OBSERVATIONS UPON THE STATUTE OF 22 CAR. II. Cap. 1. Entituled An ACT to Prevent and Suppress Seditious Conventicles By Sir Edmund Saunders Kt. late Lord Chief Justice of England LONDON Printed for Tho. Dring at the Corner of Chancery-Lane in Fleetstreet 1685. TO THE Reader TO Recommend this small Treatise to thy perusal there needs no more then the Title with the Authour's Name whose Loyalty Integrity and profound Learning in all the Laws of this Realm were so eminent and conspicuous both while he was at the Bar and after his deserved advancement to the Bench that 't would be impertinent to tell thee what a Reverence was always paid to his Opinions His Memory is so fresh that I cannot suppose thee ignorant of the same or void of a profound respect to his very name for the continuance of which this Manual is published as also for the publick good of the Realm which was his end in its Composition the immediate occasion of writing these Observations was to gratify the Requests of divers of his Majesty's Justices of the Peace for the County of Middlesex who desired his Opinion in sundry points upon this Statute for the better Government of themselves in the Execution hereof with safety from the malitious Suits of the Dissenting Party who were and always are ready to take advantage of the least slip or mistake of any of the King's Officers of the Peace The Lord Saunders being sensible thereof as likewise of the great use of this Law and the necessity of its Prosecution in order to preserve the publick Peace and Quiet of the Kingdom did write this Explanation of it even while he was Lord Chief Justice of England it being all of his own Hand-writing so far as page 79. where you will see the Additionals printed with this mark before them ' The great multiplicity of business in his Place and the unhappy indisposition of his Body did prevent the completion thereof he often wishing for but a few hours time to perfect it For the residue as it had not the same Authour so neither doth it expect the same Authority it being added as an Essay to supply what was left undone and yet the supplement may be not without its use being made as near as possible to the Lord Saunders's sense in other Paragraphs and according to his Method and Rule are the Constructions made even in such manner as may most advance the Remedy and suppress the Mischief intended by this Law and are mostly grounded upon approved Opinions and Resolutions of the Judges on this Law and other Laws of this Nature For the Subject 't is well known that this Act never received any publick Animadversions and yet doth perhaps need an Explanation as much as those against Recusancy on which there have been Observations made and Printed and not without Approbation For the seasonableness of this Publication there needs no other Apology than what the Age we live and the Book it self do bespeak and if it may prove any way serviceable to the Publick by being helpfull to the Justices and other Officers of the King's Peace the Reverend Authour's Design as well as that of the Publisher will both be accomplished Some Books Printed for Thomas Dring over against the Inner-Temple Gate in Fleet-street Law in Folio THE Statutes at large from Magna Charta to this present year 1682. in Paragraphs and Sections with References to the Books of the Law and an exact Table By Joseph Keble of Grays-Inn Esq in folio Kebles Assistance to Justices of the Peace for the easier performance of their Duties Collection Entries c. By William Rastall fol. The Lord Cokes Book of Entries His Commentary on Littleton being the first part of the Institutes His Commentary on Magna Charta c. or the second Part of the Institutes His Pleas of the Crown or third Part of the Institutes His Jurisdiction of Courts or fourth Part of the Institutes His 11 Reports in French with a Table and the twelfth and thirteenth in English An Abridgment of Cases and Resolution of Law contained as well in the Law-Books Statutes and Records as of modern Judgments in the Courts of Westminster By H. Roll Serjeant at Law Published by the Lord Chief Justice Hales The Year Books in 10 Volumes the last Edition with new Notes and Tables to them all Origines Juridiciales or an Account of the English Laws Courts of Justice Forms of Tryal Punishment in Cases Criminal Law-Writers Law-Books Grants and Settlements of Estates c. Also a Chronology of the Lord Chancellors Keepers Treasurers Justices Itinerant Judges Barons Masters of the Rolls Kings Attorneys and Sollicitors and Serjeants at Law By Sir William Dugdale Knight Tables to most of the printed Prosidents of Pleadings Writs and Return of Writs at the Common-Law Collected by George Townsend Anno XXII Caroli II. Regis An Act to Prevent and Suppress Seditious Conventicles FOR Providing farther and moré speedy Remedies against the growing and dangerous Practices of Seditious Sectaries and other Disloyal Persons who under pretence of tender Consciences have or may at their Meetings Contrive Insurrections as late Experience hath shewn Be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by Authority of the same That if any Person of the age of Sixteen years or upwards being a Subject of this Realm at any time after the tenth day of May next shall be present at any Assembly Conventicle or Meeting under Colour or Pretence of any Exercise of Religion in other manner than according to the Church of England in any place within the Kingdom of England Dominion of Wales or Town of Berwick upon Tweed at which Conventicle Meeting or Assembly there shall be Five Persons or more assembled together over and besides those of the same Houshold if it be in a House where there is a Family Inhabiting or if it be in a House Field or Place where there is no Family Inhabiting Then where any five Persons or more are so Assembled as aforesaid It shall and may be lawfull to and for any one or more Iustices of the Peace of the County Limir Division Corporation or Liberty wherein the Offence aforesaid shall be committed or for the chief Magistrate of the Place where such Offence aforesaid shall be committed And he and they are hereby Required and Enjoyned upon Proof to him or them respectively made of such Offence either by Confession of the Party or Oath of Two Witnesses which Oath the said Iustice and Iustices of the Peace and Chief Magistrate respectively are hereby Impowered and Required to Administer or by nororious Evidence and Circumstance of the Fact to make a Record of every such Offence under his or their Hands and Seals respectively which Record so made as aforesaid shall to all intents and purposes be in Law taken and adjudged to be a full and
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
may be imposed upon any Person present at the same Conventicle though such Person upon whom it is imposed be not Convicted for being present at the Conventicle nor can be Convicted for being present as an Alien or Subject under 16 years of Age And the different penning of this and the precedent Paragraph seems to make it clear for in the precedent Paragraph the words are that the Penalty there mentioned in case of Poverty of such Offender 12 He is Convicted for being present at a Conventicle shall be levyed on 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 so the Penalty there can be laid upon none but such as by this Law are and ought to be Convicted for being present at the same Conventicle but an Alien or Subject under 16 years cannot be Convicted for that Offence But here the words of this Paragraph say that the Penalty of 20 l. here mentioned may be levyed upon any such Persons who shall be present at the same Conventicle whether Convicted or not and an Alien may be present at a Conventicle though he cannot be Convicted whereby to Forfeit 5 s. as a Subject may but the Penalty imposed on the Preacher so far as 10 l. may be levied upon him and the non obstante in this Paragraph doth seem to confirm this Construction 5. And the money so levyed to be disposed of in manner aforesaid c. That is as above directed by the next precedent Paragraph viz. One third to the King one other third to the Poor of the Parish where the Offence was committed and the other third to the Informer and such Person as the Iustice shall appoint 6. And if such Offender so Convicted as aforesaid shall at any time again commit the like Offence c. The commitment of the said Offence must be after the Conviction for the first See above § 2. Obs 1. 7. shall for every such Offence incurr the Penalty of Forty pounds to be levied and disposed as aforesaid This Penalty of 40 l. may be levied upon the Preacher as the 20 l. penalty above and in case of Inability of the Preacher upon the Goods of others present at the same Conventicle in like manner as the penalty of 20 l. might SECT 4. Obs 1. AND be it farther Enacted by the Authority aforesaid that every Person who shall wittingly and willingly suffer any such Conventicle c. These words conclude Aliens as well as Denizens and Peers as well as Commoners 2. To be held in his or her house c. That is in the House or Out house in his or her Possession whereby he or she might have hindered the Conventicle from being held there for in this Case the bare possession of the House though without any Title makes it to be his or her House within the intent of this Law as for Instance if a man enter upon me and put me out of Possession of my House by wrong and keeps me out of Possession and in that time suffers a Conventicle to be holden in the same House now he that hath sold the Possession of my House is to be punished for suffering a Conventicle in his House though in truth the Title of the House be mine 3. Or in Case of the Poverty c. This is in the Judgment of the Justice of Peace Convicting as above in case of the Preacher but the Penalty in this Case of Poverty is only to be levied upon such as shall be Convicted for being present at the same Conventicle and not upon Aliens who are not to be Convicted for being present at the Conventicle The penning of this Clause and the like Clause in the second Paragraph do exactly agree but are both different from the Clause in the third Paragraph where the Penalty of the Preacher in case of his Poverty or inability is to be levied on any Person present at the same Conventicle though not Convicted SECT 5. 1. This is clear yet it may be doubted whether more than ten pounds may not be imposed upon one Person for the Penalty of the Preacher where his Name or Habitation is not known for that Penalty is not imposed in regard of the Poverty or inability of the Preacher but because he is not known so as the Justice might judge whether he were able to pay the Penalty or not The Husband and Wife co-habiting are both present at a Conventicle and Convicted whereby the penalty of 5. s. imposed upon the Wife is to be levied on the Husband 's Goods yet the Husband may be charged with 10 l. besides for and in regard of the Poverty of another for the Wifes Penalty of 5 s. is not laid upon the Husband in regard of her Poverty but in regard of the Relation between them Where there is a Penalty of twenty Pounds or more to be imposed in respect the Justice may assess what sum he thinks fit upon each party lyable so that no one be charged with more than 10 l. in regard of Poverty c. ACT. SECT 6. 1. PRovided also and be it farther Enacted That in all Cases of this Act where the Penalty or Summ charged upon any Offender exceeds the Summ of 10 s. This Paragraph gives an Appeal to the Offender in certain Cases whereupon these things are to be taken notice of 1. The Person that may Appeal must be an Offender charged with above the summ or Penalty of 10 s. for if he be charged with the summ or Penalty of 10 s. only or under he is concluded by the Conviction and cannot appear A Constable Convicted upon the 11th Paragraph of this Act may Appeal 2. The time when he may Appeal and that must be within one week after the Penalty above 10. s. be levied upon his Goods c. or else after the voluntary payment of such Penalty either to the Officer or Justice Convicting so that before the whole Penalty charged upon the Offender be either levied or paid the Offender cannot Appeal neither can he Appeal at all if a week be elapsed after the Penalty levied or paid and no Appeal within that time but in such Case the Offender is for ever concluded by the Conviction before the Justice c. 3. The manner of Appealing must be in writing from the Person or Persons Convicting i. e. the Justice or Justices of the Peace But such writing need not be subscribed by the Party Appealing 4. The Judges to whose Judgment the Appeal lyeth are the Justices of Peace in their next Quarter Sessions that is next after the Appeal and not next after the levying or payment of the money and it must be the Quarter Sessions for the same County Liberty or Place where the Offence was committed and the Offender Convicted and not any other If it were in a Corporation by the chief Magistrate and Justices of the Corporation the Certificate and return of
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