year after the Offence committed The Informer must sue within the year otherwise he shall not have any part of the penalty Godbolt 158. C. 216. Cro. Hill 12 Jac. 366. Sivedale versus Sir Edward Lenthall But popular Suits upon the Statute of Tillage are excepted and not upon the Statute of Tallage as 't is mistaken in the late Additions to Dalton cap. 191. tit Informations Sect. 3. In Dr. Fosters Case Co. 11.65 it 's said That the Informer hath no Remedy for recovery of the forfeiture for Recusancy after the year and day is expired for that time is limited in certain by this Act But yet with submission it seems the Clause in this Act which limits to a year and a day And hath not a year and a day relates to Indictments only And so it was held in this very Case of Dr. Foster Co. 11. 60. Rolles 1.93 C. 41. and in Pie and Lovells Case Hobart 205. and there was no limitation of time for the Informer Qui tam c. upon this Statute until the said Statute of 31 Eliz. which limits him to a year after the Offence committed and not a year and a day And although this Offence of Recusancy cannot in strictness be said to be committed for that in truth it is but a bare omission as hath been said and therefore there needs not be any place alledged yet in common parlance it will pass well enough for an Offence committed To what intent Recusancy may be said to be committed and seems to be within the meaning of that Branch of 31 Eliz. which limits the time of prosecution And in this very Clause of the Statute of 23 Eliz. it 's said the third part of the forfeiture for Recusancy shall be to the Poor in the Parish where the Offence is committed Now if it be objected That if Recusancy be not an Offence which is to be laid in the proper County by that Statute of 31 Eliz. because 't is not an Offence which can be properly said to be committed By the same reason the Informer who is restrained by that Statute to a year after the Offence committed is not restrained in the Case of Recusancy Nor the Poor of any Parish can take any benefit by this Statute as to the third part of the forfeiture for that there is no Parish wherein Recusancy can be said to be committed I answer there is a great difference between those Cases For in the Cases of limitation of time when the Offence must be prosecuted and that of the Poor of the Parish where the forfeiture is to be distributed the word committed is no part of the substance of the matter and 't is no more then if the Statutes had said within a year after the Offence and to the Parish where the Offence was And there committed may be taken well in that sense And to what intent not but it cannot be so in that other Case about the proper County For the Statute of 31 Eliz. which appoints that in any Declaration or Information the Offence against any penal Statute shall not be laid to be done in any other County but where the matter alledged to be the Offence was in truth done and the Defendant may traverse and alledge that the Offence supposed to be committed was not committed in such County where the Offence is alledged c. makes the Commission of the Offence matter of substance and whether it were committed or not committed in the County where it is laid in the Information or popular Suit goes now to the merits of the Cause For if it were not committed in that County and the Defendant alledge and traverse it and it be found for him the Plaintiff shall be barred And those words that he may traverse that it was not committed clearly shew that Offences which consist only in omission were not intended For otherwise neither Recusancy nor any other Offence of that nature could be punished by any Information or popular Action For the Jury upon their Oaths must of necessity find that it was not committed in any County for that in truth and propriety of speech it was not committed at all Vide supra Sect. 5. Suit by the King within what time Stat. 31 Eliz 5. By the said Statute of 31 Eliz. if the Informer Qui tam c. doth not prosecute within a year after the Offence yet the King may at any time within two years after that year ended And therefore it was resolved in the Case of Syvedale and Sir Edward Lenthall before recited where an Information was brought in the Court of Exchequer Tam pro Domino Rege quam pro seipso upon the Statute of 3 Jac. cap. 4. 3 Jac. 4. for three years forbearance to receive the Sacrament after Conformity that although it was not good for the Informer yet it was well enough as to the King Cro. Jac. 366. A natural born Subject or a Denizen being Defendant in any Suit upon a penal Law in the Kings Bench Common Pleas Special Bail or Exchequer is not compellable to put in special Bail but may appear by Attorney Stat. 29 Eliz. cap. 5.31 Eliz. cap. 10. St. 29 Eliz. 5 31 Eliz. 10. Yelverton 53. St. Georges Case An Action of Debt or Information Tam pro Domino Rege quam c. lies upon this Statute against the Husband and Wife for the Recusancy of the Wife Baron and Feme and the Husband in that Case is liable to pay the 20 l. per month notwithstanding he himself be no Recusant Bulstrode 3. 87. The King against Law Rolles 1. 93. C. 41. Dr. Fosters Case Hobart 97. Moore versus Hussey Savile 25. C. 59. But the Wife cannot appear by Supersedeas alone without her Husband for both must appear or both be out-lawed Hobart 179. Lovedens Case Nor can she plead or join issue without her Husband Must both plead Rolles 2. 90. Sir George Curson and his Wives Case And therefore where in an Information brought against the Husband and Wife for the Recusancy of the Wife the Record was entred praedict J. M. veniunt praedicta M. dicit quod ipsa non est inde culpabilis de hoc ponit se super Patriam this was adjudged to be ill for the Husband pleads not at all But in this Case the Dockett being Quod J. C. M. uxor ejus c. placitant non culp and it being manifest that they both appeared Record amended the Record was amended by the Dockett after Verdict For it was but the misprision of the Clerk in drawing the Plea Cro. Pasch 17 Jac. 530. Parker versus Sir John Curson and his Wife which is the same Case with that in Rolles only the Christian name of the Husband varies At the end of the Report of this Case in Croke there is a subsequent note added that if Sir John Curson and his Wife had pleaded Quod ipsi
Sunday be not dies Juridicus so as to award a Judicial Process or enter a Judgment of Record on that day yet an Information may be exhibited in Court on that day and good Jones 156. 157. Bedoe versus Alpe Information delivered In the Common-Pleas an Information may by the course of that Court be brought in and delivered to one of the Judges there out of Term No antedate Stat. 18 Eliz. 5. and shall be dated then For the Statute of 18 Eliz. cap. 5. forbids all antedates Rolls 2.33 Smith versus Carter Conviction on Indictment pending the Information An Information is brought by an Informer Qui tam c. upon this Statute for Recusancy and pending the Information the Recusant is convicted at the Kings Suit upon an Indictment for the same absence the Question is what remedy the Recusant hath in this Case that he may not Bis puniri pro uno delicto And to this it was Answered by Coke Chief Justice B. R. in the Case of Dr. Foster that he may plead this Conviction puis le darreine continuance to discharge himself of the Information Rolles 1. 95. C 41. But as the Reporter there well observes the Informer when he hath begun his popular Action hath appropriated the Action to himself And if it shall be admitted that the King can devest him of this Action when he pleases Action appropriated by Indictment at his own Suit this would prove very mischievous to Informers Quaere therefore how in this Case the Recusant shall defend himself from being doubly punished for one and the same Offence But if the Recusant be once convicted at the Kings Suit either by Indictment upon this Statute or according to the Statutes of 29 Eliz. cap. 6. Stat. 29 Eliz. 6 3 Jac. 4. or 3 Jac. cap. 4. upon Proclamation the Informer Qui tam c. cannot afterwards charge him but is barred for ever after Informer barred For the intention of this Statute is that the Informer may exhibit Informations against such only as are concealed or not charged at the Kings Suit so that the Informer is neque falcator neque messor but spicelegus a gleaner And that in such Cases only where the King doth not prosecute pardon or release before the Informers Action is commenced Co. 11. 65. Dr. Fosters Case Bridgman 121.122 Parker against Sir John Webb and his Wife Lane 60. But whether this Rule be general and will not admit of an exception in the Case of a Feme Covert Feme Covert is a Question for by some Opinions if a Feme Covert be Indicted and Convicted of Recusancy that shall not Bar the Informer of his popular Action upon this Statute against her and her Husband for the Recusancy of the Wife Because upon the Conviction by Indictment she cannot be compelled to pay the forfeiture of Twenty pounds per month while her Husband lives nor can it be levied of her goods and lands For that during the Coverture she hath nothing of her own to forfeit but all is her Husbands Vide Bridgman 122. 123. Parker versus Sir John Webb and his Wife Vide Stat. 3 Jac. cap. 4. Sect. 6. The Condemnation or Acquittal of the party at the Suit of the Informer is a good Barr against the King and all others Bar. Co. 11. 66. Before the Statute of 4 H. 7. cap. 20. Popular Action by Covin it seems that if a popular Action had been brought by Covin and with the consent of the Defendant and the Defendant was for want of Evidence or other Cause found not guilty and the Covin appeared to the Court yet Judgment should have been given thereupon against the King and it should have been a good Barr against all others 9 E. 4. 4. But now by that Statute of H. 7. Stat. 4 H. 7. 20 If any person sue with good Faith any Action popular and the Defendant plead a Recovery in an Action popular in Barr or that before that time he had barred the Plaintiff in such Action the Plaintiff may aver such Recovery or Bar was by Covin and upon such Covin found the Plaintiff shall have Judgment and the Defendant so attainted or condemned of Covin shall have Imprisonment for two years by process of Capias or Outlawry as well at the Kings suit as any other and the Release of the party shall not avail the Defendant which Covin may be averred generally Vide Wymbishe and Talbois Case Plowden 49 50 54 55. If a man bring upon a penal Statute an Action of Debt tam pro Domino Rege quam pro seipso Who is to reply in a popular Action of debt and the Defendant pleads thereunto the party Plaintiff may reply without the Kings Attorney And in Princes Case in an Action of Debt upon this Statute the Defendants demurred and the Plaintiff qui tam c. joined in Demurrer without the Kings Attorney and held to be good Cro. Trin. 1 Car. 10 11. Lionel Farringtons Case But in an Information tam c. quam And who in a popular Information c. the Kings Attorney ought to reply Rolles 2.33 Smith versus Carter And this difference between an Action of Debt and an Information was taken in the aforesaid Case of Farrington versus Arundell Hutton 82. But yet if in an Information the Defendant plead a special Plea and the Kings Attorney will not reply and prosecute for the Kings part the Informer shall be admitted to reply and prosecute for his part as was adjudged in the Case of Stretton and Taylor Co. 11.65 Dr. Fosters Case Co. 3. Inst 194. Where the King may pardon or release the penalty The King before any Information or other popular Suit commenced may pardon or release the whole penalty incurred and it shall be a good Bar against all men Co. 11.65 66. Dr. Fosters Case Co. 3. Inst. 194 195. 37 H. 6. 4. 2 R. 3. 12. Termes de la Ley 102. Decies tantum 1 H. 7. 3. And if the Defendant in the Information do not take advantage of such pardon or release by his Plea but is condemned in the Suit and the Kings share of the penalty be put in the Pipe in magno rotulo yet he may then discharge himself thereof upon a Compertum fuit in magno rotulo by shewing forth the whole matter by way of Plea and shall not lose the effect of his pardon or release Vide Savile 23. C. 56. Tirringhams Case And where not But when once the Informer hath brought his popular Suit the King cannot discharge it and if he then pardon or release or his Attorney enter an ulterius non vult prosequi this is good for the Kings part only but is no Bar quoad the Informer who may proceed notwithstanding for his part of the penalty And therefore neither can the Kings Attorney discharge the Jury when they come to deliver their Verdict Hutton 82. Vaughan 343. Thomas versus
Marriage may also be lost by Marriage Eodem modo quo quid constituitur dissolvitur And in such Case she shall not be tried by Noblemen For they are no longer her Peers Co. 2. Inst 50. But if a Woman be Noble by birth By birth or descent whomsoever she marries yet she remaineth Noble For birthright is Character indelebilis vide Co. 4. 118. Actons Case Co. 6. 53. Countess of Rutlands Case Dyer 6 7 E. 6. 79. Bro. Nosme de Dignity 31. 69. Co. 1. Inst 69. And 't is observable that the Statute of 21 H. 8. cap. 13. Stat. 21 H. 8. 13 provides that a Dutchess Marquess Countess or Baroness Widows which take a second Husband under the Degree of a Baron may notwithstanding such second Marriage take such number of Chaplains as if she were a Widow which she could not have done if it had not been expresly provided for by the Statute and the reason is given in Actons Case because by such Marriage her Dignity is determined But here there being no such provisional Clause she shall not have the priviledge of Nobility but may be tendred the Oath of Allegiance by the Justice of Peace as in the Case of a Common person Shall stand and be Presented Indicted or Convicted Conviction not necessary These words being in the dis-junctive it is not necessary that the party be convicted But if he stand Presented or Indicted for not coming to Church or not receiving the Sacrament and be under the degree of a Baron the Justice of Peace ought to tender him this Oath And the said Iustice shall find Cause of suspition There must be cause of suspicion And not if the party be suspected as Wingate tit Crowne n. 150. mistakes for the bare suspition of the Justice of Peace or any other person is no sufficient ground to require the Oath or commit the party for refusal But there must be some good Cause for that suspition and the same must be alledged in the Justice of Peace his Plea or Justification if he be sued for committing him to Prison for such refusal So if a man be arrested on suspition of Felony and bring his Action for false Imprisonment the Defendant ought to shew some matter in fact to induce his suspition For in these and the like Cases a bare suspition is no sufficient Justification it being a matter secret and not traversable but the Cause of suspition is traversable Bulstrode 3. 284 285. Weale versus Wells 7 E. 4. 20. 17 E. 4. 5. 5 H. 7. 4. It shall be tried by the Justices And whether the suspition be just and lawful shall be tried and determined by the Justices Co. 2. Inst 52. 11 E. 4. 4. That then any one Iustice of Peace What was said by Coke Chief Justice B. R. in the Case of Griffith and others Bulstrode 2. 155. viz. that any one Justice of Peace One Justice of Peace may minister this Oath is to be understood of some Cases only Co. 12. 130. which are no other then those here mentioned as he explains his meaning in his said 12th Part p. 132. where he saith that one Justice of Peace cannot commit any for refusal of this Oath unless they be Prosecuted Indicted or Convicted c. according to this Statute Vide Stat. 3 Jac. cap. 4. Sect. 10. 11. Within whose Commission or Power such person or persons shall at any time hereafter be A person complained of and against whom cause of suspition is found by the Justice of Peace flies into another County A person complained of and justly suspected flies into another County Quaere whether a Justice of Peace of that other County can require the Oath of him and commit him upon refusal For he seems to be impowred thereunto by the express words of the Statute for that the party is fallen within his Commission or Power But yet I conceive that by these words any one Iustice of Peace within whose Commission or Power c. is designed or intended no other Justice then a Justice of that County where the party was complained of and suspected The Justices there cannot proceed thereupon And that if he flie into another County no proceedings can be there upon the complaint and suspition in the County whence he came nor any one Justice tender him the Oath or commit him for refusal without a new Complaint and cause of suspition in the County whither he flies For where the party cannot be Indicted of a Praemunire for refusing the Oath upon the second tender at the Assizes or Sessions there the Justice or Justices of Peace out of Sessions cannot tender the Oath or commit for refusal For the Commitment is in Order to a second tender and an Indictment of Praemunire thereupon But in this Case the party cannot be Indicted of a Praemunire in the County where he flies for refusing it upon the second tender For the offence for which the party must be Indicted is a complicated offence consisting of several particulars First In giving just cause of suspition without which the party complained of according to this Act cannot be tendred the Oath by one Justice of Peace then in refusing the Oath before the Justice of Peace who tendred it and lastly in refusing it upon the second tender at the Assizes or Sessions all which must be comprised in the Indictment so that the cause of suspition is pars criminis and that arising in the County where the party dwelt and was complained of cannot be punished in another County unless the Statute had expresly made it examinable there Vide Stat. 3 Jac. cap 4. Stat. 5 Jac. 4. Sect. 11. True it is that some Statutes do enable Justices of Peace to punish an offence done in another County but that is where they enable them likewise to examine the truth of the Fact and take proofs and evidence thereof so the Statutes of 1 Jac. cap. 27. and 7 Jac. cap. 11. 1 Jac. 27. 7 Jac. 11. impower the Justices of Peace where the party is apprehended to examine and punish the offence But in our Case the cause of suspition arising in one County is not made examinable and consequently not punishable in another County and if not punishable there no Justice of Peace of that other County can proceed upon that cause of suspition notwithstanding the party happen to be within his Commission or power But yet the party so flying into another County may without any new complaint or cause of suspition be tendred the Oath But yet he may be tendred the Oath there and proceeded against there by two Justices of Peace Quorum unus c. by vertue of the foregoing words of this Clause although he dwell in another County and that for the reason before given viz. because this Oath sequitur personam non locum But Wingate in abridging this Clause tit Crowne numb 150. saves us the labour of this Question for
be understood of such an Estate as he may lawfully forfeit And the general words of the Statute of Praemunire Stat. 16 R. 2. 5. W. 2. 1. 16 R. 2. c. 5. scil Lands and Tenements shall not take away the force of the Statute de donis Conditionaelibus Co. 1. Inst 130. 391. Co. 11. 63. Godbolt 308. Lord Sheffeild and Ratcliffe And the person attainted in a Praemunire is disabled to be a Witness in any Cause Co. 1. Inst 6. or to Sue For Attainder in a Praemunire is a good plea in disability of the Plaintiff A person attainted in a Praemunire was out of the Kings Protection Sc. 25 E. 3. 22. according to Littleton 41. By the Statute of 25 E. 3. cap. 22. which saith That a man attainted in a Praemunire shall be out of the Kings Protection and it may be done with him as with the Kings Enemy It seemeth that any man might have lawfully slain such a person as was held 24 H. 8. Bro. Coron 196. Vide Bulstrode 2. 299. Sir Anthony Mildmay's Case And this Sir Edward Coke Co. 7. 14. Calvins Case Co. 12. 38. seemeth to allow for Law before this Statute of 5 Eliz. and positively affirms it to have been Law in his 1 Inst 130. and yet in the same Case of Calvin he saith that in that Statute of 25 E. 3. is intended only a legal Protection according to Littleton 41. and so likewise he expounds it in his 3d Inst. 126. But yet that the party attainted was still under that Protection which the Law of Nature giveth to the King which he explains to be such a Protection as a person attainted of Felony or Treason is under notwithstanding his Attainder so that if any man had killed him without Warrant he should have been punished by Law as a manslayer And this sort of Protection by the Law of Nature saith he is indelebilis immutabilis which the Parliament could not take away But yet under favour if a man attainted in a Praemunire were before this Act of 5 Eliz. under that indeleble and immutable Protection of the King given by the Law of Nature then the Opinion held in Brooke and allowed by himself was not Law But if that Opinion in Brooke were Law and any man might before this Statute have killed a man attainted in a Praemunire and that by force of the Statute of 25 E. 3. it follows that the Protection which the Law of Nature giveth is not indelebilis or immutabilis but that an Act of Parliament might in a particular Case take it away But there is now no further need of this Question in the Case of a Praemunire For if this Protection by the Law of Nature were taken away by 25 E. 3. it is now restored by this Statute and no man can lawfully slay a person attainted in a Praemunire no more than he can without Warrant a man attainted of Felony or Treason Provided always Stat. Sect. 15. Upon what proof only any person may be indicted and be it Enacted by the Authority aforesaid That no person or persons shall hereafter be Indicted for assisting aiding maintaining comforting or abetting of any person or persons for any the said Offences in extolling setting forth or defending of the usurped Power and Authority of the Bishop of Rome unless he or they be thereof lawfully accused by such good and sufficient testimony or proof as by the Iury by whom he shall so be Indicted shall be thought good lawful and sufficient to prove him or them guilty of the said Offences Stat. xiii Eliz. cap. ii An Act against the bringing in and putting in Execution of Bulls Writings or Instruments and other Superstitious things from the See of Rome Stat. Sect. 1. A rehearsal of the Stat. of 5 El. 1. touching the abolishing of the Authority of the Bishop and See of Rome WHere in the Parliament holden at Westminster in the fifth year of the Reign of our Sovereign Lady the Quéens Majesty that now is by one Act and Statute then and there made Intituled An Act for the Assurance of the Queens Majesties Royal Power over all States and Subjects within her Highness Dominions it is among other things very well ordained and provided for the abolishing of the usurped Power and Iurisdiction of the Bishop of Rome and of the See of Rome heretofore unlawfully claimed and usurped within this Realm and other the Dominions to the Quéens Majestie belonging That no person or persons shall hold or stand with to set forth maintain defend or extol the same usurped Power or attribute any manner of Iurisdiction Authority or Preheminence to the same to be had or used within this Realm or any the said Dominions upon pain to incur the danger penalties and forfeitures ordained and provided by the Statute of Provision and Praemunire made in the sixteenth year of the Reign of King Richard the second as by the same Act more at large it doth and may appear And yet nevertheless divers seditious and very evil disposed people without respect of their Duty to Almighty God or of the Faith and Allegiance which they ought to bear and have to our said Sovereign Lady the Quern and without all fear and regard had to the said good Law and Statute or the pains therein limited but minding as it should seem very seditiously and unnaturally not only to bring this Realm and the Imperial Crown thereof being in very deed of it self most free into the thraldom and subjection of that Forreign usurped and unlawful Iurisdiction Preheminence and Authority claimed by the said See of Rome but also to estrange and alienate the minds and hearts of sundry her Majesties Subjects from their dutiful obedience and to raise and stir Sedition and Rebellion within this Realm to the disturbance of the most happy peace thereof have lately procured and obtained to themselves from the said Bishop of Rome The effect of Bulls brought from Rome and his said Sée divers Bulls and Writings the effect whereof hath been and is to absolve and reconcile all those that will be contented to forsake their due obedience to our most gracious Sovereign Lady the Queens Majesty and to yield and subject themselves to the said fained unlawful and usurped Authority and by colour of the said Bulls and Writings the said wicked persons very secretly and most seditiously in such parts of this Realm where the people for want of good instruction are most weak simple and ignorant and thereby farthest from the good understanding of their Duties towards God and the Quéens Majesty have by their lewd and subtile practises and perswasion so far forth wrought that sundry simple and ignorant persons have been contented to be reconciled to the said usurped Authority of the See of Rome and to take absolution at the hands of the said naughty and subtile practicers whereby hath grown great dissobedience and boldness in many not only to withdraw and absent themselves from all
had never béen had nor made Any thing herein contained to the contrary thereof notwithstanding Stat. xxiii Eliz. cap. i. An Act to retain the Queens Majesties Subjects in their due Obedience WHere sithence the Statute made in the thirteénth year of the Reign of the Queén our Soveraign Lady Entituled Stat. Sect. 1. An Act against the bringing in and putting in Execution of Bulls Writings and Instruments and other Superstitious things from the See of Rome divers evil affected persons have practised contrary to the meaning of the said Statute by other means than by Bulls or Instruments Written or Printed to withdraw divers the Queéns Majesties Subjects from their natural Obedience to her Majesty and to obey the said usurped Authority of Rome and in respect of the same to perswade great numbers to withdraw their due Obedience to her Majesties Laws established for the due Service of Almighty God For Reformation whereof Stat. Sect. 2. Treason to withdraw any from the Religion Established to the Romish Religion and to declare the true meaning of the said Law Be it declared and enacted by the Authority of this present Parliament That all persons whatsoever which have or shall have or shall pretend to have power or shall by any ways or means put in practice to absolve perswade or withdraw any of the Queéns Majesties Subjects or any within her Highnesses Realms and Dominions from their natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highnesses Authority established within her Highnesses Dominions to the Romish Religion or to move them or any of them to promise any Obedience to any pretended Authority of the Seé of Rome or of any other Prince State or Potentate to be had or used within her Dominions or shall do any overt act to that intent or purpose and every of them shall be to all intents adjudged to be Traytors And being thereof lawfully convicted shall have Iudgment suffer and forfeit as in case of High Treason And if any person shall after the end of this Session of Parliament by any means be willingly absolved or withdrawn as aforesaid or willingly be reconciled It shall be Treason to be reconciled or withdrawn to the Romish Religion or shall promise any Obedience to any such pretended Authority Prince State or Potentate as is aforesaid that then every such person their Procurers and Counsellors thereunto being thereof lawfully convicted shall be taken tried and judged and shall suffer and forfeit as in Cases of High Treason Perswade or withdraw It was held in Lovett and Faulkners Case Mich. 12. Jac. B. R. That if a man were Indicted for endeavouring and practising voluntarie felonice proditorie to perswade and withdraw any of the Kings Subjects from his Obedience unto the Romish Religion and was afterwards debito modo acquietatus yet an Action upon the Case in nature of a Conspiracy would not lye against the party who procured him to be Indicted Cro. Mich. 12. Jac. 357 358. Rolls 1. 209. C. 49. Bulstrode 2. 271. and the main reason given was That forasmuch as every man is bound to discover Treason and 't is dangerous to conceal any thing which may tend to Treason therefore the procuring one to be Indicted concerning it was no Cause of Action And in that Case Coke Chief Justice said That such an Action was never before that time brought But later Resolutions have been to the contrary of this Opinion Action lies for indicting a man of High Treason And 't is held for Law at this day That if a man procures another to be Indicted of High Treason an Action upon the Case in nature of Conspiracy lies against him that procures it as well as if it were for Felony The first leading Case of this nature which was resolved upon any solemn argument or debate was that of Smith versus Cranshaw or Crashaw and others where it was adjudged upon great deliberation by all the Four Judges of the Court of Kings Bench Hill 1. Car. 1. That an Action in nature of a Conspiracy doth well lye in such Case and that not only in Case of Acquittal upon Trial but upon the exhibiting a Bill of Indictment for High Treason to the Court or Jury if the Jury bring in Ignoramus although in this last Case a Writ of Conspiracy lyeth not And Lovett and Faulkners Case was denied to be Law Addition to Bendloes 152. Latch 79 80. Jones 93 94 95. And Justice Dodderidge who concurred in Opinion with the other Judges in the Case of Lovett and Faulkner changed his Opinion in that of Smith and Cranshaw and held that the Action was maintainable Bulstrode 2. 271 272. so that whosoever of meer malice without probable cause causes any person to be Indicted upon this Statute Stat. 3. Jac. 4. or that of 3 Jac. cap. 4. for endeavouring or practising so to perswade or withdraw any Subject or prefers a Bill to the Court or Jury for that purpose is liable to an Action of the Case for so doing if the party be acquitted or the Jury bring in Ignoramus as in other Cases of Felony Any of the Queens Majesties Subjects Queens Subjects Stat. 3 Jac. 4. What is meant by the Queens Subjects Vide Stat. 3 Jac. cap. 4. Sect. 19. And be it likewise Enacted and declared Stat. Sect. 3. The penalty of aiders maintainers and concealers That all and every person and persons that shall wittingly be aiders or maintainers of such persons so offending as is above expressed or of any of them knowing the same or which shall conceal any offence aforesaid and shall not within twenty days at the furthest after such persons knowledge of such offence disclose the same to some Iustice of Peace or other higher Officer shall be taken tried and judged and shall suffer and forfeit as Offenders in misprision of Treason These words And shall not within twenty days Aiders or maintainers punishable though discoverers c. disclose the same have no reference to those who are aiders or maintainers of the Offender but only to those who have barely a knowledge of the Offence without aiding or maintaining the party And therefore if such as are aiders or maintainers of the person offending discover the offence within twenty days yet such discovery shall not free them from the guilt of misprision of Treason as Wingate mistakes in his Abridgment of this Clause tit Crown numb 42. but if they once aid or maintain the party knowing him to be an Offender they are guilty whether they disclose or conceal the offence and shall have no benefit of the twenty days And be it likewise Enacted Stat. Sect. 4. The forfeiture for saying or hearing of Mass That every person which shall say or sing Mass being thereof lawfully convicted shall forfeit the sum of Two hundred Marks and be commited to Prison in the next Goal there to remain by the space of
Curate of the Parish That in every such Case every such Offender being thereunto warned or required by any two Iustices of the Peace or Coroner of the same County where such offender shall then be shall upon his or their corporal Oath Abjuration before any two Iustices of the Peace or Coroner of the same County abjure this Realm of England and all other the Queéns Majesties Dominions forever And thereupon shall depart out of this Realm at such Haven and Port and within such time as shall in that behalf be assigned and appointed by the said Iustices of Peace or Coroner before whom such abjuration shall be made unless the same Offenders be letted or stayed by such lawful and reasonable means or causes as by the Common Laws of this Realm are permitted and allowed in Cases of abjuration for felony And in such Cases of let or stay then within such reasonable and convenient time after as the Common Law requireth in Case of abjuration for felony as is aforesaid Abjuration to be entred of Record and certified And that every Iustice of Peace and Coroner before whom any such abjuration shall happen to be made as is aforesaid shall cause the same presently to be entred of Record before them and shall certifie the same to the Iustices of Assizes or Goal delivery of the said County at the next Assizes or Goal delivery to be holden in the same County If any such person or persons being a Popish Recusant That is any Popish Recusant within the former Branches of the Statute and none but such What Popish Recusants are within this Branch and which not Dalton V. cap. 45. tit Recusants applies this Clause to Popish Recusants convicted as if it concerned them and them only and so both at once extends and restrains the Statute contrary to its true meaning For these words any such person or persons neither extend to all that are convicted nor are restrained to such only as are convicted For the Popish Recusant who hath a certain place of aboad within this Realm although he be convicted is not within this Statute unless he were a Popish Recusant and in England at the time of his Conviction And the Popish Recusant who hath no certain place of aboad within this Realm is within this Statute although he were never convicted so that either of these sorts of Popish Recusants who have an Estate under value viz. he who hath no certain place of aboad and he who having a certain place of aboad was convicted when a Popish Recusant and in England and no other are liable by this Act to Abjuration Of the clear yearly value Clear yearly value of Twenty marks above all Charges A Rent-charge of 40 l. per Annum is issuing out of Lands worth 100 l. per Annum a Popish Recusant liable to be confined by this Statute purchases for his Life or in Fee parcel of the Lands of the clear yearly value of Twenty marks over and above what his proportion of the said Rent-charge comes to This is an Estate of the clear yearly value of Twenty marks within the meaning of this Act and shall free him from abjuration For although in strictness of Law his Estate be not clearly so much above all charges For that 't is chargeable with an yearly Rent of Forty pounds yet in equity he shall pay no more then his proportion of it which the Land he purchased will discharge and yet yield Twenty marks per Annum clearly besides Or Goods and Chattels This Statute being in the disjunctive Lands or Goods an Estate partly of Lands Goods and Lands not to be valued together and partly of Goods will not satisfie the intent thereof And therefore if a Popish Recusant who offends against this Act hath fifteen Marks per Annum clearly in Lands and be worth Thirty pounds in goods although this taken together be in truth an Estate of more value then is here required yet it shall not free him from Abjuration For the Statute doth not warrant any valuation of the Lands and Goods together so as to supply the defect of the yearly value of the Lands by the Goods or the defect of the value of the Goods by the Lands and therefore the Recusant must have such an Estate in the one or the other as will answer the Statute And this is not like the Case of Jurors upon the Statute of 2 H. 5. Stat. 2 H. 5. 3. cap. 3. where 't is said That the Iuror shall have Lands of the clear yearly value of Forty shillings if the Debt or Damage declared amount to Forty marks in which Case although it be in the disjunctive debt or damage yet it hath been adjudged that where the debt and damages both amount to Forty marks it is sufficient and the Juror must have Forty shillings per Annum Co. 1. Inst 272. For in that Case the word or is cumulative and debt or damage both amount to no more then one intire thing viz. the value of the Cause or Action depending And it appears plainly to be the intent of the makers of the Law that no Cause declared to be of the value of Forty marks shall be tried by Jurors of a less Estate but in our Case the Lands and Goods are things of different nature one real the other personal and cannot be regularly reduced under one and the same head and therefore shall not be valued together unless the Act had expresly appointed such a Valuation But yet if a Popish Recusant hath a Lease for years But leases for years and personal goods may and personal Goods and both do amount in value to above Forty pounds he shall be out of the danger of Abjuration For although the Lease is in the realty and the Goods are personal yet they shall in this Case be valued together For that by this Copulative and the Statute expresly so appoints without distinguishing between the values of either but makes it sufficient if both of them be of that value Money secured upon a Mortgage Mortgage of Lands is within the meaning of these words Goods and Chattels And if the Popish Recusant hath above Forty pounds owing to him upon such Mortgage he cannot be required to abjure Within three months next after such person shall be apprehended or taken Wingate in abridging this Clause tit Crowne numb 80. clearly mistakes the meaning of it For he saith that a Popish Recusant whose estate is under value must make the submission prescribed by this Act within three months next after his arrival at his place of aboad which is a complicated Error For he quite leaves out him who is to repair to the place where he was born or his Father or Mother dwels He makes the party liable to such submission before he becomes an offender by not repairing or not presenting himself and giving in his true name or travelling above five miles He speaks nothing of his being
proved that it was for her Joynture or if a man devise Lands by his last Will to his Wife generally and there is no mention in the Will that 't is for her Joynture for in this Case an Averment that it was so intended will not serve unless there be express words in the Will to that purpose These Estates so gained by the Wife as they do not bar her Dower out of the residue of her Husbands Estate but that she shall enjoy both the one and the other Co. 4. 4. so they are not within the meaning of this Act because not made for her Joynture And she shall not forfeit the profits of two parts of them although she may forfeit the profits of 2 parts of her Dower which she hath out of the residue of her Husbands Estate If Lands be conveyed to the Wife before marriage for part of her Joynture and other Lands are conveyed to her after Marriage in full satisfaction of her Jointure and she refuse those conveyed after Marriage in this Case she may retain those conveyed before Marriage and yet be endowed of the residue of her Husbands Estate For that the Lands first setled on her were not for her whole Joynture Co. 1. Inst 35. Co. 4. 3. Forfeiture of the profits of part of her Jointure And if she be a Popish Recusant Convict and her Husband none and she conform not within the year next before his death she shall forfeit the profits of two parts both of such Dower and of the Estate so conveyed to her before her Marriage And as the Wife shall have her Joynture and Dower both Where the Jointure is pursuant to the Statute in such Cases where the Joynture is not pursuant to the Statute of 27 H. 8. so in some Cases likewise where she hath a Joynture pursuant to that Statute As where she hath such a Joynture made to her by the Husband before Marriage and he afterwards endow her ad ostium Ecclesiae or if she hath a Joynture made by the Husband in his life time and after his death his Heir or Feoffee assign other Lands to her in Dower or the Heir plead to her in a Writ of Dower ne unque seisi que Dower c. or nient accouple in Loyal Matrimony or any other Plea save Joynture in bar of Dower and it be found against him In these Cases the Wife shall hold her Joynture and yet be endowed and if she be an Offender within this branch of the Act shall forfeit the profits of two parts of her Joynture and Dower both But if a Widow Dower not forfeited who is indowed of the Lands of her deceased Husband takes a second Husband who is no Popish Recusant Convicted by whom she hath a Jointure and she becomes a Popish Recusant Convict and the second Husband dies and the Wife is an Offender within this Act In this Case she shall not by force thereof forfeit the profits of two parts of such Dower and Jointure both but only of her Jointure For that her Dower is not out of the Lands of her said Husband that is of the Husband in whose life time she stood convicted and after such Conviction forbore to conform c. within the year next before his death And be it further Enacted by the Authority aforesaid Stat. Sect. 12. A Popish Recusant shall be disabled as an Excommunicate person That every Popish Recusant which is or shall be convicted of Popish Recusancy shall stand and be reputed to all intents and purposes disabled as a person lawfully and duly Excommunicated and as if he or she had béen so denounced and excommunicated according to the Laws of this Realm until he or she so disabled shall conform him or her self and come to Church and hear Divine Service and receive the Sacrament of the Lords Supper according to the Laws of this Realm and also take the Oath appointed and prescribed in one other Act made this present Session of Parliament Intituled An Act for the better discovering and repressing of Popish Recusants And that every person or persons sued or to be sued by such person so disabled shall and may plead the same in disabling of such Plaintiff as if he or she were Excommunicated by Sentence in the Ecclesiastical Court What Conviction disables him Convicted of Popish Recusancy The Conviction mentioned here and in the other branches of this Statute seems to be intended not only of a Conviction according to the Statute of 29 Eliz. 6. or 3 Jac. 4. Stat. 29 Eliz. 6. 3 Jac. 4. upon Proclamation and default of appearance but of a Judgment likewise upon an Indictment or popular Suit on the Statute of 23 Eliz. 1. or an Action of Debt c. by the King alone by force of the Statute of 35 Eliz. 1. 35 Eliz. 1. For Convicted in relation to these three last mentioned remedies is to be taken for adjudged or attainted Vide for this the Statute of 23 Eliz. 1. Sect. 5. And the Popish Recusant who is either convicted upon Proclamation and default of appearance or against whom Judgment is had upon an Indictment popular Suit or Action of Debt c. at the Kings Suit is hereby disabled as an Excommunicate person and liable to all other the penalties and incapacities inflicted by this Act on a Popish Recusant convicted To what intent as excommunicate Reputed to all intents and purposes disabled as a person c. Excommunicated And not reputed to all intents as an Excommunicate person as Wingate tit Crown numb 135. misrecites the Statute For as it seems by the words of the Statute the Popish Recusant convicted is not to be reputed as a person Excommunicate in any other respect or to any other intent but as to his disability only And yet the Opinion of the Court of Kings Bench Mich. 11 Jac. in the Case of Griffith and others seems to be to the contrary and that a Popish Recusant convicted may by force hereof be attached upon a Writ of Excommunicato capiendo Excommmnicato capiendo Bulstrode 2. 155. Tamen Quaere whether this Statute being a penal Law and speaking only of the point of disability shall be extended by Equity to other Cases or the Recusant be attached upon an Excommunicato capiendo unless he be first actually Excommunicated A Popish Recusant Convict is disabled as an Excommunicate person Witness to be a Witness in any Cause between party and party By Coke Chief Justice Bulstrode 2. 155. This disability but quousque May plead the same in disabling of such Plaintiff This disability in the Popish Recusant convicted is but quousque c. until he Conform c. and take the Oath of Allegiance And the Defendant must in this Case plead the Conviction at large and must as in a Plea of Excommengement demand if the Plaintiff shall be answered Hetley 18. which is the legal conclusion of a Plea in disability of
the person Co. 1. Inst 128. Plea in disability is peremptory The Defendant in Debt upon an Obligation pleads that the Plaintiff is a Popish Recusant Convict who replies nul tiel Record Such Plea in disability of the person is peremptory and nul tiel Record is an Issue and Judgment shall be given against the Defendant upon failer of the Record Hetley 18. But yet if there be a Plea of a Conviction of Recusancy had before Justices of Gaol delivery and the Defendant mistakes and takes out a Certiorari Certiorari to the Justices of Peace this shall not be a failer of the Record Failer of Record although the Defendant hath it not at the day For that the issuing of the Certiorari was the Award of the Court But a Certiorari shall be awarded de novo to the Justices of Gaol delivery before whom the Plaintiff was convicted Hobart 135. Pye against Thrill Note if the Defendant be sued in the Common Pleas or any other of the principal Courts at Westminster and he plead a Conviction of Recusancy before Justices of Gaol delivery or Justices of Peace he need not take his Certiorari Certiorari out of what Court out of the Chancery and so bring it by Mittimus But the Court may send a Certiorari immediately to that inferiour Court where the Plaintiff was convicted as was held in that Case of Pye and Thrill vide 19 H. 6. 19. And the Justices themselves And by whom before whom the Conviction was had must certifie and therefore if the Conviction was before Justices of Peace the Certificate cannot be by the Custos Rotulorum Custos rotulorum alone though he keep the Records for the Certiorari is in such Case directed to the Justices of Peace Hobart 135. A Popish Recusant is convicted of Recusancy in a popular Suit and after such Conviction sues the Informer Qui tam c. Who may take advantage of this disability Informer upon some other matter or cause of Action arising between them Quaere whether the Defendant may plead such Conviction in disability of the Recusant For this Conviction disables the Recusant to sue as if he were excommunicated and no otherwise Now if a Bishop Excommunicate any one and the Bishop Bishop be afterwards sued at Law for any other matter or cause by the person so excommunicated the Bishop cannot plead this Excommunication in disability of the Plaintiff who sues him Co. 1. Inst 134. Swinborne Part 5. Sect. 6. p. 305. And the reason given for this in Trollops Case Co. 8. 68. is because the Bishop was a party to the Excommunication and therefore shall take no advantage by it which reason seems to hold likewise in the Case of an Informer Qui tam c. who is a party to the Conviction of the Recusant upon the popular Suit which Conviction renders the Recusant disabled to all intents as an Excommunicant person And therefore he being a party to it by the same Rule shall not take advantage of it in disability of the Recusant in any Action brought by the Recusant against him But yet notwithstanding I conceive the Informer Qui tam c. at whose Suit the Recusant was convicted may well take advantage of this Conviction and plead it in disability of the person of the Recusant And that the true reason why the Bishop shall not be admitted to plead an Excommunication pronounced by himself in disability of the person Excommunicated is not because he is a party to the Excommunication but because in matters of Excommunication the Bishop acts as a Judge and 't is by his Sentence and Authority that the party is Excommunicated and he shall not take advantage in another Suit of a Sentence given by himself judicially And this will not hold in the Case of an Informer who though he be a party to the Suit in which the Recusant is disabled as an Excommunicate person yet is no Judge in the Case whether the party Sued shall be disabled or no as the Bishop is in the other Case where the party is actually Excommunicated by him And if the Bishop should be barred to Plead and take advantage of such Excommunication because he is a party thereunto it would follow that the person who Sues in the Spiritual Court and at whose instance the person Sued is Excommunicated should be barred likewise to take advantage of such disability in the Plaintiff at Law for he is a party to the Excommunication for that he is a party to the Suit upon which the Excommunication is originally founded But the contrary to this is strongly implied in 14 H. 4. 14. where the Case was A. was Excommunicated in a Suit depending between him and B. and afterwards A. Sues B. upon the Statute of Praemunire who pleads this Excommunication in disability of the Plaintiff Here the Plea was disallowed because the principal Suit on which the Excommunication depended was brought before the Pope But in the debate of the Case there was not the least word of exception to the Plea upon this ground because the Excommunication was at the instance of the Defendant or that the Defendant should not take advantage of the Plaintiffs disability for that he was a party to the Excommunication which disabled him Executor or Administrator disabled If an Executor or Administrator becomes a Popish Recusant convict it seems he is disabled by this Act to Sue in either of those Capacities For the Act saith He shall be disabled to all intents as an Excommunicate person Now a person actually Excommunicated cannot Sue as Executor or Administrator as is held in 21 E. 4. 49. 21 H. 6. 30. 14 H. 6. 15. Co. 1. Inst 134. Although there are some opinions to the contrary Vide Finch 27. Stat. Sect. 13. What Suits a Popish Recusant may prosecute Provided nevertheless That it shall and may be lawful for any such person so disabled for and notwithstanding any thing in this Law contained to sue or prosecute an Action or Suit for or concerning only such of his or her Lands Tenements Leases Rents Annuities and Hereditaments or for the Issues and Profits thereof which are not to be seized or taken into the Kings hands his Heirs or Successors by force of any Law for or concerning his or her Recusancy or any part thereof Which are not to be seized or taken into the Kings hands c. These words are not restrained to such Lands Lands seized into the Kings hands c. as cannot be seized into the Kings hands for Recusancy For then the Recusant could in no case Sue for more then the third part for that the King may if he please make his Election and seize the other two parts in lieu of the Twenty pounds per month But they are intended of all Lands c. of the Recusant which neither the King hath seized nor are by Law to be seized by vertue of any thing