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shall for their offences first receive punishment of the ordinary, having a testimonial thereof under the ordinary's seal, shall not for the same offence eftsoons be convicted before the justices; and likewise receiving for the said offence punishment first by the justices, shall not for the same offence eftsoons receive punishment of the ordinary. $ 24.
All persons] Except dissenters qualified by the act of toleration, who resort to some congregation of religious worship allowed by that act. i W. c. 18. § 2. 16. [And persons who shall take the oaths, and come to some congregation or place of religious worship permitted to Roman catholicks, by 31 G. 3. c. 32. - $ 9.]
Having no lawful or reasonable excuse] It hath been holden, that the indictment need not to shew that the party had no reasonable excuse for his absence; but the defendant if he have any matter of this kind in his favour, ought to shew it. i Haw. 13.
And if the spiritual court proceeding upon this statute, refuse to allow a reasonable excuse, they may be prohibited: but if they proceed wholly on their own canons, they shall not be at all controlled by the common law, unless they act in derogation from it, as by questioning a matter not triable by them, as the bounds of a parish or the like; for they shall be presumed to be the best judges of their own laws. 1 Haw. 13.
To some other usual place] And he who is absent from his own parish church shall be put to prove where he went to church. - 1 Haw. 13.
To abide orderly and soberly during the time] He who misbehaves himself in the church, or misses either morning or evening prayer, or goes away before the whole service is over, (7) is as much within the statute as he who is wholly absent. 1 Haw. 13.
Thereof be indicted] The offence in not coming to church consisting wholly in a non-feasance and not supposing any fact done, but barely the omission of what ought to be done, needs not be alleged in any certain place; for properly speaking, it is not committed any where i Haw. 13.
And by the 3 J. c. 4. The justices of assize and justices of the peace in sessions shall have power to inquire, hear, and determine [ 138 ] of all recusants and offences for not repairing to church according to the meaning of former laws, as the justices of assize may do by such former laws; and also shall have power at their assizes, and at the sessions (in which any indictment against any person for not repairing to church according to such former laws shall be taken) to make proclamation, by which it shall be commanded that the body of such offender be rendered to the sheriff or other keeper of the gaol, before the next assizes or before the next
(7) See Gibs. 964. cited infra, Public worship, I. 3.
sessions respectively; and if at the said next assizes or sessions the offender so proclaimed shall not make appearance of record, then upon every such default recorded, the same shall be as sufficient conviction in law, as if upon the indictment a verdict had been found and recorded. $ 7.
And by the same statute of 3 J. c. 4. If any person shall not resort every Sunday to some church, chapel, or usual place of common prayer, and there hear divine service, according to the 1 El. c. 2. one justice of the peace of that division where the party shall dwell, on proof to him made of such default by confession, or oath of witness, may call the said party before him; and if he shall not make a sufficient excuse and due proof thereof to the satisfaction of the said justice, he may give warrant to the churchwarden of the said parish wherein the said party shall dwell, to levy 12d, for every such default by distress and sale; and in default of such distress, the said justice may commit him to some prison within the shire, division, or liberty wherein such offender shall be inhabiting, till payment be made; which said forfeiture shall be to and for the use of the poor of that parish wherein the offender shall be abiding at the time of the offence committed. $ 27.
But no man shall be impeached upon this clause, except he be called in question for his default within one month after the said default made. § 28.
And no man being punished according to this branch, shall for the same offence be punished by the 1 El. c. 2. Id. $ 29.
2. By the 23 El. c. 1. Every person above the age of sixteen years, who shall not repair to some church, chapel, or usual place of common prayer, but forbear the same contrary to the 1 El. C. 2. shall forfeit to the queen's majesty for every month which he shall so forbear 201. ; and over and besides the said forfeitures,
every person so forbearing by the space of twelve months shall, [ 139 ] after certificate thereof in writing made into the king's bench by
the bishop of the diocese or a justice of assize, or a justice of the peace of the county where the offender shall dwell, be bound with two sufficient sureties in 2001. at least, to the good behaviour, and so to continue bound until he conform himself and come to church. $ 5. Which said forfeitures shall be one third to the king to his own use ; one third to the king for relief of the poor in the parish where the offence shall be committed, to be delivered by warrant to the principal officers in the receipt of the exchequer without further warrant from the king; and one third to him who shall sue. And if such person shall not be able, or shall fail to pay the same within three months after judgment given; he shall be committed to prison till he have paid the same, or conform himself to go to church. $ 11.
[And by 29 El. c. 6. § 7. the lord treasurer, chancellor, and
chief baron, or two of them may dispose of the third part thereof, for the maintenance as well of the poor and of the houses of correction as of impotent and maimed soldiers.]
But if the offender shall before he be indicted, or at his arraignment or trial before judgment, submit and conform himself before the bishop of the diocese, or before the justices where he shall be indicted, arraigned, or tried (having not before made like submission at his trial being indicted for the first offence); he shall be discharged upon his recognition of such submission in open assizes or sessions of the county where he shall be resident. § 10.
Also every person which usually on the Sunday shall have in his house divine service by law established, and be thereat himself most commonly present and shall not obstinately refuse to come to church, and shall also four times a year at least be present at the divine service in the church of the parish where he shall be resident, or in some other common church or chapel of ease, shall not incur any pain or penalty for not repairing to church. $ 12.
And every grant, conveyance, bond, judgment, and execution, made of covinous purpose to defraud any interest, right, or title that may or ought to grow to the king or to any other person by any conviction or judgment on this statute, shall be void against the king and against such as shall sue for such penalty as aforesaid. Š 13.
But forbear the same contrary to the 1 El. c. 2.] A person who was sick for part of the time contained in an information upon this statute, shall not be at all excused by reason of such sickness, if it be proved that he was a recusant both before and after; for it shall be intended that he obstinately forbore during that time. 1 Haw. 14.
Shall forfeit to the queen's majesty for every month] It hath been resolved, that this statute by inflicting 201. for a month's absence, dispenseth not with the forfeiture of 12d. for the absence of one Sunday; for both may well stand together; and the 12d. is immediately forfeited upon the absence of each particular day. i Haw. 13.:
For every month] The time of a month intended by this statute, shall be computed not by the kalendar, but by the number of days, allowing twenty-eight days to each, according to the common rule of expounding statutes, which speak generally of a month. i Haw. 14.
One third to, &c.] This clause for distribution of the forfeitures is nevertheless consistent with the former part, in giving the whole forfeiture to the queen; it being 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 to give part to him that will sue. i Haw. 18.
And by the 29 El. c.6. it is further enacted, that every feoffment, gift, grant, conveyance, alienation, estate, lease, incumbrance, and limitation of use, of or out of any lands, made by any person which hath not repaired, or shall not repair to some church, chapel, or usual place of common prayer, contrary to the 23 El. c. 1. and which is revocable at the pleasure of such offender, or in any wise directly or indirectly intended for the behoof, relief, or maintenance, or at the disposition of such offender, or whereby such offender or his family shall be maintained, — shall be utterly void as against the king for levying the penalties. $ 1.
But this shall not extend to make void or impeach any grant or lease made bona fide, without fraud or covin, whereupon the accustomed yearly rent or more shall be reserved, or any other conveyance made bona fide upon good consideration, and without fraud or covin, which shall not be recoverable at the pleasure of the offender, otherwise than to give benefit to the king to enjoy such rents and payments during the continuance of such lease and grant. 98.
And every conviction for such offence shall be in the king's bench or at the assizes, and not elsewhere; and shall from the justices before whom the record of such conviction shall remain, be estreated into the exchequer before the end of the term next ensuing such conviction. 5 2.
And every such offender in not repairing to church as shall be
thereof once convicted, shall in such of the terms of Easter or ( 1411 Michaelmas as shall be next after such conviction, pay into the
exchequer after the rate of 20l. for every month which shall be contained in the indictment whereupon the conviction shall be; and shall also, for every month after such conviction, without any other indictment or conviction, pay into the exchequer at two times a-year, viz. in every Easter and Michaelmas term as much as shall then remain unpaid, after the rate of 201. for every month after such conviction. And if default shall be made in any part of any payment aforesaid, the queen may, by process out of the exchequer, seize all the goods and two parts of the lands liable to such seizure or to the penalties aforesaid, leaving the third part only of such lands for the maintenance of the offender and his family. 94.
And for the more speedy conviction of such offender in not repairing to divine service, the indictment mentioning the not coming of such offender to the church of the parish where he at any time before such indictment was or did keep house or residence, nor to any other church, chapel, or usual place of common prayer, shall be sufficient in the law; and it shall not be needful to mention in the indictment that the offender was or is inhabiting within this realm ; but if it shall happen any such offender then not to be within this realm, the party shall be relieved by plea to be put in and not otherwise : And upon the indictment of such offender, a proclamation shall be made at the assizes in which the indictment shall be taken (if the same be taken at any assize) by which it shall be commanded, that the body of such offender shall be rendered to the sheriff before the next assizes; and if at the said next assizes the offender so proclaimed shall not appear of record, then upon such default recorded, the same shall be as sufficient a conviction in law of the said offence as if a trial had been by verdict. $ 5.
Provided, that when such offender shall make submission and conform, or shall die; no forfeiture of 201. for any month or · seizure of the lands of the offender, from such submission and .conformity or death, and satisfaction of all the arrearages of 201. monthly, before such seizure due or payable, shall ensue or be continued against such offender. $ 6.
And the lord treasurer, chancellor, and chief baron of the exchequer, or two of them, may assign such third part given to the poor by the former act, as well for relief of the poor, and of the houses of correction as of impotent and maimed soldiers; as they [ 1427 or any two of them shall appoint. 07.
And this act shall not extend to continue any seizure of any lands of such offender in the queen's hands, after the offender's death, which lands he shall have only for term of his life, or in the right of his wife. $9.
May seize all the goods] The king, according to the better opinion, may seize the goods, but not grant them over, without an inquisition to be taken i Haw. 20.
And two parts of the lands] But the king cannot seize the lands till it appears by the return of an inquisition to that purpose to be awarded, of what lands the offender was seised; because the king's title to lands ought always to appear of record. i Haw. 20. (see 3 Jac. 1. c. 4. $ 11, 12. infra, 143.].
Shall not appear of record] If a recusant who was proclaimed at the assizes, render himself at the next assizes to plead or traverse; he must appear in person, and he is to be in custody; for the words of the statute and of the proclamation are, that he shall render his body to the sheriff. Kelyng. 35.
Of record] An actual personal appearance of the defendant will no way avail him, unless the same be entered of record.
i Haw. 16. . And by the 1J.c.4. Where any seizure shall be had of the two parts of the lands for the not payment of 201. a month ; such two parts shall, according to the extent thereof, go towards the payment of such 201. a month being unpaid by any such recusant: and the third part thereof shall not be extended or seized by the
May semay seize thaken. 1.
But the kquisition to