Sorrell Leonard 1.119 C. 161. Stretton and Taylors Case Cro. Trin. 31 Eliz. 138. the same Case Ibid. Mich. 39 40 Eliz. 583. Hammon versus Griffith 1 H. 7. 3. Co. 3. Inst 194. Such Entry of a non vult prosequi by the Attorney General hath the same effect with a Nonsuit of a private person The King cannot be non-suited But the King cannot be said properly to be nonsuited because he is in Judgment of Law ever present in Court Co. 1. Inst. 139.227 Hutton 82. Goldsborough 53. Leighs Case Savile 56. C. 119. Weare versus Adamson Where upon the demise of the King the proceedings shall be void Upon the death of Queen Elizabeth it was resolved by the Judges That where an Information tam pro Domina Regina quam c. was brought upon a penal Statute and pending the same and before Judgment the Queen died the Information it self should stand for that otherwise the Suit might be lost there being a time limited for the bringing of it but all the proceedings thereupon were lost and void and the Defendant should plead de novo Cro. Pasch 1 Jac. 14. Co. 7. 30 31. Case Of discontinuance of Process And to that purpose the Case of Pasch 5 E. 6. Rot. 38. is there cited where in a popular Action the King died after Demurrer upon the Evidence and before Judgment and the Defendant pleaded de novo And where not But yet in a popular Action of Debt brought upon this Statute against Prince and his Wife where the Defendants demurred upon the Declaration and the Plaintiff Qui tam c. joyned in Demurrer in Hillary Term and King James died the Vacation following It was resolved that not only the Writ and Declaration but all the other proceedings thereupon should stand notwithstanding the Demise of the King For that in such Case it is meerly the Suit of the party Stat. 1 E. 6. 7. and is aided by the Statute of 1 E. 6. cap. 7. of Discontinuances and he only joyned in Demurrer Cro. Trin. 1 Car. 10. 11. Lionell Farringtons Case Hobart 82. the same Case Which Resolutions are in appearance flatly contrary each to other for that upon the death of the Queen seems to take in all popular Suits whatsoever and as well a popular Action of Debt as an Information But yet 't is observable that in Farringtons Case the Plaintiff only joyned in Demurrer and not the Kings Attorney And this seems to be the reason why in that Case the proceedings should stand notwithstanding the Demise of the King For where the party alone joynes in Demurrer or Replies and not the Kings Attorney there the Suit may properly be said to be depending between party and party and within the express words of 1 E. 6. which provides that although the King die all proceedings in Suits depending between party and party shall stand But the Resolution of the Judges upon the death of the Queen is to be understood of such Cases where after a Plea or Demurrer by the Defendant the Attorney General alone replies or joyns in Demurrer there the proceedings shall be void and the Defendant shall plead de novo But the Information it self shall stand to avoid a manifest inconvenience for that the Informer is limited to a certain time wherein to exhibit his Information And so I conceive are these two Opinions which seem so contrary to be reconciled An Informer Qui tam Nonsuit release c. of the Informer c. may be nonsuited although the King cannot Co. 1. Inst 139. Hutton 82. Farrington versus Arundell If pending the popular Action or Information the Plaintiff or Informer Qui tam c. be nonsuited or release or enter a nolle prosequi or dye none of these shall Bar the King but the Attorney General may proceed upon the Information for the Kings part Leonard 1. 119. C. 161. Stretton and Taylors Case No Bar for the Kings part Cro. Trin. 31 Eliz. 138. The same Case Ibid. Mic. 39 40 Eliz. 583. Hammon versus Griffith Co. 3. Inst 194. Moore 541. C. 715. Co. 11.66 Dr. Fosters Case Bulstrode 2. 261 262. Sir Thomas Waller versus Hanger Rolles 2.33 Smith versus Carter And therefore the Opinions in 37 H. 6.5 and 38 H. 6. 2. That if the Plaintiff in a Decies tantum which is a popular Action be nonsuit the King is without Remedy but by Indictment or if such Plaintiff will relinquish his Suit the King hath nothing further to do seem not to be Law at this day Information in a wrong Court And if a popular Information be brought upon a penal Statute in a wrong Court where the Informer cannot sue yet it was held in Agar and Candishes Case that the King should not for that lose his advantage of the Suit but the Information should be good for his part of the penalty Moore 564 565 566. C. 770. Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. if an Informer or Plaintiff upon a penal Statute where any forfeiture is generally limited to him that will sue shall delay or discontinue his suit or be non-suit The Informer shall pay costs or shall have the trial or matter pass against him by Verdict or Judgment of Law he shall pay to the Defendant his Costs Charges and Damages Vide Addition to Bendloes 141. Rhobotham versus Vincent and if it be upon special Verdict or Demurrer those Cases are within the Statute and he shall pay Costs by force thereof Hutton 36. Pies Case But not find Sureties But an Informer is not compellable to find Sureties to answer Costs howbeit the Court if they see cause may order him to appear in person before the Defendant answer the Information Bulstrode 2.18 Martin and Gunnystons Case It was held in the Exchequer Chamber That if a Writ of Error Writ of Error be brought upon a Judgment given for the King at the Suit of an Informer a Scire facias Scire facias ought to be awarded against the Informer Savile 10. C. 26. Wilkes Case Courts of Record in penal Statutes are the four Courts at Westminster In any Court of Record By any Court of Record is here meant the four Ordinary Courts of Record at Westminster For they are the general Courts of Record and the Courts where the Kings Attorney may acknowledge or deny and the words of this Statute being general are left to the construction of Law where the Rule is verba aequivoca in dubio posita intelliguntur in digniori potentiori sensu And in this sense shall these words Court of Record be construed in all penal Statutes where the penalty is to be recovered in a popular Suit So that the Informer Qui tam c. cannot sue before Justices of Assize Goal delivery or Oyer and Terminer or Justices of Peace as in Borough or Corporate Towns or in a Court of Pipowders Stannary Courts
non sunt culpabiles it had been ill But yet it seems that the Law is contrary to that Opinion Non sunt cuipabiles where good for where an Action or Information is brought against the Husband and Wife for an offence or wrong done by the Wife there the Husband is charged quoad poenam though not quoad culpam and when they both plead quod ipsi non sunt culpabiles the meaning is that he is not chargeable quoad poenam and she is not guilty quoad culpam and therefore it was resolved in the Case of Browne against Audley and his Wife Trin. 22 Jac. in an Action upon the Case for scandalous words by the Wife that where they both pleaded non culp and the Jury found the Feme guilty the Plaintiff should have Judgment For the issue was good for the reason aforesaid and the finding of the Jury was a good ground for the Judgment for if the Wife were guilty quoad culpam as the Verdict must necessarily be understood she being the wrong doer the Husband by consequence was chargeable quoad poenam and Judgment shall be against both Addition to Bendloes 148. and the Resolution in the Case of Needler versus Symnell and his Wife reported by Justice Croke Cro. Mich. 11. Car. 417. in the like Action brought for words spoken by the Wife is directly contrary to that opinion at the end of Sir John Cursons Case For there 't is adjudged that ipsi non sunt culpabiles by Baron and Feme is a good issue although the wrong were by the Wife alone Writ of Error by an Alien An Information of Recusancy lies against an Alien upon this Statute if he inhabits within the Realm and if Judgment be had against him he may have a Writ of Error to relieve himself Co. 1. Inst. 129. Popular Suit appropriated When once the Informer Qui tam c. hath commenced his Suit he hath of a popular Action made it his own private Action Co. 65. Dr. Fosters Case Vaughan 343. Thomas versus Sorrel And in this Case it is not necessary that the Defendant be served with Process to answer it Without Process for if the Informer put his Information into Court 't is enough to appropriate to him his share of the penalty Godbolt 158. C. 216. But yet a Note ought first to be made of the day month and year when it was exhibited for before Stat. 18 Eliz. 5. by the Statute of 18 Eliz. cap. 5. it is not to be taken to be of Record nor shall operate any thing either in appropriating the penalty or barring any other Informer but when that is done no other Informer can Sue for the same Offence and 't is a good Plea in Bar Bar. of the second Information for the Defendant to say that there is another Information depending against him for the same Offence For as soon as the first Information is delivered in and entred upon Record according to the said Statute of 18 Eliz. it shall be said to be depending Popular Suit when depending although it be not alleadged that any Writ or Process is Sued out against the Defendant thereupon Cro. Mich. 33 34 Eliz. 261. the Queen versus Harris Styles 417 Hobart 209. Parry versus Paris Palmer 40. Webbs Case Termes de la Ley 7. Action Popular Two Informations for the same offence Bar. The Defendant in an Information pleads that heretofore another Information was exhibited against him such a day in another Court for the same Offence but mistakes and names in his Plea a wrong day and not that wherein the first Information was exhibited The Plaintiff replies nul tiel Record yet if it appears that in truth the Information pleaded in Bar was exhibited before the other which is the substance of the matter this misprision shall not vitiate the Defendants Plea in Bar but Judgment shall be for the Defendant Hobart 209. Parry versus Paris Note this Case is cited in the late Additions to Dalton cap. 191. tit Informations Sect. 6. to prove that one person cannot exhibit two Informations in the same or in several Courts But that was not the Question there nor I think ever was made a Question but that the same person may exhibit two several Informations so they be not both for one and the same Offence An Information was exhibited in the Kings-Bench upon the Statute of 5 E. 6. cap. 7. for buying of Wools. Stat. 5 E. 6. 7. The Defendant pleads that there is another Information depending against him in the Common-Bench at the Suit of L. and avers that they are both for the same Offence but in truth that in the Common-Pleas supposed the Offence to be done at one time and that in the Kings-Bench at another time yet this is a good Plea in Bar Bar. of the latter Information being with an Averment that they are both for the same Offence for otherwise by the Informers false supposal of the day the Defendant shall be put to double trouble Cro. Mich. 33 34 Eliz. 261. The Queen versus Harris And the same advantage no question any man may take against whom two Informations are exhibited upon this Statute for hearing of Mass Mass for perchance he never heard Mass above once in his life time and there is no reason he should be put to double trouble for one offence But otherwise it seems to be in the Case of Recusancy The absence from Church must be for a month For if an Information be brought upon this Statute for not coming to Church for a month there if the Defendant proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of Twenty pounds And as the Defendants giving in Evidence that he was at Church within the compass of any other month then that which is laid in the Information shall not excuse him so the Informers proof of his absence any other month shall not hurt him but the Evidence must go to the very same month which the Information mentions And the reason is for that this Offence is punishable according to the time of its duration or continuance and the Offender is to forfeit for every month of his absence so that if another Information be exhibited against him for not coming to Church during another month it cannot be supposed to be for the same absence with that in the first Information but for the like absence at another time and therefore cannot be pleaded in Bar thereof Two Informations on the same day c. Bar. If two Informers on one and the same day exhibit Informations against the same person for the same Offence they are both void and may be pleaded the one in Bar of the other for that there is no priority to Attach the right of Action in one of the Informers more than in the other Hobart 128. Pie versus Coke Although Sunday
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
Curate of every Parish where such Submission and Declaration of Conformity shall hereafter be so made by any such Offender as aforesaid Stat. Sect. 14. The Minister shall enter the Submission into a Book shall presently enter the same into a Book to be kept in every Parish for that purpose and within ten days then next following shall certifie the same in writing to the Bishop of the same Diocess Provided nevertheless Stat. Sect. 15. A Recusant submitting and falling into Relapse That if any such Offender after such Submission made as is aforesaid shall afterward fall into Relapse or eftsoons become a Recusant in not repairing to Church to hear Divine Service but shall forbear the same contrary to the Laws and Statutes in that behalf made and provided That then every such Offender shall lose all such benefit as he or she might otherwise by virtue of this Act have or enjoy by reason of their said Submission And shall thereupon stand and remain in such plight condition and degrée to all intents as though such Submission had never beén made Such Relapse with the Indictment thereof Relapse where to be certified is to be certified into the Court of Exchequer as was done by the Justices of the Kings Bench in the Case of Francis Holt. Pasch 9 Jac. Bulstrode 1. 133. Stat. Sect. 16. Married Women bound by this Act saving in the Case of Abjuration Provided always and be it Enacted by the Authority aforesaid That all and every Woman married or hereafter to be married shall be bound by all and every Article branch and matter contained in this Statute other then the Branch and Article of Abjuration before mentioned And that no such Woman married or to be married during marriage shall be in any wise forced or compelled to abjure or be abjured by virtue of this Act Any thing therein contained to the contrary thereof notwithstanding Stat. i Jac. cap. iv An Act for the due execution of the Statutes against Jesuits Seminary Priests Recusants c. FOr the better and more due execution of the Statutes heretofore made aswell against Iesuits Stat. Sect. 1. All Statutes made against Jesuits Priests and Recusants shall be put in Execution Seminary Priests and other such like Priests as also against all manner of Recusants Be it Ordained and Enacted by Authority of this present Parliament That all and every the Statutes heretofore made in the Reign of the late Quéen of famous memory Elizabeth as well against Iesuits Seminary Priests and other Priests Deacons Religious and Ecclesiastical persons whatsoever made ordained or professed or to be made ordained or professed by any Authority or Iurisdiction derived challenged or pretended from the Sée of Rome as those which do in any wise concern the withdrawing of the Kings Subjects from their due obedience and the Religion now professed and the taking of the Oath of obedience unto the Kings Majesty his Heirs and Successors together with all those made in the said late Quéens time against any manner of Recusants shall be put in due and exact execution Oath of Obedience By the Oath of Obedience Oath of Obedience Stat. 1 Eliz. 1. is here meant the Oath of Supremacy in the Stat. of 1 Eliz. cap. 1. which see there Sect. 7. and by that name it is here called afterwards Sect. 3. Provided nevertheless Stat. Sect. 2. A Recusant conforming himself shall be discharged and be it Enacted by the Authority of this present Parliament That if any that is or shall be a Recusant shall submit or reform him or her self and become obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the true meaning of the Statutes in that behalf in the said late Quéens time made and provided That then every such person for and during such time as he or she shall so continue in such conformity and obedience shall from thenceforth be freed and discharged of and from any the penalties and losses which the same person might otherwise sustain and bear in respect or by reason of such persons Recusancy According to the true meaning of the Statutes in that behalf It hath been doubted whether these words do refer only to the manner of the Recusants conformity or to the time likewise when it is to be done as well as to the manner For if they refer to the time then the Recusant is still bound notwithstanding this Statute to conform before Judgment according to the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 or his conformity afterwards shall not discharge him of the penalty But the better opinion is that by these words according to the true meaning of the Statutes is to be intended only that the Recusant must conform in such manner as is there appointed but as to the time the general words here have inlarged the time limited by 23 Eliz. If the Recusant conforms after Judgment 't is sufficient For this Statute is made in further favor of the Recusant So that now if he conforms after Judgment 't is time enough and he shall be discharged of all penalties in respect of his Recusancy And if an Information tam pro Domino Rege quam pro seipso be brought upon the Statute of 23 Eliz. against the Recusant and after Judgment had against him thereupon he conforms he shall be discharged of the Judgment but first his Conformity must appear of Record otherwise the Court cannot take notice of it and as for that his remedies against the King and the Informer must be several His remedies against the King and informer Audita Quaerela Plea for against the Informer he must bring his Audita Quaerela and against the King he must plead his conformity which he may do in this Case after Judgment for that no Audita Quaerela lies against the King 11 H. 7. 10. and if he should not be admitted to plead he would be without any legal Remedy to discharge himself of the forfeiture and Judgment as to the Kings part whose execution will not be hindred by the Audita Quaerela against the Informer But if the Defendant neglect to put in his Plea and Execution issues for the King and he be taken in Execution he comes too late to plead his Conformity and hath then no other way left to relieve himself as to the Kings part but by his Petition Petition to the King to pardon the Debt Bulstrode 2. 324 325. Dr. Fosters Case Rolles 1. 95. C. 41. the same Case Vide Savile 23. C. 56. Tirringhams Case Stat. Sect. 3. And if any Recusant shall hereafter die his heir being no Recusant that in every such Case every such heir shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her In what Cases a Recusants heir shall be
Ministers and Priests whatsoever For 't is held in our Law that as he is Sacerdos he ought and is bound jure divino celebrare Coenam Dominicam dictae Coenae orationes c. And if he be indicted upon this Statute with the addition of Clericus that word implies him to be a Priest or Minister within the meaning thereof Dyer 3. Eliz. 203. Note That by the Statute of 14 Car. 2. Stat. 14 Car. 2. This and all other Laws which were then in force for the Uniformity of Prayer and Administration of the Sacraments within the Realm of England are now applicable to the Book of Common Prayer Book of Common Prayer authorized by that Act of 14 Car. and are to be put in ure with relation to the said Book Wilfully or obstinately standing in the same These words wilfully or obstinately standing in the same seem to restrain the Law to such other Prayers as are used in hindrance of or opposition to the Common Prayer or after admonition or warning to the contrary Prayers in the Pulpit and therefore the Prayers used in the Pulpit before Sermon seem not to be within the meaning of this Law nor to be forbidden by it because generally tolerated by those in Authority and so not obstinately used And were those words wanting although the words of the Statute are general any other form or open Prayers yet they ought to have a particular construction according to reason and the intent of the makers of the Law viz. That no Minister shall use any other form to the hindrance of or in opposition to this For a penal Law shall not always be construed according to the words of it but according to the intent of the makers of it Plowden 18. Fogassa's Case Ib. 465 466 467. Eyston versus Studd Ibib. 109 110. Fulmerston versus Stewarde And the words of a Law may be infringed and yet the Law it self may not be infringed unless the intent be likewise Plowden 18. which intent shall never be construed to be against reason For many things are excepted out of Statutes by the Law of reason which yet are not excepted by express words Plowden 13. Fogassa's Case And 't is a general Rule to be allowed in construction of Statute Laws Quamvis Lex-generaliter loquitur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit anima vigorque ipsius Legis non videtur Legislator id sensisse quod ratione careat etiamsi verborum generalitas aliter suadeat Co. 4. Inst 330 331. Stat. Sect. 3. The penalty for the second Offence And if any such person once convict of any Offence concerning the premisses shall after this first conviction eftsoons offend and be thereof in form aforesaid lawfully convict that then the same person shall for his second offence suffer imprisonment by the space of one whole year and also shall therefore be deprived ipso facto of all his spiritual Promotions and that it shall be lawful to all Patrons or Donors of all and singular the same spiritual Promotions or of any of them to present or collate to the same as though the person or persons so offending were dead The penalty for the third Offence And that if any such person and persons after he shall be twice convicted in form aforesaid shall offend against any of the premisses the third time and shall be thereof in form aforesaid lawfully convicted that then the person so offending and convicted the third time shall be deprived ipso facto of all his spiritual Promotions and also shall suffer Imprisonment during his Life Where the second Indictment must mention the first conviction where not For his second Offence One is Indicted upon this Statute for administring Baptism in other form than is thereby prescribed And is convicted and afterwards he is again indicted for the like Offence By the Opinion of Clench Justice B. R. the second Indictment must mention the first Conviction or the Judgment cannot be for the second Offence viz. Imprisonment for a year and deprivation But Wray Chief Justice held That if both Indictments were before the same Justices they are to take notice of the first Conviction although it be not mentioned in the second Indictment and ought to give Judgment accordingly But if the second Indictment be taken by other Justices then without mention therein of the first Conviction they cannot give Judgment for the second Offence Leonard 1. 295. C. 403. The Benefice void without any Sentence To present or collate c. If the Offender against this Branch of the Act be judicially convicted of Record for the second or third Offence It seems that there needs not any Sentence declaratory by the Ecclesiastical Judge but his Benefices or spiritual Promotions are void ipso facto upon such Conviction For although the word void be not here as it is in the Statute of 21 H. 8. Stat. 21 H. 8. 13 13 Eliz. 12. c 13. of Pluralities And of 13 Eliz. cap. 12. about reading the 39 Articles Upon which Statutes 't is resolved that a Sentence declaratory is not necessary but that the Benefice is actually void without it Co. 4. 75. Hollands Case Co. 4. 79. Digbies Case Co. 6. 29. Greens Case yet the words here that the Patron may present or collate as if the person so offending were dead are tantamount and of as large an extent as if it had been said that his spiritual Promotions should be void And therefore if a Parson be convicted for the second or third Offence against this Statute and after such Conviction sues the Parishioners for Tythes it s a good plea to say that he stands convicted c. For he is thereby no longer Parson nor can sue for the Tythes no more than if he neglected to read the 39 Articles And that he is disabled in this last Case was adjudged Trin. 30 Eliz. in a Prohibition inter Morrice Eaton Vide Leonard 2. 212. C. 267. Wiggen and Arscotts Case nor will the Kings Pardon The Kings Pardon help or restore an Offender against this Act after the second or third Conviction no more than it will him who neglects to read the 39 Articles Vide Cro. Trin. 41 Eliz. 679 680. Baker versus Brent Robinson The Patron must at his peril take notice of a Conviction of the Incumbent upon this Statute Notice to the Patron not necessary For if he present not within six months after a Lapse will incur against him although no notice be given him For all men at their perils ought to take notice of an Act of Parliament to which every one is party 39 E. 3. 7. Bishop of Chichesters Case Dyer 7 Eliz. 237. Co. Hollands Case and Digbies Case supra In which three last Cases it was held That no notice to the Patron is necessary upon an avoidance by the Statute of 21 H. 8. of Pluralities Vide Termes de la
Ley Stat. 21 H. 8. 13 13 El. 12. 111. Deprivation And the Statute of 13 Eliz. touching the 39 Articles which provides that no Title to present by Lapse shall accrue upon any Deprivation ipso facto until six months after notice thereof given by the Ordinary to the Patron although it be penned in general terms extends only to the particular Cases in that Statute and to no other Case of Deprivation ipso facto by Act of Parliament And if the person that shall offend and be convicted in form aforesaid concerning any of the premisses shall not be Beneficed Stat. Sect. 4. The penalty of an Offender having no Spiritual Promotion nor have any spiritual Promotion that then the same person so offending and convict shall for the first Offence suffer Imprisonment during one whole year next after his said Conviction without Bail or Mainprize And if any such person not having any spiritual Promotion after his first Conviction shall eftsoons offend in any thing concerning the premisses and shall in form aforesaid be thereof lawfully convicted that then the same person shall for his second Offence suffer Imprisonment during his Life Stat. Sect. 5. The forfeiture of them which do any thing or speak in the derogation of the Book of Common Prayer Causing other Prayer to be said or sung And it is ordained and enacted by the Authority aforesaid That if any person or persons whatsoever after the said Feast of the Nativity of St. John Baptist next coming shall in any Interludes Plays Songs Rhimes or by other open words declare or speak any thing in the derogation depraving or despising of the same Book or of any thing therein contained or any part thereof or shall by open fact deed or by open threatnings compell or cause or otherwise procure or maintain any Parson Vicar or other Minister in any Cathedral or Parish Church or in Chappel or in any other place to sing or say any Common or open Prayer or to minister any Sacrament otherwise or in any other manner and form than is mentioned in the said Book or that by any of the said means shall unlawfully interrupt or let any Parson Vicar or other Minister in any Cathedral or Parish Church Chappel or any other place to sing or say Common and open Prayer or to minister the Sacraments or any of them in such manner and form as is mentioned in the said Book The forfeiture of 100 marks for the first Offence That then every such person being thereof lawfully convicted in form abovesaid shall forfeit to the Queén our Soveraign Lady her Heirs and Successors for the first Offence an hundred marks Any person or persons whatsoever A Feme Covert is within the meaning of this Branch and shall be liable to the Penalties thereby inflicted Feme Covert Hobart 97. Moore versus Hussey Dyer 3 Eliz. 203. Sir Edward Walgraves Case The beginning of this Parliament uncertain There hath been a great question when this Parliament of 1 Eliz. began Poulton saith the 23d of January Dyer 3 Eliz. 203. The 25th of January Co. 4. Inst 7. the 25th of February And for the incertainty when it commenced an Information was brought upon this Branch of the Statute against Sir Edward Walgrave and his Wife by the Queens Attorney without any special recital of the Statute Recital of Statutes only supposing the Offence to be Contra formam effectum cujusdam Statuti in Parliamento tenent apud Westmonasterium anno primo Reginae nunc c. Dyer 3 Eliz. 203. For this is a general Statute and general Statutes need not be particularly recited Plowden 53. Wimbish vers Talbois Ibid. 79. 81. Partridges Case Ibid. 231. Lord Barkleys Case Hearing Mass Compel or cause or otherwise procure or maintaine The hearing of Mass is a maintaining within this Statute and the person hearing it is Indictable thereupon Hobart 97. Dyer 3 Eliz. 203. ibid. 15 Eliz. 323. Fermors Case And if any person or persons being once convict of any such Offence eftsoons offend against any of the last recited Offences Stat. Sect. 6. The forfeiture of four hundred Marks for the second Offence ānd shall in form aforesaid be thereof lawfully convict That then the same person so offending and convict shall for the second Offence forfeit to thr Queén our Soveraign Lady her Heirs and Successors four hundred marks And if any person after he in form aforesaid shall have been twice convict of any Offence concerning any of the last recited Offences shall offend the third time The forfeiture for the third Offence and be thereof in form abovesaid lawfully Convict That then every person so offending and convict shall for his third Offence forfeit to our Soveraign Lady the Quéen all his Goods and Chattels and shall suffer Imprisonment during his Life The Offender in any of these Cases cannot be punished for the second Offence before he be adjudged for the first The Offender not punishable for the second offence until adjudged for the first and that second Offence must be committed after the Judgment given for the first nor for the third Offence before he be adjudged for the second and that third must be committed after the Judgment for the second For Quod non apparet non est non apparet Judicialiter ante Judicium Co. 2. Inst 479. Vide Dyer 323. And if any Person or Persons Stat. Sect. 7. The penalty if the party convicted do not pay his forfeiture within the time limitted that for his first Offence concerning the premises shall be convict in forme aforesaid do not pay the sum to be paid by vertue of his conviction in such manner and form as the same ought to be paid within six weeks next after his conviction That then every Person so convict and so not paying the same shall for the same first Offence instead of the said sum suffer Imprisonment by the space of six months without Bail or Mainprize And if any Person or Persons that for his second Offence concerning the premises shall be convict in form aforesaid do not pay the said sum to be paid by vertue of his conviction and this Statute in such manner and form as the same ought to be paid within six wéeks next after his said second conviction That then every person so convicted and not so paying the same shall for the same second Offence in the stead of the said sum suffer Imprisonment during twelve months without Bail or Mainprize An Information was brought by the Attorney General in the Kings Bench upon the Statute for hearing Mass The Offender dies within the six weeks and Judgment given Trin. 3 Eliz. Quod foris facereth Dominae Reginae Et si non solvet infra c. tunc imprisonabitur c. The forfeiture was estreated into the Exchequer within the six weeks mentioned in the Statute and before the six weeks expire the Defendant in the
sue And as for Sir Edward Cokes Opinion that since the said Statute of 21 Jac. the Courts at Westminster cannot receive or hold Plea of any Information brought by a common Informer not only common Experience ever since that Statute is against it but the Judgments and Resolutions both of the Kings Bench Mich. 4 Car. 1. in the Case of Greene and Guy upon the Statute of 21 H. 8. cap. 13. of Non-residence Stat. 21 H. 8. 13. and of the Common Pleas. Trin. 4 Car. 1. in the Case of Farrington and Leymer upon the Statute of 23 H. 8. cap. 4. of Brewers 23 H. 8. 4. are directly in point contrary thereunto Cro. Car. 146. ibid. 112 113. Hutton 99. And so is the Opinion of Rolles upon the Statute of 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wines without Licence Styles 340. Buckstone against Shurlock and the Resolution in Jones 193. And yet although in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster In what Statutes Courts of Record may be taken in a large sense possibly in other Statutes those words may admit of a larger Construction Vide Rolles 1. 51. C. 21. Floyde versus Beste By Action of Debt Bill Plaint or Information An Informer may sue upon this Statute by Bill Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. it is Enacted That none shall be admitted or received to pursue against any person upon any penal Statute but by way of Information or original Action and not otherwise Vide Co. 6. 19 20. Gregories Case Moore 412. C. 565. 600. C. 827. the same Case Cro. Hill 39 Eliz. 544. Gadley versus Whitecot And this seems to extend to as well penal Statutes made afterwards as to those which were in force when the said Act was made For 't is usual for a later Act of Parliament to be guided by a former of which see several Instances in Vernons Case Co. 4.4 But then that must be in such Cases where there are not express words in the later Act to controul the former And therefore although the words of 18 Eliz. be in the Negative that the Informer shall not pursue otherwise then by Information or original Action yet the Affirmative words of this subsequent Statute of 23 Eliz. that the Informer may Sue by Bill hath taken away the force of that Negative in 18 in relation to the Offences mentioned in 23. And the prosecutor Qui tam c. upon this Statute may Sue by Bill in the Kings-Bench as well as by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution given in Woodson and Clarks Case in a Suit brought by Bill in the Kings-Bench 23 H. 6. 10. upon the Statute of 23 H. 6. cap. 10. of Sheriffs Co. 3. Inst 194. and in Vdeson and the Mayor of Nottinghams Case Moore 248. C. 390. contrary to the opinion in Styles 381. 382. Hill against Dechair Within threé months after Iudgment thereof given shall be committed to Prison Qui non habet in aere luet in corpore The Judgment shall be absolute And yet the Judgment in this Case shall be absolute that the King and Informer recover c. Anderson 1. 140. C. 190. Vachels Case A Feme Covert Feme Covert Recusant if the forfeiture be not paid within the time here limited may be imprisoned by force of this Statute until she pay or conform Co. 11. 61. Dr. Fosters Case Hobart 97. Moore vesus Hussey And if she be convicted upon Indictment at the Kings Suit in which Case the Husband is not bound to pay the penalty she ought by the opinion of Manword to have hard and close Imprisonment Imprisoned and be sequestred from all Company until she conform or the forfeiture be paid Savile 25. C. 59. But if the Husband and Wife be Sued upon this Statute in a popular Action or Information for the Recusancy of the Wife Her Husband chargeable and Judgment be had against them and the forfeiture is not paid within the three months the Husband in that Case may be imprisoned likewise Savile 25. C. 59. Stat. Sect. 10. Service in a mans private House Provided also That every person which usually on the Sunday shall have in his or her house the Divine Service which is established by the Law of this Realm and be thereat himself or her self usually or most commonly present and shall not obstinately refuse to come to Church and there to do as is aforesaid and shall also four times in the year at the least be present at the Divine Service in the Church of the Parish where he or she shall be resident or in some other open Common Church or such Chappel of ease shall not incur any pain or penalty limited by this Act for not repairing to Church Stat. Sect. 11. Fraudulent Assurances to defeat forfeitures And be it likewise Enacted and Declared That every Grant Conveyance Bond Iudgment and Execution had or made since the beginning of this Session of Parliament or hereafter to be had or made of Covinous purpose to defraud any interest right or title that may or ought to grow to the Queén or to any other person by means of any Conviction or Iudgment by vertue of this Statute or of the said Statute of the said thirteenth year shall be and be adjudged to be utterly void against the Quéen and against such as shall Sue for any part of the said penalties in form aforesaid Since the beginning of this Session of Parliament And yet a Covenons Conveyance though made before that Session of Parliament should not have defeated the interest Fraudulent conveyances right or title which was given to the Queen by this Statute And therefore in the Case or Sir John Southwell who in An. 19 Eliz. conveyed his lands to certain Feoffees and their heirs in Trust for the maintenance of him and his Family marriage of his Daughters payment of his Debts c. and to answer to him the Surplusage of the mean profits with a Clause of Revocation after which he granted Trees took fines for Leases c. and then came this Statute upon which he was Indicted and Convicted It was resolved by all the Judges of England that the said Lands were liable to this Statute and the Jurors charged to inquire what Lands he had were committed to the Fleet and fined each of them Fifty pounds for that they would not find those Lands to be his Leonard 3. 147. 148. By means of any Conviction or Iudgment Pauncefoot being Indicted of Recusancy A 〈◊〉 Outlawâ—â—â— made a Deed of Gift of all his Leases and Goods to a great value coloured over with fained considerations to defeat the Queen of what might accrew to her by his recusancy or flight and then went beyond Sea and afterwards was
although he be there personally present and openly confess himself to be the same person who was Indicted and against whom the Proclamation issued yet if he deny to appear upon the Proclamation or to consent that his appearance be entred of Record it seems that his appearance cannot be Recorded but his default shall and he shall stand Convicted thereupon And this is no more an appearance then where a Prisoner is brought to the Common Pleas Bar by habeas Corpus to the intent to have him appear to an Original brought against him and he denies to appear to the Action in which Case his appearance cannot be Recorded as was resolved in Ascoughs Case 43 Eliz. Gouldsborough 118. Shall be as sufficient a conviction in Law That is a Recusant thus Convicted upon Proclamation and Default of appearance shall be in the same Condition as if he were convicted by Verdict but no Judgment is given Bridgman 122. Parker versus Webb But this Conviction upon Proclamation is no Judgment as was resolved in Doctor Fosters Case Co. 11.65 Conviction upon Proclamation no Judgment And although it shall make the Recusant liable to the several forfeitures penalties and incapacities inflicted on Recusants convict yet it shall not operate as a judgment as hath been already shewed in divers instances For this reason it hath been questioned whether if a Recusant be Convicted upon Indictment and Proclamation the King may not wave his advantage of this Conviction and bring his Action of Debt given him by the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 For that such Conviction is no Judgment and consequently ought not to bind the King as a Judgment against the Recusant should have done Palmer 40.41 Sir John Webbs Case Worsley obtained a Patent to have all the Penalties of Recusants convict Although such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject for which Vide Rolles 1.10 C. 11. Roy versus Tollin Hobart 155. Colt Glover versus the Bishop of Coventry and Litchfield Ib. 183. Davison versus Barber yet admitting the Patent to be good The King cannot grant the forfeiture on a penal Law it was resolved that the penalties of Recusants convicted by Proclamation should not pass by those general words Rolles 1. 94 95. C. 41. Doctor Fosters Case And be it further Enacted Stat. Sect. 6. The penalty of a convicted Recusant That every offender in not repairing to Divine Service but forbearing the same contrary to the Statutes in that behalf made and provided that hereafter shall fortune to be thereof once convicted shall in such of the Terms of Easter and Michaelmas as shall be next after such Conviction pay into the Receipt of the Exchequer after the rate of Twenty pounds for every month which shall be contained in the Indictment whereupon such conviction shall be And shall also for every month after such Conviction without any other Indictment or Conviction forfeit Twenty pounds and pay into the Receipt of the Excheqver aforesaid at two times in the year that is to say in every Easter and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction except in such Cases where the King shall and may by force of this Act refuse the same and take two parts of the Lands Tenements Hereditaments Leases and Farms of such Offender till the said party being Indicted for not coming to Church contrary to former Laws shall conform himself and come to Church according to the meaning of the Statute in that behalf made and provided What Convictions are here meant Once Convicted This extends to all Convictions whatsoever upon Indictment whether by Verdict Confession c. whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of Twenty pounds per month shall in any of the said Cases run on forever after and be appropriated to the King Stat. 29 Eliz. 6 Vide Stat. 29 Eliz. cap. 6. Sect. 4. In what Term the forfeiture is to be paid In such of the Terms of Easter and Michaelmas as shall be next after such conviction Here Easter and Michaelmas is to be taken disjunctively for Easter or Michaelmas as it is in the Statute of 29 Eliz. cap. 6. Sect. 4. For the meaning is not that the Recusant shall have both of the Terms of Easter and Mithaelmas next after his Conviction wherein to pay the forfeiture of Twenty pounds for every month contained in the Indictment But he ought to pay the whole into the Exchequer the next Easter or Michaelmas Term which shall first happen after his Conviction And therefore if he be convicted in February he ought to pay the whole the next Easter Term unless where the King chooses to seize the two thirds of his Lands by force of this Statute as was admitted in the Case of Standen and the University of Oxford Hill 20 Jac. Jones 24. 25. And in the Lady Webbs Case who was convicted in March the pleading was that in the Easter Term then next following the said Katherine did not pay into the Exchequer according to the rate of 20 l. per month without any mention of Michaelmas Term Bridgman Pasch 16 Jac. 121. For every month after such Conviction By this Clause and that of 29 Eliz. cap. 6. Sect. 4. 29 Eliz. 6. Penalty appropriated to the King to the same purpose after the Recusant is once Convicted the penalty of Twenty pounds per month shall run on without any new Indictment or Conviction and shall be for ever afterwards appropriated to the King alone and paid into the Exchequer so that the Informer cannot bring any popular Action or Information for the Twenty pounds per month Informer barred for any time incurred after such Conviction but is utterly barred Co. 11.61 Doctor Fosters Case Rolles 1. 93. C. 41. the same Case Owen 37. Sulherd and Evererds Case The Lady Webb was Indicted and Convicted of Recusancy upon Proclamation and default of appearance Whether barred in the Case of a Feme Covert and afterwards an Informer Qui tam c. sued her and her Husband for a new offence of Recusancy in the Wife subsequent to such Conviction to which they both pleaded the said Conviction at the Kings Suit The question was whether the Informer should be barred by this Plea or whether the Information was maintainable notwithstanding such former Conviction of the Wife for that the Wife seems not to be such an Offender as is here intended because she can have no Goods or Lands during the Husbands life which may be seized for non-payment of the penalty But it was granted on all hands that if she had been a Feme sole this had been a good Plea in bar of the Informers popular Suit for then she had been bound to pay the Twenty pounds per month into the Exchequer and
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
Privy Council of your Highness your Heirs or Successors or by the Bishop of the Diocess if she be a Baroness or if she be under that Degrée by two Iustices of the Peace of the same County whereof one to be of the Quorum there to remain without Ball or Mainprize until she shall conform her self and come to Church and receive the Sacrament of the Lords Supper unless the Husband of such Wife shall pay to the Kings Majesty his Heirs or Successors for the Offence of his said Wife for every month ten pounds of lawful money of England or else the third part in thrée parts to be divided of all his Lands and Tenements at the choice of the Husband whose Wife is so convicted as aforesaid for and during so long time as she remaining a Recusant convicted shall continue out of Prison during which time and no longer she may be at liberty What Conviction is here meant Stat. 23 Eliz. 1. Being lawfully convicted as a Popish Recusant That is upon Indictment at the Kings Suit or a popular Action or Information on the Statute of 23 Eliz. 1. or an Action of Debt at the Kings Suit alone according to the Statute of 35 Eliz. 1. 35 Eliz. 1. In which two last Cases the former Laws are somewhat altered by this Statute For by the former Laws if a person had been convicted of Recusancy any other way then by Indictment no more could have been demanded either by the King or Informer then for the months mentioned in the Information or Count And the penalty should not have run on in such Case For that the Statutes of 29 Eliz. 6. and 3 Jac. 4. 29 Eliz. 6. 3 Jac. 4. which appropriate the penalty to the King after Conviction intend no other Conviction then by Indictment as hath been there said Baron and seme But by this Statute if a popular Action or Information or an Action of Debt c. at the Kings Suit alone be brought against the Husband and Wife for the Recusancy of the Wife and Judgment be had against them the Husband shall not only pay for the time contained in the Information or Count but the Wife shall be imprisoned ever afterwards unless she conform or the Husband pay ten pounds per month or yield the third part of his Lands to the King And yet this Statute doth not after such Conviction of the Wife in a popular Suit Suits upon former Statutes not taken away or Action of Debt c. at the Kings Suit take away the popular Action or Information from the Informer or the Action of Debt c. from the King for the time to come but that they may be brought against the Husband and Wife for the Recusancy of the Wife for any month or months wherein she is absent from Church after such Conviction For this Statute and 23 Eliz. 1. and 35 Eliz. 1. Stat. 23 Eliz. 1 35 Eliz. 1 are all affirmative Laws and may well stand together so that any of the three remedies given by these Statutes may be pursued This Statute not abrogating any former Law but only providing another way of punishment for the Wife after she is once convicted Howbeit she shall not be punished by any more then one of these three ways Co. 11. 63 64. Rolles 1. 94. Doctor Fosters Case Cro. Pasch 17 Jac. 529. Parker versus Curson And therefore if the King bring an Action of Debt c. upon 35 Eliz. against the Husband and Wife Where the Wife shall not be imprisoned or the Informer sue them upon 23 Eliz. for any absence of the Wife from Church after she is once convicted by either of those ways and recover the Privy Counsellor Bishop or Justices of Peace here mentioned cannot imprison her by force of this Act for the non-payment of the ten pounds per month by the Husband for those months for which the King or Informer hath recovered or for his not yielding the thirds of his Lands to the King And the reason is for that when the Husband stands charged with the penalty of twenty pounds per month for the absence of the Wife the intent of the Act is satisfied in respect of those months of her absence for which he stands so charged For if he pay not the twenty pounds per month so recovered the King or Informer hath the ordinary remedy after Judgment by Process of Capias against them both both And the intent of the Act was no more then that the Husband should pay for the Recusancy of his Wife or the Wife be imprisoned And if in this Case the Privy Counsellor Bishop or Justices of Peace should have power to imprison the Wife unless the Husband would pay ten pounds for the months for which the King or Informer hath recovered it would follow that the Husband hath his Election whether he will pay ten pounds per month to the King by force of this Act or the twenty pounds per month so recovered against him by the King or Informer For he shall not pay both the one and the other for that were bis puniri pro uno delicto And if he shall have his Election the King or Informer might by this device be eluded of the penalty of twenty pounds per month so recovered which could not be the intent of the makers of this Law The King and Informer barred by her Imprisonment But if the Wife be after such Conviction imprisoned by force of this Act neither the King or Informer can so sue the Husband and Wife for the Recusancy of the Wife For she is already punished by this Act and must remain in Prison until the Husband pay the ten pounds for every month or yield the thirds of his Lands to the King or the Wife conforms Or if the Husband yields the thirds So if the Husband yields the thirds of his Lands to save his Wives imprisonment he is already punished by this Act and shall not again be punished or Sued by the King or Informer either upon 23 Eliz. or 35 Eliz. Or pay Ten pounds per month And if after such conviction of the Wife he pay Ten pounds per month to save her imprisonment he cannot be sued with his Wife for the Twenty pounds per month upon either of those Statutes by the King or Informer for those months of her absence from Church incurred after her conviction for which he hath paid the Ten pounds monthly to the King for he shall not Bis puniri pro uno delicto Hitherto hath been spoken of the Conviction of the Wife at the Suit of the King alone by Action of Debt c. or by the Informer Qui tam c. which doth not appropriate the penalty to the King by 29 Eliz. 6. or 3 Jac. 4. Conviction upon Indictment If the Wife be convicted of Recusancy upon an Indictment it hath been much debated whether that doth not so appropriate the
go out of the compass of five miles if required to appear before the Privy Councel 141. Three Privy Councellors may grant him a Licence to travel out of that compass 206 207 208. The nature of such Licence 207 208. The Privy Councel may send for a Popish Recusant confined to come to Court 201. To whom Privy Councellors are to give the Oath of Allegiance 195 196 197. 242. 245 246 247. They may commit the party to Prison for refusing it 250. Where a Privy Councellor may commit a married Noble woman convicted as a Popish Recusant and where not 252 253. County See Iustices of Peace Trial. Court see Recusants Courts See Certiorari Ecclesiastical Courts Informers Iustices Courts of Record what Courts are meant 82 83. 85. What Courts are the Kings Courts 142. In what Courts the King may sue for the penalties given him by 23 Eliz. 1. 122. Court of Kings Bench. See Informers Marshalsie The Justices of the Kings Bench are the Soveraign Justices of Oyer and Terminer and Goal-delivery 66. What offences they may hear and determine 35 36. 94. 188. 193 194. 258. To whom they may give the Oath of Supremacy 261 262. To whom they may tender and give the Oath of Allegiance 251. 261 262. Court of Exchequer see Exchequer High Commission Court Taken away by Act of Parliament 8. Cura animarum A Donative may be cum Cura animarum 233. A Deanry Archdeaconry Prebend are not Benefices with cure of Souls 233. Custom Custom for the Wife to have a part of the husbands goods where in force 222. Day FRactions of a day rejected in Law 198. Death see Recusants Default See Appearance Conviction Denizen Who 128. Naturalization includes Denization 128 129. Deprivation See Notice Pardon Deprivation ipso facto 12. 22 23. Sentence declaratory by the Ecclesiastical Judge where not necessary 22 23. Where a sentence of Deprivation by the Ecclesiastical Judge ought not to be questioned by the temporal Judge 31. Deputy see Officers Deputy Lieutenant see Licences Dignities Ecclesiastical see Cura animarum Disability See Plea Recusants A Popish Recusant convict is disabled as a person Excommunicate 193. 215 216. 223. Is disabled to sue 215 216 217 218 219 220. Such Disability is but quousque c. 216. Disabled to bear office 211 212. To be Executor 212. 234 235. Or Administrator 212. 234 235. Or Guardian 234. To be a witness 216. Or surety for the good behaviour 64. To present or nominate to a Benefice or Donative or to grant the next avoidance 226 227 228 229. Where disabled to be Tenant by the Courtesie 220. Or to have Dower 220. Or Jointure 220 221. Or any Goods by Custom 212 213. 220. 222. The Husband of a Popish Recusant convict where disabled to bear Office 211 212. A Recusant convict to what intents disabled 211. Disabilities inflicted on such as go beyond Seas without Licence 223 224. Or educate their Children in the Popish Religion or are so educated 264. Or send any person beyond Seas to be so educated or are so sent 257 258. Or who refuse the Oath of Supremacy 10. 43 44. Or the Oath of Allegiance 243. 251. Or execute any Office without taking the Oaths and Test injoined by 25 Car. 2.2.263 264. Discharge See Conformity Indictments Seizure Discontinuance see Informations Discovery See Iustices of Peace The reward of him who discovers the entertainer or reliever of a Jesuite or Popish Priest or Mass to have been said c. 200 201. To whom and within what time the discovery must be made 200 201. How the Reward shall be recovered 201. Disjunctive Where a Disjunctive shall be taken for a Copulative 184. Dispensation Dispensation by the King where void 44.243 Distribution see Penalty Donative See Recusants A Donative may be cum cura animarum 233. Dower See Baron Feme Dower in what cases saved 43.124 194. Where a woman shall be disabled to have any Dower 220. Ecclesiastical Courts and Iurisdiction See Church Deprivation Heresie King Parish FOrraign Ecclesiastical Jurisdiction abrogated 4 5. The Ecclesiastical Judge ought not to usurp upon the Temporal Law 6. The nature of his offence if he so usurps 6. The Queen might grant Commissions for the exercise of Ecclesiastical Jurisdiction 7 8. And that without the aid of 1 Eliz. 1.8 Archbishops and Bishops shall punish absence from Church and other offences against 1 Eliz. 2. by Ecclesiastical Censures 28. 30. Ecclesiastical Court not restrained by 1 Eliz. 2.31 Ecclesiastical Jurisdiction saved to Archbishops Bishops c. 88. 194. 239. Ecclesiastical Laws see Laws Ecclesiastical Persons See Common Prayer Clericus what it implies 21. Every Priest or Minister is Clericus 45. Election See Executors King Enquiry See Iustices What is meant by Enquire 68. Equity see Statutes Examination see Iustices of Peace Error see Alien Exchequer Principal Officers of the Court of Exchequer who 71. Principal Officers of the Receipt of Exchequer who 71. Excommengement See Recusants Where the Sheriff or other Officer may break the House to take one Excommunicated for Recusancy 193. Recusant Excommunicate i. e actually Excommunicate 223. Excommunication cannot be pleaded by the Bishop who Excommunicated the party and the reason of it 217 218. A person Excommunicate cannot sue as Executor or Administrator 218. Executors See Excommengement The offender hath his Election to pay the Forfeiture or be imprisoned and dies Quaere whether his Executors shall be charged 25 26. A man grants the Administration of his Goods and Chattels to J. S. thereby J. S. is made Executor 235. Who is disabled to be an Executor 212. 234 235. 258. 263. Failer of Records WHere Judgment shall be given on Failer of the Record 217 Where the not having the Record at the day shall be no Failer of the Record 217. Felony 90 91. 117. 139 140. 181 182 183. 194. See Vniversity Feme see Baron Feme Fine see Iustices Forfeiture See Abjuration Baron Feme Copyholds Penalty Recusants Forfeiture how a gift in Law 232. Forfeiture given without saving to whom shall be to the King 61. 70. Forfeiture in a Praemunire 46. 152. Forfeiture for Treason 152. Forfeiture of Lands generally shall not include intailed Lands 46. 152. Forraign see Iurisdiction Fraud See Covin Recusants Fraudulent Conveyances void 86 87. 99 100. 105. 231. Gaol see Imprisonment Goods See Seizure What is included within the word Goods 105. Grants by the King see King Grants by a Recusant See Covin Recusants Guardian See Kin. Recusants Who is disabled to be a Guardian 234. 263. Who shall be Guardian where the Recusant is disabled so to be 234 235. Heir Where there shall be no disherison of the Heir 42. 124. 194. Where the Conformity of the Heir of a Recusant shall discharge the arrears incurred in the Ancestors life time and where not 148 149 150. Hereditament What passes by Hereditament 106. 171 172. Heresie What the Ecclesiastical Commissioners might adjudge to be Heresie 16. What shall not be deemed Heresie or
Schisme 16. House Where a man may keep a Recusant in his house and where not and the Penalty 191 192 193. Ieofailes Informations on penal Laws within which Stat. of Jeofailes and within which not 73. Iesuite See Iustices of Peace Seminary Priest Imprisonment See Baron Feme Covin Imprisonment in what cases 12 13 14 15. 21 22 23 24 25 26. 59. 64. 70. 79. 86. 96 97. 107. 114. 162 163. 174 175. 182. 189. 193. 198. 211. 216. 237. 250 251 252 253 254. Incapacity see Disability Incertainty see Informations Indictments See Alien Conformity Iustices of Peace Parish Péers Recusants Sessions Witnesses Where 't is necessary that the Indictment for the second offence domention the first Conviction and where not 22. Two Indictments before several Justices for the same offence the first Judgment shall stand 66. Where an Indictment must conclude contra formam Statuti and where contra formam Statutorum 65. 125 126. Indictment for refusing the Oath of Supremacy 40 41. Indictment of Praemunire for refusing the Oath of Allegiance where it must be special and where it may be general 176. It must be directed by the Mittimus 176. Indicting a man of High Treason where actionable 58. Indictment for Recusancy the form of it 107. 129. It need not mention that the party was within the Realm 107. Where such Indictment or the Proceedings thereupon may be avoided or discharged without Conformity and where not 179 180 181. Existens aetatis 16. annorum shall refer to the time of the offence and not of the Indictment 60. In an Indictment on 1 Eliz. 2. for not coming to Church not necessary to aver that the party is an Inhabitant within this Realm 26. Or that he had no lawful or reasonable excuse 26 27. Informers Informations Actions Popular c. See Alien Audita Querela Baron Feme Conformity Ieofailes Plea Sunday In an Information tam c. quam c. Conviction thereupon is a sufficient Conviction within the intent of 23 Eliz. 1. 60 61. In what Courts an Informer Qui tam c. may sue and in what not 82 83 84 85. 100 101. 122. 160. Where an Informer may sue by Bill in the Kings Bench and where not 85 86. Within what time an Informer Qui tam c. must sue 73 74. 122. 160. Popular suit when depending 76. Where a Popular Action or Information becomes appropriated to a particular person 76. 78. Such Suit may be appropriated before Process 76. Two Informations for the same offence 76 77. The Defendant in an Information pleads that a prior Information is depending but mistakes the day of exhibiting it and yet good 76 77. Two Informations supposing the same offence to be done at several times where the first may be pleaded in bar of the second 77. How that case differs from the case of Recusancy 77. Two Informations exhibited the same day for the same offence are both void 78. When an Information may be delivered 78. When it must be dated 78. Action Popular brought by Covin no bar 79. Tam pro Domino Rege c. material 71. In an Information for Recusancy what the Informer is to demand for himself 71. His demand must be certain 72. He demands less then appears to be due yet good 62. He demands for 13 months and the Jury find for 12. Quaere whether the verdict be good or void for incertainty 62 63. Judgment of one moiety to the King and another to the Informer good 72. Where an Information may conclude contra formam Statuti and where it must be contra formam Statutorum 72. Where the particular Statute must be named 71 72. Where upon the demise of the King the proceedings in a popular Suit shall be discontinued and void and where not 80 81. Scire facias against an Informer 82. Where an Informer shall pay Costs 82. But he shall not find Sureties for Costs 82. In an Information for not receiving the Sacrament after Conformity the conviction of the Recusant must be shewed in certain 158 159. Where the Defendant may lose his advantage in that case 158 159. But his Conformity may be shewed generally 159. An Information lies in that case for the third year although the party were never convicted for the first or second year 159 160. Where an Informer is barred and where not 76 77 78 79 80. 163. 166. 167 168 253 254 255. An Informer Qui tam c. may be nonsuited 81. Inquisition see Office Inquiry see Enquiry Intent In what cases material 35. 52 53. Iointure See Baron Feme Where it may be averred that the Lands were for Jointure and where not 214. Where a woman shall be disabled to have a Jointure and what Jointure 220 221. What is a good Jointure within 27 H. 8. cap. 10. and what not 213 214. 221 222. Ireland See Alien Laws Treason Issue See Plea General issue where it may be pleaded 194. Iudgment See Conformity Conviction Failer of Records Informations The Judgment on 1 Eliz. 2. of the Common Prayer 25. The Judgment in a Praemunire 46. The Judgment on 23 Eliz. 1. shall be absolute 86. Where Judgment must be given for the first offence before the party can be punished for the second offence and where not 25. 159 160. Iurisdiction See Archbishop Ecclesiastical Iurisdiction King The penalty on him who holds with or maintains any forraign Jurisdiction within this Realm 11 12 13. 33 34. 36. 41 42. Within what time the offender must be prosecuted on 1 Eliz. 2.13 14 15. Iustices See Indictments Trial. The Justices shall fine and imprison the offender 97. Iustices of Assize and Gaol-delivery To whom they may tender and give the Oath of Allegiance 175 176. 242. 250. What offences they may hear and determine 28 29. 65. 107. 158. 162. 188. 193 194. 258. What offences Justices of Assize can only enquire of 35 36 37. Iustices of the Kings Bench. See Court of Kings Bench Iustices of Oyer and Terminer See Iustices of Peace What offences Justices of Oyer and Terminer may hear and determine 28 29. 36. 65. 258. Iustices of Peace Justices of Peace shall not be comprehended under the general name of Justices of Oyer and Terminer 258. What offences Justices of Peace may hear and determine and what not 65 66. 162. 193 194. 258 259. They may hear and determine the offence of not coming to Church 66. 162. What offences they can only enquire of 35 36. 65. 101. Where they cannot meddle 68. An Informer Qui tam c. cannot sue before Justices of Peace 82 83 84 85. 160. What Acts a Justice of Peace may do out of his County and what not 238 239. 249. His Potestas Jurisdictionis is confined to his County 238 239. The power of Justices of Peace in reference to the Oath of Allegiance twofold 196. Their power inlarged by 7 Jac. 6. 176. 245. The Justice of Peace impowred to tender and give the Oath of Allegiance may grant