neglect coming to Church or have declared or any way made their dislike of or aversion from the Liturgy or Doctrine of the Church of England This is in any Opinion such a Notorious Evidence and Circumstance of the Fact as is sufficient to ground a Conviction within the intent of the Law and in such and the like Cases the Record of Conviction needs not make mention of any thing more but that the Offender is Convicted by the Notorious Evidence and Circumstance of the Fact without particularizing the Fact for that where no Appeal lies the Justice is the sole Judge of the Notoriety of the Evidence and Circumstance and where an Appeal is given there the Fact must be tryed over again and so the Offender cannot be injured 14. To make a Record of every such Offence under his or their Hands and Seals respectively c For the Form of such Record see hereunder And note that the subscribing the Justices hand to the Record is absolutely Essential for though the Justice set to his Seal and it be so mentioned in the Record which is as much as the Law requireth in most Cases yet this Act requiring the Record to be as well under his Hand as Seal if it be not under both the Record and all that is done in pursuance of it will be altogether void though it be not of absolute necessity that the Record should mention that the Justice hath put his Hand and Seal so that it be actually done but the better and safer way is to mention it in the Record according to the Precedent 15. 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 c. So as the Party Convicted shall be concluded to say that he is not guilty of the Offence contained in such Record he is so Convicted 16. And thereupon the said Iustice c. shall impose on every such Offender so Convict as aforesaid a Fine of five shillings for every such first Offence c. This imposing the Fine must be in the same Record of Conviction and not in any other Record by it self and it is not safe nor justifiable to make a Warrant to Levy any Fine but what is contained in the Record of Conviction 17. Which Record and Conviction shall be Certified by the said Iustice at the next Quarter Sessions c. The next Quarter Sessions is intended next after the Conviction not next after the Offence committed for perhaps the Quarter Sessions next after the Offence committed may be past before the Offenders be Convicted Next Quarter Sessions i. e. for the place where the Offence was committed and the Conviction made if by a Justice of the Peace for the County at large then to the next Quarter Sessions held for such County if in a Corporation or other Liberty by the chief Magistrate or Justice of such place then to the next Quarter Sessions for such place if the Conviction be made by a Justice of the Peace of the County for an Offence committed in a Liberty or Corporation where the County Justices have a concurrent Authority then the same must be certified to the next Quarter Sessions of the County Note by the Statute of 2 H. 5. cap. 4. The Quarter Sessions are appointed to be holden in all the Counties of England four times in the year that is to say the first week after the Feast of St. Michael and the first week after the Epiphany and in the first week after the close or end of Easter and in the first week after the Feast of Translation of St. Thomas the Martyr which as I take it always falls upon the 7th day of July These are the four Quarter Sessions But the same Statute directing that the Sessions should be held oftner if need were the Sessions holden at other times are called General Sessions but not Quarter Sessions by the Statute of 14 of Hen. 6. c. 4. The Justices of Middlesex are bound to hold Quarter Sessions but twice in the year but they may as they do hold Quarter Sessions at the four times of the year abovesaid and each of these Sessions is a Quarter Sessions and Sessions holden at other times are General Sessions Now every Quarter Sessions is a General Sessions yet every General Sessions is not a Quarter Sessions and not holden at the time appointed by the Statute of 2 Hen. 5. above mentioned SECT 2. 1. THat of such Offender so Convicted as aforesaid shall at any time again commit the like Offence Obs c. By this Clause these two Points are to be observed 1. He that is to be Convicted and to incur the Penalty of 10 s. must be Guilty of such Offence after the time he was Convicted of the former Offence and not only after the time he committed the former Offence for if one commit two or more Offences before he be Convict he may be afterwards Convicted for each of these Offences but he shall only pay a Fine of five shillings for each Offence and not 10 s. for either one of them for that though he Offended twice or oftner yet he never Offended after he was once Convicted 2. Where any one is Convicted for the second Offence whereby the Penalty of 10 s. is imposed on him the Record of such Conviction ought to mention and take notice of the Record of the former Conviction 2. Which Fine and Fines for the first and every other Offence shall be levyed by distress and sale of the Offenders Goods and Chattels c. But the Officer may seize ready Moneys of the Offender if he can find it in his House but he may not take it from the Person of the Offender and by the word Chattels must be understood Personal Chattels which may be distrained or levied as well as sold and therefore a Lease for years or other real Chattel cannot be sold by the Officer for levying any Penalty imposed by virtue of this Act. Goods and Chattels this reaches to the Utensils Tools and Instruments of Trade as well as any other Goods and Chattels for the rule of the common Law that exempts such where there 's sufficient besides from distress extends not where distress is given as an Execution by any particular Statute as for Poors Rates Hearth-money and so the like on this Law and governs only in distresses for Rents Amerciaments and the like 3. Or in Case of the Poverty of such Offender c. What shall be said in a case of Poverty and how shall it be determined I conceive the Justice is the Judge of it and may determine it at the time of the Conviction and thereupon impose the Fine upon any other Convicted of the same Offence but if the Party Convicted be taken to be Responsible and a Warrant is made to Levy and afterwards the Constable or other Officer to whom the Warrant is directed shall afterwards certify the Justice of
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
said Appeal to be null and void Provided alwaies That every such Appeal shall be left with the person or persons so convicting as aforesaid at the time of the making thereof And be it farther Enacted by the Authority aforesaid That the Iustice Iustices of the Peace and chief Magistrate respectively or the respective Constables Headboroughs and Tything-men by Warrant from the said Iustice Iustices or chief Magistrare respectively shall and may with what aid force and assistance they shall think fit for the better Execution of this Act 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 Liberries as without and take into their Custody the persons there unlawfully assembled to the intent they may be proceeded against according to this Act And that the Lieutenants or Deputy-Lieutenants or any Commissionated Officer of the Militia or other of his Majesties Forces with such Troops or Companies of Horse and Foot And also the Sheriffs and other Magistrates and Ministers of Iustice or any of them jointly or severally within any the Counties or places within this Kingdom of England Dominion of Wales or Town of Berwick upon Tweed with such other assistance as they shall think meet or can get in readiness with the soonest on Certificate made to them respectively under the Hand and Seal of any one Iustice of the Peace or chief Magistrate of his particular Information or Knowledge of such unlawfull Meeting or Conventicle held or to be held in their respective Counties or Places And that he with such Assistance as he can get together is not able to suppress and dissolve the same shall and may and are hereby required and enjoyned to repair unto the place where they are so held or to be held and by the best means they can to dissolve dissipate or prevent all such unlawfull Meetings and take into their Custsdy such and so many of the said persons so unlawfully Assembled as they shall think fit to the intent they may be proceeded against according to this Act. Provided always That no Dwelling-house of any Peer of this Realm where he or his Wife shall be then resident shall be searched by virtue of this Act but by immediate Warrant from His Majesty under His Sign Manual or in the presence of the Lieutenant or one Deputy-Lieutenant or two Iustices of the Peace whereof one to be of the Quorum of the same County or Riding And be it farther Enacted by the Authority aforesaid That if any Constable Head-borough Tything-man Church-warden or Overseer of the Poor who shall know or be credibly informed of any such Meetings or Conventicles held within his Precincts Parish or Limits and shall not give Information thereof to some Iustice of the Peace or the chief Magistrate and endeavour the Conviction of the Parties according to his Duty but such Constable Head-borough Tything-man Church-warden Overseers of the Poor or any person lawfully called in and of the Constable Head-borough or Tything-man shall willfully and wittingly omit the performance of his Duty in the Execution of this Act and he thereof Convicted in manner aforesaid he shall forfeit for every such Offence the sum of five pounds to de levied upon his Goods and Chattels and disposed in manner aforesaid And that if any Iustice of the Peace or chief Magistrate shall wilfully and wittingly omit the performance of his Duty in the Execution of this Act he shall forfeit the sum of One hundred pounds the one moiety to the use of his Majesty the other moiety to the use of the Informer to be recovered by Action Suit Bill or Plaint in any of His Majesties Courts at Westminster wherein no Essoin Protection or Wager of Law shall lie And be it farther Enacted by the Authority aforesaid That if any person be at any time Sued for putting in Execution any of the Powers contained in this Act otherwise than upon Appeal allowed by this Act such person shall and may plead the General Issue and give the special matter in Evidente and if the Plaintiff be Non-suit or a Verdict pass for the Defendant or if the Plaintiff discontinue his Action or if upon Demurrer Iudgment be given for the Defendant every such Defendant shall have his full treble Costs And be it farther Enacted by the 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 And 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 by reason of any Default in form And in case any person offending against this Act shall be an Inhabitant in any other County or Corporation or flie into any other County or Corporation after the Offence committed the Iustice of the Peace or chief Magistrate before whom he shall be convicted as aforesaid shall certifie the same under his hand and seal to any Iustice of Peace or chief Magistrate of such other County or Corporation wherein the said person or persons are Inhabitants or are fled into whith said Iustice or chief Magistrate respectively is hereby Authorized and Required to levy the Penalty or Penalties in this Act mentioned upon the Goods and Chattels of such person or persons as sully as the said other Iustice of Peace might have done in case he or they had been Inhabitants in the place where the Offence was committed Provided also That no person shall be punished for any Offence against this Act unless such Offender be prosecuted for the same within Three months after the offence committed And that no person who shall be punished for any offence by virtue of this Act shall be punished for the same offence by virtue of any other Act or Law whatsoever Provided and be it farther Enacted by the Authority aforesaid That every Alderman of London for the time being within the City of London and the Liverties thereof shall have and they and every of them are hereby Impowered and Required to Execute the same Power and Authority within London and the Liberries thereof for the Examining Convicting and Punishing of all offences within this Act committed within London and the Liberries thereof which any Iustice of Peace hath by this Act in any County of England and shall be subject to the same Penalties and Punishments for not doing that which by this Act is directed to be done by any Iustice of Peace in any County of England Provided and be it Enacted by the Authority aforesaid That if the person offending and Convicted as aforesaid be a Feme-Covert cohabiting with her Husband the Penalties of Five shillings and Ten shillings so as aforesaid incurred shall be levied by Warrant as aforesaid upon the Goods and
and Insurrections should be punished which is not nor could be the intent of the Statute for in my Apprehension the Statute meant to punish all those that should meet together under pretence of Exercise of Religion though none were actually Exercised for that it is the same or a worse mischief than if there were any Exercise of Religion 7. In other manner than according to the Liturgy and Practice of the Church of England c. What the Liturgy and Practice of the Church of England is appears by the Act of Uniformity of 13 14 Car. 2. cap. 4. which is commonly printed before the Service Book or Book of Common-Prayer so where there is any Exercise of Religion in Publick that is where five or more be met together besides those of the same Houshold there if the Prayers in the Service Book be not used and directions of that Book observed that is an Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England But it may be Objected that the Service Book hath appointed the Form of Publick Prayers and Administration of the Sacraments c. But hath not appointed any Order to be observed in Preaching and therefore Preaching in a Conventicle cannot be said to be in other manner than according to the Liturgy and Practice of the Church of England there being no manner appointed by the Liturgy for Preaching To To this it is answered that by the 22d Paragraph or Section of the Act of Uniformity it is Enacted That at all and every time and times when any Sermon or Leaure is to he Preached the Common Prayers and Service in and by the said Book viz. the Book of Common-Prayer appointed to be read for that time of the day shall be openly publickly and solemnly read by some Priest or Deacon in the Church Chapel or place of publick Worship where the said Sermon or Lecture is to be Preached before such Sermon or Lecture be Preached and that the Lecturer then to Preach shall be present at the reading thereof So that Preaching in a Conventicle where the Common Prayers appointed to be read for the time of the day are not first solemnly read is an Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England and an Offence against this Statute 8. In any place within the Kingdom of England c. These words are plain and therefore if there be an Assembly or Meeting in a Church by five Persons or more under pretence of any Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England the same is a Conventicle within this Act where any one or more present who is of the Age of 16 or upwards and a Subject of this Realm ought to be Convicted But this is not to be understood of Foreigners and Aliens of the Foreign Reformed Churches allowed or to be allowed by His Majesty his Heirs or Successours in England for the Act of Uniformity which this was made to strengthen doth not extend to them as by the Proviso in the 15th Paragraph of that Act appeareth and which Prerogative of allowance to such Foreigners or Aliens Churches is saved to His Majesty by the last Paragraph in this Act. 9. 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 or more are so Assembled as aforesaid then c. Now are we come to a complete definition of a Conventicle within this Act which is where five or more where there is no Houshold are met together under Colour or pretence of any Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England wherein these things are to be observed 1. That the Person or Persons that are to be punished by this Law for being present at a Conventicle must be of the Age of 16 or upwards and a Subject of this Realm 2. That though the Person to be punished must have these Qualifications yet Aliens or Minors if they are of discretion may make up the number of five to make it a Conventicle within this Law as for Example suppose five are met together in a House besides the Houshold under Colour and pretence of Exercise of Religion in other manner than according to the Liturgy c. and four of those are Aliens and the fifth a Subject of the Age of 16 this is nevertheless a Conventicle though four of the five cannot be punished as being Aliens yet the fifth being a Subject shall be Convicted and punished by this Law for being present at such Conventicle for the Law describes him that is to be Convicted to be of the Age of 16 or upwards and a Subject of this Realm but the Conventicle at which he was present and for which he is Convicted is only to be a Meeting together or an Assembly of five or more Persons whether Aliens or Subjects is all one 3. That where there is a Meeting in a House of five Persons or above besides those of the Houshold and so a Conventicle there those of the same Houshold if present at the Conventicle being of the Age of 16 and Subjects of this Realm may and ought to be Convicted for being at the Conventicle as well as any others I think by the word Houshold both Lodgers and Inmates are included so that there must be five over and above the Houshold and the Lodgers and Inmates as part of the Houshold 4. The Preacher or Teacher in such Conventicles though an Alien or not of the Age of 16 ought to be Convicted See the third Paragraph of this Act. 5. If a Subject of the Age of 16 or upwards be present at the Church or Assembly of Foreigners or Aliens of the Foreign Reformed Churches allowed by His Majesty he is not to be Convicted for being at a Conventicle for seeing the Assembly it self is Lawfull he that is present at it cannot be said to have committed an Offence within this Act. 10. 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 Limit Division Corporation or Liberty wherein the Offence aforesaid shall be committed or for the chief Magistrate of the Place where the Offence aforesaid shall be committed and he and they are hereby required c. By this Clause are the Magistrates described that have Authority and ought to Convict Offenders for being at Conventicles which are one or more Justices of the Peace of the County that is where there are Justices of the Peace of the whole County as there are in most Counties in England
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
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