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 [Page 2]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 [Page 3]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 as hath not been since Repealed by any other Statute, shall be adjudged ever since the Session of Parliament in 7 Jacobi, to have been of such force and effect, as the same was the last day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, [Page 4]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 [Page 5]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 [Page 6]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. [Page 7]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.

[Page 8] 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 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 [Page 9]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 [Page 10]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, [Page 11]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 [Page 12]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, [Page 13]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 [Page 14]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 [Page 15]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 [Page 16]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 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 [Page 17]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 [Page 18]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 [Page 19]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 [Page 20]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 [Page 21]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 [Page 22]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, [Page 23]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 [Page 24]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) Limit, as in Lincoln­shire, where there are two Com­missions of the Peace, one for the parts of Holland, and another for the parts of Kesteven Division; as in Torkshire, where there are three Divisions, namely, the East-Ri­ding, the West-Riding, and the North-Riding, and a several Com­mission of the Peace for each of those three Divisions; (Corporati­ons) as London, York, Bristol, and others that are Counties of them­selves, and wherein the Justices of Peace for the County at large, have nothing to do, or else such Corporations that continue parcel [Page 25]of the County at large, yet have Justices of their own exclu­sive to the Justices of the Peace of the County where the Corporati­on is, so that the Justices of the County may not intermeddle. And lastly, Liberties which have Justices of Peace within the Liber­ty, and yet the Justices of the County or Riding where such Li­berties have a concurrent Juris­diction. Now if where the Of­fence happens, be such a Liberty that the Justices of the County at large may not intermeddle; then the Justice or Justices of Peace of such Liberty are only bound to Convict the Offender; but if the Offence happens in a Corporation, or Liberty where the Justices of the County have a concurrent Ju­risdiction with the Justices of the Liberty, there both the Justices of the County, as well as the Justices of the Liberty, are bound upon Notice to Convict the Offenders. [Page 26]Now what if the chief Magistrate, and one or more Justices of Peace of the place, should jointly Convict Of­fenders, where the Act saith, That one or more Iustices of Peace, or chief Magistrate, is such Con­viction good? I think it may be good enough, however I would not advise it as safe, because it seems prejudicial to the Appeals given by this Act, for it may fall out that all the Justices and chief Magistrate might Record the first Conviction, and the Party grieved would have no Appeal but only to the same Persons who Convicted him, which would be inconveni­ent. ‘And yet it seems any Justice or Justices of Peace of the Corpo­ration or Liberty, as well as the chief Magistrate of the place may make such Conviction, or all together, for though the Appeal should happen to be given to the same Persons who made the Con­viction, yet that takes not away [Page 27]the benefit of such Appeal, for besides the supposed honour and impartiality of the Magistrate making such Conviction, upon the Appeal the Tryal of the Fact is to be by a Jury, whereas the Conviction is by the Opinion and Judgment of the Justice or Magistrate, and so as to the Fact the Party does as it were Appeal to a Jury from the Justice. See hereafter, Sect. 6. concerning Ap­peals.’

11. Vpon proof to him or them respectively made of such Of­fence either by confession of the Party, &c. This Confession must be Judicial before the Justice him­self at the time of the Conviction, and not a Confession at another time, or before other Persons; for such Confession, though sworn be­fore the Justices by sufficient Wit­nesses, is only an Evidence, or Cir­cumstance of the Fact, but not a ground to Convict the Offender [Page 28] ipso facto, as a Confession before the Justice himself is.

12. Or Dath of two Wit­nesses, &c. An Infamous Person, as one Convicted of Perjury, For­gery, or of Felony, and not ha­ving had his benefit of the Clergy, nor pardoned, is by Law disabled to give Testimony in any matter or cause whatsoever, and therefore cannot be one of the two Wit­nesses within this Act, upon whose Oath the Offender is to be Con­victed, nor ought to be suffered to be sworn, if the Justice know him to be such; but if such Person be sworn, and the Justice not know­ing of such disability of the Party sworn, do proceed, and upon such Oath, and upon the Oath of one other Witness, doth make a Re­cord of Conviction, such Record will be good in Law, and bind, un­less (where an Appeal lyeth) it be avoided by Appeal according to the direction of this Act; a Jew [Page 29]hath been often admitted as a Wit­ness by the Judge without the consent of Parties, and sworn up­on the Old Testament, and so I conceive he may be in this Case. A man present at a Conventicle, though an Offender himself, is questionless a good Witness to give Evidence in order to the Convicti­on of any other for being present at the same Conventicle. A Man that is only Indicted of Perjury, or any other Infamous Crime, but not Convicted, is a Witness, for no Man is disabled to give Testi­mony upon Oath upon a bare In­dictment only; note in this Case the Oath of the Witnesses, and all other Evidence given upon Oath before the Justice or Justices Con­victing, should be put in Writing, and subscribed by the Party swea­ring, or giving such Evidence at the time of his Deposition or Ex­amination, especially where an Ap­peal is given by this Act, for that [Page 30]by the 6th Paragraph it is required, That upon an Appeal the Iustice certify to the Sessions the E­vidence upon which the Con­viction past, which he cannot so well nor safely do, unless the Evi­dence be taken in writing and sub­scribed by the Party upon whose Oath the same is taken.

13. Or by Notorious Evi­dence, and Circumstance of the Fact, &c. It is very difficult, if not impossible to lay down the exact measure or bounds, what shall be said to the Notorious Evi­dence and Circumstance of the Fact, and what not, and therefore it must be left to the Judgment and Discretion of the Justice, or Justices Convicting, upon weigh­ing well, and considering of the Case, what doth appear to be a Notorious Evidence or Circum­stance of the Fact. But this is to be taken notice of particularly, that the proof of two things are [Page 31]principally material. (1.) That there be a Conventicle, and, se­condly, That the Party to be Con­victed, was present at it. Now if a Conventicle be kept, and the same is afterwards dispersed, and the Preacher or Teacher in such Conventicle, or the Owner of the House where such Conventicle is held, or several Persons present at such Conventicle be Convicted for such Offence, afterwards another Person by two Witnesses is proved to have been there, or that he con­fessed he was there at the same time and place where the others Con­victed were, but the Witnesses can­not prove it a Conventicle; yet here's a Notorious Evidence and Circumstance of the Fact sufficient to ground a Conviction. If the Justice of Peace be present at the suppressing of an Assembly of People, some of whom are imme­diately Convented before him, and Accused for holding and being at a [Page 32]Conventicle in such Assembly, but no direct proof be made that it was a Conventicle, farther, than that they were Assembled toge­ther; if the Persons Convented can or will not give an account for what other Cause they were so Assembled or met together, or if they or some others at such Assem­bly are commonly known, and re­puted to be frequenters of Conven­ticles, or that they commonly (though not always) do 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 [Page 33]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 [Page 34]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, [Page 35]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 [Page 36]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 [Page 37]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 [Page 38]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 [Page 39]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.’

[Page 40] 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 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.

[Page 41] 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 [Page 42]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 [Page 43]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, Church­wardens, 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 [Page 44]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, 'tis 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 'tis 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 [Page 46]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 [Page 47]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 [Page 48]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 [Page 49]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 [Page 50]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.

[Page 51] 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 [Page 52]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 [Page 53]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 [Page 54]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 [Page 56]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 [Page 57]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 [Page 58]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 [Page 59]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 [Page 60]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 [Page 61]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 [Page 62]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 [Page 63]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 [Page 64]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 [Page 65]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 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. [...]t the Person, in regard of whose [...]overty the summ of 10 l. or any [...]sser summ was imposed upon the appealant, was not at all present [...] the same Conventicle. Now [...]e Appealant is not totally acquit­ted, for the Conviction of his be­ing present at the Conventicle [...]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 [Page 66]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.

[Page 67] 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 [Page 68]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 [Page 69]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 [Page 70]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 [Page 72]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 [Page 74]to be used where the Law may be Executed in a peaceable and quiet manner. Now a refusal or denial 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 [Page 75]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 [Page 76]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.

[Page 77] 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 [Page 78]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 [Page 79]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.’

[Page 80] 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 [Page 81] 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 Wife is resident, such [Page 82]House may be searched by vir­tue of this Act, and broken open too for the dispersing such Mee­tings, for the words are, shall he resident at such time: If a Conventicle be held in any Barn, Stable, or other like of a Peer's, not being parcel of his dwelling House, such place may be sear­ched, though the same be in the possession of a Peer: And not­withstanding this Clause, a Con­viction may be made of such a Meeting that has been held in the dwelling House of a Peer, though he be resident in it, and such Peer incurrs the Penalty of this Act as Owner of the House, permitting the same. See above on the 4th Section.’

‘Except in the presence of, &c. Such dwelling House feems not searchable by any Cor­poration Justice, he not being named in this exception, but a Lieutenant, or Deputy Lieute­nant [Page 83]of such County, may search such a House upon the Informa­tion of a Justice of the Peace, though he be no Justice him­self, nor of the same Riding.’

SECT. 11.

BE it farther Enacted, that if any Constable, &c. ‘This Clause extends to his not execu­ting any Warrant for levying the Penalties of this Act by distress, as well as to his not informing some Justice of a Conventicle whereof he knows; so if he in­form not some Justice thereof (when he conveniently may) till the Meeting be over, and so they could not be suppressed, nor the Persons so well known, in order to the making of a Con­viction: If a Constable, &c. keep or suffer a Conventicle in his House, he forfeits the Penal­ty of 20 l. for so doing, and 5 l. [Page 84]for not informing a Justice there­of, the like if he be present at any Meeting, and not in order to detect it; he may be puni­shed for being so present, and sued for the 5 l. also, for they are several Offences: Credibly in­formed, &c. such Information as another gives him of his sight of sundry Persons going to an House suspected, or generally used for such purposes at such times as usual, &c. is sufficient information to oblige the Consta­ble to acquaint the Justice, for a less information here will serve him than a Justice of the Peace for to make a Conviction, the Justice is to have it upon Oath, &c. the Constable, &c. is not Judge of the truth of the Fact, he is only a Ministerial Officer or Servant in this Case. A Con­stable, or Tything Man or the like, that gives notice of his Warrant, or of a Justices co­ming [Page 85]to suppress such Meeting is undoubtedly Guilty of this Offence, and besides liable to be Indicted at common Law for any such misfeazance or neglect, it being contrary to his Oath and Office, by the Authority of this Act 'tis become the Duty of his Office to which he is sworn, any breach whereof is Indictable at common Law, and punishable by Fine and Imprisonment, and this may be too often necessary, in the last Case, I mean especially, the 5 l. penalty seeming too small for an Offence of such a Nature; but note, then he cannot or ought not to be punished both ways, for 'tis but one Offence, though when prosecuted as on this Law the Fine is certain, as at common Law 'tis undetermined. If a Constable uses not all Law­full means to prevent, suppress, and get Convicted such Meetings, as if he breaks not open a door [Page 86]after request to have it opened in execution of a Warrant to levy the penalty by virtue of this Act, he is an Offender by this Clause.’

‘Every Person whatsoever refu­sing or neglecting to give his Aid (being called thereto in execution of this Act) forfeits 5 l. especi­ally, if such whom the Justice or Constable shall call in, do by private notices or otherwise, forewarn those Assembled to withdraw, for to prevent their being known, and by consequence their being Convicted.’

‘If any Iustice of the Peace, or chief Magistrate, shall wit­tingly or wilfully omit the per­formance of his Duty in the exe­cution of this Act, he shall forfeit 100 l. &c. This Clause is general, omit the performance of his Duty which is by all lawfull ways to get Information and notice of all such Meetings open or clan­destine, that are held within his [Page 87]Limit, Precinct, or Jurisdiction, every thing which is prohibited by the Law, a Justice is bound as a good Officer, not only to punish it when discovered, but by all convenient means to inform himself, if such Offences are committed, and such Offences the more secret, the more dan­gerous; and therefore every Of­ficers Duty is to detect them, to be ready to receive Informations, to grant Warrants to Constables, to go in Person and endeavour to disperse them when met, or pre­vent their Meeting, to imprison those that oppose or resist them, to break open Doors, if shut against them, to secure such Offenders till know their Names and Pla­ces of abode in order to make Convictions, and of such Con­victions to make Records to grant Warrants on them for di­stresses, such Records to certify to the next Sessions, and in short, [Page 88]to do every thing which this Act Authorizes and requires them to do, and in the best and most con­venient way that may be for the Attainment of the end of this Law, which was the suppressi­on and prevention of Seditious Conventicles, a wilfull neglect of any thing this Act impowers such Justice of the Peace to do in order to that end, is an Offence within this Clause, and incurrs the Penalty of 100 l.’

‘Iustice of Peace or thief Magistrate, &c. It must be in­tended for, or in Relation to Of­fences committed within their Respective Jurisdictions, for this Clause punishes nothing but the omission of what they were im­powered, or inabled to do by the foregoing part of this Law, viz. to a Corporation Justice, for what happens within the Cor­poration, &c. & sic respective, although it be here said any [Page 89]Justice or chief Magistrate, yet any Justice of the Peace in any Liberty, City, or Corporation, is within this Clause as well as the chief Magistrate of such Liberty, City, or Corporation, for such Justices are bound by the former Clauses to disperse such Meetings, and make Conviction of them, and by consequence they are here intended.’

‘Wittingly or wilfully omit, for the satisfying of those words, either his own knowledge or in­formation is sufficient, I do not mean of the Law in the Case, for he is bound to take notice of this and all other Acts relating to his Office, and a pretence that he knew not he had power, or that 'twas his Duty, will be no ex­cuse, but his own knowledge or information of the Fact; for if a Justice do not suppress a Conven­ticle, nor make a Conviction thereof, he is no Offender, pro­vided [Page 90]he have no notice of it, but yet if a Justice know a Con­venticle to be held in the next House, and he do not his Duty, he is punishable by this Clause, though no Informer came and gave him notice of it; If any one come to inform him of a Conventicle that hath been held, he is bound to give the Informer his Oath, and 'tis 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 [Page 91]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 [Page 92]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 [Page 93]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 [Page 95]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, [Page 96]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, [Page 97]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 'twas 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 [Page 98]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 'tis as they call it a silent Mee­ting, yet even such Assembly of them seems to be within the first Section, and is a Conventicle within the meaning of this Act, for 'tis a Meeting under colour of the exercise of Religion, though none be exercised, they [Page 99]pretending that they meet out of Conscience, and for such pur­pose, and 'tis plainly within the mis­chief,’ viz. The danger of con­triving Mutinies and Insur­rections at such Assemblies, ‘and there's as much danger of that in such Congregations as any other; and by the design of this Clause such Construction ought to be made, as may most suppress the Mischief intended to be remedied by this Act; the like equitable Construction ought to be made for the encourage­ment and justification of the Officers of Justice, and others employed in the Execution of this Act, the meaning of which is, that by no strained interpreta­tion ought such Persons to be brought to damage for any thing done by colour of this Statute; and so this Clause requires all in­couragement to be given to such Persons by the King's Courts of [Page 100]Record of Westminster, upon all occasions, and particularly by the next Clause,’ which is, 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 for any default in Form, (i. e.) ‘No Re­cord of Conviction, Warrant, for to disperse a Conventicle, or to levy the Penalty by distress, or Mittimus to Prison, shall, &c. This extends to all Courts, as to the Sessions, so to the Kings-Bench, or any other Court where such Record, &c. may be re­moved, or otherwise come in question upon any Action that may be brought against any Per­son for any thing done in pur­suance of this Act; although the Court of Kings-Bench may by Certiorari command such Records to be removed thither, &c. yet it is a good Act of their [Page 101]legal discretion to deny such Cer­tiorari's as of late years is done; it being a Writ discretionary, and not ex debito Justitiae sent only to certify his Majesty in his said Court of the Procee­dings against such a Man, and the Justices below are the pro­per Judges of the Fact, and this Act seems to order the final determination of such Of­fences to the Justices particu­larly, for that this very Law gives an Appeal to the Sessi­ons where the Party hath his advantage for matter of Law as well as Fact; but it may be questioned what shall be deemed a default in Form? I confess that may be of some difficulty, but however by the virtue of this Clause, though it be by a Penal Law it ought to be helped by Intendments and Presumptions as much as [Page 102]any Plea in Bar, or any other pleading in a Civil Action, but to make the best Judgment in this Case, will be to com­pare this Clause with the Statute of Demurrs, viz. the 27 Elizabeth, cap. 5. where the words are,’ any imper­fection, defect, or want of Form, and the words here are, by reason of any default in Form, ‘which are plainly all one; upon the former the rule is, whatsoever it is with­out which the right doth suf­ficiently appear to the Court, it is form within that Law, and so è converso, whatsoever is wanting, or imperfect, where­by the right appears not, is not remedied as Form within that Statute; so here whatsoe­ver it is without which the Of­fence doth sufficiently appear to the Court that's Form within our [Page 105]Law, so if it appear a Conven­ticle were held against this Law, and the Parties meant to be Con­victed were present at it, if there be but sufficient exprest that it may appear upon the whole Re­cord the Party Convicted is an Offender against this Law, 'twill be well enough, and there needs no more, for which see above un­der the first Section, the descrip­tion of a Conventicle, which will direct you how such a Convicti­on ought to be made, as the Pre­sident hereafter given you is;’ And in Case any Person offending against this Law shall flie into any other County or Corpora­tion, &c. ‘This Clause makes provision for the punishment of such Persons Convicted on this Act as are Strangers inhabiting, or Fugitives flying into any o­ther County or Corporation, that must be meant such Corporation where the Justice Convicting [Page 102] [...] [Page 105] [...] [Page 106]hath no Jurisdiction, so as the Penalty cannot be levied by his Warrant, and therefore this Para­graph provides that there may be a Certificate made of such Con­viction under the Hand and Seal of such Justice as made it, that must be meant a Certificate that there is such Conviction made, or a transcript thereof under the Justices Hand and Seal, not the very Record of Conviction it self, for that perhaps may be re­turned into the Sessions and di­vers other Persons inhabiting where the Offence was commit­ted may be perhaps Convicted by the same Record, and then 'twould be inconvenient to tran­smit that same; it may be to any Justice of the Peace of such other County or Corporation, and if such Offender be inhabi­ting or fled into a Corporation where the County Justices have nothing to doe, there the Certifi­cate [Page 107]may be to any Justice of that Corporation, as well as to the chief Magistrate of the same, notwithstanding the wilfull Er­rour of some who in Corporations would have none but the chief Magistrate of that Corporation as Mayor, &c. and no other Justice of such place impowered by this Law, whereas the whole tenour of the foregoing Sections shews the contrary; such Justice is to levy the said Penalties as fully as the Justice Convicting might, &c. (i.e.) by Warrant for distress and Sale of the Of­fenders Goods and Chattels, but it may be queried what shall such Foreign Justice doe with Money so levied? I think this somewhat plain that he ought to return it to the Justice that did Convict, and he to the Quarter Sessions for the place where the Offence was committed, and the Foreign Justice must not return [Page 108]it to the Quarter Sessions of his own County, and my Reasons are, First, Because the Convicti­ons are not to be returned thi­ther. Secondly, A third part of such Penalties is to go to the Poor of the Parish where the Offence was committed. Thirdly, The third is to go to the Informer or Informers, or such other Person, &c. which distribution the Fo­reign Sessions cannot convenient­ly make; but then it may be queried what will become of the Parties Appeal, how shall that be made? I answer, if he has the benefit of any, as I think he has notwithstanding, it must be to the Quarter Sessions of the place where the Offence was commit­ted, for the Statute expresly re­quires it should be delivered to the Justice Convicting, he is to take Recognizance for the Pro­secution thereof with effect, and this with the Conviction he is [Page 109]to return into the Sessions; but then it may be again queried how such Offender shall know who is the Justice Convicting, for to him he must deliver his Appeal in writing, 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, 'tis 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 [Page 111]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, 'tis 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, [Page 112]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 [Page 113]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 [Page 114]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 [Page 115]this Act to prevent, disperse, and suppress such Meetings, otherwise the Act would be of least force where 'tis 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 [Page 116] London, yet his Goods will be liable; if it had been otherwise, 'twould 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, 'tis 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 any of his Predecessors have or might have done the same, any thing in this Act notwith­standing. ‘This Clause is an ample affirmance of the King's Prerogative in Ecclesiastical Af­fairs notwithstanding this Act, which I shall not presume here to discuss, especially considering that it will no way be instructive for the better Execution of the [Page 119]Powers and Provisions of this Act, which was the only end of our great Judge in making these Observations, and is the end of their present publication, and therefore I shall here conclude with this one Remark, viz. That the time of making this Act is mi­staken in the Print, which may be of use to observe in case any Action be brought against any Justice of the Peace or other Person for the 100 l. Penalty for the neglect of his Duty, 'tis there said to be at a Parliament continued by Pro­rogation to the 14th of Febr. 1669/70 from whence it is continued by Adjournment made the 11th of April, 1670. to the 24th day of October following, which makes a kind of discontinuance, for it says the Adjournment made the 11th of April, from the 14th of Feb. before, 'tis safest there­fore to omit the Adjournments and take no notice of them, but [Page 120]only at a Parliament begun at Westminster the 8th of May, An. Dom. 1661. in the 13th year of, &c. and there continued by seve­ral Prorogations to the 14th of Febr. 1669/70 and no more.’