CHAP. I.

1. AMongst other melancholick Considerations re­lating to the Nation, which at this time af­fect the Souls of thinking Men, who be­lieve there is a God that judgeth the Earth, there is none more sad, or justly afflictive, than the Consideration how much we have lost the Religion of an Oath, and by that means broken the Ligament of Humane Society, and upon the point invalidated the Institution of God for the end of all Strife: For according to the present use of Oaths they will be the end of no Strife, or at least but a legal end; while no Man's Mind can acqui­esce in an Assertion or Promise confirmed by it. For how is it possible that the Mind of any should acquiesce upon the Oaths of others, when he discerns how many there are that make no Conscience of swearing what is false, or what is im­possible they should know to be true? Nor is there a greater Evidence of the stupid Atheism of a multitude of Persons: [Page 4] For, how can any think that those believe there is a God, so omniscient, just, and potent, as the Supream Being must be, who dare call him to be a Witness that they speak Truth, or that they will do this or that thing, and challenge him to be their Judg in case they do it not, and desire that He, and his ho­ly Gospel may do them no good if they do it not; and by and by dare to speak what they either know to be false, or do not know to be true? It is not possible that Men indeed should believe there is a God, and do any such things. Every false Swearer must either declare himself to be ignorant of what he doth when he taketh an Oath, or to be an Atheist.

2. It being more charitable to judg such persons ignorant, than to determine them absolute Atheists. Charity will oblige every good Man to instruct his Relations or Neigh­bours in this great Point. All Divines agree that the nature of an Oath lies in the calling of God to witness, either to the truth of a Man's Assertion, or the Sincerity of his Heart as to his Promise, and his faithfulness in the performance of what he promiseth. It was God's Ordinance, Deut. 6. 13. Thou shalt fear the Lord thy God, and serve him, and shalt Swear by his Name. Repeated again, Deut. 12. 20. To him thou shalt cleave, and Swear by his Name. Isa. 65. 16. He that sweareth in the Earth shall swear by the God of Truth. Jer. 12. 16. And it shall come to pass if they will diligently learn my ways, and swear by my Name, The Lord liveth. The Scriptures are full of Reproofs and Threatnings of and against any other Swear­ing, by those that are no Gods; Jer. 5. 7. Josh. 23. 7. Exod. 23. 13. Nor indeed is it reasonable, that any other than the living God should be invoked in Swearing, who else can know the correspondency of our Hearts and Actions, or the sincerity of our Intentions? Who else hath a power (in multitudes of cases hidden from Men) to punish him who sweareth falsely? So as an Oath by any other, than by the living God, is no security to our Neighbour. Hence all swear­ing [Page 5] by any Creatures is prophane Swearing, and not only a violation of a Divine Command, but also of the very nature and end of an Oath, giving no security to the Person, for whose security of our Truth it is taken. Indeed it is no better than Idolatry, if Idolatry be a worshiping of that for God which is no God: For Swearing is a Worship, tho indeed a less or­dinary piece of the Worship of God than Prayer and Praise are.

3. An Oath being so grave a thing as a Divine Institution. The Name of God being in it, and a solemn Invocation of him, to witness our Truth, essential to it, and the end of its Insti­tution being to determine Strife, and to give our Neighbour the highest Security imaginable of our Truth and Faithful­ness. Common Reason will instruct Mankind, that it ought not to be used lightly and rashly: for, besides that such use of an Oath tendeth to make it useless to its end; it is also an high prophanation of the holy and dreadful Name of the Lord our God. Which of us would not judg himself affronted, to have our Neighbours make use of any of our Names upon every light and trivial occasion? or to be called on to wit­ness every silly and impertinent discourse, or piece of Mens common Talk? Nor can that thing be any security to my Neighbour in any weighty Concern, which I lay to pawn at every Alehouse, and expose at every Stall, much less that which hath proved to be no security a thousand times, but made use of to seal a Lie. Besides that such common use of the Name of God, takes away all the Aw and Reverence of it; and who so thinks that any Man will make more Con­science of an Oath in a Judicial Testimony, for, or against his Neighbour, than he doth in his common discourse, must at least think that the person who doth it, hath more Charity to­wards Men, than Piety towards God, (which is very unreason­able, considering that all Charity is the Daughter of Piety) or else he must have some odd thoughts of God, imagining him [Page 6] more severe in revenging a Wrong done to Man, than in the Vindication of his own Glory, whose Name is invoked as much in idle and common Swearing, as in a Judicial Testimony; and who is as much called to Witness, and whose Power is as much challenged to revenge a Falshood in the one as the o­ther case. So that the many Precepts of God against common and ordinary Swearing in light and trivial matters, Exod. 20. 7. Deut. 5. 11. Mat. 5. 34. Jam. 5. 12. Levit. 19.12. are but consonant to the common Reason of Mankind. And indeed the Judicial Swearing of a common Swearer in all his light and ordinary discourse, will from hence appear to a delibe­rate Man but a very doubtful and suspicious Evidence. For why should I think the Man speaks Truth any more, when in a Court he saith, So help me God, and his holy Gospel; than when in a Tavern, Alehouse or Market he saith, God damn me it is so, or I will do such or such a thing when I know it is not so, and am a witness to his not doing of it after such Impre­cations; so as in truth there could not be a juster Law than to make common Swearers legally infamous; which might pro­bably reduce Mens Tongues to a better decorum, and recover amongst us the Religion of an Oath, upon the upholding the Religion of which depend all our Lives and Properties.

4. A false swearing by the Name of the most high God, (espe­cially in Judgment) will easily from hence appear to be one of the highest Crimes, and daring pieces of Impudence, that a mortal Man can be guilty of. A Guilt incurr'd, not only when the thing we confirm by our Oaths is false, but when we do not know it to be true. And in promisary Oaths, when we do not do the thing which we have sworn to do. Thou shalt swear the Lord liveth, in Truth, in Righteousness, and in Judg­ment; Jer. 4. 2. This is the Law of God concerning an Oath; I must not call God to witness that a thing is true, and disclaim any hopes in him, or desire of help from him, or the Word of Salvation if it be not true, if the thing be false; or [Page 7] unless I know it to be true: for I cannot say a thing is true, which doth not so appear to me. Nor must I call God to wit­ness that I will do such or such a thing; and disclaim any hopes, or desire of any benefit from him, or the Word of Salvation, if I do it not, and then not do it. Under the Levitical Law, (Lev. 5.4.) God indeed appointed a Trespass-Offering for him that had sworn to do Evil, or to do Good, if it were hid from him, confessing that he had sinned in that thing; but in that Con­fession was required in the case, and not Confession only, but a Sacrifice, the Sin of those who swear falsly (tho ignorantly) is evident enough; and in that we read of no Sacrifice ap­pointed for those that swear falsly, knowing thereof when they sware, we may be assured that was a Guilt God did not expect from any of his People; or at least, which he would not easily forgive, or purge by Sacrifice. And indeed what punishment can we suppose too great for that person, who shall dare to call God to Witness that he speaketh Truth, when he knows it is a Lie, or doth not know that what he saith is true? Or, who dares to disclaim all Benefit from God, or the Word of his Grace, if he doth not do this or that, and then doth it not? His Blood is upon his own head, if God strikes this Man dead in the place; if he immediately throws him into the Bottomless-Pit, and concludes him under his Wrath to all Eternity, he doth but deal with him according to his own Prayer and Desire. He hath asked no further Grace, Mer­cy or Favour from God than according to the Truth of his Heart and Actions in such or such a thing wherein he hath wilfully suffered his Truth to fail; and that it may be not only in the highest contempt, and defiance of God, but may be to the no small hurt and prejudice of his Neighbour, (tho that be much the lighter thing in the Case): for what can the Interest of a Man be considered with that of the Lord's Name and Glory? Out of his own mouth he is condemned; he hath spoken words against his own life. Whosoever he be [Page 8] that solemnly calleth God to be his Witness, That in such or such a thing he speaketh the Truth, and that he shall or will do a thing in such a manner, and disclaimeth all Help or Salvation from God if he doth it not; and in the same matter, after such a solemn Invocation of the Divine Name, and bold Challenge of the Divine Power, shall dare to affirm what he cannot say is Truth, or to do the quite contrary to what he hath promised with such an Imprecation; what doth he do less than say, I value not what the Almighty God can do unto me; I desie his Power, and deny his Being and Omnisci­ency?

5. These things considered, we need not wonder at Je­remiah's telling us (Jer. 23. 10.) That because of Swearing the Land mourneth; nor yet at the Prophet Hosea telling the Is­raelites from the Lord, That the Lord had a Controversie with the Inhabitants of the Land; because there was no Truth, nor Mercy, nor Knowledge of God in the Land. By [Swearing], and Lying, and Killing, and Stealing, and committing Adul­tery, they break out, and Blood toucheth Blood. Nor at the Pro­phet Zecheriah's flying Roll, (Zech. 5.) twenty Cubits long, and ten Cubits broad, which v. 3. is expounded to be the Curse that goeth over the face of the whole Earth; for every one that stealeth shall be cut off on this side according to it: and every one that [sweareth] shall be cut off on that side, according to it. I will bring it forth, saith the Lord God of Hosts, and it shall en­ter into the house of the Thief, and into the house of him that [sweareth falsly] by my Name; and it shall remain in the midst of his house, and shall consume it, with the Timber there­of, and the Stones thereof. Nor shall we need wonder if we see this Curse entering into many houses in this Nation, and remaining in them, until it hath consumed the Timber there­of, and the Stones thereof. For swearing falsly is no less than a prophaning the Name of the Lord our God. Levit. 19. 12. a taking of his Name in vain, who hath said, He will not hold [Page 9] him guiltless who taketh his Name in vain. And God hath said, I will come near unto you in Judgment, and I will be a swift Witness against the Sorcerers, and against the Adulterers, and against the false Swearers, Mal. 3. 5.

6. It is true, the Law of England makes a distinction be­twixt false-swearing, or forswearing and Perjury, and will not allow forswearing to be Perjury, punishable by the Statute-Law, unless it be malicious, and in a Case betwixt Party and Party. The Law of God maketh no such di­stinction; false-swearing is the Crime which the Divine Law denounceth the Judgment of God against: And he that readeth my Lord Cook's Chapter of Perjury in his Pleas of the Crown, will find, that according to the old Law of England, though one sware what was Truth, but not what he could know to be true, was not punishable in other Courts, yet he was punishable in the Star-Chamber, of which he gives us an Instance in that Chapter: And without doubt so it ought to be, for I cannot truly swear that Thing to be, or to have been done, which I do not know is, or hath been done. In Palmer's Reports, is an Instance of one indicted and punished for swearing a Thing so, and so, (which in­deed was so) because he did not know it to be so. Guide to Juries, p. 33.

7. It is not my design to discourse this Theme in the latitude, but only so far as concerneth Jurors in the Courts of Assizes and Sessions, and that only with respect to Cri­minal Cases. Our Law was not so confident of twelve or 24 Men in a Grand Jury, or a Petit-Jury, but that it hath provided against false-swearing in them, by two Acts of At­taint: by the one, 11 Hen. 7.21. provision is only made for the City of London; by the other, for the whole Nation, 23 Hen. 8. 3. Which Statute alloweth, the Person wronged by an untrue Verdict, to bring an Attaint against the Per­sons giving such Verdict, if it amounted to the value of [Page 10] forty Pounds, and recover of every one of them twenty Pounds, ten for the King, ten for himself; but this must be only in Cases betwixt Party and Party. It seemeth a defect in our Law, that if the King be a Party, the Jury shall not be attainted; for every one will apprehend it very unrea­sonable, that Jurors should be attainted, and their Verdicts again be examined by 24 Men in an Attaint, where the Sub­ject is a loser forty Pounds or upwards; and that they should be liable to no punishment for an untrue Verdict, where the Dammage amounteth to much more. I remember in a parallel Case of Perjury in a Witness, where the Law de­termineth no Indictment on the Statute shall lie, because the Statute is restrained to Oaths between Party and Party, My Lord Cook determineth, that though no Indictment up­on the Stat. 5 Eliz. will lie in the Case, yet an Indictment shall lie at Common Law; and that hath been often experi­enced; and that great Oracle of the Law gives an unanswerable Reason for it, Because it is not reasonable that the King's Name, (who is the Fountain of Justice) should patronize Injustice. Whether an Attaint at the Common Law doth not lie against Jurors bringing in false Verdicts, (which indeed is nonsense) though they find for the King, deserves the study of Lawyers. Sure I am, my Lord Cook, in his Chap­ter of Perjury, gives us an account, That by the old Law of England, Jurors bringing in untrue Verdicts, were most severely punish'd, by Imprisonment, seisure of all their Estates, turning out their Wives and Children, pulling down their Houses, and being made infamous, their Oaths never more to be admitted in any Court. This Law is surely not so extin­guished, but some punishment yet remains for all such Per­sons, if once we could hit upon the Methods that shall bring them to it.

8. But my business is only to shew them, that there lies an Attaint against them in the Court of Heaven, the punish­ment [Page 11] of which is, not only the eternal damnation of their Souls, according to their own desire in the Oath they take, but the Curse of God entring into their Houses, and abiding in them until it hath consumed the Timber thereof, and the Stones thereof. Nor shall I meddle with all their Verdicts, only such as they have brought in against dissenting Prote­stants, upon the Statutes 23 Eliz. and 29 Eliz. and 3 Ja­cobi. This is the only Point I design to put in Issue, be­ing assured, That if the Conviction of these Men upon those Statutes, prove to be upon their false-swearing, it hath in it all the aggravations almost imaginable, being done in a Court of Justice, and issuing in the ruin of so many thou­sand Persons, and Families. Hoping also that if it so proves, those who have urged, instructed, and taught them so to do, will reflect upon themselves in time, and consider whe­ther they are not like to come under our Saviour's Censure, of being the least in the Kingdom of God, for teaching (if not forcing) ignorant Souls to break the Commandment of God, and that in Matters, where his Glory, as well as the Good of their Neighbours, are most eminently concerned.

CHAP. II.

1. THis Issue cannot be better tried, than by an enquiry into the Oaths taken by all Jury-Men, and then into the Indictment upon these Statutes; and lastly, into the Evi­dence brought before them of the Fact.

The Oath which every Person of Grand-Juries takes, is in this Form.

You shall diligently inquire, and true Presentment make, of all such Things and Matters as shall be given you in [Page 13] Charge, or shall come to your knowledg concerning this present Service. The King's Counsel, and your Own, and your Fellows, you shall well and truly keep secret. You shall present nothing for Malice, Lucre, Ill-will; nor leave any thing unpresented, for Love, Favour, or Affection, Reward, or any hopes thereof: but in all things that con­cern this present Service, you shall present the Truth, the whole Truth, and nothing but the Truth. So help you God.

This every one of them promiseth, and testifieth his Pro­mise, by kissing the Book of God. I desire it may be ob­served, that the Oath saith not, You shall true Presentment make of such things as you think or suspect, or presume, but that shall come to your Knowledg. You shall present the Truth, not your Fancies or Surmises, and what you have no knowledg of, either from your personal certain Know­ledg, or by the Oaths of credible Persons, and nothing but the Truth; that is, what shall come to your knowledg, either by the Oaths of credible Persons, or from your own sight, or observation; for nothing else can appear to a Grand-Jury-Man as Truth in Judgment.

You shall well and truly try, and true deliverance make, between our Sovereign Lord the King, and the Prisoner, [or Person] at the Bar, according to your Evidence. So help you God.

The Witnesses swear, They will speak the Truth, the whole Truth, and nothing but the Truth, &c.

[Page 14] Every Jury-Man, and Witness, in testimony of his ta­king that Promisory Oath, kisseth the Book; thereby only testifying, that he calleth God to Witness, that he will do that thing which is propounded to him, without Malice or Favour; and desiring God, that he may receive no Mercy from him, nor benefit from his Gospel, if he doth otherwise.

2. The Grand-Jury's Presentment, according to these Statutes, must be, That such a Person, for the space of one or more Months, being of the Age of sixteen Years and upward, did not repair to some Church, Ghappel, or usual place of Com­mon-Prayer, but did forbear the same, having no lawful Let nor Impediment, contrary to the Statute made in the first Year of her Majesty's Reign. They commonly run in a shorter Form; but they declare to the Clerk of the Assizes or Ses­sions, that they desire they might be drawn up according to Form. Which is done by him, nothing material being omitted in the Form mentioned, nor added thereunto. This is found by the Grand-Jury at the next Assizes or Ses­sions, and being found by them, is without alteration trans­mitted to the Petit-Jury, and by them found, or rejected, without any alteration.

3. I grant it possible, that there are several cases, where­in Jury-Men may find such an Inditement without false swearing. Admit they know that such a Person were all those days, in his own House, or in some Neighbours Houses, at an Ale-House, or at an Ʋnlawful Meeting, or walking idly in the Fields, &c. Or that any such thing be sworn before them, they may undoubtedly, yea and by their Oath are obliged to present him, or indict him: But if they know no such thing from their own sight or observation, nor from the Oath of Persons whom they judg credible; That they who have called God to Witness, that they will present the Truth, and nothing but the Truth, that is come to their Know­ledg, may present any upon that Statute, or upon their [Page 15] Oaths aver the Truth of any such Indictment, is what no Learned and Sober Divine in the World dare assert. Ne­ver yet did any Divine assert, that it was no forswearing a Man's self for him to affirm upon Oath, what he did not know, either from his own sight, or observation, or the credible Testimony of others asserting it upon their Oaths, (for no Jury ought to hear or regard any other Information). How impossible it is that any Grand-Jury-Man should know that A. B. was neither at his Parish-Church, nor any other, any Sunday, or Holy-Day, for one or more Months, unless he knew that all such Days he was at another place, is obvious to the meanest Understanding. If he doth not know it, he sweareth falsly, in presenting the Person for it upon that Oath which he hath taken to present the Truth, and nothing but the Truth. What he knoweth not, can be to him no Truth, much less can it be a thing come to his Knowledg. And I am sure it is nothing given him in charge. None ever in his Wits, yet said, that a thing which one only presumes, su­spects, or thinks, is come to his Knowledg, or what he can aver to be Truth.

4. It is true, sometimes Grand-Juries, only offer Consta­bles Presentments upon their Oaths, in which case much is to be said in the Excuse of Grand-Juries. It is then come to their knowledg, upon the Oaths of those whom the Law judgeth credible Persons; but such Presentmens use not to be of Persons for not coming to their Parish-Church, nor any other, they only can speak for their Parish-Church. Nor can any Grand-Jury bring in any such Presentments, but for absence from their Parish-Church. If they add, nor to any other, they make the Act their own; or if it be added by any other who draws such Indictment into Form, the next Grand-Jury cannot, without false-swearing, find it, unless they personally know it, or it be made good to them by one or more credible Oaths. If they do, they notoriously vio­late [Page 16] the Oath they have taken, to present nothing but the Truth, and what cometh to their Knowledg; whatsoever is added to the first Presentment, can be said in no sense to come to their Knowledg, if they do not know it personally, without new Oaths to confirm it.

5. These things considered, it will pose the subtillest Divines in the World to excuse Persons serving upon Grand-Juries, from false-swearing, in these Presentments or Indict­ments, who do not personally know the thing to be true which they present, or at least know it from the Oaths of others taken before them: of whom also it is their Duty, according to their Oath, diligently to enquire upon what grounds they swear such a thing, before they can true Pre­sentment make. These things are so obvious, that it may justly amaze any understanding Person that any should have any other apprehensions. Nor certainly is it possible they should, if Mens common Learning in their ordinary Dis­course had not banished out of the World all fear and Re­ligion of an Oath.

6. For the Petit-Jury, they swear to make a true Delive­rance according to their Evidence. So as the Truth or Fals­hood of their Oath dependeth upon the Evidence they have. It will pose any Person to think what Evidence twelve Men can have, that another for all the Sundays and Holy-days in a Month, or more, hath not been at some Church or Chappel where Divine Service hath been, and having no law­ful Let or Impediment. This every Member of a Petit-Jury, who findeth any Indictments of this Nature, doth, and must affirm, or there could be no Conviction. And he affirmeth it, after his solemn calling God to Witness, that in this case, he will affirm Truth, and that according to his Evi­dence. What Evidence is it possible such a Jury should have, but Confession of the Party, or the Oath of some Per­son who hath been with him all those days in other Places, [Page 17] any reasonable Person may judg; and we shall see anon, that in this very Case of Absence from Church, the Law of England alloweth no other Proof. And every Petit-Jury-Man, doth affirm this to be Truth upon no less than his Sal­vation, and desireth that the God of Mercy, and his Holy Gospel may so help him, as he hath acted truly, not accord­ing to his Suspicions, Fears, or Belief, but according to his Evidence in saying, he is Guilty. Hath not (think we) the Clerk of the Court reason to part with these Juries after such Verdicts, with the same Prayer or Complement, that he doth sometime part with condemned Prisoners with,—and the Lord have Mercy upon your Souls? For not one Indictment of many hundreds of this nature, are found upon any such Evidence, or indeed upon any Evidence at all, which is either such in its own Nature, or according to the Law of England in all other Cases, as also in this very Case.

7. Proofs ought to be clear, and perspicuous, saith my Lord Cook; and it is impossible any thing should be an Evidence, which doth not make the Thing clear and evident. Indeed none that useth to speak Sense, will call any thing less, Evi­dence. Now what is there can be imagined in Nature to make a matter of Fact evident to others, but either the con­fession of the Party, or the Oath of Witness, or the personal knowledg of the Truth of it to the Persons to whom it is so to be made evident? Those that serve upon Grand-Juries, may, according to their Oaths, look upon the last, as an Evi­dence for them sufficient to present upon; that a Petit-Jury may, I never heard affirm'd: none of them can be Witnesses, because they are Judges in the Matter of Fact. The Law of England indeed alloweth another conviction in this Case, viz. In case a Person presented, indicted, and pro­claimed, doth not appear in Person at the next Sessions or As­sizes, and put himself upon his Traverse. The Reason is, be­cause the Law takes such a Person to confess the Fact. And it [Page 18] may be this is righteous enough, provided that such persons have Summons to appear, truly served upon them. But if they have not, it is the highest Ʋnrighteousness imaginable: For though the Law supposeth all his Majesties Subjects to be present at Assizes and Sessions, yet every one knows how impossible a thing it is that all Men and Women above sixteen years of age should so appear, and know what is done: Upon which account our Law ordereth Summons of the Party up­on every Presentment; and if the Party be not summoned to proceed against him, can be no Righteousness; for our Law condemneth none before the Executioners of it have heard him speak, or at least given him an opportunity, that if it be not his own fault, they may hear him speak for himself. Yet multitudes are thus Presented, and Convicted, and great por­tions of their Estates seized, who never so much as knew they were Presented or Accused, till the Sheriff and Bayliffs come and make a Seisure of their Estates, which certainly is in the Officers an Iniquity to be punished by the Judge, and an Act of Ʋnrighteousness from which every one ought to be relieved: for tho the person's not appearing if he be sum­moned and proclaimed, and hath notice of such Proclamati­on, may be a ground of a Righteous Conviction; yet if he hath no such Summons, or notice of such Proclamation, no such Conviction can be righteous. For it is the condemning a Person, before they have heard him speak, or given him a liberty to speak for himself, a thing abhorred by the Hea­thens, who had no more than the Light of Nature to guide them in the things which they ought to do, and avoid. But this is a digression from my Argument.

8. There are some so absurd in this case as to affirm there needeth no Evidence; it is a thing which cannot be proved. And if the Person presented and indicted, cannot prove that within the time for which he is so presented and endicted, he was at some Church or Chappel, and that during the time, and the whole time [Page 19] of Common Prayer, or had some lawful impediment, the Petit-Jury ought to find such Indictment. The Absurdities of this Assertion are so many, that it is not easie to number all of them; I will hint at some few.

(1.) If the Oath administred to the Petit-Jury were, You shall well and truly try, and true deliverance make betwixt our Sovereign Lord the King, and the Person at the Bar, without any Evidence. Though it would be a strange Oath for any to administer, or take, yet it might excuse the Petit-Jury from the infamous crime of false swearing, though they found such Indictments. But their Oath being to find according to their Evidence, it is impossible to excuse them, finding without any Evidence: for none ever called Silence, Evidence, nor yet the extorted Confession of the Party. The Law of Eng­land requireth no Man to speak any thing to accuse himself, nor to prove himself guiltless, unless some Attempts have been first made to prove him guilty, which he can disprove.

(2.) Again, This Assertion obligeth every Subject of Eng­land to have Witnesses ready to prove he was at Church, at least one time within every 28 days throughout the year: if not, he may, it seems, be Presented, Indicted, and ought to be found guilty. The Statute gives twelve months time to prosecute upon these Statutes; Suppose persons presented and indict­ed, for absence the first 28 days in that year: how many thousand of innocent persons may not be able to bring Proof of their presence at Church after eleven months, any one day within that month?

(3.) There is no such Proceeding allowed in any other Crimi­nal Cause. Is the Man indicted for Robbery, or Murder, bound to prove he was at another place, & in another com­pany, at that time when the Murder or Robbery was done, before it be first proved to the Jury upon Oath, that he was at that time in that place where such a fact was committed? I cannot understand but by these Mens Law the very same [Page 20] Persons found guilty of this Crime, may, when they please be found guilty of Murder, robbing by the High Way, or any other Capital Crime; if this be sufficient Evidence to the Petit-Jury, that the Party accused having no Evidence against him, yet shall not acquit himself by proving the Place where he was at that Time, which after nine or ten Months, who is able to do? And these very Jury-men, who are so liberal of their Souls, as to find without Evidence in these Cases, may one day, by God's righteous Retaliati­on, find themselves thus dealt with.—Nec Lex est justior ulla. Quàm necis artifices arte perire suâ. To allow Persons guilty of a Crime, without any other Evidence, but be­cause they will not, or perhaps cannot acquit themselves by proving Circumstances of Time and Place where they were, after 3, 5, 6, 10 Months time, (having no prospect of such an Accusation) is a thing which may prove of most fatal Consequence to every Mother's Child in the Nation.

(4.) Yet if the Law of England (which alloweth it in no other Case) did, by any Clauses in it, allow this to be a suf­ficient Evidence, in this something might be said. The Ci­vil Power may be allowed, when themselves create a Crime, to set down what shall be Evidence of that Crime: But doth any of the Statutes, made in this Case, ordain any such thing? Either the Statute 23, or 29 Eliz. or that 3 Jac. Nay, the Statute determineth the quite contrary, and that for this Crime of not coming to some Church. And that where the Punishment cannot exceed 4s. it saith,—Ʋpon proof made of such default, by confession of the Party, or Oath of Witness, 3 Jacobi 4. Now will not the Law of England, in this Case, allow so little a sum as 3 or 4 s. to be taken from any Subject, without either the accused Per­son's confession of his Fault, or Oath of Witness. And shall any, pretending to know the Law, impose upon a Jury to believe? Or shall any reasonable Man that can but read, [Page 21] be ever made to believe, that there need no Proof, no Con­fession, but they must find the Indictment for 20 l. or it may be 200 l. (according to the number of the Months) especially when the consequence of their finding it will be, the Party's paying of 240 l. every Year after it, or losing all his Goods, and two thirds of his real Estate, or lying in Prison all his Life, unless the Party accused can prove him­self Guiltless, and this after that such Jury-Men have called God to Witness, they will give in their Verdict according to their Evidence: And the Law hath in this particular Crime made other Evidence necessary, and no where dire­cted, or allowed any such thing, as the accused Persons not clearing himself for Evidence. Do such Jury-men believe there is a God, or expect any thing from this God, or ad­vantage from his Gospel, when they have dared God to shew them no Mercy, if they do not do that, the quite con­trary to which they do in an hours time? Will any Divine say these Men are not desperately forsworn? Let any of them bring their Pleas, and let us see if they can speak sense in the Case; let them produce their Divines, that dare justify this not to be false-swearing, and the most abominable forswearing, to the prejudice of their Brother, as well as the most impudent pollution and prophanation of the most holy and dreadful Name of God; and what wickedness may be presumed they will startle at, who in such a degree proclaim they have no fear of God before their eyes, nor any belief of the Being, Power, Omniscience, Truth, or Justice of God in their Hearts.

9. But they will say, The Petit-Jury hath Evidence: for the finding of the Indictment by the Grand-Jury, is sufficient Evidence to the Petit-Jury. This new Notion is so false in it self, and of so dangerous Consequence, as it perfectly sub­verteth the whole Law of England in Criminal Causes, and destroyeth one of the greatest pieces of the English Liberty.

1. It is a fundamental Point in our Government, that un­less it be by Parliament, No Man's Life shall be touched, but by the Judgment of 24 Men; twelve of which make the Grand-Inquest, and are the Jury to inquire of Facts, where­of any are accused; twelve make the Petit-Jury for trial of the Issue. None can, at Assizes or Sessions for their Life, or any part of their Estate, be put upon trial before the Grand-Inquest hath found the Indictment to be a true Bill. So as it is impossible that the Grand-Jury, as a Grand-Jury, should be any Evidence to the Petit-Jury; for they have no Oath of Witnesses administred to them, they are only sworn to enquire, and to make a true Presentment to the Court. If any Persons know any thing of their personal knowledg, they may leave their capacity of Grand-Jury-Men, and come down, and give their Oaths in Court be­fore the Petit-Jury, and may be Witnesses; but as a Grand-Jury they can be no Evidence, nor have they any Oath ad­ministred to them to that purpose, nor can the Petit-Jury propound any Questions to them, (a liberty allowed them as to all their Evidence): to make a Grand-Jury, Evidence, is to allow the Persons to be Judges and Witnesses; a thing never heard of in any just Court. The Work of Witnesses is to prove a Fact; the Work of Judges, is to determine, according as the proof is made.

2. This were to make Petit-Juries perfectly needless, and of no use: for if the Grand-Juries finding an Indictment be Proof sufficient, Reason will tell us, they are the fittest Men to determine the Fact, being ordinarily both a greater number, and Men of more Reason and Ʋnderstanding, and of better Quality than those who appear on Petit-Juries: And if Petit-Juries have no power to bring in Not Guilty as a Verdict upon any Indictment by them found, they are perfectly of no use at all. Thus this seems a new Art to deprive the Subjects of all Trials by Juries.

3. The Grand-Juries who find these Indictments, find them of course, ordinarily, without the least proof of the truth of them, and know no more, than that a former Grand-Jury upon their Oaths made such Presentments, whe­ther true or false, is still left to a Proof before the Petit-Jury.

4. The Indictments, as they come to the Petit-Jury, have ordinarily more in them, than the Presentments of the first Grand-Jury in the Case. The first Grand-Jury, either pre­senteth upon some of their own particular Knowledg of the Thing, or upon some Constable's Presentment brought into them: let it be the one or the other, they are only for not coming to their Parish Church. No Constables will upon their Oaths present more; nor can it be presumed of any Grand-Jury-Man, because it is impossible for them to know, that they neither came to their own, nor to any other. These words, Nor unto any other Church, which are essential words to the Charge, upon the truth of which the heavy Penalty lieth, are put in by the Clerks, who draw up the Indictments in Form, and neither sworn before, or to one Grand-Jury or another. So as of them there is not the least Evidence to the Petit-Jury.

5. Nor is it reasonable that the finding of an Indictment by a Grand-Jury, which is formed upon a Presentment by a former Grand-Jury, should be allowed as the least Evidence of the Truth of the Fact contained in the said Indictment; be­cause Grand-Juries, tho' by their Oath they are bound to present the Truth, and nothing but the Truth, and what is gi­ven them in Charge, and shall come to their Knowledg, yet (with what faithfulness to their Oaths deserves their second Thoughts, and may hereafter come to be examined) take upon them to present what none of them doth know, nor can know; nor is made, by the Oaths of any, to appear to them, but what they suspect, or have heard from others, not upon [Page 24] Oath, counting that a thing comes to their knowledg, tho they have catched it from the tittle tattle of the Town, or the mouths of any malicious Persons; not considering that they also swear to present the Truth, and nothing but the Truth, and have disclaimed all hopes of Salvation, if they do otherwise than according to such an Oath. Many of them have been so easily deluded, to invoke God's Vengeance upon themselves, as to think that they may do it upon a common Fame, and that not proved before them neither; nay more, that they may do it, though some of themselves know the contrary to such Presentment or Indictment; and put the Persons to 40s. charge at Sessions, or 7 or 8 l. charge at the Assizes to clear themselves; and very often it is pro­ved that such Presentments are notoriously false. Now that a Petit-Jury should take such Presentments, or Indict­ments, for Evidence, is a thing so obviously contrary to Sense and Reason, as well as their Oath which they take, that no­thing need be said against it.

6. It is expresly contrary to the Law of England, in all o­ther Causes Criminal, That the Presentments of Officers, who present ex officio, should go for Evidence: Nor doth either the Common, or Statute-Law of England, direct it any where in this Case. This is to make the Accusers, Evidence, and to confound Accusers and Witnesses. Whereas, Si satis sit accusari nullus erit innocens; It was all our Fore-father's Opinion, that none could be innocent, if the Accusers might be allowed for Evidence. If the Grand-Jury do but deliver in the Presentments, or Indictments of others, they are in that case considered as Judges in the Matter of Fact, averring their charitable belief that such Presentments are true. If the Presentment ariseth originally from themselves, they are but the Accusers, and in that capacity can be no Evidence; to say that Common Fame is the Accuser in the Case, when that Common Fame is a mere aerial thing, suck'd [Page 25] in by some or other of the Grand-Jury, and not justified to the whole Body of the Grand Jury, vivâ Voce, is but to dignify a Chimera. There can be no Common Fame, without a multitude to report it; which I presume Grand-Juries have not coming to them upon that Errand; and if they had, they must be sworn in Court, before (by the Law of England) they can come near to make the Common Fame. In all such Cases therefore, to make a Grand-Jury an Evi­dence to the Petit-Jury, is to make Accusers, Evidence, the Consequents of which I leave to every Man of sense.

7. If Malice did not out-law the Reason of Jurors, who find Indictments on no other Evidence than this, they would consider, Hodie mihi, cras tibi, What you make the Lot of others to day, may be yours to morrow. A Grand-Jury may find against you an Indictment for treasonable words you never spake, Heretical Opinions or Speeches, Mur­der, Theft, Burglary. In three or four of these Cases it is very ordinary for Grand-Juries to find, upon slighty Evi­dence, because the Good of the Publick is concerned. If the Petit-Jury need no other Evidence, every Subject's Life, Liberty, and Property is at the Mercy of every Villain. If any will say, that in such Cases there must be further Evi­dence brought to the Petit-Jury; I ask, Why? Evidence is Evidence, I hope in one Cause as well as in another, except the Statute-Law directs otherwise, which I am sure it doth not. Besides, that Grand-Juries often find Indictments (where the Publick Peace and Government is concerned) upon very slight Evidence, because they know they cannot be convicted without other more full and particular Evi­dence. So that to allow their finding the Indictment for Evidence to found a Conviction upon, is the greatest Un­righteousness imaginable. Upon the Trial of my Lord Shaftsbury, my Lord Chief Justice told the Grand-Jury,

[Page 26] ‘That that which was referred to them to consider, was, Whether upon the Evidence should be given to them, there be any Reason or Ground for the King to call these Per­sons to an account: if there be probable ground, it is as much as you are to enquire into. You are not to judg the Persons: but for the Honour of the King, and De­cency of the Matter, it is not thought fit by the Law, that Persons should be accused and indicted, where there is no colour nor ground for it, where there is no kind of suspi­cion of a Crime, nor reason to believe that the thing can be proved. It is not for the King's Honour to call Men to an account in such Cases; therefore you are to enquire Whether that that you hear, be any Cause or Reason for the King to put the Party to answer it. You do not con­demn, nor is there such a strict enquiry to be made by you, as by others that are sworn to a Fact or Issue. A pro­bable Cause, or some Ground, that the King hath to call those Persons to answer for it, is enough (Gentlemen) for you to find the Bill, it is as much as is by Law required.’

From this great Oracle of Law, may easily be ga­thered;

1. That any probable Ground or Reason that the King hath to question a Person for such a Fact, any kind of suspicion of the Crime, and that it may be proved, is enough for a Grand-Jury. 2. That the Grand-Juries Work is not to condemn, nor to make so strict an inquiry, as the Jury for Trial, who are sworn to a Fact, or Issue. Add now to this, the common sayings of some little Country Lawyers at a Sessions Cushion. That the Grand-Juries finding the Indictment is Evidence enough. And affirming to Juries, That this is Law; and observe what follows.

Then a suspicion that a Man hath stollen an Horse, or a probable Ground that the King hath reason to question a Man for a Murder, without any strict inquiry into the thing, [Page 27] whether it be so or no, is ground enough by Law for a Petit-Jury to find a Man guilty of the Theft, or of the Murder. But this was not my Lord Chief Justice his sense, who tells us the Jury for Trial, who are sworn to a Fact or Issue, must make a strict enquiry, as to which he conceiveth a Grand-Jury not concerned; and therefore what they find is no Evidence to a Petit-Jury. But those that find an In­dictment upon no other Evidence, are apparently forsworn, bringing in their Verdict not according to their Evidence, but without any Evidence.

CHAP. III.

1. I Know it is Forreign to this Discourse to debate the Question, Whether those Statutes of 23 Eliz. 29 Eliz. 3 Jac. do in all the branches of them concern Protestants, or no, particularly in those Branches which relate to coming to, or ab­senting from Church? Great Lawyers are divided in their Opinions as to it: those who think they do, urge,

(1.) The general words, every Person, and the mention of Recusants sometimes, without the addition of Popish.

(2.) The reference of those Statutes to the Stat. 1 Eliz. 2. in which they say Protestants as well as Papists are most cer­tainly concerned.

(3.) The Oath of Allegiance, which is within the Stat. 3 Jacobi, and may be given to any Protestants.

[Page 28] None of which can be determined, concludent, in the Case, after the fore-going part of a Statute hath declared the Reasons and Grounds for the making of that Law, viz. The bringing in of Popish Bulls, seducing People to the Ro­mish Religion, and determined such Persons guilty of Trea­son, (Crimes which no Protestant can be guilty of) tho' it follows as a means to prevent these things, that every Per­son that for a Month shall absent himself from his Parish-Church, shall forfeit 20 l. Yet certainly it is a fair Interpre­tation of it to restrain that general Term, to that sort of Persons which alone are mentioned in all the preceding part of the Act. Nor certainly in any just construction, can general words, whether Affirmative or Negative, have more extent in one Statute than in another. In the late Act for the Sabbath, made for the keeping that Holy Day from pro­phanation; and an higher end cannot be, God having made it the 4th Commandment in the Decalogue, and denominated all Religion from it, Isa. 56. 4. there is this clause,

‘Provided also, That no Person or Persons, upon the Lord's Day, shall serve, or execute, or cause to be served or executed any Writ, Process, Warrant, Order, Judg­ment, or Decree, (except in Cases of Treason, Felony, or breach of the Peace) but that the service of every such Writ, Process, Warrant, Order, Judgment, or Decree, shall be void, to all intents and purposes whatsoever. And the Person or Persons so serving, or executing the same, shall be as liable to the Suit of the Party grieved, and to answer Dammages to him for doing thereof, as if he or they had done the same without any Writ, Process, War­rant, Order, Judgment, or Decree.’

Here are no less than three general terms; nor is there one Line in the Act excluding Dissenters from the benefit of this Act, nor more authorising the Service of Warrants upon them for Meetings, than upon any others. It is true, the [Page 29] Act against Conventicles, gives a further liberty; but it hath always held a Rule in Law, That latter Laws abrogate such as were before, if contrary to them. Neither doth this Act abrogate it further than concerneth the Lord's Day, (the better Sanctification of which, was the design of the Act). Besides, were not the former Laws which gave Liberty to Ar­rest Men on any Days, abrogated by this Act, so far forth as concerned that Point? Yet multitudes of Justices have so in­terpreted these general terms, that Dissenters have no bene­fit by it in this point, Warrants are yet executed on them, and their Doors broken open by Warrants, on these days. So, as it seems, general words in Statutes, shall comprehend dissenting Protestants, where they will serve to do them mis­chief, but not where they may do them kindness. But this is a Question not yet decided (that I have heard of) by my Lords the Judges, as having not come judicially before them and the Justices. And others who have adventured thus far to make Blots, may some of them live to see them hit. General words are certainly every where of equal extent.

2. Nor is the reference to the Statute of 1 Eliz. 2. a proof, that all concerned in that Statute, are also con­cerned in the Statute of 23 Eliz. for it is mentioned only as directive of the manner how Persons should go to Church, and there behave themselves: How doth it from thence fol­low, that all who do not go, should be punished by a like Pu­nishment, because all are obliged to go to Church in the same Order, and to behave themselves there in the same decent manner? Nor is the third Argument of more value, for there is nothing more ordinary than to find heterogeneous things in the same Statute Law. Nor will it follow, That the Penal­ties for not coming to Church, in the Statute 3 Jacobi, concern Protestants, because the Oath of Allegiance in it doth, espe­cially when most Clauses in that Act express Popish Recu­sants. [Page 30] But the Clauses concerning that Oath, expresly men­tion any Persons 18 Years of Age, whether indicted or convi­cted of Recusancy, or no. But those who make this Objecti­on, should also consider that it is by the Act 7 Jacobi 6. that the Oath of Allegiance in 3 Jac. is given to Protestants, not by the Act. 3 Jac. 4.

3. The Arguments being no stronger for Protestants Con­cernment in those Acts, let us see what can be said to prove they are not concerned in them. I do not pretend to so good an acquaintance with Records: But if it doth appear, 1. that for threescore Years after the making the Act 23 Eliz. it was never put in Execution upon any but known and professed Popish Recusants, it is certain a greater Argument to prove that Protestants are not within it in any due Constructions, than any can bring to prove they are. 2. I am sure, if Protestants, though Dissenters, be within those Acts, they are, by the Statute Law of England, in a far worse case, and exposed to much higher Penalties, for not going to Church, and going to Meetings, than professed Papists are: for be­sides they are in all points made equal with them, as to the Stat. 23 Eliz. 29 Eliz. and 3 Jacobi; They are further in danger of the Stat. 35 Eliz. (out of which Papists are in terms excepted); According to which Statute, Protestants, (and none but they) for these Crimes may be forced to abjure the Realm, or to die like Felons. I would gladly un­derstand, from any Man of sense, to what purpose the Parliament 35 Eliz. should make so severe a Law a­gainst Protestant Dissenters, upon that little freak (the effect of a melancholick Deliration only) of Hacket, Cop­pinger, and Arthington; if they had thought they had been included in the Acts of 23 Eliz. made but twelve Years be­fore, or of 29 Eliz. made but six Years before? Was not the losing 260 l. a Year, a sufficient Punishment for any thing they had shewed themselves guilty of? Or was it judged [Page 31] punishment enough for Papists; for the Papists, who had attempted to poison, to stab the Queen, to invade her by an invincible Armado, to raise up Rebellion in the Nation, and not enough for Protestants? Can we judg that any English Parliament in those days could so judge? The Act of 23 Eliz. was made upon the Papists filling the Land with Priests and Jesuits from the English Seminaries at Doway, Rhemes, and Rome; their publishing of Books to stir up Re­bellion in England, declaring that the Pope, and the King of Spain, had conspired that England should be made a Prey: And the woful stir then made by those active Jesuits, Cam­pian and Parsons. Campian, Sherwin, Kerby, and Briant, were taken the Year before, Anno 1581. This Act passed 1582. The 29 Eliz. was 1588, when we were invaded by the King of Spain's invincible Armado; and six Years before Campian, the Head of that Faction, had openly declared, that in case of such an Invasion, he would take part with them against the Queen. The Act 3 Jacobi, came forth up­on the Powder-Plot. I appeal to any Man of ordinary sense, whether he can think that the Parliaments of those Times, ever intended to put Protestants into a far worse condition than Papists, which they apparently are, if these Sta­tutes equally concern them as well as Papists, and they then were liable to the Act 35 Eliz. out of which Papists are ex­presly excepted.

4. Further yet; I do very well know that Votes of Par­liament repeal no Laws, much less have the force of Laws in them, nor are to be mentioned in legal Pleas: But the Question here is not, whether these Acts be of force or no? It is on all hands granted that they are; but what is the true sense and meaning of them? And (as to that, under cor­rection) I think a great deference is to be given to the Parliaments Judgment declared in them, the far greater part of all the gravest and most famous Lawyers of England [Page 32] being generally in every Convention, or Session of Parliament. It was, as I remember, either in the latter end of the Year 1677, or the beginning of the Year 1678, that upon the Petition of the Quakers, the Parliament (at that time sit­ting) first took notice, That the Laws made principally against Papists, were executed princially upon Protestants, and appointed a Committee, who spent a great deal of time in examining the Returns of Convictions made upon those Statutes into the Office, and applied themselves to his Maje­sty for favour to his Protestant Subjects as to those Laws. About the middle of the Year 1678, the horrid Popish Plot was discovered; from Michaelmas that Year, till Decemb. 30. the Parliament had enough to do to search into the Popish Plot, and they had made but little progress in it when they were Prorogued, which was Decemb. 30. and soon after Dissolved. The next Parliament began March 6. 1678/9, and sat until May 27.1679. their whole time was also spent in a further discovery of that Hellish Plot. All this while I met with no Declarations of the Parliament's mind or sense in the case of those Acts: Nor (as I believe) were there any complaints of any prosecutions of Protestant Dissenters, upon any of those Statutes. The next Parliament began Octob. 21. and held unto Jan. 10. 1680. By this time the Popish Party had a little recovered their Courage, and began to defame the very Report of a Popish Plot. They had eight months before began to sham it, tho' with very ill success: But be­fore this time they had began to divert the prosecution of it, by obtaining of their Friends (who would be thought Protestants) every where to prosecute Dissenters upon those Statutes. The Parliament that sat down Octob. 21.1680. had intelligence of it. The Term before Estreats were given out upon all Convictions upon those Statutes; but with ex­press Instructions, from the Commissioners of the Treasury, to leavy the Forfeitures upon none but known Popish Recusants, [Page 33] which 'tis likely that in many Counties the Sheriffs observed. In others 'tis certain they did not, but levied them equally, if not principally upon Protestants; but were inforced to refund some of them, and for a great while after this, upon a Certificate into the Exchequer, that the Persons were Pro­testants, and had taken the Test, proceedings against them, by order out of the Exchequer, were staid. This is sup­posed to have proceeded from his Majesty's Goodness, com­plying with the desires of his Parliament, in the Case of the Quakers. The House of Commons which sat in the Westmin­ster Parliament, Octob. 21. 1680. had sat but a Month and two or three odd days, before they came to this Vote, with­out one Man's contradiction, in Nov. 1680.

‘Resolved, nemine contradicente, That it is the Opinion of this House, that the Acts of Parliament made in the Reigns of Queen Elizabeth, and King James, against Po­pish Recusants, ought not to be extended to Protestant Dissenters.’

Accordingly, they made their Application to his Majesty by the Members of their House, which were of his Maje­sty's most Honourable Privy Council, beseeching him, That all the Protestant Dissenters prosecuted upon those Acts, might be discharged, without paying any Fees; and that he would re­commend this Business to the Judges. Upon the 26th of Novemb. 1680. we find it thus in the Votes, under the Speaker's Hand.

‘Mr. Secretary Jenkins acquainteth the House, that his Majesty had been attended by the Members of his most Honourable Privy Council, with an Address concerning Protestant Dissenters. And that his Majesty's Answer is, That they should be discharged, and that without Fees, as far as might be done according to Law, and they shall be recommended to the Judges.’

[Page 34] The Parliament which then sat, hath the repute to have been short of none, who ever sat within those Walls, for Men of Honour, Wisdom, and Estates.

Here was plainly their Judgments declared, That these Acts concern not, nor ought to be extended to Protestant Dissenters. After which certainly that single Country Justice, or Lawyer, who dareth to say they do, must arrogate much more to himself than he ought to do, considering how ma­ny of the greatest Lawyers of England unanimously con­curred in that Vote, which did not repeal those Laws, nor stop or supersede the execution of them, but only declared the sense of them.

If any Person, after all this, will affirm, they do concern them as well as others, I have nothing more to say against it, but only wish, That the Question might be determined by my Lords the Judges, and not left to the various determi­nations of puny Lawyers, and many Justices of the Peace, who were never bred to the Studies, nor exercised in the practice of our Laws. This whole Discourse is but a Di­gression from my proper Theme; for admit those Statutes do concern Protestants, it is another Question, Whether Grand-Juries, finding such Indictments, be Evidence to a Petit-Jury in the Case? The Affirmative part of which I never look to find determined by Judges; what-ever be determined as to the other Question.

CHAP. IV.

WHat can remain further, but that as an Orator for the Great God of Heaven and Earth, I should admonish all my Country-men, who have been deluded by their own Lusts and Passions, or over-awed by any others, to make any such Presentments of things whereof they had no knowledg, or which they could not do in Truth, or to find any such Indictments without any Evidence, and this after that in Judgment they had called God to Wit­ness, that they would present nothing but the Truth, and what came to their knowledg, and true Deliverance make ac­cording to their Evidence. And after they had sealed this their Promisory Oath, by disclaiming any desire of help, or Salvation, from God and his Gospel, if they do present any thing but the Truth, that should come to their knowledg; or find any otherwise than according to their Evidence.

That they would every one make haste, and bring their Trespass Offering to the Lord, by a serious confession of an Iniquity, than which hardly any is capable of higher aggra­vation, and make satisfaction to their Neighbours for the wrong they have done them by forswearing themselves, (in [Page 36] which Case no Divines will say Repentance is true, without what Satisfaction we are able to give our Neighbours); up­on their Souls will lie the cries of Parents, Husbands, Wives, and Children, imprisoned, or ruined and undone, by their going expresly contrary to their Oaths in Judgment; and let them be assured, there is Wrath against them from the Lord; and if those Texts, Zech. 5. 4. and Mal. 3. 5. be pieces of Holy Writ, God will be a swift Witness against them; and the Curse of God will enter into their Houses, and abide there until it hath consumed the Timber thereof, and the Stones there­of. If therefore you believe there is a God, or that the Scriptures are the Word of God; If you believe that both your Bodies and Souls are subject to the Power and Justice of God, both in this Life, and that which is to come, shew it by fearing to swear, and not punctually doing according to what you have sworn. There is no greater indication of Atheists than swearing falsly, or not performing punctually what they have sworn. Nor is it possible that there should be a more infamous Pest of Humane Society. True Oaths in Judgment preserve and uphold it; false swearing destroys it, and turneth it into an Herd of Beasts: for it is not pos­sible Justice should be supported, where the Religion of an Oath is lost. Whosoever sweareth falsly to the prejudice of his Neighbour, whether as a Juror or a Witness, is condem­ned in the Law of God; and though his Judgment may sleep awhile, yet it is not probable it should sleep long, when demanded of the Righteous Judg, by the importunate Cries of so many as are oppressed by it.

2. And let it not be accounted presumption in me, to be­seech such worthy Gentlemen as his Majesty hath thought fit to dignify with the Commission of the Peace, to consider what they do in Causes of this Nature. Those Noble and Worthy Gentlemen, cannot but know that it is most noto­riously contrary to the Law of England, for those who are [Page 37] Judges, in any case to influence Jurors, or Witnesses; who being under Oaths, ought to be left free to the true Obser­vance of them, and not urged either to what is certainly, or is in their opinion a violation of them. Witnesses ought not to be instructed; and to be so instructed, is enough, accord­ing to all just Laws in the World, to invalidate their Testi­mony. Constables in their Presentments, given in at Assizes and Sessions, are Witnesses, they are (generally) all the Evidence Grand-Jurors have, unless some Informers (which is very rare) swear such Informations or Indictments before them: Or some of their own Body know the Matter of Fact to be true, which as rarely happeneth. To instruct them, and much more to threaten and fright them into such Presentments, is the boldest violation of all Laws, both of God and Men, that is imaginable. Judges have no more to do, than to declare the Law, and to receive such Present­ments of Facts contrary to it, as Persons upon Oath shall give freely, according to their Consciences. If Persons un­der Oaths to make Presentments, do not make them truly, they may be legally prosecuted for their Concealments; but to force them, being upon their Oaths, to make Present­ments, which they profess they cannot do in Truth, is what is neither justifiable to God nor Men. That Jurors are not finable by Judges for their Verdicts, hath been resolved twice within these few Years; once by Parliament, in the Year 1677, in the Case of my Lord Chief Justice Keeling, who had fined a Grand-Jury in Somersetshire, for not finding an In­dictment of Murder, for which they saw no Evidence. The Parliament judged, That the Presidents and Practices of fining Juries, in, and for not giving their Verdicts, is Illegal, and the Chief Justice was then for it brought upon his Knees to the Bar of the House of Commons. The other by the Justi­ces of the Common Pleas, in Brown Bushel's Case, largely reported by my Lord Chief Justice Vaughan; and certainly [Page 38] they are no more to be over-awed and threatned, than to be fined. The Wise Man commandeth us, saying, Prov. 23. 10. Remove not the old Land-mark, and enter not into the Fields of the Fatherless. The removing of old Land-marks in Judgment, and entring into the Fields of the Father­less, usually follow the one the other; they are seldom or never removed, but in order to some notorious Oppression: The Curse of God therefore is against them that do it; Deut. 27. 17. Our Fore-fathers set these as Land-marks, for Publick Justice, That no Persons in our Publick Courts of Judicature should be deprived of Life, Liberty, or Proper­ty, but by the Judgment of at least 24. Persons; twelve or more to enquire whether there were any probably just ground, so much as to call in Question such a Person for such a Crime, for which any such Punishment should be in­flicted; other twelve, to try the thing in issue, according to such Evidence as they should have upon Oath given of it. That neither the first nor second of these Juries should be awed, or threatned into their Verdict, nor fined for it, but left to their Consciences upon their Oaths. That nothing should be found against any but upon good and sufficient Evidence of ho­nest and legal Witnesses. If these ancient Land-marks be re­moved, we shall soon see entring into the Fields of the Fa­therless.

3. I shall conclude with another saying of Solomon, Ec­cles. 10. 8. He that diggeth a Pit, shall fall into it; and who­so breaketh an Hedg, a Serpent shall bite him. Those that al­ter the just Order and Boundaries of Law, founded upon Reason and Justice, usually pay for their Folly; cutting up a Bridg, which at one time or other they or their Children will want for themselves to pass over, for the avoiding of the hands of Violence and Oppression. We shall observe that the Righteous God punisheth no Sins so frequently by Re­taliation, as those which are against Justice and Charity, and [Page 39] therein he infinitely commendeth his Love to humane So­ciety, for the preservation and upholding of it, against the brutish Passions of those who will deny their own reason to disturb it; and abjure their Manhood, to prove them­selves Creatures, meerly under the conduct of their concupis­cible or irrascible Appetite; from which sottishness let every good Man deliver himself.