Selected quad for the lemma: truth_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
truth_n	evidence_n	find_v	forswear_v	72	3	16.0701	5	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

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

them against the Queen The Act 3 Jacobi came forth upon the Powder-Plot I appeal to any Man of ordinary sense whether he can think that the Parliaments of those Times ever intended to put Protestants into a far worse condition than Papists which they apparently are if these Statutes equally concern them as well as Papists and they then were liable to the Act 35 Eliz. out of which Papists are expresly excepted 4. Further yet I do very well know that Votes of Parliament repeal no Laws much less have the force of Laws in them nor are to be mentioned in legal Pleas But the Question here is not whether these Acts be of force or no It is on all hands granted that they are but what is the true sense and meaning of them And as to that under correction I think a great deference is to be given to the Parliaments Judgment declared in them the far greater part of all the gravest and most famous Lawyers of England being generally in every Convention or Session of Parliament It was as I remember either in the latter end of the Year 1677 or the beginning of the Year 1678 that upon the Petition of the Quakers the Parliament at that time sitting first took notice That the Laws made principally against Papists were executed princially upon Protestants and appointed a Committee who spent a great deal of time in examining the Returns of Convictions made upon those Statutes into the Office and applied themselves to his Majesty for favour to his Protestant Subjects as to those Laws About the middle of the Year 1678 the horrid Popish Plot was discovered from Michaelmas that Year till Decemb. 30. the Parliament had enough to do to search into the Popish Plot and they had made but little progress in it when they were Prorogued which was Decemb. 30. and soon after Dissolved The next Parliament began March 6. 1678 9 and sat until May 27.1679 their whole time was also spent in a further discovery of that Hellish Plot. All this while I met with no Declarations of the Parliament's mind or sense in the case of those Acts Nor as I believe were there any complaints of any prosecutions of Protestant Dissenters upon any of those Statutes The next Parliament began Octob. 21. and held unto Jan. 10. 1680. By this time the Popish Party had a little recovered their Courage and began to defame the very Report of a Popish Plot. They had eight months before began to sham it tho' with very ill success But before this time they had began to divert the prosecution of it by obtaining of their Friends who would be thought Protestants every where to prosecute Dissenters upon those Statutes The Parliament that sat down Octob. 21.1680 had intelligence of it The Term before Estreats were given out upon all Convictions upon those Statutes but with express Instructions from the Commissioners of the Treasury to leavy the Forfeitures upon none but known Popish Recusants which 't is likely that in many Counties the Sheriffs observed In others 't is certain they did not but levied them equally if not principally upon Protestants but were inforced to refund some of them and for a great while after this upon a Certificate into the Exchequer that the Persons were Protestants and had taken the Test proceedings against them by order out of the Exchequer were staid This is supposed to have proceeded from his Majesty's Goodness complying with the desires of his Parliament in the Case of the Quakers The House of Commons which sat in the Westminster Parliament Octob. 21. 1680. had sat but a Month and two or three odd days before they came to this Vote without one Man's contradiction in Nov. 1680. Resolved nemine contradicente That it is the Opinion of this House that the Acts of Parliament made in the Reigns of Queen Elizabeth and King James against Popish Recusants ought not to be extended to Protestant Dissenters Accordingly they made their Application to his Majesty by the Members of their House which were of his Majesty's most Honourable Privy Council beseeching him That all the Protestant Dissenters prosecuted upon those Acts might be discharged without paying any Fees and that he would recommend this Business to the Judges Upon the 26th of Novemb. 1680. we find it thus in the Votes under the Speaker's Hand Mr. Secretary Jenkins acquainteth the House that his Majesty had been attended by the Members of his most Honourable Privy Council with an Address concerning Protestant Dissenters And that his Majesty's Answer is That they should be discharged and that without Fees as far as might be done according to Law and they shall be recommended to the Judges The Parliament which then sat hath the repute to have been short of none who ever sat within those Walls for Men of Honour Wisdom and Estates Here was plainly their Judgments declared That these Acts concern not nor ought to be extended to Protestant Dissenters After which certainly that single Country Justice or Lawyer who dareth to say they do must arrogate much more to himself than he ought to do considering how many of the greatest Lawyers of England unanimously concurred in that Vote which did not repeal those Laws nor stop or supersede the execution of them but only declared the sense of them If any Person after all this will affirm they do concern them as well as others I have nothing more to say against it but only wish That the Question might be determined by my Lords the Judges and not left to the various determinations of puny Lawyers and many Justices of the Peace who were never bred to the Studies nor exercised in the practice of our Laws This whole Discourse is but a Digression from my proper Theme for admit those Statutes do concern Protestants it is another Question Whether Grand-Juries finding such Indictments be Evidence to a Petit-Jury in the Case The Affirmative part of which I never look to find determined by Judges what-ever be determined as to the other Question CHAP. IV. A Pathetical Conclusion to Jurors to consider what they have done to repent and to their Ability to make satisfaction avoiding the like enormous practices for the future And to such as are Commissioners of the Peace not to be any Temptation to them to bring such Guilt upon themselves their Families and Country WHat can remain further but that as an Orator for the Great God of Heaven and Earth I should admonish all my Country-men who have been deluded by their own Lusts and Passions or over-awed by any others to make any such Presentments of things whereof they had no knowledg or which they could not do in Truth or to find any such Indictments without any Evidence and this after that in Judgment they had called God to Witness that they would present nothing but the Truth and what came to their knowledg and true Deliverance make according to their Evidence And after they had sealed this their

TAM QUAM OR AN 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 Protestants be concerned in that part of those Laws the contrary is proved As also whether a Grand-Jury's finding an Indictment be any Evidence to a Petit-Jury The absurdness and most pernicious Consequents of which are detected and the Vengeance of God also against 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 Eccles 5. 8. If thou seest the Oppression of the Poor and violent perverting of Judgment and Justice in a Province marvel not at the matter for he that is higher than the highest regardeth and there be an higher than they LONDON Printed and are to be sold by L. Curtis 1683. CHAP. I. The Mischief arising to the Nation from the loss of the Religion of Oaths The Nature of an Oath The Religion of an Oath lost by prophane and common Swearing more by false Swearing especially in Judgment whether by Jurors or Witnesses The Vengeance of God declared against it The Discourse restrained to the Oaths of Jurors and more especially those Oaths upon which they bring in Presentments and find Indictments against Protestants upon the Statutes 23 Eliz. 29 Eliz. and 3 Jacobi 1. AMongst other melancholick Considerations relating to the Nation which at this time affect the Souls of thinking Men who believe there is a God that judgeth the Earth there is none more sad or justly afflictive than the Consideration how much we have lost the Religion of an Oath and by that means broken the Ligament of Humane Society and upon the point invalidated the Institution of God for the end of all Strife For according to the present use of Oaths they will be the end of no Strife or at least but a legal end while no Man's Mind can acquiesce in an Assertion or Promise confirmed by it For how is it possible that the Mind of any should acquiesce upon the Oaths of others when he discerns how many there are that make no Conscience of swearing what is false or what is impossible they should know to be true Nor is there a greater Evidence of the stupid Atheism of a multitude of Persons For how can any think that those believe there is a God so omniscient just and potent as the Supream Being must be who dare call him to be a Witness that they speak Truth or that they will do this or that thing and challenge him to be their Judg in case they do it not and desire that He and his holy Gospel may do them no good if they do it not and by and by dare to speak what they either know to be false or do not know to be true It is not possible that Men indeed should believe there is a God and do any such things Every false Swearer must either declare himself to be ignorant of what he doth when he taketh an Oath or to be an Atheist 2. It being more charitable to judg such persons ignorant than to determine them absolute Atheists Charity will oblige every good Man to instruct his Relations or Neighbours in this great Point All Divines agree that the nature of an Oath lies in the calling of God to witness either to the truth of a Man's Assertion or the Sincerity of his Heart as to his Promise and his faithfulness in the performance of what he promiseth It was God's Ordinance Deut. 6. 13. Thou shalt fear the Lord thy God and serve him and shalt Swear by his Name Repeated again Deut. 12. 20. To him thou shalt cleave and Swear by his Name Isa 65. 16. He that sweareth in the Earth shall swear by the God of Truth Jer. 12. 16. And it shall come to pass if they will diligently learn my ways and swear by my Name The Lord liveth The Scriptures are full of Reproofs and Threatnings of and against any other Swearing by those that are no Gods Jer. 5. 7. Josh 23. 7. Exod. 23. 13. Nor indeed is it reasonable that any other than the living God should be invoked in Swearing who else can know the correspondency of our Hearts and Actions or the sincerity of our Intentions Who else hath a power in multitudes of cases hidden from Men to punish him who sweareth falsely So as an Oath by any other than by the living God is no security to our Neighbour Hence all swearing by any Creatures is prophane Swearing and not only a violation of a Divine Command but also of the very nature and end of an Oath giving no security to the Person for whose security of our Truth it is taken Indeed it is no better than Idolatry if Idolatry be a worshiping of that for God which is no God For Swearing is a Worship tho indeed a less ordinary piece of the Worship of God than Prayer and Praise are 3. An Oath being so grave a thing as a Divine Institution The Name of God being in it and a solemn Invocation of him to witness our Truth essential to it and the end of its Institution being to determine Strife and to give our Neighbour the highest Security imaginable of our Truth and Faithfulness Common Reason will instruct Mankind that it ought not to be used lightly and rashly for besides that such use of an Oath tendeth to make it useless to its end it is also an high prophanation of the holy and dreadful Name of the Lord our God Which of us would not judg himself affronted to have our Neighbours make use of any of our Names upon every light and trivial occasion or to be called on to witness every silly and impertinent discourse or piece of Mens common Talk Nor can that thing be any security to my Neighbour in any weighty Concern which I lay to pawn at every Alehouse and expose at every Stall much less that which hath proved to be no security a thousand times but made use of to seal a Lie Besides that such common use of the Name of God takes away all the Aw and Reverence of it and who so thinks that any Man will make more Conscience of an Oath in a Judicial Testimony for or against his Neighbour than he doth in his common discourse must at least think that the person who doth it hath more Charity towards Men than Piety towards God which is very unreasonable considering that all Charity is the Daughter of Piety or else he

must have some odd thoughts of God imagining him more severe in revenging a Wrong done to Man than in the Vindication of his own Glory whose Name is invoked as much in idle and common Swearing as in a Judicial Testimony and who is as much called to Witness and whose Power is as much challenged to revenge a Falshood in the one as the other case So that the many Precepts of God against common and ordinary Swearing in light and trivial matters Exod. 20. 7. Deut. 5. 11. Mat. 5. 34. Jam. 5. 12. Levit. 19.12 are but consonant to the common Reason of Mankind And indeed the Judicial Swearing of a common Swearer in all his light and ordinary discourse will from hence appear to a deliberate Man but a very doubtful and suspicious Evidence For why should I think the Man speaks Truth any more when in a Court he saith So help me God and his holy Gospel than when in a Tavern Alehouse or Market he saith God damn me it is so or I will do such or such a thing when I know it is not so and am a witness to his not doing of it after such Imprecations so as in truth there could not be a juster Law than to make common Swearers legally infamous which might probably reduce Mens Tongues to a better decorum and recover amongst us the Religion of an Oath upon the upholding the Religion of which depend all our Lives and Properties 4. A false swearing by the Name of the most high God especially in Judgment will easily from hence appear to be one of the highest Crimes and daring pieces of Impudence that a mortal Man can be guilty of A Guilt incurr'd not only when the thing we confirm by our Oaths is false but when we do not know it to be true And in promisary Oaths when we do not do the thing which we have sworn to do Thou shalt swear the Lord liveth in Truth in Righteousness and in Judgment Jer. 4. 2. This is the Law of God concerning an Oath I must not call God to witness that a thing is true and disclaim any hopes in him or desire of help from him or the Word of Salvation if it be not true if the thing be false or unless I know it to be true for I cannot say a thing is true which doth not so appear to me Nor must I call God to witness that I will do such or such a thing and disclaim any hopes or desire of any benefit from him or the Word of Salvation if I do it not and then not do it Under the Levitical Law Lev. 5.4 God indeed appointed a Trespass-Offering for him that had sworn to do Evil or to do Good if it were hid from him confessing that he had sinned in that thing but in that Confession was required in the case and not Confession only but a Sacrifice the Sin of those who swear falsly tho ignorantly is evident enough and in that we read of no Sacrifice appointed for those that swear falsly knowing thereof when they sware we may be assured that was a Guilt God did not expect from any of his People or at least which he would not easily forgive or purge by Sacrifice And indeed what punishment can we suppose too great for that person who shall dare to call God to Witness that he speaketh Truth when he knows it is a Lie or doth not know that what he saith is true Or who dares to disclaim all Benefit from God or the Word of his Grace if he doth not do this or that and then doth it not His Blood is upon his own head if God strikes this Man dead in the place if he immediately throws him into the Bottomless-Pit and concludes him under his Wrath to all Eternity he doth but deal with him according to his own Prayer and Desire He hath asked no further Grace Mercy or Favour from God than according to the Truth of his Heart and Actions in such or such a thing wherein he hath wilfully suffered his Truth to fail and that it may be not only in the highest contempt and defiance of God but may be to the no small hurt and prejudice of his Neighbour tho that be much the lighter thing in the Case for what can the Interest of a Man be considered with that of the Lord's Name and Glory Out of his own mouth he is condemned he hath spoken words against his own life Whosoever he be that solemnly calleth God to be his Witness That in such or such a thing he speaketh the Truth and that he shall or will do a thing in such a manner and disclaimeth all Help or Salvation from God if he doth it not and in the same matter after such a solemn Invocation of the Divine Name and bold Challenge of the Divine Power shall dare to affirm what he cannot say is Truth or to do the quite contrary to what he hath promised with such an Imprecation what doth he do less than say I value not what the Almighty God can do unto me I desie his Power and deny his Being and Omnisciency 5. These things considered we need not wonder at Jeremiah's telling us Jer. 23. 10. That because of Swearing the Land mourneth nor yet at the Prophet Hosea telling the Israelites from the Lord That the Lord had a Controversie with the Inhabitants of the Land because there was no Truth nor Mercy nor Knowledge of God in the Land By Swearing and Lying and Killing and Stealing and committing Adultery they break out and Blood toucheth Blood Nor at the Prophet Zecheriah's flying Roll Zech. 5. twenty Cubits long and ten Cubits broad which v. 3. is expounded to be the Curse that goeth over the face of the whole Earth for every one that stealeth shall be cut off on this side according to it and every one that sweareth shall be cut off on that side according to it I will bring it forth saith the Lord God of Hosts and it shall enter into the house of the Thief and into the house of him that sweareth falsly by my Name and it shall remain in the midst of his house and shall consume it with the Timber thereof and the Stones thereof Nor shall we need wonder if we see this Curse entering into many houses in this Nation and remaining in them until it hath consumed the Timber thereof and the Stones thereof For swearing falsly is no less than a prophaning the Name of the Lord our God Levit. 19. 12. a taking of his Name in vain who hath said He will not hold him guiltless who taketh his Name in vain And God hath said I will come near unto you in Judgment and I will be a swift Witness against the Sorcerers and against the Adulterers and against the false Swearers Mal. 3. 5. 6. It is true the Law of England makes a distinction betwixt false-swearing or forswearing and Perjury and will not allow forswearing to be Perjury punishable by the

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