No. XVII.

5 and 6 Edw. VI. c. 4.

The penalty for drawing or smiting with a weapon in the church, &c.

IH. And also it is enacted by the authority aforesaid, That if any person after the said first day of May shall maliciously strike any person with any weapon in any church or churchyard, or after the same first day of May shall draw any weapon in any church or churchyard, to the intent to strike another with the same weapon, That then every person so offending, and thereof being convicted by verdict of xij. men, or by his own confession, or by two lawful witnesses, before the justices of assise, justices of oyer and determiner, or justices of peace in their sessions, by force of this Act, shall be adjudged by the same justices before whom such person shall be convicted, to have one of his ears cut off. And if the person or persons so offending have none ears, whereby they should receive such punishment as is before declared, that then he or they to be marked and burned in the cheek with an hot iron, having the letter F. therein, whereby he or they may be known and taken for fray-makers and fighters; and besides that, every such person to be and stand ipso facto excommunicated, as is aforesaid.

[ No. XVIII. ] 5 Elizabeth, c. 23.-An Act for the due Execution of the Writ de Excommunicato Capiendo.

5 Elizabeth, FORASMUCH as divers persons offending in many great crimes and

c. 23.

The order of awarding and

returning the writ of excom

endo: what is

6

offences appertaining merely to the jurisdiction and determination of the ecclesiastical courts and judges of this realm are many times unpunished for lack and want of the good and due execution of the 'writ de excommunicato capiendo, directed to the sheriff of any county, 'for the taking and apprehending of such offenders: The great abuse municato capi- whereof, as it should seem, hath grown for that the said writ is not ' returnable into any court that might have the judgment of the wellexecuting and serving of the said writ according to the contents 'thereof; but hitherto have been left only to the discretion of the sheriffs and their deputies, by whose negligences and defaults for the 'most part the said writ is not executed upon the offenders as it ought to be: By reason whereof such offenders be greatly encouraged to 'continue their sinful and criminous life, much to the displeasure of Almighty God, and to the great contempt of the ecclesiastical laws of this realm :'

to be done upon the party's ap pearance, and what if he cannot be found,

and the cause of awarding this writ.

Awarding and returning of excommunicato capiendo.

The sheriff

shall be amerced for not returning of the writ.

II. Wherefore for the redress thereof, Be it enacted by the Queen's most excellent Majesty, with the assent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of Mag next coming, every writ of excommunicato capiendo that shall be granted and awarded out of the High Court of Chancery, against any person or persons within the realm of England, shall be made in the time of the term, and returnable before the Queen's Highness, her heirs and successors, in the court commonly called the King's Bench, in the term next after the teste of the same writ; and that the same writ shall be made to contain at the least twenty days between the teste and the return thereof: And after the same writ shall be so made and sealed, that then the said writ shall be forthwith brought into the said Court of King's Bench, and there, in the presence of the justices, shall be opened and delivered of record to the sheriff or other officer to whom the serving and execution thereof shall appertain, or to his or their deputy or deputies: And if afterwards it shall or may appear to the justices of the same court for the time being, that the same writ so delivered of record be not duly returned before them at the day of the return thereof, or that any other default or negligence hath been used or had in the not well serving and executing of the said writ; that then the justices of the said court shall and may, by authority of this Act, assess such amerciament upon the said sheriff or other officer in whom such default shall appear, as to the discretion of the said justices shall be thought meet and convenient; which amerciament so assessed shall be estreated into the Court of Exchequer, as other amerciaments have been used.

III. And be it further enacted by the authority aforesaid, That the No. XVII. sheriff or other officer to whom such writ of excommunicato capiendo, 5 Elizabeth, or other process by virtue of this Act shall be directed, shall not in any c. 23. wise be compelled to bring the body of such person or persons as shall be named in the said writ or process, into the said Court of the King's Bench, at the day of the return thereof; but shall only return the same What shall be writ and process thither, with declaration briefly how and in what done with the manner he hath served and executed the same, to the intent that there- body of the exupon the said justices may then further therein proceed, according to the tenor and effect of this present Act.

communicate.

IV. And if the said sheriff or other officer to whom the execution of If the sheriff the said writ shall so appertain, do or shall return that the party or return non est parties named in the said writ cannot be found within his bailiwick; inventus. that then the said justices of the King's Bench for the time being, upon

every such return, shall award one writ of capias against the said First capias. person or persons named in the said writ of excommunicato capiendo, returnable in the same court in the term time, two months at least next after the teste thereof, with a proclamation to be contained within the said writ of capias, that the sheriff or other officer to whom the said writ shall be directed, in the full county court, or else at the general assizes and gaol delivery to be holden within the said county, or at a quarter sessions to be holden before the justices of the peace within the said county, shall make open proclamation ten days at the least before the return, that the party or parties named in the said writ shall, within six days next after such proclamation, yield his or their body or bodies to the gaol or prison of the said sheriff or other such officer, there to remain as a prisoner, according to the tenor and effect of the first writ of excommunicato capiendo, upon pain of forfeiture of ten pounds: And thereupon after such proclamation had, and the said six days passed and expired, then the said sheriff or other officer to whom such writ of capias shall be directed, shall make return of the same writ of capias into the said Court of the King's Bench, of all that he hath done in the execution thereof, and whether the party named in the said writ have yielded his body to prison or not.

V. And if upon the return of the said sheriff it shall appear, that the Ten pounds party or parties named in the same writ of capias, or any of them, have forfeiture for not yielded their bodies to the gaol and prison of the said sheriff not appearing or other officer according to the effect of the same proclamation; that upon the first then every such person that so shall make default, shall for every such capias default forfeit to the Queen's Highness, her heirs and successors, ten pounds; which shall likewise be estreated by the said justices into the said Court of Exchequer, in such manner and form as fines and amnerciaments there taxed and assessed are used to be.

VI. And thereupon the said justices of the King's Bench shall also Second capias. award forth one other writ of capias against the person or persons that so shall be returned to have made default, with such like proclamation as was contained in the first capias, and a pain of twenty pounds, to be mentioned in the said second writ and proclamation: And the sheriff of other officer to whom the said writ of second capías shall be so directed, shall serve and execute the said second writ in such like manner and form as before is expressed for the serving and executing of the said first writ of capias. And if the sheriff or other officer shall return upon the Twenty pound said second captas, that he hath made the proclamation according to the forfeiture upon tenor and effect of the same writ, and that the party hath not yielded the second cahis body to prison according to the tenor of the said proclamation, that pias. then the said party that so shall make default, shall for such his contempt and default forfeit to the Queen's Highness, her heirs and successors, the sum of twenty pounds; which said sum of twenty pounds the said justices of the King's Bench for the time being shall likewise cause to be estreated into the said Court of Exchequer, in manner and form aforesaid.

VII. And then the said justices shall likewise award forth one other Third capias. writ of capias against the said party with such like proclamation and

5 Elizabeth, c. 23.

Twenty pound

forfeiture upon the third ca. pias.

No. XVIII. pain of forfeiture, as was contained in the said second writ of capias. And the sheriff or other officer to whom the said third writ of capias shall be so directed, shall serve and execute the said third writ of capias in such like manner and form as before in this Act is expressed and declared for the serving and executing of the said first and second writs of capias. And if the sheriff or other officer to whom the execution of the said third writ shall appertain, do make return of the said third writ of capias, that the party upon such proclamation hath not yielded his body to prison according to the tenor thereof; that then every such party for every such contempt and default shall likewise forfeit to the Queen's Majesty, her heirs and successors, other xx. li. which sum of xx. li. shall likewise be estreated into the said Court of the Exchequer in manner and form aforesaid: And thereupon the said justices of the King's Bench shall likewise award forth one writ of capias against the said party, with like proclamation and like pain of forfeiture of xx. li. And that also the said justices shall have authority by this Act, infinitely to award such process of capias with such like proclamation and pain of forfeiture of xx. li. as is before limited, against the said party that so shall make default in yielding of his body to the prison of the sheriff, until such time as by return of some of the said writs before the said justices it shall and may appear, that the said party hath yielded himself to the custody of the said sheriff or other officer, according to the tenor of the said proclamation; and that the party upon every default and contempt by him made against the proclamation of any of the said writs so infinitely to be awarded against him, shall incur like pain and forfeiture of xx. li. which shall likewise be estreated in manner and form aforesaid.

Awarding of capias infinite ly, and xx. li. forfeit upon every of them.

The offender yielding his body shall be committed to

prison.

The forfeiture of a sheriff for a false return.

The bishop's authority to re

ceive submisBion, and deli

ver the excommunicate.

VIII. And be it further enacted by the authority aforesaid, That when any person or persons shall yield his or their body or bodies to the hands of the sheriff or other officer, upon any of the said writs of capias, that then the same party or parties that shall so yield themselves, shall remain in the prison and custody of the said sheriff or other officer, without bail, baston or mainprize, in such like manner and form, to all intents and purposes, as he or they should or ought to have done, if he or they had been apprehended and taken upon the said writ of excommunicato capiendo.

IX. And be it further enacted by the authority aforesaid, That if any sheriff or other officer by whom the said writ of capias or any of them shall be returned, as is aforesaid, do make an untrue return upon any of the said writs, that the party named in the said writs hath not yielded his body upon the said proclamations, or any of them, where indeed the party did yield himself according to the effect of the same, That then every such sheriff or other officer, for every such false and untrue return shall forfeit to the party grieved and damnified by the said return, the sum of forty pounds; for the which sum of forty pounds the said party grieved shall have his recovery and due remedy by action of debt, bill, plaint or information, in any of the Queen's courts of record; in which action, bill, plaint or information, no essoin, protection or wager of law shall be admitted or allowed for the party defendant:

X. Saving and reserving to all archbishops and bishops, and all others having authority to certify any person excommunicated, like authority to accept and receive the submission and satisfaction of the said person so excommunicated, in manner and form heretofore used, and him to absolve and release, and the same to signify, as heretofore hath been accustomed, to the Queen's Majesty, her heirs and successors, into the High Court of Chancery; and thereupon to have such writs for the deliverance of the said person, so absolved and released, from the sheriff's custody or prison, as heretofore they or any of them had, or of right ought or gimht have had; any thing in this present statute, specified or contained to the contrary hereof in any wise notwithstanding. liberties where XI. Provided always, That in Wales, the counties palatines of Lancaster, Chester, Durham and Ely, and in the cinque ports, being jurisdictions and places exempt, where the Queen's Majesty's writ doth not

Process out of

the Queen's

writ runneth

not.

c. 23.

run, and process of capias from thence not returnable into the said No. XVIII. Court of the King's Bench, after any significavit being of record in the 5 Elizabeth, said Court of Chancery, the tenor of such significavit by mittimus shall be sent to such of the head officers of the said county of Wales, counties palatines, and places exempt, within whose offices, charge or jurisdiction the offenders shall be resiant; that is to say, to the chancellor or chamberlain for the said county palatine of Lancaster, and Chester, and for the cinque ports to the lord warden of the same, and for Wales and Ely, and the county-palatine of Durham, to the chief justice or justices there: And thereupon every of the said justices and officers to whom such tenor of significavit with mittimus shall be directed and delivered, shall by virtue of this estatute have power and authority to make like process to the inferior officer and officers to whom the execution of process there doth appertain, returnable before the justices there at their next sessions or courts, two months at the least after the teste of every such process: So always as in every degree they shall proceed in their sessions and courts against the offenders, as the justices of the said Court of King's Bench are limited by the tenor of this Act in term-times to do and execute.

XII. Provided also, and be it enacted, That any person at the time of Certainpersons any process of capias afore-mentioned awarded, being in prison, or out discharged of of this realm in the parts beyond the sea, or within age, or of non sane the penalty aforesaid. memoria, or woman covert, shall not incur any of the pains and forfeitures afore-mentioned, which shall grow by any return or default happening during such time of nonage, imprisonment, being beyond the sea, or non sana memoriæ: And that by virtue of this estatue, the party grieved may plead every such cause or matter in bar of and upon the distress, or other process that shall be made for levying of any of the said pains or forfeitures.

XIII. And that if the offender against whom any such writ of excommunicato capiendo shall be awarded, shall not in the same writ of excommunicato capiendo have a sufficient and lawful addition, according to the form of the statute of primo of Henry the Fifth, in cases of certain suits whereupon process of exigent are to be awarded: Or if in the significavit it be not contained, that the excommunication doth proceed upon some cause or contempt of some original matter of heresy, or refusing to have his or their child baptized, or to receive the holy communion as it is now commonly used to be received in the church of England, or to come to divine service now commonly used in the said church of England, or error in matters of religion or doctrine now received and allowed in the said church of England, incontinency, usury,

Addition ac

cording to the st. 1 H. 5. c. 5.

simony, perjury in the ecclesiastical court, or idolatry; That then all Causes of exand every pains and forfeitures limited against such persons excommu- communicanicate by this estatute, by reason of such writ of excommunicato capiendo tion. wanting sufficient addition, or of such significavit wanting all the causes aforementioned, shall be utterly void in law; and by way of plea to be

allowed to the party grieved.

XIV. And if the addition shall be with a nuper of the place, Then in Addition with every such case, at the awarding of the first capias with proclamation a nuper. according to the form afore-mentioned, one writ of proclamation, (without any pain expressed) shall be awarded into the county where the offender shall be most commonly resiant at the time of the awarding of the said first capias with pain in the same writ of proclamation, to be returnable the day of the return of the said first capias with pain and proclamation thereupon at some one such time and court, as is prescribed for the proclamation upon the said first capias with pain: And if such proclamation be not made in the county where the offender shall be most commonly resiant in such cases of additions of nuper, That then such offender shall sustain no pain or forfeiture by virtue of this estatute, for not yielding his or her body, according to the tenor afore mentioned; any thing before specified to the contrary hereof in any wise notwithstanding.

No. XIX. 8 Elizabeth,

c. 5.

A sentence de- ' finitive in a

civil and marine cause by delegates appointed by commission

shall be final.

27 George III. c. 44. Preamble.

[ No. XIX.] 8 Elizabeth, c. 5.-For the avoiding of tedious Suits in Civil and Marine Causes.

FOR the avoiding as well of long and tedious suits, as also of great charges and expenses in prosecuting of civil and marine causes by reason of divers appeals permitted to be made by order of the laws civil in such causes, and to the intent that as well strangers, as also others the subjects of this realm, that shall have cause of suit in those matters, may have such expedition in the same as their natures and qualities do require,' Be it enacted by the Queen's Majesty our Sovereign Lady, the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the authority of the same, That from the last day of this present Session of Parliament, all and every such judgment and sentence definitive, as shall be given or pronounced in any civil and marine cause, upon appeal lawfully to be made therein to the Queen's Majesty in her Highness Court of Chancery, by such commissioners or delegates as shall be nominated and appointed by her Majesty, her heirs or successors, by commission under the half seal, as it hath been heretofore used in such cases, shall be final, and no further appeal to be had or made from the said judgment or sentence definitive, or from the said commissioners or delegates, for or in the same; any law, usage or custom to the contrary notwithtanding. (1)

[No. XX. J 27 George III. c. 44.-An Act to prevent frivolous and vexatious Suits in Ecclesiastical Courts. WHEREAS it is expedient to limit the time for the commencement of certain suits in the ecclesiastical courts:' May it therefore please your Majesty that it may be enacted, and be it enacted by Suits in eccle- the King's most excellent Majesty, by and with the advice and consent siastical courts of the Lords Spiritual and Temporal, and Commons, in this present for defamatory Parliament assembled, and by the authority of the same, That from and after the first day of August, One thousand seven hundred and eightyseven, no suit for defamatory words shall be commenced in any of the ecclesiastical courts within England, Wales, or the town of Berwickupon-Tweed, unless the same shall be commenced within six calendar months from the time when such defamatory words shall have been uttered.

words to be commenced within six months.

Limitation of

suits in ecclesiastical courts.

H. And be it further enacted by the authority aforesaid, That no suit shall be commenced in any ecclesiastical court for fornication, or incontinence, or for striking or brawling in any church or churchyard, after the expiration of eight calendar months from the time when such offence shall have been committed; nor shall any prosecution be com menced or carried on for fornication at any time after the parties offending shall have lawfully intermarried.

[No. XXI.] 53 George III. c. 127.-An Act for the better Regulation of Ecclesiastical Courts in England; and for the more easy Recovery of Church Rates and Tithes. [12th July, 1813.]

(1) Notwithstanding this Act, there may still be a commission of review at the discretion of the crown. The application is referred to the Lord Chancellor, who hears the arguments of counsel and civilians, sitting in his own court. The ground on which the power of granting such a commission is supported is, that it was formerly granted by the Pope; and such authority as the Pope formerly exerted is

now, by statutes 26 Hen. VIII. c. 1. 1 Eliz. c. I. annexed to the crown. See 3 Bl. Com. 67. The only modern cases in which I am aware of such commission being applied for, are Matthews v. Warner, 4 Ves. 181; Eagleton v. Kingston, 8 Ves. 438. In the former it was granted, in the latter refused. In these cases a perspicuons view is taken of the ground upon which the commission should be granted or withheld.