Statute to proceed against Recusants and taken from them by 29 Eliz. nor doth that following Clause in 3 Jac. touching Conviction by Proclamation impeach this or restrain the Justices of Peace to proceed to Conviction upon Proclamation only and default of appearance no more than the Justices of Assize or Gaol delivery are restrained thereby or by 29 Eliz. which gives them likewise Authority to proceed by Proclamation For both these Clauses of 3 Jac. are in the Affirmative viz. First That the Justices of Peace shall have power to hear and determine the Offence of not coming to Church according to former Laws in such manner as Justices of Assize and Gaol delivery might do And those Justices might hear and determine that Offence according to this Statute of 23 Eliz. 23 Eliz. 1. And then comes the next Clause of 3 Jac. That the Justices of Peace shall have power to convict by Proclamation which is purely Affirmative also and therefore abrogates no part of the power given them by the former Clause And this agrees with what Sir Edward Coke saith lib. 12. fol. 13. That if a man be Indicted for Recusancy at the Assizes or Sessions of the Peace the Court may waive the proceedings by Proclamation upon the Statute of 3 Jac. 4. and may still if they please proceed against the party by Process upon this Statute of 23 Eliz. Upon this Stature In which Case the Process must be by Venire facias capias c. as in Indictments of Trespass And if saith he the party be fugitive in another County the Indictment may be removed into the Kings Bench and then Process may be there made out against him into any County of England In their open Quarter Sessions of Peace What is meant by Quarter Sessions By Quarter Sessions is intended here only the Sessions of the Peace held at four times of the year and not any other although it be a general Sessions And therefore the Justices of Peace in London who hold a Sessions every month cannot take Indictments upon this Statute at any of them unless it be the Quarter Sessions For that their Authority is given them only at a certain time as was resolved in the like Case upon the Statute of 5 Eliz. cap. 9. of Perjury Mich. 17 Jac. B.R. Palmer 44. Taylors Case Stat. 5 Eliz 9. 3 Jac. 4. And the Statute of 3 Jac. c. 4. which gives Justices of Peace Power to take Indictments of Recusancy at their General or Quarter Sessions for so the word said there imports having reference to the General or Quarter Sessions mentioned before about Presentments yet doth not enlarge the Power of the Justices of Peace in this particular nor enable them to take such Indictments at any Sessions but their four Quarter Sessions For although it be put there dis-junctively General or Quarter yet the latter word is but Explicative of the former and shews what General Sessions are meant as appears by the said Statute of 3 Jac. 4. and that other of 7 Jac. cap. 6. touching the Oath of Allegiance 7 Jac. 6. For in 3 Jac. 4. 't is said That if the party refuse the Oath he shall be committed to Goal until the next Assizes General Quarter Sessions and General or Quarter Sessions or General or Quarter Sessions And if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or by the Justices of Peace in their said general Quarter Sessions he shall incur a Praemunire And in 7 Jac. 6. That the party refusing shall be committed to Goal until the next Assizes or general Quarter Sessions and if he refuse the Oath tendred him by the Justices of Assize and Goal delivery in their open Assizes or Goal delivery or the Justices of Peace or the greater part of them in their general or Quarter Sessions he shall incur a Praemunire which clearly shews that the same thing is intended by general Quarter Sessions and General or Quarter Sessions And that all general Sessions which are not Quarter Sessions are excluded out of the meaning of those Statutes Vide Stat. 3 Jac. cap. 4. Sect. 11. 7 Jac. cap. 6. Sect. 5. Indictments only here intended To enquire hear and determine The Justices named in this Branch of the Statute are hereby impowered to proceed by Indictment only and no other way For they are to hear and determine after Inquiry And the word enquire implies an Indictment and is always so to be expounded And so are the other words hear and determine where other proceedings are not specially named as here they are not For the Action of Debt Information c. in any Court of Record is given to the Informer Qui tam c. afterwards in a distinct Branch by it self without any reference to this so that by this Statute and before that of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 which gave the Queen an Action of Debt c. The Queen had no other remedy to recover the entire forfeitures given hereby but by Indictment only Co. 11. 60. Rolls 1. 93. C. 41. Dr. Fosters Case Vide Jones 193. For that and the Suit by the Common Informer are the only ways appointed by this Statute and the subsequent Clause of Submission which names the Justices before whom the party is to submit viz. the Justices before whom he is Indicted Arraigned or Tried shews what proceedings are meant which are to be had before the Justices here named that is by Indictment Hobart 205. Pie versus Lovell Offence and Penalty by two several Statutes Talbot and Shelden were Indicted for Recusancy Contra formam Statuti 23 Eliz. in which Indictment the penalty was demanded and in a Writ of Error the Judgment was reversed For the Offence is made by the Statute of 1 Eliz. cap. 2. Stat. 1 Eliz. 2 and the penalty is given by this Statute and therefore it should have been Contra formam Statutorum Owen 135. Wests Case Feme Covert when chargeable If a Feme Covert be Indicted at the Kings Suit for an offence within this Act she may be charged with the penalty after her Husbands death but the Husband is not chargeable nor shall pay the penalty for that he is no party to the Judgment And this was one of the causes of making the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 By which Statute the King may have an Action of debt and recover the forfeiture against the Husband Rolles 1. 93. 94. Roy versus Foster Savile 25 C. 59. Except Treason and misprision of Treason This exception of Treason and misprision of Treason extends not to the Justices of Oyer and Terminer or of Assize and Goal delivery as Wingate hath mistaken in his Abridgment of this Clause tit Crown numb 46. Where the Justices of Peace cannot meddle but only to the Justices of Peace who are not to meddle in those two Cases
non sunt culpabiles it had been ill But yet it seems that the Law is contrary to that Opinion Non sunt cuipabiles where good for where an Action or Information is brought against the Husband and Wife for an offence or wrong done by the Wife there the Husband is charged quoad poenam though not quoad culpam and when they both plead quod ipsi non sunt culpabiles the meaning is that he is not chargeable quoad poenam and she is not guilty quoad culpam and therefore it was resolved in the Case of Browne against Audley and his Wife Trin. 22 Jac. in an Action upon the Case for scandalous words by the Wife that where they both pleaded non culp and the Jury found the Feme guilty the Plaintiff should have Judgment For the issue was good for the reason aforesaid and the finding of the Jury was a good ground for the Judgment for if the Wife were guilty quoad culpam as the Verdict must necessarily be understood she being the wrong doer the Husband by consequence was chargeable quoad poenam and Judgment shall be against both Addition to Bendloes 148. and the Resolution in the Case of Needler versus Symnell and his Wife reported by Justice Croke Cro. Mich. 11. Car. 417. in the like Action brought for words spoken by the Wife is directly contrary to that opinion at the end of Sir John Cursons Case For there 't is adjudged that ipsi non sunt culpabiles by Baron and Feme is a good issue although the wrong were by the Wife alone Writ of Error by an Alien An Information of Recusancy lies against an Alien upon this Statute if he inhabits within the Realm and if Judgment be had against him he may have a Writ of Error to relieve himself Co. 1. Inst. 129. Popular Suit appropriated When once the Informer Qui tam c. hath commenced his Suit he hath of a popular Action made it his own private Action Co. 65. Dr. Fosters Case Vaughan 343. Thomas versus Sorrel And in this Case it is not necessary that the Defendant be served with Process to answer it Without Process for if the Informer put his Information into Court 't is enough to appropriate to him his share of the penalty Godbolt 158. C. 216. But yet a Note ought first to be made of the day month and year when it was exhibited for before Stat. 18 Eliz. 5. by the Statute of 18 Eliz. cap. 5. it is not to be taken to be of Record nor shall operate any thing either in appropriating the penalty or barring any other Informer but when that is done no other Informer can Sue for the same Offence and 't is a good Plea in Bar Bar. of the second Information for the Defendant to say that there is another Information depending against him for the same Offence For as soon as the first Information is delivered in and entred upon Record according to the said Statute of 18 Eliz. it shall be said to be depending Popular Suit when depending although it be not alleadged that any Writ or Process is Sued out against the Defendant thereupon Cro. Mich. 33 34 Eliz. 261. the Queen versus Harris Styles 417 Hobart 209. Parry versus Paris Palmer 40. Webbs Case Termes de la Ley 7. Action Popular Two Informations for the same offence Bar. The Defendant in an Information pleads that heretofore another Information was exhibited against him such a day in another Court for the same Offence but mistakes and names in his Plea a wrong day and not that wherein the first Information was exhibited The Plaintiff replies nul tiel Record yet if it appears that in truth the Information pleaded in Bar was exhibited before the other which is the substance of the matter this misprision shall not vitiate the Defendants Plea in Bar but Judgment shall be for the Defendant Hobart 209. Parry versus Paris Note this Case is cited in the late Additions to Dalton cap. 191. tit Informations Sect. 6. to prove that one person cannot exhibit two Informations in the same or in several Courts But that was not the Question there nor I think ever was made a Question but that the same person may exhibit two several Informations so they be not both for one and the same Offence An Information was exhibited in the Kings-Bench upon the Statute of 5 E. 6. cap. 7. for buying of Wools. Stat. 5 E. 6. 7. The Defendant pleads that there is another Information depending against him in the Common-Bench at the Suit of L. and avers that they are both for the same Offence but in truth that in the Common-Pleas supposed the Offence to be done at one time and that in the Kings-Bench at another time yet this is a good Plea in Bar Bar. of the latter Information being with an Averment that they are both for the same Offence for otherwise by the Informers false supposal of the day the Defendant shall be put to double trouble Cro. Mich. 33 34 Eliz. 261. The Queen versus Harris And the same advantage no question any man may take against whom two Informations are exhibited upon this Statute for hearing of Mass Mass for perchance he never heard Mass above once in his life time and there is no reason he should be put to double trouble for one offence But otherwise it seems to be in the Case of Recusancy The absence from Church must be for a month For if an Information be brought upon this Statute for not coming to Church for a month there if the Defendant proves that he was at Church any time within that month it shall be sufficient to avoid the penalty of Twenty pounds And as the Defendants giving in Evidence that he was at Church within the compass of any other month then that which is laid in the Information shall not excuse him so the Informers proof of his absence any other month shall not hurt him but the Evidence must go to the very same month which the Information mentions And the reason is for that this Offence is punishable according to the time of its duration or continuance and the Offender is to forfeit for every month of his absence so that if another Information be exhibited against him for not coming to Church during another month it cannot be supposed to be for the same absence with that in the first Information but for the like absence at another time and therefore cannot be pleaded in Bar thereof Two Informations on the same day c. Bar. If two Informers on one and the same day exhibit Informations against the same person for the same Offence they are both void and may be pleaded the one in Bar of the other for that there is no priority to Attach the right of Action in one of the Informers more than in the other Hobart 128. Pie versus Coke Although Sunday
Sorrell Leonard 1.119 C. 161. Stretton and Taylors Case Cro. Trin. 31 Eliz. 138. the same Case Ibid. Mich. 39 40 Eliz. 583. Hammon versus Griffith 1 H. 7. 3. Co. 3. Inst 194. Such Entry of a non vult prosequi by the Attorney General hath the same effect with a Nonsuit of a private person The King cannot be non-suited But the King cannot be said properly to be nonsuited because he is in Judgment of Law ever present in Court Co. 1. Inst. 139.227 Hutton 82. Goldsborough 53. Leighs Case Savile 56. C. 119. Weare versus Adamson Where upon the demise of the King the proceedings shall be void Upon the death of Queen Elizabeth it was resolved by the Judges That where an Information tam pro Domina Regina quam c. was brought upon a penal Statute and pending the same and before Judgment the Queen died the Information it self should stand for that otherwise the Suit might be lost there being a time limited for the bringing of it but all the proceedings thereupon were lost and void and the Defendant should plead de novo Cro. Pasch 1 Jac. 14. Co. 7. 30 31. Case Of discontinuance of Process And to that purpose the Case of Pasch 5 E. 6. Rot. 38. is there cited where in a popular Action the King died after Demurrer upon the Evidence and before Judgment and the Defendant pleaded de novo And where not But yet in a popular Action of Debt brought upon this Statute against Prince and his Wife where the Defendants demurred upon the Declaration and the Plaintiff Qui tam c. joyned in Demurrer in Hillary Term and King James died the Vacation following It was resolved that not only the Writ and Declaration but all the other proceedings thereupon should stand notwithstanding the Demise of the King For that in such Case it is meerly the Suit of the party Stat. 1 E. 6. 7. and is aided by the Statute of 1 E. 6. cap. 7. of Discontinuances and he only joyned in Demurrer Cro. Trin. 1 Car. 10. 11. Lionell Farringtons Case Hobart 82. the same Case Which Resolutions are in appearance flatly contrary each to other for that upon the death of the Queen seems to take in all popular Suits whatsoever and as well a popular Action of Debt as an Information But yet 't is observable that in Farringtons Case the Plaintiff only joyned in Demurrer and not the Kings Attorney And this seems to be the reason why in that Case the proceedings should stand notwithstanding the Demise of the King For where the party alone joynes in Demurrer or Replies and not the Kings Attorney there the Suit may properly be said to be depending between party and party and within the express words of 1 E. 6. which provides that although the King die all proceedings in Suits depending between party and party shall stand But the Resolution of the Judges upon the death of the Queen is to be understood of such Cases where after a Plea or Demurrer by the Defendant the Attorney General alone replies or joyns in Demurrer there the proceedings shall be void and the Defendant shall plead de novo But the Information it self shall stand to avoid a manifest inconvenience for that the Informer is limited to a certain time wherein to exhibit his Information And so I conceive are these two Opinions which seem so contrary to be reconciled An Informer Qui tam Nonsuit release c. of the Informer c. may be nonsuited although the King cannot Co. 1. Inst 139. Hutton 82. Farrington versus Arundell If pending the popular Action or Information the Plaintiff or Informer Qui tam c. be nonsuited or release or enter a nolle prosequi or dye none of these shall Bar the King but the Attorney General may proceed upon the Information for the Kings part Leonard 1. 119. C. 161. Stretton and Taylors Case No Bar for the Kings part Cro. Trin. 31 Eliz. 138. The same Case Ibid. Mic. 39 40 Eliz. 583. Hammon versus Griffith Co. 3. Inst 194. Moore 541. C. 715. Co. 11.66 Dr. Fosters Case Bulstrode 2. 261 262. Sir Thomas Waller versus Hanger Rolles 2.33 Smith versus Carter And therefore the Opinions in 37 H. 6.5 and 38 H. 6. 2. That if the Plaintiff in a Decies tantum which is a popular Action be nonsuit the King is without Remedy but by Indictment or if such Plaintiff will relinquish his Suit the King hath nothing further to do seem not to be Law at this day Information in a wrong Court And if a popular Information be brought upon a penal Statute in a wrong Court where the Informer cannot sue yet it was held in Agar and Candishes Case that the King should not for that lose his advantage of the Suit but the Information should be good for his part of the penalty Moore 564 565 566. C. 770. Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. if an Informer or Plaintiff upon a penal Statute where any forfeiture is generally limited to him that will sue shall delay or discontinue his suit or be non-suit The Informer shall pay costs or shall have the trial or matter pass against him by Verdict or Judgment of Law he shall pay to the Defendant his Costs Charges and Damages Vide Addition to Bendloes 141. Rhobotham versus Vincent and if it be upon special Verdict or Demurrer those Cases are within the Statute and he shall pay Costs by force thereof Hutton 36. Pies Case But not find Sureties But an Informer is not compellable to find Sureties to answer Costs howbeit the Court if they see cause may order him to appear in person before the Defendant answer the Information Bulstrode 2.18 Martin and Gunnystons Case It was held in the Exchequer Chamber That if a Writ of Error Writ of Error be brought upon a Judgment given for the King at the Suit of an Informer a Scire facias Scire facias ought to be awarded against the Informer Savile 10. C. 26. Wilkes Case Courts of Record in penal Statutes are the four Courts at Westminster In any Court of Record By any Court of Record is here meant the four Ordinary Courts of Record at Westminster For they are the general Courts of Record and the Courts where the Kings Attorney may acknowledge or deny and the words of this Statute being general are left to the construction of Law where the Rule is verba aequivoca in dubio posita intelliguntur in digniori potentiori sensu And in this sense shall these words Court of Record be construed in all penal Statutes where the penalty is to be recovered in a popular Suit So that the Informer Qui tam c. cannot sue before Justices of Assize Goal delivery or Oyer and Terminer or Justices of Peace as in Borough or Corporate Towns or in a Court of Pipowders Stannary Courts
invade or annoy him or his Countries or to discharge any of his Subjects of their Allegiance and Obedience to his Majesty or to give licence or leave to any of them to bear Arms raise Tumult or to offer any Violence or hurt to his Majesties Royal Person State or Government or to any of his Majesties Subjects within his Majesties Dominions Also I do swear from my Heart that notwithstanding any Declaration or sentence of Excommunication or deprivation made or granted or to be made or granted by the Pope or his Successors or by any Authority derived or pretended to be derived from him or his See against the said King his Heirs or Successors or any Absolution of the said Subjects from their Obedience I will bear Faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my power against all conspiracies and attempts whatsoever which shall be made against his or their Persons their Crown and Dignity by reason or colour of any such sentence or declaration or otherwise and will do my best indeavour to disclose and make known unto his Majesty his Heirs and Successors all Treasons and Traiterous Conspiracies which I shall know or hear of to be against him or any of them And I do further swear That I do from my Heart abhor detest and abjure as Impious and Heretical this damnable Doctrine and Position That Princes which be Excommunicated or Deprived by the Pope may be Deposed or Murthered by their Subjects or any other whatsoever And I do Believe and in Conscience am Resolved That neither the Pope nor any Person whatsoever hath Power to absolve me of this Oath or any part thereof which I acknowledge by good and full Authority to be lawfully Ministred unto me and do renounce all Pardons and Dispensations to the contrary And all these things I do plainly and sincerely acknowledge and swear according to these express words by me spoken and according to the plain and common sense and understanding of the same words without any Equivocation or mental Evasion or secret Reservation whatsoever And I do make this Recognition and Acknowledgment heartily willingly and truly upon the true Faith of a Christian So help me God Vnto which Oath so taken the said person shall subscribe his or her Name or Mark. If a man refuse to take any word of this Oath What is a refusal of the Oath 't is a refusal of the whole Bulstrode 1. 198. Lord Vaux his Case And be it further Enacted by the Authority aforesaid Stat. Sect. 13. No Indictment or other proceedings against a Recusant shall be discharged or reversed for default of form That no Indictment or Indictments had or found or hereafter to be had or found against any person or persons for not repairing to some Church or Chappel or usual place of Common Prayer but absenting him or her self by the space of one month contrary to the Laws and Statutes in that behalf provided or for not receiving the said Sacrament contrary to this present Law nor any Proclamation Vtlawry or other procéeding thereupon shall at any time hereafter be avoided discharged or reversed by reason of any default in form or lack of form or other defect whatsoever other then by direct traverse to the point of not coming to Church or not receiving the said Sacrament whereof such person or persons hath beén or shall be Indicted but the same Indictment shall stand in force and be procéeded upon Any such default of form or other defect whatsoever notwithstanding Vtlawry A term for years sold upon an Outlawry restored A termor for years was outlawed upon an Indictment of Recusancy The Term was sold by the Lord Treasurer and Barons of the Exchequer and afterwards the Outlawry was reversed The Question was whether upon Reversal of the Outlawry the Recusant should have restitution of his Term again And Periam Justice doubted thereof and observed that the Book of 11 H. 4. 65. which saith that the party outlawed shall upon reversal of the Outlawry have restitution speaks only of Goods seized but not of a term sold before But Anderson Chief Justice and Walmesly Justice held That the Termor in this Case should have his Term again in whose soever hands the Land came and upon whatsoever Consideration and not the money for which the Term was sold For the Outlawry being reversed it is as if there were no Record of it And the Queens Interest was but conditional scil if the Outlawry were good Nor is this like the Case where a Sheriff upon a Fieri facias Fieri facias and 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 363. And the reason is because the Sheriff did no more then 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 Outlawry it is otherwise and there is no such Command which difference between a Fieri facias and Capias utlagatum was agreed in Dr. Drury's Case Co. 8. 143. And in the principal Case here Judgment was given for the Termor according to the Opinion of Anderson and Walmesly Cro. Pasch 34 Eliz. C. B. 278. Eyre versus Woodfine Where the Patron outlawed shall be restored to his presentment A man is seized of an Advowson in gross 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 is 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 Scire facias to execute the Judgment and shall oust the Presentee of the King And the reason in both these Cases is because upon the 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 Outlawry and therefore upon reversal the Patron shall be restored to it Vide Moore 269 270. C. 421. Beverleigh versus Cornwall Savile 89. C. 166. the same Case And where not But if the King upon an Outlawry 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 Kings presentee shall not be removed upon reversal of the Outlawry For the presentment in that Case is but as an accessary 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 parcel of the Mannor Moore ibid. The Recusant may plead collateral matter Or other defect whatsoever This is meant of defects within the Indictment or other proceedings and not of any collateral matter which the Recusant hath to discharge himself as a Pardon auterfoits convict c. For the Recusant is not hereby disabled to plead such collateral matter but may take advantage thereof Co. 11. 65. Dr. Fosters Case Nor yet is this meant of all defects whatsoever within the Indictment or other proceedings For if there be any defect Defects to the Kings prejudice which apparently tends to the Kings prejudice the Recusant may take advantage of it And therefore in the Case of the Marquess of Winchester who was Indicted and Convicted of Recusancy and had Judgment thereupon but ideo capiatur was omitted the Judgment was reversed for that omission Cro. Trin. 14 Car. 504 505. Provided always That if any person or persons Stat. Sect. 14. He that Conforms may avoid an Indictment or other proceedings so Indicted or to be Indicted shall at any time hereafter submit and conform him or her self and become Obedient to the Laws of the Church of England and repair to the Parish Church of his or her most abiding and if there be none such then to the Church next adjoyning to his or her such dwelling and there hear Divine Service according to the true meaning of the Statute in that behalf made and provided and there publickly receive the said Sacrament according to the Laws of this Realm of England now established That then every such person and persons so Indicted shall and may from thenceforth be admitted and allowed to avoid discharge reverse and undo the said Indictment and Indictments and all procéedings thereupon in such manner and form as if this present Act had not beén had nor made Any thing herein contained to the contrary in any wise notwithstanding And forasmuch as it is found by late experience Stat. Sect. 15. That such as go voluntarily out of this Realm of England to serve Forreign Princes States or Potentates are for the most part perverted in their Religion and Loyalty by Iesuits and Fugitives with whom they do there converse Be it therefore Enacted by the Authority aforesaid That every Subject of this Realm that after the Tenth day of June next coming shall go or pass out of this Realm to serve any Forreign Prince State or Potentate or shall after the said Tenth day of June pass over the Seas He shall take the Oath which goeth out of the Realm to serve another Prince and there shall voluntarily serve any such Forreign Prince State or Potentate not having before his or their going or passing as aforesaid taken the Oath aforesaid before the Officer hereafter appointed shall be a Felon And that if any Gentleman or person of higher degrée or any person or persons which hath born or shall bear any Office or place of Captain Lieutenant or any other place Certain persons to be bound to the King charge or Office in Camp Army or Company of Soldiers or Conducter of Soldiers shall after go or pass voluntarily out of this Realm to serve any such Forreign Prince State or Potentate or shall voluntarily serve any such Prince State or Potentate before that he and they shall become bound by Obligation with two such sureties as shall be allowed of by the Officers which are hereafter by this Act limited to take the same Bond unto our Soveraign Lord the Kings Majesty his Heirs or Successors in the sum of twenty pounds of currant English money at the least with Condition to the effect following shall be a Felon Subject of this Realm Every Subject of this Realm What is meant by a Subject of this Realm vide postea Sect. 23. Service Shall go or pass out of this Realm to serve The Service mentioned throughout this branch of the Statute is intended of civil or domestick Service as well as Military Co. 3. Inst. 80. and although the later part of it speaks of Officers and Soldiers yet it also speaks there of Gentlemen and persons of higher Degree without pointing 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 this Act. Felony though the party serve not 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 this Statute although the party be never received into actual Service For the words are in the disjunctive go or pass to serve or voluntarily serve Co. 3. Inst 80. Or intended not to serve Or shall c. pass over the Seas and there shall voluntarily serve So if he pass over the Seas upon some other occasion and not with an intent to serve a Forreign 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 incur the penalty of this Law and suffer as a Felon Co. 3. Inst 81. Bond must be Domino Regi Shall become bound by Obligation c. unto our Soveraign Lord the Kings Majesty An Obligation made to the Kings use is not sufficient nor will satisfie the intent of the Act but it must be made to the King himself For the Bond must be Domino Regi according to the Statute of 33 H. 8. cap. 39. Stat. 33 H. 8. 39 or the Officer who takes it is liable to Imprisonment for taking a Bond contrary to that Statute Wingate therefore tit Crown numb 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 informed himself out of that Statute of 33. and the Statute of 24 H. 8. cap. 8. of the difference between a Bond made to the King and a Bond made to the Kings use Vide Savile 13. C. 33. Shall be a Felon The Offender against any part of this branch of the Statute may have the benefit of his Clergy Clergy Co. 3. Inst 81. Vide postea Sect. 28. The tenor of which Condition followeth viz. Stat. Sect. 16. The Condition of the Bond. That if the within bounden c. shall not any time then after be reconciled to the Pope or See of Rome nor shall enter into or consent unto any practice Plot or Conspiracy whatsoever against the Kings Majesty his Heirs and Successors or any his and their Estate and Estates Realms or Dominions but shall within convenient time after knowledge thereof had reveal and disclose to the Kings Majesty his Heirs and Successors or some of the Lords of his or their Honourable Privy Council all such Practices Plots and
Ley Stat. 21 H. 8. 13 13 El. 12. 111. Deprivation And the Statute of 13 Eliz. touching the 39 Articles which provides that no Title to present by Lapse shall accrue upon any Deprivation ipso facto until six months after notice thereof given by the Ordinary to the Patron although it be penned in general terms extends only to the particular Cases in that Statute and to no other Case of Deprivation ipso facto by Act of Parliament And if the person that shall offend and be convicted in form aforesaid concerning any of the premisses shall not be Beneficed Stat. Sect. 4. The penalty of an Offender having no Spiritual Promotion nor have any spiritual Promotion that then the same person so offending and convict shall for the first Offence suffer Imprisonment during one whole year next after his said Conviction without Bail or Mainprize And if any such person not having any spiritual Promotion after his first Conviction shall eftsoons offend in any thing concerning the premisses and shall in form aforesaid be thereof lawfully convicted that then the same person shall for his second Offence suffer Imprisonment during his Life Stat. Sect. 5. The forfeiture of them which do any thing or speak in the derogation of the Book of Common Prayer Causing other Prayer to be said or sung And it is ordained and enacted by the Authority aforesaid That if any person or persons whatsoever after the said Feast of the Nativity of St. John Baptist next coming shall in any Interludes Plays Songs Rhimes or by other open words declare or speak any thing in the derogation depraving or despising of the same Book or of any thing therein contained or any part thereof or shall by open fact deed or by open threatnings compell or cause or otherwise procure or maintain any Parson Vicar or other Minister in any Cathedral or Parish Church or in Chappel or in any other place to sing or say any Common or open Prayer or to minister any Sacrament otherwise or in any other manner and form than is mentioned in the said Book or that by any of the said means shall unlawfully interrupt or let any Parson Vicar or other Minister in any Cathedral or Parish Church Chappel or any other place to sing or say Common and open Prayer or to minister the Sacraments or any of them in such manner and form as is mentioned in the said Book The forfeiture of 100 marks for the first Offence That then every such person being thereof lawfully convicted in form abovesaid shall forfeit to the Queén our Soveraign Lady her Heirs and Successors for the first Offence an hundred marks Any person or persons whatsoever A Feme Covert is within the meaning of this Branch and shall be liable to the Penalties thereby inflicted Feme Covert Hobart 97. Moore versus Hussey Dyer 3 Eliz. 203. Sir Edward Walgraves Case The beginning of this Parliament uncertain There hath been a great question when this Parliament of 1 Eliz. began Poulton saith the 23d of January Dyer 3 Eliz. 203. The 25th of January Co. 4. Inst 7. the 25th of February And for the incertainty when it commenced an Information was brought upon this Branch of the Statute against Sir Edward Walgrave and his Wife by the Queens Attorney without any special recital of the Statute Recital of Statutes only supposing the Offence to be Contra formam effectum cujusdam Statuti in Parliamento tenent apud Westmonasterium anno primo Reginae nunc c. Dyer 3 Eliz. 203. For this is a general Statute and general Statutes need not be particularly recited Plowden 53. Wimbish vers Talbois Ibid. 79. 81. Partridges Case Ibid. 231. Lord Barkleys Case Hearing Mass Compel or cause or otherwise procure or maintaine The hearing of Mass is a maintaining within this Statute and the person hearing it is Indictable thereupon Hobart 97. Dyer 3 Eliz. 203. ibid. 15 Eliz. 323. Fermors Case And if any person or persons being once convict of any such Offence eftsoons offend against any of the last recited Offences Stat. Sect. 6. The forfeiture of four hundred Marks for the second Offence ānd shall in form aforesaid be thereof lawfully convict That then the same person so offending and convict shall for the second Offence forfeit to thr Queén our Soveraign Lady her Heirs and Successors four hundred marks And if any person after he in form aforesaid shall have been twice convict of any Offence concerning any of the last recited Offences shall offend the third time The forfeiture for the third Offence and be thereof in form abovesaid lawfully Convict That then every person so offending and convict shall for his third Offence forfeit to our Soveraign Lady the Quéen all his Goods and Chattels and shall suffer Imprisonment during his Life The Offender in any of these Cases cannot be punished for the second Offence before he be adjudged for the first The Offender not punishable for the second offence until adjudged for the first and that second Offence must be committed after the Judgment given for the first nor for the third Offence before he be adjudged for the second and that third must be committed after the Judgment for the second For Quod non apparet non est non apparet Judicialiter ante Judicium Co. 2. Inst 479. Vide Dyer 323. And if any Person or Persons Stat. Sect. 7. The penalty if the party convicted do not pay his forfeiture within the time limitted that for his first Offence concerning the premises shall be convict in forme aforesaid do not pay the sum to be paid by vertue of his conviction in such manner and form as the same ought to be paid within six weeks next after his conviction That then every Person so convict and so not paying the same shall for the same first Offence instead of the said sum suffer Imprisonment by the space of six months without Bail or Mainprize And if any Person or Persons that for his second Offence concerning the premises shall be convict in form aforesaid do not pay the said sum to be paid by vertue of his conviction and this Statute in such manner and form as the same ought to be paid within six wéeks next after his said second conviction That then every person so convicted and not so paying the same shall for the same second Offence in the stead of the said sum suffer Imprisonment during twelve months without Bail or Mainprize An Information was brought by the Attorney General in the Kings Bench upon the Statute for hearing Mass The Offender dies within the six weeks and Judgment given Trin. 3 Eliz. Quod foris facereth Dominae Reginae Et si non solvet infra c. tunc imprisonabitur c. The forfeiture was estreated into the Exchequer within the six weeks mentioned in the Statute and before the six weeks expire the Defendant in the
one year and from thence forth till he have paid the said sum of Two hundred Marks And that every person which shall willingly hear Mass shall forfeit the sum of One hundred Marks and suffer Imprisonment for a year One hundred Marks And not Two hundred pounds Forfeiture as 't is mistaken in the late Additions to Dalton cap. 81. tit Recusants Sect. 59. Be it also further Enacted by the Authority aforesaid Stat. Sect. 5. The penalty for not coming to the Church by the space of a Month. That every person above the age of sixteen years which shall not repair to some Church Chappel or usual place of Common Prayer but forbear the same contrary to the tenor of a Statute made in the first year of her Majesties Reign for uniformity of Common Prayer and being thereof lawfully convicted shall forfeit to the Quéens Majesty for every month after the end of this Session of Parliament which he or she shall so forbear twenty pounds of lawful English money and that over and besides the said forfeitures every person so forbearing by the space of twelve months as aforesaid shall for his or her obstinacy after Certificate thereof in writing made into the Court commonly called the Kings-Bench by the Ordinary of the Diocess a Iustice of Assize and Goal-delivery or a Iustice of Peace of the County where such offender shall dwell or be be bound with two sufficient sureties in the sum of Two hundred pounds at the least to the good behaviour and so to continue bound until such time as the persons so bound do conform themselves and come to the Church according to the true meaning of the said Statute made in the said first year of the Queéns Majesties Reign Existens aetatis c. shall refer to the time of absence Above the age of sixteen years Talbot was Indicted upon this Statute Quod existens aetatis 16 annorum amplius non accessit ad Ecclesiam c. The question was whether the Existens aetatis 16 annorum 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 Moore 606. C. 838. Recusancy consists in omission Not repair c. but forbear This offence 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 1. 139. C. 190. Cuffe versus Vachel nor is Recusancy within that Branch of the Statute of 31 Eliz. cap. 5. Stat. 31 El. 5. which saith 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. Grimstone versus Molineux Vide infra Sect. 9. Conviction in the same Suit sufficient Being thereof lawfully convicted By this is not meant 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 a 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 Suit whereupon the penalty is to be recovered For the meaning only is that the Offender shall forfeit nothing before conviction which is no more then the Law implies And therefore in truth these words are but superfluous and might have been as well omitted Co. 11. 59. Rolls 1. 90. C. 41. Dr. Fosters Case Rolls 1. 234. C. 6. Bulstrode 3. 87. The King against Law Nor is Conviction here intended only of a Convicton by Verdict What Conviction is here meant And therefore if the Offender 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 this Penalty For Convicted is here to be taken for Attainted as 't is in many other Cases For until Judgment he shall forfeit nothing And although 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 Dr. Fosters Case Rolles 1. 89. 90. C. 41. Co. 11. 60. where several Cases are cited which prove that Convicted is oftentimes put for Attainted Shall forfeit to the Queens Majesty Shall forfeit i. e. to the King These words to the Queens Majesty 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 it not to any particular person the King shall have it by Construction of Law as was agreed in the Case of Agard and Tandish Anderson 2. 128. C. 73. 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 Vid. Sect. 9. For every month Month what It seems that the month here mentioned shall be accounted secundum numerum singulorum dierum allowing but 28 days to a month For so are all Statutes to be understood which speak of the month unless W. 2. cap. 5. W. 2. 5. 2 3 E. 6. 13 for the account of a Lapse and 2 3 E. 6. of proving a suggestion Co. 1. Inst 135. Cro. Trin 5 Jac. 166. 167. Bishop of Peterburgh versus Catesby Yelverton 100. Catesby versus Baker Hobart 179. Copley versus Collins And of this Opinion the Court of Kings-Bench seemed to be upon Construction of the Statute of Liveries in the Case of Donner and Smith Trin. 43 Eliz. Cro. 835. The Recusant may forfeit for 13 months in a year so that by this account the Recusant shall forfeit thirteen score pounds in the whole year In an Information brought by Parker Qui tam Conformity in part not available c. against Sir John Curson and his Wife for the Recusancy of the Wife for eleven months and non culp pleaded It was proved at the Trial B. R. Pasch 17. Jac. 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 Cro. Jac. 529. The Informer demands less then is due The Informer shewed that the
Twenty pounds per month is at first given to the Queen and the Inhabitants of the Parish where the Offence was are to Sue in the Exchequer for their third part The Parish must Sue for their third part in the Exchequer and surmise 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 Leonard 2. 167. C. 204. The principal Officers in the Receipt of Exchequer Principal Officers of the Exchequer The principal Officers of the Court of Exchequer are the Treasurer and Barons but the principal Officers of the Receipt of the Exchequer are the Treasurer and Chamberlains Savile 38. C. 87. To such person as will sue for the same Rules and Cases touching the common Informer This Branch of the Statute being the Axis upon which all popular Suits for Recusancy by the common Informer turn and move I shall be the larger thereupon and shall here set down the several Rules Cases and Resolutions in our Books which concern the common Informer or Plaintiff qui tam c. as far as they are applicable to the Case of Recusancy or the other Cases within this Statute Upon a penal Statute where part af the forfeiture is given to the King and part to him that will Sue Tam pro Domino Rege c. material the Informer or Plaintiff 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 Cro. Mich. 9 Car. 336. In an Information upon this Statute the usual way is The particular Statute must be named that the Informer for himself petit inde tertiam partem juxta formam Statut ' Vide Co. 11. 56. Dr. Fosters Case But then the Statute must be named for in an Information by Broughton Qui tam c. against Moore for 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 Kings-Bench to be ill For there are several Statutes against Recusancy and it did not appear which of them was meant Cro. Mich. 4 Jac. 142. Judgment of a Moiety to the King and a Moiety to the Informer where good But if this Statute be named in certain and the party who sues demands the whole forfeiture for the King and himself and Judgment be given that the King recover one moiety and the Informer or Plaintiff Qui tam c. the other moiety 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 therefrom when it saith that a moiety shall be to the King and a moiety to the Plaintiff or Informer And although the Statute saith That he which will sue shall have but a third part yet that is by way of distribution only And such distribution of the penalty is an Act subsequent to the Judgment and is to be made as well out of the moiety given by the Judgment to the Informer or Plaintiff Qui tam c. as out of the moiety given thereby to the King And this I conceive to be the reason of the resolution in Chambers Case where such a Judgment in the Case of Recusancy upon this Statute was allowed to be good Rolles 2. 437. The Informers demand must be certain But if the whole forfeiture be not demanded in certain there although the party who sues demands his own share 't is ill And so it was adjudged in an Information upon a poenal Statute which concluded Vnde petit advisamentum Curiae quod forisfaciat 5 l. pro qualibet offens unde 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 versus Westly Where Contra formam Statuti and where Statutorum If there be several Statutes 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 Vide supra Sect. 7. In the late Additions to Dalton cap. 191. tit Informations Informations within which Statute of Jeofailes St. 32 H. 8. 30. 18 Eliz. 14. 21 Jac. 13. Sect. 6. its said That Informations and Suits 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 the Statute of 32 H. 8. cap. 30. It 's true they are out of the Statutes of 18 Eliz. cap. 14. and 21 Jac. cap. 13. and that as it seems in all Cases within those two Statutes Vide Styles 307. Theoballs against Newton And in the Case of Scott versus Lawes Hobart 328. it seems to be intimated that they are excluded out of all three where the Case was that in an Action of Debt brought by an Informer Qui tam c. upon a penal Statute the Defendant pleads non debet praefato J. meaning the Informer and not the King and the issue was found against the Defendant 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 would not help it But that reason was ex abundanti it being an incurable fault not aided by any Statute of Jeofailes in any sort of Action and under favour might well have been spared For the Statute of 32 H. 8. seems to extend to all popular Suits whatsoever and in Wallers Case in an Information brought against him 18 Eliz. by Topcliffe Qui tam pro Domina Regina quam pro seipso c. upon the Statute of 37 H. 8. cap. 9. of Vsury it was adjudged 37 H. 8.9 that the mis-conveying of Process and mis-joyning of issue in the said Information were aided by 32 H. 8. Dyer 346 347. By the Statute of 31 Eliz. cap. 5. an Informer Qui tam 31 Eliz. 5. c. must begin his Suit within one
sue And as for Sir Edward Cokes Opinion that since the said Statute of 21 Jac. the Courts at Westminster cannot receive or hold Plea of any Information brought by a common Informer not only common Experience ever since that Statute is against it but the Judgments and Resolutions both of the Kings Bench Mich. 4 Car. 1. in the Case of Greene and Guy upon the Statute of 21 H. 8. cap. 13. of Non-residence Stat. 21 H. 8. 13. and of the Common Pleas. Trin. 4 Car. 1. in the Case of Farrington and Leymer upon the Statute of 23 H. 8. cap. 4. of Brewers 23 H. 8. 4. are directly in point contrary thereunto Cro. Car. 146. ibid. 112 113. Hutton 99. And so is the Opinion of Rolles upon the Statute of 7 E. 6. cap. 5. 7 E. 6. 5. of Selling Wines without Licence Styles 340. Buckstone against Shurlock and the Resolution in Jones 193. And yet although in penal Statutes any Court of Record shall be restrained to the ordinary Courts of Record at Westminster In what Statutes Courts of Record may be taken in a large sense possibly in other Statutes those words may admit of a larger Construction Vide Rolles 1. 51. C. 21. Floyde versus Beste By Action of Debt Bill Plaint or Information An Informer may sue upon this Statute by Bill Stat. 18 Eliz. 5. By the Statute of 18 Eliz. cap. 5. it is Enacted That none shall be admitted or received to pursue against any person upon any penal Statute but by way of Information or original Action and not otherwise Vide Co. 6. 19 20. Gregories Case Moore 412. C. 565. 600. C. 827. the same Case Cro. Hill 39 Eliz. 544. Gadley versus Whitecot And this seems to extend to as well penal Statutes made afterwards as to those which were in force when the said Act was made For 't is usual for a later Act of Parliament to be guided by a former of which see several Instances in Vernons Case Co. 4.4 But then that must be in such Cases where there are not express words in the later Act to controul the former And therefore although the words of 18 Eliz. be in the Negative that the Informer shall not pursue otherwise then by Information or original Action yet the Affirmative words of this subsequent Statute of 23 Eliz. that the Informer may Sue by Bill hath taken away the force of that Negative in 18 in relation to the Offences mentioned in 23. And the prosecutor Qui tam c. upon this Statute may Sue by Bill in the Kings-Bench as well as by Information which otherwise had there been no direct words here to that purpose he could not do as it seems by the resolution given in Woodson and Clarks Case in a Suit brought by Bill in the Kings-Bench 23 H. 6. 10. upon the Statute of 23 H. 6. cap. 10. of Sheriffs Co. 3. Inst 194. and in Vdeson and the Mayor of Nottinghams Case Moore 248. C. 390. contrary to the opinion in Styles 381. 382. Hill against Dechair Within threé months after Iudgment thereof given shall be committed to Prison Qui non habet in aere luet in corpore The Judgment shall be absolute And yet the Judgment in this Case shall be absolute that the King and Informer recover c. Anderson 1. 140. C. 190. Vachels Case A Feme Covert Feme Covert Recusant if the forfeiture be not paid within the time here limited may be imprisoned by force of this Statute until she pay or conform Co. 11. 61. Dr. Fosters Case Hobart 97. Moore vesus Hussey And if she be convicted upon Indictment at the Kings Suit in which Case the Husband is not bound to pay the penalty she ought by the opinion of Manword to have hard and close Imprisonment Imprisoned and be sequestred from all Company until she conform or the forfeiture be paid Savile 25. C. 59. But if the Husband and Wife be Sued upon this Statute in a popular Action or Information for the Recusancy of the Wife Her Husband chargeable and Judgment be had against them and the forfeiture is not paid within the three months the Husband in that Case may be imprisoned likewise Savile 25. C. 59. Stat. Sect. 10. Service in a mans private House Provided also That every person which usually on the Sunday shall have in his or her house the Divine Service which is established by the Law of this Realm and be thereat himself or her self usually or most commonly present and shall not obstinately refuse to come to Church and there to do as is aforesaid and shall also four times in the year at the least be present at the Divine Service in the Church of the Parish where he or she shall be resident or in some other open Common Church or such Chappel of ease shall not incur any pain or penalty limited by this Act for not repairing to Church Stat. Sect. 11. Fraudulent Assurances to defeat forfeitures And be it likewise Enacted and Declared That every Grant Conveyance Bond Iudgment and Execution had or made since the beginning of this Session of Parliament or hereafter to be had or made of Covinous purpose to defraud any interest right or title that may or ought to grow to the Queén or to any other person by means of any Conviction or Iudgment by vertue of this Statute or of the said Statute of the said thirteenth year shall be and be adjudged to be utterly void against the Quéen and against such as shall Sue for any part of the said penalties in form aforesaid Since the beginning of this Session of Parliament And yet a Covenons Conveyance though made before that Session of Parliament should not have defeated the interest Fraudulent conveyances right or title which was given to the Queen by this Statute And therefore in the Case or Sir John Southwell who in An. 19 Eliz. conveyed his lands to certain Feoffees and their heirs in Trust for the maintenance of him and his Family marriage of his Daughters payment of his Debts c. and to answer to him the Surplusage of the mean profits with a Clause of Revocation after which he granted Trees took fines for Leases c. and then came this Statute upon which he was Indicted and Convicted It was resolved by all the Judges of England that the said Lands were liable to this Statute and the Jurors charged to inquire what Lands he had were committed to the Fleet and fined each of them Fifty pounds for that they would not find those Lands to be his Leonard 3. 147. 148. By means of any Conviction or Iudgment Pauncefoot being Indicted of Recusancy A 〈◊〉 Outlawâ—â—â— made a Deed of Gift of all his Leases and Goods to a great value coloured over with fained considerations to defeat the Queen of what might accrew to her by his recusancy or flight and then went beyond Sea and afterwards was
Heir or Successor as was adjudged in the Case of an Annuity granted to Sir Thomas Wroth during his life Plowden 457. Provided always Stat. Sect. 8. Trial of a Peer If it happen at any time hereafter any Péer of this Realm to be Indicted of any Offence made Treason Felony or Praemunire by this Act That he shall have his Trial by his Péers as in other Cases of Treason Felony or Praemunire is accustomed Provided nevertheless and it is declared by authority aforesaid That if any such Iesuit Seminary Priest or other Priest abovesaid shall fortune to be so weak or infirm of Body that he or they may not pass out of the Realm by the time herein limited without eminent danger of life and this understood as well by the Corporal Oath of the party as by other good means unto the Bishop of the Diocess and two Iustices of Peace of the same County where such person or persons do dwell or abide That then and upon good and sufficient Bond of the person or persons with Sureties of the sum of Two hundred pounds at the least with condition that he or they shall be of good behavior towards our Sovereign Lady the Queén and all her liege people Then he or they so licensed and doing as is aforesaid shall and may remain and be still within this Realm without any loss or danger to fall on him or them by this Act for so long time as by the same Bishop and Iustices shall be limited and appointed so as the same time of aboad exceed not the space of six months at the most And that no person or persons shall sustain any loss or incur any danger by this Act for the receiving or maintaining of any such person or persons so licensed as is aforesaid for and during such time only as such person or persons shall be so licensed to tarry within this Realm Any thing contained in this Act to the contrary notwithstanding Stat. Sect. 9. One knowing a Jesuit or Priest to remain in the Realm must discover it to a Justice of Peace or higher Officer And be it also further Enacted by Authority aforesaid That every person or persons being Subject of this Realm which after the said forty days shall know and understand that any such Iesuit Seminary Priest or other Priest abovesaid shall abide stay tarry or be within this Realm or other the Queéns Dominions and Countries contrary to the true meaning of this Act and shall not discover the same unto some Iustice of Peace or other higher Officer within twelve days next after his said knowledge but willingly conceal his knowledge therein that every such Offender shall make Fine and be imprisoned at the Quéens pleasure And that if such Iustice of Peace or other such Officer to whom such matter shall be so discovered do not within Eight and twenty days then next following give Information thereof to some of the Quéens Privy Councel or to the President or Vice-president of the Quéens Councel established in the North or in the Marches of Wales for the time being That then he or they so offending shall for every such Offence forfeit the sum of two hundred marks And be it likewise Enacted by the Authority aforesaid That such of the Privy Councel President or Vice-president to whom such Informations shall be made shall thereupon deliver a note in writing subscribed with his own Hand to the party by whom he shall receive such Information testifying that such Information was made unto him Being Subject of this Realm And not any person as Wingate tit Crowne numb 59. mistakes What is meant by a Subject of this Realm Subject of this Realm who Vide Stat. 3 Jac. cap. 4. Sect. 23. Vnto some Iustice of Peace or other higher Officer Vide Stat. 35 Eliz. cap. 2. Sect. 8. At the Quéens pleasure Fine and imprisonment at the Queens pleasure In this Case the Offender must be proceeded against according to the course of Law 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 for going armed contrary to the Statute of 2 E. 3. Stat. 2 E. 3. 3 cap. 3. For the Book 24 E. 3. 33. saith that he was arraigned c. And if in this Case 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 eorum discretionem assessent finem non Dominus Rex per se in Camera sua nec aliter coram se nisi per Justiciarios suos haec est voluntas Regis viz. per Justiciarios suos legem suam unum est dicere 2 R. 3. 11. vide Co. 4. Inst. 71. 179. Note Sir Robert Brook in abridging the forementioned Case of Sir Thomas Figet saith that he was committed to the Prison of the Marshalsey and could not be mainprized until the King had signified his pleasure but omits the principal matter worthy of observation viz. That he was first arraigned c. Bro. Contempts 6. And be it also Enacted That all such Oaths Stat. Sect. 10. All Oaths Bonds and submissions to be certified into the Chancery Bonds and Submissions as shall be made by force of this Act as aforesaid shall be certified into the Chancery by such parties before whom the same shall be made within thrée months after such submission upon pain to forfeit and lose for every such Offence One hundred pounds of lawful English money the said forfeiture to be to the Quéen her Heirs and Successors None submitting himself shall come within ten miles of the Queen And that if any person so submitttng himself as aforesaid do at any time within the space of Ten years after such submission made come within Ten miles of such place where her Majesty shall ve without especial Licence from her Majesty in that behalf to be obtained in writing under her Hand that then and from thenceforth such person shall take no benefit of his said submission but that the same submission shall be void as if the same had never béen Stat. xxix Eliz. cap. vi An Act for the more speedy and due Execution of certain Branches of the Statute made in the 23 d. year of the Queens Majesties Reign Entituled An Act to retain the Queens Majesties Subjects in their due Obedience FOr avoiding of all Frauds and Delays heretofore practised Stat. Sect. 3. Certain assurances made by Recusants shall be void against the Queen or hereafter to be put in ure to the hindrance of the due and spéedy Execution of the Statute made in the Session of Parliament holden by Prorogation at Westminster the sixtéenth day of January in the thrée and twentieth year of
it directly by express words yet they both conceived they were within the intent of the Act by reason as Manwood said of these words all other the Lands c. liable to such seizure or to the penalties aforesaid But it was granted on all hands that by these general words here the King hath not any estate given him in the Recusants Copyhold Lands but only a right or title to two thirds of the profits By the Kings receiving of which the Lord cannot be impeached of his Customs and Services as he would be if the King should seize the Land it self And a difference was there taken between an Act of Parliament which transfers an Estate to the King and an Act of Parliament which gives him only the profits of the Estate For in the first Case the Rule in Heydons Case that Copyhold Lands shall not pass by general words shall stand good for the prejudice that may otherwise accrew to the Lord But where the Lords Seigniory Customs and Services are not to be Impeached or taken away as here they will not by the Kings bare receiving of the profits there it was said Copyholds shall be included within the general words of Lands Tenements and Hereditaments Leonard 1. 97. C. 126. And yet Vide Owen 37. where this Case is otherwise reported and that it was at length after great debate adjudged that Copyhold Lands are not within this Statute 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 liable to such seizure And for the more spéedy conviction of such Offender Stat. Sect. 5. The Indictment sufficient though it be not mentioned that the party is within the Realm in not repairing to Divine Service but forbearing the same contrary to the said Estatute Be it Enacted by the Authority aforesaid That the Indictment of every such Offender mentioning the not coming of such Offender to the Church of the Parish where such person at any time before such Indictment was or did keép House or Residence nor to any other Church Chappel or usual place of Common Prayer shall be sufficient in the Law And that it shall not be neédful to mention in any such Indictment that the party Offender was or is inhabiting within this Realm of England or any other the Queens Majestis Dominions But if it shall happen any such Offender then not to be within this Realm or other her Majesties Dominions that in such case the party shall be relieved by Plea to be put in in that behalf and not otherwise And that upon the Indictment of such Offender Stat. Sect. 6. A Proclamation that the party Indicted shall render his Body to the Sheriff a Proclamation shall be made at the same Assizes or Goal delivery in which the Indictment shall be taken if the same be taken at any Assize or Goal delivery by which it shall be commanded that the body of such Offender shall de rendred to the Sheriff of the same County before the said next Assizes or general Goal delivery to be holden in the same County And if at the said next Assizes or Goal delivery the same Offender so proclaimed shall not make appearance of Record that then upon such default Recorded the same shall be as sufficient a conviction in Law of the said Offence whereof the party so standeth Indicted as is aforesaid as if upon the same Indictment a Trial by Verdict thereupon had proceeded and been recorded If the same be taken at any Assize or Goal delivery For if the Indictment had been taken before Justices of Peace Proclamation by whom to be made 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 Edward Plowden And therefore upon such an Indictment for Recusancy taken before Justices of Peace the Court was to remove the Indictment into the Kings-Bench And there process might have been made out against the Recusant and he convicted For the Justices of Peace could do no more then Indict all other proceedings being taken away from them by this Statute Co. 11. 63. Dr. Fosters Case Rolles 1. 94. C. 41. the same Case But now by the Statute of 3 Jac. cap. 4. the Law is altered in this point Stat. 3 Jac. 4. and the Justices of Peace upon Indictments taken before them may proceed to proclaim and convict the Recusant as well as Justices of Assize and Goal delivery Shall be rendred to the Sheriff Vide Stat. 3 Jac. cap. 4. Sect. 5. Before the said next Assizes or general Gaol delivery Vide Stat. 3 Jac. cap. 4. Sect. 5. Appearance Make appearance of Record What appearance will serve in this Case Vide Stat. 3 Jac. cap. 4. Sect. 5. Vpon such default That is upon his default of appearance of Record at the next Assizes or Goal delivery For if he makes such appearance Default saved 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 would make it to be Tit. Crowne numb 66. As sufficient a Conviction in Law That is as if he were convicted by Verdict Conviction upon Proclamation no Judgment but not as sufficient as if a Judgment were had against the Recusant For although by force of this and other Statutes the conviction upon Proclamation and default of appearance make the Recusant liable 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 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 the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 without Proclamation and Judgment had been given thereupon Vide Co. 11. 65. Dr. Fosters Case Stat. Sect. 7. Provided always That whensoever any such Offender as is aforesaid shall make submission and become conformable according to the form limited by the same Estatute made in the thrée and twentieth year of the Quéens Majesties Reign The Offender submitting or dying no forfeiture shall ensue or be continued or shall fortune to die that then no forfeiture of twenty pounds for any month or seizure of the Lands of the same Offender from and after such Submission and Conformity or Death and full satisfaction of all
the arrearages of twenty pounds monthly before such seizure due or payable shall ensue or be continued against such Offender so long as the same person shall continue in coming to Divine Service according to the intent of the said Estatute It was resolved by all the Judges Mich. 37 38 Eliz. That if a man had been convicted according to this Statute by Proclamation upon default and afterwards conformed himself Where Conformity discharges the penalty he should be discharged of the penalty due upon his Conviction notwithstanding these words and full satisfaction of all the Arrearages And the reason of this given by Coke Chief Justice B. R. in Dr. Fosters Case is for that this Statute 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 penalties are discharged upon Conformity unless such as are converted into a Debt But otherwise it would have been if there had been a Judgment against the Recusant upon Trial or Confession on the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 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 Rolles 1. 94. C. 41. Quaere tamen Whether these words here due and payable are to be understood due and payable upon a Judgment only However now by the Statute of 1 Jac. cap. 4. 1 Jac. 4. if the Recusant conform either before or after Judgment he shall be discharged of all penalties But the profits of the Recusants Lands taken before his Conformity shall never be restored Savile 130. C. 201. The profits not to be restored It hath been questioned upon this Statute Where the penalty is discharged upon the death of the Recusant where not if a Recusant convicted by Proclamation upon default had died before seizure of two parts of his Lands whether 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 whether 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 principally grounded upon the aforesaid construction of this Statute viz. 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 Arrearages due in the sense of this Statute for the heir to pay And yet that by such Offender here is generally intended all Recusants convicted as well by Proclamation upon default as upon 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 But there seems now to be no further need of this Question for the Statute of 1 Jac. cap. 4. Stat. 1 Jac. 4. 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 a seizure the two parts shall continue in his Majesties possession till the Arrears are paid and satisfied Intailed Lands when discharged and when not But this is not intended of intailed Lands For without any aid of this Proviso if a Recusant Tenant in Tail be convicted by Proclamation upon default and dies 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 of which see farther in Stat. 1 Jac. cap. 4. Sect. 4. If a Judgment was had against the Recusant before the said Statute of 1 Jac. and he had died before seizure of the two parts of his Lands The question was whether after his death they might have been seized by force of this Statute of 29. for the Arrears of the penalty incurred in his life time For that the seizure here given is meerly in nature of a nomine poenae 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 Vide Lane 92 93. Beckets Case Ibid. 107. Halseys Case Stat. 1 Jac. 4. But now by the Statute of 1 Jac. 4. the seizure is not as a meer penalty for the contempt of non-payment but for the satisfying of the King of the Arrears of the 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 Seizure after the Recusants death unless the Heir discharge himself by his Conformity Note Discharge upon Affidavit in all these Cases of seizure where the Land is to be discharged upon the death of the Recusant although an Affidavit be made of his death and a discharge obtained thereupon yet 't is a Rule in the Court of Exchequer Commission to enquire That a Commission shall be awarded first to enquire Savile 130. Case 201. And where by the said former Estatute Stat. Sect. 8. The third part of the forfeiture how to be disposed of the third part of the forfeitures for not coming to Divine Service is limited to the Poor Be it further Enacted by the Authority aforesaid That it shall and may be lawful to and for the Lord Treasurer of England Chancellor and Chief Baron of the Exchequer for the time being or two of them to assign and dispose of the full third part of the twenty pounds for every month paid or to be paid into the Receipt of the Exchequer as is aforesaid for the relief and maintenance as well of the Poor and of the Houses of Correction as of impotent and maimed Soldiers as the same Lord Treasurer Chancellor and Chief Baron or any two of them shall order or appoint Any thing in the said Estatute made in the said thrée and twentieth year of her Majesties Reign mentioned to
Curate of every Parish where such Submission and Declaration of Conformity shall hereafter be so made by any such Offender as aforesaid Stat. Sect. 14. The Minister shall enter the Submission into a Book shall presently enter the same into a Book to be kept in every Parish for that purpose and within ten days then next following shall certifie the same in writing to the Bishop of the same Diocess Provided nevertheless Stat. Sect. 15. A Recusant submitting and falling into Relapse That if any such Offender after such Submission made as is aforesaid shall afterward fall into Relapse or eftsoons become a Recusant in not repairing to Church to hear Divine Service but shall forbear the same contrary to the Laws and Statutes in that behalf made and provided That then every such Offender shall lose all such benefit as he or she might otherwise by virtue of this Act have or enjoy by reason of their said Submission And shall thereupon stand and remain in such plight condition and degrée to all intents as though such Submission had never beén made Such Relapse with the Indictment thereof Relapse where to be certified is to be certified into the Court of Exchequer as was done by the Justices of the Kings Bench in the Case of Francis Holt. Pasch 9 Jac. Bulstrode 1. 133. Stat. Sect. 16. Married Women bound by this Act saving in the Case of Abjuration Provided always and be it Enacted by the Authority aforesaid That all and every Woman married or hereafter to be married shall be bound by all and every Article branch and matter contained in this Statute other then the Branch and Article of Abjuration before mentioned And that no such Woman married or to be married during marriage shall be in any wise forced or compelled to abjure or be abjured by virtue of this Act Any thing therein contained to the contrary thereof notwithstanding Stat. i Jac. cap. iv An Act for the due execution of the Statutes against Jesuits Seminary Priests Recusants c. FOr the better and more due execution of the Statutes heretofore made aswell against Iesuits Stat. Sect. 1. All Statutes made against Jesuits Priests and Recusants shall be put in Execution Seminary Priests and other such like Priests as also against all manner of Recusants Be it Ordained and Enacted by Authority of this present Parliament That all and every the Statutes heretofore made in the Reign of the late Quéen of famous memory Elizabeth as well against Iesuits Seminary Priests and other Priests Deacons Religious and Ecclesiastical persons whatsoever made ordained or professed or to be made ordained or professed by any Authority or Iurisdiction derived challenged or pretended from the Sée of Rome as those which do in any wise concern the withdrawing of the Kings Subjects from their due obedience and the Religion now professed and the taking of the Oath of obedience unto the Kings Majesty his Heirs and Successors together with all those made in the said late Quéens time against any manner of Recusants shall be put in due and exact execution Oath of Obedience By the Oath of Obedience Oath of Obedience Stat. 1 Eliz. 1. is here meant the Oath of Supremacy in the Stat. of 1 Eliz. cap. 1. which see there Sect. 7. and by that name it is here called afterwards Sect. 3. Provided nevertheless Stat. Sect. 2. A Recusant conforming himself shall be discharged and be it Enacted by the Authority of this present Parliament That if any that is or shall be a Recusant shall submit or reform him or her self and become obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the true meaning of the Statutes in that behalf in the said late Quéens time made and provided That then every such person for and during such time as he or she shall so continue in such conformity and obedience shall from thenceforth be freed and discharged of and from any the penalties and losses which the same person might otherwise sustain and bear in respect or by reason of such persons Recusancy According to the true meaning of the Statutes in that behalf It hath been doubted whether these words do refer only to the manner of the Recusants conformity or to the time likewise when it is to be done as well as to the manner For if they refer to the time then the Recusant is still bound notwithstanding this Statute to conform before Judgment according to the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 or his conformity afterwards shall not discharge him of the penalty But the better opinion is that by these words according to the true meaning of the Statutes is to be intended only that the Recusant must conform in such manner as is there appointed but as to the time the general words here have inlarged the time limited by 23 Eliz. If the Recusant conforms after Judgment 't is sufficient For this Statute is made in further favor of the Recusant So that now if he conforms after Judgment 't is time enough and he shall be discharged of all penalties in respect of his Recusancy And if an Information tam pro Domino Rege quam pro seipso be brought upon the Statute of 23 Eliz. against the Recusant and after Judgment had against him thereupon he conforms he shall be discharged of the Judgment but first his Conformity must appear of Record otherwise the Court cannot take notice of it and as for that his remedies against the King and the Informer must be several His remedies against the King and informer Audita Quaerela Plea for against the Informer he must bring his Audita Quaerela and against the King he must plead his conformity which he may do in this Case after Judgment for that no Audita Quaerela lies against the King 11 H. 7. 10. and if he should not be admitted to plead he would be without any legal Remedy to discharge himself of the forfeiture and Judgment as to the Kings part whose execution will not be hindred by the Audita Quaerela against the Informer But if the Defendant neglect to put in his Plea and Execution issues for the King and he be taken in Execution he comes too late to plead his Conformity and hath then no other way left to relieve himself as to the Kings part but by his Petition Petition to the King to pardon the Debt Bulstrode 2. 324 325. Dr. Fosters Case Rolles 1. 95. C. 41. the same Case Vide Savile 23. C. 56. Tirringhams Case Stat. Sect. 3. And if any Recusant shall hereafter die his heir being no Recusant that in every such Case every such heir shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her In what Cases a Recusants heir shall be
charged in what not in respect or by reason of his or her Ancestors Recusancy And if at the decease of any such Recusant his heir shall happen to be a Recusant and after shall become conformable and obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the intent and true meaning of the said Statutes and Ordinances in that behalf made as is aforesaid and also shall take the Oath of Supremacy in such sort as that Oath is expressed in one Act of Parliament made in the first year of the Reign of our late Sovereign Lady Quéen Elizabeth before the Archbishop or Bishop of the Diocess that in every such Case every such heir shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy Provided always and be it Enacted by Authority of this present Parliament That if the heir of any Recusant shall happen to be within the age of sixtéen years at the time of the decease of his or her Ancestor and shall after his or her said age of sixteen years become or be a Recusant that in every such Case any such heir shall not be freéd or discharged of all or any of the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy until he or she shall submit or reform him or her self and become obedient to the Laws and Ordinances of the Church of England and repair to the Church and continue there during the time of the Divine Service and Sermons according to the intent and true meaning of the said Statutes and Ordinances in that behalf as is aforesaid and shall take the said Oath of Supremacy in manner and form afore expressed and yet nevertheless from and after such submission and Oath had and taken every such heir shall be fréed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of any of his or her Ancestors Recusancy If any Recusant shall hereafter die That is Convicted Recusant 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 Of all and singular the penalties Judgment against Tenant in Tail charges and incumbrances If Judgment be had at the Kings Suit against a Recusant Tenant in Tail for Recusancy this is a charge and incumbrance within this Statute 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 intailed Lands are liable thereto by the Statute of 33 H. 8. cap. 39. Stat. 33 H. 8. 39 But these two Clauses discharge the arrears of the Twenty pounds 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 Seisure in the Recusants life time 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 the arrears for which Vide postea Sect. 4. Stat. Sect. 4. The two parts of a Recusants Lands shall go towards satisfaction of the Twenty pounds per month And be it further Enacted by Authority of this present Parliament That where any seizure shall be had of the two parts of any Lands Tenements Hereditaments Leases or Farmes for the not payment of the Twenty pounds due and payable for each month according to the Statute in that Case lately made and provided That in every such Case every such two parts shall according to the extent thereof go towards the satisfaction and payment of the Twenty pounds due and payable for each month and unpaid by any such Recusant and that the third part thereof shall not be extended or seized by the Kings Majesty his Heirs or Successors for not-payment of the said Twenty pounds payable for each month forfeited or lost by any such Recusant And after his death shall remain in the Kings hands until the arrears be satisfied And where any such seizure shall be had of the two parts of the Lands Tenements Hereditaments Leases or Farmes of any such Recusant as is aforesaid and such Recusant shall die the debt or duty by reason of his Recusancy not paid satisfied or discharged that in every such Case the same two parts shall continue in his Majesties possession until the residue or remainder of the said debt or duty be thereby or otherwise paid satisfied or discharged And that his Majesty his Heirs or Successors shall not seize or extend any third part descending to any such heirs or any part thereof either by reason of the Recusancy of his or her Ancestors or the Recusancy of any such heir What seizure is here meant Where any seizure shall be had That is a seizure upon either a Judgment against the Recusant by Indictment on the Statute of 23 Eliz. cap. 1. Stat. 23 Eliz. 1 29 Eliz 6 or on Indictment and Conviction by Proclamation and default of appearance according to the Statute of 29 Eliz. cap. 6. For the seizure of two parts of the Recusants Lands was given the King by 29. upon default of payment of the Twenty pounds per month in either of those Cases as hath been said for which see that Statute Sect. 4. Go towards the satisfaction and payment of the Twenty pounds Stat. 29 Eliz 6 altered Hereby a principal branch of the Statute of 29 Eliz. cap. 6. is altered For whereas by 29. 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 penalty until the Twenty pounds per month had been paid and yet the profits should not have gone towards the satisfaction of the said Twenty pounds per month This Statute was made for the ease and benefit of the Recusant in that point The two parts satisfactory of the penalty 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 force of the Statute of 3 Jac. cap. 4. Stat. 3 Jac. 4. makes his Election and seizes two parts in
lieu of the Twenty pounds per month And therefore the Resolution or Judgment said to be given in the Case of one Gray Anno 1. or 2. Jac. and cited in Beckets Case 8 Jac. Lane 93. and by Sergeant Bridgman in his Argument of Parker and Webbs Case 16 Jac. Rolles 2. 25. and applied thereunto viz. That if a Recusant convicted fails of the payment of the Twenty pounds per month the King shall have his Lands as a gage or penalty and the profits shall not go towards satisfaction thereof However it were true as the Law stood upon 29 Eliz. and before the making of this Act of 1 Jac. yet 't is not Law at this day nor could be applicable to either of those Cases of Becket or Parker and Webb which came to be debated long after this Act was made and the Law of 29 Eliz. altered in that point Vide Stat. 29 Eliz. cap. 6. Sect. 7. Where any such seizure shall be had c. This Relative such takes in both the seizures beforementioned viz. a seizure upon Indictment and Judgment thereupon by force of the Statute of 23 Eliz. and a seizure upon Conviction on Proclamation and default according to the Statute of 29 Eliz. And What seizure is here meant Stat. 23 Eliz 1 29 Eliz. â— as in both those Cases the Recusant who fails of the payment of the Twenty pounds 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 Where this extends not to Intailed Lands Two parts of the Lands c. of any such Recusant This Clause 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 Twenty pounds 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 the nature of a Verdict only Conviction upon Proclamation no Judgment and not of a Judgment as was held in Doctor Fosters Case Rolles 1.94 C. 41. 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 charged by general words in the Statute which gives the forteiture or seizure An instance whereof we have in the Case of a Recusant Tenant in Tail Indicted Stat. 23 Eliz. 1 Convicted and Adjudged upon 23 Eliz. 1. for his Intailed Lands shall remain after his death in the Kings possession until the arrears be satisfied 29 Eliz. 6 33 H. 8. 39 and that by force of 29 Eliz. c. 6. and this Statute cooperating with the Statute of 33 H. 8. cap. 39. which charges the Lands of the heir in Tail with debts due to the King upon a Judgment had against the Ancestor Praemunire Stat. 16 R. 2. 5 But otherwise 't is in the Case of a Praemunire upon the Statute of 16 R. 2. cap. 5. which saith the Lands and Tenements of the Offender shall be forfeit to the King for there his Intailed 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 the Statute de donis conditionalibus Co. 1. Inst. 130. 391. Co. 11.63 Godbolt 308. Lord Sheffeild and Ratcliffe Treason Stat. 26 H. 8. 13 5 E. 6. 11 And therefore in the Statutes of 26 H. 8. cap. 13. and 5 E. 6. cap. 11. which make Intailed Lands forfeitable for Treason the word inheritance was added any Estate of Inheritance which expresly denotes Lands in Fee Tail as well as Feesimple Now there being neither in this Act or that of 29 Eliz. 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 charges the heir in Tail with the forfeiture due to the King upon Conviction by Proclamation and Default the general words here that his Lands Tenements c. shall continue in the Kings possession shall not inforce a construction in prejudice of the Heir in Tail who claims by the Statute de donis conditionalibus 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 intailed Lands upon the Statute of 29 Eliz. cap. 6. which speaks of the full satisfaction of Arrearages in Case of the death of the Recusant Arrears where to be paid by the Heir in Tail where not And the Arrears were to have been 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 in this last Case the Heir in Tail was not bound by the Statute of 33 H. 8. cap. 39. because 't is not a Debt by Judgment as that Statute requires Moore 523. C. 691. And thus the Opinion of the two Chief Justices Trin. 43 Eliz. is to be understood for they held That if intailed Lands had been seized for non-payment of the 20 l. 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 Cro. Eliz. 846. At the end of which Case 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 And be it further Enacted by the Authority of this present Parliament Stat. Sect. 2. None shall go or send any other to a Seminary c. That all and every person and persons under the Kings Obedience which at any time after the end of this Session of Parliament shall pass or go or shall send or cause to be sent any Child or any other person under their or any of their Government into any the parts beyond the Seas out of the Kings Obedience to the intent to enter into or be resident in any Colledge Seminary or House of Iesuits Priests or any other Popish Order
although he be there personally present and openly confess himself to be the same person who was Indicted and against whom the Proclamation issued yet if he deny to appear upon the Proclamation or to consent that his appearance be entred of Record it seems that his appearance cannot be Recorded but his default shall and he shall stand Convicted thereupon And this is no more an appearance then where a Prisoner is brought to the Common Pleas Bar by habeas Corpus to the intent to have him appear to an Original brought against him and he denies to appear to the Action in which Case his appearance cannot be Recorded as was resolved in Ascoughs Case 43 Eliz. Gouldsborough 118. Shall be as sufficient a conviction in Law That is a Recusant thus Convicted upon Proclamation and Default of appearance shall be in the same Condition as if he were convicted by Verdict but no Judgment is given Bridgman 122. Parker versus Webb But this Conviction upon Proclamation is no Judgment as was resolved in Doctor Fosters Case Co. 11.65 Conviction upon Proclamation no Judgment And although it shall make the Recusant liable to the several forfeitures penalties and incapacities inflicted on Recusants convict yet it shall not operate as a judgment as hath been already shewed in divers instances For this reason it hath been questioned whether if a Recusant be Convicted upon Indictment and Proclamation the King may not wave his advantage of this Conviction and bring his Action of Debt given him by the Statute of 35 Eliz. cap. 1. Stat. 35 Eliz. 1 For that such Conviction is no Judgment and consequently ought not to bind the King as a Judgment against the Recusant should have done Palmer 40.41 Sir John Webbs Case Worsley obtained a Patent to have all the Penalties of Recusants convict Although such a Patent was illegal for that the King cannot grant the penalty of a penal Law to a Subject for which Vide Rolles 1.10 C. 11. Roy versus Tollin Hobart 155. Colt Glover versus the Bishop of Coventry and Litchfield Ib. 183. Davison versus Barber yet admitting the Patent to be good The King cannot grant the forfeiture on a penal Law it was resolved that the penalties of Recusants convicted by Proclamation should not pass by those general words Rolles 1. 94 95. C. 41. Doctor Fosters Case And be it further Enacted Stat. Sect. 6. The penalty of a convicted Recusant That every offender in not repairing to Divine Service but forbearing the same contrary to the Statutes in that behalf made and provided that hereafter shall fortune to be thereof once convicted shall in such of the Terms of Easter and Michaelmas as shall be next after such Conviction pay into the Receipt of the Exchequer after the rate of Twenty pounds for every month which shall be contained in the Indictment whereupon such conviction shall be And shall also for every month after such Conviction without any other Indictment or Conviction forfeit Twenty pounds and pay into the Receipt of the Excheqver aforesaid at two times in the year that is to say in every Easter and Michaelmas Term as much as then shall remain unpaid after the rate of Twenty pounds for every month after such Conviction except in such Cases where the King shall and may by force of this Act refuse the same and take two parts of the Lands Tenements Hereditaments Leases and Farms of such Offender till the said party being Indicted for not coming to Church contrary to former Laws shall conform himself and come to Church according to the meaning of the Statute in that behalf made and provided What Convictions are here meant Once Convicted This extends to all Convictions whatsoever upon Indictment whether by Verdict Confession c. whereupon Judgment is given as well as to Convictions upon Proclamation and default And the penalty of Twenty pounds per month shall in any of the said Cases run on forever after and be appropriated to the King Stat. 29 Eliz. 6 Vide Stat. 29 Eliz. cap. 6. Sect. 4. In what Term the forfeiture is to be paid In such of the Terms of Easter and Michaelmas as shall be next after such conviction Here Easter and Michaelmas is to be taken disjunctively for Easter or Michaelmas as it is in the Statute of 29 Eliz. cap. 6. Sect. 4. For the meaning is not that the Recusant shall have both of the Terms of Easter and Mithaelmas next after his Conviction wherein to pay the forfeiture of Twenty pounds for every month contained in the Indictment But he ought to pay the whole into the Exchequer the next Easter or Michaelmas Term which shall first happen after his Conviction And therefore if he be convicted in February he ought to pay the whole the next Easter Term unless where the King chooses to seize the two thirds of his Lands by force of this Statute as was admitted in the Case of Standen and the University of Oxford Hill 20 Jac. Jones 24. 25. And in the Lady Webbs Case who was convicted in March the pleading was that in the Easter Term then next following the said Katherine did not pay into the Exchequer according to the rate of 20 l. per month without any mention of Michaelmas Term Bridgman Pasch 16 Jac. 121. For every month after such Conviction By this Clause and that of 29 Eliz. cap. 6. Sect. 4. 29 Eliz. 6. Penalty appropriated to the King to the same purpose after the Recusant is once Convicted the penalty of Twenty pounds per month shall run on without any new Indictment or Conviction and shall be for ever afterwards appropriated to the King alone and paid into the Exchequer so that the Informer cannot bring any popular Action or Information for the Twenty pounds per month Informer barred for any time incurred after such Conviction but is utterly barred Co. 11.61 Doctor Fosters Case Rolles 1. 93. C. 41. the same Case Owen 37. Sulherd and Evererds Case The Lady Webb was Indicted and Convicted of Recusancy upon Proclamation and default of appearance Whether barred in the Case of a Feme Covert and afterwards an Informer Qui tam c. sued her and her Husband for a new offence of Recusancy in the Wife subsequent to such Conviction to which they both pleaded the said Conviction at the Kings Suit The question was whether the Informer should be barred by this Plea or whether the Information was maintainable notwithstanding such former Conviction of the Wife for that the Wife seems not to be such an Offender as is here intended because she can have no Goods or Lands during the Husbands life which may be seized for non-payment of the penalty But it was granted on all hands that if she had been a Feme sole this had been a good Plea in bar of the Informers popular Suit for then she had been bound to pay the Twenty pounds per month into the Exchequer and
32. Certificate See Bishop Certiorari Certificates in what cases how to be made and within what time 35. 37 38. 40 41. 60. 96 97. 100. 116. 119. 135. 145. 174. 183. 186. 201. 217. 249 250. 263. Certiorari What Courts may direct a Certiorari immediately to another Court and who must certifie 217. Where a Certiorari to certifie a Record shall be awarded de novo 217. Chattels Money secured upon a Mortgage is within the word Chattels 137. Children see Seas Church See Alien Ceremonies Conformity Ecclesiastical Iurisdiction Ornaments Recusants Where the repairing to Church must be to Morning and Evening Prayers both 190. How the party ought to behave himself there 27. He ought to continue there during Service and Sermon 27. The Penalty for not coming to Church 26. 59 60. 188 189. The party may be punished both for his monthly and weekly absence from Church 27. 190. The 12 d. for absence from Church is due and may be sued for as soon as the Sunday or Holy-day is over 27. 190. Not necessary to go to a mans Parish Church so he go to some other 27 28. Where the Ecclesiastical Court cannot judge what is a mans Parish Church 28. What is a Parish Church 118. The penalty for perswading others to forbear to come to Church 113 114. Church of England see King Cinque Ports The Warden of the Cinque Ports may take the Bond and minister the Oath of Allegiance to such as pass beyond Seas 198. He is not liable to the Penalties inflicted for not certifying them 198 199. Clerk of Assizes and Peace See Recusants Clergy See Ecclesiastical persons Clergy in what case to be allowed 183. Colledge see Seminaries Commission See Courts Ecclesiastical Iurisdiction King Where a Recusants Lands are upon his death to be discharged of the seizure a Commission shall issue to inquire 111. Common Prayer See Baron Feme Iudgment What form of Common Prayer is injoined by the Laws in force what not 21. 32. The penalty on the Minister who useth not or depraveth the Common Prayer or useth any other open Prayers 20 21 22 22 24. What Ministers are there meant 21. What open Prayers are excepted 21. The penalty for depraving the Common Prayer or hindering it to be said or procuring or maintaining any other open Prayers 24 25 26. Hearing of Mass is a maintaining within the Statute 24 25. Concealers Concealers of offenders and offences where punishable 51. 55 56. 59. Confirmation Whose confirmation of a Lease by the incumbent is necessary 228. 230. Conformity and Submission See Baron Feme Bishop Indictments Informations Relapse Sacrament Seminaries What is Conformity 129. Conformity where it discharges the penalties for Recusancy 28. 68 69. 147 148. Where Conformity for some part of the time shall not excuse the offender 61 62. Conformity will not help him upon 1 Eliz. 2.27 What is a Conformity and Submission before Judgment 69. Conformity before the Bishop how to be made and where pleadable 69. Conformity after Judgment will now discharge the Recusant of all penalties 148. The Recusants Remedies upon his Conformity as to the King and Informer 148. Conformity of the Husband of a Popish Recusant convict 212. In what cases Conformity is necessary before an Indictment Utlawry c. for Recusancy can be avoided or reversed and where not 179 180 181. Where the Recusants Conformity shall discharge the Arrears of the 20 l. per month and where not 108 109. The profits taken before Conformity not restorable 109. Where the Conformity of the heir of a Recusant shall discharge the Arrears incurred in the Ancestors life time and where not 148 149 150. Conformity and Submission by such as return from any Seminary c. 91 92. 154 155. 258 259. Submission by a Jesuit Popish Priest c. 94 95. Oaths and Submissions upon 27 El. 2. where to be certified 97. The penalty for not certifying 97. Submission by a person reconciled to the Pope or See of Rome 186. In what case submission is not available 187. What Conformity and Submission discharges the offender against 35 Eliz. 1. of Conventicles 115 116 117 118. Who may require it 115. And within what time 116. The penalty for refusing to make it 116 117. In what cases it must be made in some Parish Church 117 118. What is a Parish Church 118. The form of the Submission 118 119. It must be registred and certified to the Bishop 119. What Conformity and Submission discharges the offender against 35 Eliz. 2. of Popish Recusants confined 135. Who may require it 135. And within what time 135. 137 138. The penalty for refusing to make it 135. It must be made in some Parish Church 143 144. The form of the Submission 144 145. It must be registred and certified to the Bishop 145. Two several submissions required 144. Conventicles See Conformity Conviction The penalty for going to Conventicles or perswading others so to do 113 114. Conviction See Baron Feme Indictments Informations Recusants What is meant by Conviction 61. 216. 252. Conviction of Recusants c. before whom 65 66 67. 84 85. 100 101. 108. 162. Where to be certified 100. What is a sufficient conviction of the Recusant within 23 Eliz. 1.60 What is a good conviction of the Recusant upon Proclamation and default and what not 163. How to be convicted upon Proclamation c. 107. 162. Where by Recusants convict shall not be intended Recusants convict upon Proclamation c. 165. Conviction upon Proclamation c. is no Judgment nor shall operate as a Judgment 69. 108 109 110. 152 153. 165. What Conviction is sufficient upon 35 Eliz. 1. of Conventicles 115. Copulative Where a Copulative shall be taken for a Disjunctive 184. Copyholds Whether Copyhold Lands may be forfeited for Recusancy 106 107. Where they shall not pass by general words 106. To whom to be forfeited by 35 Eliz. 2. 133. Coroner Where the Coroner may give the Oath of Abjuration 135. 138 139. Corporations What offences Mayors and other Head Officers of Corporations may hear and determine and in what manner 29 30. Corruption of Blood Where there shall be no corruption of blood 42. 124. 194. Costs see Informers Covin See Informations Covin shall not bar the King 79. 105 106. A man becomes a Popish Recusant convict by Covin how it shall operate 228. Covinous grant of an Advowson by a Popish Recusant shall not bar the University of their presentment 231. Where the Covin must be averred and found by the Jury 228. 231. Imprisonment of the Feme by Covin shall not avoid the payment of the 10 l. per month during such imprisonment 255 256. Imprisonment by Covin shall not avoid an Utlawry 256. Councel see Praemunire Privy Councel What offences are to be disclosed or signified to the Privy Councel or some or one of them 51. 55 56. 96 97. What Privy Councellors may grant a Licence to go beyond the Seas 94. 155. 224. A Popish Recusant may
the person offering an Agnus Dei c. shall be disclosed to the Ordinary of the Diocess 53 54. A Schoolmaster may be allowed by the Ordinary of the Diocess 64. What the Ordinary may take for such allowance 65. Ornaments What Church Ornaments shall be used 31. Outlawry see Vtlawry Pardon Where the King may pardon the forfeiture upon a poenal Law and where not 80. His pardon will not restore an offender deprived by 1 Eliz. 23. Parish See Church The Ecclesiastical Court cannot try the limits or bounds of Parishes 28. The Parish the Recusant is of need not be named in the Indictment 71. How the Parish is to recover that part of the penalty given by 23 Eliz. 1. to the Poor 71. Parliament When the Parliament of 1 Eliz. began 24. Every Member of the Commons House must take the Oaths of Supremacy and Allegiance 43 44. 243. Patron See King Nomination Recusants Vtlawry Notice to the Patron where necessary and where not 23. Péers See Praemunire By and before whom to be indicted 88. 188. By whom to be tried 16. 29. 44. 56. 87. 93. 96. 188. Provision in Acts of Parliament for trial of a Peer by his Peers where ex abundanti 16. In what cases only a Peer shall be tried by his Peers 198. Saving of the Priviledges of Peers 265 266. Penalty See Baron Feme Cinque Ports Forfeiture King Parish Recusants Penalties given by 23 Eliz. 1. how to be recovered by the King and where 120 121 122. Penalties given by 23 El. 1. and 35 El. 1. how to be distributed 70. 111. 123. The subsequent distribution of a Penalty shall be good although the whole be at first given to the King 70 71. Penalties For refusing to abjure see Abjuration For absolving perswading or withdrawing the Kings Subjects from their Obedience or the Religion established to the Romish Religion or reconciling them to the Pope or See of Rome or being absolved c. See Absolution Obedience Religion Rome For bringing in c. any Agnus Dei c. See Agnus Dei. For concealing the offenders name See Agnus Dei. On such who aid maintain relieve c. offenders See Aide For refusing to discover or hindring the delivery of a Popish Recusants Arms. See Armour If the Child of a Popish Recusant convict be baptized contrary to 3 Jac. 5. See Baptisme On a Popish Recusant convict who is married contrary to 3 Jac. 5. See Baron Feme Recusants On a married woman convicted as a Popish Recusant if she conforms not See Baron Feme Recusants For bringing in c. Popish Books See Books For getting or putting in ure Bulls from Rome See Bulls If a Popish Recusant be buried contrary to 3 Jac. 5. See Burial For not coming to Church See Church Recusants For depraving hindring or not using the Common Prayer or using or maintaining any other See Common Prayer On Concealers of Offences See Concealers For going to Conventicles or perswading others so to do or to impugne the Kings Ecclesiastical power or to forbear to come to Church See Church Conventicles King For not certifying the submission required by 27 Eliz. 2. See Conformity For refusing to make submission according to 35 Eliz. 1. or 35 Eliz. 2. See Conformity For keeping a Recusant in his house See House For maintaining any Forraign Jurisdiction within this Realm See Iurisdiction For saying or hearing of Masse See Masse For refusing or not taking the Oaths of Supremacy or Allegiance See Oaths For not certifying the Refusal or the taking of the Oath of Supremacy See Oaths For not certifying the taking of the Oath of Allegiance See Oaths For serving or going to serve a Forraign Prince c. without first taking the Oath of Allegiance See Oaths For executing any Office without receiving the Sacrament and taking the Oaths and Test injoined by 25 Car. 2. 2. See Offices For not certifying Presentments of Offences against 5 Eliz. 1. See Presentments For not presenting Popish Recusants at the Sessions See Recusants For not entring and recording such Presentments See Recusants On a Popish Recusant confined and offending against 35 Eliz. 2. See Recusants For keeping or maintaining Recusants See Recusants On a Popish Recusant convict who comes to Court See Recusants On a Popish Recusant who departs not out of London and ten miles compass See Recusants On a Recusant convict for exercising certain Offices and Functions See Recusants On a married woman who is a Popish Recusant convict and conforms not in her husbands life time See Recusants For maintaining the Bishop or See of Romes Authority See Rome For Educating Children in the Popish Religion See Rome On the Popish Recusant who conforms and receives not the Sacrament of the Lords Supper yearly See Sacrament For keeping or being a Schoolmaster contrary to 23 Eliz. 1. or 1 Jac. 4. See Schoolmaster For suffering Women or Children to go beyond Seas without Licence and on such as go or send them See Seas For a Jesuite Seminary Priest c. to be within this Realm See Seminary For not discovering them See Seminary For not giving Information of such discovery See Seminary For relieving or maintaining such or any Popish Colledge Seminary c. or such who abide there or in any Popish Family beyond the Seas See Seminary For going or sending any thither See Seminary For returning from a Seminary without making submission See Seminary For serving or going to serve a forraign Prince c. without first entring into Bond. See Service For not certifying such Bond. See Service Pensions Saving of Pensions and Salaries 265. 267. Petition Petition to the King 148. Plea See Baron Feme Excommengement Informations Issue Plea to an Indictment for refusing the Oath of Supremacy 39. Plea to an Information for being married contrary to 3 Jac. 5. 221. In a Suit for Tythes it s a good plea to say he stands convicted on 1 El. 2.23 Where ipsi non sunt culpabiles is a good plea by Baron Feme 75 76. Plea in disability of the person of the Recusant in what cases allowable and in what not 215. 217 218. The conclusion of it 216. Such plea is peremptory 216. Where in a popular Suit the Kings Attorney is to reply and where the Plaintiff or Informer 79 80. Plea after Judgment in what case allowable 148. Poor see Parish Pope see Rome Port. Officers of the Ports what they are impowred to do 155. 183. Where punishable 155. 183 184. Power See Iurisdiction King Praemunire See Indictments Vniversity Praemunire 6. 12. 34. 36. 40. 51 52. 56. 93. 175 176. 196 197 198. 248. In a Praemunire no trial of a Peer by his Peers 198. Nor Councel allowed 198. The Judgment and forfeiture in a Praemunire 46. 152. Not lawful to slay a man attainted in a Praemunire 46. How a man attainted in a Praemunire is out of the Kings Protection 46 47. Prayers See Church Common Prayer Prayers in the Pulpit before Sermon 21. Prerogative See Advowson
King Presentation See Advowson Nomination Recusants Vniversity Vtlawry Presentment Presentment what 37. What Presentments of Offences against 5 Eliz. 1. are to be certified into the Kings Bench 35 36. The penalty for not certifying them 35. Where Popish Recusants are to be presented 160 161. see Recusants Priest Every Priest is Clerieus 21. 45. And is bound celebrare coenam Dominicam c. 21. Popish Priest see Seminary Printers 34 Prison See Imprisonment To what Prison the Justices of the Kings Bench use to commit him who refuses the Oath of Allegiance 251. Privy Councel see Councel Probate Upon Probate of a Will Administration is committed not granted 235. What is granted by the Ordinary upon Probate of a Will 235. Process see Informations Proclamation See Appearance Conviction Seminary Proclamation for Recusancy where it may be waved 67. 162. In what case the Recusant cannot be proclaimed 122. Proclamation of the Recusant where erroneous 163. To whom the Recusant is to render himself upon Proclamation 107. 162 163 164. Prohibition In what cases 6. 28. Proof See Witness What proof allowable 47. Protection See Praemunire Protection natural and Protection legal 47. Protection by the Law of nature whether indelebilis immutabilis 47. Punishment A man shall not be twice punished for the same offence 31. 189. 253 254 255. Quare Impedit See Nomination Vniversity Recital Where a Statute need not be specially recited 24. Imperfect recital of a branch of 35 Eliz. 2. 206 207. Imperfect recital of an Act of Parliament shall not impeach the Act recited 208. Recognisance See King Recusants Recognisance in anothers name forfeited 105. Reconciliation see Rome Record See Certiorari Failer of Records Courts of Record what Courts are meant 82 83. 85. Recusants See Church Iustices of Peace King Parish Abjuration by a Popish Recusant see Abjuration Seizure of the Advowson of a Popish Recusant see Advowson An Alien Recusant see Alien A Recusants appearance upon Proclamation see Appearance Arms of a Popish Recusant see Armour Baptism of the Child of a Popish Recusant see Baptism Married women Recusants see Baron Feme Bishop Councel Licences to a Popish Recusant see Bishop Councel Licences Burial of a Popish Recusant see Burial Conformity of a Recusant or of the Husband of a Popish Recusant see Conformity Conviction of Recusants see Conviction Forfeiture of Copyholds for Recusancy see Copyholds Covin by a Recusant see Covin Recusants Excommunicate see Excommengement Indictment for Recusancy see Indictments Information for Recusancy see Informations Plea in disability of the Recusant see Plea Proclamation of a Recusant see Proclamation Seizure of a Recusants Lands or Goods see Seizure Trées Rendring a Recusants body to the Sheriff see Sheriff Trust of or for a Recusant see Trust Presentatlon where the Patron is a Popish Recusant convict given to the University see Vniversity Wast in a Recusants Lands see Wast What is Recusancy 129. To what time it shall have relation 228. It consists in omitting not committing and no place need be alledged 60. 73. And yet in some sense it may be said to be committed 74. Recusancy is not within 31 Eliz. 5. of laying the offence in the proper County 60. The penalties for Recusancy see Church The Recusant may forfeit for 13 months in the year 61. Where and when the penalty of 20 l. per month for Recusancy shall be paid into the Exchequer 102. 104. 165 166. Where it shall run on for the time to come after Conviction and where not 103 104. 166 167 168. 219. 252. 254. Where a Recognisance and all debts and personal chattels and actions are Goods and forfeited by the Recusant 105. But not before seizure 105. A Rent or Advowson may be seized for Recusancy 106. 171 172. The third part of a Recusants Lands shall be left to him 102. 268. His chief Mansion house shall be left to him as part of his two parts 173. By 29 Eliz. 6 the profits of the two parts of his Lands should not have gone towards satisfaction of the 20 l. per month 105. 110. 151. The Law altered in that point 105. 110. 150 151. Assurances of a Recusants Lands made bona fide are not to be impeached 211 112. A Recusant outlawed is not within that Branch of 23 Eliz. 1. touching fraudulent conveyances 87. In what cases the death of the Recusant shall discharge the arrears of the 20 l. per month and in what not 109 110 111. 148 149 150 151 152 153. see Commission The forbearance from Church must be for a whole month or the 20 l. are not forfeited 63. Divine Service in a mans house in what case it shall excuse him from the penalty for Recusancy 86. Where the Recusant forfeits nothing before Judgment 104. At what Sessions a Recusant may be indicted 67. Recusants are to be bound in the Kings Bench to the good Behaviour 60. 63. But Popish Recusants Convict are not to be taken for sureties 64. What Offices and Functions a Recusant convict is disabled to exercise 211. The penalty if he exercise such Office or Function 211. Where he cannot be Executor Administrator or Guardian 234 235. What Conviction disables or incapacitates him 216. The penalty for keeping or maintaining Recusants 191 192 193. see Service Where it must be averred that the party is Papalis Recusans 129. Presentments of Popish Recusants where and by whom and what the Officers are to present and what not 160 161. The penalty for omitting it 161. The penalty on the Clerk of the Peace or Town-Clerk not entring and recording such Presentments 161. The Officers reward for making such Presentments 161 162. Popish Recusants may be punished on 35 Eliz. 1. of Conventicles save as to Abjuration 114 115. What Popish Recusants are to be confined within five miles and what not 128. 130 131 132 133. 136. What a Popish Recusant confined must do 134. Where and what he shall forfeit and where not 128. 131. 134. Where he may travel above five miles and where not 141 142. 206 207 208 209 210 211. What Proviso of 35 Eliz. 2. giving him leave to travel is repealed by 3 Jac. 4. and what not 205. To what intents a Popish Recusant convict shall be as a person Excommunicate and to what not 193. 215 216. 223. Whether a Popish Recusant convict may qua such be attached upon a writ of Excommunicate capiendo 216. Where he is disabled to sue and where not 215 216 217 218 219 220. Or to be a Witness 216. Or to exercise any Office 211 212. A Popish Recusant convict is disabled to present or nominate to a Benefice or Donative or to grant any Avoidance 226 227 228 229. And yet where his grant of such Avoidance shall be good 228. Notwithstanding such disability the Recusant is still Patron 230. And may grant the Advowson in see or tail or for life or years and good 230 231. Such disability respects his voluntary acts only 232. The Kings Wards are not to
but the other Justices may Stat. Sect. 8. Provided alway That every person guilty of any offence against this Statute other then Treason and misprision of Treason which shall before he be thereof Indicted or at his Arraignment or Trial before Iudgment A remedy for a guilty person conforming himself submit and conform himself before the Bishop of the Diocess where he shall be resident or before the Iustices where he shall be Indicted Arraigned or Tryed having not before made like submission at any his Tryal being Indicted for his first like offence shall upon his Recognition of such submission in open Assizes or Sessions of the County where such person shall be resident be discharged of all and every the said Offences against this Act except Treason and misprision of Treason and of all pains and forfeitures for the same Before Iudgment submit and conform himself Conformity after judgment saves the penalty Stat. 1 Jac. 4. But now by the Statute of 1 Jac. cap. 4. if the Recusant conforms after Judgment it seems it shall be time enough to save the forfeiture Vide that Statute Sect. 2. A man is convicted of Recusancy according to the Statute of 29 Eliz. cap. 6. upon Proclamation and default of appearance 29 Eliz. 6. and afterwards submits and conforms he shall by force of this Clause be discharged of the forfeiture of Twenty pounds per month for this is a submission and conformity before Judgment Conviction upon Proclamation no 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 38 Eliz. vide Dr. Fosters Case Rolls 1. 94 C. 41. Certain persons Indicted upon this Statute for not coming to Church were Outlawed upon the Indictment Submission after Outlawry the Court of Kings-Bench would not in this Case receive their submission but advised them to purchase their pardon for the Outlawry which they did and then their submission was accepted of and they were discharged Leonard 4. 54. n. 138. Note in the Report of this Case the Statute of 13 Eliz. is mistaken for this of 23 Eliz. for no Indictment for not coming to Church lies on 13. Stat. 13 Eliz. 2 Before the Bishop of the Diocess Conformity where and how to be pleaded If a man be Indicted for Recusancy before Justices of Pcace and he submits and conforms before the Bishop of the Diocess he may remove the Indictment by Certiorari into the Kings-Bench and there plead his conformity by Certificate under the Bishops Hand and Seal Vide Styles 26. For the manner of a Recusants submission and conformity before the Bishop after conviction Submission and Certificate and the Bishops certificate thereupon Vide Co. lib. intr 569. Stat. Sect. 9. Who shall have the money forfeited by this Statute And be it likewise Enacted That all forfeitures of any sums of money limited by this Act shall be divided in thrée equal parts whereof one third part shall be to the Queéns Majesty to her own use one other third part to the Queens Majesty for the relief of the Poor in the Parish where the offence shall be committed to be delivered by Warrant of the principal Officers in the Receipt of the Exchequer without further Warrant from her Majesty and the other third part to such person as will sue for the same in any Court of Record by Action of Debt Bill Plaint or Information In which Suit no Essoin Protection or Wager of Law shall be allowed And that every person which shall forfeit any sums of money by vertue of this Act He shall be imprisoned that is not able or doth not pay the forfeiture and shall not be able or shall fail to pay the same within thrée months after Iudgment thereof given shall be committed to Prison there to remain until he have paid the said sums or conform himself to go to Church and there do as is aforesaid Distribution of the penalties All forfeitures of any sums of money limited by this Act. So that the distribution here appointed extends not only to the forfeitures of Two hundred and One hundred Marks for saying or hearing Mass and the Ten pounds a month for keeping a Schoolmaster contrary to this Act but likewise to the Twenty pounds per month for not repairing to Church In which last Case the Informer Qui tam c. shall have the third part as well as in the other Cases For although by the foregoing clause the whole Twenty pounds 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 this Act shall be disposed of And 't 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 the Statutes of 3 H. 6. Stat. 3 H. 6. 3. 3 H. 7. 7. cap. 3. and 3 H. 7. cap. 7. and others And the subsequent distribution shall always stand good notwithstanding the precedent words of limitation of the whole to the King 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 then they would have had if they had been omitted and it had been only said shall forfeit without appointing to whom 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 distributed that qualifies the former general words and such distribution shall be made as the Statute appoints Co. 11. 60. Rolles 1. 89. 90. C. 41. Dr. Fosters Case Anderson 1. 139. 140. C. 190. Cuff against Vachell Vide supra Sect. 5. For relief of the Poor in the Parish Scot was Indicted upon this Statute for Recusancy Anno 26 Eliz. 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 applied 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 Kings-Bench were clear of Opinion The Parish need not be mentioned that the Indictment was good enough notwithstanding 't is not said of what Parish the Recusant was For the whole penalty of