Chattels of the Husband of such Feme-Covert Provided also That no Peer of this Realm shall be Attached or Imprisoned by virtue or force of this Act Any thing Matter or Clause therein to the contrary notwithstanding Provided also That neither this Act nor any thing therein contained shall extend to invalidate or avoid His Majesties Supremacy in Ecclesiastical affairs but that His Majesty and His Heirs and Successors may from time to time and at all times hereafter Exercise and enjoy all Powers and Authorities in Ecclesiastical Affairs as fully and as amply as Himself or any of His Predecessors have or might have done the same Any thing in this Act notwithstanding Some Observations upon the Statute of 22 Car. Secundi Cap. 1. Entituled An Act to prevent and suppress Seditious Conventicles SECT 1. FOR providing farther and more speedy Remedies c. Besides the Statute of 16 Car. 2. cap. 4. which is and at the time of making this Act was expired there were several other Acts yet in force for the preventing and suppressing of Seditious Conventicles as the Statute of 35 Eliz. cap. 1. Entituled An Act to Retain the Queens Majesty's Subjects in their due Obedience which Act being but Temporary at first by the Statute of 39 Eliz. cap. 18. was continued to the end of the next Parliament and by the Statute of 43 Eliz. cap. 9. was continued to the end of the first Session of the next Parliament And by the Statute of 1 Jacobi cap. 25. was continued untill the end of the first Session of the next Parliament The same Parliament of 1 Jacobi continued by several Prorogations in 3 4 and 7 Jacobi so that the next Parliament after the continuance of 1 Jacobi was holden in 18 Jac. where only two Bills of Subsidies past and nothing more was done in that Parliament whereupon in 20 Jac. it came to be a Question whether this Act of 35 were in force or not as appears in Huttons Rep. fol. 61. The Judges being in doubt as it seems by reason of a Proviso in the Bills of Subsidies that the Royal Assent to these Bills should not determine that Session of Parliament which doubtless it did not yet when the Parliament was afterwards Dissolved and nothing more done Co. 4. Inst 27.28 The passing of these two Bills being matter of Record made it such a Session of the next Parliament that discontinued this Act of 35 Eliz. But to prevent the doubt afterwards by the Statute of 21 Jacobi cap. 27. It was Enacted that so much of the said Act of 35 Eliz. as hath not been since Repealed by any other Statute shall be adjudged ever since the Session of Parliament in 7 Jacobi to have been of such force and effect as the same was the last day of that Session And from thenceforth untill the end of the first Session of the next Parliament which next Parliament was in 1 Car. Primi And at the end of that Parliament this Statute of 39 Eliz. was again discontinued but by the Statute of 3 Car. 1. cap. 4. the Statute of 35 Eliz. viz. so much of it as hath not been Repealed by any other Statute is continued to the end of the first Session of the next Parliament in such force and effect as it was on the first day of the Session of Parliament holden in An. 1 Car. 1. And lastly by the Statute of 16 Car. 1. cap. 4. in the close of a Temporary Act Entituled An Act for the farther Relief of His Majesty's Army and the Northern parts of the Kingdom All Statutes and Acts of Parliament whereof the Act of 35 Eliz. is one which have their continuance or were by the Act of 3 Car. 1. cap. 4. made are Enacted to have continuance untill some other Act of Parliament be made touching the continuance or discontinuance of the same by which last Act the Statute of 35 Eliz. is made perpetual there having been no Act since made either for the continuance or discontinuance of the same But yet there remains one Question upon it still viz. why the Acts of 21 Jac. and 3 Car. 1. do not continue this Act of 35 Eliz. totally but only so much of it as was unrepealed by any former Act. To this it is answered That in the Act of 35 Eliz. there are two Clauses being the 8th and 9th Paragraphs on Mr. Keebles Statute Book the first For imposing a Penalty upon such Persons as should harbour or entertain in their Houses any Person which should obstinately refuse to repair to Divine Service by a Month. And the next Clause being a Proviso That the Law should not extend to the harbouring of a Wife and other Relations there named are both Repealed by the Statute of 3 Jac. cap. 4. which was the reason that the Statute of 35 Eliz. was not wholly continued but only so much as was Unrepealed which is the whole Statute save only these two Clauses I have been the longer about this Act of 35 Eliz. to prove it in Force at this day for that notwithstanding the Judgment of the whole Parliament that it is in Force declared in the expired Act of 16 Car. 2. cap. 4. by which every Man ought to be concluded in point of Law it hath often been affirmed to me that the Act of 35 Eliz. was discontinued and not now in Force but such Affirmation rather proceeded from affection to have it so than from any other Ground The Statute of 23 Eliz. cap. 1. against saying and hearing of Mass The Statute of 13 and 14 Car. 2. cap. against Quakers The Statute of 13 and 14 Car. 2 cap. 4. for Uniformity of Publick Prayers The Statute of 17 Car. 2. cap. 2. commonly called the Oxford Act for Restraining of Nonconformists from Inhabiting in Corporations All which Statutes and several others did in part provide Remedies against the Seditious Practices of Sectaries and Disloyal Persons And this Act provideth farther and more speedy Remedies against them 2. That is any Person c. This word Person extends both to Men and Women See the 16th Paragraph of this Act And to Peers as well as Commoners But Peers are not to be Arrested or Imprison'd as Commoners may be See the 17th Paragraph hereunder So a Iustice of Peace or Mayor or other head Officer being dofuntarily present at a Conventirle for any other Cause except for the suppressing of it may and ought to be Condviued as an Ostendes within this Law 3. Of the Age of 16 years or upwards c. This is plain and if Evidence be given against a Person for being present at a Conventicle who is of the growth or stature of a young Man or young Woman it is to be intended that such Person is of the Age of 16 years unless the contrary be specially made appear And in such Case the proof or Onus probandi rests upon the Offender in such Convictions whereupon there lies an Appeal by this Act and so I take it
perfect Conviction of every such Offender for such Offence and thereupon the said Iustice Iustices and chief Magistrate respectively shall impose on every such Offender so convict as aforesaid a Fine of Five shillings for such first offence which Record and Conviction shall be certified by the said Iustice Iustices or chief Magistrate at the next Quarter Sessions of the Peace for the County or place where the Offence was committed And be it farther Enacted by the Authority aforesaid That if such Offender so Convicted as aforesaid shall at any time again commit the like Offence or Offences contrary to this Act and be thereof in manner aforesaid Convicted Then such Offender so convict of such like offence or offences shall for every such offence incur the Penalty of Ten Shillings which Fine and Fines for the first and every other offence shall be levied by Distress and sale of the Offenders Goods and Chattels or in case of the Poverty of such Offender upon the Goods and Chattels of any other person or persons who shall be then convicted in manner aforesaid of the like Offence at the same Conventicle at the discretion of the said Iustice Iustices or chief Magistrate respectively so as the Sum to be levied on any one person in case of the poverty of other Offenders amount not in the whole to above the Sum of Ten pounds upon occasion of any one Meeting as aforesaid And every Constable Head-borough Tythingman Church-wardens and Overseers of the Poor respectively are hereby Authorized and reauired to levy the same accordingly having first received a Warrant under the hands of the sald Iustice Iustices or thief Magistrate respectively so to do the said moneys so to be levied to be forthwith delivered to the same Iustice Iustices or chief Magistrate and by him or them to be distributed The one third part thereof to the use of the Kings Majesty his Heirs and Successours to be paid to the High Sherift of the County for the time being in manner following That is to say The Iustice or Iustices of Peace shall pay the same into the Court of the respective Quarter Sessions which said Court shall deliver the same to the Sheriff and make a Memorial on Record of the payment and delivery thereof which said Memorial shall be a sufficient and final Discharge to the said Iustice and Iustices and a Charge to the Sheriff which said Discharge and Charge shall be certified into the Exchequer together and not one without the other And no Iustice shall or may be questioned or accountable for the same in the Exchequer or elsewhere than in Quarter Sessions Another third part thereof to and for the use of the Poor of the Parish where such Offence shall be committed And the other third part thereof to the Informer and Informers and to such person and persons as the said Iustice Iustices or chief Magistrate respectively shall appoint having regard to their diligence and industry in the discovery dispersing and punishing of the said Conventicles And be it farther Enacted by the Authority aforesaid That every person who shall take upon him to Preach or Teach in any such Meeting Assembly or Conventicle and shall thereof be Convicted as aforesaid shall forfeit for every such first Offence the Sum of Twenty pounds to be levied in manner aforesaid upon his Goods and Chattels and if the said Preacher or Teacher so Convicted be a Stranger and his Name and Habitation not known or is fled add cannot be found or in the Iudgment of the Iustice Iustices or chief Magistrate before whom he shall be Convicted shall be thought unable to pay the same the said Iustice Iustices or chief Magistrate respectively are hereby Impowered and Required to levy the same by Warrant as aforesaid upon the Goods and Chattels of any such Persons who shall be present at the same Conventicle Any thing in this or any other Act Law or Statute to the contrary notwithstanding And the money so levied to be disposed of in manner aforesaid And if such Offender so Convicted as aforesaid shall at any time again commit the like Offence or Offences contrary to this Act and be thereof Convicted in manner aforesaid then such Offender so Convicted of such like Offence or Offences shall for every such Offence incur the Penalty of Forty pounds to be levied and disposed as aforesaid And be it farther Enacted by the Authority aforesaid That every person who shall wittingly and willingly suffer any such Conventicle Meeting or unlawfull Assembly aforesaid to be held in his or her House Out-house Barn Yard or Backside and be Convicted thereof in manner aforesaid shall forfeit the Sum of Twenty pounds to be levied in manner aforesaid upon his or her Goods and Chattels or in case of his or her poverty or inability as aforesaid upon the Goods and Chattels of such persons who shall be Convicted in manner aforesaid of being present at the same Conventicle and the Money so levied to be disposed of in manner aforesaid Provided alwaies and be it Enacted by the Authority aforesaid That no person shall by any Clause of this Act be liable to pay above Ten pounds for any one Meeting in regard of the poverty of any other person or persons Provided also and be it farther Enacted That in all cases of this Act where the Penalty or Sum charged upon any Offender exceeds the Sum of Ten shillings and such Offender shall find himself agrieved it shall and may be lawfull for him within one week after the said Penalty or Maney charged shall be paid or levied to Appeal in writing from the person or persons Convicting to the Iudgment of the Iustices of the Peace in their next Quarter Sessions to whom the Iustice or Iustices of Peace Chief Magistrate or Alderman that first convicted such Offender shall return the Money levied upon the Appellant and shall certifie under his and their Hands and Seals the Evidence upon which the Conviction past with the whole Record thereof and the said Appeal Whereupon such Offender may Plead and make Defence and have his Tryal by a Iury thereupon And in case such Appellant shall not Prosecute with effect or if upon such Tryal he shall not be acquitted or Iudgment pass not for him upon his said Appeal the said Iustices at the Sessions shall give treble costs against such Offender for his unjust Appeal And no other Court whatsoever shall intermeddle with any Cause or Causes of Appeal upon this Act but they shall be finally determined in the Quarter Sessions onely Provided alwaies and be it farther Enacted That upon the delivery of such Appeal as aforesaid the person or persons Appellant shall enter before the person or persons convicting into a Recognizance to prosecute the said Appeal with effect Which said Recognizance the person or persons Convicting is hereby Impowered to take and required to certifie the same to the next Quarter Sessions And in case no such Recognizance be entred into the
Limit as in Lincolnshire where there are two Commissions of the Peace one for the parts of Holland and another for the parts of Kesteven Division as in Torkshire where there are three Divisions namely the East-Riding the West-Riding and the North-Riding and a several Commission of the Peace for each of those three Divisions Corporations as London York Bristol and others that are Counties of themselves and wherein the Justices of Peace for the County at large have nothing to do or else such Corporations that continue parcel of the County at large yet have Justices of their own exclusive to the Justices of the Peace of the County where the Corporation is so that the Justices of the County may not intermeddle And lastly Liberties which have Justices of Peace within the Liberty and yet the Justices of the County or Riding where such Liberties have a concurrent Jurisdiction Now if where the Offence happens be such a Liberty that the Justices of the County at large may not intermeddle then the Justice or Justices of Peace of such Liberty are only bound to Convict the Offender but if the Offence happens in a Corporation or Liberty where the Justices of the County have a concurrent Jurisdiction with the Justices of the Liberty there both the Justices of the County as well as the Justices of the Liberty are bound upon Notice to Convict the Offenders Now what if the chief Magistrate and one or more Justices of Peace of the place should jointly Convict Offenders where the Act saith That one or more Iustices of Peace or chief Magistrate is such Conviction good I think it may be good enough however I would not advise it as safe because it seems prejudicial to the Appeals given by this Act for it may fall out that all the Justices and chief Magistrate might Record the first Conviction and the Party grieved would have no Appeal but only to the same Persons who Convicted him which would be inconvenient And yet it seems any Justice or Justices of Peace of the Corporation or Liberty as well as the chief Magistrate of the place may make such Conviction or all together for though the Appeal should happen to be given to the same Persons who made the Conviction yet that takes not away the benefit of such Appeal for besides the supposed honour and impartiality of the Magistrate making such Conviction upon the Appeal the Tryal of the Fact is to be by a Jury whereas the Conviction is by the Opinion and Judgment of the Justice or Magistrate and so as to the Fact the Party does as it were Appeal to a Jury from the Justice See hereafter Sect. 6. concerning Appeals 11. Vpon proof to him or them respectively made of such Offence either by confession of the Party c. This Confession must be Judicial before the Justice himself at the time of the Conviction and not a Confession at another time or before other Persons for such Confession though sworn before the Justices by sufficient Witnesses is only an Evidence or Circumstance of the Fact but not a ground to Convict the Offender ipso facto as a Confession before the Justice himself is 12. Or Dath of two Witnesses c. An Infamous Person as one Convicted of Perjury Forgery or of Felony and not having had his benefit of the Clergy nor pardoned is by Law disabled to give Testimony in any matter or cause whatsoever and therefore cannot be one of the two Witnesses within this Act upon whose Oath the Offender is to be Convicted nor ought to be suffered to be sworn if the Justice know him to be such but if such Person be sworn and the Justice not knowing of such disability of the Party sworn do proceed and upon such Oath and upon the Oath of one other Witness doth make a Record of Conviction such Record will be good in Law and bind unless where an Appeal lyeth it be avoided by Appeal according to the direction of this Act a Jew hath been often admitted as a Witness by the Judge without the consent of Parties and sworn upon the Old Testament and so I conceive he may be in this Case A man present at a Conventicle though an Offender himself is questionless a good Witness to give Evidence in order to the Conviction of any other for being present at the same Conventicle A Man that is only Indicted of Perjury or any other Infamous Crime but not Convicted is a Witness for no Man is disabled to give Testimony upon Oath upon a bare Indictment only note in this Case the Oath of the Witnesses and all other Evidence given upon Oath before the Justice or Justices Convicting should be put in Writing and subscribed by the Party swearing or giving such Evidence at the time of his Deposition or Examination especially where an Appeal is given by this Act for that by the 6th Paragraph it is required That upon an Appeal the Iustice certify to the Sessions the Evidence upon which the Conviction past which he cannot so well nor safely do unless the Evidence be taken in writing and subscribed by the Party upon whose Oath the same is taken 13. Or by Notorious Evidence and Circumstance of the Fact c. It is very difficult if not impossible to lay down the exact measure or bounds what shall be said to the Notorious Evidence and Circumstance of the Fact and what not and therefore it must be left to the Judgment and Discretion of the Justice or Justices Convicting upon weighing well and considering of the Case what doth appear to be a Notorious Evidence or Circumstance of the Fact But this is to be taken notice of particularly that the proof of two things are principally material 1. That there be a Conventicle and secondly That the Party to be Convicted was present at it Now if a Conventicle be kept and the same is afterwards dispersed and the Preacher or Teacher in such Conventicle or the Owner of the House where such Conventicle is held or several Persons present at such Conventicle be Convicted for such Offence afterwards another Person by two Witnesses is proved to have been there or that he confessed he was there at the same time and place where the others Convicted were but the Witnesses cannot prove it a Conventicle yet here 's a Notorious Evidence and Circumstance of the Fact sufficient to ground a Conviction If the Justice of Peace be present at the suppressing of an Assembly of People some of whom are immediately Convented before him and Accused for holding and being at a Conventicle in such Assembly but no direct proof be made that it was a Conventicle farther than that they were Assembled together if the Persons Convented can or will not give an account for what other Cause they were so Assembled or met together or if they or some others at such Assembly are commonly known and reputed to be frequenters of Conventicles or that they commonly though not always do
Costs for his unjust Appeal but what if upon the Appeal the Appealant doth not make it appear and it is so found by Verdict that though the Appealant was present at the Conventicle and thereby forfeited 5 s. â—â—t the Person in regard of whose â—overty the summ of 10 l. or any â—â—sser summ was imposed upon the appealant was not at all present 〈◊〉 the same Conventicle Now â—â—e Appealant is not totally acquitted for the Conviction of his being present at the Conventicle â—â—ands in force yet in this Case I conceive he is to be discharged of the other Penalty imposed upon him and to be excused from payment of any Costs and the difference between this Case and the next precedent is this In the former Case the Person in regard of whose Poverty c. was either a Teacher or present at the Conventicle whereby the Justice Convicting had a Jurisdiction to impose the Penalty either upon the Party himself or upon some other but in this case the Justice hath no Authority at all to impose a Penalty either upon one that was not present at the Conventicle or in regard of the Poverty of one that was not present at the Conventicle which diversity is apparent what if the Penalty in regard of the Poverty of another imposed upon the Appealant hath been imposed upon the Party himself or upon any other and hath been actually levied or paid In this Case I think the Appealant is to be relieved against that Penalty and though he be not totally acquitted yet he ought not to be charged with Costs Or Iudgment pass not for him upon his said Appeal c. This Clause seems to confirm the Opinion above that the Appealant may demurr in Law to the Conviction and pray the Judgment of the Court of Sessions upon it without Pleading to Issue or having a Tryal by a Jury as the Act saith Note that where the words are Iudgment pass not for him upon his said Appeal it is to be understood that Judgment pass not for him upon the determination of the Appeal at the end of the Suit for whilst the Appeal depends undetermined it cannot be known whether Judgment shall pass for him or not The said Iustices at the Session shall give treble Costs against such Offender for his unjust Appeal c. That is the Justices at the Session shall give Judgment that the Offender pay treble Costs for that is the meaning of the words give treble Costs but who shall have this treble Costs I conceive the Prosecutor of the Conviction that Prosecutes at the Sessions whose Name ought to appear in the Record of the Sessions But what if the Offender Appeals to the Sessions and the Justice Convicting Certifies the Record of Conviction the Evidence and the Appeal but the Appealant doth not appear at the Sessions at all nor doth any thing in Prosecution of his Appeal how shall the Prosecutors Name appear in such Case To this I answer that in this Case no Costs are to be given but only the Appealant's Non-prosecution to be Recorded whereby he Forfeits his Recognizance given to prosecute his Appeal with effect but if the Appealant one appears and pleads or demurrs as he must then the Prosecutor's Name will appear And if afterwards the Appeal is not Prosecuted but discontinued Then treble Costs are to be awarded to the Prosecutor as well as where the Offender upon Tryal is not acquitted or Judgment pass not for him upon the determination of the Appeal And no other Court whatsoever c. By this Clause the Justice of Peace Convicting where no Appeal lieth and the Justices of the Session where an Appeal is given are made the final Judges of the Offences of being present at a Conventicle And of any Person 's taking upon him to Preach or Teach in a Conventicle or wilfull suffering a Conventicle to be held in his or her dwelling House c. And of a Constable's Omission of the performance of his Duty in Execution of this Act and this exclusive to the great Courts at Westminster-Hall and all other Courts whatsoever yet if a Certiorari or Writ of Errour issue out of any of the great Courts at Westminster Hall and be delivered either to the Justices Convicting or to the Sessions they ought not to proceed till the Court out of which such a Writ issued be informed of the matter and shall think fit to supersede their own for though the Justices of Peace and the Sessions be made the final Judges of the Offences aforesaid yet they are not Judges of the Process of the superiour Courts but only the superiour Court it self out of which the Process issued SECT 7. 1. UPon the delivery of such Appeal as aforesaid c. The time for delivery of the Appeal must be within one week next after the Penalty levied or paid and at the time of the delivery of the Appeal in writing the Appeal is made Now the Act appoints that a Recognizance be entred into for the prosecuting of the Appeal at the same time that is at the same instant of time the Appeal is delivered And the Recognizance must have these Circumstances it must be entred into by the Party himself Appealing and in strictness not by any other though sufficient security for him it must be acknowledged before and taken by the same Justice that made the Record of the Conviction but if the Conviction be by two or more Justices the Appeal delivered to and the Recognizance acknowledged before any one of them is sufficient But if both or all of the Justices Convicting are together the Recognizance must be acknowledged before them all though the Statute hath not appointed any sum to be contained in the Recognizance yet it ought to be in a reasonable sum which is commonly and usually double the sum in Question which in this Case is double the Penalty imposed on the Offender that Appeals There may be some doubt how the Appeal is to be made or the Recognizance entred when the single Justice Convicting shall happen to die or be out of Conviction before the time of Appeal but that being a matter rarely happening I shall not spend time about it at present SECT 8. THat is at the time of making the Appeal and the Appeal cannot be said to be made till it be delivered and the Recognizance entred SECT 9. AFter refusal or denial to enter break open and enter into any house or other place where they shall be informed any such Conventicle as aforesaid is or shall be held as well within Liberties as without and take into their Custodies the Persons there unlawfully Assembled to the intent c. In all Cases where the outward door of a House may be broken the Law as this Act doth require That first A Demand be made to have the Door opened for Force is not to be used where the Law may be Executed in a peaceable and quiet manner Now a refusal or denial
come to inform him of a Conventicle that hath been held he is bound to give the Informer his Oath and 't is no excuse for him that the Informer did not require him to tender an Oath for his coming is impliedly a Request it being in order to make a Conviction and if he refuses or omits to give him his Oath in order to the making a Conviction he is punishable whether a Conventicle were held yea or no for being informed there was one he is an Offender in not taking the Information upon Oath and so was it resolved by the Court of Kings-Bench Mic. 34 Car. 2. Banco Regis on a motion in Arrest of Judgment in an Action between Smith qui tam c. vers Langham of Northamptonshire The one moiety to the use of the Informer c. Although it be not expresly declared unto whom the other moiety shall be given yet the King shall have it for wheresoever a forfeiture or penalty is given by any Act of Parliament upon any Offence it is intended to be to the King his Heirs and Successours though not particularly named unless it be otherwise specially Ordered Informer here is meant not he that informs the Justice but he that sues for the 100 l. and so informs the King's Court of such an Offence committed by such a Justice for otherwise the Justice may go unpunished by agreeing with him that is Informer in the first sense besides if none but such Informer might bring the Action there would in all probability be a failure of proof in this Case for none but those who informed the Justice are for the most part capable of proving the Justice's refusal or neglect to do his Duty Although a Moiety be here given to the Informer yet if none will sue for the same the whole may be sued for at the King's Suit for there being a Forfeiture created by the Act and by the Law given to the King the not suing by any Informer for his part shall not prejudice the King the Moiety going only to the Informer i.e. to him that will and doth sue for the same if none will sue for it the whole is the King 's and before any Information Action or popular Suit brought he may pardon or release the whole Penalty and it shall be a good Bar against all men but what if an offending Justice within this Law should get a Friend to file an Information against him by consent to prevent and anticipate a real Informer and such Prior Suit the Offender should plead to the real Informer's Action to trice him thereof I answer that such Plaintiff may by virtue of 4 H. 7. cap. 20. aver the former Suit to be by Covin and Collusion and such Covin he may in his replication plead generally and if the former Suit be found to be by Covin to evade the Act and trice the present Plaintiff the Defendant shall suffer two years Imprisonment and such averment the Plaintiff may make though on the first Suit there were a Verdict for the Defendant for want of Evidence or the like nay though there were a recovery against him SECT 12. IF any Person be at any time sued for putting any of the Powers of this Act in Execution c. Whether it be for Informing disturbing searching imprisoning or distraining c. By the 7th and 21 Jac. all Justices of the Peace Constables and several other Officers have this privilege if sued for any thing done by Colour of their Office they may plead the general Issue and give special matter for their excuse or justification in Evidence but this Act gives the same advantage to all manner of Persons doing any Act in the Execution of this Statute whether they are Officers or no and the end is to prevent their being prejudiced by a nicety of pleading and that the truth of their excuse may fairly and clearly appear upon Evidence any Informer or other Person going in Assistance of any Officer for the executing any power given by this Law hath the same privilege and benefit Every such Defendant shall have his full treble costs c. i.e. the Costs given by the Jury in case of Trial and the Costs likewise given by the Court de incremento are to be trebled both such Costs as the Defendant would have in case this Law were not he is now to have treble and in case the Plaintiff be non-suit if without Evidence or after Evidence he ought to have thrice so much Costs as he otherwise should have in such Case SECT 13. AND be it farther Enacted by Authority aforesaid that this Act and all Clauses therein contained shall be construed most largely and beneficially for the suppressing of Conventicles and for the Iustification and Encouragement of all Persons to be imployed in the execution thereof This Clause shews the deep sense our Law-makers had of the pernicious effects of such unlawfull Meetings which is emphatically expressed in the preamble of this Act where the reason of this Clause and of the whole Act is declared viz. For providing farther and more speedy remedies against the growing and dangerous practires of Seditious Sectaries and other Disloyal Persons who under the pretence of tender Consciences have or may at their Meetings contrive Insurrections as experience hath shewn and that experience hath been much more abundant of late days and therefore the Act continues as necessary as ever it being too well known that the Persons so pretending to a greater tenderness of Conscience than the rest of the Christian world are no less disaffected to the English Government than they avow themselves to be to the Church of England and it seems to be a base reflexion on the Wisedom and prudence of our Law-makers that the prosecution of this Law should be thought unnecessary in the same age wherein 't was made and the reason continuing for which it was at first provided viz. the danger of Mutiny and Sedition for the prevention and suppressing whereof there is no better means than the Execution of this Act which as this Clause is ought to have the largest and most beneficial Construction imaginable i. e. such an equitable Construction although it be a Penal Law as may best conduce to the suppression of such Conventicles though perhaps the thing be not expresly within the letter of the Law yet it ought to be construed within the intent as for instance suppose a certain number of men should meet and Assemble themselves together under the colour and pretence of exercising Religion and there should be no formal Preaching and Teaching but only an extempore Enthusiastical Prayer yet the Prolocutor or Speaker in such Assembly ought to be construed with the intent of the third Section of this Act and incurr the Penalty of 20 l. being certainly within the intent though not within the precise Letter of that Clause the like of the Quakers Meetings though they cannot properly be within the third Section when 't is
as they call it a silent Meeting yet even such Assembly of them seems to be within the first Section and is a Conventicle within the meaning of this Act for 't is a Meeting under colour of the exercise of Religion though none be exercised they pretending that they meet out of Conscience and for such purpose and 't is plainly within the mischief viz. The danger of contriving Mutinies and Insurrections at such Assemblies and there 's as much danger of that in such Congregations as any other and by the design of this Clause such Construction ought to be made as may most suppress the Mischief intended to be remedied by this Act the like equitable Construction ought to be made for the encouragement and justification of the Officers of Justice and others employed in the Execution of this Act the meaning of which is that by no strained interpretation ought such Persons to be brought to damage for any thing done by colour of this Statute and so this Clause requires all incouragement to be given to such Persons by the King's Courts of Record of Westminster upon all occasions and particularly by the next Clause which is that No Record Warrant or Mittimus to be made by virtue of this Act or any Proceedings thereupon shall be reversed avoided or any way impeached for any default in Form i. e. No Record of Conviction Warrant for to disperse a Conventicle or to levy the Penalty by distress or Mittimus to Prison shall c. This extends to all Courts as to the Sessions so to the Kings-Bench or any other Court where such Record c. may be removed or otherwise come in question upon any Action that may be brought against any Person for any thing done in pursuance of this Act although the Court of Kings-Bench may by Certiorari command such Records to be removed thither c. yet it is a good Act of their legal discretion to deny such Certiorari's as of late years is done it being a Writ discretionary and not ex debito Justitiae sent only to certify his Majesty in his said Court of the Proceedings against such a Man and the Justices below are the proper Judges of the Fact and this Act seems to order the final determination of such Offences to the Justices particularly for that this very Law gives an Appeal to the Sessions where the Party hath his advantage for matter of Law as well as Fact but it may be questioned what shall be deemed a default in Form I confess that may be of some difficulty but however by the virtue of this Clause though it be by a Penal Law it ought to be helped by Intendments and Presumptions as much as any Plea in Bar or any other pleading in a Civil Action but to make the best Judgment in this Case will be to compare this Clause with the Statute of Demurrs viz. the 27 Elizabeth cap. 5. where the words are any imperfection defect or want of Form and the words here are by reason of any default in Form which are plainly all one upon the former the rule is whatsoever it is without which the right doth sufficiently appear to the Court it is form within that Law and so è converso whatsoever is wanting or imperfect whereby the right appears not is not remedied as Form within that Statute so here whatsoever it is without which the Offence doth sufficiently appear to the Court that 's Form within our Law so if it appear a Conventicle were held against this Law and the Parties meant to be Convicted were present at it if there be but sufficient exprest that it may appear upon the whole Record the Party Convicted is an Offender against this Law 't will be well enough and there needs no more for which see above under the first Section the description of a Conventicle which will direct you how such a Conviction ought to be made as the President hereafter given you is And in Case any Person offending against this Law shall flie into any other County or Corporation c. This Clause makes provision for the punishment of such Persons Convicted on this Act as are Strangers inhabiting or Fugitives flying into any other County or Corporation that must be meant such Corporation where the Justice Convicting hath no Jurisdiction so as the Penalty cannot be levied by his Warrant and therefore this Paragraph provides that there may be a Certificate made of such Conviction under the Hand and Seal of such Justice as made it that must be meant a Certificate that there is such Conviction made or a transcript thereof under the Justices Hand and Seal not the very Record of Conviction it self for that perhaps may be returned into the Sessions and divers other Persons inhabiting where the Offence was committed may be perhaps Convicted by the same Record and then 't would be inconvenient to transmit that same it may be to any Justice of the Peace of such other County or Corporation and if such Offender be inhabiting or fled into a Corporation where the County Justices have nothing to doe there the Certificate may be to any Justice of that Corporation as well as to the chief Magistrate of the same notwithstanding the wilfull Errour of some who in Corporations would have none but the chief Magistrate of that Corporation as Mayor c. and no other Justice of such place impowered by this Law whereas the whole tenour of the foregoing Sections shews the contrary such Justice is to levy the said Penalties as fully as the Justice Convicting might c. i.e. by Warrant for distress and Sale of the Offenders Goods and Chattels but it may be queried what shall such Foreign Justice doe with Money so levied I think this somewhat plain that he ought to return it to the Justice that did Convict and he to the Quarter Sessions for the place where the Offence was committed and the Foreign Justice must not return it to the Quarter Sessions of his own County and my Reasons are First Because the Convictions are not to be returned thither Secondly A third part of such Penalties is to go to the Poor of the Parish where the Offence was committed Thirdly The third is to go to the Informer or Informers or such other Person c. which distribution the Foreign Sessions cannot conveniently make but then it may be queried what will become of the Parties Appeal how shall that be made I answer if he has the benefit of any as I think he has notwithstanding it must be to the Quarter Sessions of the place where the Offence was committed for the Statute expresly requires it should be delivered to the Justice Convicting he is to take Recognizance for the Prosecution thereof with effect and this with the Conviction he is to return into the Sessions but then it may be again queried how such Offender shall know who is the Justice Convicting for to him he must deliver his Appeal in writing