The Comment.

THe word Tallage is derived from the French word Tailler, to share or cut out a part, and is Me­taphorically used for any Charge, when the King or any other does cut out or take away any part or share out of a Mans Estate, and being a general word, it includes all Subsidies, Taxes, Tenths, Aids, Impo­sitions or other Charges whatsoever.

The word Maletot signifies an Evil (that is, an unjust) Toll, Custom, Imposition or Sum of Money.

The occasion of making this Statute was this: King Edward being injured by the French King, re­solves to make War against him, and in order thereun­to requires of Humphrey le Bohun Earl of Hereford and Essex, and Constable of England, and of Roger [Page 39] Bigot Earl of Norfolk and Suffolk, and Marshal of England, and of all the Earls, Barons, Knights, Esquires and Freeholders of 20 l. Land, whether they held of him in Capite, to contribute towards such his expedition, that is, to go in Person or find sufficient Men in their places in his Army; which the Constable and Marshal, and many of the Knights and Esquires, and especially this John Ferrers taking part with them and all the Freemen, stoutly denyed, unless it were so ordained and determined by common consent in Parliament according to Law. And it seems the contest grew so hot, that Baker's Chronicle, Folio 99. relates a strange Dialogue that pass'd between them, viz. That when the Earl Mar­shal told the King, That if his Majesty pleased to go in Person, he would then go with him, and march before him in the Van-Guard, as by right of Inheritance he ought to do; but otherwise he would not stir; the King told him plainly, he should go with any other, though he went not in Person. I am not so bound (saith the Earl) neither will I take that Journey without you: The King swore, By God, Sir Earl, you shall either go or Hang: And I swear by the same Oath (said the Earl) I will neither go nor Hang. And so the King was forc'd to dispatch his expedition without them. And yet (saith my Lord Coke) altho the King had conceived a deep displeasure against the Constable, Marshal, and others of the Nobility, Gentry, and Commons of the Realm, for denying that which he so much desired, yet, for that they stood in defence of their Laws, Liberties, and free Customes, the said King Edward the First, who (as Sir William Herle Chief Justice of the Common-Pleas, who lived in his time and served him, said in the time of King Edward the 3d.) was the wisest King that ever was; did after his return from beyond the Seas, not only consent to this Statute, whereby all such Tallages and Impositions are for­bidden [Page 40] for the future, but also passes a Pardon to the said Nobles, &c. of all Rancour, Ill-will and Transgressions, If any they have committed; which last words were added, lest by acceptance of a Par­don of Transgression, they should implicitely con­fess that they had Transgressed; so careful were the Lords and Commons in former times to preserve the Ancient Laws, Liberties, and free Customs of their Country.

But note, these words, Si quas fecerint, If any they have committed, are left out in all the Printed Books of Statutes; but they are in this Statute reci­ted by Coke, in his second Book of Institutes, Fo. 535. and specially noted, which he would never have done, if it had not been so in the Rolls. And since 'tis proba­ble them may be many more like Omissions, Mistakes or Falsifications, crept into the Prints, and for that the R [...]d not the printed Satute-Book (varying from the Records) is the Law, It were to be wished that all the Rolls of Acts of Parliament were carefully by some Persons[?] of Learning and Integrity, view'd and Compared[?] with the Prints, and notice taken of all such Var [...]tions, and of Errors committed in the Translations, and of any Statutes of a publick Import, if in force, that were never printed, and the same to be made publick.

The Comment.

TReason is derived from Trabir, which signifies Treacherously to betray; when it concerns the Government and the Publick, 'tis called High Treason, but against particular Persons, as a Wife killing her Husband, a Servant his Master, &c. it is Petty Treason,

High Treason in the Civil Law is called Crimen Laesae Majestatis, a Crime wronging Majesty, but in our Common-Law-Latine, Alta proditio, and in an Indictment for this offence the word Proditorie must be in.

Before the making this Act, so many things were charged as High Treason, That no Man knew how to behave himself: Now by this Statute, the particu­lars of that Grand Crime are reckoned up, and all others excluded, till declared by Parliament. And the settling of this Affair was esteemed of such Im­portance to the Publick-Weal, That the Parliament wherein this Act passed, was called long after Be­nedictum Parliamentum, the Blessed Parliament.

The substance of this Statute is branched out by my Lord Cook 3d. part of Instit. Fol. 3. into six Heads. viz.

The first concerning Death, by compassing or imagining the death of the King, Queen, or Prince, and declaring the same by some Overt Deed. By killing and murdering of the Chancellor, Treasurer, Justices of either Bench, Justices in Eyre, Justices of Assize, Justices of Oier and Terminer, In their Places doing their Offices.

The second is to Violate, that is, to Carnally know the Queen, the Kings Eldest Daughter unmarried, the Princes Wife.

The third is, Levying War against the King.

[Page 44] The fourth is, Adhering to the Kings Enemies, within the Realm or without, and declaring the same by some overt Act.

The fifth is, Counterfeiting of the Great, the Pri­vy Seal, or the Kings Coin.

The sixth and last, by bringing into this Realm Counterfeit Mony to the likeness of the Kings Coin.

Now as to the particular Exposition of the several parts of this Statute:

1. When a man doth compass, &c. in the Origi­nal it is Quant Home, which extends to both Sexes, but one that is Non compos mentis, or an Infant within the Age of discretion, is not included; but all Allens within the Realm of England, being thereby under the Kings Protection, and owing a Local Al­legiance, if they commit Treason may be punisht by this Act, but otherwise it is of an Enemy.

2. To compass and Imagine, Is to contrive, design or intend the death of the King; but this must be declared by some Overt Act. But declaring by an open Act a design to Depose or Imprison the King, is an Over Act to manifest the compassing his death. For they that will depose their King, will not stick to Murder him, rather than fail of their end, and (as King Charles the First excellently observed, and lamenta­bly experienced) There are commonly but few steps be­tween the Prisons and the Graves of Princes.

3. By the word King, is intended, 1. A King be­fore his Coronation, as soon as ever the Crown de­scends upon him, for the Coronation is but a Cere­mony. 2. A King de Facto, and not de Jure, is a King within this Act, and a Treason against him is punishable, thô the Right Heir get the Crown. 3. A Titular King, as the Husband of the Queen, is not a King within this Act, but the Queen is, for the word King here includes both Sexes.

4. What is to be understood by the Kings Eldest Son and Heir within this Act? I answer, 1. A second [Page 45] Son after the death of the first Born, is within the Act, for he is then Eldest. Secondly, The Eldest Son of a Queen Regnant is as well within the Statute, as of a King. Thirdly, The Collateral Heir Appa­rent or Presumptive is not within this Statute. Roger Mortimer Earl of March was in Anno Dom. 1487. (11 Rich. 2.) Proclaimed Heir Apparent. Anno 39. Hen. 6. Richard Duke of York was likewise Pro­claimed Heir Apparent, and so was John de la Poolen, Earl of Lincoln, by Rich. 3. And Henry Marquess of Exeter, by King Henry the 8. But none of these or the like are within the Purview of this Statute, saith my Lord Coke, 3 Instit. fol. 9.

5. Note, Whereas in the Printed Statute-Books, it is there said, probably Attainted, the same is a great error: For the words of the Record are, Et de ceo PROVABLEMENT soit Attaint: And shall be thereof PROVABLY Attaint: And I cannot but admire, that such a Gross mistake should be suffered, since my Lord Coke has so expresly observed the difference, in these words following, 3 Instit. fol. 12. In this Branch (says he) four things are to be ob­served: 1. This word [Provablement] Provably, that is, upon direct and manifest proof, not upon Conjectural presumptions or Inferences, or strains of Wit, but upon good and sufficient proof. And herein the Adverb [Provablement] provably, hath a great force, and signifieth a direct and plain proof, which word the King, the Lords, and Commons in Parliament did use, for that the offence was hainous, and was so heavily and severely punished, as none other the like, and therefore the offender must Prova­bly be Attainted, which words are as forcible, as up­on direct and manifest proof. Note, the word is, not [Probably] for then Commune Argumen­tum might have served; but the word is, [Provably] be Attainted. Secondly, This word [Attaint] necessarily implyeth that he be proceeded [Page 46] with, and Attainted according to the due Course and proceedings of Law, and not by Absolute power, or by other means, as in former times had been used. And therefore if a Man doth adhere to the Enemies of the King, or be slain in open War against the King, or otherwise die before the At­tainder of Treason, he forfeiteth nothing, because (as this Act saith) he is not Attainted: wherein this Act hath altered that, which before this Act, in Case of Treason was taken for Law; And the Statute of 34 E. 3. Cap. 12. saves nothing to the King, but that which was in Esse, and pertaining to the King at the making of that Act. And this appeareth by a Judgment in Parliament in Ann. 29. H. 6. Cap. 1. That Jack Cade being slain in open Rebellion could no way be punished, or forfeit any thing, and therefore was Attainted by that Act of High Treason. Thirdly, Of open Deed, per Aper­tum Factum, these words strengthen the former Ex­position of [Provablement,] an Overt Act must be alledged in every Indictment upon this Act, and proved. Compassing by bare words is not an Overt Act, as appears by many Temporary Statutes against it. But there must be some open Act, which must be manifestly proved. As if divers do Conspire the Death of the King, and the manner how, and thereupon provide Weapons, Powder, Poison, Harness, send Letters, or the like, for the Execution of the Conspiracy. If a Man be Arraigned upon an Indict­ment of High Treason, and stand Mute [that is, refuse to Plead] he is not to be Pressed to death, but shall have the same Judgment, and incurr such forfeiture, as if he had been Convicted by Verdict, or had confessed it. For this standeth well with this word [Provablement] for fatetur facinus qui ju­dicium fugit. But otherwise it is in case of Petit Treason, Murder, or other Felony. If a Sub­ject Conspire with a Forreign Prince to Invade the [Page 47] Realm by open Hostility, and prepare for the same by some Overt Act, this is a sufficient Overt Act for the death of the King. Fourthly, The Compositi­on and Connexion of the words are to be observed, viz. [Thereof be Attainted by open Deed] This (as was resolved by the Justices in Easter Term 35 of Eliz.) relateth to the several and distinct Treasons before expressed (and specially to the Compassing and Imagination of the death of the King, &c. for that is a secret in the Heart) and therefore one of them cannot be an Overt Act for another, as for ex­ample: A Conspiracy is had to Levy War, this (as hath been said and so resolved) is no Treason by this Act until it be levied, therefore it is no Overt Act, or manifest proof of the Compassing the Death of the King within this Act; for the Words are [de ceo, &c. thereof] that is, of the Compassing of the death. Divers latter Acts of Parliament have Or­dained, That compassing by bare Words or Sayings, should be Treason, but are all either Repealed or Expired (except only that of the 12 Car. 2. herein after recited, which is only to be in force during the Life of his present Majesty, whom God preserve:) And it was wont to be said, bare Words may make an Heretick, but not a Traitor, without an Overt Act. And the Wisdom of the Makers of this Law would not make Words only to be Treason, seeing such variance commonly amongst the Witnesses is about the same, as few of them agree together. But if words be set down in Writing by the Delinquent himself, That is a sufficient Overt Act within this Statute.

In the Preamble of the Statute of 1 Mar. (concer­ning the Repeal of certain Treasons declared after this Statute of the 25. of Edw. 3. and before that time, and bringing back all things to the measures of this Statute) It is agreed by the whole Parliament, That Laws justly made for the preservation of the [Page 48] Common-wealth, without extream punishment, are more often obeyed and kept than Laws and Statutes made with great and extream punishments. And in special such Laws and Statutes so made, whereby not only the ignorant and rude unlearned People, but also learned and expert People minding honesty, are oftentimes trapped and snared, yea many times for Words only, without other Fact or Deed done or perpetrated. Therefore this Act of 25 Edw. 3. doth provide that there must be an Overt Act. But words without any Overt Act, are to be punisht in another degree, as an high Misprision.

By People of their condition] That is per Pares, by their Equals.

7. As to Treason by Levying War against the King, we must note, that thô Conspiring or Com­passing to Levy War, without a War de Facto, be no Treason, yet if many Conspire a War, and only some few Actually Levy it, all are guilty of the Trea­son. Raising a Force to burn or throw down a par­ticular Inclosure is only a Riot, but if it had been to have gone from Town to Town to throw down all Inclosures, or to change Religion, or the like, it were Levying of War, because the intended mis­chief is Publick. Holding a Fort or Castle against the Kings Forces, is Levying of War.

8. As touching the Interpretative Treasons by Killing the Chancellor, Treasurer, Justice of one or the other Bench, Justice in Eyre, or of Assize, or Oier and Terminer. Note, 1. This extends but only to the Persons here named, not to the Lord Steward, Constable, or Marshal, or Lords of Par­liament. Secondly, It extends to those only during their Office. Thirdly, It extends only to Killing, not Wounding without Death.

But by the Stat. 3 H. 7. C. 14. Compassing to Kill the King or any of his Council, is made Felony.

[Page 49] 9. Counterfeiting the Great or Privy Seal is Trea­son; but it must be an Actual Counterfeiting thereof, Compassing to do it is no Treason: Affixing the Great Seal by the Chancellor without Warrant, is no Trea­son: Fixing a new Great Seal to another Patent, is a great Misprision, but no Treason, being not a Coun­terfeiting within this Act: But Aiders and Consenters are within this Act. The Counterfeiting of the Pri­vy Signet or Sign Manual, is no Treason within this Act, but made by the Statute, 1. Mar. c. 6.

10. Treason concerning Coin, is either Counter­feiting the Kings Coin, and this was Treason at Common Law, and Judgment only as of Pettit Trea­son, but Clipping, &c being made Treason by sub­sequent Statutes, the Judgment is to be Drawn, Hang'd, and Quarter'd. Money here extends only to the Proper Money of this Realm, But now by the 1. M. c. 6. Forging or Counterfeiting Money made current by Proclamation, is High Treason, and by 14. Eliz. c. 3. Forging of Forreign Coin, not current here, is Misprision of Treason in the Forgers, their Aiders and Abettors—And not that the bare For­ging of the Kings Coin, without Uttering, is Trea­son.

The second Offence concerning Money, here de­clared to be Treason, is, If any person bring into this Realm Counterfeit Money: Where note. 1. It must be Counterfeit: 2. Counterfeited to the similitude of English Money: 3. It must be brought from a For­reign Realm, and therefore not from Ireland: 4. It must be brought knowingly: 5. Brought, and not barely uttered here. But by the Statute De Moneta, if false or clipt money be found in a persons hands, and he be suspitious, he may be Arrested till he can clear himself: 6. He must merchandize therewith, that is make payment thereof.

11. As this Statute leaves all other doubtful matters to be declared Treason in Parliame [...]t, but not to be [Page 50] punish'd as such till so declared. So in succeeding Kings Reigns abundance of other matters were de­clared Treason, which being found very grievous and dangerous, by the Statute of 1 Mar. Cap. 1. it is Enacted, That thenceforth no Act, Deed, or Offence being by Act of Parliament, or Statute, made Treason, Petty Treason, or Misprision of Trea­son, by Words, Writing, Ciphering, Deeds, or other­wise however, shall be taken, had, Deemed or Ad­judged to be High-Treason, Petty Treason, or Mis­prision of Treason, but only such as be declared and expressed to be Treason, Petty Treason, or Misprision of Treason, by this Statute of the 25. Edw. 3.

12. The Offences made High Treason by Statutes since this first of Mary, are as follow.

Refusing the Oath of Supremacy upon second Tender, is Treason by 5. Eliz. Cap. 1. but no Cor­ruption of Blood, so likewise is Extolling the Power of the Bishop of Rome, a Premunire, and the bring­ing in of Bulls, or putting them in Execution, or Re­conciling to the Church of Rome, is Treason by the same Statute. Bringing in Agnus Dei's is a Premu­nire. 23. Eliz. C. 1. Also absolving Subjects from their Obedience, or Reconciling them to the Obedience of Rome is Treason, 27. Eliz. Cap. 2. So is it like­wise for a Priest coming into England, not submit­ing in two days. The like for English men in For­reign Seminaries.

But Besides these Old Treasons since the happy Ret [...]uration of His Majesty, The zealous regards his Subjects in Parliament had, for the safety of his Sacred Person and Government, thought sit to pre­fer and make the Statute following.

The Comment.

IN case of death of man, Robberies and Felonies against the Peace, divers Acts of Parliament have Restrained the power of granting Charters of pardons; first, that no such Charters shall be granted, but in case where the King may do it by his Oath; Second­ly, That no man shall obtain Charters out of Parlia­ment, Stat. 4. Edw, 3. cap 13. And accordingly in a Parliament Roll it is said, [for the Peace of the Land it would much help, if good Justices were ap­pointed in every County, if such as be let to mainprize do put in good Sureties, as Esquires or Gentlemen: And that no pardon were granted but by Parliament] [Page 65] Thirdly, For that the King hath granted Pardons of Felonies upon false Suggestions, it is provided, that every Charter of Felony which shall be granted at the Suggestion of any, the name of him that maketh the Suggestion shall be comprised in the Charter, and if the Suggestion be found untrue, the Charter shall be disallowed. And the like provision is made by the Statute of 5. H. 4. Cap 2. for the Pardon of an Approver.

Fourthly, It is provided that no Charter of Par­don for Murder, Treason, or Rape, shall be al­lowed, &c. If they be not specified in the same Charter. Statute 13. R, 2. Before this Statute of 13. R, 2. by the Pardon of all Felonies, Treason was Pardoned, and so was Murder, &c. At this day by the Pardon of all Felonies, the death of man is, not Pardoned. These be excellent Laws for direction, and for the Peace of the Realm. But it hath been conceived, (which we will not question) that the King may dispence with these Laws by a Non Obstante, [notwithstanding,] be it General or Special (albeit we find not any such Clauses of non Obstante, notwith­standing, to dispense with any of these Statutes, (but of late times) These Statutes are excellent Instructi­ons for a Religious and Prudent King to follow, for in these Cases, Ʋt summae potestatis Regiae est posse quantum velit, sic Magnitudinis est velle quantum possit, [As it is the highest Kingly power to be able to Act what he Wills, so it is his Greatness and No­bleness to Will only what he lawfully can.] Hereof you may Read more in Justice Standford, Lib. 2. Cap. 35. in diverse places of that Chapter, of his grave Advice in that behalf. Most certain it is, that the Word of God has set down this undisputable General Rule, Quia non profetur Cito Contra malos senten­tia, filii hominum sine timore ullo perpetrant, [be­cause Sentence against evil men is not speedily Exe­cuted, therefore the hearts of the Children of men [Page 66] are set in them to do evil] And thereupon the Rule of Law is grounded. Spes Impunitatis Continuum Affectum tribuit delinquendi, [the hope of Impunity encourageth Offenders] Et veniae facilitas Incenti­vum est Delinquendi, and the facility of obtaining Pardon is an Incentive to Commit Offences] This is to be Added, that the Intention of the said Act of 13. R. 2. Was not that the King should grant a Par­don of Murder by express Name in the Charter, but because the whole Parliament conceived, that he would neuer Pardon Murder by special Name for the Causes aforesaid, therefore that provision made, which was (as in other Cases I have observed) grounded upon the Law of God, Quicunque effude­rit humanum sanguinem, fundetur sanguis illius; ad imaginem quippe Dei creatus est homo nec aliter Expiati potest, nisi per ejus sanguinem, qui alte­rius sanguinem effuderit, [whosoever shall shed mans blood, by man also shall his blood be shed, be­cause man was Created after the Image of God, nei­ther can it be expiated otherwise then by his blood, who spilt the blood of another.] And the words of every Pardon is after the Recital of the offence, nos pietate moti, &c. we being moved with Piety, &c. But it can be no Piety to violate an express Law of God, by letting Murder scape unpunisht. Thus Coke, whereby we see what opinion he had of such Pardons.

The Comment.

BEfore the Conquest (as the Victory of Duke William of Normandy over Harold the Usur­per, is commonly, though very improperly called) [Page 76] Parliaments were to be held twice every year, as ap­pears by the Laws of King Edgar, cap. 5. and the Testimony of the Mirrour of Justices, cap. 1. sect. 3. For the Estates of the Realm. King Alfred caused the Committees (some English Translations of that ancient Book read, Earls, but the word seems ra­ther to signifie Commissioners, Trustees, or Representa­tives) to meet, and ordained for a PERPETUAL USAGE, that twice in the year, or ostner, if need were, in time of Peace they should Assemble at Lon­don, to speak their Minds for the guiding of the People of God, how they should keep themselves from Offences, live in quiet and have right done them by certain Ʋsages and sound Judgments. King Ed­ward the first (says Cook, 4. Instit. fol. 97.) kept a Parliament once every two years for the most part: And now in this King Edward the Thirds time (one of the wisest and most glorious of all our Kings) It was thought fit to Enact by these two several Sta­tutes, That a Parliament should be held once at least every year, which two Statutes are to this day in full Force: For they are not Repealed, but rather Confirm­ed by the Statute made in the 16th of our present Soveraign, King Charles the Second, Cap. 1. Intitu­led, An Act for the Assembling and holding of Par­liaments once in three years at the least: The words of which are as follow.

Because by the ancient Laws and Statutes of this Realm, made in the Reign of King Edward the third, Parliaments are to be held very often, your Majesties Humble and Loyal Subjects, the Lords Spiritual and Temporal, and the Commons in this present Parliament Assembled, most Humbly do be­seech your most Excellent Majesty, that it may be declared and Enacted, (2) And be it declared and Enacted by the Authority aforesaid, that hereafter the sitting and holding of Parliaments shall not be intermitted or discontinued above Three Years at [Page 77] the most; but that within three years from and after the Determination of this present Parliament, so from time to time within three years after the Determination of and other Parliament or Parlia­ments, or if there be occasion, more or oftner, Your Majesty, your Heirs and Successors, do Issue out your Writs for calling, Assembling and holding of another Parliament, to the end there may be a frequent cal­ling, Assembling and holding of Parliaments once in three years at the least.

Agreeable to these good and wholsome Laws are those gracious Expressions and Promises in His Maje­sties Proclamation touching the Causes and Reasons of Dissolving the two last Parliaments, Dated April 8. 1681. Irregularities in Parliament shall NEVER make us out of love with Parliaments, which we look upon as the best Method for healing the distem­pers of the Kingdom, and the only means to preserve the Monarchy in that due Credit and Respect which it ought to have both at home and abroad. And for this Cause we are resolved by the blessing of God to have frequent Parliaments; And both in and out of Parliament to use OUR UTMOST ENDEA­VOURS TO EXTIRPATE POPERY, and to Redress all the Grievances of our good Subjects, and in all things to Govern according to the Laws of the Kingdom.

The Comment.

THere are three things, which the Law of Eng­land (which is a Law of Mercy) principally Regards and taketh care of, viz. Life, Liberty and Estate. Next to a man's Life, the nearest thing that concerns him, is freedom of his person, For indeed what is Imprisonment, but a kind of Civil Death? Therefore saith Fortescue Cap. 42. Angliae Jura in omni Casu Liber­cati dant favorem. The Laws of England do in All Cases favour Liberty.

[Page 129] Touching Commitments, and what is Required to make a Legal Mittimus, see before Pag. 27.

The Writ of Habeas Corpus is a Remedy given by the common Law for such as were unjustly detained in custody, to procure their Liberty: But before this statute, was Rendred far less useful than it ought to be partly by the Judges, pretending a power to Grant, or deny the said Writ at their pleasure, in many cases, and Especially by the Ill practises of Sheriffs and Gaolers, by putting the prisoner to the charge and trouble of an Alias and pluries (that is a second and third Writ, before they would obey the first, for there was no penalty till the Third) and then at last the Judges would oft-times Alleadge, That they could not take Bail, because the party was a prisoner of State, &c. Therefore to Remedy all those mischiefs, This most wholsome Law was provided. Which we shall briefly Endeavour to Divide into its several Branches, and Explain it to the meanest Capacities, since no Man is sure but one time or other, he may have occasion to make use of it.

This Act concerneth either first, persons committed for some other Criminal, or supposedCriminal matter, (besides Treason or Felony,) and these are to have an Ha­beas Corpus Immediately; 2ly. such who in their Mit­timus are charged with Treason or Felony, & these shall have the benefit of the said Writ after the time here­in Limited. 1st. If any Gaoler or Under-Keeper shall not deliver a trueCopy of the Mittimus within 6 hours af­ter the prisoner demands it, the Head-Gaoler or Kee­per forfeits to the prisoner for the first Offence 100l. for the second Offence 200l. and loses his place. Nor is there any Fee to be paid for the same, the Turn-key must deliver it at his peril. And note if the prisoner should be lockt up, or none suffered to come at him, a­ny friend of his may demand the same on his behalf.

2. Whatever the Criminal matter be, If Trea­son or Felony be not Expresly charged, any person [Page 130] on the prisoners behalf, carrying such true Copy of the Commitment to the Lord Chancellor, or any one of the Judges, or Barons of the Exchequer, or up­on Oath made that a Copy was demanded and denied, he shall Grant an Habeas Corpus, or forfeit 500l. to the prisoner; But note, the Request must be made to such Judge in Writing, and Attested by two witnesses.

3. If the Sheriff or Gaoler do not carry up the pri­soner and Return the true causes of his detainour, within three days, If under twenty miles distance, or within ten daies if above twenty, and under an hundred miles, or within twenty daies if above an hundred miles, he forfeits 500l. to the prisoner.

Note the prisoner must pay the Charges of his car­rying up, and the Judge when he Grants the Writ, may order how much, but it must not be above 12 d. a mile.

If upon the Return of such Habeas Corpus, it appear the prisoner is not charged with Treason or Felony, spe­cially and plainly Expressed, or for such matters, as by Law are not Bailable, the Judge shall discharge the pri­soner upon Bail.

4. If a person once so Bailed out, shall again be Im­prisoned for the same Offence, those that do it for­feit 500 l.

5. If there be High Treason or Felony plainly and specially Expressed [That is, not only Generally, for Treason or Felony, but Treason in conspiring to kill the King, or in Counterfeiting the King's Coin, or Felo­ny, for stealing the goods of such an one to such a value, &c.] Then the Prisoner cannot have his Habeas Corpus; till first he has on the first week of the Term, or first day of Sessions of Oyer and Terminer, or Gene­ral Gaol-delivery petitioned in open Court to be brought to his Tryal; and then if he be not brought to Tryal the next Term, or Sessions following, on the last day thereof, he shall be Bailed; and if not Indicted the second Term or Sessions, shall be discharged.

[Page 131] 6. This Act extends to all places within England? and Wales; the Tower cannot be supposed to be ex­empted, nor Windsor Castle, nor any such Royal Forts; for the words are general: And besides, there is a special Act of Parliament, that unites the King's Castles to the Counties wherein they stand; there having been it seems some pretensions and ill practi­ces to hold them district, that therein they might detain men prisoners against Law, and not admit any Writ to enlarge them. For Remedy whereof it was thus Enacted;

Lastly, No person shall be sent Prisoner out of England or Wales, into Scotland, Ireland, Jersey, Guern­sey, Tangier, or any other place beyond the Seas.

The Proviso's and other Clauses of this Act may be easily apprehended by the meanest capacities.

AND, As the Law provides thus for our Liberty, so it takes care, that those that are in Custody, shall not be abused or oppressed; to which purpose I shall here insert so much as is material & necessary to be known by all persons, who are so unhappy as to be prisoners, out of the Statute of the 22d. and 23d. Car. 2. Cap. 20. The words wereof are as follows:

‘WHEREAS. Persons that are under Arrests, or committed to the custody of Sheriffs, Bailiffs, Gaolers, Keepers of Prisons, or Gaols, are much abused and wronged by Extorting of great Fees, Rewards, and other Exactions, and put to great Expences under pretences of favour, or otherwise, whereby they are greatly Oppressed, and many times Ruined in their Estates. (2.) For Remedy thereof, Be it Enacted by the Authority aforesaid, That if any Under-She­riff, Bailiff, Serjeant at Mace, or other Officer or [Page 132] minister whatsoever, shall at any time or times hereafter have in his or their Custody, any person or persons by vertue or colour of any Writ, Process, or other Warrant whatsoever, it shall not be lawful for such Officer or Officers, to convey or carry, or cause to be conveyed or carried the said person or persons to any Tavern, Ale-House, or other publick Victualling or Drinking-house, without the free and voluntary consent of the said person or persons, so as to charge such Prisoner with any sum of Money for any Wine, Beer, Ale, Victuals, Tobacco, or any other things whatsoever, but what the said person or persons shall call for, of his, her, or their own accord, (3,) And shall not demand, take or re­ceive, or cause to be demanded, taken or received, directly or indirectly, any other, or greater Sum or Sums than what by Law ought to be taken or de­manded for such Arrest, taking, or waiting (until such person or persons shall have procured an Ap­pearance, found Bail, agreed with his or their Ad­versaries, or be sent to the proper Gaol belonging to the County, City, Town or Place where such Ar­rest or taking shall be,) (4.) Nor take and Exact any other Reward or Gratuity for so keeping the said person or persons out of the Gaol or Prison, than what he, she or they shall or will of his, her, or their own accord, voluntarily and freely give. (5,) Nor take, nor receive any other, or greater Sum or Sums for each nights Lodging, or other Ex­pences, than what is reasonable and fitting in such cases, or shall be so adjudged by the next Justice of the Peace, or at the next Quarter-Ses­sions. (6.) And shall not cause or procure the said person or persons, to pay for any other Wine, Beer, Ale, Victuals, Tobacco, or other things, than what the said person or persons shall voluntarily, freely, and particularly call for.’

‘And that every Under-Sheriff, Gaoler, Keeper [Page 133] of Prison or Gaol, and every person or persons whatsoever, to whose Custody any person or per­sons shall be delivered or commited, by virtue of any Writ of Process, or any pretence whatsoever, shall permit and suffer the said person or persons, at his and their will and pleasure, to send for, and have any Beer, Ale, Victuals, and other necessa­ry Food, where, and from whence they please; and also to have and use such Bedding, Linnen, and other things, as the said person or persons shall think fit, without any purloyning, detaining or paying for the same, or any part thereof; nor shall demand, take or receive of the said person or per­sons, any other, or greater Fee or Fees whatso­ever, for his, her, or their Commitment, Release or Discharge; or for his, her, or their Chamber-Rent, than what is allowable by Law, untill the same shall be settled by three Justices of the Peace, whereof one to be of the Quorum, of each particular County, Ci­ty and Town Corporate, in their several Precincts; and for the City of London, and Counties of Middle­sex and Surrey, the two Lord Chief Justices of the Kings's-Bench and Common-Pleas, and the Lord Chief Baron, or any two of them, and the Justices of the Peace of the same, in their several Jurisdictions.’

‘And likewise that the said Lord Chief Justice, Lord Chief Baron, and Justices of the Peace in their several Jurisdictions, and all Commissioners for Charitable Uses, do their best Endeavours, and Di­ligence to Examine, and finde out the several Lega­cies, Gifts and Bequests bestowed and given for the Benefit and Advantage of the Poor Prisoners for Debt, in the several Gaols and Prisons in this King­dom, and to send for any Deeds, Wills, Writings, and Books of Accompts whatsoever; and any per­son or persons concerned therein, and to Examine them upon Oath, to make true discovery thereof (which they have full Power and Authority hereby [Page 134] to do) and the same so found out and ascertained, to order and settle in some manner and way, that the Prisoners hereafter may not be defrauded, but Receive the full benefit thereof, according to the true intent of the Donors.’

‘And that these Accounts of the several Legacies, Gifts and Bequests, given and bestowed upon the several Prisoners for Debt, within this Kingdom, and the several Rates of Fees, and the future Go­vernment of Prisons, be signed and confirmed by the Lord Chief Justices, and Lord Chief Baron, or any two of them for the time being, and the Justices of the Peace in London, Middlesex and Surrey; and by the Judges for the several Circuits, and Justices of the Peace for the time being, in their several Pre­cincts, and fairly written and hung up in a Table in every Gaol and Prison, before the first day of No­vember, 1671. and likewise be Registred by each, and every Clerk of the Peace within his or their particular Jurisdiction: And after such Establishment, no other or greater Fee or Fees than shall be so Established, shall be Demanded or Received.’

‘And whereas it is become the common practice of Gaolers, and Keepers of Newgate, the Gate-house at Westminster, and sundry other Gaols and Prisons, to Lodge together in one Room, or Chamber and Bed, Prisoners for Debt, and Felons, whereby ma­ny times honest Gentlemen, Trades-men and others, Prisoners for Debt, are disturbed and hin­dered in the night-time from their natural Rest, by reason of their Fetters and Irons, and otherwise much offended and troubled by their lewd and pro­phane Language and Discourses, with most horrid Cursing and Swearing (much accustomed to such persons;) (2.) Be it Enacted by the Authority aforesaid, that it shall not be lawful hereafter for any Sheriff, Gaoler, or Keeper of any Gaol or Pri­son, to put, keep or Lodge Prisoners for Debt, and [Page 135] Felons together in one Room or Chamber; but that they shall be put, kept, and Lodged separate and apart one from another, in distinct Rooms, (3.) Upon pain that he, she, or they which shall offend against this Act, or the true Intent and meaning thereof, or any part thereof, shall forfeit and lose his or her Office, Place or Imployment, and shall forfeit treble damages to the party grieved, to be Recovered by vertue of this Act, any Law, Statute, Usage or Cu­stom to the contrary in any wise notwithstanding.’

And to the End that English-men may more en­tirely enjoy their due Freedoms, the prudence of our Legislators have thought fit from time to time to Remove Encroachments thereupon, though under pretence of Jurisdictions and Courts of Justice; and to prohibit any Exorbitant Arbitrary Power for the future, but that all things may be left to the calm and equal proceedings of Law; and that most excel­lent Method of Trial by Juries, one of the principal Bulwarks of England's Liberties. For an Instance hereof, take the Act following.

The Comment.

THE Court of Star-Chamber (so called, because held in a Chamber at Westminster, the Roof of which is garnisht with Golden Stars) was not origi­nally Erected, but confirmed and establisht by the Stat. of the 3 H. 7. Ca. 1. For there had before been some such Jurisdiction, as Cook observes 4. Instit. fo. 62. yet there is reason to believe, That it grew up rather by Connivance and Usurpation, than any due course of Law. The Crimes it pretended to punish were the Exorbitant Offences of Great Men, (whom Inferiour Judges and Jurors (though they should not) would in respect of their Greatness be afraid to offend) Bribery, Extortion, Maintenance, Champerty, Im­bracery, Forgery, Perjury, Libelling, Challenges, Duels, &c. Their proceedings were by English Bill, and Process under the Great Seal; and the punish­ments by them Inflicted were Fines, Imprisonment, Pil­lory, Cutting off Ears, &c. But whatever pretences there were for the setting up this Court at first, 'tis certain it was made use of as a property of Arbitra­ry Power to Crush any whom the Ruling Ministers and Favourites had a mind to destroy; and indeed there were Three things in the very nature of this Court, which were destructive to the Original Constitution of our English Government and Liberties. 1. They proceeded without Juries. 2. They pretended to a Power to Examine men upon their Oaths touching Crimes by them supposed to be committed, which is contrary to all Law and Reason; For, Nemo tenetur seipsum Accusare: No man is bound to accuse himself. 3. The Judges of this Court proceeded by no known Law or Rules, but were left at Liberty to Act Arbi­trarily, and according to their own pleasures; where­as the Law of Engl. hates to leave to any such an un­limited Power, but as it marks out the several species [Page 145] of Crimes, such or such an Act shall be Treason; this Felony, that petty Larceny, &c. So it awards certain and positive punishments, proportionate to each of them. Therefore this Court being found a Grievance to the Subject, was by this Act dissolved and taken away.

And to the intent nothing of the like kind should by any other name be practised for the future, it is Declared and Enacted, That the King and His Privy Council shall not question or dispose of the Lands or Goods of any Subjects: And if they do, each Privy Counsellor or present forfeits 500l. to the party grieved.

The Comment, With a Discourse of the Nature of Excommunication, and how to prevent or take off the VVrit De Excommunicato Capiendo.

THough Excommunications pretend a Title Jure Divino, as an Institution of Christ, and therefore his Sacred Name is therein made use of, and several other Spiritual Phrases purporting that the same, and all proceedings thereunto, are by his Au­thority; yet they being so commonly thundered out, by persons who have immediately no Authority from our Lord, or his Word, to manage them; and for such trivial Crimes as no Law of God hath ordered [Page 155] them against, and in such a Light and precipitant man­ner, as no part of Holy Scripture warranteth: The wiser sort of men do therefore look upon them ra­ther as Excommunings, or a sort of Civil punishment, like that in use among the Romans, Interdico tibi aqua & igni, than one of the solemn Institutions of God. And therefore waving any discourse of what Spiri­tual Influence or Effect may be dreaded from the same in our dayes, which we hope are wise enough not to be Bug-Bear'd with that Maxim of the Canonists Excommunicatio sive Justa, sive Injusta est timenda; A Church-Curse, be it Just, or Unjust, is to be feared. All that we shall speak to is matter of Law, for so it is that there are Legal Bars and punishments formed by our Temporal Laws, as long as the Legislative Power shall not be at leisure to consider of them, and (if they find it requisite) Repeal them. For,

1. A person Excommunicated is forthwith disabled to Sue in any of His Majesties Courts; not that thereby he loses his Right for ever, but the Excommunication may be pleaded in Abatement of his present Action, till the same is taken off by an Absolution. Yet note, That whosoever is Instrumental in procuring, solli­citing, decreeing or pronouncing the Excommuni­cation, shall never be allowed to plead it; nor shall it be pleaded, unless the Excommunication be, signi­fied by the Bishop himself; for the Court will receive no Certificate from any to whom they cannot write to Absolve the person, if they find cause.

2. Likewise, though a person Excommunicated may be appointed an Executor, and is capable of ha­ving a Legacy given him, yet so-long as he stands Ex­communicated, he is not to be allowed to prove the Will, nor Sue for his Legacy in the Spiritual Court. But note, whereas some say a man Excommunicated can­not Marry; 'tis Non-sense, for Marriage is de Jure Naturali, and alike absurd it is for any to pretend, that such a person cannot give his Suffrage in any [Page 156] Election; as for Example of Parliament-men, for the same is an idle dream; the Law allows him a Voice, so long as he hath a Free-hold of Forty Shillings per Annum, though he were under forty Curses.

3. If a person (justly or unjustly) Excommunica­ted, continue so by the space of forty dayes then by the Common Law, the Bishop certifying the same in­to Chancery, (which is called a Significavit) there shall issue forth a Writ from thence to the Sheriff of the County where the party lives, to Imprison him without Bail or Mainprize, till he hath made satis­faction to Holy Church.

This is called a Writ de Excommunicato Capiendo, and such Imprisonment of a person Excommunicated by a Civil Sanction, is not practised in any Nation in the world but ours, and if it had here too been Bu­ried with its Brother de Haeretico Comburendo, I believe it would have had few Tears at its Funeral. But at Common Law the same Writ being not Returnable in any Court, the Sheriffs took their own time, and used their discretion in Executing it; to inforce which, this Statute was made, whereby it is Enacted.

1. That the said Writ shall be Returnable in the King's Bench, yet the Sheriff need not bring thither the Body.

2. If the Sheriff Return Non est Inventus. a Capias shall be Awarded with Proclamation, to come in with six dayes; if the party do not, he forfeirs 10 l. and thenceforwards Capias after Capias, and 20 l. forfeited on each.

3. But note, there are two Cases in which though a man stands out never so many Proclamations, he shall forfeit nothing. And they two are these.

1. VVhere the Party against whom the VVrit De Excommunicato Capiendo is Awarded, hath not therein a sufficient and lawful Addition; That is (saith Cowel) a Title over and above his Christian and Sirname, shew­ing his State, Degree, Trade, Occupation, or Mystery (as [Page 157] Lord, Knight, Gentleman, Yeoman, Clothier, and the like) and the Hamlet, Town, Parish, and County where he is, or lately was conversant and dwelling. And if it be with a Nuper [late of such a place] then you see there must be made out one Capias without any penalty.

2. VVhere it is not expressed in the Bishops Cer­tificate, that the Cause for which the party was origi­nally Cited into the Spiritual Court, was for one of these 10 Causes following, viz. 1. Heresie; 2. Refusing to have Children Baptized; 3. Refusing to Receive the Communion; 4. Refusing to come to Divine Ser­vice; 5. Errour in Religion or Doctrine; 6. Inconti­nency; 7. usury; 8. Simony; 9. Perjury in the Ec­clesiastical Court; or 10. Idolatry.

To know whether there be such cause expressed, you may have a Copy of the Significavit at the Cursitors Office in Chancery-Lane.

Then in either of these cases, all pains and for­feitures limited by this Statute by reason of such VVrit of Excom. Cap. wanting such an Addition or Sig­nificavit, wanting all the causes aforesaid, shall be utterly void in Law, and by way of plea to be allow­ed to the party grieved.

Touching the Authority of the Courts called Spi­ritual or Ecclesiastick, whether they have truly any at all by our present Laws, I shall not here debate; they that have a mind to hear what is to be said on that Theme, may read Mr. Hickeringil's Book of Naked Truth, or Mr. Henry Care's Book written in the year 1664. entituled, A true Guide for all persons con­cerned in Ecclesiastical Courts; neither of which I ever yet saw sufficiently Answered; yet still since most cer­tain it is, that such Courts do proceed and Act, we shall suppose them to have some Power, and only in­form our Reader of the course of their practice, as it is used at this day, and his best course to defend him­self.

[Page 158] You must note, that persons are usually Excom­municated upon Contempt or Contumacy, which may be,

1. If the party being duly Cited, Denieth, or Omitteth to appear: For if he be not personally summoned, he needs not appear the first time; but then their way is to Cite him by a Writ called Viis & Modis, set up at the Doors of his House, or at the Church Doors, Citing him at a certain day to appear to answer, &c. But (being personally Cited) if he doth not appear the first time, or whether he be or no, if he doth not appear the second time, he is Excommunicated for Contempt. If he be Cited generally: the Law is, That he shall appear the third day after the Service of the Ci­tation. The Law also is, that if he he will give the Apparator 6d. he must bring him the full and true Copy of the Citation. If a day of appearance be mentioned, and the same be not at least the third day from the Ci­tation; or if he hath before witnesses given the Ap­parator 6d. to bring him a full and true Copy of the Citation, and he doth not, I conceive, he needs not appear, but listen what they do; and if they decree him Excommunicated, he may Appeal within 15 daies, and bring from the Superiour Court, an Inhibition to stop their proceedings against him. And further, the Rule in that Law is, Totus dies debetur Delinquenti. It is enough for a person to appear any hour of the day (provided it be a Court-hour) wherein he is Cited to appear; so as though he be called before he comes, vet if he appeareth that day, he shall be discharged, or he may Appeal.

2. When he appeareth, he shall demand his Charge, which is either by a Presentment from Church-Wardens, or by a Libel, or Articles, which are exhi­bited by a Promoter. Be it which it will, he shall demand a Copy; if it be denyed or delayed, he may bring, if he will, a Prohibition from the King's Court at Westminster, forbidding them to proceed in that [Page 159] Cause, till they have given a full and true Copy of his Charge, according to the Statute of 2 Hen. 5. Ca. 3.

If he appeareth in person, he ought to have his Charge the first Court-day; if he appeareth by a Proctor, they will usually (to get the Proctor more Fees) give to the second Court-day, to bring in the Libel or Articles.

4. If they deliver him not his Charge the second Court-day, he may Appeal, if upon his demand the Judge will not dismiss him; or he may, if he will, bring his Prohibition, for want of Articles, and stop their further proceedings.

5. If the proceedings be upon a Promotion, and the Promoter hath Imployed a Proctor in the Case, the party accused must know, that no Proctor can be ad­mitted without a Proxy, that is, Letters Procuratory under the Promoter's Hand and Seal, authorizing him to act for him in the Case; and when he hath that, there must be an Act entred in Court to admit such a person Proctor in the Case. The party charged may go or send to the Register, and demand a sight of both those; the Reason in Law is this, because any Proctor is liable to the Parties Action, if he mole­steth any person in the name of another, without Authority from him. And secondly, If there be no Act of Court admitting him as a Proctor, though the party accused be Conqueror in the case, yet he cannot Re­cover Costs, because there is no Legal Adversary, against whom they can be Recovered.

6. According to the Statute-Law, Every Informer, if overthrown, shall pay charges. According to the Civil and Canon Law, none ought to be admitted as a Voluntary Promoter, till he hath given security to pay the Charges. If overthrown, The Party Accu­sed therefore shall before he answereth the Articles, demand this; if it be denied by the Judge, he may Appeal to the Superiour Court. It is also worth the [Page 160] persons Enquiry who is Accused, to be well advised whether the Promoter in the Ecclesiastical Courts, be not obliged to all those things, that an Informer in the Secular Courts is tied to, by the Statutes 31 Eliz. 5. 18. Eliz. 5. 21. Jac. 4. The Reason is, because those Statutes say, Informers Upon any Penal Statutes, and commonly Promoters in the Ecclesiastical Courts, say such and such things are done contrary to the Statutes of this Realm, as well as contrary to the Canons: now what things the Statutes, which also name Promoters, Require of such Informers and Promoters, the Statutes do declare.

7. VVhen the Party Accused hath a Copy of his Libel, let him demand time to answer; If the Judge denies him time (at least till the next Court-day) let him Appeal; Having due time granted, in the mean time let him duly consider the matter and form of his Libel. As to which let him amongst other things observe these that follow.

1. VVhether the matters he be Charged with, be­long to the Cognisance of the Ecclesiastical Court? If Lawyers tell him no, let that be his Answer, and let him hasten to bring his Prohibition, which Lies in all such Causes.

2. VVhether they have put into the Libel the Pro­motors Petition for Right and Justice to be done him: it is oft times left out. It is a Rule in their Law, Libellus est ipso Jure nullus, ubi nihil Petitur. If he finds that this is wanting, let his Answer only be That the Libel is in Law utterly void, and Insufficient, and desire to be dismissed: If the Judge refuseth to dismiss him, let him Appeal.

3. Let him also Observe, whether he be in the Articles laid to be one of the Diocess, or a Parishoner of such a Parish, for it be not laid, it can never be proved, and so the Promotor must fail in his Suit; for what is not laid, cannot be proved: Quicquid deponitur Extra Articulum, deponitur Extra Legem, is a Rule in their [Page 161] Law. If he be said to be a Parishioner of such a place, within such a diocess, let him not in his Answer Con­fess it but say, He cannot determine the Bounds of Diocesses and parishes, but for that he Referreth himself to the Law.

4. Let him also observe, if the things he be Char­ged to have done, or omitted, be within the com­pass of a year, and whether there hath been since no Act of Grace or Oblivion, which hath pardoned them; and whether they be not such things as he hath been punished for, or such things as the Statute-Law hath Limited the prose­cution of to a less time than a year: For if any of these things be, they may be given in answer to avoid ei­thor the whole, or any part of the Charge. If the Judge will not accept the Answer, the party may Sue out a Prohibition and stop them.

5. Let him also observe, whether he be charged cer­tainly or particularly, as to time and place, or only ge­nerally and incertainly; if he be charged only generally, as for the most part he is, in Church-VVardens Pre­sentments, not mentioning time and place; or incer­tainly with Or's, that he did not come to his Parish-Church, such and such months and daies, or was ab­sent in some one, or more, or most of them: Let his Answer be, that this Charge is void in Law, for the generality or incertainty of it. If the Judge will not Receive his Answer, let him Appeal; for the Law of England alloweth no such Charges, from which can be no Discharge, or where the Crime is not fixed to a certain time. But it may be, in this Case, a Prohibiti­on will be his best Remedy.

6. Let him observe, whether he be charged only upon Statute-Law, or upon Canons; if upon Canons, let him in his Answer modestly refer himself to Per­sons Learned in the Statute-Laws, whether any such Ca­nons were ever Enacted, Ratifyed, Allowed, or Confirm­ed by Parliament, or by the Established Laws of the Land, as they stood in the year 1639. and if not, whether they be not made void by the Statute 13. Car. 2.

[Page 162] 10. When he hath given his Answer, which must be subscribed by his own hand, it is usual for the Adverse Proctor to demand a time to prove his Ar­ticles, for which the Judge at his pleasure grant­eth two, three, four, or six Court-daies (usually but two) let him also at the same time move, that he may have liberty within that time also, to produce any Witnesses for his Defence; if it be denied, let him Appeal.

11. Let him observe, what time the Judge setteth his Adversary to produce his Witnesses in Court, and whom he names for Witnesses for him. Let him al­so desire a time to be set in Court for him to pro­duce his Witnesses, and be careful to bring them at the time, for they must all be sworn in the Court, then Examined privately by the Register. Unless the Ad­versary desireth a Commission to Examine Witnesses, (which is not often done, because it is much more Chargeable) is that Case, there are no Witnesses in the Court produced and Sworn, but before those Commissioners.

12. if the party Defendant will, he may deliver in to the Register Interrogatories, upon which the Register shall Cross-Examine his Adversaries VVitnesses. But he must be very wary as to this, for he shall not af­terward Except against any of his Adversaries Witnesses, whom he hath Cross-Examined, and made VVitnes­ses for himself.

13. Let him Advise his own Witnesses to be very careful that the Register setteth down what they say, in their own words, that under the pretence of putting them into a de­cent phrase, their whole sense be not altered.

14. VVhen the time Probatory, set at first by the Judge, is expired, let him desire of the Judge, Pub­lication. If the Judge will grant longer time to prove, let him desire the Advantage of the same time also, to bring more VVitnesses for himself, which he may, or may not, make use of as he pleases. If once [Page 163] the Term given for proof be Expired, let him desire Publication, & Liberty to take out a Copy of the depositions.

15. VVhen he hath got a Copy, let him diligently observe, if he can prove any thing contrary to what the VVitnesses, or any of them have sworn; if he can, let him at the next Court-day, offer a paper of general & Particular Exceptions, shewing the Particulars which he Excepteth against in their depositions severally, as well as his general Exceptions against them all. Let him desire a time to bring in witness, to prove his Exceptions. If the Judge refuseth to admit his Exception, or to give him due time to prove them, he may again Appeal.

16. VVhen once the Promoter hath Allowed to have Publication, he may again move for time, to Invalidate the proof of the Exceptions, but not to fortifie his first proof. If any Liberty of that Nature be desired, the defendant may Appeal; for unless in a case for the King after Publication, no new VVitnesses can be produced.

17. VVhen the party against whom the Promotion is, peruseth the deposition, let him strictly observe, whe­ther the particulars he is charged with be proved by two Witnesses; for it is a Rule in their Law, Vox unius est Vox Nullius, and if the Iudge will admit the thing proved by one Witness a Prohibition Lyes: for the Kings Judges, will not only see, that those Courts shall keep to matters truly belonging to their Juris­diction; but also that in the prosecution of them, they shall keep to the Received Rules of their own Law, in those main points of proof, &c.

18. It is an usual thing upon presentments by Church-VVardens, when the party presented calls for proof of the presentment, to tell them, That the Church War­dens presentment is a Conviction, they being sworn Officers. But this is contrary to the Law of England, which al­loweth no presentment by Officers ex Officio to be a Con­viction, If Grand Juries at Assizes and Sessions do pre­sent, this is no Conviction, but the persons must after this be Indicted, and proof made by VVitnesses. If [Page 164] therefore the Ecclesiastical Court Insists on this, the person may appeal; or (which it may be is better) he may have a prohibition from the Kings Court at Westmin­ster as some greater Lawyers think.

19. VVhen the time for proof is Expired, and Publi­cation made, and Exceptions given in and proved, and Publication of those proofs also made; either party may move for a time to be set to Conclude, and to give the Judge Information of the whole state and merit of the Case, and also to give Sentence in it.

20. At the day set, the Party Accused, or Promoted against, may Appear, and shew to the Judge the whole state of the Case, and plead it himself; or, if he will, by an Advocate, if any be at hand; or for ought I know, if there be none by Attorney, or Counse­lor at Common-Law; after which the Judge will ap­point upon desire a day to give sentence.

22. At that day the Party must have a form of an Absolutory Sentence, ready to tender to the Judge, if the Judge give Sentence against him he may appeal with­in 15 days, by virtue of the statute, 24. Hen. 8. 12.

22, All along the Prosecution, the person against whom the Prosecution is, shall do well after every Court, to get the Acts of the Courts in his Case, under the Re­gisters hand, and to keep them by him carefully. So much I thought fit to add here for the Readers In­struction, how to behave and Conduct himself when Troubled in those Courts, because 'tis a practice very little understood, by means whereof greedy Proctors, Solicitors and other ill men frequently make a prey of honest people therein concerned.

I shall now Recount the ways and means how to get off from the VVrit De Excommunicato Capiendo.—VVe told you before, no Bail would be accepted, nor will an Habeas Corpus avail you, (unless you have a mind only to change the Prison) nor does a Prohibition or Homine Replegiando Lie. But the several ways to help (according as the Case happens) are as followeth;

[Page 165] 1. If the Party Imprisoned hath brought a PROHIBI­TION, by which the Ecclesiastical Court hath been com­manded to proceed no further, and to absolve the Person, if Excommunicated, and the Judge hath disobeyed the Writ, and signified and procured the Party to be imprisoned, the person that is imprisoned at any time in Term, upon a Motion, shall have first an Attachment against the Judge, and then a Writ of Supersedeas to the Sheriff, to deliver the Prisoner to follow the Attachment, without any Submission to the Bishop at all, or any Caution. Such Writ may be found in the Register of Original writs, pag. 66. Nay if the Attachment be granted, and the Person be Imprisoned, or a Writ out, commanding him to be taken, and the Term be done before the Attachment can be served, the Regi­ster tell us, that he shall have the same VVrit during the Vacation out of Chancery: Nay, it is the Opini­on of men skilled in the Law, that he shall have such a Supersedeas, upon Affidavit made, that the proceed­ings are contrary to a Prohibition served upon the Judge, though no such Attachment be taken out.

2. If the Party imprisoned, or against whom the Writ is to take him, though he be not taken, hath appealed accord­ing to the Statute, 24 Hen. 8. 12. If he bringeth into the Court of Chancery an Authentick copy of his Appeal, he shall have a Writ of Supersedeas to stop the Sheriff from apprehending him, or to deliver him if he be apprehended, only this must be within a Year after his Appeal, that it may appear to the Court, he hath not deserted his Appeal; you may find forms of such a Supersedeas also in the Register of Original Writs; both these are found­ed upon excellent Reason. The Law of England will not suffer Ecclesiastical Judges, either to invade their Right, or to exalt themselves against their Authori­ty, nor yet suffer Inferiour Ecclesiastical Courts to in­vade the Right, Power, and Authority of Superiour Courts in their own Order.

3, If a Person be sued in the Ecclesiastical Courts for a [Page 166] matter not within their Jurisdiction, and they have caught him upon contempt, in not appearing or not obeying their Sentence: Upon a suggestion to the Kings Courts, if it appear to them, that the Original matter was not cognoscible in the Ecclesiastical Courts, they will su­persed the Proceedings, and order the imprisoned Person to be discharged.

4. If the imprisoned Person, or he against whom the Writ is out, though he be not taken, bring a Copy of the Bi­shops Significavit into the Courts at Westminster, and make it appear to the Judges there, that the cause of Excommunication is not therein expressed, together with the day when it was pronounced, if he be not said to be excommunicated Majori Excommunicatione; if it be not signed by the Bishop, or said to be done Authoritate nostra ordinaria: if the Party Excommunioa­ted be not expressed by name, the Court will deliver the person. Dr. Cozens mentions three of these cases, and the Reader also may find them in the Register of Writs. The first he saith he cannot find in the Re­gister, viz. That the Articles or matter of the Libel must be expressed, nor indeed do I find it there, but it is in several Reports. The reasons are, 1. Because the Law will not suffer men to be imprisoned for every light offence, (this Dr. Cozens gives. 2. Because the Kings Courts can recieve Significavits from none but the person to whom (if need be) they may write to discharge the Prisoner: Nor will the Court suffer a person to be Excommunicated, and lye in Prison for a Crime which the Ecclesiastical Court hath no judg­ment in; nor yet unless it appeareth to the Court, he hath stood Forty dayes excommunicated. Again here­tofore whole Cities and Communities have been ex­communicated, therefore the person must be ex­pressed by name, or he shall not lie there.

5. Let him procure the Copy of the Writ de Ex­communicato Capiendo and observe, first, if it be issued in Term-time. 2. If there were full twenty days betwixt [Page 167] the Test and Return. 3. If it be made Returnable the next Term. 4. If there be due Additions in it. 5. If before it was delivered to the Sheriff, it were Entered upon Record in the Kings-Bench, and made Returnable into that Court. All these things are Required by the statute 5 Eiz: 23; If any of these Errours be found, he shall upon motion in the Kings Bench be discharged, and the Writ will be declared Illegal.

Lastly, If he can be delivered by none of these ways, he may at any Sealing in the Chancery whether it be in Term, or out of Term, upon a petition to, or motion before the L. Chancellor have the VVrit, de Cau­tione Admittenda, granted him (in case he hath before offered the Bishop a Bond of 10. l: or 20 l. with Sure­ties stare & parere mandatis Ecclesiae in forma Juris) when he hath it, let him by some Attorney, or At­torneys Clerk send it, and tender a Bond and Suffi­cient Sureties with it to the Bishop, and demand the Discharge of the Prisoner; If it be not presently done, let him certifie so much, and at the next Seal move for a second Writ to the Bishop; or (which it may be is more adviseable) let him move for a se­cond Writ to the Sheriff, (the form of it is in the Re­gister.) In that the King commandeth the Sheriff to ad­monish the Bishop to accept the Caution, & to deliver the Prisoner, and further commands him, that in case he doth it not in his presence, the Sheriff should do it himself. If the Sheriff yields not Obedience; upon another Motion, he ought to have a Writ to the Co­roners, commanding to take security of the Sheriff to appear at Westminster such a day, to shew reason why he hath contemned the Kings Writ, and fur­ther it commandeth the Coroners to take the Caution of the Prisoner, and to deliver him. The Reader may find all this in the Register where are the Forms of all these Writs, and also in Dr. Cozens Apology, p. 1. C. 2. who being himself a Judge in the Ecclesiastical Courts, cannot be presumed to have told us any [Page 168] thing but what is Law, contrary to their own Inte­rest.

It is true, the Bishop upon taking such Cautionary Bonds, doth ordinarily Insist upon the persons paying the Prosecutors charges, but it is unreasona­ble, 1. Because he hath nothing to do but to Exe­cute the Command of the Writ, which speaks not a word of charges. 2. Because if the charges be le­gally due, the Promoter must have also a legal way to Recover them; if not, it is Extortion for the Ec­clesiastical Judge to Exact them. 3. Because it is no sufficient Return to the King's Writ, which mention­eth no such thing, to say, He could not discharge the Prisoner, because he would not pay the Promoter's Charge.

But because the Legal Charges are small, usually the Prisoner for his Liberty will pay the charges, which are as follow.

But note, the Charges are more or less, as the Cause went further or lesser way before the Excommuni­cation.

But if the Bishop will not take the Caution, and dis­charge you, you may have a second Writ directed to the High-Sheriff, commanding him to go to the Bi­shop, and require him to take the Caution, and to deliver the Prisoner, and requiring him to do it him­self, if the Bishop still refuse. And if the Sheriff do not do so, you may have a Writ to the same purpose di­rected to the Coroner to do it, as you may see in that Authentick Law-Book, The Register of Original Writs, fol. 66, and 67. So careful were our Forefathers for the Liberty of the Subjects Persons. And hereby it appears that the Bishop is bound by Law to take such Caution, that is, Fidejussory Caution, I mean by Bond and Sureties, and thereupon to absolve the person Excommunicated, though he will not take an Oath, stare mandatis Ecclesiae, To obey the commands of ho­ly Church. As for what shall be accounted such suffi­cient Caution, the practice is for the Party and two Friends (for there must be Two Sureties) to be bound in a Bond of 10 l. (seldom more, or at most 20 l.) to the Bishop, conditioned, that the Party shall obey the Commands of the Church, but such Bond when entred into is but a Formality; for they [Page 170] are never put in Suit, and indeed signifie nothing.

Thus have we given our honest Countrey-men some few Directions how to act in this difficult and trouble­som Affair, being a Mystery unknown to many com­mon practisers of the Law.

Note also, That by the Statute of Car. 1. Ca. 11. For taking away the high Commission Court, there is the following Clause.

‘And be it also Enacted by the Authority aforesaid that no Archbishop, Bishop, nor Viccar general nor any Chancellor Official nor Commissary of any Archbishop Bishop, or Viccar general, nor any Or­dinary whatsoever nor any other Spiritual or Eccle­siastical Judge, Officer or Minister of Justice, &c. shall Ex officio, or at the Instance, or promotion of any other person whatsoever urge, enforce, tender, give, or minister unto any Church Warden Sideman, or other person whatsoever any Corporal Oath, whereby, he or she shall or may be charged or obliged to make any presentment of any Crime or offence, or to confess or to accuse himself or herself of any Crime, offence, delinquency, or misdemeanor, or any Neglect, matter or thing, whereby or by reason whereof he or she shall or may be liable, or exposed to any censure, pain, penalty, or punishment whatsoever, upon pain and penalty that every person who shall offend contrary to this Statute shall forfeit and pay Treble damages to every person thereby greived and the sum of 100 l. to him or them who shall first demand and sue for the same.’

And tho by the Statute 13 Car. 2. Ca. 12. part of this Statute is abrogated, yet this Clause is Excepted, and confirmed by an express Proviso of the said last Act. And there are many precedents since His Maje­sties Restauration, where Church Wardens being prosecuted in the Spir. Court for not Swearing to the Bishops Book of Articles of Inquiry, have moved the Kings-Bench or common Pleas, and obtained a [Page 171] prohibition to stop such proceedings, as particularly in the Case of one Waters of Chichester in the Common Pleas.

AND now coming to speak of the Laws upon which Protestant Dissenters are commonly prosecuted or threatned to be prosecuted, I must for the Rea­der's better understanding, distinguish them; for the truth is, They are of two different Natures and kinds.

1. Some Statutes which were wholly designed a­gainst Papists, and ought only to be Exerted against them, which yet some now would wrest and distort, and make them Serve as Rods wherewith to lash dis­senting Protestants for not coming to Church, Re­ceiving the Sacrament, &c.

2. The Laws that were indeed made against Pu­ritan Sectaries (as they call them) or dissenting Pro­testants.

I shall first breifly sum up all the first Sort, how many and what they are, and show you the Reasons why they ought not to be turned upon such dissenters: The Statutes I mean are in number Five, viz. The 1. Elizabeth, Ca. 2. The 23. Elizabeth Ca. 1. The 29. Elizabeth Ca. 6. The 1. Jac. Ca. 4. and 3 Jac. Ca. 4. which we shall handle in order.

1. The Act of the 1. Eliz. Cap. 2. Was made Im­mediately after that Queens coming to the Crown, when she found nothing but Papists and Protestants in General. For the word Puritan in those days was not known, (much less our modern Terms of Re­proach, Whig, Sectary, or Fanatick) and she being a good Protestant (having been Educated therein) and resolved to support that Religion, casting about with her wise Council how to do it, That the Indif­ferent and moderate sort of Papists might not be too much disgusted or alienated from the Protestant Re­ligion, but be rather invited to close therewith, It was therefore on mature deliberation Concluded to [Page 172] go on gently as to the Reformation, and not to throw off all the Ceremonies at once: And therefore having a pattern of Protestant discipline made in King Edward the 6. time she follows the same steps as near as could be in the beginning, and builds on the same Foundation which her pious Brother and his wise and honest Council had laid. Therefore the first Act she passed, was to take off the Jurisdiction of the See of Rome (which had been Re-introduc'd by her Sister Mary of unhappy Memory) and to take off all Coercive power whatsoever from Ecclesiastical Persons, and all was annext to the Imperial Crown of England. This Act was Intituled, An Act to Restore to the Crown the antient Jurisdiction, &c. 1. Eliz. Ca. 1. And hereby all the Laws made in the time of Queen Mary for settling the Popes Authority in England were Repealed. And also [Section the 18th] power is given to the Queen to grant Commissions under the Broad Seal of England to such [Bishops or Laymen, no matter which] as she should appoint to hold Ecclesia­stical Courts, and none might do it without, upon pain of a Praemunire, and also the Oath of Supremacy is formed and hereby Injoined.

The very next Act is That which we have now un­der Consideration Intituled An Act of Ʋniformity, and Common Prayer, and Service in the Church, and Administra­tion of the Sacrament, Which amongst other things Inflicts the penalty of 12d. for not coming to Church every Sunday and Holy-day.

Now that this Act was intended against Papists may be concluded as well because, the whole Act runs for the beating down of the Fopperies and su­perstitions of the Church of Rome, and how could it aim at any sort of Protestants, since at that time of day there were none but Papists and Churchmen in England.

This Twelvepence is not forfeited till Conviction, which must be by a Jury; to which purpose, the Ju­stices [Page 173] of Oyer and Terminer, and of Assize, and Mayors and Head-Officers of Corporations are Authorized To inquire, hear and determine the same,—But the party must be Indicted the nextSessions or Assizes after the Offence or not at all. So that they can up­on this Act Prosecute at once for no more defaults than there are Sundaies & Holy-days between one Sessions or Assizes and another, And when the party is so Convicted the said Courts are to make out process for Levying the Twelve pences, which shall be Levied by the Church-Wardens for the use of the poor.

However there being 52 Sundaies and 29 Holy-daies (appointed by our Liturgy to be observed) in the year, the Constant charge by this statute for not coming to Church would be but 4l. 1s. p. An. [And yet by the way, Note, That We have more Holy-daies or Feasts to be observed since his Majesties Restaura­tion than ever the Church of England owned before. For there were antiently but 27. But upon the Re­view of the Book of Common prayer, my Lords the Bishops were pleased to add 2 New ones viz. The Conversion of St. Paul and St. Barnabas, and whereas, in our old Common-prayer-Books, 'tis said The Feast of St. Michael the Arch-Angel, in our present Books, 'tis St. Michael and all Angels, Which seems an Affront to S. Michael at once to leave out his Title of Arch-Angel, and at the same time bring in all other Angels (as well of the lower as Higher Hierarchies) to share with him in a Festival, the Honour of which he had en­joyed so long, solely and Intire to himself—but this by the by] So that upon the whole matter, If any body should be busy to Execute this Act upon the Protestant dissenters from the Established Church of England, yet considering the trouble of such a Conviction, and the difficulty of proving a Nega­tive viz. that a man was not at Church, for note the words are,—shall repair to his own Parish Church, or [Page 174] to some usual place where Common Prayer shall be used, So that if he were at Mr. Read's Meeting-House, I Con­ceive he were safe from this Act. All this I say Consi­dered the Labour would be more than the trouble—therefore let's proceed.

2. The second Act of this kind, is 23 Eliz. Cap. 1. Intituled An Act to Retain the Queens Majesties Subjects in their due Obedience. ‘And by this, to Reconcile any or for any to be Reconciled to the See of Rome, To with-draw or be with-drawn from the Establisht Religi­on, to the Romish Religion; Is made High-Trea­son; And that every one saying Mass shall forfeit 200 Marks and every one that hears it 100 Marks, And every one above 16. years old not repairing to some Church or Chappel, but forbearing the same contrary to the said Stat. 1. Eliz. C. 2. shall being lawfully Convicted forfeit 20 l. for every month, And the Justices at the Quarter Sessions are Im­powered to Inquire into the Offences against this Act, Except Treason, And if any Indicted here­upon (Except for Treason) will submit in open Court and conform before Judgment given, he shall be discharged.’

Now that this Statute was expressly and wholly made against the Papists is evident by the whole Scope thereof, as punishing saying of Mass, & drawing the Queens Subjects to Popery, &c. More especially by its preamble (which alwaies opens and declares the Scope of a Law) whereas since the Statutes made in the 13. year of the Reign of the Queen our Sove­raign Lady, Intituled, An Act against the bringing in, and putting in Execution of Bulls, Writings & Instruments, and other Superstitious things from the See of Rome, divers ill affected Persons have practised by other means than by Bulls or Instruments. Written or Printed to with-draw Her Majesties Subjects to obey the said usurped Authority of Rome, and IN RESPECT OF THE SAME [pray mark] to perswade great [Page 175] numbers to with-draw their due Obedience from Her Majesties Laws establisht for the due service of Almighty God—For Reformation WHERE­OF, be it Enacted, viz. That to with-draw to the Church of Rome shall be Treason; and not coming to Church shall forfeit 20 l. p. month—Nothing can be more plain than that this Levelled wholly a­gainst the Papists, and cannot at all affect dissenting Protestants.

3. The Statute of 29. Eliz. Cap. 6. Is only a Rein­forcement of the last Act, and therefore must be on­ly intended of the same Persons, viz. Popish Recu­sants [For as yet there were no other] whose Penal­ties this Statute Encreases for not coming to Church: For where is by the former Statute of 23d it was to be only 20 l. p. month and bound to the good Behaviour after Conviction; This gives to the Queen & Her Heirs, a Right to 20 l. p. month for every month after such Conviction till they came to Church: And if de­fault be made of payment of the 20 l. a month, then to seize all their Goods, and 2 parts of their Real E­state [...] But this is still concerning Popish Re­cusants, for it respects the same that were Offenders a­gainst the Statute of the 23. And they were only Papists: Therefore 'tis absurd and unjust to turn the Edge on't upon Protestants.

4. We come now to the Statute of 1. Jac. Ca. 4. which confirms all the former Statutes made against Popish Recusants in the Queens time, But provides for their being discharged, tho Convicted, upon their com­ing to Church.

And that it means and intends none but Jesuits and Popish Priests and other Popish Recusants ap­pears manifestly, not only in the Title but in the first Section of the Act it self, and so throughout: The Title, is, An Act for the due Execution of the Statutes a­gainst Jesuites, Seminary Priests, Recusants, [the 2 former words, including the Romish Clergy, the latter the [Page 176] Laiety] &c. and begins thus—For the better and more due Execution of the Statutes heretofore made [Against whom?] as well against Jesuites, Seminary Priests, and other SUCH-LIKE Priests [That is, other Popish Priests tho not bred up in the Serminaries] as also against all manner of Recusants [That is Papists tho not in Orders] Be it Enacted, &c. That all & every the Statutes heretofore made against Jesuites, seminary Priests and other Priests, Dea­cons, and Religions and Ecclesiastical Persons whatsoever made, ordained or professed, or to be made by any Authority or Jurisdiction derived, Challenged, or pretended from the See of Rome, together with all those made against any manner of Recusants [That is Papists still, but Lay men not in Or­ders nor professed of any Order of Monks or Friars as those before mentioned were] shall be put in due and Exact Execution.—Nothing can be more absurd than to rack & force this Law so far besides its Scope, as to make use of it against Protestants agree­ing with the Church of England in all the Doctrines and only differing in a few Indifferent Ceremonies, When it most manifestly appears intended only against Jesuits, Romish Priests, and other Papists.

5. And now was discovered the Hellish Powder-Plot of the Papists which occasioned the making of the Statute 3 Jac. Ca. 4. Intituled, An Act for disco­vering and Repressing Popish Recusants. So that both the occasion and the very Title, shews evidently against whom this Act is designed, which also appears fur­ther in the preamble; the whole purport of this Act all along being only to Reinforce the rest of the Acts against Popish Recusants, and for that as thereby appears, some of them did come to Church and heard divine Service, to save the Penalties in the former Acts, and yet continued Papists still in their hearts, Therefore by this Act they were all to take the Sacrament once a year, And if they refused they should forfeit 20 l. the 1st year, for the 2d year 40 l. & for every year afterwards 60l. untill he or she have received the said Sacrament.

[Page 177] And by the 4th Section, the Church Wardens and Constables are to present the monthly absence of all POPISH Recusants,—but they are not bound by this Act to present any but Papists. For from this Act we may observe, that none can be Prose­cuted upon this Act or any of the other which it refers to (which are all those here before rehearsed) unless they be POPISH Recusants, for so are the express words of the Act. And without doubt should any bu­sy Officer whatsoever Present ot prosecute any person thereupon other than a Popish Recusant, the person so presented may Joyn Issue, that he is no such person as these Acts intend, being not a Papist.

So that upon the whole matter, we may conclude, It is an abuse, and utterly Illegall, to Prosecute Prote­stants on such Laws as were made solely and wholly against Papists, as will further appear in our next Ob­servation; and we have heard some Judges have decla­red so much.

However I shall here add the Judgment of the House of Commons in the Case, for tho I know and own a vote of either or both Houses cannot Repeal a Law, nor alter its sense, yet certainly the House consisting of so many wise discreet persons, & a great number of them Excellently Learned in the Laws, they are as like to Interpret a doubtful Law, and hit upon the true Inter­pretation how far and to what it does extend, as two or three little swaggering Justices, or any single Judge: At least were I an Officer, I should rather incline to credit their opinion, & not run an hazard by employ­ing the Toils made for restraining the Wolves and the Foxes, to intangle & destroy the Innocent sheep, meerly because they do not all exactly tread in the very same steps and bite punctually all of one Sort of Grass.

And now having discharged these unlawful wea­pons, let's see what Legal Arms there are or have been really formed against the Sectaries. And the first was the very sword of Goliah, there was none like it.

1. I mean the Act of 35 Eliz. Ca. 1. (which some would make us believe has had as many Lives as a Cat) intituled An Act to Retain the Queen's Majesties Subjects in their due Obedience. This was the first Law that was made since the Reformation, against those we commonly called Sectaries, Conventiclers, or Pro­testant Dissenters; and this Act indeed, beyond all dispute, was made against them, and them only; for the Popish Recusants are expresly Excepted out of it, as appears by the Act: And that the Reader may better judge of the true difference between this Act, and those others before recited, made against Popish Recusants, by the style and expressions. I shall here insert the first Paragraph, and give you the sub­stance of the rest of it.

‘For the preventing and avoiding of such great In­conveniencies and Perils as might happen and grow by the wicked and dangerous practices of seditious Sectaries, and disloyal Persons; Be it Enacted by the Queen's most Excellent Majesty, and by the Lords Spiritual and Temporal, and the Commons in this present Parliament Assembled; and by the Authority of the same, That if any person or per­sons, above the Age of sixteen years, which shall obstinately Refuse to Repair to some Church, Chap­pel, or usual place of Common-Prayer, to hear Di­vine Service, Established by Her Majesties Laws and Statutes in that behalf made, and shall forbear to do the same by the space of one month next after,’ without any lawful cause, shall at any time after ‘[Page 179] forty daies next, after the End of this Session of Parliament, by Printing, Writing, or Express Words or Speeches, advisedly, or purposely practise, or go a­bout to make or persuade any of Her Majesties Sub­jects, or any other within her Highness's Realms or Dominions, to deny, withstand, and impugn Her Ma­jesties Power and Authority, in cases Ecclesiastical, United and Annexed to the Imperial Crown of this Realm; or to that end or purpose shall advisedly or maliciously move, or persuade any other person whatsoever, to forbear, or abstain from coming to Church, to hear Divine Service, or to Receive the Communion, according to Her Majesties Laws and Statutes aforesaid, or to come to, or be present at any unlawful Assemblies, Conventicles or Meetings, under colour or pretence of any Exercise of Re­ligion, contrary to Her Majesties Laws and Sta­tutes; or if any person or persons which shall ob­stinately Refuse to Repair to some Church, by the space of one month, to hear Divine Service, as is aforesaid, shall after the said forty daies, either of him or themselves, or by the Motion, Persuasion, Inticement or Allurement of any other, willingly Joyn in, or be present at any such Assemblies, Con­venticles, or Meeting under colour or pretence of any such Exercise of Religion, contrary to the Laws and Statutes of this Realm as is aforesaid; That then every such person so offending, as aforesaid, and being thereof lawfully convicted, shall be Com­mitted to Prison, and there to Remain, without Bail or Mainprise, until they shall Conform, and yield them­selves to come to some Church, Chapel, or usual place of Common-Prayer, and hear Divine Service, &c.’

Then the Act goes on, and provides, That if the person do not Conform within three months after Conviction, he should Abjure, that is, be Banisht, and swear never to come back without leave; And if he will not swear so, then the same to be Felony, without Benefit of Clergy.

[Page 180] From which Act these 3 things are observable.

1. That the same was wholly intended against the Puritanes or Sectaries, for the Papists are expresly ex­empted by a particular clause, Sect. 12. in these words, 'Provided that No Popish Recusant, or Feme ‘Covert shall be compelled or bound to abjure by vertue of this Act.’

2. That Q. Eliz. and her wise Parliament did not intend or take such Protestant Recusants to be within the meaning of, or punishable by the other before mentioned Statutes against popish Recusants: For if they had so understood, they might have punished them sufficiently on those old Laws without giving themselves the trouble of making this new Law against them Frustra fit per plura quod fieri potest per pauciora. God and the Law do nothing in vain.

3. If it be objected, That all those Laws as well as this ought to be construed to one and the same end & scope, and that all the before mentioned Acts of Qu. Elizabeth, and K. James are equally to be applied to all Dissenters from the Establisht Church of England: I answer that cannot be; for since in this Act no Pa­pists are concerned, being particularly exempted as aforesaid: Then it necessary follows, if the Popish Recusants shall not be punished by this Act made a­gainst Sectaries and seditious Conventiclers, that then the Sectaries and Conventiclers, Protestant Dissenters, that is, Protestant Recusants (for that 'tis they aim at, to colour the laying the other Acts upon them) shall not be prosecuted upon those Laws made only against Popish Recusants; for if they should, then you leave the Protestant Recusants in a far worse condition than the Papists, the one being provided and not the other.

But still note, that all that I have said about this Act of the 35. of Eliz. comparing it with the others made against Popish Recusants, is only to shew the nature of the one and the other: For the truth is, this Act of the 35th of Eliz. is not now in force,—As appears thus:

[Page 181] 1. The very words thereof shew it to have been originally but a temporary Act, for the last words of it are these,—This Act to continue no longer than to the end of the next Session of Parliament.

2. By several Acts it was continued till the 1st year of K. James, and then it was enacted, that the same should be continued, and remain in Force un­till the end of the first Session of the next Parlia­ment.

3. The second and next Session of Parliament be­gan and holden by Prorogation the 5th of Nov. in the 3d year of K. James, and ended the 27th of May next, and was then prorogued to the 18th, of Nov. 1606. In which Session there was no continuance of this Sta­tute of the 35th of Eliz. so that there it expired, ab­solutely ceased, and was of no more force than if it had never been, and so continued for many years bu­ried in Oblivion.

4. In a Parliament held the 21. of K. James, ca. 28. It is (amongst other things) enacted, 'That this ‘Sta­tute of the 35. of El [...]z. shall be adjudged ever since the Session in the Seventh Year of His Majesties Reign of Eng­land, to have been of such force and effect, as the same were the last day of that Session, and from thenceforth to the end of the first Session of the next Parliament.—’ But the truth is, that the said Statute of the 35th of Eliz. was in no force, nor of any effect at the last day of the Ses­sion in the 7th year of K. James, being expired and gone long before, viz in the 3. year of that King as aforesaid. And being so down then this Stat. of the 21. Jacobi can no way set it up again; for this only sets up what was in force in that Session of the 7th of K. James, and no otherwise.

5. So likewise in the 3. Caroli primi, cap. 4. this Act (amongst others) is mentioned; but how?—That it shall continue to the end of the first Session of the next Parliament, in such force and effect as it was the first year of Charles the first,—when indeed it was then in no force at all.

[Page 182] 6. In the 16th Caroli secundi, cap. 4. an Act was made, Intituled, An Act to prevent and suppress seditious Conventicles. Which begins thus: ‘Whereas an Act made in the 35th year of the Reign of our late Sove­raign Lady Queen Eliz. Intituled, An Act to retain the Queens Majesties Subjects in their due Obedience, hath not been put in Execution, by reason of some doubt of late made, whether the said Act be still in force, although it be very clear and evident: And it is here­by declared, that the said Act is still in force, and ought to be put in Execution: For providing there­fore of further and more speedy Remedies, &c. Be it enacted, &c.’ And the last clause of this Statute of the 16 Car. 2di. runs thus: ‘Provided that this Act continue in force for 3 years after the end of this present Session of Parliament, and from thence to the end of the next Session of Parliament, after the said 3 years, and no longer.’

Now how far these words—It is hereby declared that it is in force, and ought to be put in execution; without saying, it is hereby enacted, that it shall be in force, might operate to give some Life and strength to the aforesaid expired Statute of the 35th of Eliz. I shall not determine: But suppose it were thereby set on foot again, this last Statute is but one intire Statute, and that part which declares or inables the Statute of the 35th of Eliz. to be in force, is joined and an­nexed to the rest, and is altogether but one Law, and hath its period at the time before prefixed, and then that declarative part must die with the rest.

Now that Session wherein this Statute of 16 Car. 2. was made, ended the 16th and 17th of Car. 2. Then the three Years, for which it was to continue com­menc'd, and ended the 20th Car. 2d. but after the three years it was to continue till the next Session of Parliament, which next Session, after the three years, began 10. October, 1667. and by Adjournments was continued to the 24th of October, 1670, being the 22d [Page 183] of Car. 2d. and then was the end of that, and with it this Conventicle Act expired, so that now there is no pretence of the 35th of Elizabeth's being in force; for the declarative part in this Conventicle Act can­not enforce or give Life to any thing longer than it lives itself: For if the Declaring part of this Act, after it self is extinguisht, can be read, urg'd or construed as a Law to enforce and enliven another Statute, which hath no being of a Law in it self, then it would necessarily follow, that an expired Law is as Authentick as a Law in being, which is absurd.

From what hath been said, it appears, That as Prote­stant Dissenters ought not to be prosecuted on the Laws made against Popish Recusants; so likewise 'tis very evident, That both the Statute of the 35th of Eliz. and also that of the 16th of Car. secundi, are Ex­pired, and of no force. And indeed 'tis happy for the Nation that they are so; for had these two Acts been still in force, being of a cruel sanguinary nature, much mischief might have accrewed to the people of this Kingdom.

So that there are now no Laws in being to punish the Conventiclers, and the Nonconformist Ministers, who did not Conform to the Act of Uniformity made in this King's Reign; but the Act commonly called the 5 Mile or Oxford Act: And the Conventicle Act made the 22th of this King.

These we shall severally consider.