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
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-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
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
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 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.
Master's house nor are his menial Servants for if they are retained in his service fee or livery as Bailiff Steward or in any other capacity and forbear to come to Church the Master shall be punished for their absence Page 192 193. wanting without fraud or Covin other habitation or sufficient maintainance CCIV. 3 Jac. § 34.4 N. 1. A Father or Mother hath no settled habitation but yet hath sufficient maintainance the child receives such Parent into his house who forbears to come to Church in this case the child shall forfeit X l. per month for altho the Parent had no habitation yet this is not a wanting habitation within the meaning of this Act seeing he wanted not sufficient means to procure one But if the Parent hath an habitation yet if he want sufficient maintainance to keep him in that habitation altho he refuse to come to Church the child shall forfeit nothing for receiving him into his house for the words here 3 Jac. 4. § 34. N. 1. are in the Disjunctive and if the Parent wants either other habitation in the sense of the Act or sufficient maintainance the Child may receive him Page 193. that shall be committed by authority to the Custody CCV c. 3 Jac. 4 § 34. N. 1. The former Case of an apprentice was put only of such an one whom the Master takes of his own accord supra 202. But if it be a Parish child bound by the Church-Wardens and Overseers with the assent of the Justices of Peace if the Master be duely required to take him such Apprentice as it seems is committed to the Master's custody within the meaning of this proviso 3 Jac. 4. § 34. N. 1 for he is punishable if he refuse him and if he were a recusant or forbear to come to Church yet the Master shall forfeit nothing for keeping or harbouring him A Serjeant at Armes Pursivant Messenger c. who keeps his prisoner in his house or a Gaoler if he keeps his prisoner in his own house which is no part of the Prison shall not forfeit any thing by force of this Act 3 Jac. 4. § 34. N. 1. Altho he suffers him to go abroad in the Day-time at his pleasure and he forbears to come to Church for that such prisoner was committed by Authority to his Custody Page 193. Standing excommunicated 3 Jac. 4. § 35. N 1. infra a Popish recusant after conviction shall be disabled as an excommunicate person CCVI. yet to other intens he shall not be reputed as a person standing Excommunicate Page 193 for such recusancy 3 Jac. 4. § 35. N. 1. So that if a Popish recusant stand excommunicate for any other cause than for recusancy CCVII. this branch of the Statute doth not affect him CCVIII Lieu. Page 194 wherein such offence shall happen 3 Iac. 4. § 36. N. 2. If a man serves or goes to serve a forreign Prince State or Potentate without first taking the oath of Allegiance or if of that Quality entring into bond altho part of the Offence was done out of the Realm yet for that other part thereof viz his going or passing over the Sea was done in the Realm he shall be tried in the Court where that part of the Offence happened that is where the haven or port is from whence he went or passed over for a Statute is to be so expounded ut verba accipiuntur cum effectu 3 Inst 80. CCIX. Bar. some Page 195. with any penalty or forfeiture by force of this Act 3 Jac. 4 § 40. N. 1. But yet a married woman may be punished by force of any other Act for not receiving the Sacrament during her Marriage 11 Co. 94. Doctor Foster's Ca. And therefore if she be a Popish Recusant convict and receive not the Sacrament within the year next before her husband's death she shall forfeit the profits of two thirds of her joynture and dower and be further disabled as 3 Jac. 5. § 10. N. 1. And unless she receive the Sacrament after conviction she cannot be plaintiff with her Husband in any action but is disabled by 3 Jac. 5. § 11. N. 2 And if she receives it not within three months after her Conviction she may be imprisoned by 7 Jac. 6. § 28 N. 1. unless the husband pay to the King as is there appointed Page 195 For any such offence of not receiving CCX 3 Jac. 4. § 40. N. 1. Wingate Coron 125. Quite mistakes the meaning of it for a married Woman is not exempted from all penalty by force of this Act but only from the Penalty for not receiving the Sacrament during her marriage and there is no question but she may be imprisoned by 3 Jac. 4. § 14. N. 1. if she refuseth the Oath of Allegiance and an Indictment of high Treason lieth against her upon 3 Jac. 4. § 23. N. 1. If she be absolved or withdrawn from her obedience to his Majesty or become roconciled to the Pope or Seo of Rome or promise obedience to the said See c. CCXI. Iustices Page 196 197. Where any Bishop or Justices of the Peace 3 Jac. 4. § 41. N. 1. the Justices of Peace have a twofold power given them by this Act in reference to the Oath of Allegiance 1. Out of Sessions and so any two Justices of Peace Quorum unus c. may tender the oath to any person by 3 Jac. 4. § 13. N. 2. eighteen years old or above other than Noblemen or Noblewomen 2. In their General or Quarter Sessions and there they may by 3 Jac. 4. § 14. N. 2. 3. They may tender the oath to any such person who hath before refused it or to any person whatsoever of or above that age other than Noblemen or Noblewomen Now whther the six privy Counsellours here mentioned 3 Jac 4. § 41. N. 1. may require the Oath of Noblemen and Noblewomen in all cases where the Justices of Peace may require the same of any subject either in or out of Sessions or only in such Cases where they may require it out of Sessions seems to be a question For if the power here given 3 Jac. 4. § 41. N. 1. to the six privy Counsellours be the same with that of the Justices of peace in their Sessions they may by force of this Act tender it to any Nobleman or unmarried Noblewoman whatsoever above 18 years old for the Justices of peace in their Sessions by 3 Jac. 4. § 14. N. 2. may tender it there to any other person whatsoever but if it be meant of the power given the Justices of peace out of Sessions 3 Jac. 4. § 13. N 1. then the six privy Counsellours can tender it by force of this Act 3 Jac. 4. § 41. N. 1. to such Noblemen or unmarryed Noblewomen only who stand convicted or indicted of recusancy for not coming to Church or who have not received the Sacrament twice within the year next before or who
passing through the Countrey unknown shall upon examination confess or deny their recusancy or that they have not so received the Sacrament For the salving of which doubt it is to be considered that the Bishop and not the Justices of Assize are here joyned with the Justices of peace and these words 3 Jac. 4. § 41. N. 1 Where any Bishop or Justices of Peace seem to bear this construction viz either the one or the other indifferently may require the oath and that can be intended only of the power given out of Sessions for in the Sessions the Bishop hath nothing to do But had the Justices of Assize been here added scil in all Cases where the Bishops Justices of Assize or Justices of peace may require this oath it had been clear that the power here 3 Jac. 4. § 41. N. 1. given the six privy Counsellours was as extensive as that which 3 Jac. 4. § 14. N. 3. is given the Justices of Assize or Justices of peace in their Sessions and they might have required the oath of any Nobleman or unmarried Noblewoman whatsoever of competent age So if the Justices of Peace only had been here named it had been clearly intended of the Justices of peace in either capacity either in or out of Sessions But Bishops 3 Jac. 4. § 41. N. 1. seems here to be a restrictive word and to give the privy Counnsellours no more power in respect of the Nobility than the Bishops had in reference to any other Subject 2. These words in all Causes where c. 3 Jac. 4. § 41. N. 1. seem to be restrictive likewise and exclusive of some Causes but the power of Justices of peace in Sessions 3 Jac. 4. § 14. N. 3. extends to all Causes and persons under the degree of Nobility whatsoever which therefore can not be here intended 3 Jac. 4. § 41. N. 1. but only some particular Causes ejusdem generis which can be no other than the Causes before-mentioned 3 Jac. 4. § 13. N. 1. wherein the Bishops or two Justices out of Sessions may deal scil where the party was before convicted or indicted or had not received the Sacrament or passed unknown and confessed c. And yet as it is reported 1 Bulstr 197. the Lord Vaux Ca. Pasch 10. Car. 1. is to the contrary for it is said there he was committed to the Fleet by the Privy Counsel for refusing the oath of Allegeance and afterwards indicted in B. R. of a praemunire for such his refusal he being then of the age of 18 years and above and the said oath being lawfully tendered c. All which was certified to the Court by divers of the Privy Counsel upon which Indictment he was arraigned and no word in the Indictment of his standing convicted or indicted of Recusancy or not having received the Sacrament c. and yet the Indictment was grounded upon 3 Jac. 4. § 41. N. 1. and not upon 7 Jac. 6. § 26. N. 1. for by that statute 7 Jac. 6. § 26. N. 5. he could not have been indicted of a praemunire for the first refusal but must have been committed until the next Assizes or Sessions and if he had there refused it the second time he might have been indicted of a praemunire and not otherwise but whether this Indictment were according to Law or only passed sub silentis quaere Note by 7 Jac. 6. § 26. N. 1. any privy Counsellour or the Bishop of the Diocess may now require this oath of any Baron or Baroness of or above the age of 18 years in all Cases and in some Cases some privy Counsellours Quorum unus c. may require it of persons above the said degree CCXII. Dignity Page 198. Noblewoman 3 Jac. 4. § 41. N. 1. A Noblewoman who was such by marriage only becomes a Widow and takes to her second husband a person under the degree of Nobility by this her second Marriage she hath lost her Nobility and if she again becomes a Widow the oath shall not be tendred her by Privy Counsellours but the Bishop or two Justices of peace Quorum unus c. may by force of this Act 3 Jac. 4. § 41. N. 1. require her to take it and upon her refusal may proceed against her as is above directed in the Case of a common person supra infra 262. CCXIII. Days Page 198. then being above the age of 18 years 3 Jac. 4. § 41. N. 1. in this Case that day eighteen years on which the party was born must be wholly elapsed for before this oath cannot be tendered altho the hour of his birth be elapsed for the Law rejects all fractions and divisions of a Day for the uncertainty which is always the mother of contention 5 Co. 1. Claytons Ca. 2 Rolls Abr. 521 tit Temps Page 198. CCXIV. Praemunire 3 Iac. 4. § 41. N. 2. in 1. Bulstr 197. the Court of B. R. denied the Lord Vaux Counsel or trial by his Peers and it was there held that the trial of a Nobleman by his Peers is at Common Law in 4 Cases only viz Treason felony and misprision of both but not to be allowed in the case of a praemunire for that in effect is no more than a contempt CCXV Cinque Ports Page 198 199. If the Warden of the Cinque Ports do take such bond and minister such oath and do not certify them into the Exchequer this seems to be casus omissus and not provided for by the Act 3 Iac. 4. § 42. N. 1. for he shall not be liable to the penalty inflicted by 3 Iac. 4. § 21. N. 2. on the Customer and Controller for that altho it be within the same mischief there are no express words here 3 Iac. 4. § 4. N. 1. to reach him and penal statutes shall not be taken or construed by equity Lee 77 Yelvert 22 Com 17.86 Kelway 96 2 Roll 420. 1. Inst 238. 13 Iac. 5. Of RECUSANTS CCXVI Days PAge 201. Within three Days next after the Offence commited 3 Iac. 5. § 1. N. 3. So that if three Days next after the Offence committed elapse before the discovery is made the discoverer shall have no benefit by this Act. And therefore if the person discovering had no notice of the Offence till the three Days expire altho he discovers it presently upon such notice given him yet he comes too late much less shall he have three days after notice as Wingate Coron 128. mistakes CCXVII Sherifs Page 201. commanding the said Sheriff or other Officer to pay the same 3. Jac. 5. § 1. N. 5. In the late Additions to Dalton Cap. 81. Sect. 57. 't is said that the Sheriff is to grant his warrant for the payment of the discoverer but that is a meer mis-recital for the Sheriff himself is to pay him Page 203. CCXVIII In the late Additions to Dalt Cap. 81. Sect. 45. this Clause 3 Jac. 5. § 3. N. 2. is otherwise recited viz
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
any Common Informer but the matter shall be heard and determined before Justices of Assize Nisi prius Goal-delivery or Oyer and Terminer or Justices of Peace in their general Sessions according to 21 Jac. 4. § 1. N. 3. but the Informer if it be for Recusancy may by force of that exception 21 Jac. 4. § 5. N. 1. lay or alledge such offence in what County he will for the said exception extends only to the County 21 Jac. 4. § 2. N. 1. and not to the Courts 21 Jac. 4. § 1. N. 5. where the Informer is to sue Which opinion of his touching the extensiveness of the exception is probable enough viz. that 21 Jac. 4. § 5. N. 1. extends only to the County and not to the Courts where the Informer is to sue for the latter part of it speaks only of the County but this is unaptly applied to popular Informations upon 23 Eliz. 1. § 11. N. 1. for they are not within the meaning of that branch of 21 Jac. 4. § 1. N. 5. touching the Courts where the Informer is to sue for 21 Jac. 4. § 1. N. 5. medles not with those Informations upon those penal Laws which give the Informer no other remedy for recovery of the penalty but by Debt Bill plaint or Information in the Courts of Record at Westminster Nor doth 21 Jac. 4. § 1. N. 3. give the Justices of Assize or other Justices there named any new or further power than they had before but only appoints that where Informations might have been brought before them or in the Courts of Westminster at the Election of the Informer now they shall be brought before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or at the Sessions of the Peace in the County where the offence was committed for the ease of the Subjects who are defendents and not in the Courts at Westminster 4 Co. 1. 1 Cro. 112.113 But in our Case of Recusancy there is no such Election given the Informer by 23 Eliz. 1. § 11. N. 1. but he is strictly tyed to take his remedy by debt Bill plaint or Information in one of the Courts at Westminster and therefore 21 Jac. 4 § 1. N. 5. extends not to it in that branch touching the Courts where the Informer is to sue And as for Sir Edward Cokes Opinion that since 21 Jac. 4. § 1. N. 5. the Courts at Westminster cannot receive or hold Plea of any Information brought by a Common Informer not only common Experience ever since that Statute is against it but the Judgments and resolutions both of B. R. Mich. 4. Car. 1. Greene and Guy 1 Cro. 146. pl. upon 21 H. 8.13 § 11. N. 2. and Fentons Case Mich. 27. Car. 2. upon this Statute of 23 Eliz. 1. and of C. B. in Farrington and Leymer 1 Cro. 112. Hutton 99. Trin. 4 Car. 1. upon 23 H. 8.4 § 5. N. 3. Are directly in point Contrary thereunto and so is the opinion of Rolls in Styles 340. Buck stone and Shurlock 7 Ed. 6.5 § 6. N. 3. and the resolution in Jones 193. And yet altho in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster possibly in other Statutes those words may admit of a larger Construction 1 Rol. 51. pl. 21. Floyd and Best LXXXI Information Page 85 86. Upon 23 Eliz. 1. § 11. N. 1. by Action of debt Bill plaint or Information by 18 Eliz. 5. § 1. N. 3. it is enacted that none shall be admitted or received to prosecute against any person upon any penal Statute but by way of Information or original Action and not otherwise 6 Co. 19.20 Moor 412. pl. 565. and 600. pl. 827. Gregories Case 3 Cro. 544. Gadley versus Whitecote And this seems to extend as well to penal Statutes made afterwards as to those that were in force when 18 Eliz. 5. § 1. N. 3. was made for t is usual for a latter act of Parliament to be guided by a former as 4 Co. 4. Vernons Case But then it must be in such Cases where there are not express words in the latter act to controule the former and therefore altho the word of 18 Eliz. 5. § 1. N. 3 that the Informer shall not prosecute otherwise then by Information or original action yet the Affirmative words of this subsequent Statute 23 Eliz. 1. § 11. N. 1. that the Informer may sue by Bill hath taken away the force of that negative in 18 Eliz. 5. § 1. N. 3. in relation to the offence mentioned in 23 Eliz. 1. and the prosecutor qui tam c. upon 23 Eliz. 1. § 11. N. 1. may sue by Bill in B. R. as well as by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution 3 Inst 194. in Woodson and Clerks Case In a suit brought by Bill in B. R. upon 23 H. 6.10 § 1. N. 12. of Sheriffs and in Moor 248. pl. 390. Vdeson and the Major of Nottinghams Case contrary to the opinion in Styles 381. Hill and Dechair LXXXII Imprisonment Page 86. Upon 23 Eliz. 1. § 11. N. 2. Qui non habet in aere luet in corpore And yet in this Case the Judgment shall be absolute that the King and the Informer recover c. 1 Anderson 140. pl. 190. Vachels Case 2. A Feme Covert Recusant if the forseiture be not paid within the time limited 23 Eliz. 1. § 11. N. 2. may be imprisoned by force of this Statute until she pay or conform 11 Co. 61. Dr. Fosters Case Hob. 97. Moor and Hussey And if she be convicted upon Indictment at the Kings suit in which Case the Husband is not bound to pay the penalty she ought by the opinion of Manwood to have hard and close Imprisonment and sequestred from all Company until she conform or forfeiture be paid Savile 25. pl. 59. But if the Husband and Wise be sued upon 23 Eliz. 1. § 11. N. 2. in a popular Action or Information for the Recusancy of the Wife and Judgment be had against them and the forfeiture is not paid within the three months the Husband in that Case may be Imprisoned likewise LXXXIII Assurances Page 87. Upon 23 Eliz. 1. § 13. N. 1. since the beginning of this Session of Parliament and yet a Covenons Conveyance tho made before that Session of Parliament should not have defeated the Interest right or Title which was given to the Queen by this Statute and therefore in the Case of Sir John Southwell 3 Leonard 147.148 pl. who in Anno 19 Eliz. Conveyed his lands to certain Feoffees and their heirs in trust for the maintenance of him and his Family Marriage of his Daughters payment of his debts c. and to answer him the surplusage of the mean profits with a Clause of revocation after which he granted Trees took Fines for leases c. And then
for the King and himself before any of those Justices but must sue in one of the Courts of Record at Westminster Page 161. CLXIV Of all and all manner of Popish Accusants 3 Jac. 4. § 4. N. 1. As this Act is penned it seemeth that the Church-wardens and Constables are not bound thereby to present the monthly absence from Church of any of the Children or Servants of a Popish Recusant altho such Children or Servants be Recusants unless they are Popish Recusants and that 't is sufficient to satisfie 3 Jac. 4. § 4. N. 2. to present their names without taking any notice of their absence from Church But if they be Popish Recusants they fall within the general words of the Act and their monthly absence ought to be presented as well as that of their Parents or Masters and in this Wingate Crown 100. hath clearly mistaken for he tells us that the monthly absence of all the Children and Servants of a Popish Recusant ought to be presented Page 162 163. CLXV To enquire hear and determine 3 Jac. 4. § 7. N. 1. This is intended of Indictments only and revives the power of the Justices of Peace given them by 23 Eliz. 1. § 9. N. 2. suprà 72. and taken from them by the negative words of 29 Eliz. 6. § 2. N. 2. suprà 95. N. 2. so that now the Justices of Peace may proceed to Judgment against the Recusant upon 23 Eliz. 1. § 5. N. 1. or convict him upon Proclamation and default and so may the Justices of Assize and Goal-delivery proceed either way For the words of 3 Jac. 4. § 7. N. 2. and of 29 Eliz. 6. § 5. N. 5. which give the Proclamation being in the Affirmative do not take away the proceedings upon 23 Eliz. 1. § 9. N. 2. but that the Justices may waive the Conviction by Proclamation if they please Nor is the Informers popular suit 23 Eliz. 1. § 11. N. 1. taken away by 29 Eliz. 6. § 4. N. 3. or by this Statute 3 Jac. 5. § 7. N. 2. Dr. Fosters Case 11 Co. 61. Page 163. CLXVI Against any person either for not repairing to Church c. 3 Jac. 4. § 7. N. 2. so that this branch of the Statute which gives the Conviction by Proclamation extends to other Recusants besides Popish Recusants and is not restrained to this latter sort but is misrecited in this particular Dalt Cap. 100. tit forfeiture Page 163. CLXVII Shall be rendred to the Sherif c. before the next Assizes c. 3 Jac. 4. § 7. N. 2. in 2 Rol. 108. Bridgman 122 in an action brought against Sir John Web and his Wife for recovery of twenty pound per month for the Recusancy of the Wife the defendants plead that the Feme was before that time Convicted for the same absence upon Indictment at the Kings suit and Proclamation made that she should render her self at the next Assizes and default of appearance thereupon but it was resolved by the Court of B. R. that the plea was ill and that this was not a Conviction according to Law and therefore was in effect as no Conviction for the Proclamation was Erronius in two points 1. In the person to whom 3 Jac. 4. § 7. N. 2. saith it shall be proclaimed that the offendors body shall be rendred to the Sherif c. but this Proclamation was that she should render her self to the Justices of Assize For the rendring of the body to the Sherif is a material point And the intent of the Statute is not persued in this Proclamation for the intent was that Recusants being dangerous Members of the Common-wealth should be in the Custody of the Sherif c. ne nocere valeant 2. In the time when the Proclamation was that she should render her self at the next Assizes but 3 Jac. 4. § 7. N. 2. before the next Assizes And when the Proclamation is ill the Conviction for default of appearance thereupon cannot be good nor shall Bar the King or the Informer of their Action And altho by 3 Jac. 4. § 16. N. 1. That no Proclamation shall be avoided for any defect c. The Recusant perhaps may be estopped to take such exception to the Proclamation yet the King is not Note that Palmer 40 41. hath slated the difference beetwen the Statute and the Proclamation as here and so was the truth of the Case but in reciting Bridgmans Argument he reports it quite contrary viz. that the Proclamation was that the Recusants body should be rendred to the Sheriff and that it ought to have been that it should be rendred to the Justices of Assize but this is a mistake and contrary to the Statute and the truth of the Case Page 164. CLXVIII Or other Keeper of the Goal 3 Jac. 4. § 7. N. 2. a Keeper of a Goal may be by usage or prescription 42. Ass 7. and 1 Inst 114. and if the person Indicted for Recufancy live in a Corporation where the Sheriff hath not to do and he be proclaimed upon this Statute he may render himself to the Keeper of the Goal there CLXIX Appearance Page 164 Shall not make appearance of Record 3 Jac. 4. § 7. N. 3. and if the Recusant do appear of Record at the Assizes Goal-delivery or general or Quarter Sessions it shall be sufficient to save his default altho he did not render himself to the Sheriff upon the Proclamation and this is clear by the words of 3 Jac. 4. § 7. N. 3. which is grosly mistaken Wingate Crown 102. who saith the Recusant shall be Convicted if he render not his body to the Sheriff or Bayliff of the Liberty and that default be recorded 2. This appearance on 3 Jac. 4. § 7. N. 3. must be in proper person and not by Attorny for none can at first appear by Attorny unless enabled by some Statute and all appearances by the defendent in any Court ought by the Common Law to be in person 10 Co. 101. Bewfages Case But after a Plea pleaded to an Indictment an Attorny may be admitted at the discretion of the Court if they think fit but not otherwise and in some Cases not not without a special Writ directed to the Justices to that purpose 16 Ed. 4.5 F. N. B. 26. 3. The party Indicted and proclaimed on 3 Jac. 4. § 7. N. 3. who appears at the Assizes or Sessions must take care that his appearance be entred of Record For if the Clerk of the Assizes or Clerk of the Peace should mistake and instead thereof record his default he hath no way to avoid his standing Convicted But he is put to his Action upon the Case against such Clerk of the Assizes or Peace see Popham 29. Keilway 180. 4. The personal presence at the next Assizes or Sessions of the Party indicted of Recufancy and proclaimed on 3 Jac. 4. § 7. N. 3. altho he continue there from the beginning to the ending is no