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
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
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
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
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
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
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
to be likewise where the Offender is Personally Convented at the time of his Conviction and objects not his Nonage to prevent his Conviction But if one be Convicted as an Offender when absent from which Conviction no Appeal is given by this Act as where the Penalty is only 5 s. or 10 s. There it may be the Conviction will be utterly void and the Offender may maintain an action of Trespass against the Officer that Levies the Penalty of 5 s. or 10 s. upon his Goods for that he hath no other Remedy to help himself And therefore if the Offender be present when Convicted it will be the safest way to mention it in the Record 4. Being a Subject of this Realm c. The word being relates to the time of the Offence to be committed and not to the time of passing the Act for if an Alien at the time of the Act passed were afterwards Naturalized and afterwards be present at a Conventicle he is within the word Being a Subject c. Though he were not a Subject of this Realm at the time of the Act passed It is next to be considered who shall be said to be or rather not to be a Subject of this Realm within the meaning of the Act for all men within the Realm are Subjects to the King either 1. By Birth as born in England or any other of the King's Dominions 2. By Naturalization as where an Act of Parliament of England gives an Alien the same Privileges that a Subject born hath by reason of his Birth 3. By Denization by the King's Letters Patents whereby an Alien is made a free Denizen to purchase Lands and to hold them to him and his Heirs which an Alien cannot do or 4. By residing or being in England under the King's Protection as Aliens are which makes them Subjects to the King of England so long as they remain in any part of his Dominions but no longer But the word Subjects of this Realm in the Act intends a distinction that some Persons Inhabiting within the Realm should not be comprehended within the Law And therefore by these words all Natural Subjects born in any of the Kings Dominions All Persons that by Act of Parliament of England are Naturalized Subjects and all Persons Endenized by the King's Letters Patents under the great Seal of England are comprehended within the Law I mean are to undergo the Penalty of the Law for being present at a Conventicle But Aliens resident in England and those that are Naturalized or Endenized in Scotland or Ireland and not in England and so continue still as Aliens in England are not within this Law nor shall they be punished by it Now in this Case as well as in the Case of Infancy under the Age of 16 years the proof rests upon the Offender for every one in this Case shall be presumed to be a Natural Subject of this Realm unless the contrary be made appear And the Conviction will be of the same effect against an Alien as it is above declared to be against an Infant only this I conceive fit to add that if an Infant under 16 or an Alien having been present at a Conventicle be summoned to appear before the Justice of Peace or chief Magistrate to shew Cause why he should not be Convicted for such offence and refuseth or neglecteth to appear and make his defence and thereupon he is Convicted I take such Conviction to be binding and the Infant or Alien shall never avoid it and the rather by reason of the first part of the 13th Paragraph of this Act. 5. Shall be present at any Assembly Conventicle or Meeting c. Yet every one that is present though a Subject of the Realm above the Age of 16 shall not be punished as an Offender within this Law For 1. One that is an Idiot or a Lunatick unless it be during some lucid interval wherein he enjoys the use of his reason so far as to be supposed knowing of what he does though present at a Conventicle yet cannot be said to be present under colour or pretence of Exercise of Religion 2. One that is Imprison'd and kept at a Conventicle against his Will For Actus non facit reum nisi mens sit rea the like may be said of him that is under a Terrour of Bodily harm by reason of Threats or Menaces of others which he could not otherwise avoid but by being present but if a Servant by Command of his Master or a Wife by Command of her Husband be present this will not excuse them because they might without the Guilt of Disobedience have refused to obey such Command what if the Husband enforce his Wife co-habiting with him to be present at a Conventicle against her Will whether is she to be Convicted or not In this particular Case I conceive she is for by the 16th Paragraph of this Act the Penalties of 5 s. and 10 s. are to be Levied upon the Goods of the Husband And so the Wifes being present at a Conventicle is within the Letter and the punishment of the Husband is within the meaning of the Act. If one be present at a Conventicle to the end to detect and discover the Conventicle and to give Evidence against the Offenders in order to their Conviction he is not an Offender within this Law but he that is present at a Conventicle out of Curiosity to observe what they say or do he is an Offender against this Law and ought to be Convicted as well as any other 6. Vnder Colour or pretence of any Exercise of Religion c. The Preamble of this Statute saith That Seditious Sectaries and other Disloyal Persons under pretence of tender Can sciences at their Meetings contrive Insurrections And those Meetings were and are commonly under Colour or pretence of Exercise of Religion Now if there be a Meeting of Sectaries of the number of 5 or upwards above the Houshold or of five or upwards where there is no Houshold but before they proceed to any pretended Exercise of Religion they are disturbed and suppressed the Question is whether these or any of them may be Convicted for being present at a Conventicle under Colour or Pretence of any Exercise of Religion seeing none was there Exercised This is a Question that may and I suppose doth often happen and I take it somewhat clear that in such Case they may and ought to be Convicted For the chief end and design of that Statute was to prevent Sedition and Insurrections and as a means to obtain that end this Law is made to suppress Conventicies where as the Statute takes notice Sedition and Insurrections were contrived Now if they should not be Convicted though there was no actual Exercise of Religion then their Plotting Sedition and contriving Insurrections being the greater Evil should escape Correction whilst a pretended Exercise of Religion being the lesser Evil as being but in order to the greater Evil of Sedition
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
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
monies levied and the Appeal must be to the Sessions for such place and not to the Quarter Sessions for the County at large and so was it ruled in the case of the Town of Southmolton in Devon to the Mayor of which place the Court of Kings-Bench Mic. 35. Car. 2. granted a mandamus for the receiving an Appeal from a Conviction of a Conventicle held in that Town made by the chief Magistrate of that Corporation 2. To whom the Iustice or Iustices c. that first Convicted such Offender shall return the money levied upon the Appealant c. Though the words are only the Money levied upon the Appealant yet the Money paid by the Appealant is to be returned by the intent of the Law and here is a necessary Caution to be observed by the Justice Convicting that where any Penalty of above 10 s. is levied upon or paid by one Offender he do not proceed to make distribution of the Penalty so levied or paid till one full week be past after the levying or payment of it for the Offender hath that time to Appeal in and if he doth Appeal within that time the Justice is to return the whole Monies to the Sessions and if the Offender upon his Appeal be acquitted by the Sessions he is to be restored to all his Money The Justice upon his Appeal is to certify the Record of the Conviction and the Evidence upon which the Conviction past under his Hand and Seal and also the Appeal made before him in writing that the Sessions may the better be enabled to proceed as the merits of the Cause shall appear before them 3. Whereupon such Offender may plead and make defence and have his Tryal by a Iury thereupon c. The Offender may plead that he is not Guilty of the Offence contained in the first Conviction which in this Case stands instead of an Indictment and thereupon Issue being joined for the King the Appellant may give in Evidence that it was not a Conventicle where he was present but a lawfull Assembly or that he was elsewhere and not present at such Conventicle as the Conviction supposeth or any other matter that is legal Evidence for his Acquittal and on the other side the Prosecutor for the King may produce and give in Evidence any new matter for the proving of the Appellant guilty of the Offence contained in the Conviction from which he hath so Appealed And I take it that though the Statute hath indulged the Offender to plead to the Fact and to have a Tryal by a Jury yet if the Appellant thinks fit he may by a Demurrer insist upon matter in Law at the Sessions for that the Conviction is insufficient in substance for want of Form is no exception by the 13th Clause of this Act as that it doth not appear that any Conventicle was holden or that it appeareth by the Record of the Conviction that it was a lawfull Assembly and not a Conventicle or that it doth not appear that the Appealant was present at any such Conventicle In those or the like Cases if the Appellant doth demurr to the Conviction and the Prosecutor for the King joins in demurrer the Court of Sessions ought to give Judgment either for or against the Appealant as the matter in Law doth appear before them But now let us see what other matters of Fact besides not Guilty the Appellant may plead at the Sessions and first I conceive he may plead the Kings Pardon after the Offence committed and before the Conviction for after the Conviction the Pardon comes too late save only for the King 's third part and if such pardon under the great Seal be shewed in Court as it must be if it be pleaded the Court if the Pardon appears to be sufficient in Law ought to discharge the Appealant of the Conviction and the Penalties imposed by such Conviction the Appealant may likewise plead Auterfoits Convict viz. that he was formerly Convicted of the same Offence and hath paid the Penalties or that the same have been levied upon his Goods and so ought not to be twice charged for the same Offence and this is a good Plea to discharge him but if the Penalties upon the other Conviction be not paid or levied then such Plea of Auterfoits Convict ought not to be allowed for perhaps the former Conviction might be past by some contrivance of the Offender or his Agents that the Penalties should not be levied and so by a mean the Offender might escape unpunished if the Plea of Auterfoits Convict should be allowed without the Penalties being levied or paid On the other hand it can be no mischief to the Appellant for though he stands twice Convicted for the same Offence yet the first payment of the Penalties dischargeth him of both Convictions for if the Penalties should be again levied upon him he hath liberty in a week after to Appeal and upon shewing his Case by Plea at the Sessions ought to be relieved and restored to his Money so levied the second time And in Case such Appellant shall not prosecute with effect c. If at the next Quarter Sessions the Appealant shall not appear and plead matter of Fact or Demurr in Law to the Record of the first Conviction this will be a Non-prosecution whereby treble Costs are to be given against him so that if he do not appear at the day given him from time to time till the Appeal be determined but if he appears and upon motion the Court of Session for some Cause seeming reasonable to them do grant farther time to the Appealant for drawing of his Plea or if after Plea pleaded they grant him farther time than ordinary for Tryal in such case this is no default in the Appealant and therefore no Costs to be awarded against him so if the Court do take time to consider of the matter in Law this is not a Failer of Prosecution of the Appealant whereby to subject him to the payment of any Costs and in all cases of Non-prosecution there must be a Record of it made by the Sessions Or if upon such Tryal he shall not be Acquitted c. It is not said if upon Tryal the first Conviction shall be affirmed or found true but if the Appealant shall not be acquitted suppose the Appealant be Convicted of being present at a Conventicle and 5 s. Penalty imposed upon him and in regard of the Poverty of the Teacher 10 l. more is imposed upon him which being levied he Appeals and pleads that the Teacher was able to pay himself and therefore the Appealant ought not to have been charged with the 10 l. In this Case I conceive such Plea is insufficient and though it were found so by verdict at the Sessions yet the Appealant is not acquitted of the Offence which 〈◊〉 of being present at the Conventicle nor is the Teacher found Innocent and therefore the Appealant cannot be relieved but ought to pay treble
to enter is not only intended of an Actual or express denial or refusal to open the doors but also of a refusal or denial in Law as where the Officers require the Doors to be opened and the Conventiclers make no answer whether they will or will not open the Doors or if they answer that they will open the Doors but notwithstanding they do not open the doors this is a refusal and denial in Law as strong as if they had expresly refused or denied to open the doors and thereupon the Officers may break open the doors and seize the Offenders of mean Conventiclers and secure them in Custody untill the Officers can conveniently bring them before a Justice of Peace to be Convicted and then the Offenders are to be discharged out of Custody But what if any Offender in such Case being brought before a Justice of Peace to be Convicted shall refuse to discover his Name and Place of Habitation whereby the Justice cannot proceed to a Conviction of him In such Case the Justice may commit him to the common Gaol for his Contempt and by the Mittimus shewing the Cause of such Commitment the Offender will be held untill he doth discover his Name and Habitation for it is impossible he can be Bailed for though an Offender may be committed without a Name yet his Name must be known before he can be Bailed and then the Justice may proceed to Convict him of the Offence for being or Preaching at the Conventicle as the Case falls out though it be after the end of three months for that the first was prosecuted within the three months Now it is to be considered what is to be done supposing there be a Conventicle held and the doors are open or upon demand made by the Officers the doors are immediately opened and they are permitted to enter freely whether then the Officers may take any of the Offenders into Custody or not And I take it that if the Conventiclers do make known their Names and places of Habitation and do depart peaceably when commanded by the Officer they may not be taken into Custody because in such Case they may be Convicted without being taken into Custody But if the Offenders do refuse to make known their Names then such of them as do so refuse may be taken into Custody and if at Command of the Officers the Conventiclers refuse to depart or do not depart and disperse themselves peaceably they may be taken into Custody likewise and this seems clear by the latter part of this Paragraph And that the Lieutenant or Deputy-Lieutenants c. Here the Military Power as well as the Civil Power is to be assisting for the dissolving dissipating and preventing of Conventicles but the Lieutenants or Deputy-Lieutenants c. are not to intermeddle before they have first received a Certificate under the Hand and Seal of a Justice of Peace or chief Magistrate of his particular information or knowledge of any unlawfull Meeting or Conventicle held or to be held and that he with such Assistance is not able to suppress and dissolve the same This Certificate may be made sometime before the Conventicle held as well as at the time and though it cannot be so well known before hand whether the Justice or chief Magistrate with such Assistance c. be able to suppress the Conventicle or not yet if the Justice hath reason or any probable ground to believe that he shall not be able to suppress the Conventicle whereof he hath notice he may make his Certificate that the Military Power may be ready for if a Certificate should not be made till the very time of the Conventicle held it would perhaps be too late for the suppressing of them and the words of the Act are To prevent such unlawfull Meetings as well as to dissolve and disperse them And note that if there be such a Conventicle as cannot be suppressed by the Iustice himself with such Assistance as he can get but there is need of Military Power or some other greater power to be raised by the Sheriff or other Officer in such case the Conventiclers or so many of them as the Officers suppressing of them shall think fit Peers of the Realm only excepted may be taken into Custody and kept in Custody for such convenient time till they shall be Convicted by the Iustice or chief Magistrate But suppose the Iustice that would suppress the Conventicle be himself a Deputy-Lieutenant and he as a Iustice is not able to suppress the Conventicle I conceive in such Case he may make use of his Military Power and get such Troops or Companies of Horse and Foot as he shall think meet and can get in readiness with the soonest by this Law any Justice of the Peace Constable or other Officer going in Execution of this Act to suppress and disperse such unlawfull Assembly they may call or command any Person whatsoever into their Aid or Assistance and in Case of refusal they are punishable as by the 11th Section see hereafter And did not this Law expresly enable them to do it they might do it by the general Authority of their Offices in this Case as they may for the suppressing of Affrays Riots Routs and other unlawfull Assemblies And take into their custody such persons so assembled as they shall think fit Some are of opinion and it hath been so resolved that by force of these words they may imprison any of them for any convenient time in order to examination not only of their own names and places of Abode but of the Teacher or the like and that the Military Power they may use in taking and detaining of such persons till examined of such things as may be needfull for the making a Conviction of such Meeting or Assembly and this they ground upon the words as they shall think fit Sed quaere for the Lord Saunders his opinion afore Pag. 76. seems more consonant to the letter of this Clause viz. that their Commitment is to be only till make known their own names and places of Abode that they may be proceeded against c. Provided alwaies that no dwelling House of any Peer of this Realm c. This seems not to extend to the dwelling House of any Dutchess Countess Baroness or other Noblewoman but they may be searched by virtue of this Act notwithstanding this Clause as by the reading of it appears plain it being said to be such House where he or his Wife shall be Resident this must be meant actually Resident and therefore extends not to any House which a Peer hath leased to another nor to any Mansion House uninhabited or wherein he hath only Servants and doth not Personally reside in for suppose a Peer have several Houses to which he repairs at several Seasons of the year and hath Servants in all and a Meeting prohibited by this Law doth happen to be held in such of his said Houses where at that time he nor his
Wife is resident such House may be searched by virtue of this Act and broken open too for the dispersing such Meetings for the words are shall he resident at such time If a Conventicle be held in any Barn Stable or other like of a Peer's not being parcel of his dwelling House such place may be searched though the same be in the possession of a Peer And notwithstanding this Clause a Conviction may be made of such a Meeting that has been held in the dwelling House of a Peer though he be resident in it and such Peer incurrs the Penalty of this Act as Owner of the House permitting the same See above on the 4th Section Except in the presence of c. Such dwelling House feems not searchable by any Corporation Justice he not being named in this exception but a Lieutenant or Deputy Lieutenant of such County may search such a House upon the Information of a Justice of the Peace though he be no Justice himself nor of the same Riding SECT 11. BE it farther Enacted that if any Constable c. This Clause extends to his not executing any Warrant for levying the Penalties of this Act by distress as well as to his not informing some Justice of a Conventicle whereof he knows so if he inform not some Justice thereof when he conveniently may till the Meeting be over and so they could not be suppressed nor the Persons so well known in order to the making of a Conviction If a Constable c. keep or suffer a Conventicle in his House he forfeits the Penalty of 20 l. for so doing and 5 l. for not informing a Justice thereof the like if he be present at any Meeting and not in order to detect it he may be punished for being so present and sued for the 5 l. also for they are several Offences Credibly informed c. such Information as another gives him of his sight of sundry Persons going to an House suspected or generally used for such purposes at such times as usual c. is sufficient information to oblige the Constable to acquaint the Justice for a less information here will serve him than a Justice of the Peace for to make a Conviction the Justice is to have it upon Oath c. the Constable c. is not Judge of the truth of the Fact he is only a Ministerial Officer or Servant in this Case A Constable or Tything Man or the like that gives notice of his Warrant or of a Justices coming to suppress such Meeting is undoubtedly Guilty of this Offence and besides liable to be Indicted at common Law for any such misfeazance or neglect it being contrary to his Oath and Office by the Authority of this Act 't is become the Duty of his Office to which he is sworn any breach whereof is Indictable at common Law and punishable by Fine and Imprisonment and this may be too often necessary in the last Case I mean especially the 5 l. penalty seeming too small for an Offence of such a Nature but note then he cannot or ought not to be punished both ways for 't is but one Offence though when prosecuted as on this Law the Fine is certain as at common Law 't is undetermined If a Constable uses not all Lawfull means to prevent suppress and get Convicted such Meetings as if he breaks not open a door after request to have it opened in execution of a Warrant to levy the penalty by virtue of this Act he is an Offender by this Clause Every Person whatsoever refusing or neglecting to give his Aid being called thereto in execution of this Act forfeits 5 l. especially if such whom the Justice or Constable shall call in do by private notices or otherwise forewarn those Assembled to withdraw for to prevent their being known and by consequence their being Convicted If any Iustice of the Peace or chief Magistrate shall wittingly or wilfully omit the performance of his Duty in the execution of this Act he shall forfeit 100 l. c. This Clause is general omit the performance of his Duty which is by all lawfull ways to get Information and notice of all such Meetings open or clandestine that are held within his Limit Precinct or Jurisdiction every thing which is prohibited by the Law a Justice is bound as a good Officer not only to punish it when discovered but by all convenient means to inform himself if such Offences are committed and such Offences the more secret the more dangerous and therefore every Officers Duty is to detect them to be ready to receive Informations to grant Warrants to Constables to go in Person and endeavour to disperse them when met or prevent their Meeting to imprison those that oppose or resist them to break open Doors if shut against them to secure such Offenders till know their Names and Places of abode in order to make Convictions and of such Convictions to make Records to grant Warrants on them for distresses such Records to certify to the next Sessions and in short to do every thing which this Act Authorizes and requires them to do and in the best and most convenient way that may be for the Attainment of the end of this Law which was the suppression and prevention of Seditious Conventicles a wilfull neglect of any thing this Act impowers such Justice of the Peace to do in order to that end is an Offence within this Clause and incurrs the Penalty of 100 l. Iustice of Peace or thief Magistrate c. It must be intended for or in Relation to Offences committed within their Respective Jurisdictions for this Clause punishes nothing but the omission of what they were impowered or inabled to do by the foregoing part of this Law viz. to a Corporation Justice for what happens within the Corporation c. sic respective although it be here said any Justice or chief Magistrate yet any Justice of the Peace in any Liberty City or Corporation is within this Clause as well as the chief Magistrate of such Liberty City or Corporation for such Justices are bound by the former Clauses to disperse such Meetings and make Conviction of them and by consequence they are here intended Wittingly or wilfully omit for the satisfying of those words either his own knowledge or information is sufficient I do not mean of the Law in the Case for he is bound to take notice of this and all other Acts relating to his Office and a pretence that he knew not he had power or that 't was his Duty will be no excuse but his own knowledge or information of the Fact for if a Justice do not suppress a Conventicle nor make a Conviction thereof he is no Offender provided he have no notice of it but yet if a Justice know a Conventicle to be held in the next House and he do not his Duty he is punishable by this Clause though no Informer came and gave him notice of it If any one
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
and that within a week after the Penalty paid or levied I answer that will be known by the Warrant of the Foreign Justice upon which the levy is made for his Warrant either mentions a Conviction by himself or by another Justice of another County or Corporation which will inform him but he must take this Note with him always that his Appeal must be delivered in Person for he himself is to enter into a Recognizance to Prosecute it and this is to be done at the same time before the Justice Convicting the rest of this Pargraph is plain enough SECT 14. PRovided also that no Person shall be punished for any Offence against this Act unless c. Prosecuted within three months 't is not necessary that the Penalties be actually levied within three months nor that a Conviction be made of Record but to fulfill the sense of this Clause I think it sufficient if Information be given to some Justice of a Conventicle already held in order to the making a Conviction of it this being within three months is enough for such Information being in order to a Conviction is a Prosecution within the meaning of this Clause it is not said Convicted but Prosecuted and such Information is a commencement of the Suit this is the primum movens towards a Conviction after the Offence committed as in civil Actions which are limited to be brought within such a time the beginning of a Suit is the suing an Original or other first Writ as Latitat c. If within the time limited is well enough though the Suit be not effectually Prosecuted though there be no Judgment in a long while after so in Capital Criminal Causes which must be Prosecuted within a certain time by the order of any particular Law if an Indictment be found within the certain time if the first Act of the Suit be begun 't is enough though the Party be not Convicted within twice the time so here the same rule will govern no Person shall this extends to an offending Justice or Constable as well as to the Conventicles yet if such Justice Constable or other Officer neglects his Duty against the Tenour of this Act be Indicted or otherwise sued within three Months after such neglect or refusal to doe their Duty it is a sufficient Prosecution within the three months although not Convicted within that time as I said before and that no Person who is punished by this Statute shall be punished for the same Offence by any other Law For the same Offence notwithstanding this a Conventicler may be punished for his absence from Church because such Meeting and his absence are several Offences Shall be punished this doth not hinder but that such Offender may be Prosecuted and punished as at the common Law for any thing prohibited by this Statute which is an Offence at the common Law I say he may be Prosecuted as at common Law if he hath been actually punished for the very same Offence by virtue of this Law but if he hath been once punished by this Law if sued as at common Law or on another Statute he may plead his Conviction and punishment on this thereto but this he cannot do till the Penalty be either levied or paid for till then he is not punished however as I said any Offender within this Law may be sued as at common Law as a Conventicler may for a Riot Rout or unlawfull Assembly and punished for it by Fine or Imprisonment but he shall not be punished both ways and that 's the sole meaning of this Paragraph viz. That such Person should not be double punished for one and the same Offence but yet again if any Preacher Teacher or other Person should at such Meeting speak Seditious or Treasonable words resist the Magistrate coming to disperse them or give opprobrious Language to the Justice or other Officer in the Execution of this Act he may be Indicted and punished for any such Offence and by this Act too SECT 15. PRovided also that every Alderman of London c. Had this Clause not been added it would be no great Question but that they were included in the meaning of this Act for they are the chief Magistrates and Justices of the Place this Proviso therefore seems added for perspicuity and prevention of all scruple and for to empower such of the Aldermen under the Chair as are not Justices of the Peace for it will not be doubted but the Aldermen of Exeter and Bristol and other such like Cities and Counties as are Justices of the Peace are bound by this Act to prevent disperse and suppress such Meetings otherwise the Act would be of least force where 't is most needfull viz. in those Populous Cities where the most idle People likeliest to be seduced whereas in other Counties the common People are generally employed in hard labour either about Husbandry or other painfull Callings and by consequence not so liable to seduction Provided that if the Person Offending and Convicted be a Feme-Covert co-habiting c. In this case Co-habitation as a Wife is a sufficient Evidence her being so and the Justice need look no farther for the Husband 's Goods and Chattels are liable Co-habiting i. e. for the most part or generally for though she be in Countrey House about this Town and her Husband in London yet his Goods will be liable if it had been otherwise 't would have said then Co-habiting or then Personally residing so if the Husband be upon any Occasion from home for Co-habitation here is used only in opposition to a separate living by sentence of Spiritual Court or by agreement of themselves not being apart now and then or at certain Seasons of the year or on an occasional Journey for in all such Cases the Husband is still supposed to have the Command over his Wife so far as to restrain her from breaking this Law and in case she offends 't is to be supposed by his consent or connivance and therefore this Law lays the Punishment upon his shoulders SECT 16. PRovided also that no Peer of this Realm shall be Attached or Imprisoned by force of this Act c. Peer here seems to include all such as by Law are Privileged from Personal Arrests in Civil Actions Attached or Imprisoned is in their Bodies for their Goods may be distrained upon a Conviction for such a Meeting as well as any Commoners this is merely designed to privilege their Persons from all trouble who are Consanguinei Comites Regis and always intended to be busied in arduis negotiis regni in the Service of his most Sacred Majesty SECT 17. PRovided also that this Act nor any thing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical Affairs but that his Majesty his Heirs and Successours may from time to time and at all times hereafter exercise and enjoy all Powers and Authority in Ecclesiastical Affairs as fully and as amply as
any of his Predecessors have or might have done the same any thing in this Act notwithstanding This Clause is an ample affirmance of the King's Prerogative in Ecclesiastical Affairs notwithstanding this Act which I shall not presume here to discuss especially considering that it will no way be instructive for the better Execution of the Powers and Provisions of this Act which was the only end of our great Judge in making these Observations and is the end of their present publication and therefore I shall here conclude with this one Remark viz. That the time of making this Act is mistaken in the Print which may be of use to observe in case any Action be brought against any Justice of the Peace or other Person for the 100 l. Penalty for the neglect of his Duty 't is there said to be at a Parliament continued by Prorogation to the 14th of Febr. 1669 70 from whence it is continued by Adjournment made the 11th of April 1670. to the 24th day of October following which makes a kind of discontinuance for it says the Adjournment made the 11th of April from the 14th of Feb. before 't is safest therefore to omit the Adjournments and take no notice of them but only at a Parliament begun at Westminster the 8th of May An. Dom. 1661. in the 13th year of c. and there continued by several Prorogations to the 14th of Febr. 1669 70 and no more Midd ' MEmorandum Quod decimo die Novembris anno Regni Domini nostri Serenissimi Caroli Secundi Deigratia Angliae Scotiae Franciae Hiberniae Regis fidei defensoris c. tricesimo quinto venit J.S. de in Com' Midd ' Yeoman coram nobis ad tunc adhuc duobus Justiciar ' dicti Domini Regis ad pacem suam pro com' praed ' conservand ' assignat ' apud S. in com' praed ' Et dedit nobis intelligi informari de quodam Conventiculo illicit ' assemblation ' sub colore exeolendi Religionem in alio modo quam secund ' liturgiam usum Ecclesiae Anglicanoe ante tunc tempus tent ' contraformam statut ' Et super inde Examinatione debitâ adtunc ibid ' habitâ tam per Sacrament ' praed ' J.S. A.B. de c. C.D. de c. coram nobis in eâ parte legitimo modo praestit ' quam per notoriam Evidentiam facti nobis Justiciariis praed ' manifeste plene apparet quod M. N. de c. L. M. de c. cum multis aliis in toto se attingent ' ad numerum vigint ' personarum praeter familiam praed ' M. N. quilibet eorum die dominicâ viz. Primo die hujus instantis Novembris ultra aetatem sexdecim annor ' subdit ' dict' Domini Regis nunc existentes praedicto primo die hujus Novembris in simul assemblaverunt praesentes fuerunt quilibet eorum praesens fuit in domo mansionali ipsius M.N. in Parochia de in Com' praed ' ad Conventiculum sub pretextu Exercitationis Religionis in alio modo quam allocatur per Liturgiam aut usum Ecclesiae Anglicanae adtune ibid ' tent ' contra formam Statut ' ad praevenienda supprimenda seditiosa Conventicula nuper edit ' provis Ac etiam quod praed ' M. N. tempore loc◠ultime supradictis scienter voluntarie permisit Conventiculum praed ' fore tenend ' in domo mansionali sua praed ' etiam contra formam Statut ' praed ' quodque praed ' O. P. tempore loco ultime supradict ' assumpsit super se docere in Conventiculo praed ' in eodom adtunc ibid. docuit contra formam Statut ' praed Record ' quarum quidem separal ' offensar ' nos Justiciarii praed ' quibus secund ' formam effect ' Stat ' praed ' separales offens ' praed ' fic ut prefertur fore commiss sufficienter apparet per praesentes sub manibus sigillis nostris hocce instanti decimo die Novembris anno tricesimo quinto supradict ' apud S. praed ' in Com' praed ' fecimus praedictique M. N. L. M. O. P. c. de separalibus offensis suis praed ' superius mentionat ' virtute Statut ' praed ' sunt convicti quilibet eorum inde separaliter convictus est Et nos praefati Justiciarii superinde virtute Statut ' praed ' die anno loco ultime supradictis in super praed ' L. M. c. Sic ut praefertur ad Conventiculum praed ' praesent existent ' proseparalibus offensis suis finem separaliter imposuimus praedictúsque O. P. pro offens sua praed ' in docendo ad Conventiculum praed ' forisfecit summam vigint ' librar ' vigore Statut ' praed ' praedictique M. N. pro offens ejus praed ' in permissione Conventiculi praed ' fore-tenend ' in domo sua mansionali praed ' forisfecit summam vigint ' librar ' vigore ejusdem Statut ' In quorum omnium praemissorum testimonium Nos praefat ' Justiciarii die anno loco primo superius mentionat ' manus sigillum nostrum praesentibus apposuimus ERRATA PAg. 48. Lin. 24. r. imposed P. 54. l. 15. r. in respect of poverty P. 86. l. 24. for get r. take p. 87. l. 7. r. himself and readily to receive notice and information FINIS