CONCERNING PENAL LAWS A DISCOURSE OR CHARGE at SESSIONS In the BURROUGH of BRIDGEWATER 12 July 1680. By Sir JOHN MALLET Kt. Recorder there Part thereof being APOLOGIE for GENTLENESS to Protestant Dissenters LONDON Printed for Thomas Cockeril at the Three Legs in the Poultrey over against the Stocks-Market 1680. ADVERTISEMENT TO THE READER IF it hath been a supposal of some Wise men of late That rather than live where all things were lawful it were better dwell where nothing were lawfull but what 's Commanded Which shall be admitted rather than disputed because neither case of that supposal is ever likely to happen in any Christian Countrey It may perhaps by some be thought a happiness to be debarr'd what was used to be the last Liberty of the Unfortunate to VVish or to Petition by such restraint to reduce Thoughts as well as Obedience which is due to all the Ten Commandments to be confin'd only to the Fifth From the like leave of using supposals may it be lawfull to suppose that If some of those whose holy Function should be to teach men all their Duties both to God and Man had instead of Moses been in the Mount they would have pray'd God what sin soever it would be to think so little of God as to hope he would grant their bold request to give them only that one Command of Obeying Magistrates under the Name of Parents and to leave all other Laws to their own dictating how they would have managed such Power by turning Religion and the VVorship of God into setting up themselves or Adoring and Flattery of Princes under the Name of Gods from the Mode of some and the many Absurdities that would be in Civil matters may be imagined rather than said But if they please to consider the Names Father and Mother there used seem as well a Prophecy as a Law that Princes should be Nursing Fathers of the Church as well of the tender and weak as of the strong Children of it As the best Princes have alwayes accounted it their greatest Glory to become and be call'd Fathers of their Countrey for their Love Protection and well Governing their People by those Lawes which by ancient Usage or prudent Legislation are found to be agreeable and Good thereby Government would be as well Firm and Honourable as also Easie and Pleasant both to Prince and People who would strive to excell each other the first by Princely Condescensions of Love the other by returns of faithful and loving Duty Such certainly would be the Condition of these Kingdoms under the Government of our King who by his Own most Noble Goodness deserves the Character of being the best Prince now living on the Earth if those whose sacred Professions of Religion Law and of giving Councel all which Qualities when well and justly used may be accounted Sacred as it is hoped some of those who are to give Counsel considering Honesty therein is the true way to be Honourable would be so honest in their Advices to his Majesty and their Administrations under him in whatsoever may concern Religion Law Safety and the good both of King and People as to preferre the inseparable common Interest of both before their own or any private advantage All inferior Ministrations would then surely go well or easily be set right if those higher Powers bestow the Influence of their care and good Example on them Amongst other things how low and small soever the ordinary course of Justice may seem there having been some misreports and private Censures of something lately said in a Discourse or Charge at Sessions for a Town therein mentioned concerning the Ancient and yet good way of Tryal by Juries A Friend of our English Laws having a true Copy of what was there said gives it to you which the Author of that Discourse would not else yield to publish He in that Discourse and the Friend who writes this Advertisement might say much more in Commendation of the Common Laws of England above the Civil or any other Celebrated Laws of Church or State or any other place had not the Excellent Preface of the Learned Sir John Davys to his Reports and the Cases there especially that of Premunire in the End of his Book saved the labour of repeating what may be not only necessary for all our Lawyers to know but delightfull for every Gentleman who may think himself concern'd in our English Laws to read there they and the Civilians and our Clergy also if they please may find by what our Ancestors answer'd when a Course of proceeding in Criminal Causes according to the form of the Civil Law was propounded and in another Case when in former Ages an Alteration of the Common Law was endeavour'd how concernedly they express'd their Love to the Laws of England A DISCOURSE OR CHARGE at SESSIONS In the BURROUGH of BRIDGEWATER 12 July 1680. Gentlemen my very good Friends now Return'd and Sworn of the Grand Jury for this Burrough of Bridgewater IT is now many years since by the desires and voluntary free choice of your Corporation I have been your Recorder And according to my duty I have been often present at your Sessions And as it is the Custom of all Courts of Justice and Sessions for one of the Justices in the Counties and for Recorders in their Towns by some discourse to the Grand Juries to say something of the Occasion of their Meeting and some general Recommendation of the Laws of England and to give in Charge the most material Articles to be Enquired and to Exhort the Juries to make Presentments with due care and regard to their Oaths and the Laws as the Cases shall require I have on these former Occasions here spoken my minde truely and freely But as often as it hath been my part to say any thing here or elsewhere in publick I have very seldom used or had the leisure to set down in Writing what I should say Yet now two or three dayes before my coming hither having consider'd some Inconveniencies which of late time have hapned and may happen to my self as well as others by mistakes or misreports to prevent which in what I have to say I have learnt from the care of Ecclesiastical persons and our Clergy in their Discourses at their Visitations as well as their Sermons to write what I have to say and with your leave to read and make use of my Paper in saying to you what I have here written Though since the short time I have had to think of it other occasions have hindred me from dressing this Discourse with any Exactness of Method or Language but instead of being curious it shall be plain and true Gentlemen This hath alwayes been accounted one of the most considerable good Towns of this County in respect of its Scituation Bigness the good Condition of the Inhabitants of it and heretofore and at this present well esteem'd for Trade being one of the best Markets in this County to
and Breach of the Peace it is call'd a Riot Upon presentment or Indictment thereof if the parties be found guilty they are to be punisht by Fine In any Travel unusually Armed to the terror of others Or are common Night-walkers especially if they be dangerous persons And any that hinder the apprehension of Malefactors or make Rescous or break Prison such Offenders are also to be enquir'd after and punisht according to the Law in such cases I forbear to make mention of those that shew strange and Monstrous sights because I will make no reflections on something lately in another part of this County whereof I will say nothing here There are other Offences against the Peace which are hurtful to particular persons of which if there be cause of complaint you will hear from the Parties grieved yet such matters are to be enquired of by you because the Indictments are on the Kings behalf the Offences being against his Laws and Peace Such are Assaults Battery Maims False Imprisonments Forcible Entries Unlawful Cutting and carrying away young Trees forcible Trespasses and hurting the Cattel and Goods of another Cheatings Deceits Menaces Threats and Slanders All these are Offences within your Enquiry and Punishable here and no doubt but many persons will be apt enough to make complaint concerning which if they bring their Bills and complain to you Justice must be done But many of these Angry differences happen among Neighbours which by Mediation of Friends may be happily ended between them without such trouble There are matters also concerning Artificers Labourers and Servants to be taken notice of and to be Ordered and redressed here If any such do conspire together to advance their Wages beyond Law and Reason If Workmen depart before their work be done If Servants behave themselves disorderly If any that are fit to go to Service and have no other visible Estate or means of Livelihood All these are to be order'd according to the Law in such Cases But if they be truly Poor and impotent they must be provided for and relieved Here I must recommend to the care of the Overseers of your poor the binding poor Children Apprentice as one of the best provisions to prevent the encrease of the poor and also thereby to prevent the ill and lewd Courses and Offences which by Idleness such young people would quickly learn and commit The Overseers of the Poor ought also to be careful in all other things belonging to their Office which if they neglect one Month they are under a Penalty for every such neglect Concerning Trades which in this Town are considerable By the several Statutes about Trade there are a great many Directions which you are pretty well acquainted with upon former Occasions which I suppose you have had to take notice of them that I may be the shorter in mentioning any of them now There being particular Laws about each or very many of these and other Trades Braziers Pewterers Tanners Curriers Shoo-makers Coopers c. That they shall make their Wares good and saleable and also concerning the Surveying Marking Sealing and Ordering thereof according to the several Laws in those cases If you find any thing needful to be Redress'd we will look into the particular Statutes and read them Else they are so long and many that it would take up a great deal of time The Laws only which concern Clothiers if we should mention all the particulars of them would require many hours But you may read those you may have occasion for and the Statute-book shall be ready for you This in short may suffice to tell you That as the Law hates and punishes Force done to your Persons and Goods it also doth hate and punish Frauds Deceit and Cheating in any trade or dealing And it takes Especial care of those Trades which concern Victuals That all sorts thereof which may be sold shall be good and wholsom Whether Flesh Fish Bread Drink or any thing else and at reasonable Prizes Those which shall hinder your Plenty are also punishable Whether they be Forestallers who buy in the way before coming to Market what should be bought there Regrators who buy Victuals in the Market to sell again in the same or in some Market neer thereunto to advance the price Ingrossers who get into their hands or custody by buying thereof great quantities of Corn or other dead Victuals to withhold the same from the Market when it is cheap and to sell again when the same shall be dear The Offenders shall forfeit the value of the goods and also have further punishment as the Law and Statutes in that case have provided 6 Ed. 6. Offences also that relate to proceedings in the Law are punishable by the Law Barretters who are common stirrers of Suits Actions and Quarrels in Law Those who endeavour to corrupt Juries Magistrates taking Bribes Officers taking undue Fees I hope there is no cause of any thing of this kind here for I believe you have a worthy and honest Maior Aldermen and Town-Clark and that all your Officers are honest If it be otherwise it is your part to enquire and bring them to Punishment And if I have taken any Bribe make me an Example of Punishment The Office of Clark of the Market I think belongs to Mr. Maior of your Town who is so worthy and just that I suppose there is no cause to complain of any thing relating to that Office I shall close what I have said with recommending and putting you particularly in mind of the Customs and Duties due unto his Majesty which all persons from whom they are due ought to pay without Resistance Fraud or concealment You all know the several Branches of the Kings Revenue by the several Acts of Parliament concerning them and there are Penalties for Refusals and Frauds You ought to pay the Duties justly to the Collectors and those who are employ'd to gather them If the Officers make complaints of your Defaults therein we must and will give them Assistance as the Laws require us to do And if upon hearing of the Case we shall find that the Officers Employ'd in the Collecting do you any wrong in any thing by those Laws referr'd to us we will take care that Right shall be done between you and them so far as the Acts of Parliament impower us concerning the same Gentlemen I might enlarge this tedious Discourse with a more formal Admonition concerning your Oath But I know you so well understand and are so honest that you will keep it and being dwellers in this Town you are better acquainted than I am with the Affairs of it and whatsoever I have omitted to give in Charge for your Enquiry within the Compass of your Town and Jurisdiction of this Court you will supply with your Care therefore I leave what belongs to you to doe therein to your Consideration FINIS
a few indifferent Ceremonies seeing they agree with us in the main and substantial matters of Doctrine And there hath been some considerable doubt whether those Penal Statutes which at the time of making them were exprest and intended to be only against Popish Recusants shall extend to Protestant Dissenters One other thing I have always thought of which I think is worthy the most serious consideration of all English Magistrates That the ever good and ancient way of Tryal even from the beginning of our English Laws having been by Juries whereof the Great Charter is but Declaration and Confirmation of our common Laws therein which also hath been multitude of times confirm'd by our Statute Laws and Acts of Parliament Justices of the. Peace and others to whom the Ministration of our Laws belong cannot be too careful in any matters left wholly to their Will and Power to hear and determine without Juries I say I think they cannot be too careful to avoid going beyond the Rigor of the Laws or hardly to the utmost Rigor of them For my part I think it hath been no unhappiness to me that whilest I was in Commission of the Peace in the County there was seldom any considerable Complaint made to me wherein I might Judge according to my own Will without a Jury And if there were at any time any such cause brought before me I thought it my best way for fear of exceeding the Laws if it must be thought an Error in me to be as gentle as may be to erre on the gentlest side By such means to prevent and reclaim any from Offending rather than to watch and take all Opportunities to make them feel the extremity of Penal Laws especially where the proceedings are without Jury Yet I acknowledge the Execution of such Laws are very just when the Magistrate doth not exceed the Directions and the Methods of those Laws and Statutes in those cases Though I have observed that some such Laws in King Henry the Seventh's time were of short continuance and soon repealed and two of the Promoters and busiest Executioners of them came shortly after to unhappy ends for their severe Exactions Besides how free soever any Justice may be from having any part of the Moneys yet if he be very active in Levying great Summs of Money by Fines set by himself out of Sessions unless in such other publick manner as may make it appear he hath no share it will be very hard to avoid being suspected thereof how free soever he may be of it I will give you some Observations more of Tryals by Juries They are to be of the same County indifferently chosen and return'd by Sworn Officers and are to be Free-holders or other honest men of good Understanding and sufficient Estate It would seem as strange a thing to see a very mean Jury rerurn'd to try Offenders of very great Quality as for the greatest sort of Persons to be returned and serve in the Tryals of persons of the lowest degree In what Manner and for what Causes the party to be Tryed may except against the Jury or any of them will not be needfull here to mention For my part I think Juries of the Gentry and Yeomandry or men of good Estates with some equality and indifference mixt together to be the best way of Tryal in the world and most agreeable to the ancient Laws of England I do not find that the Clergy-men though there be about nine or ten Thousand of them Free-holders in England reckoning about so many Parishes whereof they are Parsons and Vicars besides other Dignitaries have for above six hundred years been returned or serv'd as Jury-men I am sure in matters Criminal and cases of Blood they were never used as Juries in any such matters except perhaps which I am not very certain of concerning the Statute commmonly call'd the Statute of six Articles made in the Thirty first Year of King Henry the eighth Wherein what is there mentioned and call'd Heresie was thereby made tryable by Jury Of which Statute an honest and worthy Clergy-man Dr. Burnet in his History of the Reformation lately written by him and 23 May 1679. allow'd by the truly honourable Secretary Coventry to be Printed saith thus There was but one Comfort that the poor Reformers could pick out of the whole Act that they were not left to the Mercy of the Clergy in their Ecclesiastical Courts but were to be tryed by a Jury where they might expect more candid and gentle dealing Yet it seems the Clergy which were then of the Popish Religion did shortly after the making of that Statute leave off Juries and proceed in their Arbitrary way of Tryal without them For to remedy their so doing in the thirty fifth Year of the same King another Law was made That no person shall be put to his tryal upon any Accusation of any Offences comprised in the aforesaid Statute of Thirty one Henry Eight but only such as shall be made by the Oath of twelve men before Commissioners authorized and the presentment to be made within one year after the Offence Commited And that no person shall be Committed to prison for any such Offence before he be Indicted thereof I forbear from hence and from much more that might be said from our Laws but chiefly from the Holy Scriptures of the New Testament wherein Christ did refuse to be a Judge in Case of Blood and other Temporal matters to make any Inference or reflection upon any of our Clergy seeing many of them are pleased with employment of that kind But for Juries I have some few short Notes more to observe unto you That after Juries of Tryal are sworn and the Tryal begun I think they should not at all but I am sure they are not ordinarily to be adjourned till the Cause be fully heard and ended And then if they go from the Barr as they may go together if they will before they give their verdict for it may seem to prejudice the freedom which belongeth to them to perswade them not to go from the Barr and consult together in some private place where none may have influence over them And they must have time allow'd them in private till they be all and every one of them agreed before they give their Verdict in the Court. For a Jury of twelve men for tryal of a Cause doth differ from a Grand Jury of Enquiry in this that in all Juries of Tryal all and every one of the Jury must be agreed in the same point without going to the Poll for the Major part of Votes whereas Juries of Enquiry may carry matters before them by the Vote of the greatest number among themselves Now to close this part of this Discourse about Tryals with somewhat concerning Witnesses It hath ever been the good old way warranted by the Holy Scripture and by the Laws and Usage of England that the party accused should know the Witnesses and Informers against him
and have them face to face Except in Cases of dangerous Conspiracies where it may be necessary to keep the Witnesses very secret till the matter be throughly examin'd and the danger prevented But regularly when the Party comes or is brought to Tryal the Witnesses if living ought to be present unless disabled by sickness or being beyond the Seas and in that case the cause of the Witnesses absence ought to be sufficiently proved by Oath and there must be other very clear plain and full Evidence against him or the Tryal to be put off till some other time The doing otherwise would perhaps be mistaken to be in imitation of some Ecclesiastical or Martial Foreign Laws whereof I forbear to say any thing but that I do not know by any positive Law of England the Party when he comes to his Tryal should be denyed to know the Witnesses against him and to have them face to face Now Gentlemen to what concerns your Town and Corporation to which I bear a most true and unfeigned respect and to you all What I am about to say is not out of any design to Ingratiate my self amongst you but because I think what I speak is very true I think you are as happy as any People or Corporation that I know of in the good choice of your Maiors and Aldermen who dwell among you and are your Magistrates in their respective Years and times of Government by their behaving themselves so worthily in their Magistracy that they preserve the good Reputation of your Town and the respect due unto themselves The Articles I shall now mention and recommend to the care and Enquiry of you Gentlemen of this Grand Jury are such matters as are ordinarily to be enquired at any of his Majesties Sessions of the Peace from the highest to the lowest Offences though some of the matters you are to Enquire of are of so high Nature that they are not to be tryed here but at the Assizes and other Courts Yet if you know of any such Offences you must acquaint us therewith and we will take care to transmit the Examinations and Offenders if any be here taken unto those places and Courts where they may have their Tryals and Punishment But for things within the power of this Court to hear and determine if you Indict the Persons and that they may be brought before us we will proceed against them according to the Law in such cases In the first place our Law intends the preservation of the Life and Person of the King Here I must tell you very truly That our King Charles the Second whose Life I pray God long preserve is the life and well-being of this Nation in respect of the Protestant Religion and our safety And I speak sincerely and without any base fawning flattery that I believe by what I have understood by some Honourable and knowing men for I do not frequent the Court yet am not altogether without having had some Opportunities to make my own Observations there that the King of His own self is of an extraordinary good and Gracious Nature a lover of the Protestant Religion and the welfare and happiness of his People And that in His own most Noble Disposition and ingenious readiness of Wit his Affability and natural Goodness he doth far excell all that are about him And I believe he doth therein excell all other Princes And that whatsoever he doth of His own self intend or purpose is meant by Him to be for the good and happiness of his Subjects And he doth infinitely deserve their Love and Duty mixt inseparably with the greatest Humility and most faithful Loyalty that good Subjects can express to a most Gracious King What Treasons are the Statute 25 Ed. 3. doth declare That To compass or Imagine the Death of the King To Levy War against him To Counterfeit his Great Seal or Privy Seal And to Counterfeit his Money To Kill the Lord Chancellor Judges or Justices of Oyer and Terminer being in their places doing their Office Are by that Statute declared to be Treason and to be punisht with Death and Forfeitures as therein mentioned And by a late Statute made in the Thirteenth Year of his Majesties Reign that now is It is Treason during this Kings Life to compass imagine or intend his Death or Destruction Wounding or Imprisonment or to deprive or depose him of his Kingly Name and Crown There are also Treasons by other Statutes 27 Eliz. If any Born within the Kings Dominions be a Jesuit ordained a Priest by the pretended Jurisdiction of Rome and come and remain in any of his Majesties Dominions it is Treason By 23 Eliz. and 3 Jac. It is Treason for any to bring Absolutions or to exercise power to absolve or to withdraw any of the Kings Subjects from their Allegiance and Obedience c. to reconcile them to the See of Rome The knowing of Treason and concealing it is call'd Misprision of Treason and to be punisht with Fine and Imprisonment Concerning Praemunire which I think proper in the next place to acquaint you with You are to know it is no new but a very ancient and necessary care and watchfulness provided by our Laws against the dangerous and encroaching Jurisdiction of the Popes and See of Rome which have always had designs against England our Laws and theirs being Incompatible For from the time of King Edward the third and the Reigns of the succeeding Kings there have been Laws made That if any of the Kings Subjects obtain provision or promotion to Benefices from the See of Rome or if any Appeal from the Kings Courts of Justice to the Court of Rome they shall be Imprisoned during life and forfeit their Lands and Goods and be out of the Kings Protection This is commonly call'd a Praemunire from the Words in the Laws and in the Process concerning it Of later times other Offences have been also very justly put under the same punishment Most of those Offences so to be punisht being concerning the introducing of the Popes pretended Jurisdiction and denying Allegiance to the King The particulars of those Offences being many and long as also other Offences that are Treason by Statutes you may best read the Statutes themselves for the more full knowledge of them and for bringing the Offenders to punishment The like Advice I give you of Looking upon the Statutes when there is any occasion to make Presentment against any Statute as well to avoyd Mistakes as also to save me the Labour and you the Time of mentioning all Offences against our Statutes and Acts of Parliament Concerning Felonies There are Felonies by the Common Law and also by Statutes but I shall not be able at this time to name them all to you and distinguish them severally But tell you that the Punishment and Sentence which the Law pronounceth on Felony is Death Yet in many Cases there is an ordinary Mercy allow'd which is call'd Benefit of Clergy But