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
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
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
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