[Page 1]

THE CHARGE OF The Honourable James De Lancey, Esqr. Chief [...] Province of New-York, TO The [...] Grand-Jury for the City and County [...] [...]esday the 15th of October, 1734

The NAMES of the JURORS are as follow, viv.

James Roosevelt, , • Abraham Lynsen, , • John Groesbeck, , • Nathaniel Marst [...], jun. , • Peter de Peyster, , • Banand Reynders, , • George Thomas, , • Stephen Cortland. , • Robert Wats, Fore-man, , • John Moore, , • David Clarkson, , • Enoch Stephenson, , • James Fauiezer, , • Abraham Boelen, , • Anthony Duane, , and • James Livingston,  Printed at the Request of the said GRAND-JURORS.

Gentlemen of the Grand-Jury;

YOU are now met here for the Service of this City and County, and in order that you may be better enabled to perform this Service, and discharge the Duty inc [...]bent on you, I shall say something to you of the Oath you have taken, to declare the Nature of it, and what is required thereby, at your hands, and then I shall proceed to mention and explain to you some of the Offences that are to be the subject of your Enquiries.

[Page 2]Before I enter into the Particulars of your Oath, it may not, I think, be improper to say something, in the first place, of the Nature of Oath [...] in general.

An Oath then is a Religious Asseveration, by which we either Re­nounce the Mercy, or imprecate the Vengeance of Heaven, if we speak not the Truth. This appears from the form of words in which it is expressed, to wit, So help you God. This is look'd upon as the most Sacred Tye, the strongest Band on Mens Minds, the surest and best means to find out and discover the Truth; for it is not to be imagined, though some few may possibly be found so hardned in sin, that Men in general will be so daring as to appeal to the GOD of Infinite Knowledge and Power, for the Truth of what they say, and yet Corruptly and Will­fully Perjure themselves. Gods Infinite Knowledge must discern the Crime, and by his Power he will certainly punish the Breach o [...] his express Command which he has given, Ye shall not Swear Falsly by my Name, Neither shalt thou Profane the Name of thy God,—He that Sweareth unto his Neighbour, and disappointeth him not, though it were to his own Hindrance, is part of the Character of a Just Man, and one who should dwell in the Tabernacle of the Lord, — Even the Heathens have abhorred Perjury as an Odious Crime, looking on it as the greatest Impiety towards their Gods, and a Dissolution of the strongest Band of Human Society, of which many Instances might be given; but I rather chuse to exhort you to your Duty by Motives drawn from the Precepts of the Law of GOD.

NOW, as to your OATH, the first Things required in it, are Diligence in your Enquiries, and Truth in your Presentments. You shall Diligently Enquire, and True Presentment make. Diligence is to spur you on in finding out Offenders, that their Crimes may be Detected, and that they may be brought to Condign Punishment, according to their Demerits, and Truth is to be your Guide, the Compass you are to steer by, that the Innocent be not called into Judgment, and that the Guilty escape Not.

AND this Enquiry is to be of all such Matters as shall be given you in Charge, or shall come to your Knowledge; for as you are chosen from the different Parts of this City, it is to be presumed, that you must have heard of most Things which happen within it.

NEXT follows, The King's Counsel, your Fellows and your Own, you shall keep Secret. By the King's Counsel is to be understood the Evidence of the Witnesses who are brought before you, which ought not to be disclosed by any of you, but is to be kept Secret, and concealed from the Party concerned, and all others. For, tho' possibly at this time there may not be sufficient Evidence against an Offender, yet upon a farther Enquiry and Examination, a succeeding Grand Jury may find Matter enough against him to ground an Indictment on; and therefore the Par­ticulars ought to be kept Secret, l [...]st the Discovery prove an Occasion of the O [...] escaping. As you are to keep the King's Counsel, so are you [...] [...]ellows and your Own to keep Secret. You are Not to [Page 3] Reveal, for the same Reasons, what has been [...] or Advised among your Selves; for besides the Obligation of your Oath, it is an Offence punishable by Fine and Imprisonment, for any of the Grand Jury to disclose the Persons Indicted, or the Evidence against them.

THE Next thing considerable in your Oath is, The Temper of Mind you ought to bear in all your Enquiries. You are not to suffer Malice or Ill-Will so far to prevail with you, as, without just Cause, to Present an Innocent Person, neither ought Love, Fear, Favour, Affection, Reward or Hopes thereof, sway you to leave any thing Unpresented; for your Oath ought to out-weigh any Considerations: And you ought to Present things Truly, as they come to your Knowledge. Truth is the Rule you are to walk by, and is the most Essential part of your Duty, and if of so much Consideration in the Service to which you are now chosen, that it forms the Beginning and Conclusion of the Oath you have taken. And all this that is required of you, is to be performed accor­ding to the best of your Skill and Knowledge.

Now as some general Notion of what the Law declares to be Offences, is requisite to this End, it is the Office of Us who sit here, to assist and direct you. And this leads me to mention some Particulars.


We commonly divide Offences as they relate to the Persons against whom they are committed; and they are said to be either against the Supreme Being, GOD, or against MAN. As to Offences against God, they may be considered under Two Heads. They are either such as, although in themselves they are Crimes of the deepest Dye, yet as they have not so direct a tendency, as some others, to Subvert Civil Society, our Laws have not provided Punishments suitable to them, but they are left to that Tribunal at which they are most properly Cognizable, and to that Judge to whom Vengeance belongeth. Or, Secondly, They are such as at the same time that they are high Offences against God have also an immediate and manifest tendency to Overthrow the Peace and Des [...] the Well-being of every Community. The latter (Gentlemen) are the Object of Human Laws; Not that these can add any weight or Authority to the Divine Law, but because Temporal Punishments being nearer in view, are apt to work more strongly on weak and inconsiderate Minds than the distant, though far greater Punishments of another Life. Under this Head I think it not improper to place Perjury, or Breach of Oath, which I touched before. This is a Crime of a most Odious and Detestable Nature; it is the highest Indignity and Affront to God, and it loosens and dissolves the Bands of Society; for if Men lay aside all respect to the Obligation of an Oath, there must be an end of all Con [...]s of Judi­cature: We have no other Mean to judge of Right or Wrong, Truth or Falshood; nor any Security left for our Lives, Liberties and Properties; All must run into Confusion, when the Reverence for this Solemn Appeal to Almighty God is once extinguished in Mens Minds. This cannot be too often [...]nculcated, and requires your utmost Diligence.

Offences against Man, are of Two sorts, they are either more immediately against the King, or more immediately against the Subject.

[Page 4] Offences against the King more immediately, are High-Treasons are Misprisions of Treasons. Under this Head I shall only mention are s [...]t, and that is Levying War against the King; and to this Purpose I shall read a Paragraph or two [...]ut of Howk [...]s's He [...]s of the Crown, Chapter of Treasons, Sect. 23, and 25. where recounting what Acts shall be said to amount to a Levying of War against the King, he says, ‘That not only these who directly Rebel against the King, and take up [...] [...]c [...] [...] him, but also in many other Cases, those who in a Violent are I [...]ble Manner with-stand his Lawful Authority, or endeavour to Reform his Government, are said to Levy War against him." And that "these also who make an Insurrection in order to Redress a Publick G [...]ce, whether it be a real or pretended One, end of their own Authority [...], with Force, to Redress it, are said to Levy War against the King, although they have no direct Design against his Person, [...]s [...]th as they Insolently invade his Prerogative, by Attempting to do that by Private Authority, which he [...]y Publick Justice ought to do, which manifestly tends to a down right Rebellion. As where great Numbers by [...]ce Attempt to Remove certain Persons from the King, or to lay violent Hands on a Privy Counseller, or to Revenge themselves against a Magistrate for Executing [...]s Office, or to bring down the Price of Vic [...]als, or to Reform the Law or Religion, or to pull down all B [...]dy-Houses, or to Remove all Inclosures in general, &c.

I Now Proceed to those Offences more immediately against the Subject.

The highest of these is Petty Treason, which is, where a Wife Mur­ders her Husband, or a Servant his Master. Now because of the Obedience they owe, and the Subjection they are under, respectively, the Law loo's upon this as a higher Crime than any other Murder.

Next to Treasons are [...]elonies. And herein, first, of Homicide, which is the [...]ling of a Man, [...]s the word imports: Every [...]cide is Voluntary or Involuntary. Of Voluntary Homicides, the fast [...] Murder, which is the [...]l [...]mo [...]s killing of another with Malice fore-thought; this is a very h [...]m [...]s Crime, and in the Indictment is frequently and To be done by the Instigation of the [...]vil, and as Not having the Fear of God before his [...]s. The Law of God says, Thou shalt do no Murder, and declares, Whoso sh [...]dd [...]th Mans Blood, by Men shall his I leed be shed: If one give another a Mortal Wound, whereof he dyeth within a year and a Day, this is Murder, if done Maliciously. Of Malice there are Two sorts, Express or implyed. Express is, where it is known, and may be proved, that there was a former G [...]u [...]ge, some pre [...]dent Ill-Will between the Parties. Implyed, is, when one Man kills another without any [...] Provocation. And here it is proper to observe, That No [...]. No Words, No Language, though never so Opprebious and [...] will justifie or excuse Murder. If a Prisoner by the hard Usage of the [...], come to an Un [...]ly End, it is Murder.

[...] [...]r is another sort of Voluntary Homicide, as where two Men [...] of a sudden, without any Malice prec [...]nt, and in the S [...]uffle one of their [...]rn.

[Page 5]Of Homicide Involuntary, some are per Infortunium, i. e. by Mischance, as a Man cutting down a Tree, which accidentally falls upon another, or the Ax flies from the Helve and kills a stander by, this is Chance-medley, or Homicide by Misadventure.

Some are of Necessity, and of several sorts; First, In Execution of Justice, as an Officer that executes a Criminal in pursuance of a Judg­ment of a Court that has legal Jurisdiction. Secondly, For Advancement of Justice, as where a Sheriff is going to Arrest a Person indicted of Felony, he may justifie the Killing him, if he will not suffer himself to be Arrested, but defends himself, so that the Officer cannot take him without killing him.

Some Homicides are justifiable, as if any Person Feloniously attempts to Rob or Murder another in or near the High-way, which is a com­mon Passage that ought to be free and open to all Travellers, he may justifie the killing him. The same of an Attempt in the Night, to Rob a House; for a Mans House is his Castle, and the Law allows him to Defend himself in it, se defendendo, for the Killing a Man in the just Defence of Ones Self, is a Homicide Excuseable. This is founded on a Primary Law of Nature, which teaches us to be watchful of our own Preservation, and so excuses Resistance against an Unlawful Attempt on our Lives. But herein the Law is very careful not to give way to the sheding of Blood; for no one is excusable in this case, if he could by any means avoid it, without endangering himself, and he is obliged by our Law to retire back to the Wall, before he may make use of this Law of Self-Preservation, unless he be so fiercely assaulted, that he cannot. This ought always to be done [...] Moderamine inculputae tatelae, m [...]erly to preserve his own Life.

In all cases of Homicides, the Law chiefly respects the Intention; for effectio tua nomen impo [...] operi [...], i. e. The Intention give the Deno­mination to every Action; and this is so much regarded by the Law, that Persons incapable of any, can [...] commit Murder, as a Mad-man, for no Action can be imputed to him, or properly be called his, and the killing another is not Felony in him, it is his Misfortune, and the Hand of God is upon him, but a Man that is N [...] compos mentis, i. e. of unsound Mind, his own Act, shall not be so excused, as a Drunken Man, if he commits Murder, his incapacity of Mind shall not avail him, because he brought it upon himself, it was his own Folly; and therfore the Law will supply the Malice, and he shall be hanged; Omne Crimes ebrietas et incendit et de [...]t; i. e. Drunkenness enflames and discovers every Crime; and no Man shall be allowed to excuse one Crime by another. These are the several kinds of Homicides, some whereof induce Forfeiture of Life, [...] and Goods, as Murder, s [...]m of Goods only, and are said in our [...], to be excuseable, because they have their Pardon of course, as [...]cide, in ones just Defence, or by Misadventure; and some of neither, [...] are called Homicides justifiable.

[Page 6]I shall speak next of Felonies against the Habitation or Dwelling of a Man, the first of these is Burglary, which is, where one in the Night time breaks and enters the Dwelling-house of another, with intent to commit a Felony, although he carries nothing away, yet it is Burglery; for as the Day is designed for Man to Work and Labour, so is the Night for his Rest, to e [...]able him the better to go through the Business of the Da [...] ▪ and then the Law takes his Goods into its more immediate Care and Protection, in order to their greater Security: There must be a break­ing; to take out a P [...]ne of Glass Window, unlock the Door, draw the Latch, or make a hole in the Wall, these are all Breakings. A Man lies in one part of the House, his Servant in another, and between them there is a Door latch'd, and the Servant in the Night time draws the Latch, and enters his Masters Chamber to Murder him, though he does not effect it, yet it is Burglary. As there must be a breaking, so there must be an entring: Stepping over the Threshold, putting in the Hand, or a Hook, or a Pistol, within the Door or Window, all these the Law calls Entrings. A Thief broke a Pane in a Glass-Window, and took our Goods with a Hook, this was found to be Burglary. Several Men come to commit a Burglary, one breaks and enters, the others stay at the Door, or at the Corner of the Street, to watch; they are all guilty of Burglary: This by Law shall be adjudged the breaking and entring of them all.

Arson is another Felony against the Habitation of a Man. If any do voluntarily and maliciously burn the Dwelling-house of another, this is called Arson, and is Felony. One Maliciously burns his own House to the intent to burn another's, if his own be only burnt, then it is a high Misde­meanor; if the others also, then it is Felony.

The next Felony I shall mention, is Robbery, which is a Violent and Fe­lonious taking away from the Person of another, Money or Goods, to any Value, putting him in fear. If a Thief, with or without a Weapon drawn, bid me deliver my Purse, and I do it, it is a Taking sufficient to make it a Rob­bery. If a man seeking to make his escape, cast his Purse into a Bush, or let his Hat fall off, the Thief takes them up, it is Robbery. Taking in the Presence of the Party, is, in Law, a Taking from the Person. If several come in Company together to Rob, the one only actually does it, and the others are at some distance, yet all are guilty of the Robbery.

These Felonies that I have mentioned, are called Mix'd Larcenies. Simple Larceny is the Felonious and Fraudulent taking away by any Person, of the the meer Personal Goods of another, not from his Person, nor out of his House; if this be above the Value of Twelve Pence, it is grand Larceny, if under, petty Larceny, for which the offender shall be whipt. If two steal G [...]ds to the Value of Thirteen Pence, this is grand Larceny in both. If one Person at several times, at one time steals four Pence, at another six Pence, at ano­ther three Pence, from one Person, in all amounting to above twelve pence, it is said, all these put together in one Indictment, amount to grand Larceny, and Judgment of Death must be given, unless in cases where Clergy is not taken away.

Most of these Offences that I have mentioned are Capital. I shall only take Notice of one or two which are not Capital, and then dismiss you [Page 7] And first, of Offences which amount to an actual Breach of the Peace, they any of two kinds, 1st, Such as may be commited by one or two Persons. 2dly, Such as require a greater Number. Of the first sort are Assaults and [...] these, if done to Persons of Note, or may have any ill Conse­ [...]nces, are worthy of your Enquiry. Of the second sort, are Riots and [...]ful Assemblies. A Riot is, when three or more Persons, do meet to do [...] unlawful Act of a private Nature, and actually do it; for if it be of a Publick Nature, it may amount to that species of High-Treason, I before mentioned; but if they meet and do it not, then it is an unlawful Assembly.

Gentlemen, I shall conclude with reading a Paragraph or two out of the [...] Book, concerning Libels; they are arrived to that height, that they [...] for your Annimad version, it is high time to put a stop to them; [...] at the Rate things are now carried on, when all Order and Go­ [...]ment is endeavoured to be Trampled on. Reflections are cast upon Per­ [...] of all Degrees, must not these things end in Sedition, if not timely [...] [...]enty you have seen will not avail, it becomes you then to [...] Offenders, that we may in a due course of Law be enabled [...] if you, Gentlemen, do not interpose, consider whether [...] that may arise from any Disturbances of the Publick [...], may not, in part, lye at your door?

Hawkings in his Chapter of Libels considers three Points, 1st, What shall be said to be a Libel, 2dly, Who are lyable to be punished for it. 3dly, In what manner they are to be punish [...]d. Under the first, he says, Sect. 7. ‘Nor can there be any doubt, but that Writing which defames a private Person only, is as much a Libel as that which defames Persons entrusted with a Pub­lick Capacity, inasmuch as it manifestly tends to create all Blood, and to cause a Disturbance of the publick Peace; however, it is certain, that it is a very high aggravation of a Libel, that it tends to scandalize the Government, by reflecting on those who are entrusted with the Administration of publick Affairs, which doth not only endanger the publick Peace, as all other Libels do, by stiring up the Parties immediately concerned in it, to acts of Revenge, but also has a direct tendency to breed in the People a dislike of their Governours, and incline them to Faction and Sedition.’ As to the second Point, he says, Sect. 10. ‘It is certain, not only be who composes or procures another to compose it, but also that he who publishes, or procures another to publish it, are in danger of being punished for it; And it is said, not to be material whether he who disperses a Libel, knew any thing of the Contents or Effects of it, or not; for nothing could be more easie than to publish the most Virulent Papers with the greatest Security, if the concealing the purport of them from an illiterate Publisher, would make him safe in the dispersing them. Also, it hath been said That if he who hath either Read a Libel himself, or hath heard it Read by another, do afterwards Maliciously Read or Repeat any part of it in the presence of others, or lend or shew it to another, he is guilty of an Ʋnlaw­ful Publication of it. Also, it hath been holden, that the Copying of a Libel shall be a conclusive Evidence of the Publication of it, unless the Party [...]n prove, that he delivered it to a Magistrate to examine it, in which case [...] [...]ubsiquent is said to explain the Intention precedent. But it seems [Page 8] to be the better Opinion, That he who first writes a Libel, dictated by another, is thereby guilty of making it, and consequently punishable for the bare Writing; for it was no Libel till it was reduced to Writing.’


You must have heard of two Scandalous Songs that are handed about, it is your Duty to enquire the Author, Printer and Publisher of them. Someties heavy half-witted Men get a knack of Rhyming, but it is time to break them of it, when they grow Abusive, Insolent and Mischievous with it.

THESE (Gentlemen) are some of the Offences which are to make Part of your Enquiries, and if any other [...]ould arise in the Course of your Proceedings, in which you are at [...], or conceive any Doubts, upon your Application here, We will ass [...] [...]nd direct you.

Printed and Sold by William Bradford in New-York, 1734

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.