made Treason no time is limited for the persecution but the offender may be Indicted at any time after the year and day for the latter part of 23 Eliz. 1. § 8. N. 2. Speakes of those offences of Treason which the Justices of Peace cannot hear and determine and there no time is limited altho there be in the former part 23 Eliz. 1. § 8. N. 1 for those offences which are inquirable by Justices of Peace 1 Leonard 238. pl. 322. Guilfords Case LXX Justices Page 66. 67. Upon 23 Eliz. 1. § 9. N. 1. The Justices of the Court of B. R. are the Soverain Justices of Oyer and Terminer and Goal-delivery 9 Co. 118. Lord Sanchors Case and therefore may enquire of hear and determine the offences against this Act altho they be not here especially named 2. If an Indictment be preferred upon this Statute 23 Eliz. 1. § 9. N. 1. before Justices of Oyer and Terminer or of Assie for any offence not made Treason or misprision and there is an Indictment before Justices of Peace likewise for the same offence the Judgment of the Justices who do first enquire hear and determine the same shall stand and the Judgment given by the other shall be void as was held in the like Case 2 Inst 739. Upon 31 Eliz. 7. § N. of Inmates 3. The Power here given 23 Eliz. 1. § 9. N. 2. The Justices of Peace in their open Quarter Sessions to hear and determine the offence of not coming to Church is in force at this day notwithstanding 29 Eliz. 6. § 2. N. 2. which saith that every conviction for not coming to Church shall be in B. R. or at the Assizes or General Goal-delivery and not elsewhere for 3 Jac. 4. § 7. N. 1. hath given power to Justices of Peace in their General or Quarter Sessions to enquire hear and determine of all offences for not coming to Church according to former Laws in such manner as the Justices of Assize and Goal delivery might do by former Laws in the Case of Recusancy for not repairing to Church which is clearly a reviver of the power of Justices of Peace given to them by 23 Eliz. 1. § 9. N. 2. to proceed against Recusants and taken from them by 29 Eliz. 6. § 2. N. 2. 4. Nor doth that following Clause 3 Jac. 4. § 7. N. 2. Touching Conviction by proclamation impeach this or restrain the Justices of Peace to proceed to conviction upon proclamation only and default of appearance no more than the Justices of Assize or Goal-delivery are restrained thereby or by 29 Eliz. 6. § 2. N. 5. which gives them likewise Authority to proceed by Proclamation 5. For these Clauses of 3 Jac. 4. § 7. N. 1.2 are in the Affirmative viz. first that the Justices of Peace shall have power to hear and determine the offence of not coming to Church according to Laws in such manner as Justices of Assize and Goal-delivery might do and those Justices might hear and determine that offence according to this Statute 23 Eliz. 1 § 9. N. 1. and then comes the next Clause of 3 Jac. 4. § 7. N. 2. That the Justices of Peace shall have power to convict by proclamation which is purely affirmative also and therefore abrogates no part of the power given them by the former Clause of 3 Jac. 4 § 7. N. 1. and this agrees with what Sir Ed. Coke saith 12 Co. 13 that if a man be Indicted for Recusancy at the Assizes or Sessions of the peace the Court may waive the proceedings by proclamation upon 3 Jac. 4. § 7. N. 2. And may still if they please proceed against the party by process upon this Statute 23 Eliz. 1. § 9. N. 2. in which Case the process must be by Venire facias capias c. As in Indictments of trespass and if saith he the party be fugitive in another County the Indictment may be removed in B. R. and then process may be there made out against him into any County of England LXXI Justices Page 67. Upon 23 Eliz. 1. § 9. N. 2. by Quarter Sessions is intended here only the Sessions of the Peace held at four times of the year and not any other altho it be general Sessions 2. And therefore the Justices of Peace in London who hold a Sessions every month cannot take Indictments upon this Statute 23 Eliz. 1. § 9. N 2. at any of them unless it be the Quarter Sessions For that their Authority is given them only at a certain time as was resolved upon 5 Eliz. 9. § 9. N 1. in the like Case Mich. 17. Jac. B. R. Palmer 44. pl. Taylors Case 3. And 3 Jac. 4. § 7. N. 1. which gives Justices of Peace power to take Indictments of Recusancy at their general or Quarter Sessions for so the word said there imports having reference to the general or Quarter Sessions mentioned before 3 Jac. 4. § 4. N. 2. about presentments yet doth not enlarge the power of the Justices of Peace in this particular nor enable them to take such Indictments at any Sessions but at their four Quarter Sessions for altho it be put there 3 Jac. 4. § 4. N. 2. dis-junctively General or Quarter yet the latter word is but Explicative of the former and shews what general Sessions are meant as appears by 3 Jac. 4. § 14. N. 1. and 7 Jac. 6. § 26. N. 5. touching the Oath of Allegiance for in 3 Jac. 4. § 14. N. 1. t is said that if the party refuse the Oath he shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assize and Goal-delivery in their open Assizes or by the Justices of Peace in their said general Quarter Sessions he shall incurre a Praemunire and in 7 Jac. 6. § 26. N. 5. that the party refusing shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assizes and Goal-delivery in their open Assizes or Goal-delivery or the Justices of Peace or the greater part of them in their general or Quarter Sessions he shall incurre a Praemunire which clearly shews that the same thing is intended by General Quarter Sessions and General or Quarter Sessions and that all General Sessions which are not Quarter Sessions are excluded out of the meaning of those Statutes LXXII Endictment Page 68. the Justices named in 23 Eliz. 1. § 9. N. 2. are hereby impowered to proceed by Indictment only and no other way for they are to hear and determine after enquiry infra 95. 165. 2. And the word Enquire implyeth an Indictment and is alwaies so to be expounded supra 35 and so are the other words hear and determine where other proceedings are not specially named as here they are not 3. For the Action of debt Information c. in any Court of Record is given to the Informer
and the Indictment was certified in B. R. and it was held by the greater part of the Justices that the Indictment was insufficient for want of those words 5 Eliz. 1. § 2. N. 3. upon purpose and to the intent to set forth and extol the Authority c. contra formam Statuti will not supply that defect Trin. 20. Eliz. Dyer 363 pl. 2. Note in the report of Dyer 363. pl. the Statute 1 Eliz. is mistaken for this 5 Eliz. 1. there being no mention of the intent in 1 Eliz. 1. The Intent is a thing hidden and lieth in the heart and therefore there must be some overt act or speech which declares the intent for the intent it self is not traversable but that by which it is made manifest as was adjudged in 5 Cook 77. Booths Case XXXIV Indictment Page 36 37. All Offences 5 Eliz. 1. § 3. N 1. contrary to the true meaning of the premisses that is the Offences 5 Eliz 1. § 2. N. 1. in holding or standing with to extoll c. the Jurisdiction of the See or Bishop of Rome or attributing such jurisdiction c. or procuring counselling c. which is here for the first offence made a Praemunire for these are the only premisses in the Act. 2. And 5 Eliz. 1 § 3. N. 1 Extends not to the Oath of Supremacy or any offence in refusing of it much less to all Offences against this act as it is mistaken in the late Additions to Dalt Cap. 140. Tit. High Treason Sect. 11. 3. Nor doth it seem to be the intent of 5 Eliz. 1. § 3. N. 1. to give the Justices of Peace any power to enquire of any offence made High Treason thereby for the power here given to the Justices of Peace is only to inquire of Offences contrary to the true meaning of the premisses and the premisses extend only to those Offences made a Praemunire and this clearly appears by the subsequent words viz. 5 Eliz. 1. § 3. N. 2. that the Presentment thereof shall be certified in B. R. who shall hear and determine every such Offence as if the Offender had been presented upon any matter in the Statute of 16 Rich. 2. § Now that cannot be intended of high Treason Dalt 54. Cap. 20. 4. The like may be said of Justices of Assize for as they are meerly Justices of Assize they cannot by force of this Act 5 Eliz. 1. § 3. N. 1. inquire of either the first or second Offence in refusing the Oath of Supremacy nor of the second Offence in extolling the Bishop of Romes authority only for the first Offence in Extolling c. they may inquire and take Indictments thereof and certifie them in B. R. 5. But then by their Commission of Oyer and Terminer they may not only inquire of the first or second Offence in extolling the Bishop of Romes authority or refusing the Oath of Supremacy but may hear and determine them and accordingly Savil 46 47. pl. 99. Slade and Bode were indicted arraigned and tryed in the County of Southampton of a Praemunire for the first Offence in extolling the Bishop of Romes authority upon which they were attainted and afterwards of Treason for the second Offence before Sir Roger Manwood and Justice Periam Justices of Assize by vertue of their Commission of Oyer and Terminer for the Certificate here mentioned 5 Eliz. 1. § 3. N. 2. which is to be sent in B. R. is required only of the Justices of Assize and the Justices of the Peace but Justices of Oyer and Terminer upon Indictments taken before them may proceed to hear and determine as Manwood and Periam did in that Case as well for the first as second Offence 6. For which first Offence in extolling the Bishop of Romes authority it seems the Justices of Assize who have a Commission of Oyer and Terminer have their Election either as Justices of Assize to enquire only and then they must certifie the presentment or Indictment into B. R. or to inquire hear and determine as they are Justices of Oyer and Terminer and then they are not bound to certifie for Commissioners of Oyer and Terminer are not within the meaning of this branch of 5 Eliz. 1. § 3. N 2. as was held Savil 46 47. pl. 69. 7. By what hath been said it appears that the question put in Savil 47. pl. 99. by Ayloffe viz. how they could proceed upon such an Indictment not certified in B. R. within forty dayes was grounded upon a double mistake 1. That Justices of Oyer and Terminer were bound to certifie in B. R. all Indictments for extolling the authority of the Bishop of Rome taken before them 2. That Indictments for the second Offence were within the meaning of 1 Eliz. 1. § 3. N. 2. for the speaks thereof the second Indictment which was for High Treason Page 37. By Presentment here 5 Eliz. 1. § 3. N. 2. is to be understood not only that which is properly so called which the Jurors find and present to the Court XXXV Indictment without any former Indictment delivered to them 〈◊〉 also an Indictment which is drawn and engrossed in form of Law and delivered to the Jurors to be inquired of which Indictment the Justice here named have power to take by force of the word Inquire 5 Eliz. 1. § 4. N. 1. and is included within the word Presentment 5 Eliz. 1. § 3. N. 2. being a species of it for every Indictment found by the Jurors is a Presentment and the Record saith Juratores c. presentant c. when they find an Indictment but every Presentment is not an Indictment 2 Inst 239. and as well the one as the other touching the Offences aforesaid must be certified in B. R. infra 72. Page 27 38. XXXVI Dayes If the term be then open in 5 Eliz. 1 § 3. N. 2. is the Essoyn day which is the first day of the Term properly so called and on that day the Term is open At the first day of ful Term 5 Eliz. 1. § 3. N. 2. that is quarto die post which is the usual day of Appearance and the first day of every Term in common reputation for the Essoyn day is the first day of the Term only to some perticular intents and 't is not full Term till quarto die post Savil 124. pl. 193. Matthew ver Harcourt So that if forty dayes expire on the day before the Essoyn day the Presentment need not be certified until quarto die post which is the day of Appearance but if they expire on the Essoyn day or afterwards and before the quarto die post the Justices here named 5 Eliz. 1. § 3. N. 1. must not stay till the quarto die post but are bound to certifie by the last day of the Forty days under the penalty here limited 5 Eliz. 1. § 3. N. 3. for the Term was then open XXXVII Oath Page 39. All Persons who are preserred to any
Convict any person upon Indictments for Recusancy or for saying hearing or being at Mass which they were enabled to do by 23 Eliz. 1. § 8. N. 1. but again disabled by these negative words in this Act 29 Eliz. 6. § 2. N. 2. and the hearing and determining of those offences commited only to the Justices of B. R. Assizes and general Goal-delivery But for Informations by a common Informer they were never intended here 29 Eliz. 6. § 2. N. 2. and the Justices of Assize and Goal delivery cannot hold plea of such Information as was resolved by the Judges Mich. 4. Car. 1. Jones 193. And yet 29 Eliz. 6. § 2. N. 2. did not wholly abrogate the power of the Justices of Peace or of any other Justices to whom Authority was given by 23 Eliz. 1. § 8. N. 1. surra 72. in relation to the offences of Recusancy or of saying or hearing Mass but that they might after 29 Eliz. 6. § 2. N. 2. take Indictments notwithstanding the negative words here for this Statute restraines them only from proceeding to Conviction but not from taking Indictments as was held in Sir Edward Plowdens Case cited 11 Co. 63. in Dr. Fosters Case and now by 3 Jac. 4. § 7. N. 1. the power of Justices of Peace to hear and determine the offences of not coming to Church is again restored to them Infra 103.165 XCXX Proces Page 102 103 104. This Statute 29 Eliz. 6. § 3. N. 1. medles not with any other way of Conviction than at the Queens suit by Indictment as hath been said and so is the Conviction here mentioned to be understood for this Statute is not Introductory of a new Law nor gave the Queen any new or other remedy than what she had against the Recusant by 23 Eliz. 1. § 5. N. 1. that is by Indictment but only gave her a more speedy way of proceeding upon that sundamental remedy 11 Co. 60. and 1 Rol. 93. Dr. Fosters Case So that a Conviction upon an Information against the Recusant upon 23 Eliz. 1. § 11. N. 1. or any other way save by Indictment doth not appropriate the penalty of twenty pound per month to the King for the time to come by force of 29 Eliz. 6. § 3. N. 1. Inrfa 165. supra 72. Hob. 205. Pie and Lovel nor for the same person by force of 3 Jac. 4. § 8. N. 1. where the same words are used and a Conviction by Indictment only intended as here 2. In Hob. 205. It s said that if a man at the making of 29 Eliz. 6. § 3. N. 1. had been Convicted of Recusancy by any other means then by Indictment he had not been bound by 29 Eliz. 6. § 3. N. 1. to pay the twenty shillings it should be twenty pound a month from the Conviction and if a man be now Convicted in B. R. by Indictment or otherwise he cannot be proclaimed nor otherwise his penalty run on which last words Inferr that the Conviction here intended is only a Conviction according to 29 Eliz. 6. § 5 N. 6. by Proclamation upon default 3. But if we compare together 29 Eliz. 6. § 2. N. 2. which speaks of a Conviction after the making of this Statute and 29 Eliz. 6. § 2. N. 1. which speaks of a Conviction before this Statute the Contrary will evidently appear for 29 Eliz. 6. § 2. N 1. must necessarily be intended of Convictions according to 23 Eliz. 1. § 5 N. 1. without any Proclamation for the Proclamation in the Case of Recusancy was not given until 29 Eliz. 6. § 5. N. 5. And if a man had been Convicted of Recusancy upon Indictment in B. R. or elsewhere before 29 Eliz. 6. § 5. N. 5. the forfeitures of twenty pound per month should by force of 29 Eliz. 6. § 3. N. 1. have run on from the time of the Conviction that is clear by the express words of the former clause 29 Eliz. 6. § 2 N. 1. Then comes 29 Eliz. 6. § 3. N. 1. which provides what shall be done upon Convictions for the future and appoints in that case likewise the forfeiture of twenty pound per month to run on from the time of Conviction Both which Convictions as well before as after this Statute are granted to be meant only of Convictions upon Indictment and there is no difference between the penning of these two Clauses 29 Eliz. 6. § 2. N. 1.2 but that one respects the time past and the other the time to come but both appoint the penalty to run on Now there is no reason to suppose that the makers of the Law intended the word Convicted in a more restrained sense in this Clause 29 Eliz. 6. § 3. N. 1. then in the former Clause 29 Eliz 6. § 2. N. 1. where the penalty should have run on upon any Conviction whatsoever upon Indictment or that the Conviction in 29 Eliz. 6. § 2. N. 1. by Indictment upon 23 Eliz. 1. § 5. N. 1. without Proclamation should be wholly shut out of the latter Clause 29 Eliz. 6. § 2. N. 2. By Conviction therefore in these Clauses 29 Eliz. 6. § 2. N. 1.2 seems to be meant such Convictions upon Indictment as were warranted by the Statutes in force at the several and respective times here mentioned that is to say in 29 Eliz. 6. § 2. N. 1. a Conviction upon 23 Eliz. 1. § 5. N. 1. without a Proclamation And in 29 Eliz. 6. § 2. N. 2. a Conviction either with or without a Proclamation In either of which Cases the penalty of twenty pound per month shall run on by force of this Act 29 Eliz. 6. § 3. N. 1. and consequently it shall run on if the Recusant be Indicted Convicted and adjudged in B. R. altho he cannot be Proclaimed there And accordingly it was agreed 1 Rol. 93. in Dr. Fosters Case that where the Recusant is Convicted upon Indictment the penalty should ever after run on and be appropriated to the King and t is not restrained there to a Conviction upon Proclamation only 4. But yet altho this Clause 29 Eliz. 6. § 3. N. 1. Extends as well to a Conviction upon 23 Eliz. 1. § 5. N. 1. as to a Conviction by Proclamation yet every Conviction upon 23 Eliz 1. § 5. N. 1. is not here Intended for if a man Indicted for Recusancy do upon his Arraignment confess the Indictment to be true and plead guilty Or upon trial a Verdict pass against him these are Convictions in Law but yet by these Convictions he forfeits nothing untill Judgment nor shall the penalty of twenty pound per month run on or be appropriated to the King until Judgment be given by Conviction Therefore is here 29 Eliz. 6. § 3. N. 1. to be understood Convicted by Proclamation or default or Convicted by Verdict Confession c and adjudged for so the word is here to be taken viz. For Adjudged or Attainted unless it be in case of Conviction upon Proclamation
non patrem patriae 7 Co. 9. Calvins Case Page 139. The Offender is 35 Eliz. 2. § 8. N. 1. Strictly tied to depart from the same Haven assigned him CXXXVI and within the time appointed him by the Justices of the Peace or Coroner so that if he depart the Realm from any other Haven or Port or over-stay his time and depart afterwards yet he is a Felon within this Act. CXXXVII Ireland Page 139 140. Or returns or come again into any her Majesties Realms or Dominions 35 Eliz. 2. § 10. N. 1. An Offender within this act abjures in form aforesaid and departs this Realm and afterwards goeth into Ireland without licence and then returns into England with licence which going into Ireland seems to be Felony by this Act. But Quare how the offence shall be tried not in Ireland for this Statute binds not that Kingdom nor can he taken notice of there nor yet can it be tried in England for that the Offence was done elsewhere so that this is Casus omissus and cannot be punisht for that no way of trial is appointed Crompt 53.54 Page 140. CXXXVIII Suspected 35 Eliz. 2. § 11. N. 1. Altho the party be no Jesuit Seminary or Massing Priest yet if there be cause to suspect him and he refuse to answer whether he be so or no such suspition and refusal is ground enough for his Commitment Page 140. 141. Having lawful Authority in that behalf 35. Eliz. 2. § 11. N. 1. This Clause seems to refer to 27. Eliz. 2. § 13. N. 1. Which appoints that the discovery of a Popish CXXXIX Priest or Jesuit shall be made to some Justice of Peace or higher Officer who is to give Information thereof to some of the Privy Council c. under the penalty of two hundred Marks Which Statute of 27 Eliz. 2. § 13. N. 1. tho it do not in express terms say that the Justices of Peace or other higher Officer shall examine the Priest or Jesuit so discovered yet in as much as it gives power to take Cognizance of the matter it seems Implicitely to impower him to inform himself of the truth whether the party be a Priest or Jesuit or not as well by examination of the party as otherwise that he may be the better enabled to give Information thereof to some of the Privy Council c. and one Justice of Peace having by 27 Eliz. 2. § 13. N. 1. lawful Authority to examine him he hath authority likewise by this Statute 35 Eliz. 2. § 11. N. 1. to Commit him if he be suspected to be a Priest or Jesuit and refuseth to answer whether he be so or no. As for Master Shepherd's opinion in his sure Guide Cap. 14. § 5. That there must be two Justices to commit a man by force of 35. Eliz. 2. § 12. N. 1. who is suspected to be a Jesuit or Priest CXL till he answers directly I see no ground at all for it Page 141. Answer to the said Questions 35 Eliz. 2. § 11. N. 1. That is whether he be a Jesuit Seminary or Massing Priest for he is not bound to answer to any other Question nor can be Committed by force of this Act for his refusal Page 141 142. CLXI Vrged by Process 35 Eliz. 2. § 13. N. 1. If a Popish Recusant restrained by this act be summoned by Warrant of a Justice of Peace to appear before him the Recusant ought not to travil to such Justice out of his compass of five miles For altho a Justice of Peace's warrant be the Kings Process yet it is not intended here for these words Vrged by Process are restrained by the subsequent words 35 Eliz. 2. § 13. N. 1. as requires the Recusants appearance in some one of the Kings Courts and extend not to all Cases of summons and Process as Wingate Crown 83. mistakes But if in the Case aforesaid the Warrant be to arrest the Recusant and by force thereof he be carried by the Constable c. out of the compass of five miles there he is excused and forfeits nothing for that it was done by Compulsion and yet if there be any Covin between the Recusant and the Justice of Peace or Officer it may be otherwise CXLII Courts Page 142. In any her Majesties Courts 35 Eliz. 2. § 13. N. 1. All Courts wherein the Proceedings are directed by the Kings Laws are the Kings Courts and therefore a Court Leet tho of an Inferior nature and kept in the Lords name yet is the Kings Court 5 Co. 39. Cawdries Case Hetley 18. 2. If a Popish Recusant restrained by this Act be cited into the Ecclesiastical Court he may be force of this Proviso travel out of the compass of five miles to appear there 35 Eliz. 2. § 13. N. 1. For all Ecclesiastical Courts are the Kings Courts and the Laws by which they proceed there are the Kings Laws Page 142 143. This 35 Eliz. 2. § 14. CXLIII N. 1. Extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by 35 Eliz. 2. had been proclaimed upon the Statute of Marlebridge 52. H. 3.7 § 1. N. 1. in a Plea de Custodia as a Deforceor he might lawfully have gone out of the compass of five miles the like he may do at this day upon any other Proclamation commanding him to render his body to the Sheriff Page 143. CXLIV Before he or they shall be thereof Convicted 35 Eliz. 2. § 15. N. 1. A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act 35 Eliz. 2. § 8. N. 1. and before the expiration of three months next after his apprehension is Convicted of such Offence and then before the three months expire conforms and makes such Submission and Declaration as 35 Eliz. 2. § 8. N 3. and § 16. N. 1. is appointed this Case altho he come too late after Conviction to save the forfeiture of his lands and goods yet he shall not be compelled to abjâ—re for the affirmative words here 35 Eliz. 2. § 15. N. 1. That upon such Conformity Submission and Declaration before Conviction he shall be Discharged of all Pains and Forfeitures do not carry in them the force of a Negative viz. that if it be after Conviction he shall not be discharged of any of them and by 35 Eliz. 2. § 8 N. 3. he is not compellable to abjure I at any time within three months next after his apprehension he conforms confesseth and submits as is there appointed CXLV Church Page 143 144. It seems clear that no Submission Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any Pain or Forfeiture thereby inflicted unless it be performed in some Parish Church for
the Grantee should have been Guardian notwithstanding this Act for the mischief intended here to be pretended was removed when the seigniory was granted to another who was no recusant by Jones 19. So if the King had seized the reusants seigniory as part of his two parts the King should have had the Wardship and not the next of Kin for the same reason Jones 21. Page 236 237. CCLIV Shall be thought unmeet for such recusant 3 Jac. 5. § 26. N. 2. So that the Justices of peace are not bound by this Act to deface all reliques of Price or to burn or deface all other Reliques or Popish books as Wingate Coron 144. misleads c. And though herein much is referred to the discretion of the Justices of peace yet where the Husband is a Protestant and only the Wife a Popish recusant it seems by these words 3 Jac. 5. § 26. N. 2. that they are not to consider what is unmeet for the Husband but what is unmeet for the Recusant viz. the Wife and that it was not intended that they should seize burn or deface any Books of the Husbands tho Popish unless such whereby the Wife might be aided or confirmed in her superstition So that in this Case Books written in a Language or Style unintelligible to the Wife are not within the meaning of 3 Jac. 5. § 26. N. 2. nor ought by colour thereof to be taken from the Husband who is no Popish Recusant CCV Warre Page 238. In the same County where such Popish Recusant shall be resident 3 Jac. 5. § 27. N. 1. A Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant such Arms cannot be seized by force of this Act by the Justices of Peace of either County Not by the Justices of Peace of the County where the Arms are kept for the seizure or taking is here limited to be by Warrant at the Sessions in the County where the Recusant resides and 3 Jac. 5. § 27. N. must be strictly pursued in that particular nor by the Justices of peace of the County where the Recusant is resident for the Arms are in another County where they have nothing to do And altho in some cases where a Statute appoints a Justice of peace to do a thing Justices he may do it out of his County as to take an Examination upon the Statute of Winton 13 Ed. 1. St. 2. Cap. 1. N. of a Robbery 27 Eliz. 13. § 11. N. 2. as was resolved 1 Co. 213 Jones 239. Helier vers H. of Bluhurst yet he cannot exercise any coërcive power out of his County as was resolved in that Case for his potestas jurisdictionis is confined to his County as well as that of a Bishop is confined to his Diocess see Palmer 473. Astuiths case infra 266. N. 2. And here the taking of the Recusants armour is a coërcive act and therefore by 3 Jac. 5. § 27. N. 1. can be executed by warrant of the four Justices of peace in that County only where they are Justices so that this is clearly easus omissus and not provided for by this Act Page 238. CCLVI. Imprisoned by Warrant of or from any Justices of peace 3 Jac. 5. § 28. N. 1 any two Justices may grant their Warrant for imprisoning the Offender and 't is sufficient in this Case for Pluralis numerus est duobus contentus but a Warrant from any one Justice will not serve contrary to Wingate Ceron 145. Page 238 239. CCLVII Of such County 3 Jac. 5. § 28. N. 1. that is of the County where the Popish Recusant is resident for no other County was named before a Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant the Justices of peace of that other County cannot by force of this Act 3 Jac. 5. § 28. N. 1. imprison him that keeps them for they are not named here but the power in this Case is expressly limited to other Justices and no other can intermeddle therein neither will the Warrant of the Justices of peace of the County where the Recusant is resident reach him who is in another County for the coercive authority of a Justice of peace cannot exceed his limits or bounds as Comm. 37. is held in the Case of the Lord Say It was resolved that if a Justice of Peace of the County where the Felony was committed pursue a Felon into another County and take him there the Felon must be imprisoned in the County where he is taken and the Justice of peace who pursued him hath no power to carry him to the Gaol of the County where he did the Felony for he is a Prisoner in the County where he was taken and there the Justice of Peace hath no more power to do than an ordinary person 13 Ed. 48. Freshsuit Br. 3. So that as it seems in this Case the party who keeps such Arms cannot be imprisoned by 3 Jac. 5. § 28. N. 1. but this likewise wise is casus omissus and not here provided for 7 Iac. 6. Of Allegiance PAge 243.243 upon 7 Jac. 6. § 8. N. 1. the King cannot dispence with any Member of the Commons House of Parliament from taking this Oath of Alleglance CCLVIII. for that he is here declared to be persona inhabilis untill he take it Vaughan 355. Thomas and Sorrell supra 44 and 3 Inst 154. Page 246. For any two Justices of Peace within any County CCLIX City or Town Corporate c. 7 Jac. 6. § 26. N. 2. the two Justices may require his Oath of any person that shall happen to be within their Jurisdiction altho his Habitation be in another County or Liberty for the Oath of Allegiance sequitur personam non locum 2 Bulstr 155. the King against Griffith c. Page 246. To require any person or persons CCLX 7 Jac. 6. § 26. N. 2 This is an enlargement of the power given to two Justices of Peace by 3 Jac. 4. § 13. N. 4. For thereby they could have required the Oath but only in some particular Cases supra 181. but by 7 Iac. 6. § 26. N. 2. they may require it of any person whatsoever of competent age and under the degree of a Baron or Baroness The Justices of the Peace in this Case 7 Iac. 6. § 26. N. 2. or the Justice of peace in the following Case 7 Iac. 6. § 26. N. 4. may make his or their special Warrant to the Constable to bring the party before the said Justice or Justices to take the oath for by 7 Iac. 6. § 26. N. 2. by giving them power to require the Oath doth implicitly authorize them to make such a Warrant Quando Lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest and it is against the Office of the Justices of Peace
of his Wife Page 255 CCLXXII 256. Shall continue out of Prison 7 Jac. 6. § 28. N. 1. A married Woman convicted as a Popish Recusant is after her Conviction and before any further prosecution or any Election made by the Husband whether he will pay the ten pound per Month or yield the third part of his Lands imprisoned by Process of Law or for some other Clause not relating to such Conviction and afterwards is set at liberty it seems that the Husband shall not pay the ten lib. per Month for the time she was in Prison For the Act 7 Jac. 6. § 28. N. 1. speaks only of the time during which she continueth out of Prison and altho she were not imprisoned for her Recusancy yet seeing she had not during such her imprisonment the Benefit intended to her in consideration of the ten lib. per Month or third part viz her liberty the Husband shall not for that time pay the Penalty here appointed to save her Imprisonment but if he pay it for the time after she is set at Liberty that is sufficient to satisfy the intent of this Act. But if after such Conviction the Wife be imprisoned by Covin upon some pretence not relating to such Conviction that shall not save the Husband's payment of the ten lib per Month for the time she was imprisoned but after she is set at Liberty she may be again imprisoned by force of this Act 7 Jac. 6. § 28. N. 2. unless the Husband pay the ten pound per Month or satisfy to the King the third part of the Profits of his Lands as well for the time of such Covenous Imprisonment as for the future for the Covenous Imprisonment was upon the matter her own act and no person shall take advantage of an Imprisonment covenously caused by him or her self 16 Ed. 45. and here she continued out of Prison in the sense of this Act 7 Jac. 6. § 28. N. 1. because her Imprisonment was not by process of Law in invitam And so if a man be outlawed while he is in Prison yet the Oatlary shall not be avoided for that cause if the Imprisonment were by Coven or consent of the party outlawed 1 Inst 259.38 Ass 17. 3 Car. 1 2. 3 Of Ouster le Mere. PAge 258 259. Or of Oyer and Terminer 3 Car. 1. Cap. 2. 3 § 3. N. 1. Justices of Peace cannot take an Indictment upon this Statute for no inferior Court shall take authority by any Statute unless it be specially named Savill 135. pl. 212. Agard and Sandish And altho Justices of Peace have in their Commission § 14. an express Clause ad audiendum terminandum yet forasmuch as there is a Commission of Oyer and Terminer known distinctly by that name and the Commission of peace is known distinctly by another Name they shall not be included under the general words of Justices of Oyer and Terminer as was adjudged 3 Co. 87. Hill 30 Eliz B. R. in Smyth's Case who was Indicter at the Sessions of the Peace in the County of Oxford on 5 Eliz. 14. of Forging Deeds which impowers Justices of Oyer and Terminer to inquire of hear and determine that Offence and yet the Indictment before the Justices of Peace was quasht as taken coram non judice 9 Co. 118 3 Inst 103. and 3 Co. 60. 1. Wilson's Case and 3 Co. 697. Hunts Case See Justices FINIS KNowing the Learning and Industry of the Author of this Work who hath therein very seasonably bestowed his Pains upon Explaining the Antient Laws made against Recusants I do Recommend the same to the Publick Fra. NORTH May the 7. 1681
such Ministry or Office 5 Eliz. 1. § 5. N. 6. whether of the gift of the King or of a Subject are bound to take this oath of Supremacy 1 Eliz. 1. § 19. N. 4. and not only such as are preferred by the King as 't is restrained in the late Additions to Dalton 184 Cap. 81. Page 39. XXXVIII This 5 Eliz. 1. § 5. N. 6. takes in so much of the Canon and Civil Law as is here allowed but the Common Law as the peculiar Law of this Kingdom is here preferred and perticularly mentioned and not the Canon Law as is erroneously said in the late Additions to Dalton 184. cap. 81. Sect. 11. Page 39. XXXIX The Statute 5 Eliz. 1. § 5. N. 10. saith not that those who belong not to any Court shall take the Oath before those who are authorized by common use to give it as Wingate Crown 20. in fine mistakes for this being then new a Oath devised by the makers of 5 Eliz. 1. § 19. N. 4. no person could have authority by Common use to administer it and the act 5 Eliz. 1. § 5. N. 10 plainly enough speaks of those who have authority by common use to admit the party to the Office and not authority by common use to give the Oath Infra 66. XL. Ordinary Page 39. Upon 5 Eliz. 1. § 6. N. 1. If a man be Indicted for refusing this Oath of Supremacy before him who is reputed to be the Bishop of the Diocess and he plead to the Indictment not guilty he may upon that issue give in evidence quod non fuit Episcopus tempore oblationis Sacramenti Dyer 234. pl. Boners Case XLI Certificate Page 41. It is not necessary on 5 Eliz. 1. § 9. N. 1. that it be mentioned of Record in B. R. how or by whom the Certificate was brought in thither and in Bonners Case Dyer 234. pl. where the Bishop of Westminster certified the refusal of this Oath of Supremacy and Exception was taken that the Certificate was entred to be brought into Court per A. B. Cancellarium dicti Episcopi but not per mandatum Episcopi and the Exception was disallowed for that reason XLII Enquest Page 41. And on 5 Eliz. 1. § 9. N. 3. a Jury of the County where the Kings Bench is can do no more in this Case than inquire that is indict the party refusing the Oath unless where the refusul is in the same County 2. Horn Bishop of Winchester tendered this Oath in Surrey parcel of his Diocess to Bonner then late Bishop of London who refused to take it and this was certified by the Bishop of Winchester into B. R. then sitting at Westminster in the County of Middlesex where Bonner was Indicted by a Jury of that County according to this Act 5 Eliz. 1. § 9. N. 3. the question was by what County he should be tried whether by a Jury of Middlesex where the Indictment was taken or by a Jury of Surrey where the Offence was committed and it was resolved that he should be tryed by a Jury of Surrey for 5 Eliz. 1. § 9. N. 3. extendeth to the Indictment only and leaveth the tryal to the Common Law which appoints it to be where the Offence was committed for regularly by the Common Law debet quis Juri subjacere ubi deliquit 6 and 7 Edw. 6. Dyer 234. 3 Inst 34. 3. So that the Jury on 5 Eliz. 1. § 9. N. 4. is to indict and not the Sheriff as is mistaken in the late additions to Dalton 184. cap. 81. § 11. XLIII Treason Page 42. Savil. 46 47. pl. 99. Slade and Body were condemned in a Praemunire upon 5 Eliz. 1. § 2. N. 1. before Justices of Oyer and Terminer for the extolling the authority of the Bishop of Rome and remained in Prison for the space of two years and afterwards were brought to the Assizes and demanded whether they were still of the same opinion to which they answered that they were and one of them said that if they had a thousand lives they would lose them all in this Case upon which they were indicted and arraigned and convicted upon 5 Eliz. 1. § 10. N. 2. for High Treason and it was resolved by the greater part of the Justices that the words should be taken to be spoken advisedly and wittingly and were within the meaning of this second Branch XLIV Parliament Page 44. Upon 5 Eliz. 1. § 16. N. 2. the King cannot dispence with any Member of the Commons House from taking this Oath of Supremacy for the reason in Vaughan 355. Thomas and Sorrels Case because by this Statute he is persona inhabilis until he hath taken it Infra 258. XLV Priviledge Page 44. Altho by this Act 5 Eliz. 1. § 17. N. 1. no temporal person of or above the degree of a Baron is compellable to take this Oath yet if he be made a Justice of Peace he ought to take it by force of 1 Eliz. 1. § 19. N. 1. Jones 152 153. the Earl of Lincolnes Case Page 44. XLVI By these words temporal person in 5 Eliz. 2. § 14. N. 1. and the Preamble forasmuch c. Arch-Bishops and Bishops altho their possessions be temporalties are excluded out of this Proviso and therefore are to take the Oath for every person who is of the degree of a Baron is not excused as Wingate Crown 29 mistakes but only the temporal Lords of Parliament XLVII Incumbent Page 45. So that every Clergy man or Person in Orders is not within the danger of this Law of 5 Eliz. 1. § 20. N. 1. upon the second tender and refusal of the Oath of Supremacy as Wingate Crown 30. mistakes for every Priest or Minister is Clericus 3 Eliz. Dyer 203. pl. and yet shall not incur the penalty of High Treason upon the second refusal unless he be a local Minister or have some charge Cure or Office in the Church XLVIII Ordinary Page 45. Upon 5 Eliz. 1. § 20. N. 3. Ordinary in the Common Law is properly taken for the Bishop of the Diocess but yet usually in the Common Law and in Statutes for every Commissary and Official of the Bishop or other Judge that hath ordinary Jurisdiction within his limits in Causes Ecclesiastical W. 2. cap. 19. and 31. Edw. 3.11 Termes de la Ley 212. verbo Ordinary 1 Inst 344 and 8 H. 6.3 XLIX Religion Page 45. Upon 5 Eliz. 1. § 20. N. 5. if a man once in his life time heareth private Mass it seems he is within this qualification and incurs High Treason upon the second refusal of the Oath and not only if he used to hear it as Wingate Crown 30. interprets the Statute L. Corn. Page 46 47. The Judgment in a Praemunire is to be out of the Kings protection his Lands Tenements Goods and Chattels to be forfeited to the King and that his body shall remain in Prison at the Kings
but no particular cause for the recusants travel was expressed in the license and this seems to be a good exception for the inserting into the License that the Popish recusant hath urgent or necessary occasion or business answers only the former part of this Proviso 3 Jac. 5. § 7. N. 2. which gives the former Justices power to license him if he hath necessary occasion or business to travel out of the compass of five miles but withall it ought to be mentioned in the license particularly what that occasion or business is which is the cause of the License for so this Act here 3 Iac. 5. § 7. N. 3. expressly appoints and therefore that form of a License for a recusant to travel which Dalton 379 Cap. 124. tit licenses hath set down wherein no cause is mentioned but urgent and necessary business seems too short and general and is not to be relyed on Page 210 CCXXVIII First taking his Corporal oath 3 Iac. 5. § 7. N. 4. in Mansfiel ca. Moor 836. pl. 1127. there is another oath mentioned for a Popish recusant to take before he can be licensed to travel and that is the oath of Allegiance prescribed by 3 Jac. 4. § 25. N. 1. for in Moor 836. it 's said that in an Information brought against the recusant for travelling out of the compass of five miles the defendant pleaded a licence from four Justices of peace and his plea was disallowed because among other things that did not shew that before the licence he had taken the oath of Allegiance yet Quaere of this and by what Law the omitting to take that Oath makes the Licence void but I rather think it to be a mistake and that such an exception might be moved but the plea not disallowed for that reason Page 210 211. Before the said four Justices of the Peace or any of them 3 Jac. 5. § 7. N. 4. Master Shepherd in Sure Guide Cap. 14. Sect. 5. thinks that no less than two of the four Justices of the peace can minister this Oath to the recusant But I take it to be there that any one of the four Justices may minister the Oath in this Case And there is a great difference between any Justices for that denotes the Plural number as in the subsequent clause 3 Jac. 5. § 27. N. 1. where any Justices may imprison the Offender that is any two Justices or more and Any of the Justices are here 3 Iac. 5 § 7. N. 4. which denotes the singular number and the following words who shall have Authority by vertue of this Act to minister the same may be well enough applied to any one Justice of peace Page 211. CCXXX That he hath truly informed them of the Cause of his journey 3 Iac. 5. § 7 N. 4. If an information be brought against a Popish recusant for travelling out of his compass of five miles and he plead a licence from four Justices of peace it seems necessary that he averr in his plea that the cause contained in his licence was true and real Moor 836. pl. 1127. CCXXXI Ability Page 212. This clause 3 Iac. 5. § 8. N. 9. extends not to all sorts of recusants who are convicted or have Wives who are recusants convicted as is mistaken in the Additions to Dalton Cap. 81. Sect. 46. tit Recusants but at this day only to the Popish recusant convicted or having a Wife who is a Popish recusant convicted A Popish recusant not convicted hath a Wife who is convicted of recusancy but is no Popish recusant the Husband is not disabled by 3 Iac. 5. § 9. N. 1. to exercise any publick Office or Charge for that neither the Husband is a convicted recusant nor the Wife a Popish recusant A person who is convicted of recusancy but is no Popish recusant hath a Wife who is a Popish recusant but not convicted the Husband is out of this branch of the Statute 3 Iac. 5. § 9. N. 1. for that neither the Husband is a Popish recusant nor the Wife convicted CCXXXII Women Page 213 214 215. The Issues and Profits of two parts of her Dower 3 Iac. 5. § 10. N. 1. and not of two parts of her Joynture or Dower as Wingate Coron 134 For there are divers Cases where notwithstanding 27. H. 8.10 § 6 N. 3. the Wife shall have her Dower and Joynture both and if she offend against 3 Iac. 5. § 10. N. 1. she shall forfeit the profits of two parts of both and that not only where the Joynture made to her is not warranted by 27 H. 8.10 § 6. N. 1 But in some Cases where the Joynture is pursuant and according to the Statute she shall have her Dower and Joynture both If an Estate be made of Lands to the wife for the Life of another Dower 4 Co. 3 Vernons Case Or for a thousand years if she lives so long 1 Iust 36. Or if a Rent be granted to the Wife for the life of another or for years or any other way not pursuant to 27. H. 8.10 § 6. N. 1. Bickley's Ca. 1. Anderson 288. pl. 296. and 2 Anderson 30 pl. 2. Wentworth's Case Or if an Estate be made to others in Fee or for the Wives life upon trust for her benefit 1 Inst. 36. Or if a man covenant to stand feised to the use of himself in Tayl the Rem to the use of his Wife for life Pasch 16. Jac. B. R. Wood's Ca. Or if the Husband make a Feoffment in Fee to the use of himself for life the Remainder to another for life or years the remainder to the Wife for her life 4 Co 2. Hutt 51. Shrewell's Ca. In all these Cases altho the Lands or rent were conveyed to the Wife for her Joynture yet the Estate not being within 27 H. 8.10 § 6. N. 1. her acceptance thereof shall not barre her Dower but she shall have such Joynture and her Dower also And the reason why in the two last Cases the Wife shall not be barred of her Dower altho there be an Estate limited to her for her life is because the Estate is not in its first Creation appoynted to take immediatly after the death of the Husband and no matter which ariseth ex post facto can salve this or make it a Joynture within 27 H. 8.10 § 6. N. 3. to barre her Dower And therefore if in Wood's Câ—â—â—â—… the Husband Tenant in Tayl dyeth without issue or if in Hutt 51. he in remainder dye before the Husband or the term for years determine in the Husband's life-time so that the Wife may enter presently after his death yet because the Estate to the wife for her life was not originally limited to take immediately after his death it shall not barre her Dower quod ab initio non valet c. And as in all the Cases befo-rementioned if the Estate were made for her Joynture the Wife shall have such Joynture and Dower both so if
and the authority hereby given them to go and seck the party 12 Co. 130. But the Constable cannot by vertue of such Warrant break the House where the party is for he is no Offender before he refuse the Oath or commit some contempt to the King Page 246. If any Person or Persons of or above the said Age and Degree CCLXI 7 Jac. 6. § 26 N. 3. that is of the said Age and above the said Degree of a Baron or Baroness for so the words must be taken viz conjunctively and not of such who are of the Degree of a Baron or Baroness and no more For the precedent words 7 Jac. 6. § 26. N. 1. appointed that the Oath may be tendered to such by any Privy Counsellour or the Bishop of the Diocess in all Cases altho they were never Convicted Indicted or Presented but to such Noblemen or Noblewomen as are above that Degree it cannot be tendered by vertue of this Act 7 Jac. 6. § 26. N. 3. unless they have been before convicted indicted or presented for not coming to Church or not receiving the Sacrament and in those Cases no less than three Privy Counsellours Quorum nuus c. can tender it 12 Co. 130 131. CCLXII Dignity Page 247. If any Person or Persons whatsoever c. under the said Degree 7 Iac. 6. § 26. N. 4. A Baroness or any Woman above that degree who is not of noble birth but only by Marriage becomes a Widow and takes a second Husband under the Degree of Nobility and is convicted indicted or presented of Recusancy or complained of by the Minister c. to a Justice of Peace who finds cause of Superstition the Justice of Peace may require her to take this Oath altho she were once Noble for by her second Marriage she hath lost her Nobility and Name of Dignity together with the Priviledges of her Nobility Quando mulier nobilis nupserit ignobili desinit esse nobilis which is to be understood of Nobility acquired by Marriage supra 212. For that which was gotten by Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur and in such Case she shall not be tryed by Noblemen for they are no longer her Peers 2 Inst 50. But if a Woman be Noble by Birth or descent whomsoever she marries yet she remaineth Noble for Birthright is Character indelebilis 4 Co. 118. Actons Case and 6 Co. 53. Countess Rutland 6 and 7 Ed. 6. Dyer 79. Rosin Br. 31.69 and 1 Inst 69. And 't is observable that 21 H. 8.13 § 33. N. 1. provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expressly provided for by the Statute and the reason given 4 Co. 118. is because by such Marriage her Dignity is determined but hkre 7 Iac. 6. § 26. N. 4. there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a common person Page 247. Shall stand and he presented indictid or convicted CCLXIII 7 Iac. 6. § 26. N. 4. These words being in the Disjunctive it is not necessary that the party be convicted but if he stand presented or indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of peace ought to tender him this Oath CCLXIV Intendment Page 247 248. And the said Iustice shall find cause of Suspicion 7 Iac. 6. § 26. N. 4. and not if the party be suspected as Wingate Coron 159. mistakes for the bare suspicion of the Justice of peace or any other Person is no sufficient ground to require the Oath or committ the party for the refusal but there must be some good cause for that Suspicion and the same must be alledged in Justice of peace his Plea or justification if he be Sued for committing him so Prison for such refusal So if a Man be arrested on Suspicion of Felony and brings his Action for false Imprisonment the Defendant ought to shew some Matter in fact to induce his Suspicion for in these and the like Cases a bare Suspicion is no justification sufficient it being a Matter secret and not traversable but the Cause of Suspicion is traversable 3 Bulstr 28.4 Weale versus Wells 7 Ed. 4.20 and 17. Ed. 45. and 5 H. 7.4 And whether the Suspicion be just and lawfull shall be tryed and determined by the Justices 2 Inst 52.11 Ed. 4.4 CCLXV. Justices Page 248. That then any one Iustice of Peace 7 Iac. 6. § 26. n. 4. What was said by Coke Chief Justice in Griffiths Case 2 Bulstr 155. that any one Justice of Peace may minister this Oath is to be understood of some Cases only 12 Co. 130. which are no others than those here mentioned as he explains his meaning 12 Co. 132. that one Justice of Peace cannot committ any for Refusal of his Oath unless they be prosecuted indicted or convicted and according to 7 Iac. 6. § 26. n. 4. supra 184. Page 248 CCLXVI. 249 250. Within whose Commission or Power such Person or Persons shall at any time hereafter be 7 Iac. 6. § 26. N. 4 A person complained of and against whom Cause of Suspicion is found by the Justice of Peace flyeth into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and committ him upon Refusal for he seems to be impowered thereunto by express words of the Statute for that the Party is fallen within his Commission or Power c. But yet I conceive that 7 Iac. 6. § 26. n. 4. By these words Any one Iustice of peace within whose Commission or Power c. is designed or intended no other Justice than a Justice of that County where the Party was complained of and suspected and that if he fly into another County no proceedings can be there upon the Complaint and Suspicion in the County whence he came nor any one Justice tender him the Oath or committ him for Refusal without a new Complaint and Cause of Suspicion in the County whither he flyeth For where the Party cannot be Indicted of a Praemunire for Refusing the Oath upon the second Tender at the Assizes or Sessions by 7 Iac. 6. § 26. n. 6. There the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for Refusal for the Commitment is in order to a second Tender and an Indictment of Praemunire thereupon but in this Case the Party can not be Indicted of a Praemunire in the County where he flyeth for refusing it upon the second Tender for the Offence for which the Party must be indicted is a