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
the Poverty of the Offender in that Case I take it if it be within the three months the Justice at his Discretion may impose the Fine upon any other Offender that is then Convicted of the same Offence but if the three months are elapsed then I think he cannot though it is not clear See the 14th Paragraph of this Act. 4. Vpon the Goods and Chattels of any other Person or Persons who shall be then Convicted in manner aforesaid of the like Offence c. That is of being present at one and the same Conventicle For if A. and B. be both present at a Conventicle now it is the like Offence in both considering the Offence in it self Now though A. hath been formerly Convict and so he is to incur the Penalty of 10 s. and B. having not been formerly is to incur the Penalty of 5 s. only Now here the Penalty is different yet the Offence is the like and therefore in case of Poverty the Fine of 10 s. for the Offence of A. may be imposed on B. or the 5 s. for the Offence of B. may be imposed upon A. or upon any other Convicted of being present at the same Conventicle but I think the Preacher or Teacher in this Conventicle is not within the meaning of this Clause for that though he be present yet he is to be Convicted of a greater Offence for taking upon him to Preach or Teach in the Conventicle and not of the lesser Offence of being present at it 5. At the Discretion of the said Iustice c. Note this Discretion is bounded in these points 1. There must be Poverty of an Offender in the Case at least in the Judgment of the Justice or else there is no Room left for Discretion 2. The sum to be levyed on any one Offender in Case of the Poverty of others must not amount to above 10 l. upon occasion of any one Meeting or Conventicle These two Points being observed the Law hath lest it absolutely to the Choice and Discretion of the Justice upon what other of the Offenders at the same Conventicle except the Preacher or Teacher there to impose the Penalty he shall think fit wherein he may do well to have regard to the estate and forwardness to offend of such Person or Persons upon whom he shall impose the Penalty 6. And every Constable Headborough Tythingman Church-wardens and Overseers of the Poor respectively are hereby Authorized and required to levy the same accordingly having first received a Warrant c. The Warrant to levy the Penalties being under Hand and Seal of the Justice Convicting is in its Nature an Execution for the King and therefore the Officer upon demand made to have the Doors opened and declaring of his Warrant at the same time may break open the Doors to enter and make Execution of the Warrant by levying of the Goods of the Offender if upon such demand the Doors shall not be opened to him Though it hath been questioned by some yet there 's no colour to the contrary the objection they have made is that this is a particular mode of levying a penalty by way of distress prescribed by an Act of Parliament and the King hath no share or interest therein till distribution of the Money levied into three parts but certainly this is the King's Suit 't is a breach of his Law a Conviction by his Officers and the distress is an Execution for him the Record of Conviction is a Judgment or Award for the forfeiture of so much c. and before distribution the whole is his to be returned into the Sessions at least 't is an Execution for a third part for him and as for that the Doors may be broken open and being so open the rest may be levied The rest of this Paragraph is plain SECT 3. 1. 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 c. Here the words every Person who shall take upon him are general so that an Alien or Person under the Age of 16 who shall take upon him to Preach c. is to be convicted and forfeit 20 l. for the first Offence as well as a Denizen or Subject of the Realm of the Age of 16 years or upwards though every one that is to be Convicted for only being present at a Conventicle must be a Subject of the Realm and of the Age of 16 or upwards as is abovesaid And here by this clause if in such Meeting several shall take upon them successively to Preach or Teach though at one time of Meeting yet every such Person comes within the penalty of this clause and their Penalties to be levied as in case there be but one 2. And if the said Preacher or Teacher so Convicted be a stranger and his Name and Habitation not known or is fled and cannot be found c. These words must be taken in the disjunctive that is if the Preacher be a stranger who is presumed to be not known or if his Name be not known for then he cannot be Convicted or if his Habitation be not known for then by presumption the Penalty cannot be levied In either of these Cases the Penalty may be levied upon other Offenders present at the same Conventicle and where the Statute saith not known that must be intended not known to the Justice or Officers that suppress the Conventicle and prosecute the Offenders for there is no Question but the Preacher and his Name and Habitation is or may be known to the Conventiclers themselves but if not known to the Officers he is not known according to the intent of this Law 3. Or is fled and cannot be found c. That is so fled that he cannot be found by the Officers that prosecute him for the Offence though perhaps he is not so fled but may easily be found by his own Disciples 4. Or in the Iudgment of the Iustice Iustices or chief Iustice or Magistrate before whom he shall be Convicted shall be thought unable to pay the same c. This Clause supposeth the Teacher or Preachers Name to be known otherwise he cannot be Convicted at all I say the Preacher or Teacher cannot be Convicted if his Name be not known but by the former Clause if his Name be not known the Penalty of 20 l. may be imposed upon others present at the same Conventicle where the Preacher or Teacher's Name is known The Judgment of the Justice c. of the Preacher's inability to pay ought to appear upon Record under his Hand and Seal 5. 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 Person who shall be present at the same Conventicle any thing in this or any other Act c. By this Clause it seems to me that the Penalty in this Case
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
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