THE Only Legal Answer WHICH CONSTABLES AND CHURCH-WARDENS MAY GIVE TO ARTICLES enquiring into any of His MAJESTIES Ecclesiastical or Civil COURTS; OR TO ANY JUSTICES upon the Statutes 1 Eliz. 2. and 3 Jac. 4. Concerning the absence of persons from their PARISH-CHURCH. IN A LETTER to a private Friend, enquiring on the behalf of his Friend, the sense and import of those Statutes in this case; and whether Officers can be required by a particular Oath, to give in Answers to such Articles, and how often.  
LONDON: Printed in the Year, 1680.   

The only Legal Answer which Constables and Church-Wardens may give to Articles enquiring in any of his Majesties Ecclesiastical or Civil Courts, &c.  
SIR,  
I Have received yours, with your request in it on the behalf of your Friend, who you say is made Constable, and required to present offenders upon Fourteen Articles, first sent to the Constables, but to do it upon Oath, yea, and to do it not only before each general Quarter Sessions and Assizes, which is Six times each year; but every month, upon some Justices meeting, so often near you, or within the Division. One of which Articles, you say is, Whether he knows of any that for the three precedent Sundays came not to their Parish Church to hear Divine Service; and that if their presentment do not please them, they will not take them; and if any be presented, they ordinarily issue out their Warrants by distress of goods, to levy 12 d. for every days absence; which if they cannot get, they presently sand the persons to Gaol. You say the Constables are required to give in their presentments upon a particular Oath then given( not only by virtue of their general Oath given them at their entrance into the Office). You desire my advice in the case. Sir, you know I am for going to Divine Service, I hope you are so too; so as you are only concerned for your Friend.  
I very much suspect that the Justices, who are so active, are little skilled in the Law; I will assure you we have no such doings on this side of the Thames: Possibly it is our advantage to be so near the Inns of Court, and Chancery, and so near Westminster Hall, where now it is so easy to get a Writ of Habeas Corpus, and persons can go up in a Boat for Three or four Shillings, whereas you are so much within Land, that men are scared at three or four Pound charge to bring up themselves to the Kings Bench: It will be therefore a little charitable to relieve you; but when I have said all I can, Justices may sand men to Gaol if they will, right or wrong, if they have not courage enough to try the legality of such imprisonment before the wiser Judges of the Land, which the Law gives any one leave to do; but we say in our Law, Lex non est posita dormientibus said vigilantibus. But to your business; I am so far from being able to tell you, that Justices of Peace may require you upon a new Oath to present upon Articles, that I cannot tell upon what Law those Articles are founded, or any presenting upon Articles required: I know no Statute-Law for it. Our Common Law is the ancient Custom and usage of the Nation; now I cannot find that there is any usage of such thing, that can prescribe to Fifty years. About Eight or Nine years before the Civil Wars, I remember some such thing, but not before that time( which makes no custom); then it was discontinued Twenty years: This is all the Antiquity I can find for Articles. But for Answers to Articles to be given in to Justices upon an Oath given them at the time of their giving in such Answers, it is more than I know if there be any Statute or Common Law for it; if I mistake not, it is a perfect Innovation; and methinks discreet Justices should be wary how they give oaths in cases not warranted by Law, it being a business of more than ordinary danger, which I should hardly venture upon, or commit any person that should refuse so to charge himself.  
We have Statute-oaths enough, and need not to multiply them. I fear that the violation of our legal Oaths lies as no mean guilt upon us; and upon that account, if there were no civil liberty concerned in it, I should be well assured that a person had authority to give me an oath in the ease before I should take it.  
I do very well know that we have many Statutes that are inquirable of by Justices, some only at the Assizes or Sessions, some out of Sessions; but in order to the trial of offenders there, or at the Assizes; Somewhere they may take Examinations upon Oath, as in cases of Treason or Feleny; but as to this business of not coming to hear Divine Service, I do not know that any Stature directs Justices of Peace out of Sessions to examine any upon Oath, much less to command Ossicers under an Oath to answer to any Articles of that nature; nor that the Law requires Officers upon Oath to present any person, either at Assizes, or Sessions, for not coming to their Parish-Church to hear Divine Service, more than to present any whom within twenty days before they have heard profanely swear and curse contrary to the Stat. 21 Jac. 20. or such as profane the Sabbath day, contrary to the Stat. 3 Car. 1. or the late Act of the same nature; or such as keep Ale houses without licence, contrary to the Stat. 3 Car. 3. Or such as are drunk contrary to the Stat 4 Jac. 5.21 Jac. 7. Or staying longer in an Ale house than the Statute alloweth, 4 Jac. 5. Offences against any Statute-Laws as to Morality, are inquirable into by Justices of the Peace in their Sessions, and Officers may there present persons guilty of any violation of them; but that they are more obliged by the Law to present offences of this nature, than other, is more than I know; and therefore the Articles( if it shall please Justices to give out any to inform Officers) should comprehend all such crimes, and not some only, for that is ready to beget an error in Officers, That they are bound to present upon no other Statutes, or that the Court can inquire of no other; which is a great error. There is as much law to present and indite any for profane swearing and cursing, for violating the Sabbath, for being drunk, or sitting at an Alehouse tippling, as for not coming to Church; and I do not know that any Officer can be under an obligation to present one more than another.  
Nay, perhaps if we look into the Laws in this case, we shall find them more concerned; there are three Statutes about coming to Church, that 1 Eliz. 23 Eliz. and 3 Jac. the two latter are but Commentaries on the former, or appendices to it. The Stat. 1 Eliz. mentions no Constables; nay in the levy of the fine, makes it the work of Churchwardens, not Constables. But divers of the other Statutes expressly charge the Constables with levying the penalties. So that under savour, I understand not by what law any Justices command Constables to levy any fines upon that Statute, when the Statute expressly saith it shall be levied by the Churchwardens of the Parish. This is enough, Sir, as to requiring Constables to present upon Oath, that is a new Oath repeated so often as they do present; nay to present at all, offenders upon that Statute more than upon all other Statutes of which those Courts may take cognizance.  
But, Sir, I very much doubt, whether Justices can by enquiry proceed upon the Statute of 1 Eliz. out of Sessions; the Stat. 1 Eliz. plainly limiteth the Enquiry to Justices of Oyer and Detirminer, and Justices of Assize. So that by that Statute, Justices of the Peace only cannot meddle in the execution of it; but after this cometh the Stat. 23 Eliz. and giveth Justices of the Peace a power to inquire upon this Statute, but saith nothing of determining. After this comes the Stat. 3 Jac. 4. that provides,  
That if any subject of this Realm at any time within one month after the end of this present Session of Parliament, shall not resort to repair to some Church or chapel, or some other usual place appointed for Common-Prayer, and there hear Divine Service according to the Statute made in that behalf in the first year of the reign of the late Queen Elizabeth, that then it shall and may be lawful for any one Justice of Peace of that Limit, Division, or Liberty, wherein the said party shall dwell, upon proof unto him made by confession of the party, or oath of witness, to call the said party before him; and if he or she, shall not make a sufficient excuse, and make due proof thereof, to the satisfaction of the said Justice of Peace; that it shall be lawful for the said Justice of Peace to give Warrant to the Churchwarden of such Parish wherein such party shall dwell, under his hand and seal, to levy Twelve-pence by distress, and sale of the goods of every such offender, rendering to the offender the overplus of the money raised of the said goods so to be sold. And that in default of such distress, it shall and may be lawful for such Justice of the Peace to commit any such offender to some Prison within the said Shire, division, limit, or liberty, where such offender shall inhabit, until payment be made of such sum or sums so to be forfeited, which forfeiture shall be employed to and for the use of the poor of that Parish wherein the offender shall be resident, or abiding at the time of such offence committed.  
Provided that no man shall be impeached upon this clause except he be called in question for his default within one month after the said default made.  
Then afterward it saith, That all offences against that Act, other than Treason, shall be inquired, heard and determined before the Justices of Peace in their General Quarter Sessions to be holden in the Shire, division, limit, or liberty, wherein such offence shall happen.  
The Statute 1 Eliz. limited the enquiry and determination of such offences to Justices of Assize, and to Justices of Oyer and Determiner, and to the next Assizes or Quarter-Sessions; the Statute 23 Eliz. gave Justices of the Peace a power to inquire, but not to determine. The Stat. 3 Jac. 4. gives any one Justice of the Peace, a power to determine upon proof made of this offence, but limits an enquiry, hearing and determining to the general Quarter-Sessions. I conceive by that Statute one Justice of Peace, if any will voluntarily complain and make proof of this offence out of Sessions, may hear it and determine; but he cannot inquire by commanding officers to present and make proof, but in the General Quarter-Sessions, and all within a months time. But I pray observe that Statute.  
1. The offence must be not resorting to some Parish Church or chapel, or some other place appointed to hear Common Prayer. No Officer by virtue of that Statute can present any for not coming to his or their Parish-Church.  
2. Proof must be made of the offences: I do not think the presentment of any Officer ex Officio is a proof by the Law of England, which is evident in all presentments by Grand Juries, which are no proofs; yet they reasonably ought to be judged so before petty Constables presentments.  
3. The Prosecution which by 1 Eliz. is limited to the next Assizes or Sessions, and by the 23 Eliz. enlarged to a year and a day, is here restrained to a month after the offence is committed.  
4. By this Statute, the Warrant for distress must be to the Churchwardens, not to the Constables.  
5. Before the conviction the party must have a liberty to make and prove his excuse, if he hath any.  
I enlarge the more upon this Statute, because I perceive by your story, that this is that which your Justices proceed upon; for you say they meet monthly, and imprison presently for want of distress, which no other Statute gives them liberty to do. I say, according to this Act, if Officers will upon articles present, they must say, that the party was not at some Church and chapel; it is not enough for them to say he was not at his Parish-Church, that Statute saith no such thing. Nor doth it give any Justice a power to inquire out of Sessions, only to hear and act upon proof voluntarily brought to him. So that I can see no Statute they can proceed upon, but that 1 Eliz. that indeed inflicts the same 12 d. punishment upon those who having no reasonable let or excuse, come not to their Parish-Church, or in let thereof, to some other. But that 3 Jac. saith nothing of this or that Parish-Church; and by the Stat. 1. Eliz. they cannot imprison for want of distress presently.  
Indeed I cannot understand by what pretence of Law any thus proceeds: for our Law requireth certainty, and will not allow a man for the same offence to be prosecuted upon two Statutes, though relating to the same offence. The Justices indeed may choose what Statute they will proceed upon, but they can proceed but upon one at the same time. The Justices you speak of, proceed upon the crime mentioned only in the Stat. 1 Eliz. but then they punish by the Stat. 3 Jac. and inquire into the offence by the Warrant of no Statute( out of Sessions) that I can find. I can only say, if this be Law, I do not understand; only blots are no blots till they be hit; but I should be loth either to inquire upon any offence, or to commit any after this rate, for fear of an Habeas corpus, and an action of false imprisonment, and something worse than that; the Law of England hath set inferior Magistrates their bounds, for giving Oaths in cases, and for sending men to Prisons.  
But if your friend be in no capacity, or hath not stomach enough to try those issues, I do not yet understand why, if he will put himself to such frequent troubles, but he may present legally, and never run any danger of perjury. To this purpose let us consider the Stat. 1 Eliz. which is plainly the Text to which both the Stat. of 23 Eliz. and 3 Jac. do both refer; the words of that Statute are these.  
And that from and after the said Feast of the Nativity of St. John Baptist next coming, all and every person or persons, inhabiting within this Realm, or any other the Queens Majesties Dominions, shall diligently and faithfully, having no lawful and reasonable excuse to be absent, endeavour themselves to resort to their Parish-Church, or chapel accustomend, or upon reasonable let thereof, to some usual place, where Common-Prayer and such Service of God shall be used in such time of let upon every Sunday, and other days ordained to be kept as Holidays, and then and there to abide orderly, and soberly, during the time of the Common-Prayer, Preaching, or other service of God there to be used and ministered, upon pain of the censures of the Church, and also upon pain that every person so offending shall forfeit for every such offence Twelve pence to be levied by the Churchwardens of the Parish where such offence shall be done, to the use of the poor of the same Parish, of the goods, lands, and tenements of such offenders, by way of distress.  
The question is, what the crime was which the wisdom of Parliament at this time thought fit to provide against by this Act? and what it could be other than mens profane spending of that time which the Church had set apart to the service of God, I cannot understand. For Parliaments use to proceed not against crimes not in being, but against all manners that do appear. For any pretendedly religious spending of that time other than at Church, either by Papists or Protestants, it was a crime not then committed by any, and therefore not provided against by the Stat. 1 Eliz. Papists generally went to hear Common-Prayer ten years, till the Popes Bulls came out; and the Protestants that were like to keep Conventicles, were not yet come over from beyond Sea, whither they were driven by Queen Maries Persecution; nor do we find in our Statutes a word about Conventicles till the Stat. 35 Eliz which was at least 34. years after this. But at this time without doubt there were a company of Atheistical persons in the Nation who would rather spend these days at Alchouses and Taverns, or idly walking up and down, or at some sports, or in their beds, than at the Worship of God; against whom this Act seems, if not chiefly, to be made; and only this clause in the Act inserted.  
The Parliament then knew, that a very great part of the Subjects could not yield obedience to this Precept, being sick, or from home, or attending the necessary concerns of families, and there being no Divine Service at many Churches at that time, and therefore could not be conceived to make all absent from their Parish-Church criminal; nor do they, but only those that are absent without any reasonable let or excuse. This then is the crime, to be absent from the Parish Church without reasonable let or excuse.  
Neither can the wisdom of Parliament be presumed to have directed, that Officers should present all that were absent without reasonable let or excuse; for how should Officers know this? they must know the state of every body in their Parish, whether they were in health or sickness; the circumstances of every person; whether he were at home that day, or abroad; the order of every family; what servants were necessary to be at home to look after young children; what persons were nurses to sick persons, what Physicians or Apothecaries were attending sick persons; which is both impossible and unreasonable to suppose. There can be no possible obligation upon any to present, farther than according to their own knowledge, for they are upon their Oaths. There seems therefore no Article to be well drawn upon this Statute, but this:  
Do you know of any person in your Parish, who having no reasonable let or excuse, doth not endeavour to resort to his Parish-Church or chapel accustomend, or upon some reasonable let thereof, to some other place where Common-Prayer or such service of God is used in such time of let, upon every Sunday, and other days ordained to be kept as Holidays, and there abide orderly and soberly during the time of Common-Prayer, Preaching, or other Service of God there to be used and ministered?  
In case the Officer doth know of any who hath no reasonable let or impediment, that is who is neither sick, or abroad, nor detained at home by necessary occasions, but spends his, or her time, those days, at Alchouses and Taverns, or in idle recreations, or in his bed, or at any unlawful meetings, he is bound to present them; otherwise he seems not bound by this Statute, but may rather answer thus:  
We do not know of any person in our Parish who having no reasonable let or excuse doth not endeavour to resort to his Parish-Church or chapel accustomend, or upon reasonable let thereof to some other place where Common-Prayer or such Service of God is used in such time of let upon every Sunday, and other days ordained to be kept as Holidays.  
And if it be put in the Article( as it should) according to the Statute, and there abide during the time of Common-Prayer, Preaching, or other Service of God there to be used and ministered, orderly and soberly:  
If he knows any that being at Church spend their time in sleeping or talking, or the like, he is obliged to present them; if not, he may answer in the words of the Statute: Nor of any who do not there abide orderly and soberly during the time of Common Prayer, Preaching, or other Service of God there used and ministered.  
If the Article be formed upon the Stat. 3 Jac. let the answer be still in the words of the Statute: We do not know of any who within a month last past have not resorted to some Church or chapel, or some usual place appointed for Common-Prayer, and there hear Divine Service, according to the Statute made in that behalf in the first year of Queen Elizabeth.  
These are the very words of the Statute, according to which all Articles, and Answers, or Presentments in any of his Majesties Courts Ecclestiastical or Civil, are requisite to be drawn; no inferior Officer being to answer in any other terms than what shall sully import that sense; for inferior Officers are not to present according to the wills of any, but only according to the letter of the Law, which is the common Rule of both: And you may assure your Friend, that any Judges of England will so determine. Which if they will, if any Country Justice will venture once to commit any to Prison because he will answer no otherwise; if he brings his Writ of Hab●as Corpus, the Justice will understand how to take heed of his duty the next time.  
I cannot tell your Friend how to avoid a Prison, if an adventurous Justice will sand him; it is enough for me to tell him how he may come out when he is there, and have his charges paid for the time he stays there.  
Let not your Friend be frighted therefore with such stories; It would be pretty news to us in Westminster Hall, to hear of any Justice that should refuse an answer to Articles founded upon a Statute, given them in the words of the Statute: We should adventure to tell them, they assumed a Legislative power to themselves, and that their business is to execute Laws, not to make them.  
But you say, they tell him that he must present all those that are not at Church; the Justices must judge of his excuse whether it be reasonable or no. This it is for men not to consult the Statute, which saith no such thing. This indeed would bring in a fine revenue to the Clerks of the Sessions, or those belonging to the Justices; but absence from Church, without adding, having no reasonable excuse, is by the Statute no crime: as you may see by the words of the Statute before recited. It is true, if any be voluntarily complained of by some Informer, the Justices by the Statute 3 Jac. must sand for the party, and hear what excuse he hath, and how he can prove it; and till that be done, the person is in Law no offender. But when Officers present upon Oath, they present none but offenders, and those who they know are offenders; and they can know none to be such, unless they know that he is absent, having no reasonable let or excuse.  
But Sir, if your Friend hath a mind to trouble himself to that degree, he may present, as they would have him, those that are absent; but then let him take heed that he presents all that are absent every Sunday and Holiday: and begin first with the person if he doth not diligently red Service every Sunday and Holiday, then go on, and present every person for every day he is absent, or being there, spends his time irreverently, sleeping or prating. Let him not spare any one, Papist or Protestant, sick or well, at home or abroad, every woman that lieth in, every Nurse, every Servant,( provided they be above Sixteen years of age) and let him know, that if he be bound by his Oath to Present every one absent, he is as much bound to this as to any thing; for if the crime be mere absence, and he be bound to present all he knows are absent, his Oath tieth him to do this. Will they say, But you knew such and such were at London that day? Besides that none can know this; I would fain understand by what rule of Law an Officer may judge, that one who lives at Northampton hath a reasonable let or excuse, because it is said he is gone to London, more than if it be said he is gone to Abington: If absence from home, may by the Officer be judged a reasonable excuse, the greatness or smallness of the distance alters nothing the case. And let your Friend also Present offenders against all the Statutes, which are to be enquired of by such Justices; for he is by his Oath no more bound to Present offenders against one Statute than another. advice him to present( whether it be in the Articles or no, they are not the Articles which are his Law) all those who he knows within Twenty days before have profanely sworn or cursed, who have been drunk, who have sate tippling in Alchouses above an hour, who have profaned the Sabbath, &c. By this the Gentlemen that love business, will find they have work enough to do.  
This is, Sir, the best advice I can give you on the behalf of your Friend; you should do well to advice with greater Lawyers than myself: But yet I believe any of them will tell you I have spoken sense. There is nothing I so much abhor as arbitrary power; and I equally detest one who hath the path of a Law cut out for him by a Parliament, and cannot keep to it; as him who hath been so long at a Tavern that he cannot keep his way in the Streets. The latter is drunk with Wine, the former with passion and folly: I say folly, for I never yet observed any Magistrate outrun the Law, but it threw up his heels as soon as a brisk monsieur dared to pursue him and throw it at him. The Law is a steady thing, and keeps its vigour; mens passions are mutable and short-breathed. The Law was made for a Rule of indiscriminitive justice, not to serve any mans turn to execute their silly passions; and whoever useth it to that purpose, will, first or last, find it an edged tool that will cut his Fingers that so abuseth it.  
If any man will be so hardy as to satisfy his private revenge, he will venture to break the Law( and let me tell you, the imprisonment of persons not warranted by Law, is one of the highest violations of it) in hope that if it comes to the worst, he shall get a Pardon or an Act of oblivion; he must remember, Neither of those will acquit him for any private wrong done to any; besides, they are very chargeable and incertain: And for any in those presumptions to break a Law, is but the same thing which Fuller saith, it is for a man to mary an old Widow, in hopes to bury her; viz. To hang himself, in hopes somebody may come and cut the halter.  
I hope, Sir, you will not make an ill use of any thing I have wrote to you; I do not mean, by communicating it to others; If I were with you, I would say the same thing that I say here, to those most concerned; but I mean in taking it, or any thing of it, to be a licence to your Friend, or any else, not to go hear the Prayers of the Church. The Law is severe enough against them that do omit their duty in that point, though it directs a just method and order in which alone they may be punished, and will have none to be oppressed by any ones execution of his own will and passion, instead of what it directeth. What I have wrote is for the relief of your oppressed Friend, not for the encouragement of any transgressing Friend.  
Sir, I am Your commandable Friend and Servant.