeas corpus according to the true intent and meaning of this act may be directed and run into any county palatine, the Cinque ports, or other privileged places within the kingdom of England, dominion of Wales or town of Berwick upon Tweed, and the islands of Jersey or Guernsey, any law or usage to the contrary notwithstanding.
XII. And for preventing illegal imprisonments in prisons beyond the seas; be it further enacted by the authority aforesaid, that no subject of this realm that now is or hereafter shall be an inhabitant or resident of this kingdom of England, dominion of Wales or town of Berwick upon Tweed shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier or into any parts, garrisons, islands or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of his majesty, his heirs or successors; and that every such imprisonment is hereby enacted and adjudged to be illegal; and that if any of the said subjects now is or hereafter shall be so imprisoned every such person and persons so imprisoned shall and may for every such imprisonment maintain by virtue of this act an action or actions of false imprisonment in any of his majesty’s courts of record against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner or transported, contrary to the true meaning of this act, and against all or any person or persons that shall frame, contrive, write, seal or countersign any warrant or writing for such commitment, detainer, imprisonment or transportation, or shall be advising, aiding or assisting in the same or any of them; and the plaintiff in every such action shall have judgment to recover his treble costs, besides damages, which damages so to be given shall not be less than five hundred pounds; in which action no delay, stay or stop of proceeding by rule, order or command, nor no injunction, protection or privilege whatsoever, nor any more than one imparlance, shall be allowed, excepting such rule of the court wherein the action shall depend, made in open court, as shall be thought in justice necessary, for special cause to be expressed in the said rule; and the person or persons who shall knowingly frame, contrive, write, seal or countersign any warrant for such commitment, detainer or transportation, or shall so commit, detain, imprison or transport any person or persons, contrary to this act, or be any ways advising, aiding or assisting therein, being lawfully convicted thereof shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England, dominion of Wales or town of Berwick upon Tweed, or any of the islands, territories or dominions thereunto belonging; and shall incur and sustain the pains, penalties and forfeitures limited, ordained and provided in and by the statute of provision and præmunire, made in the sixteenth year of King Richard the Second; and be incapable of any pardon from the king, his heirs or successors, of the said forfeitures, losses or disabilities, or any of them.
XIII. Provided always, that nothing in this act shall extend to give benefit to any person who shall by contract in writing agree with any merchant or owner of any plantation, or other person whatsoever, to be transported to any parts beyond seas, and receive earnest upon such agreement, although that afterwards such person shall renounce such contract.
XIV. Provided always, and be it enacted, that if any person or persons lawfully convicted of any felony shall in open court pray to be transported beyond the seas, and the court shall think fit to leave him or them in prison for that purpose, such person or persons may be transported into any parts beyond the seas, this act or anything therein contained to the contrary notwithstanding.
XV. Provided also, and be it enacted, that nothing herein contained shall be deemed, construed or taken to extend to the imprisonment of any person before the first day of June one thousand six hundred seventy and nine, or to anything advised, procured or otherwise done relating to such imprisonment, anything herein contained to the contrary notwithstanding.
XVI. Provided also, that if any person or persons at any time resident in this realm shall have committed any capital offence in Scotland or Ireland or any of the islands or foreign plantations of the king, his heirs or successors, where he or she ought to be tried for such offence, such person or persons may be sent to such place there to receive such trial in such manner as the same might have been used before the making of this act, anything herein contained to the contrary notwithstanding.
XVII. Provided also, and be it enacted, that no person or persons shall be sued, impleaded, molested or troubled for any offence against this act, unless the party offending be sued or impleaded for the same within two years at the most after such time wherein the offence shall be committed, in case the party grieved shall not be then in prison; and if he shall be in prison, then within the space of two years after the decease of the person imprisoned, or his or her delivery out of prison, which shall first happen.
XVIII. And to the intent no person may avoid his trial at the assizes or general gaol delivery by procuring his removal before the assizes, at such time as he cannot be brought back to receive his trial there; be it enacted, that after the assizes proclaimed for that county where the prisoner is detained, no person shall be removed from the common gaol upon any habeas corpus granted in pursuance of this act, but upon any such habeas corpus shall be brought before the judge of assize in open court, who is thereupon to do what to justice shall appertain.
XIX. Provided nevertheless, that after the assizes are ended any person or persons detained may have his or her habeas corpus according to the direction and intention of this act.
XX. And be it also enacted by the authority aforesaid, that if any information, suit or action shall be brought or exhibited against any person or persons for any offence committed or to be committed against the form of this law, it shall be lawful for such defendants to plead the general issue that they are not guilty, or that they owe nothing, and to give such special matter in evidence to the jury that shall try the same, which matter being pleaded had been good and sufficient matter in law to have discharged the said defendant or defendants against the said information, suit or action, and the said matter shall then be as available to him or them to all intents and purposes, as if he or they had sufficiently pleaded, set forth or alleged the same matter in bar or discharge of such information, suit or action.
XXI. And because many times persons charged with petty treason or felony or as accessories thereunto are committed upon suspicion only, whereupon they are bailable or not according as the circumstances making out that suspicion are more or less weighty, which are best known to the justices of peace that committed the persons, and have the examinations before them, or to other justices of the peace in the county; be it therefore enacted, that where any person shall appear to be committed by any judge or justice of the peace and charged as accessory before the fact to any petty treason or felony or upon suspicion thereof, or with suspicion of petty treason or felony which petty treason or felony shall be plainly and specially expressed in the warrant of commitment, that such person shall not be removed or bailed by virtue of this act, or in any other manner than they might have been before the making of this act.
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(1683. 8 State Trials, 1264, 1265.)
Reply of the Lord Chief Justice to the Argument on Behalf of the Corporation
BUT this is one thing, Mr. Pollexfen, that I would say to you upon your argument, what a grievous thing would it be, if so be the being of a corporation might be forfeited or dissolved, because say you, it is possible that all the corporations in England may be dissolved because they may have committed such things that may be forfeitures. We must put the scales equal on both sides. Let us then consider on the other side, whether, if so be that it should be taken for law, that a corporation is indissoluble or cannot be dissolved for any crime whatsoever, then those two things do not follow;— First, you will shut out the king’s Quo Warranto, let him have what reason he can for it, or let them do what they will: and in the next place, you have set up so many independent commonwealths. For if a corporation may do nothing amiss whatsoever, what else does follow, for now I am not upon the point whether this corporation has done any act that is amiss, but considering your argument in general, when you make it a thing of such ill consequence that a corporation should be forfeited by any crime; but I say now, to put in the other scale the mischiefs that would follow, if so be by law a corporation might not be dissolved for one fault or another: But let them do what they would, it should still remain a corporation. Then it is plain, they are so many commonwealths independent upon the king, and the king’s Quo Warranto is quite shut out, that is mighty considerable.
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The next term, viz. Trinit. 35 Car. 2. (Chief Justice Saunders dying the day of the judgment given, or the next day after) Mr. justice Jones, justice Raymond, and justice Withens, being in court, justice Jones pronounced the judgment of the court, and justice Raymond and justice Withens affirmed, that chief justice Saunders was of the same opinion with them, and that they all agreed.
1. That a corporation aggregate might be seized. That the statute 28 Ed. 3, cap. 10, is express, that the franchises and liberties of the city, upon such defaults, should be taken into the king’s hands. And that bodies politic may offend, and be pardoned, appears by the general article of pardon, 12 Car. 2, whereby corporations are pardoned all crimes and offences. And the act for regulating corporations, 13 Car. 2, which provides that no corporation shall be avoided for anything by them misdone or omitted to be done, shows also that their charters may be avoided for things by them misdone, or omitted to be done.
2. That exacting and taking money by the pretended by-law was extortion, and a forfeiture of the franchise of being a corporation.
3. That the petition was scandalous and libellous, and the making it and publishing it a forfeiture.
4. That the act of the common council was the act of the corporation.
5. That the matter set forth in the record did not excuse or avoid those forfeitures set forth in the replication.
6. That the information was well founded.
And gave judgment, That the franchise should be seized into the king’s hands, but the entry thereof respited till the king’s pleasure was known in it. Justice Raymond and justice Withens declare, that they were of the same opinion in omnibus.
And accordingly, after entry made by Mr. Attorney, That as to the issue joined to be tried by the country; as to the claiming to have and constitute sheriffs; as to the having the mayor and aldermen to be justices of the peace, and to hold sessions, ‘quod ipse pro Domino Rege ulterius non vult prosequi;’ Judgment is entered.
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