7. N. 3. saith then as well the person so doing as also every other person receiving thm to that intent shall incurre a Praemunire so that then only when the person delivering them so doth that is delivers them to be worn or used the person receiving them to that intent shall incurre a Praemunire But yet there needs not any such concurence of intentions in the giver and receiver to make the giver an offender and therefore if a man brings into the Realm such superstitious things and delivers them to be worne or used tho the party receive them not to the intent to use or wear them but defaces burns or otherwise destroyes yet he that gave or delivered them incurrs a Praemunire for the words in the act 13 Eliz. 2. § 7. N. 2. relating to the offerer or deliverer are intire in themselves and have no dependence on the subsequent words 13 Eliz. 2. § 7. N. 3. relating to the receiver but generally make all offenders who bring them in and either offer or deliver them to a superstitious intent without any respect to the intent of the party who receives or is offered them LVI Justices Page 54. Upon 13 Eliz. 2. § 8. N. 1. If the person to whom such Agnus Dei c. Is offered do bring the offender to any Justice of Peace of the County where the offer is made altho he be not the next Justice yet it is good enough and satisfieth the intent of this act for the word next is put in such cases into acts of Parliament but for conveniency and the more speedy Execution of Justice Styles 246. pl. Maine and Sergeants Case LXVII Justices Page 54. The Statute 13 Eliz. 2. § 8. N. 1. provides for the discovery of the offender in order to his punishment in three Cases 1. If any such superstitious thing be offered and the party be able to apprehend him that offers it he must bring him to the next Justice of Peace of the County where the offer is made 2. But if he cannot apprehend him he is to disclose his name and place of abode or resort to the Ordinary of that Diocese or a Justice of Peace of that County where the person to whom the offer was made is resident and that within three dayes after such offer made 3. But 13 Eliz. 2. § 8. N. 2. If he receives the thing offered then he is not to apply to the Ordinary but is strictly tyed to deliver it within a day after to some Justice of Peace of that County where he who received it shall then be Resident or happen to be and in this last Case if he receives it with an intent to use or wear it and keeps it above a day or delivers it to any other person or Justice of Peace or any other County he incurrs a Praemunire But these Justices of Peace are strangely confounded as well in Dalt 229. cap. 89 tit high Treason as in Wingate Crown 37 Lambert 194. 195. Page 56. LXVIII Upon 13 Eliz. 2. § 10. N. 1. As is aforesaid So that if the offence be not declared as is aforesaid that is to such Justice of Peace as is appointed in 13 Eliz. 2. § 8. N. 1. but it shall be declared to any oother Justice of Peace of a wrong County that other Justice of Peace shall not incurre a Praemunire if he doth not signifie or declare it to a Privy Counsellor Here 13 Eliz. 2. § 10. N. 1. 'T is plain that any one Privy Counsellor sufficeth and the Justice of Peace is not bound to signifie the offence to the Privy Council as Wingate Crown 138. misrecites the Statute 23 Eliz. 1. Of CHVRCHES PAge 58. Upon 23 Eliz. 1. § 2. N. 1. LXXIX Conspiracy It was held Mich. 12 Jac. in Loult and Faulklands Case 2 Cro. 357.358 and 2 Bulstrode 271. 253. and 1 Rol. 209. pl. 49. that if a man were indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in Nature of a Conspiracy would not lie a-against the party who procured him to be Indicted and the main reason given was that sorasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And Coke Chief Justice said that such an Action was never brought before that time But later Resolutions have been to the contrary of this opinion and 't is held for Law at this day that if a man procures another to be Indicted of High Treason an Action upon the Case in nature of a Conspiricy lieth against him that procures it as well as if it were for Felony the first leading Case of this nature which was resolved upon solemn argument or debate was that of Hil. 1. Car. 1. of Smith and Crashaw c. addition to Bendloes 152. Latch 79.80 Jones 93.94.95 Where it was adjudged upon great deliberation by all the four Judges of B. R. that an Action in nature of a Conspiracy doth well lie in such Case and that not only in Case of acquital upon Tryal but upon the Exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus altho in this last Case a Writ of Conspiracy lyeth not and Lovets Case was denyed to be Law and Justice Dodderidge who concurred 2 Bulstrode 271 253 changed his opinion in Smiths Cas◠and held the Action maintainable so that whosoever of meer malice without probable cause causeth any to be Indicted on 23 Eliz. 1. § 2. N. 1. or on 3 Jac. 4. § 22. N. 1. for endeavouring or practiceing so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is lyable to an Action upon the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony LX. Accessory Page 59. These words And shall not within twenty dayes c. disclose the same 23 Eliz. 1. § 3. N. 1. have no reference to those who are aiders and maintainers of the offender but only to those who have barely a knowledge of the offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty daies yet such discovery shall not free them from the guilt of Imprisonment of Treason as Wingate Crown 42. mistakes but if they once aid or maintaine the party knowing him to be an offendor they are guilty whither they disclose or conceal the offence and shall have no benefit of the twenty dayes LXI Enfant Page 60. Upon 23 Eliz. 1. § 5. N. 1. Moor 606. pl. 838. Talbot was Indicted quod existens aetatis 16
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
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
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
complicated Offence consisting of several Particulars 1. In giving just cause of Suspicion without which the Party complain'd of according to this Act 7 Iac. 6. § 26. n. 4 cannot be tendered the Oath by one Justice of Peace Then 2. In refusing the Oath before the Justice of Peace who tendered it And lastly 3. In refusing it upon the second Tender at the Assizes or Sessions all which must be comprized in the Indictment So that the cause of Suspicion is pars communis and that arising in the County where the Party dwelt and was complained of cannot be punished in another County unless the Statute 7 Iac. 6. § 26. n. 4. had expressly made it examinable there supra 184. True it is that some Statutes do enable Justices of Peace to punish an Offence done in another County but that is where they enable them likewise to examin the truth of the Fact and take Process and Evidence thereof So 1 Iac. 27. § 5. n. 2. and 7 Iac. 11. § 8. n. 3. and supra 255. impower the Justices of Peace where the Party is apprehended to examin and punish the Offence but in our Case the cause of Suspicion arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of Suspicion notwithstanding the Party happen to be within his Commission or Power But yet the Party so flying into another County may without any Complaint or cause of Suspicion be tendered the Oath and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the fore-going words of this Clause 7 Iac. 6. § 26. n. 2. Altho he dwell in another County and that for the reason before given viz because this Oath sequitur personam non locum But Wingate Coron 150. saves the labour of this Question for he erroneously restrains the pawer of tendring the Oath in this Case to the Justice of Peace to whom the Complaint is made as if no other Justice of peace of that County could proceed therein which is contrary to the express words as well as the meaning of 7 Iac. § 26. n. 4. Note That Dalton 107. Cap. 45. saith it seems requisite that the Justice or Justices of Peace do make like Certificat as 3 Iac. 4. § 13. n. 5. at the next Assizes or Quarter-Sessions of such Persons as have taken this Oath before them by force of 7 Iac. 6. § 26. n. 4. But upon what ground Master Dalton thought this requisite to be certified at the Assizes I know not seing there is no such Certificate to be made by 3 Iac. 4. § 13. n. 5 but only to the General or Quarter-Sessions of the Peace And as for the Sessions I conceive neither the Justices of Peace if they proceed on 7 Iac. 6. § 26 n. 4. and not upon 3 Iac. 4. § 13. n. 5. are bound to make such Certificate nor the Clerk of the Peace or Town-Clerk to record it for it is not here required to be done But yet in such Cases where the same persons are impowered by both these Statutes to require and minister this oath as where the Party is convicted of Recusancy in which Case two Justices of the Peace Quorum unus c. may require the Oath by the Special words in this Clause of 7 Iac. 6. § 26. n. 2. or of the General words in this Clause of 7 Iac. 6. § 26. n. 2. And it doth not appear upon which of these Statutes they proceed as it may sometimes so happen there if the Party take it will be fafest for the two Justices to make such Certificate to the next General or Quarter-Sessions as is appointed 3 Iac. 4. § 13. n. 5. and for the Clerk of the Peace or Town-Clerk to record it Page 250. CCLXVII If any Person or Persons this Clause 7 Iac. 6. § 26. n. 5. is General and extends to all before So that if any of the Nobility refuse this Oath they may be committed to the Common Gaol c. by such as are by this Act Authorized to tender it 12 Co. 131. Page 251. CCLXVIII Shall refuse to take the said Oath duly tendered to him or her 7 Iac. 6. § 26. n. 5. If the Persons authorized to tender this Oath ask the Party whether he will take it and he saith he will not quaere whether this be such a Tender and Refusal as shall make the refuser liable to be imprisoned proceeded against by force of this Act unless he or they who tender it have in readiness both the Form of the Oath and the Book to swear on for it is to be presumed that the Act intends all requisite Circumstances ready to enable the one to minister and the other to take the Oath And 't is held that before there can be any such Refusal of this Oath as is here intended it ought to be read or offered to be read to the Party especially if he be illiterate or if he be not yet that at least it ought to be offered to him for himself to read it for perhaps the Party never saw or heard it And in such Case it would be against Reason that the Refusal should be penal and therefore in 9 Iac. upon the Tender of this Oath at Sarjeants-Inne in Fleet-Street it was read by Order of the Judges there Page 251. CCLXIX To the Common Gaol 7 Iac. 9. § 26. n. 5. The Justices of the Court of B. R. used to tender this Oath in Court as Justices of Peace of Middlesex and upon Refusal the Party is to be committed to the Prison of the Marshalsey which is the Ordinary Prison of that Court untill the next Sessions 2 Bulstr 155. Dyer 297. Page 252 253 254. CCLXX. Being lawfully Convicted as a Popish Recusant 7 Iac. 6. § 28 n. 1. That is upon Indictment at the King's Suit or a Popular Action or Information upon 23 Eliz. 1. § 5. and 11. or Debate at the King's Suit alone by 35 Eliz. 1. § 10. n. 2. supra 119 In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws 23 Eliz. 1. and 35. Eliz. 1. If a Person had been convicted of Recusancy any other way than by Indictment no more could have been demanded either by the King or Informer than for the Months mentioned in the Information or Count and the Penalty should not have run on in such Case for that 29 Eliz. 6. § N and 3 Jac. 4 § N. which appropriate the Penalty to the King after Conviction intend no other Conviction than by Indictment as hath been there said But by this Act 7 Jac. 6. § 28. N. 1. If a Popular Action or Information or Action of Debt c. at the King's Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had
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
qui tam c. afterwards 23 Eliz. 1. § 11. N. 1. in a distinct branch by it self without any reference to this 4. So that by 23 Eliz. 1. § 9. N. 2. and before 35 Eliz. 1. § 10. N. 2. which gave the Queen an Action of debt c. the Queen had no other remedy to recover the intire forscitures given hereby but by Indictment only 11 Co. 60. and 1 Rol. 91. pl. 41. Dr. Fosters Case 5. See Jones 193 pl. for that and the suit by the common Informer are the only wayes appointed by 23 Eliz. 1. § 9. N. 2. and § 11. N. 1. and the subsequent Clause 23 Eliz. 1. § 10. N. 1. of submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tryed shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hob. 205. Pie and Lovel 6. Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. 1. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reverst for the offence is made by 1 Eliz. 2. § N. and the penalty is given by 23 Eli. 1. § N. and therefore it should have been Contra formam Statutorum Owen 135. pl. Wests Case infra 79 § 4. Far. Feme 7. If a Feme Covert be Indicted at the Kings Suit for an offence within 23 Eliz. 1. § 5. N. 1. she may be charged with the penalty after her Husbands death but the Husband is not chargable nor shall pay the penalty for that he is no party to the Judgment and this was one of the Causes of making 35 Eliz. 1. § 10. N. 1. by which Statute the King may have an Action of debt and recover the forfeiture against the Husband 1 Rol. 93.94 Roy versus Foster Savile 25 pl. 59. LXXIII Treason Page 68. This Exception 23 Eliz. 1. § 9. N. 2. of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal-delivery as Wingate Crown 46. hath mistaken but only to Justices of Peace who are not to medle in thâ—â—â— two Cases but the other Justices may LXXIV â—onformity Page 69. Upon 23 Eliz. 1. § 10. Before Iudgment submit and conform himself c. But now by 1 Jac. 4. § 17. N. 1. If the Recusant conforms after Judgment it seems it shall be time enough to have the forfeiture 2. A man is convicted of Recusancy according to 29 Eliz. 6. § 2. N. 5. upon Proclamation and default of appearance and afterwards submits and conforms he shall by force of 23 Eliz. 1. § 10. N. 1. be discharged of the forfeiture of twenty pounds per month for this is a submission and conformity before Judgment the Conviction upon Proclamation being no Judgment but only in nature of a conviction by verdict as was resolved by all the Judges Mich. 37. and 38 Eliz. see 1 Rol. 94. pl. 41. Dr. Fosters Case 3. Page 69. Certain Persons were Indicted upon 23 Eliz. 1. § 5. N. 1. for not coming to Church and were outlawed upon the Indictment the Court of B. R. would not in this Case receive their submission upon 23 Eliz. 1. § 10. N. 1. but advised them to purchase their pardon for the Outlawry which they did and the their submission was accepted of and they were discharged 4 Leonard 54. pl. 138. Note in the report the Statute 13 Eliz. 2. is mistaken for 23 Eliz 1. for no Indictment for not coming to Church lyeth on 13 Eliz. 2. LXXV Certisicate Page 69 Upon 23 Eliz. 1. § 10. N. 1. If a man be Indicted for Recusancy before Justices of Peace and he submits and conforms before the Bishop of the Diocess be may remove the Indictment by Certiorari into B. R. and there plead his Conformity by Certificate under the Bishops hand and Seal Styles 26. pl. 2. For the manner of a Recusants submission and Conformity before the Bishop after Conviction and the Bishops Certificat thereupon see Co. Entr. 569. LXXVI Forfeitures Page 70.71 All forfeitures of any sums of mony limited by this Act. 23 Eliz. 1. § 11. N. 1. Shall be divied c. So that the distribution here appointed extends not only to the forfeitures of Two hundered and One hundred Marks for saying or hearing of Mass and the ten pound a month for keeping a School-Master Contrary to this Act but likewise to the twenty pound per month for not repairing to Church 2. In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases for altho by 23 Eliz. 1. § 5. N. 1. the whole Twenty pound per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by 23 Eliz. shall be disposed of 3. And it is usual in Acts of Parliament to give the whole penalty for any Criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in 3 H. 6.3 § 1. N. 1.2 and 3 H. 7.7 § 1. N. 5.10 and the subsequent distribution shall alwaies stand good notwithstanding the precedent words of limitation of the whole to the King 4. For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter interest than they would have had if they had been omitted and it had been said shall forfeit without apointing to whom 5. And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be that qualifies the former and general words and such distribution shall be made as the Statute appoints 11 Co. 60. and 1 Rol. 89.90 pl. 41. Dr. Fosters Case and 1 Anderson 139.140 pl. 190. Cuff and Vachell supra 46. Page 71. Upon 23 Eliz. 1. § 11. N. 1. Scot was Indicted for Recusancy LXXVII Poor Anno. 26. Eliz. 2 Leonard 167. pl. 204. By the name of William Scot of Southwark Gent. and Exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applyed to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the offence was nor to what Parish the third part of the penalty belongs But the whole Court of B. R. were there of opinion
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 King the King only should by his Prerogative have presented during the Wardship 47 Ed. 3.14 and 38 H. 6.9 But yet altho two parts of an Advowson shall pass to the King by the word Hereditaments and the Seizure of the Mannor shall draw with it the Seizure of the Advowson yet the Kings two parts of the Advowson shall not pass from him by such General words and therefore if the King seizeth two parts of a Mannor belonging to a Recusant Convict to which an Advowson is appendent and grants over his two parts of the Mannor to a Subject with all Hereditaments appurtenances c. yet two parts of the Advoswon will not pass unless specially named or the grant be adeo plene integre in tam amplis modo forma prout c. The Recusant had the Manor Hob. 126. Moor 872. Page 173. CLXXIX In lieu and full recompence of the twenty pound per month 3 Jac. 4. § 11. N. 4. So that if the King makes his Election to seize the two parts the Recusant is no longer lyable to pay the twenty pound per month but the two parts of his Lands shall go in lieu and full recompence thereof Jones 24. Standens Case Page 173. CLXXX Mansion-house is in Law most commonly taken for the Chief messuage or habitation of the Lord of a Mannor or the Mannor-house where he most remains or continues Termes de la Ley 199. But it is to be taken here 3 Jac. 4. § 12. N. 1. in a larger sense for any other house which is the Recusants chief dwelling house Page 174. CLXXXI These words passing c. and unknown 3 Jac. 4. § 13. N. 4. being in the Conjunctive it seems that the Bishop or two Justices ought not to examine upon Oath or tender this Oath to any passenger or Traveller quatenus such unless he be unknown viz such an one as conceals his true name or quality for so it must be reasonable intended and not of all Travellers through the Country as Wingate Crown 106. mistakes for it appears by the other qualifications here enumerated that the intent of the Act is that it shall be offered by the Bishop or two Justices to such only of whom there is any just Cause of suspition 7 Jac. 6. § 26. N. 2. Infra 260. CLXXXIL Imprisonment Page 175. there to remain without Bayl or maynprise 3 Jac. 4. § 14. N. 1. The Bishop or two Justices can not take Suretyes of him who refuseth the Oath for his appearance at the Assizes or Sessions as Wingate Coton 107. mistakes but must commit him immediatly to Goal nor can any other Court or Justices Bail him in this Case CLXXXIII Justices Page 175 Until the next Assises or General or Quarter Sessions 3 Jac. 4. § 14. N. 1. This being in the disjunctive the Bishop or two Justices have their Election to commit the Party refusing the Oath either until the next Assizes or until the next Sessions as they shall think fit for some may be more aptly committed untill the next Assises and some untill the next Sessions 12. to 131. Page 175 176. CLXXXIV These words any other Person whatsoever 3 Jac. 4. § 14. N. 3. are Exclusive of the said Person or Persons who are committed for refusal for 't is here in the disjunctive so that it seems that if any person whatsoever of the age of 18 years or above and under the degree of a Nobleman or Noblewoman be at the Assizes or General Quarter Sessions of the peace whether voluntarily or brought in upon process on an Indictment of recusancy or for any other matter and be there tendered this Oath and refuse to take it altho it were never tendered to him before yet upon his refusal there he incurs a praemunire and in this respect this Statute 3 Jac. 4. § 14. N. 3. is more Exclusive than 7 Jac. 6. § 26. N. 6. where there must be a prior tender and refusal of this oath otherwise a refusal of it at the Assizes or Sessions doth not make a praemunire by that act 12 Co. 131 infra 265. CLXXXV Corent Page 176. shall incurre the danger and penalty of premunire 3 Jac. 4. § 14. N. 3. If a man be committed by the Bishop or two Justices of peace for the refusal of this oath and the tender and refusal be expressed in the Mittimus the Justices of Assize or Justices of Peace in their Sessions are bound to take notice of this tender and refusal Indictment And after they have there made the party a second tender of the oath and he refuseth it by which he incurrs a praemunire the indictment against him to convict and attaint him of praemunire must contain all the special matter viz that he stood convicted or indicted of recusancy or that he had not received the Sacrament twice within the year next before or that passing through the countrey and unknown being examined upon oath he confessed or denyed not c. as the case is and that the oath was tendered to him by the Bishop or two Justices of peace Quorum â—â—us c. and he refused it and that it was again tendred to him in open Court and he again refused it for in this case the Mittimus is the ground upon which he must be proceeded against at the Assizes or Sessions But if the first tender and refusal be not expressed in the Mittimus or warrant of Commitment there altho there was a tender and refusal of the oath before the Bishop or two Justices yet the Justices of assize or Justices of peace in their Sessions can take no notice of it but they must there tender him the oath without reference to any prior tender which they may do by such of the General words any other person whatsoever 3 Jac. § 14. N. 3. and if he refuse he incurrs a praemunire and in this case the Indictment may be short and General scilicet that he was tendred the oath in the open Court and refused it c. and so it must be in all cases where in truth there was never any prior tender and refusal See 7 Jac. 6. § 26. N. 2. Whereby the power of the Justices of Peace is in some particular cases enlarged in reference to this oath of Allegiance infra 266. CLXXXVI Oath Page 179. unto which Oath so taken the said person shall subscribe his or her name or mark 3 Jac. 4. § 15. N. 6. if a man refuse to take any word of this oath 't is a refusal of the whole 1 Bulstr 198. Lord Vauxes Ca CLXXXVII Vilary Page 179. 180. Outlary 3 Jac. 4. § 16. N. 1. a Termor for years was utlawed upon an indictment of Recusancy the term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the utlary was reversed The Question was whether upon reversal of the utlary the recusant should have restitution of term again 3 Cro.