non patrem patriae 7 Co. 9. Calvins Case Page 139. The Offender is 35 Eliz. 2. § 8. N. 1. Strictly tied to depart from the same Haven assigned him CXXXVI and within the time appointed him by the Justices of the Peace or Coroner so that if he depart the Realm from any other Haven or Port or over-stay his time and depart afterwards yet he is a Felon within this Act. CXXXVII Ireland Page 139 140. Or returns or come again into any her Majesties Realms or Dominions 35 Eliz. 2. § 10. N. 1. An Offender within this act abjures in form aforesaid and departs this Realm and afterwards goeth into Ireland without licence and then returns into England with licence which going into Ireland seems to be Felony by this Act. But Quare how the offence shall be tried not in Ireland for this Statute binds not that Kingdom nor can he taken notice of there nor yet can it be tried in England for that the Offence was done elsewhere so that this is Casus omissus and cannot be punisht for that no way of trial is appointed Crompt 53.54 Page 140. CXXXVIII Suspected 35 Eliz. 2. § 11. N. 1. Altho the party be no Jesuit Seminary or Massing Priest yet if there be cause to suspect him and he refuse to answer whether he be so or no such suspition and refusal is ground enough for his Commitment Page 140. 141. Having lawful Authority in that behalf 35. Eliz. 2. § 11. N. 1. This Clause seems to refer to 27. Eliz. 2. § 13. N. 1. Which appoints that the discovery of a Popish CXXXIX Priest or Jesuit shall be made to some Justice of Peace or higher Officer who is to give Information thereof to some of the Privy Council c. under the penalty of two hundred Marks Which Statute of 27 Eliz. 2. § 13. N. 1. tho it do not in express terms say that the Justices of Peace or other higher Officer shall examine the Priest or Jesuit so discovered yet in as much as it gives power to take Cognizance of the matter it seems Implicitely to impower him to inform himself of the truth whether the party be a Priest or Jesuit or not as well by examination of the party as otherwise that he may be the better enabled to give Information thereof to some of the Privy Council c. and one Justice of Peace having by 27 Eliz. 2. § 13. N. 1. lawful Authority to examine him he hath authority likewise by this Statute 35 Eliz. 2. § 11. N. 1. to Commit him if he be suspected to be a Priest or Jesuit and refuseth to answer whether he be so or no. As for Master Shepherd's opinion in his sure Guide Cap. 14. § 5. That there must be two Justices to commit a man by force of 35. Eliz. 2. § 12. N. 1. who is suspected to be a Jesuit or Priest CXL till he answers directly I see no ground at all for it Page 141. Answer to the said Questions 35 Eliz. 2. § 11. N. 1. That is whether he be a Jesuit Seminary or Massing Priest for he is not bound to answer to any other Question nor can be Committed by force of this Act for his refusal Page 141 142. CLXI Vrged by Process 35 Eliz. 2. § 13. N. 1. If a Popish Recusant restrained by this act be summoned by Warrant of a Justice of Peace to appear before him the Recusant ought not to travil to such Justice out of his compass of five miles For altho a Justice of Peace's warrant be the Kings Process yet it is not intended here for these words Vrged by Process are restrained by the subsequent words 35 Eliz. 2. § 13. N. 1. as requires the Recusants appearance in some one of the Kings Courts and extend not to all Cases of summons and Process as Wingate Crown 83. mistakes But if in the Case aforesaid the Warrant be to arrest the Recusant and by force thereof he be carried by the Constable c. out of the compass of five miles there he is excused and forfeits nothing for that it was done by Compulsion and yet if there be any Covin between the Recusant and the Justice of Peace or Officer it may be otherwise CXLII Courts Page 142. In any her Majesties Courts 35 Eliz. 2. § 13. N. 1. All Courts wherein the Proceedings are directed by the Kings Laws are the Kings Courts and therefore a Court Leet tho of an Inferior nature and kept in the Lords name yet is the Kings Court 5 Co. 39. Cawdries Case Hetley 18. 2. If a Popish Recusant restrained by this Act be cited into the Ecclesiastical Court he may be force of this Proviso travel out of the compass of five miles to appear there 35 Eliz. 2. § 13. N. 1. For all Ecclesiastical Courts are the Kings Courts and the Laws by which they proceed there are the Kings Laws Page 142 143. This 35 Eliz. 2. § 14. CXLIII N. 1. Extends to all Cases in general where the Popish Recusant ought to render his body to the Sheriff upon Proclamation and is not restrained to a Proclamation upon an Indictment for Recusancy And therefore if a Popish Recusant confined by 35 Eliz. 2. had been proclaimed upon the Statute of Marlebridge 52. H. 3.7 § 1. N. 1. in a Plea de Custodia as a Deforceor he might lawfully have gone out of the compass of five miles the like he may do at this day upon any other Proclamation commanding him to render his body to the Sheriff Page 143. CXLIV Before he or they shall be thereof Convicted 35 Eliz. 2. § 15. N. 1. A Popish Recusant confined by this Act whose Estate is under value is apprehended for offending against this Act 35 Eliz. 2. § 8. N. 1. and before the expiration of three months next after his apprehension is Convicted of such Offence and then before the three months expire conforms and makes such Submission and Declaration as 35 Eliz. 2. § 8. N 3. and § 16. N. 1. is appointed this Case altho he come too late after Conviction to save the forfeiture of his lands and goods yet he shall not be compelled to abjâ—re for the affirmative words here 35 Eliz. 2. § 15. N. 1. That upon such Conformity Submission and Declaration before Conviction he shall be Discharged of all Pains and Forfeitures do not carry in them the force of a Negative viz. that if it be after Conviction he shall not be discharged of any of them and by 35 Eliz. 2. § 8 N. 3. he is not compellable to abjure I at any time within three months next after his apprehension he conforms confesseth and submits as is there appointed CXLV Church Page 143 144. It seems clear that no Submission Confession or Declaration can discharge the Popish Recusant who is an Offender within this Act from any Pain or Forfeiture thereby inflicted unless it be performed in some Parish Church for
the Grantee should have been Guardian notwithstanding this Act for the mischief intended here to be pretended was removed when the seigniory was granted to another who was no recusant by Jones 19. So if the King had seized the reusants seigniory as part of his two parts the King should have had the Wardship and not the next of Kin for the same reason Jones 21. Page 236 237. CCLIV Shall be thought unmeet for such recusant 3 Jac. 5. § 26. N. 2. So that the Justices of peace are not bound by this Act to deface all reliques of Price or to burn or deface all other Reliques or Popish books as Wingate Coron 144. misleads c. And though herein much is referred to the discretion of the Justices of peace yet where the Husband is a Protestant and only the Wife a Popish recusant it seems by these words 3 Jac. 5. § 26. N. 2. that they are not to consider what is unmeet for the Husband but what is unmeet for the Recusant viz. the Wife and that it was not intended that they should seize burn or deface any Books of the Husbands tho Popish unless such whereby the Wife might be aided or confirmed in her superstition So that in this Case Books written in a Language or Style unintelligible to the Wife are not within the meaning of 3 Jac. 5. § 26. N. 2. nor ought by colour thereof to be taken from the Husband who is no Popish Recusant CCV Warre Page 238. In the same County where such Popish Recusant shall be resident 3 Jac. 5. § 27. N. 1. A Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant such Arms cannot be seized by force of this Act by the Justices of Peace of either County Not by the Justices of Peace of the County where the Arms are kept for the seizure or taking is here limited to be by Warrant at the Sessions in the County where the Recusant resides and 3 Jac. 5. § 27. N. must be strictly pursued in that particular nor by the Justices of peace of the County where the Recusant is resident for the Arms are in another County where they have nothing to do And altho in some cases where a Statute appoints a Justice of peace to do a thing Justices he may do it out of his County as to take an Examination upon the Statute of Winton 13 Ed. 1. St. 2. Cap. 1. N. of a Robbery 27 Eliz. 13. § 11. N. 2. as was resolved 1 Co. 213 Jones 239. Helier vers H. of Bluhurst yet he cannot exercise any coërcive power out of his County as was resolved in that Case for his potestas jurisdictionis is confined to his County as well as that of a Bishop is confined to his Diocess see Palmer 473. Astuiths case infra 266. N. 2. And here the taking of the Recusants armour is a coërcive act and therefore by 3 Jac. 5. § 27. N. 1. can be executed by warrant of the four Justices of peace in that County only where they are Justices so that this is clearly easus omissus and not provided for by this Act Page 238. CCLVI. Imprisoned by Warrant of or from any Justices of peace 3 Jac. 5. § 28. N. 1 any two Justices may grant their Warrant for imprisoning the Offender and 't is sufficient in this Case for Pluralis numerus est duobus contentus but a Warrant from any one Justice will not serve contrary to Wingate Ceron 145. Page 238 239. CCLVII Of such County 3 Jac. 5. § 28. N. 1. that is of the County where the Popish Recusant is resident for no other County was named before a Popish Recusant lives in one County and his Arms are kept in another County by one who is no Popish Recusant the Justices of peace of that other County cannot by force of this Act 3 Jac. 5. § 28. N. 1. imprison him that keeps them for they are not named here but the power in this Case is expressly limited to other Justices and no other can intermeddle therein neither will the Warrant of the Justices of peace of the County where the Recusant is resident reach him who is in another County for the coercive authority of a Justice of peace cannot exceed his limits or bounds as Comm. 37. is held in the Case of the Lord Say It was resolved that if a Justice of Peace of the County where the Felony was committed pursue a Felon into another County and take him there the Felon must be imprisoned in the County where he is taken and the Justice of peace who pursued him hath no power to carry him to the Gaol of the County where he did the Felony for he is a Prisoner in the County where he was taken and there the Justice of Peace hath no more power to do than an ordinary person 13 Ed. 48. Freshsuit Br. 3. So that as it seems in this Case the party who keeps such Arms cannot be imprisoned by 3 Jac. 5. § 28. N. 1. but this likewise wise is casus omissus and not here provided for 7 Iac. 6. Of Allegiance PAge 243.243 upon 7 Jac. 6. § 8. N. 1. the King cannot dispence with any Member of the Commons House of Parliament from taking this Oath of Alleglance CCLVIII. for that he is here declared to be persona inhabilis untill he take it Vaughan 355. Thomas and Sorrell supra 44 and 3 Inst 154. Page 246. For any two Justices of Peace within any County CCLIX City or Town Corporate c. 7 Jac. 6. § 26. N. 2. the two Justices may require his Oath of any person that shall happen to be within their Jurisdiction altho his Habitation be in another County or Liberty for the Oath of Allegiance sequitur personam non locum 2 Bulstr 155. the King against Griffith c. Page 246. To require any person or persons CCLX 7 Jac. 6. § 26. N. 2 This is an enlargement of the power given to two Justices of Peace by 3 Jac. 4. § 13. N. 4. For thereby they could have required the Oath but only in some particular Cases supra 181. but by 7 Iac. 6. § 26. N. 2. they may require it of any person whatsoever of competent age and under the degree of a Baron or Baroness The Justices of the Peace in this Case 7 Iac. 6. § 26. N. 2. or the Justice of peace in the following Case 7 Iac. 6. § 26. N. 4. may make his or their special Warrant to the Constable to bring the party before the said Justice or Justices to take the oath for by 7 Iac. 6. § 26. N. 2. by giving them power to require the Oath doth implicitly authorize them to make such a Warrant Quando Lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest and it is against the Office of the Justices of Peace
from that Guilt but he shall have judgment and suffer for the same as in Case of high Treason notwithstanding such Submission c. Dalt Cap. 89 tit High Treason is thereby clearly mistaken in extending the benefit of this Submission 3 Jac. 4. § 24. N. 1. generally to all who have been willingly absolved withdrawn or reconciled or have promised such obedience Page 188. CXCVII The Offender may be proceeded against by force of this Act 3 Jac. 4. § 25. N. 1. in any County where he shall be imprisoned for so the word taken is to be expounded and the like exposition hath been made use of 2 and 3 R 2. § 6. N. 2. of Souldiers 1 Jac. 11. § 1. N. 3. of having two Wives living Hutt 131. If the Offence be committed out of this Realm yet it can not be tried upon 35. H. 8.2 § 1. N. 2. for this Act 3 Jac. 4. § 25. N. 1. hath prescribed a special form of a Trial in this Case which must be observed and if such Offender be a Peer of England the Indictment can not be taken before any others than the Justices of Assize and Gaol delivery in the County where he is imprisoned or the Justices of B. R. Hutt 13. the Lord Digbyes Ca. CXCVIII. Alien Page 189. 190. by a Subject of this Realm 3 Jac. 4. § 27. N. 1. is to be understood a Natural born Subject or an Alien Naturalized here by Act of Parliament or made a Denizen of England by the King's Letters Patents but these words here are exclusive of two sorts of Subjects 1. Of an Alien inhabiting this Realm who oweth to the King a local Subjection or Ligeance and is neither Naturalized or made a Denizen for the word Subject is a mark of distinction and must be necessarily exclusive of some persons or other within this Realm and therefore can not be supposed to taken for meer aliens who if neither naturalized or made Denizens are only local Subjects and of the lowest form for if no person inhabiting within the Realm were here intended to be excepted the word Subject would be idle and to no purpose 2. An Alien Naturalized by Act of Parliament in Scotland or Ireland or made Denizen of either of those Kingdoms by the King's Letters Patents is for the same reason out of the meaning of this Branch 3 Jac. 4. § 27. N. 1. altho he live in England for it seems that such a person is still an Alien here and shall not partake of any priviledges in England by his being Naturalized or made Denizen in Scotland or Ireland their Acts or Laws not being obligative or concluding to us in England Vaughan 278.280 c. Crane and Ramsey And therefore the Power here given any one Justice of Peace 3 Jac. 4. § 27. N. 2. to levy the XII d. per Sunday doth not extend to either sort of these Aliens But yet they may forfeit XII d. per Sunday for their absence from Church upon an Indictment on 1 Eliz. 2. § 14. N. 1. and that by force of the General words every person or persons inhabiting within this Realm so that what is said in Doctor Fosters Ca. 11 Co. 63. that this Statute 3 Jac. 4. § 27. N. 1. gives a more speedy remedy for the recovery of the XII d. is not to be understood of all persons within 1 Eliz 2. § 14. N. 1. but only of the Subjects of this Realm in the sense of 3 Jac. 4. § 27. N. 1. And if a man be born within any of the King's Dominions which were such and united with England in their Subjection at the time of his Birth altho he be not born within England yet if he live here he is a Subject of this Realm within the intent of this Act 3. Jac. 4. § 27. N. 1. For Natural Subjection and Legeance are not local or confined to that Kingdom or Countrey where he was born but he is a natural Subject in any of the Dominions belonging at the time of his birth to the Prince under whom he was born and upon that ground it was resolved 7 Co. In Calvin's Ca. that a man born in Scotland after the Union of the two Kingdoms should inherit in England So that a man born in Scotland or Ireland or any other of the King's Dominions which were such and so united at the time of his Bâ—rth if he live in England is punishable by this Act 3 Jac. 4. § 27. N. 1. and any Justice of Peace may grant his warrant to levy the XII d. for his absence from Church CXCIX Proof Page 190. To the Satisfaction of the Iustice of Peace 3 Jac. 4. § 27. N. 2. in this Case the Justice of Peace is sole Judge whether the excuse the Party makes for his absence be sufficient and sufficiently proved and the same can not be brought into question elsewhere by the Party CC. Dayes Page 190. Every Sunday 3 Jac. 4. § 27. N. 1. this repairing to the Church every Sunday must be as well to Evening Prayers as to Morning-Prayers for it ought to be an entire Day and an entire Service by Hutton and Berclay Justices Dalt Cap. 45. tit Recusants Page 190 To Levy 12 d. for every such Default 3 Jac. 4. § 27. N. 2. So that this forfeiture of XII d. may be levyed weekly for it is due for every absence as soon as the Sunday is ended and hath no relation to the forfeiture of XX lb per Month given by 23 Eliz. 1. § 5. N. 1. but the offender may be punished both by 3 Jac. 4. § 27. N. 2. for his weekly absence and by 23 Eliz. 1. § 5. N. 1. for his monthly absence by Coke Ch. J.B.R. 1 Roll 94. Doctor Foster's Ca. CCII. Accessory Page 198 192. Willingly c. keep or harbour 3 Jac. 4. § 32. N. 1. A man freely and of his own accord takes an apprentice or covenant-servant for a certain time and not knowing him or her to be a recusant and such Apprentice or servant forbears to come to Church it seems that the Master shall forfeit nothing altho he keeps them in his house for he doth no more than what the Law will compell him to do during the time agreed on and limited for such apprenticeship or service and this can not be said to be done willingly for it is not in his choice to discharge them untill the time is expired But if the Master before he took such Apprentice or other servant knew him or her to be a Recusant or after their forbearance to come to Church retains them for a longer time than was at first agreed on this is a keeping or harbouring them willingly and he shall be liable to this penalty 3 Jac. 4. § 33. N. 1. Infra 205. Page 192. in his CCIII her or their service fee or Liverty 3 Jac. 4. § 33. N. 1. This extends to all Servants whatsoever although they dwell not in the
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