One justice, upon the confession of the party, or the absent. is which is granted to a recusant in trust for another; and it is certain that the statute has made no express provision for the cestui que trust. As to THE SECOND GENERAL HEAD of this chapter, viz.-In what manner offenders of this nature are to be proceeded against for the forfeitures above-mentioned, I shall consider, FIRST, How they are to be proceeded against for the said forfeiture of twelve-pence for the absence of every Sunday, &c. SECONDLY, In what manner for the said forfeiture of twenty pounds for the absence of every month contained in a conviction. THIRDLY, In what manner for the said forfeiture of twenty pounds for the absence of every month after a conviction; and, FOURTHLY, In what manner they are to be proceeded against for the said forfeitures of lands and goods. I. As to the recovery of the said forfeiture of twelve-pence for the absence of every Sunday. Sect. 19. It was enacted by 1 Eliz. c. 2. "That the same "should be levied by the church-wardens of the parish where "such offence should be done, to the use of the poor of the same parish, of the goods, lands, and tenements of such "offenders, by way of distress." 66 Sect. 20. But this being defective in not shewing by whom, or in what manner, such offenders should be convicted, or by whom the warrant for levying the said forfeiture should be granted, it oath of one wit was further enacted by 3 Jac. 1. c. 4. s. 27. "That it shall be ness, may levy "lawful for one justice of the peace of the limit, division, or the penalty of twelve-pence "liberty, wherein the said party shall dwell, upon the confession for every Sun- "of the party, or the oath of one witness, to call the said party day the party before him, and if he shall not make a sufficient excuse, and "due proof thereof, to the satisfaction of the said justice of peace, that it shall be lawful for the said justice of peace to "make a warrant to the church-warden of the said parish, where "the said party shall dwell, to levy twelve-pence for every such "default, by distress and sale of the offender's goods, rendering "the overplus to the said offender; and that in default of such "distress, it shall be lawful for the said justice of peace to com" mit every such offender to prison until the said forfeiture shall "be paid, which shall be employed to the use of the poor of the parish wherein the offender shall be resident or abiding at the "time of the offence." The indictment of a recusant II. In what manner the said offenders are to be proceeded against for the said forfeiture of twenty pounds for the absence of every month contained in a conviction. I shall consider, FIRST, In what manner it may be recovered at the king's suit by way of indictment; SECONDLY, In what manner by way of action or information; and, THIRDLY, In what manner at the suit of the informer. AND FIRST, as to the recovery hereof at the suit of the king by of indictment. way Sect. 21. By the 23 Eliz. c. 1. s. 9. "The justices of oyer, assize, 66 a "assize, gaol-delivery, and quarter-sessions of the peace, might may be at sesinquire of and determine these offences within one year and sions, or in the superior courts. day." But by 29 Eliz. c. 6. s. 2. it was ordained, “That all 1 Roll. 94. "such convictions should be in the King's Bench, or at the 11 Co. 63. "assizes, or general gaol-delivery, and not elsewhere." However, Cawl. 66, 67. by 3 Jac. 1. c. 4. s. 7. the jurisdiction of the sessions is revived. 82, 83. Sect. 22. By 29 Eliz. c. 6. s. 5. and 3 Jac. 1. c. 4. s. 7. "Upon And if the of an indictment at the assizes, gaol-delivery, or general sessions of fender do not "the peace, proclamation shall be made that the offender render appear on proclamation, his "himself to the sheriff before the next assizes, gaol-delivery, or default shall be "sessions; and that if he shall not then appear of record, upon a conviction. "such default recorded, the same shall be a conviction in law, as if a trial by verdict on the indictment had been recorded." And by s. 9. "Every such conviction shall be certified into the Ex- Salk. 145. chequer, &c." 66 In the construction hereof it hath been resolved: Precedent, Lut. 203. 1101. Sect. 23. First, That such a conviction shall not be looked on 1 Vern. 355. as a judgment; for the words are," it shall be a conviction in law, Ray. 434. "as if a trial, &c. had been recorded;" and consequently that it cannot be reversed by a writ of error, which cannot be brought on any record which is not a judgment; and therefore that the party has no other remedy against an insufficient conviction, but to remove it into the exchequer, and quash it there. Also upon Vide Salk. 145. the same ground it has been holden, that a forfeiture due to the 11 Co. 65. king by force of such a conviction, shall not be taken to be with- Inf. s. 42. in the exception of a general pardon, which excepts" all forfeitures, &c. converted to a debt by judgment." 3 Lev. 333. Lutw. 1117. Sect. 24. Secondly, That if the proclamation do not pursue the Palm. 40, 41. statute, as if it appoint that the body shall be rendered at next Bridg. 123. sessions, &c., whereas by the statute it ought to order a render to the sheriff, and that before the next sessions, the conviction is insufficient. Sect. 25. Thirdly, That an actual personal appearance of the Cawley, 164. defendant at the next sessions, &c. will no way avail him, unless Pop. 29. the same be entered of record. Keilw. 180. Sect. 26. It hath been holden, That a man cannot be convicted by force of this statute upon a default on a proclamation, &c. in the King's Bench; because this court is not mentioned in the Hob. 205. statute. But, perhaps, this opinion may justly be questioned, because the court of King's Bench being the supreme court of assize, and gaol-delivery, &c. in the county where it sits, it seems that a statute, by giving any power to the courts of assize, or goal-delivery, does impliedly give the same to the court of King's 2 Bench, unless it have some restrictive words to the contrary. Sum. 156. C. 2 Lev. 179. Mod. 128. Sect. 27. If the defendant do appear, there is no doubt but that the proceedings ought to be according to the common course of law upon other indictments in all respects, except those which are within the restraint of 3 Jac. 1. c. 4. s. 16, 17. by which it is enacted: "That no such indictment, nor any proclamation, out- A judgment, "lawry, or other proceeding thereupon, shall at any time here- whether upon an indictment "after be avoided, discharged, or reversed, by reason of any deor proclamation, "fault in form, or lack of form, or other defect whatsoever (other shall not be re"than " than by direct traverse to the point of not coming to church, "&c.); but the same indictment shall stand in force and be pro"ceeded upon; any such default of form, or other defect whatsoever notwithstanding, unless the party so indicted shall con"form, &c." However it hath been resolved: Sect. 28. First, That the party is only restrained from taking advantage of defects in the record itself, and that he may plead any collateral matter; as a pardon, or autrefois convict, &c. Sect. 29. Secondly, That he may even reverse a judgment after verdict for any such defect, in the record itself, as tends to the king's prejudice; as the omission of a capiatur, &c.; and that he may reverse an outlawry for any common defect, upon putting in bail, and traversing the indictment as to the point of not coming to church; which is very agreeable to the purport of the whole clause, the latter part whereof seems manifestly to qualify the generality of the former. SECONDLY, As to the recovery of the said forfeiture, by way of action or information, at the king's suit. Sect. 30. By $5 Eliz. c. 1. s. 10. "All and every the said "pains, duties, forfeitures, and payments, shall and may be re"covered and levied to her majesty's use, by action of debt, bill, plaint, information, or otherwise, in any of the courts commonly called the King's Bench, Common Pleas, or Exchequer, in such sort, and in all respects, as by the ordinary course "of the common laws of this realm any other debt due by any "such person in any other case should or may be recovered or "levied, wherein no essoin, protection, or wager of law, shall be "admitted or allowed." Sect. 31. It is said,(a) That the principal end of making this clause, was to enable the queen to proceed against the husband for the recusancy of his wife, which she could not do by virtue of any of the former statutes, by which she had no other way of proceeding but by indictment, and consequently could not charge the husband for the forfeiture of the wife, because she could not make him a party to the suit, as she may by force of this statute. However, it is said, that on a conviction of the wife upon an indictment, the lands and leases which the husband has in her right may be seized by the exchequer process. THIRDLY, As to the manner in which an informer may proceed for the forfeitures aforesaid. And the penalties shall be dis-" tributed in thirds, to the king, the poor, and the in former. 2 Leon. 167. 29 Eliz. 6. s. 7. 66 Sect. 32. By 23 Eliz. c. 1. s. 11. "All forfeitures of any sums of money limited by that act shall be divided into three equal " parts, whereof one third shall be to the queen, to her own use; one other third to the queen for the relief of the poor in the parish where the offence shall be committed, to be delivered by the warrant of the principal officers in the receipt of the exchequer, without further warrant from her majesty; and the other third to such person as will sue for the same, in any court "of record, by action of debt, bill, plaint, or information, in which 66 68 suit "suit no essoin, &c. shall be allowed; and that every person "which shall forfeit any sums of money by virtue of that act, "and shall not be able, or shall fail to pay the same within three "months after judgment thereof given, shall be committed to "prison, there to remain until he have paid the same sums, or "conform himself to go to church, and there do as is aforesaid." Sect. 33. It has been objected (a), that this clause shall not ex- (a) Dr. Foster's tend to the said forfeiture of twenty pounds a month for not com- case, 11 Co. 58. ing to church, because the same is by the former part of this statute given expressly to the queen, whereas the forfeitures for saying or hearing mass, and keeping an unlicensed schoolmaster, are inflicted by the same statute indefinitely, and not expressly given to any one. From which it is argued (b), that this latter (0) See 1 Roll. clause of distribution ought only to be applied to the said inde- Rep. 89. finite clauses, and not to take from the queen any part of that which was expressly given her before. Yet it has been answered case, 11 Co. 60. a. and resolved (c), that it shall equally extend to all; for the limi- (c) Dr. Foster's tation of the forfeiture to the queen is mere surplus, and no more than the law would have implied; et expressio eorum, quæ tacitè insunt, nihil operatur. Sect. 34. Also it has been resolved (d), that an informer may sue not only for the third part which belongs to him, but for the whole penalty in the behalf of himself and the king, and that the judgment shall be, that they shall recover, &c. (d) Cuff's case, 1And. 139, 140. But see Bk. 2. c. 26. s. 76. Sect. 35. Also it hath been adjudged, that neither the abovementioned clause of 29 Eliz. c. 6. which orders, "That all con"victions upon 23 Eliz. shall be certified into the exchequer, and Sup. s. 13. 33. "also that the offender shall pay to the queen twenty pounds for every month contained in the indictment, &c." nor the said clause in the 35 Eliz. c. 1. by which it is enacted, "That all the "said pains, &c. shall be recovered to the queen's use," do take away the suit of the informer against one not proceeded against 66 by the king, or the third part of the penalty given him by 23 Eliz. 11 Co. 61, 62. c. 1. for the plain purport of both these acts is to further the 1 Roll. 92, 93. punishment of recusants; and therefore, in as much as they are in the affirmative, and consistent with 23 Eliz. they shall not be construed to abrogate any part of it. Sect. 36. Moreover it is manifest, that 29 Eliz. c. 6. extends only to the king's suit by indictment, for the word "indictment" is mentioned almost in every clause. Sect. 37. And it also follows from hence, that the second pa- Hob. 205. ragraph of the said statute of 29 Eliz. which enacts, "That con- Con. 11 Co. 61. "victions for this offence shall be only at assizes, gaol-delivery, "or the king's bench," restrains only convictions upon indictments, and consequently does not any way impeach the jurisdiction of the common pleas, or exchequer, as to the informations, &c. Sect. 38. It seems the better opinion upon comparing all the 11 Co. 59. 65. Books together, which differ much from one another both in B.2. c. 26. 5. 63. stating the cases, and giving the reasons of the judgments relating C. Jac. 481. to Noy, 117. 1 Roll. 98. Lane, 60. Palm. 39,40,41. C. Jac. 482. to this matter, that a conviction at the king's suit, whether strictly regular or erroneous, may be pleaded to a suit by an informer, because, while it stands in force, it makes the party liable to the forfeiture of twenty pounds a month, and no one ought to be punished twice for the same offence. But it hath been resolved, that an erroneous, and strongly holden, that a regular conviction by proclamation cannot be pleaded to a new suit by the king, because such a conviction is of no greater effect than a conviction by verdict, and consequently the king may waive it and begin anew. Sect. 39. But it seems very doubtful, whether the conviction Bridg. 120. 122. of a feme covert upon an indictment can be pleaded to an information against her and her husband; because the husband is not liable to pay the forfeiture recovered upon an indictment, 2 Roll. 108. 1 Bac. Abr. 294. After conviction on an indictment, if the offender do not conform, he month, and, in Sect. 40. It seems that the ordinary method of recovering the said forfeiture of twenty pounds for every month contained in a conviction, either at the suit of the king or of au informer, may sufficiently appear from what has been already said; but there is an extraordinary remedy provided by the same statute of 29 Eliz. c. 6. to enforce the party to take care of the payment of the forfeiture of twenty pounds for every month contained in an indictment whereon he shall be convicted, by making his lands and goods liable to be seized by the king for the non-payment thereof into the exchequer, upon such of the terms of Easter or Michaelmas as shall be next after his conviction. But this extends not to a conviction by way of action, or information, as more fully appears from the two next sections. III. In what manner the forfeiture of twenty pounds for the absence of every month after a conviction is to be recovered. Sect. 41. It seems needless to inquire how far it may be recovered by an action or information for it at the king's suit, inasmuch as the said statutes of 29 Eliz. c. 6. and 3 Jac. 1. have made a most effectual provision for the payment of it, by expressly enshall pay £20 a acting, "That every such offender, being once convicted, shall for default, the king" every month after such conviction, without any other indictment "or conviction, pay into the Exchequer twice in the year, viz. "in every Easter and Michaelmas Term, as much as shall then "remain unpaid, after the rate of twenty pounds for every month "after a conviction; and that for a default herein the king may "seize all the goods, and two parts of the hereditaments of such an offender, &c." may seize his goods and two thirds of his lands. Cawley, 102, 103. Vide supra, sect. 8. Vide infra, sect, 56. 66 Sect. 42. But it seemeth that these clauses extend not to any conviction upon an information or action, &c. but only to a conviction upon an indictment; for there is no other suit referred to besides that of indictment. Also it is said, that the said clauses extend to no convictions by verdict or otherwise, unless judgment be given thereon; because till then nothing is forfeited. And from the same ground it seems to follow, that they would not have extended to a conviction by default upon proclamation, if there had been no other words in the statute to this purpose than those by which it is enacted, "That such a default recorded shall "be |