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 be approved by us. And lest any should apprehend,
that this restriction should make our said allowance and approba-
tion 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-conform-
ists and recusants, except the recusants of the Roman Catholic
religion, to whom we shall no ways allow in public places of wor-
ship, 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 clem-
ency 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
436 English Constitutional Documents
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 in-
dulgent to truly tender consciences.
228. Test Act
(1673, March 29. 25 Charles II. c. 2. 5 S. R. 782. The whole reprinted in
G. and H. pp. 632-640.)
"C*OR preventing dangers which may happen from popish recu-
A sants and quieting the minds of His Majesty's good sub-
jects : 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 author-
ity derived from him or them, within the realm of England, domin-
ion 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
Test Act 437
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, com-
monly called Sunday, immediately after divine service and sermon.
II. And be it further enacted by the authority aforesaid, that
aD 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 em-
ployment in His Majesty's or royal highness's household or fam-
ily 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 respec-
tive court or courts aforesaid, in the next term after such his or
their admittance or admittances into the office or offices, employ-
ment 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.
438 English Constitutional Documents
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 appertain-
ing to them or any of them, and every such office and place, em-
ployment 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 as 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 informa-
tion, 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 ad-
ministrator 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.
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 like-
Exclusion Bill 439
wise 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 tran-
substantiation in the sacrament of the Lord's Supper, or hi 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.
229
i. Resolution concerning the Royal Pardon
in Bar of Danby's Impeachment
(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 hi these words :
" My lords ; the knights, citizens and burgesses, hi 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 hightreason, and divers high crimes and misdemeanors; to
which he has pleaded a pardon : which pardon the commons con-
ceive to be illegal and void ; and therefore they do demand judg-
ment of your lordships accordingly."
230. Exclusion Bill
(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 con-
spiracy : " 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
440 English Constitutional Documents
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: i. "That
the said James, duke of York, should be incapable of inheriting
the crowns of England, Scotland, and Ireland, with their depend-
encies ; 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."
231. Habeas Corpus Act
(1679, May 26. 31 Charles II. c. 2. 5 S. R. 935. Stubbs, Select Charters,
S^-SZi.)
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 obe-
dience to such writs, contrary to their duty and the known laws of
the land, whereby many of the king's subjects have been and here-
after may be long detained in prison in such cases where by law
they are bailable, to their great charge and vexation.
Habeas Corpus Act 441
II. For the prevention whereof and the more speedy relief of all
persons imprisoned for any such criminal or supposed criminal mat-
ters ; 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 offi-
cers, 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 spe-
cially expressed in the warrant of commitment) upon payment
or tender of the charges of bringing the said prisoner, to be ascer-
tained 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 carry-
ing 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 com-
mitment 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 afore-
442 English Constitutional Documents
said, 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 com-
mitted 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 commit-
ment 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 pris-
oner 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 impris-
onment, 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 re-
Habeas Corpus Act 443
cognizance or recognizances into the said court where such appear-
ance is to be made ; unless it sfiall 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 farther 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 commit-
ment 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 com-
444 English Constitutional Documents
mitments for the same offence ; 'be it enacted by the authority afore-
said, that no person or persons, which shall be delivered or set at
large upon any habeas corpus, shall at any time hereafter be again
imprisoned or committed 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 recom-
mit 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 know-
ingly 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 com-
mitment notwithstanding, to be recovered as aforesaid.
VII. Provided always, and be it further enacted, that if any per-
son 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 oyer 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, ses-
sions of oyer and terminer or general gaol delivery after his commit-
ment, 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 dis-
charged 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 afore-
Habeas Corpus Act 445
said, that if any person or persons, subjects of this realm, shall be