and not half a year after his imprisonment 3. It seems now to be out of doubt but that any Offender against 1 Eliz. 1. altho by preaching teaching or words may be indicted at any time within a year and a day after the offence committed and that by 23 Eliz. 1. § 8. N. 1. which saith that all offences against 1 Eliz. 1. and 5 Eliz. 1. and 13 Eliz. 2. touching acknowledgment of her Majesties Supream Government in Causes Ecclesiastical shall and may be inquirable within a year and a day after the offence commmitted and the affirming or maintaining the Spiritual or Ecclesiastical Jurisdiction of a Foreigner was without question an offence against her Majesties Supream Government in Causes Ecclesiastical against the acknowledgment thereof so that the year limited by 23 Eliz. 1. § 8. N. 1. is now extended to a day further and what ever the meaning of it was as to the half year all offences against it whether by preaching teaching or words or otherwise for 23 Eliz. 1. § 8. N. 1. is general and reaches all offences whatsoever against 1 Eli. 1. touching the Supremacy Ecclesiastical may now be inquired of within a year and a day whether the party be in prison or not but yet it seemeth that in Case of Imprisonment within the first half year this provision 1 Eliz. 1. § 31. N 2. for the setting at liberty of the Prisoner at the end thereof if he be not before that time indicted remains still in force and is not abrogated by 23 Eliz. 1. § 8. N. 1. IX Dignity Page 16. The Provision made in 1 Eliz. 1. § 34. N. 1. and other Acts of Parliament for the Tryal of a Peer by his Peers in case of Treason where he was to be tryed by the Course of the Common Law is ex abundanti and he should have such tryal if no such provision were inserted the like in the case of Felony Stamf. Coron 159. X. Treason Lambert 2. cap. 7. pag. 227. Justices of Peace cannot deal with Traytors in the point of Treason but as Breakers of the peace saying that in some Cases they have a special power to inquire and receive Indictments only and of this sort are 1. Treason of extolling Foreign power by 1 Eliz. 1. § 27. N. 1. 2. The Treason of absolving or withdrawing his Majesties Subjects from their natural obedience by 23 Eliz. 1. § 2. N. 1. c. And 3. The Treason of putting in are any Instrument of Reconciliation gotten from the See of Rome by 13 Eliz. 2. § 2. N. 1. Lambert 56. There hath been care taken XI once or twice in our memory to exact this Oath of Supremacy Oath 1 Eliz. 1. § 19. N. 4. of all the Justices of the Peace throughout the Realm whereof some good hath ensued but yet many a Justice there is that by indirect practice never took either this or the Oath of Offices whereof what harms do or may grow I leave to wiser and higher Men to be considered adding this only that it would avail greatly to the furtherance of the service if the Dedimus Potestatem to give these Oaths were dirigible to the Justices and none other to minister the same not elsewhere but in their open Sessions Crompt 10. b. Every Justice of Peace before he takes upon him to exercise or occupy the Office of a Justice of Peace shall take the Oath of Supremacy XII Justices 1 Eliz. 1. § 19. N. 4. Crompt 11. Nota XIII That the Justices of Peace ought to take this Oath of Supremacy in the open Court of Sessions where he serves by 12 Eliz. 1. § 15. N. 1. and I have seen it done at the Assizes in the County of Stafford and its the best way to be so done for where on 5 Eliz. 1. § 7. N. 1. a Commission is made to take their Oaths when they are made Justices of Peace it may be hath taken his Oath when he hath not done so in fact if he that be to be sworn be such a one as is not well affected to the Religion now established Crompt 12. Charge in Sessions XIV First to inquire if any within this year and day hath depraved Religion despised or contemned the Sacrament of the Body and Blood of our Saviour Jesus Christ in contempt thereof by any Contemptuous words or by any words of depraving despising or advisedly hath in any other manner contemned despised or reviled the said Sacrament contrary to the Edicts and Declarations heretofore c. 1 Ed. 6.1 § N. 1 Eliz. 2. § N. and 23 Eliz. 1. § N. 1 Eliz. 2. Of RELIGION XV. Incumbent PAge 21. Altho the first part of this Clause of 1 Eliz. 2. § 3. N. 1. Viz. all and singular Ministers in any Cathedral or other place seems to intend a local Minister only and not one who is neither Parson Vicar or Stipendary Chaplain yet the next words 1 Eliz. 2. § 4. N. 1. If any Parson Dicar or other Minister that ought to say Common Prayer or minister the Sacraments c. thereby comprehend all lawful Ministers and Priests whatsoever for 't is held in our Law that as he is Sacerdas he ought and is bound Jure divino celebrare Coenam Dominicam dictae Coenae actiones c. and if he be indicted upon this Statute with the addition of Clericus that word implies him to be a Priest or Minister within the meaning thereof Dyer 203. pl. 2. Note That by the Statute 13 and 14 Car. 2.4 § 2. N. 2. this 1 Eliz. 2. and all other Laws which were then in force for the Uniformity of Prayer and administration of the Sacraments within the Realm of England are now applicable to the Book of Common Prayer authorized by 14 Car. 2.4 and are to be put in ure with relation to the said Book XVI Religion Page 21 22. These words 1 Eliz. 2. § 4. N. 2. wilfully or obstinately standing in the same seem to restrain the Law to such other prayers as are used in hinderance of or opposition to the Common-prayer or after admonition or warning to the contrary and therefore the Prayers used in the Pulpit before Sermon seem not to be within the meaning of this Law nor to be forbidden by it because generally tollerated by those in authority and so not obstinately used and were those words wanting altho the words of the Statute 1 Eliz. 2. § 4. N. 2. are general any other Form or open Prayers yet they ought to have a particular Construction according to reason and the intent of the Makers of the Law Viz. That no Minister shall use any other form to the hindrance of or in opposition to this for a penal Law shall not alwayes be construed according to the words but according to the intent Com. 18.465 466 467.109 110. and the words of a Law may be infringed and yet the Law it self may not which intent shall never
against the Recusant Tenant in Tail in his life time the heir is bound in that Case 5. If a Judgment was had against the Recusant before 1 Jac. 4. § 5. N. 1. and he had died before seizure of the two parts of his Lands the Question was whither after his death they might have been seized by force of 29 Eliz. 6. § 6. N. 1. for the Arrears of the penalty Incurred in his life time for that the Seizure here given is meerly in nature of a nomine paenae or penalty inflicted for his contempt in not paying the 20 l. per month and should not have gone in satisfaction of the debt but the Queen should have held the Land till the 20 l. per month were otherwise paid and satisfied and when this penalty of seizure was not executed in the Recusants life time by his death the contempt was gone and consequently the penalty inflicted for that contempt could not then be put in Execution Lane 92 93. Beekets Case Lane 107. Halseys Case But now by 1 Jac. 4. § 5 N. 1. the seizure is not as a meer penalty for the contempt of non payment but for the satisfaction of the King of the Arrears of 20 l. per month and the profits of the Land shall go towards the payment and satisfaction thereof so that now there is no question but the two parts of the Recusants Lands may be seized after his death unless the hair discharge himself by his Conformity 4. Note in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant altho an Affidavit be made of his death and a discharge obtained thereupon yet 't is a rule in the Court of Exchequer that a Commission shall be Awarded first to Enquire Savile 130. pl. 201. CVII Page 111. This branch 29 Eliz. 6. § 7. N. 2. seems not to extend to all forfeitures for Recusancy for the power here given to the Lord Treasurer c. is only in relation to those forfeitures which are by 29 Eliz. 6. § 3. N. 1.2 appointed to be paid into the receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act medles with no other so that if the 20 l. per month be recovered in a popular suit by the Informer qui tam c. one third part thereof ought still to be paid to the poor of the Parish only according to 29 Eliz. 1. § 11. N. 1. notwithstanding this act 29 Eliz. 6. § 7. N. 2. 35 Eliz. 1. Of SECTARIES Page 114. Wingate Crown 70. saith that if any person above sixteen years of Age obstinately refuseth to come to Church for a month CVIII Religion or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison 35 Eliz. 1. § 1. N. 2. which is a great mistake for no man shall be punished by this Act for either of those Causes only the not coming to Church being only a precedent qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Crompton 53. 2. And therefore if a man never comes to Church yet he is no offender within 35 Eliz. 1. § 1. N. 2. unless he advisedly or purposely move or perswade another to deny or Impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and malitiously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at such Conventicles c. 3. And on the other hand if a man move or perswade any other to deny or Impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Convinticles c. Or if he himself be present at any Conventicles c. yet he is no offendor within 35 Eliz. 1. § 1. N. 2. if he goeth to Church once within the compass of a month 4. So that the party must both forbear to come to Church and be guilty of some other offences here enumerated or he is not punishable by 35 Eliz. 1. § 1. N. 2. and as for the denying or Impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Page 114 115. Under colour or pretence of any exercise of Religion 35 Eliz. 1. § 1. N. 3. Altho this Act is commonly called the Act against Sectaries CIX as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except 35 Eliz. 1. § 2. N. 1. in the point of abjuration for Popish service is performed under Color or pretence of Exercise of Religion and the assembly or meeting of Popish Recusants under such Color or pretence is an assembly or meeting contrary to the Laws and Statutes and they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a month and be present at any part of the Popish service or move or perswade ut supra And may be Imprisoned without Baile until they conform and make submission as by 35 Eliz. 1. § 4. N. 1. is appointed but they cannot be required to abjure unless they offend against 35 Eliz. 2. § 8. N. 2. 2. A Popish Recusant is likewise subject to an Action of debt c. given to the Queen by this Statute 35 Eliz. 1. § 10. N. 2. CX Process Page 115. Being thereof lawfully convicted 35. Eliz. 1. § 1. N. 5. that is convicted both of his absence from Church and of that other offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no offence within this Act. 2. And t is not necessary that the party be Convicted of such absence upon any prior Indictment for altho there was never any former Conviction of him for Recusancy yet if he offend against this Act 35 Eliz. 1. § 1. N. 5. in any of the other particulars he may be Convicted both of that offence and of his absence upon one and the same Indictment and so was the Indictment Mich. 16. Car. 1. in the Case of Lee and others 1 Cro. 593. pl. who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles to which they pleaded not guilty and the Indictment was removed in B. R. to be tryed there CIX Oath Page 116. Being thereunto required by the Bishop c. or any Justice of Peace 35
contrary to Law Whether they be Popish or other or perswades others so to do or to forbear the Church or to impugne the Kings authority in Causes Ecclesiastical she shall be imprisoned by force of this Act 35 Eliz. 1. § 1. N. 5. until she conform and submits her self but she cannot be further proceeded against so as to require her to abjure A married Woman by this Act 35 Eliz. 1. § 10. N. 2. with her husband is likewise punishable for her Recusancy by action of of Debt c. brought against her and her Husband at the Kings Suit so that 't is a great mistake to say she is not punishable by this Statute CXXIII Exile Page 124 125. Upon 35 Eliz. 1. § 13. N. 1. Every abjuration as well as that for Felony is an Exile or Banishment and if perpetual and by authority of Parliament amounts to a Civil death and therefore the Wife of a man banished or abjured for ever might sue or be sued without her Husband as was ruled in the Case of the Lady Maltravers 10 Edw. 3. and of the Lady Belknap 1 H. 4.1 and 2 H. 4.7 2. And if a man be perpetually banished by Authority of Parliament unless it be for Felony or by force of this Act 35 Eliz. 1. § 13. N. 3. his Wife shall be endowed living the Husband 3. And if he had been perpetually banished or abjured for felony the Wife should have had her joynture presently altho not her dower as was resolved 19 Edw. 1. in Weylands Case and the reason is because tho the Husband be naturally living yet he is civilly and in the eye of the Law as a dead man 4. But yet these Cases are to be understood of a Banishment or abjuration for ever and not of a Relegation or Exile for a time for in such Case neither could the Wife sue or be sued without her Husband nor could she have her Dower or Joynture during the natural life of her Husband 1 Inst 132. 2 Inst 47. and 3 Bulst 188. Wilmotes Case 1 Rol. 400. pl. 27. Moor 851. pl. 1159. 5. But if a Man be abjured by force of this Act the Wife shall not have her Dower or Joynture during the natural life of her Husband altho he be abjured for ever but she is in a worse Case than the Wife of a person perpetually banisht was at the Common Law For this Act 35 Eliz. 1. § 13. N. 2. by express words gives his Lands Tenements and Hereditaments to the Queen during his life which is to be understood of his natural life and the saving here of the Wives Dower 35 Eliz. 1. § 13. N. 3. is not intended of the Dower which she might claim at Common Law presently upon the abjuration of her Husband nor shall make void the former words of the Act by which all his Lands are given to the Queen during his natural Life but his only the usual provision made in Acts of of Parliament which create any new felony for the saving of the Dower of the Wife after the death of the Husband so that the meaning of this branch 35 Eliz. 1. § 13. N. 3. is that if the Husband refuse to abjure or abjure and refuse to depart according to this Act or return without license yet the Wife shall be indowed and the Heir inherit his lands after he is naturally dead CXXIV Days Page 125 126. Note that this Act 35 Eliz. 1. § 13. N. 4. being at first but temporary was afterwards discontinued Hutt 61 62. But is since renewed by 3 Car. 1.4 5 § 21. N. 1. and declared to be in Esse 16 Car. 2.4 § 1. N. 1. and is in full force at this day 2. And in such Case it hath been questioned if a Statute be discontinued and afterwards revived Parliament how an Indictment thereupon shall conclude whither contra formam Statuti or Statutorum For if a Statute be temporary and afterwards continued for a longer time or made perpetual and never discontinued there without doubt it shall be contra formam Statuti But it hath been held by some that where it was once discontinued and then revived there it is as if there were two several and distinct Statutes and the Indictment shall conclude contra formam Statutorum 9 Eliz. Palmers Case But others have held the contrary and that there is not any difference in the Case of a Statute at first temporary and afterwards before any discontinuance continued for a longer time or made perpetual and a Statute discontinued and then revived but that it shall in both Cases be held but as one Statute and that the conclusion shall be contrà formam Statuti and not Statutorum unless where the Act of reviver makes any addition to the former Act or increaseth the penalty or forfeiture for then there is no doubt but they are two distinct Acts of Parliament and according to this latter opinion hath the practice been in Informations upon 5 Eliz. 9. of perjury which determined 14 Eliz. and was revived 29 Eliz. 5. § 2. N. 3. and yet all Informations thereupon conclude contra formam Statuti And so as it seems ought all Indictments upon this Statute of 35 Eliz. 1. § 13. N. 4. notwithstanding its discontinuance and reviver Owen 135. Wests Case 35 Eliz. 2. Of CONFINEMENT CXXV Alien PAge 128 129. Born within any her Majesties Realms or Dominions or made denizen 35 Eliz. 2. § 2. N. 1. So that all Popish Recusants are not within this branch as Wingate Crown 78. mistakes for it extends not to an Alien who is born out of the Kings Legelance unless he be made Denizen In the late Additions to Dalt cap. 81. Sect. 14. this Clause 35 Eliz. 2. § 2. N. 1. is restrained to such as are born in England but it is clear that is extends to all the Kings Natural Subjects if they live in England altho they were born in Ireland or any other of the late Queens dominions besides England By Denizen is here to be understood an Alien who owes to the King an acquired Subjection or Allegiance whether he be made Denizen by the Kings Letters Patents or be Naturalized by Act of Parliament for Naturalization includes all the priviledges of a Denizen and something more and every one who is naturalized is thereby made a Denizen altho he that is made a Denizen by the Kings Letters Patents is not thereby Naturalized CXXVI Recusant Page 129 130. Which being then a Popish Recusant this 3.5 Eliz. 1. § 3. N. 1. is the first Penal Statute which was made against Popish Recusants by that name and as distinguished from other Recusants In the late additions to Dalt cap. 81. Sect. 7. It s said that the matter of Recusancy stands in two particulars First absenting from the Church Secondly refusing the Oaths prescribed 1 Eliz. 1. § 19. N. 4. and 3 Jac. 4. § 15. N. 1. but this description of Recusancy is either too
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