King die all proceedings in Suits depending between party and party shall stand But 2 Cro. 14. is to be understood of such Cases where after a Plea or demurrer by the defendent the Attorny General alone replies or joynes in demurrer there the proceedings shall be void and the defendent 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 these two opinions are reconciled 20. An Informer Release qui tam c. may be Nonsuited altho the King cannot 1 Inst 139. Hutton 82. Farrington versus Arundell If pending the popular action or Information the Plantiff or Informer qui tam c. be Nonsuited or release or Enter a nolie prosequi or die none of these shall bar the King but the Attorny Genaral may proceed upon the Information for the Kings part 1 Leonard 119. pl. 191. 3 Cro. 138. Stretton versus Taylor 3 Cro. 583. Hamond 3 Inst 194. Moor 541. pl. 715. and 11 Co. 66. Dr. Fosters Case 2 Bulstrode 261.262 Waller versus Hanger 2 Rol. 33. Smith versus Carter And therefore the opinions in 37 H. 6.5 and 38 H. 6.2 that if the Plantiff in a Decies tantum which is a popular Action be Nonsuit the King is without remedy but by Indictment or if such Plantiff will relinquish his Suit that the King hath nothing further to do seem not to be Law at this day 21. If a popular Information be brought upon a penal Statue in a wrong Court where the Informer cannot sue Courts yet it was held Moor 564 c. pl. 770. in Agar and Candishes Case that the King should not for that loose his advantage of the suit but the Information should be good for his part of the penalty By 18 Eliz. 5. § 3. N. 3. If an Informer or Plantiff Costs upon a penal Statute where any forfeiture is generally limited to him that will sue shall delay or discontinue his suit or be Nonsuit or shall have the Tryal or matter pass against him by Verdict or Judgment of Law he shall pay to the defendent his Cost Charges and Damages see the addition to Bendloes 141. Rhobotham and Vincent and if it be upon a special Verdict or demurrer those Cases are within 18 Eliz. 5. § 3. N. 3. and he shall pay Costs by force thereof Hutton 36. Pies Case 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 defendent answer the Information 2 Bulst 18 Martin and Gunnystons Case Savil 10. pl. 26. Wilkes Case it was held in the Exchequer Chamber that if a writ of Error be brought upon a Judgment given for the King at the Suit of an Informer a Scire facias ought to be awarded against the Informer LXXX Courts Page 82 83 84. By any Court of Record is here 23 Eliz. 1. § 11. N. 1. meant the four ordinary Courts of Record at Westminster For they are the general Courts of Record and the Courts where the Kings Attorny may acknowledge or deny and the words of 23 Eliz 1. § 11. N. 1. being general are left to the construction of law where the Rule is that verba equivoca in dubio posita intelliguntur in digniori potentiori sensie 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 Borrough or corporate Towns or in a Court of Pipowders Stannary Courts c. Jones 193. And such a construction hath been made of those words Court of Record upon several Statutes as 6 Co. 19.20 and Moor 600. pl. 827. Gregories Case on 4 and 5 Ph. Mar. 5. § N. of Woolen Cloathes In 1 Cro. 149. Green versus Guy on 21 11.8.13 § 11. N. 2. of Non-resid nee In 1 Cro. 112.113 and Hutton 99 Farrington and Keymer on 23 H. 8.4 § 5. N. 3. of Brewers In Stiles 340. Buck stone and Shurlock on 7 Ed. 6.5 § 6. N. 3. of selling wine without Licence In 3 Cro. 737. Barnabee versus Goodale and 2 Cro. 538. Millors Case and Styles 383. upon 5 Eliz. 4. § 13. N. 3. of Trades In Moor 421. pl. 581 upon the Statutes for Tanning of Leather and divers others 2. It was held Mich. 6 and 7 Ed. 6. Dyer 236. pl. by all the Justices but three that where a Statute appoints a penalty for any offence made thereby which was not an offence at the common law to be Recovered in any of the Queens Courts of record by Action of debt and no other Court is appointed The Statute intends the sour ordinary Courts of Record at Westminster and the offence and penalty cannot be punished and determined by Commissioners of Oyer and Terminer in Patriam But Dyer makes a Quaere hereupon and Sir Edward Coke in Scarlets Case 12 Co. 98. saith 10 Jac. that the opinion of Catlin Sanders and Whiddon which were the three dissenting Justices before c. is at this day held for good law and the opinion of the rest of the Justices that any Courts of Record are restrained to the ordinary Courts at Westminster of Record is not held for law Continual Experience saith he being against it for that Justices of Assize in respect of their Commission of Oyer and Terminer have alwaies enquired of offences where the penalties is appointed to be sued in any Court of Record as upon 33 H. 8.9 § 18. N. 1. of unlawful Games 35 H. 8.17 § 9. N. 2. of words and 5 and 6 Ed. 6.14 § 9. N. 2. of forfeitures and other Statutes But under favor altho Commissioners of Oyer and Terminer may take Indictments for the doing of that which is made malum prohibitum by a Statute Law yet that part of the opinion in Dyer 236 which relates to the Action of debt and the Courts of Record where such Action must be brought is good law and where only Courts of Record are named such Action cannot be brought in any other Court then the four ordinary Courts of record at Westminster as appears by the several Cases and resolutions before recited 3. Sir Edward Coke 3 Inst 193. and 4 Inst 174. saith that this exception of Recusancy in 21 Jac. 4. § 5. N. 1. doth not extend to the Courts 21 Jac. 4. § 1. N. 5. wherein the Informer is to sue but only to the County where 21 Jac. 4. § 2. N. 1. the offence is to be laid So that notwithstanding that exception 21 Jac. 4. § 5. N. 1. the Kings Bench Chancery C. B. Exchequer or Exchequer Chamber cannot relieve or hold plea of any Information for Recusancy either by the Kings Attorny or
there is a great difference between the penning of this Statute 35 Eliz. 2. § 15. N. 1. and 35 Eliz. 1. § 1. N. 5. for in 35 Eliz. 1. § 1. N. 5. there is an express designation of the place where such Submission and Declaration shall be viz. in any Church Chappel or usual place of Common prayer whither the Offender comes and this shall free him from his Imprisonment supra 112 But 35 Eliz. 2. § 8. N. 3. Where 't is said that he shall abjure unless he comes usually to Church and make such Confession and Submission c. His coming usually to Church cannot be applied to his Confession and Submission for that is to be made but once and not usually and therefore there being no place appointed where this Confession and Submission shall be made we must necessarily have recourse to 35 Eliz. 2. § 15. N. 1. where a place is appointed viz. some Parish Church So that the coming usually to Church without this formal Submission and Confession or Declaration in some Parish Church frees not the Offender here in any Case from abjuration Altho the coming to any Church Chappel or usual place of Common-prayer and hearing Divine service and making open Submission and Declaration there shall free an Offender within 35 Eliz. 1. § 1. N. 5. from Imprisonment Page 144 145. CXLVI Submission 35 Eliz. 2. § 15. and 16. If a Popish Recusant Indicted upon this Statute makes his Submission and brings with him into B. R. a testimonial thereof it is the Course of that Court to cause him there to make his Submission again upon his knees which the Clerk of the Crown reads to him and so was it done Pasch 2. Car. 1. Latch 16. in the Case of one Throgmorton but Jones Justice said there was no Statute to compel him to this second Submission and Throgmorton complained that he was not therein dealt with according to Law 2. 35 Eliz. 2. § 16. N. 2. Is Over her Majesty or within any her Majesties Realms or Dominions And not over her Majesty within any her Dominions as Wingate Crown 85. grosly misrecites for that denies only Popes or See of Romes Authority over her Majesty but not any other ther Authority which they might claim over her Subjects And 't is clear by the disjunctive or which Wingate omits that both these Authorities are intended to be denied by this Submission these words or any Colour or means of any Dispensation which are a very material part of the Submission are likewise omitted by Wingate CXLVII Certificate Page 145. Such Relaps 35 Eliz. 2. § 18. N. 1. with the Indictment thereof is to be certified into the Court of Exchequer as was done by the Justices of B. R. 1 Bulstrode 133 in the Case of Francis Holt Pasch 9 Jac. 1 Iac. 4. Of SEIZVRES CXLVIII Oath PAge 147. By the Oath of Obedience is here 1. Jac. 4. § 1. N. 2. meant the Oath of Supremacy in 1. Eliz. 1. § 19. N. 4. supra and by that name it is here called afterwards 1 Jac. 4. § 3. N. 2. Crompt 13. Page 148. CXLIX It hath been doubted on 1 Jac. 4. § 2. N. 1. whether these words Accodring to the true meaning of the Statutes in that behalf 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 Judgement according to 23 Eliz. 1. § 10. N. 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 1 Jac. 4. § 2. N. 1. 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 1 Jac. 4. § 2. N 1. have enlarged the time limited by 23 Eliz. 1. § 10. N. 1. For this Statute 1 Jac. 4. § 2. N. 1. is made in further favour 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 2. And if an Information tam pro Domino Rege quam pro seipso be brought upon 23 Eliz. 1. § 11. N. 1. 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 for against the Informer he must bring his Audita Querela and against the King he must plead his Conformity which he may do in this Case after Judgment for that no Audita Querela lieth against the King 11 H. 7.10 and it he should not be admitted to plead he would be without any legal Remedy to discharge himself of the forfeiture and Judgement as to the Kings part whose Execution will not be hindered by the Audita Querela against the Informer But if the Defendant neglect to put in his Plea and Execution issueth 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 releive himself as to the Kings part but by his Petition to the King to pardon the Debt 2 Bulstrode 324 1. Rol. 95. Dr. Fosters Case Savil 23. pl. 56. Tiringhams Case CL. Heir Page 149. If any Recusant shall hereafter die 1 Jac. 4. § 3. N. 1. that is a Recusant either Convicted upon Proclamation and default or Convicted by Verdict Confession c. and adjudged for in both those Cases if the Recusant die the discharge of the Heir depends upon his Conformity CLI Forfeiture Page 149 150. Of all and singular the penalties Charges and Incumbrances 1 Jac. 4. § 3. N. 1. If Judgment be had at the Kings suit against a Recusant Tenant in Tail for Recusancy this is a charge and Incumbrance within this Stature of which the Heir in Tail shall not be discharged unless he conforms but must satisfie all the Arrears incurred in the life time of his Ancestor For it being a debt to the King upon a Judgment the entailed Lands are lyable thereto by 33 H. 8.391 § N. But these two Clauses 1 Jac. 4. § 3. N. 1. discharge the Arrears of the 20 l. per month Incurred in the Recusants life time upon the Conformity of the Heir in such Cases only where the two parts of the Recusants Lands were not seized before his death For if they are seized in his life time and continue so till his death neither his fee simple Lands nor his Intailed Lands if a Judgment were had against him for his Recusancy at the Kings suit shall be discharged upon the Heirs conformity without payment of
be construed to be against reason for many things are excepted out of Statutes by the Law of Reason which are not excepted by express words 4 Inst 330 331. Com. 13. XVII Indictment Page 22. One indicted on 1 Eliz. 2. § 5. N. 1. for administring Baptism in other form then is thereby prescribed and is convicted and afterwards is again indicted for the like offence 1 Leon. 295. Pl. 403. by the opinion of Clench Justice in 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 Cheif Justice held that if both Indictments were before the same Justices they are to take notice of the first conviction altho 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 Page 24. XVIII Bar. Feme A Feme Covert is within the meaning of 1 Eliz. 2. § 9. N. 1. any person c. and shall be liable to the penalties thereby inflicted Hob. 97. Moor versus Hussey Dyer 203. pl. Sir Edward Walgrave's Case XIX Parliament Page 24. There hath been a great question when this Parliament of 1 Eliz. began Poulton saith Jan. 23. Dyer 203. pl. is Jan. 25. and 4 Inst 7. is Febr. 25. and for the incertainty when it commenced an information upon 1 Eliz. 2. § 9. N. 1. against Sir Edward Walgrave and his Wife by the Queens Attorny without any special recital of the Statute only supposing the offence to be Contra formam effectum cujusdam Statuti in Parliamento tent ' apud Westmon Anno primo Reginae nunc c. Dyer 203 pl. was held good For this is a general Statute and so needs not be perticularly recited Com. 53.79.81.23 XX. Religion Page 24. The hearing of Mass is a maintaining within 1 Eliz. 2. § 9. N. 2. and the person hearing is indictable thereupon Hob. 97. Dyer 203 and 323 pl. Fermors Case XXI Indictment Page 25. The Offender in any of these Cases viz. 1 Eliz. 2. § 10. N. 1. § 11. N. 1. cannot be punished for the second offence before he be 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 2 Inst 479. Dyer 323 pl. XXII Forfeiture Page 25 26. An Information was brought by the Attorny General in B. R. upon 1 Eliz. 2. § 9. N. 2. for hearing Mass and Judgment given Trin. 3 Eliz. Quod forisfaceret Dominae Reginae si non solvet infra c. tunc Imprisonabitur c. as 1 Eliz. 2. § 12. N. 1 and 13. N. 1. the forfeiture was estreated into the Exchequer within the six weeks mentioned in the Statute and before the six weeks expire the Defendent in the Information dieth Quaere whether his Executors shall be charged with the forfeiture of an hundred marks for that the Offender died within six weeks and so by the act of God his body cannot suffer imprisonment for six months in lieu of the forfeiture and the Statute gave his Election in this Case whether he would suffer imprisonment or pay the hundred marks Dyer 203 231. pl. Sir Edw. Walgraves Case But this Question may now be prevented for the Offender may be indicted upon 23 Eliz. 1. § N. which inflicts for such offence an hundred marks and imprisonment both XXIII Bar. Feme Page 26. A Feme Covert is within this Statute 1 Eliz. 2. § 14. N. 1. all and every Person c. and shall forfeit twelve pence if she repair not to Church every Sunday and holyday 11 Cook 61. Dr. Fosters Case 1 Rol. 93. 3 Bulstr 87. pl. Dominus Rex Law Hob. 97. XXIV Alien Page 26. In an Indictment upon 1 Eliz. 2. § 14. N. 1. It need not be inferred that the Offender is an Inhabitant within this Realm c. for if he be not that ought to come on the other side Godbolt 148. pl. 191. Ann Mannocks Case XXV Averment Page 26 27. Nor need be averred in such indictment on 1 Eliz. 2. § 14. N. 1. that the Party had no lawful or reasonable excuse to be absent but that ought likewise to come on the other side 2 Leonard 5. pl. 6 Eliz. Dormers Case Note that these words Having no lawful or reasonable excuse c. are by mistake in that Case supposed to be in 23 Eliz. 1. XXVI Church Page 27. If a Man doth not resort to the Church of the Parish wherein he dwelleth nor to the Chappel of Ease whereunto the place of his abode belongs yet if he goeth to that Church or Chappel to which he hath been accustomed to resort it seemeth to be sufficient to satisfie the intent of 1 Eliz. 2. § 14 N. 1. 1 Bulst 159. Page 27. Altho the words of 1 Eliz. 2. XXVII § 14. N. 1. be disjunctive Viz. That he shall abide there during the time of Common-Prayer Preaching or other Service of God yet they are to be taken conjunctively and the party ought not to depart when the Service is ended if there be preaching but must continue there for the whole time Godbolt 148. pl. 191. Mannocks Case and yet if he abides there during the whole time he may be liable to the penalty of this Law for there are four Adverbs in 1 Eliz. 2. § 14. N. 1. 1. Diligently which denotes Attention 2. Faithfully which denotes Devotion 3. Soberly which denotes Gravity 4. Orderly which denotes Decency All which ought to be observed so that if he walk or talk in the Church during the service of God there he may be punished upon this Act as if he were absent by Cook Cheif Justice 1 Rol. 93. Dr. Foster's Case XXVIII Forfeiture Page 27 28. This Forfeiture 1 Eliz. 2. § 14. N. 2. still remains notwithstanding the Statute of 23 Eliz. 1. § 5. N. 1. which gives the 20 l. per month and that appears by 3 Jac. 4. § 27. N. 2. which gives a more speedy remedy for the recovery of the Forfeiture of twelve pence and by the different times when these two Forfeitures are due which sheweth that the one was not intended in the Room of the other For the 20 l. per month is due for a months absence and cannot be sued for till the month is past but the twelve pence is due for every absence either Sunday or Holyday for it is forfeited as soon as the Sunday or Holyday is past and may be sued for every week So that the Recusant may be punished both by
annorum amplius non accessit ad Ecclesiam c. The question was whether the Existens c. Should refer to the time of his Indictment or to the time of his absence And the Judges conceived that the Indictment was well enough and pursuant to the Statute and that Existens should in this Case refer to the time of his absence LXII Lieu. Page 60. Upon 23 Eliz. 1. § 5. N. 1. this offence Not repair c. but forbear c. consists not in committing but in omitting and is but a nonfeasance and therefore cannot be said to be in any certain place and for this reason in a popular action brought by the Informer qui tam c. there needs no place be alledged in the Declaration Anderson 139. pl. 109. Cuff against Vachel Nor is Recusancy within 31 Eliz. 5. § 2. N. 1. which sayeth that the offence shall be laid in the proper County where it was done or committed for to speak properly it was not committed any where Hobart 251. pl. Grimstone versus Molineux infra 79. § 6. LXIII Proof Page 60. 61. By this Being thereof lawfully convicted 23 Eliz. 1. § 5. N. 1. Is not ment that the party must be Convicted in some former suit but a Conviction upon the same Indictment or Information which is brought against him for the recovery of the 20 l. per month is sufficient conviction within the meaning of this Statute And so are all penal Statutes which have in them those words being thereof lawfully Convicted to be understood that is of a conviction in the same sute whereupon the penalty is to be recovered for the meaning only is that the offendor shall forfeit nothing before Conviction which is no more than the Law implyeth and therefore in truth these words are but superflous and might as well have been omitted 11 Co. 59. 1 Rolls 90. pl. 41. Dr. Fosters Case and 1. Rolls 234. pl. 6. and 3. Bulstrode 87. the King against Lane 2. Nor is Convicton intended here 23 Eliz. 1. § 5. N. 1. only of a Conviction by Verdict and therefore if the offendor be convicted upon his confession of the Fact and Judgment thereupon be had and consequently if Judgment be had against him upon a demurrer which is a Confession of the matter of Fact Or if Judgment be given against him on nihil dicit for any other Cause any of these are sufficient Convictions whereupon to recover his penalty for Convicted is here 23 Eliz. 1. § 5. N. 1. to be taken for attainted as t is in many other Cases for until Judgment he shall forfeit nothing and altho he that is convicted is not therefore attainted yet every one who is attainted or adjudged is Convicted and of such a Conviction is this Statute to be understood infra 233. LXIV Forfeiture Page 61. These words To the Queens Majesty In 23 Eliz. 1. § 5. N. 1. are but surplusage and import no more than the Law would have given the Queen without them for where a Statute gives a forfeiture and limits not to any particular person the King shall have it by construction of Law as was agreed 2 Anderson 128. pl. 73. in the Case of Agard and Tandish and so should he have this whole 20 l. per month if the Statute had staid here and had not afterwards made another express appointment infra 76. Page 61. 62 63. It seemeth that the month here 23 Eliz. 1. § 5. N. 1. mentioned shall be accounted secundum numerum singulorum dierum LXV Dayes allowing but 28 daies to a month for so are all Statutes to be understood which speak of the month unless W. 2. cap. 5. § N. for the account of a Lapse and 2 3 Ed. 6.13 § N. of proving a suggestion 1. Inst 135. 2 Co. 166. Yelverton 100 Hob. 179. supra pl. 7. and of this opinion the Court of B. R. seemed to be upon the Construction of the Statute of Liveries 8. Ed. 4.2 § 2. N. 3. in the Case of Donner and Smith 3. Co. 835. pl. So that by this account the Recusant shall forfeit thirteen score pounds in the whole year 2. In an Information 2 Cro. 529. pl. brought by Parker Quitam c. against Sir John Curson and his Wife for the Recusancy of the Wife for 11 months and not guilty pleaded it was proved at the Trial Pasch 17. Jac. in B. R. that she conformed and came to Church for part of the time in the Information yet forasmuch as she was a Recusant both before and after it was said by the Court that her Conformity for some part of the time should not excuse her and she was found Guilty for the whole time 3. The Informer shewed that the Recusant was absent from Church from the 10 September 15. Jac. unto 9 September 16. Jac. and demanded Two hundred and twenty pounds for eleven months upon not Guilty pleaded it was found against the Defendent and it was resolved that altho the Informer had demanded less than by his own shewing was due for the time mentioned in the Information was 13 months compleat Except one day yet the Information was well enough for the Recovery shall be intended to be for the eleven months when the Recusant was first absent and the Addition of more is not material 2 Cro. 529. and 2 Roll. 90. Parker against Sir John Curson and his Wife and this is not like the Case of 1 Cro. 331. Bawderock and Mackaller Mich. 9. Car. 1. where the Informer Qui tam c. Upon 31 Eliz. 6. of Symony demanded less than the penalty and the Court seemed to be of opinion that altho it was good enough for the King notwithstanding that misprision yet it was not so for the Informer and compared it to the Case of Agard and Candish where an Information was brought upon the Statute of liveries after the year and it was adjudged to be good for the King but not for the Informer for upon 31 Eliz. 6. § N. which gives one intire penalty for the offence if less be demanded the Statute is not persued and there is a clear variance between that and the Information but in the Case of Recusancy when he demands Two hundred pounds for eleven months the Statute 23 Eliz. 1. § 5. N. 1. is persued and tho it appear by the Information that the Recusant was absent for a longer time yet the Informer is at liberty whither he will demand the penalty for his absence during that Supernumerary time 4. If it be shewed in the Information that the Recusant was absent from Church from a day certain to a day certain which in all makes 13 months and the penalty is demanded for that time and the Jury find the party Guilty for 12 months it hath been held by some that the Verdict shall be good for 12 months but whether for the first 12 months is a Question for in Sir J. Cursons Case 2
qui tam c. afterwards 23 Eliz. 1. § 11. N. 1. in a distinct branch by it self without any reference to this 4. So that by 23 Eliz. 1. § 9. N. 2. and before 35 Eliz. 1. § 10. N. 2. which gave the Queen an Action of debt c. the Queen had no other remedy to recover the intire forscitures given hereby but by Indictment only 11 Co. 60. and 1 Rol. 91. pl. 41. Dr. Fosters Case 5. See Jones 193 pl. for that and the suit by the common Informer are the only wayes appointed by 23 Eliz. 1. § 9. N. 2. and § 11. N. 1. and the subsequent Clause 23 Eliz. 1. § 10. N. 1. of submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tryed shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hob. 205. Pie and Lovel 6. Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. 1. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reverst for the offence is made by 1 Eliz. 2. § N. and the penalty is given by 23 Eli. 1. § N. and therefore it should have been Contra formam Statutorum Owen 135. pl. Wests Case infra 79 § 4. Far. Feme 7. If a Feme Covert be Indicted at the Kings Suit for an offence within 23 Eliz. 1. § 5. N. 1. she may be charged with the penalty after her Husbands death but the Husband is not chargable nor shall pay the penalty for that he is no party to the Judgment and this was one of the Causes of making 35 Eliz. 1. § 10. N. 1. by which Statute the King may have an Action of debt and recover the forfeiture against the Husband 1 Rol. 93.94 Roy versus Foster Savile 25 pl. 59. LXXIII Treason Page 68. This Exception 23 Eliz. 1. § 9. N. 2. of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal-delivery as Wingate Crown 46. hath mistaken but only to Justices of Peace who are not to medle in thâ—â—â— two Cases but the other Justices may LXXIV â—onformity Page 69. Upon 23 Eliz. 1. § 10. Before Iudgment submit and conform himself c. But now by 1 Jac. 4. § 17. N. 1. If the Recusant conforms after Judgment it seems it shall be time enough to have the forfeiture 2. A man is convicted of Recusancy according to 29 Eliz. 6. § 2. N. 5. upon Proclamation and default of appearance and afterwards submits and conforms he shall by force of 23 Eliz. 1. § 10. N. 1. be discharged of the forfeiture of twenty pounds per month for this is a submission and conformity before Judgment the Conviction upon Proclamation being no Judgment but only in nature of a conviction by verdict as was resolved by all the Judges Mich. 37. and 38 Eliz. see 1 Rol. 94. pl. 41. Dr. Fosters Case 3. Page 69. Certain Persons were Indicted upon 23 Eliz. 1. § 5. N. 1. for not coming to Church and were outlawed upon the Indictment the Court of B. R. would not in this Case receive their submission upon 23 Eliz. 1. § 10. N. 1. but advised them to purchase their pardon for the Outlawry which they did and the their submission was accepted of and they were discharged 4 Leonard 54. pl. 138. Note in the report the Statute 13 Eliz. 2. is mistaken for 23 Eliz 1. for no Indictment for not coming to Church lyeth on 13 Eliz. 2. LXXV Certisicate Page 69 Upon 23 Eliz. 1. § 10. N. 1. If a man be Indicted for Recusancy before Justices of Peace and he submits and conforms before the Bishop of the Diocess be may remove the Indictment by Certiorari into B. R. and there plead his Conformity by Certificate under the Bishops hand and Seal Styles 26. pl. 2. For the manner of a Recusants submission and Conformity before the Bishop after Conviction and the Bishops Certificat thereupon see Co. Entr. 569. LXXVI Forfeitures Page 70.71 All forfeitures of any sums of mony limited by this Act. 23 Eliz. 1. § 11. N. 1. Shall be divied c. So that the distribution here appointed extends not only to the forfeitures of Two hundered and One hundred Marks for saying or hearing of Mass and the ten pound a month for keeping a School-Master Contrary to this Act but likewise to the twenty pound per month for not repairing to Church 2. In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases for altho by 23 Eliz. 1. § 5. N. 1. the whole Twenty pound per month is given to the Queen which the other forfeitures are not in express words yet that will not alter the Case nor make void the express appointment made here in what manner and to whom all the forfeitures limited by 23 Eliz. shall be disposed of 3. And it is usual in Acts of Parliament to give the whole penalty for any Criminal matter to the King and afterwards in the same Act to make distribution thereof and give part to him that will sue as in 3 H. 6.3 § 1. N. 1.2 and 3 H. 7.7 § 1. N. 5.10 and the subsequent distribution shall alwaies stand good notwithstanding the precedent words of limitation of the whole to the King 4. For those words in penal Statutes To the King or to the Queen are upon the matter but void and superfluous and give the King or Queen no other or stricter interest than they would have had if they had been omitted and it had been said shall forfeit without apointing to whom 5. And the reason is for that the Law devolves the forfeiture upon the King where no other person is appointed and shall forfeit without more saying is as much as shall forfeit to the King But when afterwards in the same Statute a particular appointment is made how the penalty shall be that qualifies the former and general words and such distribution shall be made as the Statute appoints 11 Co. 60. and 1 Rol. 89.90 pl. 41. Dr. Fosters Case and 1 Anderson 139.140 pl. 190. Cuff and Vachell supra 46. Page 71. Upon 23 Eliz. 1. § 11. N. 1. Scot was Indicted for Recusancy LXXVII Poor Anno. 26. Eliz. 2 Leonard 167. pl. 204. By the name of William Scot of Southwark Gent. and Exception was taken to the Indictment for that within Southwark are several Parishes and the third part of the penalty is to be applyed to the relief of the Poor of the Parish where the offence was committed But in this Case the Recusant being named generally of Southwark non potest constare Curiae where the offence was nor to what Parish the third part of the penalty belongs But the whole Court of B. R. were there of opinion
that the Indictment was good enough notwithstanding it is not said of what Parish the Recusant was for the whole penalty of twenty pound per month is at first 23 Eliz. 1. § 5. N. 1. given to the Queen and the Inhabitants of the Parish where the offence was are by 23 Eliz. 1. § 11. N. 1. to sue in the Exchequer for their third part and surmile in their Bill that the offence was in their Parish and if it were so it shall be delivered to them as the Act directs LXXVIII Exchequer Page 71. Upon 23 Eliz. 1. § 11. N. 1. the principal Officers of the Court of Exchequer are the Treasurer and Barons but the principal Officers of the receit of the Exchequer are the Treasurer and Chamberlains Savile 38. pl. 87. LXXXIX Information Page 71. c. 82. on 23 Eliz. 1. § 11. N. 1. upon a penal Statute where part of the forfeiture is given to the King and part to him that will sue the Informer or Plantiff qui tam c. sequitur tam pro Domino Rege quam pro seipso and so it must be said in the Information or declaration and not only there but in the Joyning of Issue and the Venire facias it must be entred qui tam pro Domino Rege c. or the omission of it is Error 1 Cro. 336. pl. Mich. 9. Car. 1. 2. In an Information upon 23 Eliz. 1. § 11. N. 1. the usual way is that the Informer for himself petit inde tertiam partem juxta formam Statut ' 11 Co. 56. Dr. Fosters Case but then the Statute must be named for in an Information 2 Cro. 142. Mich. 4. Jac. by Broughton Qui tam c. against Moâ—re for the forbearing to come to Church Contra formam Statuti without naming which Statute in which Case the Informer demanded the third part for himself it was adjudged by the Court of B. R. to be ill for there are several Statutes against Recusancy and it did not appear which of them was meant 3. But if this Statute of 23 Eliz. 1. § 11. N. 1. be named in Certain and the party who sueth demands the whole forfeiture for the King and himself and Judgment be given that the King shall recover one moity and the Informer or Plantiff Qui tam c. the other moity in that Case the Judgment is well enough for the Information or declaration being Quod actio accrevit Domino Regi praefat A. ad habend ' exigend ' the full forfeiture the Judgment doth not vary there from when it saith that a moiety shall be to the King and a moiety to the Plantiff or Informer and altho the Statute 23 Eliz. 1. § 11. N. saith that he which will sue shall have but a third part yet thâ—t is by way of distribution only and such distribution if the penalty is an act subsequent to the Judgment and is to be made as well out of the moity given by the Judgment to the Informer or Plantiff Qui tam c. as out of the mony thereby given to the King and this I conceive to be the reason of the resolution in Chambers Case 2 Roll. 437. pl. where such a Judgment in Case of Recusancy upon this Statute was allowed to be good But if the whole forfeiture be not demanded in certain there altho the party who sues demands his own share 't is ill and so it was adjudged in an Information upon a poenal Statute 5 Eliz. 5. § 16. N. 1. which concluded Vnde petit advisamentum Curiae quod forisfaciat 5 l. pro qualibet offensunde ipse petit medietatem For the Informer doth not make his demand certain but leaves it to the Court or Jury to cast up the sum it Amounts to Hobart 245. Pie and Westly 4. If there be several Statutes Information and each of them prohibit one and the same thing and Inflict a penalty and give an Information for recovery of it the Information may conclude contra formam Statuti and good because the best shall be taken for the King 5 H. 7.17 So if one Statute make the offence and another Inflicts the penalty or forfeiture and the Information be for the offence only it may conclude contra formam Statuti which is to be understood of that Statute which makes the offence But if the Information both lay down the offence and demand the penalty there both Statutes must be recited or at least the Information must conclude contra formam Statutorum Owen 135. Wests Case supra 72. § 6. 5. In the late additions to Dalt 547. cap. 191. § 6. N. 3. it s said that Informations and saiâ—s on penal Statutes are stricti juris and excepted out of all the Statutes of Jeofailes which is a mistake for they are not excepted out of 32 H. 8.30 It s true they are out of 18 Eliz. 14. § N. and 21 Jac. 13. § N. and that as it seemeth in all Cases within those two Statutes see Styles 307. Theoballs against Newton And in the Case of Scot and Lawes Hob. 328. It seems to be intimated that they are excluded out of all three Where the Case was debt by an Informer Qui tam c. upon a penal Statute 21 H. 8.13 § 2. N. 4. the defendent pleads non debet praefato J. meaning the Informer and not the King and the Issue was found against the defendent in that Case it was resolved that this was a good Cause to stay Judgment and there it s said that it being upon a penal Statute the Statute of Jeofailes 32 H. 8.30 would not help it but that reason was Ex abundanti for 32 H. 8 30. seems to extend to all popular suits whatsover and in Wallers Case Dyer 346.347 in an Information brought against him 18 Eliz. by Topcliffe Qui tam c. upon 37 H. 8.9 of Usury it was adjudged that the mis-conveying of Process and mis-joyning of Issue in the said Information Dayes were aided by 32 H. 8.30 6. By 31 Eliz. 5. § 5. N. 2. an Informer Qui tam c. must begin his suit within one year after the offence committed otherwise he shall not have any part of the penalty 2 Co. 366. Hill 12 Jac. Godbolt 158. pl. 216. Sivedale versus Sir Edward Lenthal But popular suits upon the Statute 39 Eliz. 2. § N. of Tillage are excepted and not upon the Statute of Tallage as is mistaken in the the late additions to Dalt 546. cap. 191. § 3. In Dr. Fosters Case 11 Co. 65. it s said that the Informer hath no Remedy for recovery of the forfeitures for Recusancy after the year and day is expired for that time is limited in certain by 23 Eliz. 1. § 8. N. 1. but yet with submission it seems that 23 Eliz. 1. § 8. N. 1. relates to Indictments only and so it was held in this very Case of Dr. Foster 11 Co. 60. and 1 Rol. 93.
pl. 41. and Hob. 205. in Pie and Lovels Case and there was no limitation of time for the Informer Qui tam c. Upon 23 Eliz. 1. § 8. N. 1. until the said Statute of 23 Eliz. 5. § 5. N. 2. which limits him to a year after the offence committed and not a year and a day and altho 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 supra 62. and therefore there needs not any place alledged yet in common parlance it it will pass well enough for an offence committed and seems to be within the meaning of 31 Eliz. 5. § N. 2. and in 23 Eliz. 1. § 11. N. 1. it s said the third part of the forfeiture for Recusancy shall be to the poor in the Parish where the offence is committed Infra 116. N. 2. 7. Now if it be objected that if the Recusancy be not an offence which is to be laid in the proper County by 31 Eliz. 5. § 2. N. 1. because it is not an offence that can be properly said to be committed by the same reason the Informer who is restrained by 31 Eliz. 5. § 5. N. 1. 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 23 Eliz. 1. § 11. N. 1. 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 betwixt the Cases for in the Cases of limitation of time when the offence must be prosecuted 31 Eliz. 5. § 5 N. 1. and that of the poor of the Parish 23 Eliz. 1. § 11. N. 1. where the forfeiture is to be distributed the word committed is no part of the substance of the matter and t is no more than if the Statute 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 but it cannot be so in that other Case supra 62. about the proper County for 31 Eliz. 5. § 2. N. 1. makes the Commission of the offence matter of substance and whither it were committed or not in the County where it is laid in the Information or popular suit goeth not to the merits of the Cause for if it were not committed in that County and the defendent alledg and traverse it and it be found for him the Plantiff shall be barred and those words That he may traverse that it was not committed shew clearly 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 property of Speech it was not committed at all 8. By 31 Eliz. 5. § 5. N. 3. 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 2 Co. 366 in Syvedale and Sir Edward Lenthalls Case where an Information was brought in the Court of Exchequer Tam quam c. Upon 3 Jac. 4. § 3. N. 3. for three years forbearance to receive the Sacrament after Conformity that altho it was not good for the Informer yet it was well enough as to the King 9. Alien A natural born Subject or a denizen being defendent in any suit upon a penal Law in B. R. C. B. or Exchequer is not Compellable to put in special Bail but may appear by Attorny 29 Eliz. 5. § 21. N. 2. and 31 Eliz. 10. § 20. N. 3. Telverton 53. Saint Georges Case Bar. Feme 10. An Action of debt or Information Tam pro c. lieth upon 23 Eliz. 1. § 11. N. 1. against the Husband and Wife for the Recusancy of the Wife and the Husband in that case is lyable to pay the twenty pound per month notwithstanding he himself be no Recusant 3 Bulstrode 87. The King and Law 1 Rol. 93. pl. 41. Dr. Fosters Case Hob. 97. Moore and Hussey Savile 25. pl. 59. Infra 119. N. 2. But the Wife cannot appear by Supersedeas alone without her Husband for both must appear or both be outlawed Hob. 179. Lovedens Case Infra 173. N. 2. Nor can she plead or joyn issue without her Husband 2 Rol. 90. Sir G. Curson and Vxor's 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 alledged to be ill for the Husband pleads not at all but in this Case the Docket being Quod J. C. M. uxor ejus c. placitant non culp and it being manifest that they both appeared the record was amended by the Docket after verdict for it was but the mis-prision of the Clerk in drawing the plea 2 Cro. 530. the same Case with 2 Rol. 90. Crompt 14. a. At the end of the Case in 2 Cro. 530. a note is added that if Sir J. C. and his Wife had pleaded quod ipsi non sunt culpabiles it had been ill but yet it seems that the Law is Contrary to that opinion 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 tho 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 addition to Bendloes 148 in the Case of Brown and Audley and his Wife Trin. 22 Jac. in Action sur le Case for scandalous words by the Wife that where they both plead non culp and the Jury found the Feme guilty the Plantiff 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 And the resolution 1 Cro. 417. in the Case of Needler versus Symnell and his Wife Mich. 11. Car. 1. is directly contrary to that opinion in the end of 2 Cro. 530. for 1 Cro. 417. it s adjudged that Ipsi non sunt culpabiles by Baron and Feme is a good issue altho the wrong were by the Wife alone 11. Alien An Information of Recusancy lyeth
against an Alien upon 23 Eliz. 1. § 11. N. 1. If he inhabits within the Realm and if Judgment be had against him he may have a Writ of Error to relieve himself 1 Inst 1â—9 12. Information When once the Informer qui tam c. hath commenced his suit he hath of a popular Action made it his own principal Action 11 Co. 65. Dr. Fosters Case Vaughan 343. Thomas and Sorrel And in this Case it is not necessary that the defendent be served with Process to answer it for if the Informer put his Information into Court t is enough to appropriate to him his share of the penalty Godbolt 158. pl. 216. But yet a Note ought first to be made of the day month and year when it was exhibited for before by 18 Eliz. 5. § 1. N. 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 barr for the defendent 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 18 Eliz. 5. § 1. N. 5. it shall be said to be depending altho it be not alledged that any Writ or process is such out against the defendent thereupon 3 Cro. 261. Mich. 33. and 34 Eliz. the Queen versus Harris Styles 417. Hob. 209. Parry versus Paris Palmer 40. Webbs Case Termes de la Leyverb Action popular The defendent in an Information pleads that heretofore another Information was hibited 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 is exhibited The Plantiff replyeth nul tiel Record yet if it appears that in truth the Information pleaded in barr was exhibited before the other which is the substance of the matter this misprision shall not vitiate the defendent Hob. 209. Parry and Paris note this Case is cited in the late additions to Dolt cap. 191. Sect 6. N. 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 made a question but that the same person may exhibit too several Informations so they be not both for one and the same offence 3 Cro. 261. The Queen against Harris Mich. 33. and 34. Eliz. An Information was in B. R. upon 5 and 6. Ed. 67. § N. for buying of Wools the defendent pleads that there is another Information depending against him in C. B. at the suit of L. and avers that they are both for the same offence but in truth that in C. B. supposed the offence to be done at one time and that in B. R. at another time yet this is a good plea in 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 defendent shall be put to double trouble And the same advantage no Question any man may take against whom two Informations are exhibited upon 23 Eliz. 1. § 4. N. 2. for hearing of 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 13. But otherwise it seems to be in the Case of Recusancy for if an Information be on 23 Eliz. 1. § 5. N. 1. for not coming to Church for a month there if the defendent proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of the 20 l. And as the defendents giving 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 offendor 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 14. 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 Hob. 128. Pie versus Coke 15. Altho 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 and Alpe 16. In C. B. an Information may by the course of the Court be brought in and delivered to one of the Judges there out of term and shall be dated then For 18 Eliz. 5. § N. forbids all antedates 2 Rol. 33. Smith versus Carter 17. An Information is brought by an Informer Qui tam c. upon 23 Eliz. 1. § 5. N. 1. 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 Dr. Fosters Case that he may plead this Conviction puis le darreine continuance to discharge himself of the Information 1 Rol. 9 5. pl. 41. But as the Reporter well observes there 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 pleaseth 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 punisht for one and the same offence But if the Recusant be once convicted at the Kings suit either by Indictment upon 23 Eliz. 1. § 5. N. 1. or according to 29 Eliz. 6. § 2. N. 5. or 3 Jac. 4. § N. upon Proclamation the Informer Qui tam c. Cannot afterwards charge him but is barred for ever after For the intention of 23 Eliz. 1. § 11. N. 1. 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
any Common Informer but the matter shall be heard and determined before Justices of Assize Nisi prius Goal-delivery or Oyer and Terminer or Justices of Peace in their general Sessions according to 21 Jac. 4. § 1. N. 3. but the Informer if it be for Recusancy may by force of that exception 21 Jac. 4. § 5. N. 1. lay or alledge such offence in what County he will for the said exception extends only to the County 21 Jac. 4. § 2. N. 1. and not to the Courts 21 Jac. 4. § 1. N. 5. where the Informer is to sue Which opinion of his touching the extensiveness of the exception is probable enough viz. that 21 Jac. 4. § 5. N. 1. extends only to the County and not to the Courts where the Informer is to sue for the latter part of it speaks only of the County but this is unaptly applied to popular Informations upon 23 Eliz. 1. § 11. N. 1. for they are not within the meaning of that branch of 21 Jac. 4. § 1. N. 5. touching the Courts where the Informer is to sue for 21 Jac. 4. § 1. N. 5. medles not with those Informations upon those penal Laws which give the Informer no other remedy for recovery of the penalty but by Debt Bill plaint or Information in the Courts of Record at Westminster Nor doth 21 Jac. 4. § 1. N. 3. give the Justices of Assize or other Justices there named any new or further power than they had before but only appoints that where Informations might have been brought before them or in the Courts of Westminster at the Election of the Informer now they shall be brought before Justices of Assize Nisi prius Goal delivery or Oyer and Terminer or at the Sessions of the Peace in the County where the offence was committed for the ease of the Subjects who are defendents and not in the Courts at Westminster 4 Co. 1. 1 Cro. 112.113 But in our Case of Recusancy there is no such Election given the Informer by 23 Eliz. 1. § 11. N. 1. but he is strictly tyed to take his remedy by debt Bill plaint or Information in one of the Courts at Westminster and therefore 21 Jac. 4 § 1. N. 5. extends not to it in that branch touching the Courts where the Informer is to sue And as for Sir Edward Cokes Opinion that since 21 Jac. 4. § 1. N. 5. 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 B. R. Mich. 4. Car. 1. Greene and Guy 1 Cro. 146. pl. upon 21 H. 8.13 § 11. N. 2. and Fentons Case Mich. 27. Car. 2. upon this Statute of 23 Eliz. 1. and of C. B. in Farrington and Leymer 1 Cro. 112. Hutton 99. Trin. 4 Car. 1. upon 23 H. 8.4 § 5. N. 3. Are directly in point Contrary thereunto and so is the opinion of Rolls in Styles 340. Buck stone and Shurlock 7 Ed. 6.5 § 6. N. 3. and the resolution in Jones 193. And yet altho in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster possibly in other Statutes those words may admit of a larger Construction 1 Rol. 51. pl. 21. Floyd and Best LXXXI Information Page 85 86. Upon 23 Eliz. 1. § 11. N. 1. by Action of debt Bill plaint or Information by 18 Eliz. 5. § 1. N. 3. it is enacted that none shall be admitted or received to prosecute against any person upon any penal Statute but by way of Information or original Action and not otherwise 6 Co. 19.20 Moor 412. pl. 565. and 600. pl. 827. Gregories Case 3 Cro. 544. Gadley versus Whitecote And this seems to extend as well to penal Statutes made afterwards as to those that were in force when 18 Eliz. 5. § 1. N. 3. was made for t is usual for a latter act of Parliament to be guided by a former as 4 Co. 4. Vernons Case But then it must be in such Cases where there are not express words in the latter act to controule the former and therefore altho the word of 18 Eliz. 5. § 1. N. 3 that the Informer shall not prosecute otherwise then by Information or original action yet the Affirmative words of this subsequent Statute 23 Eliz. 1. § 11. N. 1. that the Informer may sue by Bill hath taken away the force of that negative in 18 Eliz. 5. § 1. N. 3. in relation to the offence mentioned in 23 Eliz. 1. and the prosecutor qui tam c. upon 23 Eliz. 1. § 11. N. 1. may sue by Bill in B. R. 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 3 Inst 194. in Woodson and Clerks Case In a suit brought by Bill in B. R. upon 23 H. 6.10 § 1. N. 12. of Sheriffs and in Moor 248. pl. 390. Vdeson and the Major of Nottinghams Case contrary to the opinion in Styles 381. Hill and Dechair LXXXII Imprisonment Page 86. Upon 23 Eliz. 1. § 11. N. 2. Qui non habet in aere luet in corpore And yet in this Case the Judgment shall be absolute that the King and the Informer recover c. 1 Anderson 140. pl. 190. Vachels Case 2. A Feme Covert Recusant if the forseiture be not paid within the time limited 23 Eliz. 1. § 11. N. 2. may be imprisoned by force of this Statute until she pay or conform 11 Co. 61. Dr. Fosters Case Hob. 97. Moor and 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 Manwood to have hard and close Imprisonment and sequestred from all Company until she conform or forfeiture be paid Savile 25. pl. 59. But if the Husband and Wise be sued upon 23 Eliz. 1. § 11. N. 2. in a popular Action or Information for the Recusancy of the Wife 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 LXXXIII Assurances Page 87. Upon 23 Eliz. 1. § 13. N. 1. since the beginning of this Session of Parliament and yet a Covenons Conveyance tho made before that Session of Parliament should not have defeated the Interest right or Title which was given to the Queen by this Statute and therefore in the Case of Sir John Southwell 3 Leonard 147.148 pl. who in Anno 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 him the surplusage of the mean profits with a Clause of revocation after which he granted Trees took Fines for leases c. And then
can be taken to be of such Laws only as are in force in Ireland And in this Case the Offender may be tryed here in England altho his offence was committed in Ireland and that by force of 35. H 8 2. § 1. N. 2. notwithstanding the Statute of 1. and 2. Ph. and Mar. 10. § N. For it was resolved 1. Anderson 263. pl. 269. in Ororkes Case by all the Judges of England 33. Eliz. that Treason committed in Ireland may be tried in England and the like resolution was in Sr. John Perrots Case 34. Eliz. 7 Co. 23. Calvins Case 1. Inst 261.3 Inst 11. Dyer 298. Dr. Stories Case 13. Eliz. And if a Subject of England who is a Peer of Ireland be sent to any such Colledg or Seminary and offend as 27. Eliz. 2. § 5. N. 1. aforesaid he may be tryed in England by a common Jury notwithstanding the offence was in Ireland where he is a Peer contrary to 19 and 20 Eliz. Dyer 360. Where it is said that Wray Dyer and Gerard Attorny general were of opinion that a Peer in Ireland cannot be tryed in England for Treason done in Ireland because he cannot have his trial by his Peers But this is not Law and Sr. Christopher Wray protested he never gave any such opinion but held the contrary 1. Inst 261. LXXXIX◠Accessary Page 93. Upon 27 Eliz. 2. § 6. N. 1. Convey Deliver c. So that he that is barely a Messenger or Instrument to convey or deliver such mony or other releif is within the Danger of this Law as well as the Lender or Giver Page 93.94 This Clause 27 Eliz. 2. § 6. N. 4. Extends not to every person brought up in such Colledge or Seminary XC as Wingate Crown 54. mistakes For if such person afterwards quits his Colledg or Seminary and hath no longer any relation thereunto but abides elsewhere beyond the Seas he who gives or conveys releif or maintenance to him is not within this branch of the Statute because the person releived or maintained is not then of or in any Colledg or Seminary and yet perhaps this may be an offence within 3 Car. 1.2 § 1. N. 2. Page 97. Upon 27 Eliz 2. § 10 N. 1. The taking of the Oath by such Jesuit Priest or other Ecclesiastical person and his Acknowlidgment of his due obedience doth not exempt him from the danger of this Law as Wingate Crown 57. mistakes But he must continue his due obedience to the Laws made in Cases of Religion and this seems to be clearly the meaning of the Makers of this Law 27 Eliz. 2. § 10. N. 1. So that if afterwards he shew his disobedience to any of these Laws by forbearing to come to Church c. he may be Indicted as a Traytor for coming into the Realm as if he had never made any such submission and acknowledgment Page 95. Her Highness Laws 27 Eliz. 2. § 10. N. 1. That is the Laws of her and her Successors XCII Prerogatives and not only those which were made in her own time But such likewise as should be made afterwards For in Acts of Parliament King or Queen if a Soveraign Includes Successors unless there be express words of restraint to that individual person Com. 176. Hill and Grange 6 Co. 27. the Souldiers Case 12 Co. 109.1 Inst 9. and 2. Inst 742. and 3. Inst 6.4 Inst 352. And so it is of the Kings Grants if in his politick Capacity for there his Successor shall be charged tho the Grant mention neither Heir or Successor as it was adjudged in the Case of an Annuity granted to Sir Thomas Wroth during his Life Com. 457. Page 97. Being Subject of this Realm 27 Eliz. 2. § 13. N. 1. XCIII And not any person as Wingate Crown 59. mistakes Page 97. At the Queens pleasure 27. Eliz. 2. § 13. N. 1. In this Case the Offender must be proceeded against according to the course of Law XCIIII Prerogatives For he cannot be Fined or Imprisoned at the Kings pleasure by force of this Statute before he be Indicted Convicted and Judgment given against him and so were the Proceedings against Sir Thomas Figet Tit. Contempts Br. 6. do not say he was first Arraigned c. for going Armed contrary to 2 Ed. 3 § N. for 24. Ed. 3.33 saith that he was Arraigned And if in this Case on 27 Eliz. § 13. N. 1. the Offender be committed to Prison in order to his Trial and Conviction yet before Judgment or at least before Conviction he may be let to mainprize and the Fine shall be Imposed by the Justices before whom he is Convicted Justiciarii per corum Descretionem Assessent finem et non Dominus Rex per se in Camera sua neo aliter Coram se nisi per Justiciarios suos et haeo est voluntas Regis viz. per Justiciarios suos et legem suam unum est dicere 2 R. 3.11 see 4. Inst 71.179 29 Eliz. 6. Of PROCLAMATIONS XCV Courts PAge 100 101 Sir Edward Coke in Dr. Foster's Case 11 Coke 61. saith that by this Clause 29 Eliz. 6. § 2. N. 2. as hath been well observed 23 Eliz. 1. § 11. N. 1. is altered in a material point viz. that whereas by 23 Eliz. 1. § 11. N. 1. The Informer might sue the Recusant for the penalty in any Court of Record he is now by 29 Eliz. 6. § 2. N. 2. restrained from suing in the C. B. or Exchequer But this is utterly denyed to be Law as the constant practice and experience ever since 29 Eliz. 6 § 2. N. 2 sufficiently testifies and Hob. Ch. J. 204. in Pie and Lovel's Case saith that that Observation was made as he takes it by Sir Edward Coke himself But however Serjant Rol. in Dr. Fosters Case 1 Rol. 93. pl. 41. brings him in speaking in another Language and more consonant to Law viz. That the Conviction here mentioned 29 Eliz. 6. § 2. N. 2. is intended of Convictions upon Indictments only and that no other sort of Convictions or Proceedings upon 23 Eliz. 1. are mentioned or intended throughout this whole Act 29 Eliz. 6. And if so then the Informer is not concerned in this Act 29 Eliz. 6. § 2. N. 2. nor restrained thereby as to the Courts wherein he is to sue but that he may sue still in C. B. or Exchequer and so was it resolved in point in Hob. 204.205 Pie and Lovels Case where the opinion of Sir Edward Coke 1 Rol. 93. is confirmed and allowed for Law and 11 Co. 61. exploded 29 Eliz. 6. § 2. N. 2. being made only for the benefit of the Queen in her suits by Indictment Infra 118 165. 2. And the true reason is there Juices given Hob. 204.205 why those negative words and not elsewhere were added 29 Eliz. 6. § 2. N. 2. viz. not to exclude the Informer out of the C. B. or Exchequer but to restrain Justices of Peace from proceeding to
receiving of the profits there it was said Copy-holds shall be included within the general words of Lands Tenements and Hereditaments 3. And yet see Owen 37. where this Case of Sulhard and Everet is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within 29 Eliz. 6 § 4. N. 3. nor are seizable for the Kings two parts And according to this Judgment I take the modern practice of the Exchequer to have been that neither the Land it self nor the profits of Copyhold Lands are lyable to such seizure CIII Process Page 107 108. If the same be taken at any Assize or Goal-delivery 29 Eliz. 6. § 5. N. 6. for if the Indictment had been taken before Justices of Peace no Proclamation thereupon could have been made upon this Statute by the Justices of Assize or Goal-delivery as was resolved in the Case of Sir Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment in B. R. and there process might have been made out against the Recusant and he Convicted for the Justices of Peace could do no more than Indict all other proceedings being taken away from them by this Statute 29 Eliz. 6 § 2. N 2.11 Co 63. and 1 Rol. 94. but now by 3 Jac. 4. § 7. N. 1. the Law is altered in this point and the Justices of Peace upon Indictments taken before them may proceed to proclaime and convict the Recusant as well as Justices of Assize and Goal delivery supra 95. N. 2. Page 108 CIV Upon such default 29 Eliz. 6. § 5. N. 6. that is upon his default of appearance of record at the next Assizes or Goal delivery For if he make such appearance that shall save his default of not rendring his body to the Sheriff And the not rendring himself to the Sheriff shall be no Conviction as Wingate Crowne 66. would make it Page 108. CV As sufficient a Conviction in Law 29 Eliz. 6. § 5. N. 6. that is as if he were Convicted by Verdict but not as sufficient as if a Judgment were had against the Recusant For altho by force of 29 Eliz. 6. § 5. N. 5. and other Statutes the Conviction upon Proclamation and default of appearance make a Recusant lyable to divers penalties and Incapacities and is in those respects as forceable as a Judgment yet it shall not in other Cases have the force or effect of a Judgment and therefore it was resolved 37 and 38 Eliz. in the Case of the general pardon Anno 35 Eliz. where there is an exception of all penalties and forfeitures due to the Queen and converted to a debt by Judgment that notwithstanding that exception a Recusant Convicted upon Proclamation was within the pardon and the forfeitures due upon such Conviction were thereby pardoned for the debt was not due to the Queen by Judgment but upon Conviction only but otherwise it had been if he had been Convicted according to 23 Eliz. 1. § 5. N. 1. without Proclamation and Judgment had been given thereupon 11 Co. 65. Dr. Fosters Case Page 109 110 111. CVI. Upon 29 Eliz. 6. § 6. N. 1. It was resolved by all the Judges Mich. 37 and 38 Eliz. 1 Rol. 94. in Dr. Fosters Case that if a man had been Convicted according to this Statute 29 Eliz. 6. § 5. N. 5. by Proclamation upon default and afterwards conformed himself he should be discharged of the penalty due upon his Conviction notwithstanding these words 29 Eliz. 6. § 6. N. 1. and full satisfaction of all the Arrearages and the reason of this is given by Coke Chief Justice B. R. for that 29 Eliz. 6. § 5. N. 6. saith that such Conviction should be as sufficient as if there were a Verdict recorded but 't is only a Judgment which converts the penalty into a debt and not a Verdict And here all the penalties are discharged upon Conformity unless such as are Converted into a debt 29 Eliz. 6. § 6. N. 1. But otherwise it would have been if there had been a Judgment against the Recusant upon Tryal or Confession upon 23 Eliz. 1. § 5. N. 1. for then his Conformity would have come too late to have saved the penalty Incurred by his Conviction for by the Judgment the penalty was Converted into a debt Quaere tamen Whither these words here 29 Eliz. 6. § 6. N. 1. Due and payable are to be understood due and payable upon a Judgment only However now by 1 Jac. 4. § 1. N. 1. if the Recusant confirm either before or after Judgment he shall be discharged of all penalties 2. But the profits of the Recusants Lands taken before his Conformity shall never be restored 3. It hath been questioned upon 29 Eliz. 6. § 6. N. 1. if a Recusant Convicted by Proclamation upon default had died before seizure of two parts of his Lands whither his lands might have been seized after his death for the Arrearages of the 20 l. per month or if they were seized in his life time whither they should have been discharged after his death without payment of such Arrears And the opinion of those who held that the seizure should neither ensue nor continue after his death but that the Arrears were discharged was pricipalpally grounded upon 29 Eliz. 6. § 6. N. 1. that due and payable extended only to Arrearages due and payable upon a Judgment and converted into a debt But when the Recusant was Convicted by Proclamation the penalty was never Converted into a debt and therefore when he died there were no Arrearges due in the sense of 29 Eliz. 6. § 6. N. 1. for the heir to pay and yet by such offendor here is generally intended all Recusants Convicted as well by Proclamation upon default as upon on Judgment and the heirs of either should have had the benefit of this Proviso viz. that upon the death of the Ancestor no seizure should ensue or be continued only in the Case of a Judgment the Arrears were to have been paid 4. But there seems now to be no further need of this Question for 1 Jac. 4. § 3. N. 1. meets with both these Cases For if there be no seizure of the Recusants Lands in his life time the discharge of the heir will depend upon his Conformity and if there were seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied But this 29 Eliz. 6. § 6. N. 1. is not intended of entailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dieth neither any Seizure for the Arrears of the 20 l. per month shall ensue after his death nor if they were seized in his life time shall the seizure be continued after his death nor is the heir in Tail bound to pay any such Arrears But if a Judgment be had
against the Recusant Tenant in Tail in his life time the heir is bound in that Case 5. If a Judgment was had against the Recusant before 1 Jac. 4. § 5. N. 1. and he had died before seizure of the two parts of his Lands the Question was whither after his death they might have been seized by force of 29 Eliz. 6. § 6. N. 1. for the Arrears of the penalty Incurred in his life time for that the Seizure here given is meerly in nature of a nomine paenae or penalty inflicted for his contempt in not paying the 20 l. per month and should not have gone in satisfaction of the debt but the Queen should have held the Land till the 20 l. per month were otherwise paid and satisfied and when this penalty of seizure was not executed in the Recusants life time by his death the contempt was gone and consequently the penalty inflicted for that contempt could not then be put in Execution Lane 92 93. Beekets Case Lane 107. Halseys Case But now by 1 Jac. 4. § 5 N. 1. the seizure is not as a meer penalty for the contempt of non payment but for the satisfaction of the King of the Arrears of 20 l. per month and the profits of the Land shall go towards the payment and satisfaction thereof so that now there is no question but the two parts of the Recusants Lands may be seized after his death unless the hair discharge himself by his Conformity 4. Note in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant altho an Affidavit be made of his death and a discharge obtained thereupon yet 't is a rule in the Court of Exchequer that a Commission shall be Awarded first to Enquire Savile 130. pl. 201. CVII Page 111. This branch 29 Eliz. 6. § 7. N. 2. seems not to extend to all forfeitures for Recusancy for the power here given to the Lord Treasurer c. is only in relation to those forfeitures which are by 29 Eliz. 6. § 3. N. 1.2 appointed to be paid into the receipt of the Exchequer which are the forfeitures due to the Queen by Conviction upon Indictment for this Act medles with no other so that if the 20 l. per month be recovered in a popular suit by the Informer qui tam c. one third part thereof ought still to be paid to the poor of the Parish only according to 29 Eliz. 1. § 11. N. 1. notwithstanding this act 29 Eliz. 6. § 7. N. 2. 35 Eliz. 1. Of SECTARIES Page 114. Wingate Crown 70. saith that if any person above sixteen years of Age obstinately refuseth to come to Church for a month CVIII Religion or impugnes the Queens Authority in Causes Ecclesiastical he shall be committed to Prison 35 Eliz. 1. § 1. N. 2. which is a great mistake for no man shall be punished by this Act for either of those Causes only the not coming to Church being only a precedent qualification required in the person whom the Act makes liable to the penalties thereof for the other offences therein mentioned Crompton 53. 2. And therefore if a man never comes to Church yet he is no offender within 35 Eliz. 1. § 1. N. 2. unless he advisedly or purposely move or perswade another to deny or Impugne the Kings Authority in Causes Ecclesiastical or to that end or purpose advisedly and malitiously move or perswade some other to forbear to come to Church or receive the Communion or to be present at Conventicles c. or if he himself be present at such Conventicles c. 3. And on the other hand if a man move or perswade any other to deny or Impugne the Kings Authority in Causes Ecclesiastical or to forbear to come to Church or receive the Communion or to be present at Convinticles c. Or if he himself be present at any Conventicles c. yet he is no offendor within 35 Eliz. 1. § 1. N. 2. if he goeth to Church once within the compass of a month 4. So that the party must both forbear to come to Church and be guilty of some other offences here enumerated or he is not punishable by 35 Eliz. 1. § 1. N. 2. and as for the denying or Impugning the Kings Authority in Causes Ecclesiastical it s no offence within this Statute unless the party moves or perswades others so to do and not then neither unless he hath been absent from Church by the space of a month Page 114 115. Under colour or pretence of any exercise of Religion 35 Eliz. 1. § 1. N. 3. Altho this Act is commonly called the Act against Sectaries CIX as distinguished from those of the Romish profession yet in truth it extends to all Recusants whatsoever as well Popish as other except 35 Eliz. 1. § 2. N. 1. in the point of abjuration for Popish service is performed under Color or pretence of Exercise of Religion and the assembly or meeting of Popish Recusants under such Color or pretence is an assembly or meeting contrary to the Laws and Statutes and they as well as others may be Indicted upon this Statute if they forbear to come to Church for the space of a month and be present at any part of the Popish service or move or perswade ut supra And may be Imprisoned without Baile until they conform and make submission as by 35 Eliz. 1. § 4. N. 1. is appointed but they cannot be required to abjure unless they offend against 35 Eliz. 2. § 8. N. 2. 2. A Popish Recusant is likewise subject to an Action of debt c. given to the Queen by this Statute 35 Eliz. 1. § 10. N. 2. CX Process Page 115. Being thereof lawfully convicted 35. Eliz. 1. § 1. N. 5. that is convicted both of his absence from Church and of that other offence which makes him punishable by this Act viz. going to Conventicles or moving or perswading c. for his absence from Church for a month must be laid down precisely in the Indictment for without that the other is no offence within this Act. 2. And t is not necessary that the party be Convicted of such absence upon any prior Indictment for altho there was never any former Conviction of him for Recusancy yet if he offend against this Act 35 Eliz. 1. § 1. N. 5. in any of the other particulars he may be Convicted both of that offence and of his absence upon one and the same Indictment and so was the Indictment Mich. 16. Car. 1. in the Case of Lee and others 1 Cro. 593. pl. who were Indicted upon this Statute at the Sessions of the Peace in Essex for absenting themselves for a month from Church and resorting to Conventicles to which they pleaded not guilty and the Indictment was removed in B. R. to be tryed there CIX Oath Page 116. Being thereunto required by the Bishop c. or any Justice of Peace 35
the arrears CLII. Seizure Page 150. 151. Where any seizure shall be had 1 Jac. 4 § 5. N. 1. That is a seizure upon either a Judgment against the Recusant by Indictment on 23 Eliz. 1. § 5. N. 1. or an Indictment and Conviction by Proclamation and default of appearance according to 29 Eliz. 6. § 5 N. 5. for the seizure of two parts of the Recusants lands was given the King by 29 Eliz. 6. § 4. N. 3. upon default of payment of the twenty pound per month in either of those Cases Page 151. Go towards the satisfaction and payment of the twenty pound 1 Jac. 4. § 5 N. 1. CLIII Hereby a Principal Branch of 29 Eliz. 6. is altered for whereas by 29 Eliz 6. § 4. N. 3. supra 99. The Queen might for non-payment of the Forfeiture have seized two parts of a Convicted Recusants Lands Nomine poenae and as a gage or penalties until the 20 l. per month had been paid and yet the profits should not have gone towards the satisfaction of the said 20 l. per month 1 Jac. 4. § 5. N. 1. was made for ease and benefit of the Recusant in that point so that now if two parts of his Lands be seized for default of payment of the forfeiture the profits received to the Kings use shall go towards satisfaction thereof and when the forfeiture is paid out of the profits the Recusant shall have his Land again unless in such Case where the King by 3 Jac. 4. § 11. N. 4. make his Election and seizeth two parts in lieu of the twenty pound per month And therefore the Resolution or Judgment said to be 1 or 2 Jac. Grayes Case cited in Beckets Case Lane 93. and by Bridgman 16 Jac. in his argument of Parker and Webbs Case 2 Rol. 25. and applied thereunto viz. that if a Recusant Convicted failes of payment of the 20 l. per month the King shall have his Lands as a gage or penalty and the profits shall not go in satisfaction thereof However it were true as the Law stood upon 29 Eliz. 6. § 4. N. 3. and before the making of 1 Jac. 4. § 5. N. 1. yet 't is not Law at this day nor could be applicable to either of chose Cases Lane 93. of Becket or 2 Rol. 25. of Parker which came to be debated long after this Act was made and the Law altered in that point Page 151. CLIV. Where any such seizure shall be had c. 1 Jac. 4. § 5. N. 3. this relative such takes in both the Seizures before mentioned viz. A Seizure upon Indictment and Judgment thereupon by 23 Eliz. 1. § 5. N. 1. and a Seizure upon Conviction on Proclamation and default according to 29 Eliz. 6. § 4. N. 3. and as in both these Cases the Recusant who failes of the payment of the 20 l. per month shall have the benefit to discount the profits received by the King so the King shall in the like Cases of Seizure retain the two parts in his hands after the Recusants death until the residue of the debt or duty due and payable to the King be satisfied CLV Dayes Page 152 153. Two parts of the Lands c. Of any such Recusant This Clause 1 Jac. 4. § 5. N. 3. extends not to Intailed Lands unless where there is a Judgment for the King against the Ancestor for his Recusancy And therefore if the Recusant Convicted upon Proclamation and default be Tenant in Tail and two parts of his Lands be seized in his life time for non-payment of the 20 l. per month and he die the Arrears not being satisfied to the King yet the Heir in Tail shall have the Land out of the Kings hands without payment of the Arrears For that such Conviction is in nature of a Verdict only and not of a Judgement as was hold in 1 Rol. 94. Dr. Fosters Case 2. And where a Statute gives to the King a seizure or forfeiture of Lands it shall not be intended of Lands in Tail unless it be expresly so appointed by the Statute or by force of some other Statute Cooperating therewith In which Case the Intailed Lands may be changed by general words in the Statute which gives the forfeiture or seizure an instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Convicted and Adjudged upon 23 Eliz. 1. § 5. N. 1. for his intailed Lands shall remain after his death in the Kings possession until the Arrears be satisfied and that by force of 29 Eliz. 6. § 4. N. 3. and this Statute 1 Jac. 4. § 5. N. 3. Cooperating with the Statute 33 H. 8.39 § 66. 26. N. 1. which chargeth the Lands of the Heir in Tail with debts due to the King upon a Judgment had against the Ancestor But otherwise 't is in the Case of a Praemunire upon 16 Rich. 2.5 § 2. N. 6. which saith the Lands and Tenements of the offendor shall be forfeit to the King for there his entailed Lands shall be forfeit during his life only And the reason is for that general words in an Act of Parliament unless aided by some other Act of Parliament shall never take away the force of 13 Ed. 1. Cap. 1. § N. de donis Conditionalibus 1 Inst 130.391 and 11 Co. 63. Godbolt 308. pl. Sheffield and Ratelifs Case And therefore in 26 H. 8.13 § N and 5 and 6 Ed. 6.11 § N. which makes Intailed Lands forfeitable for Treason the word Inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Fee simple Now there being neither in this Act 1 Jac. 4. § 5. N. 3. or that of 29 Eliz. 6. § 4. N. 3. any express appointment that the two parts of all Lands seized in the Recusants life time wherein he had any Estate of Inheritance shall after his death continue in the Kings possession nor no other Statute which chargeth the Heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and default the general words here 1 Jac. 4. § 5. N. 3. that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claimes by 13 Ed. 1.1 de donis conditionalibus 3. But where there is no Judgment the Recusants Fee simple Lands shall after his death satisfie the intent of these Statutes and so was the Law in reference to entailed Lands upon 29 Eliz. 6. § 6. N. 1. which speaks of the full satisfaction of Arrears in Case of the death of the Recusant And the Arrearages were to be paid by the Heir in Tail only in such Case where there was a Judgment obtained by the King against the Ancestor for his Recusancy but not where the Ancestor Tenant in Tail was Convicted only upon Proclamation and default for here in this last Case the Heir in Tail was not bound by the Statute
sufficient ground to record his appearance nor shall save his default for altho 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 than where a Prisoner is brought to 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 43 Eliz. in Ascoughs Case Gouldsborough 118. pl. CLXX Process Page 165. Shall be as sufficient a Conviction in Law 3 Jac. 4. § 7. N. 3. 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 Web. But this Conviction upon Proclamation is no Judgment as was resolved 11 Co. 65. in Dr. Fosters Case and altho it shall make the Recusant lyable 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 whither if a Recusant be Convicted upon Indictment and Proclamation the King may not waive his advantage of this Conviction and bring his Action of debt given him by 35 Eliz. 1. § 10. N. 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 Altho such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject 1 Rol. 10 pl. 10. Roy versus Tollin Hob. 155. Colt and Glover c. Hob. 183. Davison versus Barber Yet admitting the Patent to be good it was resolved that the penalties of Recusants Convicted by Proclamation should not pass by those general words 1 Rol. 94.95 Dr. Fosters Case Page 166. Once Convicted 3 Jac. 4. § 8. N. 1. This extends to all Convictions whatsoever upon Indictment whither by Verdict Confession c. Whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of twenty pound per month shall in any of the said Cases run on forever after and be appropriated to the King CLXXII Days Page 166. Here 3 Jac. 4. § 8. N. 1. Easter and Michaelmas Is to be taken disjunctively for Easter or Michaelmas as it is in 29 Eliz. 6. § 4. N. 1. supra 97. for the meaning is not that the Recusant shall have both of the terms of Easter and Michaelmas next after his Conviction wherein to pay the forfeiture of twenty pound 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 chuses to seize the two thirds of his Lands by force of 3 Jac. 4. § 11. N. 4. as was admitted Jones 24 25. in Standens Case Hil. 20. Jac. and Pasch 16. Jac. in the Lady Webbs Case Bridgman 121. 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 twenty pound per month without any mention of Michaelmas Term. Page 166 CLXXIII 167 168. For every month after such Conviction 3 Jac. 4. § 8. N. 2. by this Clause and 29 Eliz. 6. § 4. N 1. supra 96. N. 4. to the same purpose after the Recusant is once Convicted the penalty of twenty pound 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 pound per month for any time incurred after such Conviction but is utterly barred 11 Co. 61. and 1 Rol. 93. Dr. Fosters Case Owen 37. Sulherd and Eveterds Bar Feme 2. 2 Cr. 481 482. The Lady Webb Pasch 16 Jac. was Indicted and Convicted of Recusancy upon Proclamation and default of appearance 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 3 Jac. 4. § 8. N. 2. because she can have no Goods nor 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 pound per month into the Exchequer and she should not be doubly punished both that way and at the suit of the Informer and for the same reason it was urged that this Information would not lie against the Husband and Wife for after the Husbands death she would be lyable to pay into the Exchequer all the Arrears after the rate of twenty pound per month from the time of her Conviction and her Goods and two parts of her Lands might be then seized for non-payment thereof And if the Husband and Wife should in the mean time at the suit of the Informer pay twenty pounds per month for part of the same time for which the Wife was lyable to pay after the Husbands death this would be a double punishment for one and the same offence suprà 79. N. 10.17 Infra 270. N. 9. 3. And it was further said 2 Cro. 482. That it was usual where the Wife was Indicted and Convicted for Recusancy to seize by Exchequer-process the Lands and Leases which the Husband had in her right and one Woods Case was cited to this purpose which proves that a Feme Covert is within the meaning of the Act 3 Jac. 4. § 8. N. 2. and therefore after she is once Convicted upon Indictment shall be no more Subject to the Informers popular suit than a Feme Sole but this last point is much to be questioned for the Lands and Leases of the Wife are the Husbands during the Coverture and 't is a General rule that his
278 Eyre vers Woodfine Pasch 34. Eliz. Pellam Justice doubted thereof C. B. and observed that 11 H. 4 65. which saith that the party outlawed shall upon reversal of the outlary have restitution speaks only of Goods seised but not of a term sold before But Anderson Ch. I. and Walmsley held that the termor in this case should have his term again in whosoever hands the land came and upon whatsoever consideration and not the money for which the term was sold for the Outlary being reverst it is as if there were no record of it and the Queens interest was but conditional scilicet if the outlary were good and judgment accordingly Nor is this like the case where a Sheriff upon a fieri facias venditioni exponas sells a term for there if the judgment be reversed the party shall have the money for which the term was sold but not restitution of the term it self as was resolved 26 Eliz. Dyer 362. And the reason is because the Sheriff did no more than he was commanded for he was commanded to sell and therefore the sale shall be good to all intents But in the case of an outlary it is otherwise and there is no such command which difference between a fieri facias capias utlagatum was agreed in Doctor Druryes Ca. 8. Co. 143. A man is seized of an Advowson in gross Presentment the Church becomes void and then the patron is outlawed upon an indictment of recusancy whereupon the King presents the presentee is instituted and inducted and afterwards the outlawry reversed in this case the patron shall be restored to his presentment So if the patron of an advowson in gross hath judgment in a Quare impedit and is afterwards outlawed for recusancy and the King presents and the presentee is instituted and inducted in this case the patron shall have a fi fa. to execute the judgment and shall oust the presentee of the King And the reason in both Cases is because upon reversal of an Outlawry the party shall be restored to all things which are principal and here the presentment was the principal thing forfeited by the Outlary and therefore upon reversal the patron shall be restored to it Moor 269 pl. 421. Savil 89 pl. 166. Bluerleigh vers Cornwall But if the King upon an Outlary seize a Mannor to which an advowson is appendant and the Church becomes void whereupon the King presents and the presentee is inducted there 't is otherwise and the King's presentee shall not be removed upon reversal of the Outlary for the presentment in that Case is but as an accessory that follows the Principal which is the Mannor the profits of which Mannor the King was to have during the Outlawry and consequently the presentment as a profit of the advowson which is a parcel of the Mannor CLXXXVIII Amendment Page 180. 181. Or other defect whatsoever 3 Jac. 4. § 16 N. 1. this is meant of Defects within the Indictment or other proceeedings and not of any Collateral matter which the recusant hath to Discharge himself as a pardon Auterfoyts Convict c. for the recusant is not hereby disabled to plead such Collateral matter but may take advantage thereof 11 Co. 65. Doctor Festers Ca. Nor yet is this 3 Jac. 4. § 16. N 1. meant of all Defects whatsoever within the Indictment or other proceedings for if there be any defect which apparently tends to the Kings prejudice the recusant may take advantage of it and therefore 1 Co. 504.505 in the Case of the Marquis of Winchester who was indicted and convicted of recusancy and had judgment thereupon but Ideo capiatur was omitted the judgment was reverst for that omission which is not alded by 16 and 17 Car. 2.8 § 1. N. 12. CLXXXIX Ouster le mere Page 182. the Service mentioned throughout this Branch 3 Jac. 4. § P 8. N. 2. is intended of Civil or Domestick as wel as Military 3 Inst 80. And altho 3 Jac. 4. § 19. N. 1. speaks there of Gentlemen and Persons of higher degrcco without poynting at any particular sort of service so that to serve or go to serve a forreign Prince c. in any capacity whatsoever without first doing what is here required is felony by 3 Jac. 4. § 18. N. 2. the passing or going out of this Realm to serve a forreign Prince c. without taking the oath or if of that Quality entring into bond is felony by 3 Jac. 4. § 18. N. 2. altho the Party he never received into actual service for the words are in the Disjunctive go or pass to serve or voluntarily serve 3 Iust 80. Page 182. Or shall c. CXC pass over the Seas and there shall voluntarily serve 3 Jac. 4. § 18. N. 2. So if he pass over the Seas upon some other occasion and not with an intent to serve a foreign Prince c. yet if when he is there he voluntarily serve him and did not before his departing hence take the oath and if of that Quality enter into such bond he shall incurr the penalty of the Law and suffer as a felon 3 Inst 81. CXCI. Oblig Page 182 shall become bound by Obligation c. unto Our Soveraign Lord the Kings Majesty 3 Jac. 4. § 18. N. 1. An obligat made to the Kings use is not sufficient nor will satisfy the intent of the act but it must be made to the King himself for the bond must be Domino Regi according to 33 H. 8 39. § 51 1 N. 2. or the Officer who takes it is liable so imprisonment for taking the bond contrary to that statute therefor Wingate Corone 112. lays a snare for the Officer of the Port when he directs him only to take this bond to the Kings use and he might have been informed out of 33 H. 8.39 § 51. 1 N. 2. 24 H. 8.8 § 1. N. 3. of the difference between a bond made to the King and to the King'suse Savil 13. Pl. 33. Page 183. shall be a Felon CXCII 3 Jac. 4. § 18. N. 2. the offender against any part of this Branch of the Statute may have the benefit of his Clergy The Laws CXCIII c. 183 184. which said Customer and Controller 3 Jac. 4. § 21. N. 2. These words notwithstanding the Copulative And are not to be taken Conjunctively as if every bond and oath is to be certified both by the Customer and Controller for if the Customer take the bond and oath the Controller is not to be punisht for not certifying no more is the Customer if the Controller take them for each of them shall forfeit for his own default and not for the default of the other And it can not be reasonably presumed that one of them is privy to the doings of the other And therefore these words must be construed Disjunctively Customer or Controller 3 Jac. 4. § 21. N. 2. that is he of the two
33 H. 8.39 § 68. 26 N. 1. because it is not a debt by Judgment as that Statute requires Moor 523. pl. 691. And thus the opinion Trin 43 Eliz. of the two Chief Justices 3 Cro. 846. is to be understood for they held that if intailed Lands had been seized for non-payment of the twenty pound per month and the Tenant in Tail had died the issue in Tail should not have had the Land out of the Queens hands before the debt were satisfied but should have been charged with the said debt At the end of 3 Cro. 846. pl. is added a Dubitatur But yet the opinion there held stands good if it be intended only of a Conviction of the Ancestor by Judgment upon Trial or Confession and not of a Conviction upon Proclamation and default Page 154. CLVI To any Colledge c. 1 Jac. 4. § 6 N. 1. extends only to publick houses or Colledges but not to such as are bred beyond the Seas in any private Popish Family and therefore 3 Car. 1. cap. 2 3 § 1. N. 2. was made to supply that defect CLVII Scholars Page 155. Note all Grammar Schools are not here 1 Jac. 4. § 9. N. 1. excepted but only publick or free Grammar Schools nor yet all Gentlemens Houses but only of such as are not Recusants in both which respects this Statute is defectively recited in the late additions to Dalt cap. 87. Sect. 1. 3 Jac. 4. of convictions PAge 158 159. CLVIII Every Popish Recusant Convicted 3 Jac. 4. § 2. N. 2. Wingate Crown 98. Speaks Indefinitely as if this extended to all Recusants whatsoever which is contrary to the express words of the Statute 2. In an Information upon 3 Jac. 4. § 2. N. 2. for not receiving the Sacrament Information the Conviction of the party for Recusancy ought to be shewed in certain before whom in what Court c. for before he is Convicted of Recusancy he is not lyable to the penalty Inflicted by 3 Jac. 4. § 2. N. 2. for not receiving And yet if it be only generally shewed in the Information that the defendant was Convicted in due form of Law and the defendant doth not demur thereto but pleads not guilty and it be found against him there Judgment shall not be staid for this defect for he hath lost his advantage and by his plea hath admitted the point of Conviction and at the trial the only thing in issue was whether he had received the Sacrament and not whether he was Convicted 2 Gro. 365 366. Sivedal and Lenthal CLIX. Conformity Page 159. This Conformity 3 Jac. 4. § 2. N. 2. need not be set forth in the Information in every particular Circumstance as when or before whom the Popish Recusant Conformed himself For it is sufficient if it be said that he went to Church and continued there dureing Divine Service and afterwards neglected to receive the Sacrament c. and upon such Conformity and neglect he is liable to the Penalty inflicted by this Act altho he never went before the Ordinary 2 Cro. 366. CLX Forfeiture Page 159 160. And for every year after such not receiving forty pound 3 Jac. 4. § 3. N. 2. Note the Statute saith not that the Offender shall forfeit for the first second and third Offence but for the first and second year and for every year after For if it had been said he should have forfeited twenty pound for the first Offence forty pound for the second and sixty pound for the third he must have been Convicted and have had Judgment of the first Offence before he could have incurred the penalty for the second and of the second before he could have incurred the penalty for the third and every one of these Offences must have appeared Judicialiter which could not be ante Judicinum But here 3. Jac 4. § 3. N. 2. where 't is said he shall forfeit twenty pound for the first year forty pound for the second and sixty pound for every year after it is otherwise and the Offender shall forfeit sixty pound for the third year altho he was never Convicted for the first or second 2. And therefore in an Information upon 3 Jac. 4. § 3. N. 2. for sixty pound against a Popish Recusant Convicted for Recusancy who hath conformed and neglected to receive the Sacrament the third year after his Conformity its sufficient to set forth that he was a Popish Recusant and was convicted and conformed himself and went to Church c. two years before such a day and that after the said day he sailed for a whole year to receive the Sacrament without mentioning what he did the first or second year after his Conformity and so was 2 Cro. 365. Page 160. CLXI Shall for every such Offence lose and forfeit threescore pounds 3 Jac. 4. § 3. N. 3. If a Popish Recusant once receive the Sacrament after his Conformity and after neglect so to do within the time prescribed by this Act 3 Jac. 4 § 1. N. 2. and is guilty of such neglect for two years together altho he was never convicted for the first year yet an Information lieth against him and he shall forfeit threescore pound for the second year for 3 Jac. 4. § 3. N. 3. he is liable to pay so much for every Offence that is for every year wherein he neglects to receive the Sacrament after he hath once received it and the Informer is at his liberty for which Offence or year he will inform whether for the first second c. and the reason of this is because here are no steps or gradations to encrease the penalty for the second or third Offence but the penalty is equal and alike in this Case for every Offence 2 It is observable that the Popish Recusant who after his Conformity receives the Sacrament and afterwards neglects so to do for the space of one or more years is in worse Condition than he who conforms and receives it not at all for in this last Case he shall forfeit but twenty pound for the first and forty pound for the second year but if he once receive the Sacrament and afterwards neglect it for the space of two years he shall forfeit for each of those years threescore pound Page 160. CLXII To him that will sue for the same 3 Jac. 4. § 3. N. 4 An Information upon this Branch must be brought by an Informer Qui tam c. within a year after the Offence or neglect or he can take no advantage thereof for such an Information is within 31 Eliz. 5. § N. 2. Cro. 366. Page 160. CLXIII Justices Or before Justices of Assize c. 3 Jac. 4. § N. 3 5. Note that notwithstanding these words an Information upon this Statute by an Informer Qui tam c. for not receiving the Sacrament cannot be brought before Justices of Assize or Goal-delivery or Justices of Peace for no Common Informer can sue