XXXIII. upon any statute for using any unlawful games, or for not CHAP. using any lawful game; for not having bows and arrows according to law; or for using any art or mystery, in ELIZAB. which the party has not been brought up, according to stat. 5 El. c. 4. All these are to be sued in the general quarter-sessions, or assizes where the offence was committed, or in the leet, and not in anywise out of the county. (See stat. 21 Ja. 1. c. 4.) The statutes of jeofail, before alluded to, contributed Of jeofails. very much to expedite the pursuit of judicial redress. The first of them, stat. 18 El. c. 14., enacts, if any verdict of twelve men or more shall be given in any action, suit, bill, or demand, in a court of record, the judgment thereupon shall not be stayed or reversed by reason of any default in form, or lack of form touching false Latin, or variance from the register, or other defaults in form; in a writ original or judicial, count, declaration, plaint, bill, suit, or demand; or for want of an original or judicial writ; or by reason of any imperfect or insufficient return of a sheriff, or other officer; or for want of a warrant of attorney; or by reason of any manner of default in process, upon or after aid prier or voucher. This act, however, is not to extend to any appeal, indictment, or presentment of felony, or treason, or other matter; nor process thereupon; nor to a suit upon a popular or penal statute. This statute was intended to take away all trifling impediments to the effect of a suit, after the merits had been decided upon by verdict. The stat. 27 El. c. 5. had the like design, when the merits had been considered in another way, namely, upon demurrer; it enacts, that after demurrer joined and entered in any action or suit in any court of the record within the realm, the judges shall proceed, and give judgment, as the very right of the cause and matter in law shall appear, without regarding any imperfection, defect, or want of form, in any writ, return, plaint, declaration, or other pleading, process, or course of proceeding what CHAP. soever, except those only which the party demurring shall XXXIII. specially and particularly set down and express, together ELIZAB. with his demurrer; nor shall judgment be reversed by error for any of the above causes not so set down and expressed; all which the court may, from time to time, amend. This act, as well as the former, is not to extend to criminal prosecutions, and acting upon popular and penal statutes. After this act there grew a distinction between demurrers, which were some general, and some special; and many questions arose both from this and the former, what was form and what substance. So that, though particular cases were helped by virtue of these acts, yet the debate upon points of pleading was, perhaps, increased rather than diminished; only much of this debate appeared in a new shape, and the matter was considered with different view and design. For avoiding the number of small and trifling suits commenced in the courts of Westminster, which, by the due course of the law, ought to be determined in inferior courts, it was enacted by stat. 43 El. c. 6. that if any sheriff, undersheriff, or other person having authority, or assuming it, to break writs, shall make a warrant, as upon some process, not having such process; then, upon complaint to the justices of assise, or the judges of the court whence the process issued, not only the person making the warrant, but all procurers thereof, shall be sent for, by attachment or otherwise, and examined upon their oaths; and if it is proved by sufficient witnesses, or confession, they are to be sent to the gaol of the county, or court where it is examined, until they have paid to the party grieved 10%., with costs and damages, to be ascertained by the court which heard the matter; besides which, every offender is to forfeit 201. to the king. Another clause of this act ordains, that if upon any personal action commenced in the courts at Westminster, not being for any title or interest of lands, nor concerning the freehold or inheritance of any lands, XXXIII. ELIZAB. nor for a battery, it appears to the judges of the court, and CHA P. shall be so signified by the justices before whom the same is tried, that the debt or damages shall not amount to 40s. or more; then there shall not be awarded more costs than damages, but less, at the discretion of the court. (Extended to counties palatine, by 11 & 12 Will. 3. c.9.) XXXIV. Criminal law. CHAPTER XXXIV. ELIZABETH. Criminal Law.- Offences against Religion and the State.- Stat. 13 El. of Treason. -Jesuits and Seminary Priests.— Sectaries. The Five-mile Act. Common Offences. - Cutpurses and Pickpurses deprived of Clergy.- Purgation of Clerks abolished. Housebreakers deprived of Clergy. Offences against the Coin. Gypsies.—Witchcraft.-Wandering Mariners and Soldiers.-Perjury. - Forgery. Punishment of the Father of a Bastard Child. Of Hue and Cry. CHAP. IN reviewing the penal laws of this reign, we find the greater and more striking part of them to be such as were ELIZAB. the consequences of the late change in religion. A new description of delinquents originated from thence, who occasioned great alarm in the government, and were thought to demand the severe restrictions imposed by many laws, which, at this time, appear oppressive and sanguinary. However, the temper and designs of these nonconformists were such, that not only religion, but the safety of the state, was interested in the suppression of them: upon that idea we may account for the apparent want of moderation in some of these statutes. The subject of the queen's dignity and authority went hand in hand with that of religion; and so much was the protection of the one considered as conducive to the safety of the other, that a statute, 35 El. c. 1., which contains penalties against persons not attending divine service; is intituled an "Act to retain the queen's majesty's subjects in their due obedience." It seems then the most natural method of illustrating this part of our criminal law, to take together the statutes relating to the royal state, and to religion; and so trace the progress of these alterations in the order in which they happened. XXXIV. ELIZAB Offences against re ligion and the state. By stat. 1 El. c. 1. any persons defending the power or CHAP. jurisdiction, spiritual or ecclesiastical, of any foreign prince, prelate, person, state, or potentate, within this realm, who do advisedly any thing for the maintenance or defence of it, they, their aiders and abettors, shall forfeit all their goods and chattels, real and personal; and if such offender has not goods and chattels to the value of 20l., he is to be imprisoned for a year, and all his ecclesiastical preferments are to be utterly void. For the second offence, it is made a præmunire, and the third, high treason. Prosecutions, if for words only, to be within half a year, sect. 31. And stat. 1 & 2 Ph. & Ma. c. 8. sect. 40. is confirmed as to all cases thereby made præmunire, sect. 32. It is moreover ordained, that no person shall be indicted or arraigned for any offence under that act, unless there are two sufficient witnesses, or more, to testify and declare the said offences, sect. 37., a provision which we more than once find annexed to penal statutes in this reign. These are the penalties inflicted by this famous act, in addition to what we had before noticed concerning the oath of supremacy. The next is the act of uniformity, which stands also next in the statute book: this comprises the same forfeitures and regulations as were before enacted in the two acts of uniformity, 2 & 3 Ed. 6. c.1. and 5 & 6 Ed. 6. c. 1., in the reign of Edward the Sixth, respecting the use of the common prayer, the speaking in derogation of it, and not resorting to church. The Common Prayer had undergone some few alterations; therefore, it was necessary to re-enact this amended work, with all the protections and security which the former enjoyed. This was done in the very words of the two former acts, with the single alteration of the penalties and forfeitures being increased, sometimes more than double. Parsons and vicars, or ministers, not using, or speaking contemptuously of the Common Prayer, are, for the first offence, to lose the profit of all their spiritual promotions for a year, and to be imprisoned for six months; and, for the second offence, for a whole year, and to be |
