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
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
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
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
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
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
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