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A62224 Observations upon the statute of 22 Car. II. cap. I. entituled, An act to prevent and suppress seditious conventicles by Sir Edmund Saunders, Kt. ... Saunders, Edmund, Sir, d. 1683. 1685 (1685) Wing S742; ESTC R9546 42,853 166

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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
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