said Appeal to be null and void Provided alwaies That every such Appeal shall be left with the person or persons so convicting as aforesaid at the time of the making thereof And be it farther Enacted by the Authority aforesaid That the Iustice Iustices of the Peace and chief Magistrate respectively or the respective Constables Headboroughs and Tything-men by Warrant from the said Iustice Iustices or chief Magistrare respectively shall and may with what aid force and assistance they shall think fit for the better Execution of this Act after refusal or denial to enter break open and enter into any house or other place where they shall be informed any such Conventicle as aforesaid is or shall be held as well within Liberries as without and take into their Custody the persons there unlawfully assembled to the intent they may be proceeded against according to this Act And that the Lieutenants or Deputy-Lieutenants or any Commissionated Officer of the Militia or other of his Majesties Forces with such Troops or Companies of Horse and Foot And also the Sheriffs and other Magistrates and Ministers of Iustice or any of them jointly or severally within any the Counties or places within this Kingdom of England Dominion of Wales or Town of Berwick upon Tweed with such other assistance as they shall think meet or can get in readiness with the soonest on Certificate made to them respectively under the Hand and Seal of any one Iustice of the Peace or chief Magistrate of his particular Information or Knowledge of such unlawfull Meeting or Conventicle held or to be held in their respective Counties or Places And that he with such Assistance as he can get together is not able to suppress and dissolve the same shall and may and are hereby required and enjoyned to repair unto the place where they are so held or to be held and by the best means they can to dissolve dissipate or prevent all such unlawfull Meetings and take into their Custsdy such and so many of the said persons so unlawfully Assembled as they shall think fit to the intent they may be proceeded against according to this Act. Provided always That no Dwelling-house of any Peer of this Realm where he or his Wife shall be then resident shall be searched by virtue of this Act but by immediate Warrant from His Majesty under His Sign Manual or in the presence of the Lieutenant or one Deputy-Lieutenant or two Iustices of the Peace whereof one to be of the Quorum of the same County or Riding And be it farther Enacted by the Authority aforesaid That if any Constable Head-borough Tything-man Church-warden or Overseer of the Poor who shall know or be credibly informed of any such Meetings or Conventicles held within his Precincts Parish or Limits and shall not give Information thereof to some Iustice of the Peace or the chief Magistrate and endeavour the Conviction of the Parties according to his Duty but such Constable Head-borough Tything-man Church-warden Overseers of the Poor or any person lawfully called in and of the Constable Head-borough or Tything-man shall willfully and wittingly omit the performance of his Duty in the Execution of this Act and he thereof Convicted in manner aforesaid he shall forfeit for every such Offence the sum of five pounds to de levied upon his Goods and Chattels and disposed in manner aforesaid And that if any Iustice of the Peace or chief Magistrate shall wilfully and wittingly omit the performance of his Duty in the Execution of this Act he shall forfeit the sum of One hundred pounds the one moiety to the use of his Majesty the other moiety to the use of the Informer to be recovered by Action Suit Bill or Plaint in any of His Majesties Courts at Westminster wherein no Essoin Protection or Wager of Law shall lie And be it farther Enacted by the Authority aforesaid That if any person be at any time Sued for putting in Execution any of the Powers contained in this Act otherwise than upon Appeal allowed by this Act such person shall and may plead the General Issue and give the special matter in Evidente and if the Plaintiff be Non-suit or a Verdict pass for the Defendant or if the Plaintiff discontinue his Action or if upon Demurrer Iudgment be given for the Defendant every such Defendant shall have his full treble Costs And be it farther Enacted by the Authority aforesaid That this Act and all Clauses therein contained shall be construed most largely and beneficially for the suppressing of Conventicles and for the Iustification and Encouragement of all persons to be imployed in the Execution thereof And that no Record Warrant or Mittimus to be made by virtue of this Act or any Proceedings thereupon shall be Reversed Avoided or any way Impeached by reason of any Default in form And in case any person offending against this Act shall be an Inhabitant in any other County or Corporation or flie into any other County or Corporation after the Offence committed the Iustice of the Peace or chief Magistrate before whom he shall be convicted as aforesaid shall certifie the same under his hand and seal to any Iustice of Peace or chief Magistrate of such other County or Corporation wherein the said person or persons are Inhabitants or are fled into whith said Iustice or chief Magistrate respectively is hereby Authorized and Required to levy the Penalty or Penalties in this Act mentioned upon the Goods and Chattels of such person or persons as sully as the said other Iustice of Peace might have done in case he or they had been Inhabitants in the place where the Offence was committed Provided also That no person shall be punished for any Offence against this Act unless such Offender be prosecuted for the same within Three months after the offence committed And that no person who shall be punished for any offence by virtue of this Act shall be punished for the same offence by virtue of any other Act or Law whatsoever Provided and be it farther Enacted by the Authority aforesaid That every Alderman of London for the time being within the City of London and the Liverties thereof shall have and they and every of them are hereby Impowered and Required to Execute the same Power and Authority within London and the Liberries thereof for the Examining Convicting and Punishing of all offences within this Act committed within London and the Liberries thereof which any Iustice of Peace hath by this Act in any County of England and shall be subject to the same Penalties and Punishments for not doing that which by this Act is directed to be done by any Iustice of Peace in any County of England Provided and be it Enacted by the Authority aforesaid That if the person offending and Convicted as aforesaid be a Feme-Covert cohabiting with her Husband the Penalties of Five shillings and Ten shillings so as aforesaid incurred shall be levied by Warrant as aforesaid upon the Goods and
and Insurrections should be punished which is not nor could be the intent of the Statute for in my Apprehension the Statute meant to punish all those that should meet together under pretence of Exercise of Religion though none were actually Exercised for that it is the same or a worse mischief than if there were any Exercise of Religion 7. In other manner than according to the Liturgy and Practice of the Church of England c. What the Liturgy and Practice of the Church of England is appears by the Act of Uniformity of 13 14 Car. 2. cap. 4. which is commonly printed before the Service Book or Book of Common-Prayer so where there is any Exercise of Religion in Publick that is where five or more be met together besides those of the same Houshold there if the Prayers in the Service Book be not used and directions of that Book observed that is an Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England But it may be Objected that the Service Book hath appointed the Form of Publick Prayers and Administration of the Sacraments c. But hath not appointed any Order to be observed in Preaching and therefore Preaching in a Conventicle cannot be said to be in other manner than according to the Liturgy and Practice of the Church of England there being no manner appointed by the Liturgy for Preaching To To this it is answered that by the 22d Paragraph or Section of the Act of Uniformity it is Enacted That at all and every time and times when any Sermon or Leaure is to he Preached the Common Prayers and Service in and by the said Book viz. the Book of Common-Prayer appointed to be read for that time of the day shall be openly publickly and solemnly read by some Priest or Deacon in the Church Chapel or place of publick Worship where the said Sermon or Lecture is to be Preached before such Sermon or Lecture be Preached and that the Lecturer then to Preach shall be present at the reading thereof So that Preaching in a Conventicle where the Common Prayers appointed to be read for the time of the day are not first solemnly read is an Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England and an Offence against this Statute 8. In any place within the Kingdom of England c. These words are plain and therefore if there be an Assembly or Meeting in a Church by five Persons or more under pretence of any Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England the same is a Conventicle within this Act where any one or more present who is of the Age of 16 or upwards and a Subject of this Realm ought to be Convicted But this is not to be understood of Foreigners and Aliens of the Foreign Reformed Churches allowed or to be allowed by His Majesty his Heirs or Successours in England for the Act of Uniformity which this was made to strengthen doth not extend to them as by the Proviso in the 15th Paragraph of that Act appeareth and which Prerogative of allowance to such Foreigners or Aliens Churches is saved to His Majesty by the last Paragraph in this Act. 9. At which Conventicle Meeting or Assembly there shall be five Persons or more Assembled together over and besides those of the same Houshold if it be in a House where there is a Family Inhabiting or if it be in a House Field or Place where there is no Family Inhabiting then where any five or more are so Assembled as aforesaid then c. Now are we come to a complete definition of a Conventicle within this Act which is where five or more where there is no Houshold are met together under Colour or pretence of any Exercise of Religion in other manner than according to the Liturgy and Practice of the Church of England wherein these things are to be observed 1. That the Person or Persons that are to be punished by this Law for being present at a Conventicle must be of the Age of 16 or upwards and a Subject of this Realm 2. That though the Person to be punished must have these Qualifications yet Aliens or Minors if they are of discretion may make up the number of five to make it a Conventicle within this Law as for Example suppose five are met together in a House besides the Houshold under Colour and pretence of Exercise of Religion in other manner than according to the Liturgy c. and four of those are Aliens and the fifth a Subject of the Age of 16 this is nevertheless a Conventicle though four of the five cannot be punished as being Aliens yet the fifth being a Subject shall be Convicted and punished by this Law for being present at such Conventicle for the Law describes him that is to be Convicted to be of the Age of 16 or upwards and a Subject of this Realm but the Conventicle at which he was present and for which he is Convicted is only to be a Meeting together or an Assembly of five or more Persons whether Aliens or Subjects is all one 3. That where there is a Meeting in a House of five Persons or above besides those of the Houshold and so a Conventicle there those of the same Houshold if present at the Conventicle being of the Age of 16 and Subjects of this Realm may and ought to be Convicted for being at the Conventicle as well as any others I think by the word Houshold both Lodgers and Inmates are included so that there must be five over and above the Houshold and the Lodgers and Inmates as part of the Houshold 4. The Preacher or Teacher in such Conventicles though an Alien or not of the Age of 16 ought to be Convicted See the third Paragraph of this Act. 5. If a Subject of the Age of 16 or upwards be present at the Church or Assembly of Foreigners or Aliens of the Foreign Reformed Churches allowed by His Majesty he is not to be Convicted for being at a Conventicle for seeing the Assembly it self is Lawfull he that is present at it cannot be said to have committed an Offence within this Act. 10. Then where any five Persons or more are so Assembled as aforesaid it shall and may be Lawfull to and for any one or more Iustices of the Peace of the County Limit Division Corporation or Liberty wherein the Offence aforesaid shall be committed or for the chief Magistrate of the Place where the Offence aforesaid shall be committed and he and they are hereby required c. By this Clause are the Magistrates described that have Authority and ought to Convict Offenders for being at Conventicles which are one or more Justices of the Peace of the County that is where there are Justices of the Peace of the whole County as there are in most Counties in England
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