Selected quad for the lemma: law_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
law_n	case_n	common_a	court_n	6,531	5	6.7270	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A62698	Tam quam, or, A attaint brought in the supream court of the King of kings, upon the statutes, Exod. 20. 7, 16 and Levit. 19. 12 against those modern jurors, who have found any indictments upon the statutes of 23 Eliz., 29 Eliz., or 3 Jacobi, against Protestants, for monthly absence from church, without any confession of the parties, or oath of witness against them, or made any presentments of them : contrary to the express letter of their oaths taken in a Court of Judgment, the course of the law of England, or any right reason : wherein is discoursed, whether any Protetant be concerned in that part of those laws? : the contrary is proved : as also whether a grand-jury's finding and indictment, be any evidence to a petit-jury? : the absurdness, and most pernicious consequents of which are detected, and the vengeance of God agaisnt false-swearing is declared / by one who prosecutes, as well for his sovereign lord the King of kings, as for the lives, liberties, and properties of all the subjects of England.	One who persecutes as well for his sovereign lord the King of kings as for the lives, liberties, and properties of all the subjects of England.	1683 (1683)	Wing T133; ESTC R17	24,452	40

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 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 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. The Forms of the Oaths administred to Grand-Jurors Petit-Jurors and Witnesses at the Assizes or General Quarter-Sessions The Presentments of Grand-Juries upon the aforesaid Statutes with the Form of the Indictments found either by them or Petit-Juries Their Method in proceeding Grand-Jurors by their Oath can present nothing but what they know to be Truth either of their own Knowledg or the Oaths of credible Persons but they must be forsworn Petit-Jurors are forsworn if they find without Evidence The Law no where casts the Proof upon the Party accused but in this Case directs other Evidence expresly Grand-Juries finding an Indictment no Evidence to the Petit-Jury of the Truth of it proved by six Arguments The pernicious Consequents of the allowing them to be Evidence as a Grand-Jury It confounds Accusers and Evidence in some Cases Judges and Evidence in other Cases The Law allows it in no Case Nor can Petit-Jurors without being forsworn find an Indictment upon no other Evidence 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 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

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 40 s. 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 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-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 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 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. A short Disquisition whether the Statutes of 23 Eliz. 29 Eliz. and 3 Jacobi concern any Protestants The Arguments for their concern in them propounded and answered and found too light to ballance three great Arguments to the contrary which are propounded and enlarged upon 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

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 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 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 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 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 FINIS There is lately published a useful Treatise for this present Juncture Intituled The Case and Cure of Persons Excommunicated according to the present Law of England With some Friendly Advice to Persons pursued in Inferior Ecclesiastical Courts by Malicious Promoters both in order to their avoiding Excommunication or delivering themselves from Prisons if imprisoned because they have stood Excommunicated Fourty days With an account of their several Fees due in those Courts Sold by Richard Janeway

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 Every Member of a Petit-Jury takes this Oath 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. 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 Vnlawful 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 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 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 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 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 Vnrighteousness 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 Vnrighteousness 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 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 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 4 s. it saith Vpon 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 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 Vnderstanding 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 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

the Stat. 3 Jacobi and may be given to any Protestants 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 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 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 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