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THE NATURE and IMPORTANCE OF OATHS and JURIES, Beautifully illustrated, and Clearly explain'd, IN THREE LETTERS Extracted from a Number of political Pieces, and recommended as very necessary and useful to be perused and known by all Members of CIVIL GOVERNMENT.

By a FRIEND.

To curb the Guilty, and the Just to spare,
Has ever been, and still shall be our Care.

NEW-YORK: Printed and Sold by Ja. Parker, at the New Printing Office, in Beaver-Street, 1747.

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LETTER I.

SIR,

HAVING seen several Pieces of your printing very well wrote, and observing that you are ready to print what may tend either to serve the Publick, or to please, or instruct any of your Rea­ders. I am now induc'd to become your Correspondent, and flatter myself, that, if I do not happen to answer the Purposes just mention­ed, I shall, however, offend no body, since my Intention is to treat of Things, rather than Persons; and if I endeavour to expose Error and Vice, or to recommend Virtue and Truth, it shall be without any invidious Reflections, or particular Applications.

The Subject I propose, at present, is that of Oaths; whereby I do not mean the idle and unnecessary Swearing, too frequently met with in common Conversation, which, as Mr. Habbs rightly observes, is not properly Swearing, but an impious Custom of prophaning the Name of God, gotten by too much Vehemence in talking. But my Design is to consider Oaths as they are required by Law, to be taken by Officers judicial and ministerial, as well as by Witnesses, in the several Courts of Justice, and to shew their binding Nature, together with the dan­gerous Consequences of acting in Breach of them, with Regard to the Community, to the Parties guilty, and to those that are immediately interested in the Thing in Question.

We find then that all civiliz'd Countries and Nations have seen the Use and Necessity of Oaths, and tho' the Forms thereof have been various, according to the different Customs and Religions that have prevailed, yet they all agree in the Reason and Policy of them, which is more firmly to bind the Takers to declare the Truth, or to per­form the Thing thereby promised to be done, from the Fear of of­fending invisible Powers, or the Dread of subjecting themselves to the Penalty which the Laws of the Society annexed to the Crime of swearing falsly. And it is certain, that the very Heathens look'd up­on Perjury as a Sin of the deepest Dye, as will sufficiently appear from what Diodorus Siculus relates of the Egyptians, that, by their [Page 4] Laws, Persons who had forsworn themselves, were adjudged to Capi­tal Punishments, as guilty of the two greatest Crimes, in inviolating that Piety which they owed to God, and in destroying Faith from a­mongst Men, the strongest Pillar of human Society . Nay, some of those People, who had only the Light of Nature for their Guide, carried their Notions of the Malignity of this Crime so far, that they supposed Posterity often punished for the Perjuries of their Prede­cessors; an Opinion, as Grotius observes, that was never entertain­ed but in Cases of the [...] enormous Crimes. And Cicero, who says that our Ancestors could never find out any Thing stronger than an Oath, to bind us to the faithful Discharge of what we had engaged; adds, that whatever is promised by calling God, as it were, to witness to your Words, ought punctually to be performed.

Our famous Lawyer, the Lord Chief-Justice Coke, tells us, that ‘an Oath is an Affirmation or Denial by any Christian, of any Thing lawful and honest, before one or more, that have Authority to give the same, for Advancement of Truth and Right, calling Almighty God to witness that his Testimony is true. And it is twofold, ei­ther Assertiorum ut de pretaerito, sicut Testes et sen Promissorium de fu­turo, sicut Judices, Justiciarii, Officiarii, &c. So as an Oath is so sacred, and so deeply concerneth the Consciences of Christian Men, as the same cannot be administred to any, unless allowed by the Common-Law, or by some Act of Parliament; neither can any Oath, allowed by the Common Law, or by Act of Parliament, be altered but by Act of Parliament. It is called a corporal Oath, because he toucheth with his Hand some Part of holy Scripture.’ 3 Inst. 165.

And, according to a no less eminent Foreigner, the learned Puffen­dorf, (with whom our Divines concur) An Oath is a religious Asse­veration, by which we either renounce the Mercy, or imprecate the Ven­geance of Heaven, if we speak not the Truth ; which Definition does more immediately regard those that are sworn as Witnesses, and comes within that Class of Oaths which the Casuists call assertory. But the same religious Asseveration is used by Magistrates, and other Civil Officers, whose Oaths are of the Promissary Kind. Thus the Purport of an Oath, taken by the former, is to do equal Justice to the Poor and the Rich, without Favour or Malice, and generally to give [Page 5] Sentence in the Case before them, as Justice and Equity shall direct; so the latter are sworn to the faithful Discharge of their respective Trusts and Employments, and both upon the same Terms of re­nouncing the Mercy, and calling upon themselves the Vengeance of God Almighty, if they perform not what they thus engage to do. It must be confess'd, however, that an Oath does not directly produce a new Obligation; for a Covenant or Promise, if lawful, binds in the Sight of God, and in fore Conscientiae, without an Oath, which is therefore an additional Bond only to what was valid before. Yet it cannot from this be inferr'd, that an Oath is therefore superfluous and unnecessary. For, as the excellent Author just cited, says, tho' all Men, who are not Atheists, believe that God will punish the Violation of Promises, not confirm'd by Oath, yet they believe at the same Time, and with good Reason, that those Wretches will feel a more severe Vengeance, who have, in express Terms, called down the Wrath of God upon themselves, and as far as in them lies, have shut themselves out from all Hopes of Mercy, whilst they engaged in Wickedness with so full a Purpose and Design, as to shew that they valued not the Displea­sure of him who is able to bestow the greatest Goods, and to inflict the greatest Evils *.

Now, as it is of the utmost Importance to Government, that Ju­stice should be equally administred; and since, without Integrity in the Magistrate, the Veracity of Witnesses will be of little Avail for this Purpose, I shall begin with the Bench, and make a few Re­marks on the Duty of those that are advanced to it, on Account of their Oath. But I must first premise, that, as it cannot be expected our Courts of Justice in this distant Colony should be fill'd with Men of Knowledge, Learning, and Experience, equal to those at Home, great Allowances are to be made on that Account. If therefore we meet in them, joined with common Abilities, an upright Mind, a sincere Desire for Information, and a steady Disposition to be im­partially just, according to the best of their Understandings, I think they will be entitled to the Respect due to their Characters, and dare promise too, they will in that Case, and with those Qualities, for the most Part, sufficiently answer the End of their Appointment.

Judges and Magistrates then, whether they are fitting in Judica­ture on Matters of private Property, or in order to punish publick [Page 6] Offenders, are under the strongest and most solemn Obligations to do what is Right, and to dispossess themselves of all Passions, and of every Consideration which may biass them to the contrary. As they are Men, it is not expected, they should be infallible; and therefore they are greatly favour'd by our Law, in the Execution of their Office, according to the Maxim, De f [...]ie & officio judicis can recipitur q [...]iis. It is not to be presum'd that they who are en­trusted with the Laws, and the Dispensation of Justice amongst the King's People, that have the Power of determining the Rights and Properties of their Fellow Subjects, which they are sworn to do ac­cording to the Laws, will yet be so monstrously persidious as to act otherwise. But, notwithstanding this, it is too well known that there have been in all Ages, and in every Country, wicked Judges, and perjur'd Magistrates, some of whom have been called to an Account in this World, but many more left to answer for their most execrable Villanies in another, before a Tribunal that does not stand in Need of the Help of Witnesses to come at the Truth, and from which no Fact can be concealed, nor any Offender escape the Punishment ade­quate to his Crimes.

The usual Temptations to an evil Magistrate are downright Bribery, the Fear of offending, or the Hopes of pleasing; all which I think may be included in the first, since the two last are, in truth, but different Kinds or Degrees of the other.

Direct Bribery in a Judge, in relation to a Cause depending be­fore him, was, at Common-Law, look'd upon us an Offence of so heinous a Nature (being complicated with Perjury. &c.) that before the Stat. of 25 E. 3. it had sometimes been punished as High Trea­son. And our Books make mention of one Sir Thomas Wayland, Chief-Justice of the Common Pleas, in the Time of E. 1. who was attainted of Felony, for taking of Bribes, his Lands and Goods for­feited, and he banished the Kingdom, as unworthy to live in that State which he had so much abused. In like Manner, Sir William Thorpe, Chief Justice of the King's-Bench, having been convicted of receiving Bribes of three several Persons, amounting to 100 l. was adjudged to be hanged for it, and all his Lands and Goods forfeited. The Reason of the Judgment is entered in the Roll in these Words, Quia praedict. Willielmus Thorpe, qui sacramentum Domini Regis irga populum suum habuit ad cullodiendum fiegit malitiose, false, & rebeluter, quantum in ipsum suit. Because that he, as much as in [Page 7] him lay, had broken the King's Oath made to the People, which the King had intrusted him withal. It was, however, declar'd that this Judgment was not to be drawn into Example against any other Officers who should break their Oaths, but only against those qui praedictum sacramentum fecerunt, & fregerunt, & habent Leges An­gliae as custodiendum; that is, only the Oaths of the Judges who are entrusted with the Laws. This Judgment being given, in the 24th of E. 3. there was a Debate next Year in Parliament, whether it was legal or not, when, nullo contradicente, it was declared to be just, and according to Law, and that the same may be given in Time to come upon the like Occasion. The Sentence of the Earl of Middlesex did not, indeed, extend to Life, but was very severe, and plainly indicated the Abhorrence the Parliament had of his Crimes. These were delaying Justice to the Farmers of the Customs, in a Matter referr'd to him by K. James I. and taking exorbitant Bribes; for which, he was sentenced to lose all his Offices which he held in the Kingdom, to be for ever incapable of an, Office, Place, or Employment in the State; to be imprison'd in the Tower of London, during the King's Pleasure; to be fined 50,000 l. never to sit in Parliament any more, nor to come within the Verge of the King's Court. Happy had it been for these Judges and Great Men, I have named, with some others that might have been men­tioned, if, instead of making Haste to be rich, they had duly adverted to the Words of sacred Writ; Neither take a Gift; for a Gift doth blind the Eyes of the Wicked, and pervert the Words of the Righteous.

But express Bribery is so shameful, as well as dangerous a Crime, that it is seldom practised; at least it is dore so privately, that we very rarely hear of Instances of it; and therefore I shall proceed to the other corrupt Motives mentioned above, viz. the Fear of offending, or the Hopes of pleasing any body whatever; both which are equally bad, and I doubt are too often prevalent, even in our own Country, as well as other Parts of the World. Fear proceeds from Cowardice, and arises from the Want of Resolution to stand the Consequences that may follow the doing the Thing under Consideration. A learned Judge, who at this Time adorns one of the Courts of Westminster-Hall, finely observes, that Cowardice in a Judge is but another Name for Corrup­tion. They differ only as the Act and Habit. Bribery is Cor­ruption [Page 8] in the Act; but Cowardice is habitual Corruption. * And certain it is, that as long as a Magistrate labours under the powerful Influence of Fear, he will be always liable to be corrupted; and, on every Occasion, will reason with himself to this, or the like Effect: How will my Determination in this Cause suit my own Circumstan­ces? Who are the Parties interested in the Question? Or what their Attachments? I must not give Judgment against such a Man, tho' I am convinced it is right, lest I offend him, or some other, who will have it in his Power to do me, or mine, such or such an ill Office: If I should vote so and so, I shall make such a Person my Enemy, or disoblige such a One, who is my Friend. And thus, for Fear his doing the Thing which is just should interfere with his own private Affairs, or, perhaps, with the Schemes of the Party he has espoused, he will deprive his Neighbour of his Estate, or his Liberty, nay, perhaps, of his Life, and thereby bring upon himself a wounded Conscience, which (if it does not at length prove sear'd by repeated Practice) may make him continually uneasy in this Life, and greatly hazard his eternal Happiness, if not insure his eternal Misery, in the next. How much more noble, more rational, and more safe then, is the Way of thinking and arguing of that honest Magistrate, who considers only what is Law, and what is just: Am I convinced these are in Favour of my greatest Enemy, and against my most inti­mate Friend, and shall I yet, in Breach of my Duty, my Oath, and my Honour, give Judgment against the former, and for the latter? Will this be answering the End of my being appointed in the Office I fill? Or rather, shall I not, whatever Evil ensue, or how inconveni­ent soever it may prove, discharge my Conscience, and the Trust re­posed in me? Certainly this last every Man should resolve to do in all Instances, who accepts of a Commission. Which brings to my Mind the Oath the King's of Egypt imposed on their Judges, and made them solemnly swear, viz. That they should not do any Thing contrary to their Conscience, even tho' never so earnestly commanded by themselves: For tho' the Oath taken by our Judges is not con­ceived in the same express Terms, yet it is vertually the same, as will be farther shewn hereafter.

What has been argued, concerning Fear, will be equally appli­cable to the other Motive Hope, as they both proceed from the same [Page 9] ill Principle. The sacred Authority, I have once before quoted, says, Thou shalt not wrest Judgment, nor respect Persons; and the wisest of Men tells us, that to have Respect of Persons is not good; for, for a Piece of Bread that Man will transgress; intimating how small a Matter will warp such a Man's Judgment. It would therefore be no strange Thing to see such an One thrust himself into the Seat of Justice, purely to wrest Judgment, attend a Court meerly out of Respect to Persons, and go predetermined on one Side of the Question, however the Cause appear to him on the Hearing.

But as it is manifestly a flagrant Breach of his Oath in a Judge, to be influenced by any Person on Earth, against the real Merits of the Cause depending before him, so it is very repugnant to the whole Cur­rent of our Laws, which exclude even the King himself (with great Reverence I say it) from any Favour or Respect, where it interferes with Justice, and the Oaths of the Judges. For tho' His Majesty has, by His Prerogative, divers Privileges in his Courts, in Point of Pleading and the like, yet it is allowed, and so it has often been ruled, that the Judges, who are neither to deny, or to delay Justice, ought not to obey His Royal Commands, if illegal, tho' they come under his Broad or private Seal, Writs, Letters, Messages, or other­wise. Of this, there is a remarkable Instance in the Reign of the renouned Queen Elizabeth, which I shall the rather cite at large, because it is a noble Precedent of the inflexible Probity of the Judges in those Days, and cannot be too much admired, or too often set in View, as it may be a good Example to all other Magistrates.

The Queen, in the 25th Year of her Reign, was pleased to erect a new Office in the Common-Pleas, which she grants to Richard Cavendish, whom she sends to have admitted, but the Judges delay­ed the doing it, because they knew the Prothonotaries of the Court claimed a prior Right to the issuing the Writs for which the Office was erected: The Queen then sends a sharp Letter, commanding them forthwith to admit Cavendish, but the Judges still forbore; whereupon, she wrote a sharper Letter, requiring them to shew the Reasons of such their Contempt, to the Lord-Keeper, and the Earl of Leicester, and they accordingly signify'd their Reasons as above; which not satisfying the Queen, her Majesty sends a fourth peremp­tory Message, adding withal by way of Inducement, that if the others were put out, they were rich Men, and her Courts were open, [Page 10] where they might demand, and make out their Right. To this the Judges humbly return'd the following Answer: That the Queen had taken her Oath for the Execution of Justice according to Law; that they did not doubt but, when her Majesty was informed that it was against Law, see wou'd do what befitted her. For their [...]urts, they had taken an Oath to God, to her, and the Common wealth; and if they should do it without Process of Law before them, and, only upon her Command put the others out of Possession, tho' the Right remained in them, it were a Breach of their Oaths; and therefore, if the Fear of God were not sufferred, the Punishment that was inflicted upon th [...] Predecessors (all [...]ing to the Case of the Judges in Richard II [...]'s Time who were, in Parliament adjudged Traytor) might be a suf­ficient Warning to them. The Queen being satisfy'd with these Reasons, the Judges heard no more of the Matter; and I will only observe upon it, as I go a [...]rg, [...]at by the Words in the Judges Answer, without Pr [...]cess of Law before us, i [...] in [...]im [...]ted that what­ever the Right be, or in whomsoever vested, the regular Course and proper Remedy must be taken to come at it, and which they could not, consistent with their Oath and their Duty break into, or dis­pouse with, even to gratify their Sovereign, and one of the best of Queens:—An Excellent Lesson to those complaisant Magistrates (if any such there be) who imagine an Oath of to pilable a Nature, as to allow them to go out of the ordinary Paths of Justice, to accom­modate a Friend or a Companion!

To conclude this Head. As a knowing and upright Judge, or Magistrate, is an amiable Character, and merits the Esteem of every Body, so a scandalously ignorant, or a grosly corrupt Person arm'd with Authority, is the most despicable, or most odious Character in Life; the one excites the Contempt, and the other, the Detestati­on of all his Fellow-Creatures: By the Want of Capacity, the for­mer is a Dishonour to those that rais'd him to the Station; and, by the Want of Honesty, the latter is a Disgrace to Human Nature itself; the one has it not in his Power to do the Duty of his Office, nor the other, the Will; the first, therefore, may in some Measure deserve Pity, but the last deserves nothing better than a Halter.

I should now proceed on my Subject, according to the Method propos'd; but I perceive my Letter is run to a great Length, and therefore shall reserve what is further to be offer'd for another Oc­casion. In the mean while I remain Yours, &c.

FAVONIUS.
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LETTER, II.

SIR,

THE famous Machiavel, in one of his Discourses upon the first Decad of Li [...]y, says, that ‘Whoever will peruse the extraordinary Actions of the City of [...]me collectively, or of se­veral Romans in particular, will find that they were more tender of falsifying an Oath than of violating the Laws, judging an Of­fence against God more hainous than an Offence against Men, and God more able to punish it.’ And concludes, that ‘as Strictness in Divine Worship and Conscience of Oaths are great Helps to the Advancement of a State, so Contempt of the one and Neglect of the other, are great Means of its Destruction.’ Seeing therefore these were the Sentiments of the wisest and most flourish­ing People in the World, without the Help of Revelation, and this the Remark of a very extraordinary Genius who was never ac­cused of Bigotry or Superstition, 'tis hop'd the Subject I am upon will not he thought unworthy of our further Consideration. And tho' I did not mention Juries in my former Letter, yet they being essential to the Administration of Justice in many Instances, and, indeed, the ordinary Method of deciding Matters of M [...] and Tunes, as well as of bringing Evil-doers to con [...]gn Punishment. I will now consider Oaths with a Regard to those who are called upon to offici­ate in that Capacity.

The Trial by twelve Men is a very antient Institution, and has been continued down thro' a Succession of Ages as one of the grea­test Priviledges of Englishmen: not is it used in any other Country whatever. But the Excellency thereof notwithstanding depends al­together upon the reasonable Presumption there is, that such a Number of Men fairly returned of the Vicinity, will honestly and faithfully discharge their Duty. To which find, all who serve upon Juries, whether they are of the Grand Inquest for publick Offences, or of the Petty Jury, either in Civil or Criminal Cases, are first obliged to take an Oath in open Court, suited to the Nature [Page 12] of the Business they are entering upon, and purporting a solemn Pro­mise to do it with the utmost Impartiality. And tho' this is sup­posed to be strictly binding on the Jurors, God having (as Arch­bishop Tillotson observes) planted in the Natural Consciences of Men a secret Dread of Perjury above most other Sins, yet they are not left in­tirely to the Guidance of their own Consciences in respect thereto; for notwithstanding the Fear of incurring the Divine Displeasure may, and undoubted will restrain every good Christian from viola­ting his Oath, the Wisdom of our Laws has deem'd it expedient to subject the Offenders in many Respects to Temporal Punishments also, of which none ought to be ignorant.

Thus, they are liable to be fin'd at the Discretion of the Court, for Misdemeanours of divers Kinds, all which are more or less in Breach of their Oath. And by the Stat. 34. E. 3. Cap 8. If any Juror take a Reward to give his Verdict, and be thereof attainted at the Suit of other than the Party, and maketh Fine, he that sueth shall have half the Fine and, if any of the Parties to the Plea bring his Action against such Juror, he shall recover his Damages, and the Juror so attainted shall have Imprisonment for one Year. So by 5 E. 3. Cap. 8. If any Juror in Affixes, Juries or Inquests, take of the one Party or the other, and be thereof duly attainted, he shall not hereafter be put into Affixes, Juries, or Inquests, but shall be commanded to Prison, and further ransom'd at the King's Will. And by the 38 E. 3. Cap. 12. Every one of the Jurors shall pay Ten Times as much as he hath taken, otherwise be imprisoned for a Year. Upon this Statute the Writ of Decies tantum will lie, and may be brought by any one, where any of the Jurors, after he is sworn, take of the one Party or the other a Reward to give his Verdict, even if they give a true Verdict, or no Verdict at all. But where a false Verdict is given by a Jury, in a Civil Case, the Party grieved may bring his Writ of Attaint. And so odious is this Kind of Per­jury in the Eye of the Common Law, that the Judgment therein is even shocking to repeat, (viz.) that they lose liberam legem for ever, i. e. be so infamous as never to be received as a Witness, or to be of any Jury. That they shall forfeit all their Goods and Chattels. That their Lands and Tenements shall be taken into the King's Hands. That their Wives and Children shall be thrown out of Doors. That their Houses shall be razed and pull'd down. That their Trees shall be rooted up. That their Meadow Grounds [Page 13] shall be ploughed up. That their Bodies shall be cast into Goal, and the Party be restored to all that he lost, by reason of the unjust Verdict. 'Tis true, the Severity of this Punishment is moderated in some Particulars by the Statute of 23d. H. 8. Cap 3. but the Writ may still be brought at Common Law, as well as upon the Statute.

These Methods of Proceedings against Jurors and Juries are, it must be acknowledged, but seldom put in Practice, and it is indeed astonishing that there should ever be an Occasion for them at all, since as a worthy Divine of our Church has it: All Partiality of Verdicts is a solemn Evil; it is a Breach both of Truth and Trust, and an implicit Defiance of the Christian Faith, which is there pligh­ted and pawned as a Pledge of Integrity. Leaving human Punish­ments then out of the Question, and admitting they may be escaped, what Satisfaction or Peace of Mind can a Man expect, or what Quiet within his own Breast, who having solemnly taken the Oath as above, is yet conscious to himself that, in giving a Verdict on any Trial, he was not guided by the Truth of Facts as they appeared in Evidence, but that he was biassed by Hatred or Affection, Preju­dice or Passion, and induced by Hope or Fear (and perhaps from the same Motive induced others) to condemn or acquit the Party in a Criminal Case, or to find for the Plaintiff or Defendant in a Civil One? Is it possible for one who believes a Word of our Holy Re­ligion, to eat, drink, or sleep, or perform the common Offices of Life with any Comfort, after he has so offended? Surely if he can, or does, the Weight of his Torments and the Horrors of his Punish­ment must be more grievous hereafter.

I come now, in Course, to speak of the Oaths of Witnesses. As the Jury are sworn to return their Verdict according to the Evidence, so the Witnesses are sworn to declare the Truth, the whole Truth, and nothing but the Truth; and as the former therefore are not to blame, if they find according to the Evidence, altho' the Evidence proves to be false, unless they know the Fact to be otherwise them­selves (and, where any one of them does, he ought to be sworn to give Evidence to his Brother Jurors) so if the latter give a false Testimony, they are guilty of Perjury in the strictest and legal Sense of the Word. But, before I speak of the Laws relating to this Offence, I cannot forbear citing the Opinion of the celebrated Arch­bishop above-mentioned, concerning it. He tells us, that ‘De­liberate [Page 14] Perjury being directly against a Man's Knowledge, no Man can commit it without staring his Conscience in the race, which is one of the greatest Aggravations of any Crime. And it is equally a Sin against both Tables, being the highest Affront to God, and of the most injurious Consequences to Men. It is an horrible Abuse of the Name of God, an open Contempt of his Judgments, and an insolent Defiance of his Vengeance. And in respect of Men, it is not only a Wrong to this or that particular Person who suffers by it, but Treason against human Society, sub­verting at once the Foundations of publick Peace and Justice, and the private Security of every Mans Life and Fortune. It is a de­feating of the best and last Way that the Wisdom of Men could devise for the Decision of doubtful Matters.’ So far that great and good Man, whose Sentiments cannot fail to make the deepest Impression on all that duly weigh them.

But Perjury is one of those Crimes which our Laws look upon as infamous and grosly scandalous, proceeding from Principles of downright Dishonesty; and by the Old Laws of England, we learn it was punished by Death, and afterwards by cutting out of the Tongue. At this Day there is Perjury at Common Law, and by the Stat. of 5 Eliz. Cap 9. Perjury by the Common Law has been defined to be a wilful false Oath by one who, being lawfully requi­red to depose the Truth in any Proceeding in a Court of Justice, swears absolutely in a Matter of some Consequence to the Point in Question, whether he be believed or not. The Punishment on a Conviction at Common Law is pretty much left to the Prudence of the Court, being generally Corporal, with such Fine and Lien to the good Behaviour for a certain Time as shall seem most agreeable to the Nature and Circumstances of the Offence. The Statute, tho' it restrains the Offence to the particular Cases therein specify'd, yet it adds to the Punishment. For, by that, the Person only con­victed or attainted shall forfeit 20 l. be imprisoned six Months with­out Bail or Mainprize, disabled from being a Witness; and if he have not Goods or Chatties to the Value of 20 l. be put in the Pillory, and have both Ears nailed. Yet it is allowed, and inferred, from a Proviso in the Statute ( Par. 13.) that the Court of King's Bench, &c. proceeding upon Indictment or Information of Perjury at Common Law, may not only set a discretionary Fine on the [Page 15] Offender, but also condemn him to the Pillory, without making any Inquiry concerning his Goods.

There are, however, innumerable Cases wherein Persons may be guilty of Perjury without incurring the Penalties of the Law, and which, being impossible for human Skill to provide against, must necessarily be left to another Judicature, from whose All seeing Eve nothing can be hid, and who will be avenged on those that are guil­ty, in his due Time. Thus, for Example, if a Man be called upon to give his Testimony concerning a Civil or Criminal Matter, and he, in Order to screen or convict the Party, or to procure a Ver­dict in Favour of his Friend, or against one whom he secretly dis­likes, will in the Course of his Evidence make Use of any Arts to deceive; or, by Means of the Influence he may have, endeavour to mislead the Jury, and to carry them away from the Point before them, by suggesting a Thing, perhaps, that may be true in one Sense, and false in another, and making them believe it in the former, or the like; altho' he may express himself in such Terms as to a­void the Imputation of having sworn directly false, he is notwith­standing guilty of the Crime we are speaking of to a high Degree. For my own Part, I confess I should be more upon my Guard with such a Man than with another whose Ears have been actually nailed to the Pillory, and in my private Judgment think him as infamous. —But, instead of multiplying Instances of this Nature. I will cite a Passage from the same venerable Prelate to whom I have had Re­course more than once already, and which as it is applicable to any that can happen, so it may be a very good Lesson to such as are less anxious of the Truth in their Evidence, than of keeping themselves out of the Crown-Office. ‘This, says he, may be laid down as a certain Rule, that all Departure from the Simplicity of an Oath, is a Degree of Perjury, and a Man is never a whit the less forsworn, because his Perjury is a little finer and more artificial than ordinary; and tho' Men think by this Device to save them­selves harmless from the Guilt of so great a Sin, they do really encrease it by adding to their Iniquity the impudent Folly of mocking God, and deceiving themselves.’

'Tis now Time that I pass on to the Oaths of Civil or Ministerial Officers; but as they are many of them, as well as others, obliged to take what are commonly called the State-Oaths, without any particular Oath of Office, I will first hint a few Things relating [Page 16] thereto, and which I presume will not be wholly unnecessary even on this Side the Globe. These Oaths then are demanded by the Government from its respective Members, as a Security for their Fidelity and Allegiance; and the imposing of them is grounded up­on the indisputable Right which every State has to preserve itself, and to use all proper Methods for its own Defence, it being highly reasonable that every Man who lives in, and receives the Benefits of a Regulated Community, shall likewise be under some Tye to pro­mote the general Interest of the Whole, which in a great Measure depends on the Life and Safety of the Supreme Magistrate. Those therefore that refuse to give such Security which it is in the Power of all to give (and which was never more justly due than to his present Majesty) do in Effect renounce the Advantages, and bid Defiance to the Laws of that Society whereof they are Members, and conse­quently must be looked upon as Enemies to it. But as these Men are liable to be dealt with according to the Laws, and sometimes their Scruples may possibly be truly conscientious, arising from mis­taken Notions they may have imbibed by a wrong Education, I ap­prehend they are less dangerous, as well as more excusable than such as will take the Oaths with their Lips only, and in Order to enable them the better to disturb and injure the Administration they swear to defend. We know indeed but of one Religion which countenances such Practices in its Votaries, and that is a very great Reproach to Christianity; and how much soever they may be prevailed on to believe in the Force or Validity of a Dispensation from their Head, or what Security soever they may derive to themselves from any o­ther Consideration, one may venture to pronounce that, if the Re­ligion Jesus Christ came to establish upon the Earth be true, that which allows of such a Practice must be false; far it can't be deny'd, but, if a Person promises upon Oath what he does not intend to perform, he is guilty of Perjury in the very Act of Swearing. Nor is there any Reason therefore to doubt but Men who can satisfy their Consciences, in doing, in the Instance before us, what is so apparently contrary to natural Justice, will find out specious Pre­tences for defrauding their Neighbour, or committing any other Crime which their Passions may prompt them, or their Circumstan­ces and Inclinations lead them to. No Wonder then if such should occasionally put others upon, or encourage them in a Breach of their Duty and their Oath, who have themselves so little Regard thereto in their own Conduct!

[Page 17]As to the Oaths of Officers, they are various, and suited to the different Natures of their respective Offices, which they are sworn no execute according to the Rules prescribed them. It would be too tedious to enumerate the several Officers we have amongst us, or descend to Particulars relating to them, and therefore what I shall say will be general, and the rather because I would, above all Things, avoid Offence, having no Design in the least to make Per­sonal Reflections of any Kind. Now the Oath taken by Officers, publick or private, being of the Premissary Kind, to which express and judicial Perjury does not extend, they are not, 'tis true, indict­able for that Crime in respect of such Oath; however, as they may be prosecuted for Extortion and other Breaches of their Duty, so the Offence will be greatly aggravated by being contrary to their Oath, and they liable to the severer Fine on that Account.

But the incomparable Tillotson, so often quoted, observes, that ‘For the Faithful Discharge of Offices of great Trust in which the Welfare of the Publick is nearly concerned, it is not possible to find any Security equal to that of an Oath, because the Obligati­on of that reacheth to the most secret and hidden Practice of Men, and takes hold of them in many Cases where the Penalty of no hu­man Law can have any Awe or Force upon them.’ If Persons then in such high Employments were but rightly to consider the sa­cred Nature of an Oath, and the Duty they owe the Publick, how cautious would they be in their Conduct! how circumspect in their Actions! and what Benefits would accrue to Mankind thereby! But it, on the other Hand, they will consider their Oath meerly as a Thing of Course, and what they are obliged to take in Compliance with the Laws only, it cannot be surprizing to find them on all Occasions consulting their own Passions and Prejudices, and aiming at their own private Interest, instead of pursuing that of the Publick, for which alone they were placed in those elevated Stations. Some Difficulties may indeed arise and Cases happen wherein a wise and a good Man may be at a Loss how to behave; but then he will, no doubt, and ought to take the best Advice he can get, not be precipitate in his Determinations, but apply to those who are best able, and, according to the Nature of the Affair, most likely to give the wholsomest Ad­vice. To apply to others, is only making a Shew of being willing to do what is right, and the readiest Way to be led to do that which is wrong; for such, as are known to have private and sinister Views of [Page 18] their own, are not likely to forward any Thing that is for the Pub­lick Good, but will ever incline to Sacrifice it as often as it is in their Power, and it stands in the Way of their Interest, or the Schemes they have laid to support or agrandize themselves.

I must observe here, that Virtue and Vice, Good and Evil, are for the most Part very distinguishable, and I am perswaded there is no one of common Understanding, but feels either Pain or Pleasure, Uneasiness or Satisfaction, as he is conscious of having done one or the other; and this is certain, that as often as a sworn Officer wil­fully and knowingly acts contrary to his Duty, he is more or less guilty of forswearing himself in Proportion to the aggravating Cir­cumstances with which the Fact is attended. Whether then we respect the immediate Officers of the Crown, or such as are concer­ned in Aid of the Magistrate in Courts of Judicature, or in the Exe­cution of the Laws without Doors, how shocking is it to see any of them partial and unjust, cruel and revengeful, proud and arrogant; ready to do that for one which they will absolutely deny to ano­ther, tho' both have an equal Right; strain at Gnats in some Cases, and swallow Camels, in others; be in the Way at all Hours to oblige some Persons in what ought not to be done, and be pur­posely out of the Way to avoid doing what others may legally de­mand; extort the uttermost Farthing from some, and connive at Abuses and Misapplications in others; representing one Man's Case in the most favourable Light, and that of another in the most odi­ous; artfully protecting some from the Hands of Justice, who de­serve to be punished, and rigorously prosecuting others that ought to be spared, or have not really offended. These, and such like Ac­tions, as they are unjust in themselves, so they are infinitely the more heinous for being done in Violation of a solemn Oath to the contrary.

It should be remembered, that all Offices were originally inten­ded for the Conveniency of the People in general, and not to serve some, and oppress others, according to the Liking or Ill-Will of the Persons that are in them. How agreeable a Sight then is it to behold Gentlemen in Offices of Trust, who by a steady and uni­form Behaviour are an Honour to their Posts, and a real Benefit to the Publick; who are not capable of being cajolled, bully'd, or brib'd out of their Duty, but will inflexibly adhere to it on all Oc­currences, and in every Situation? Who will not prostitute their [Page 19] Places to the Service of a Party or Faction; or make them meerly subservient to that of Friends and Dependants? Who will, for the Ease of the Country, even decline pursuing what may greatly tend to their own Advantage, tho' it be lawful, when there is a Pros­pect of promoting the Publick Peace, and attaining a general Good thereby? And who, in a Word, will, throughout their whole Conduct, consider what ought to be done and not what they could wish, or particular Persons may desire to have done. Such Officers do indeed answer the true End of their being made so, they will deserve the Esteem, and have the good Wishes of all honest Men; and whatever Abuses they may receive from others (whose Acqui­sitions probably depend on the Confusions and Disturbances that happen in Government) they will, I dare say, enjoy a constant inward Pleasure more than sufficient to compensate such Discourage­ments.

But as my chief Design was to stir up in the Minds of People, of all Ranks and Conditions, a due Sense of the binding Nature of an Oath, and to shew the Usefulness thereof, and how dangerous the contrary is to Society, for which Purpose I began my Letter with the judicious Observation of a noted Foreigner, I will now subjoin the Suffrage of an Englishman distinguished for fine Sense and good Literature, as the late Walter Moyle, Esq undoubtedly was: ‘When says he, we have lost all Respect for the Obligation of Oaths, there is an End of all our Courts of Judicature, we have no other Way to judge of Right or Wrong, Truth or Falshood, nor any Security left us for our Lives and Property, when the Reverence for that solemn Appeal to Almighty God is once ex­tinguished in our Minds.’

Thus I have finished what I had to offer on the present Subject, which I chose to handle in an useful rather than elegant Manner, accommodating the whole as much as possible to our own Cli­mate; and I wish it may prove of that Service which some very worthy Persons were willing to make me believe they would.

I am, yours, &c. Favonius.
[Page 20]

LETTER III. To FAVONIUS.

SIR,

HAVING read lately your Two Letters concerning Oaths, wherein you give the Sentiments of honest Heathens as well as Protestant Christians, on that Subject, I was thereby led to re­collect what I had formerly met with of a quite different Tendency, from some of the Writings of a very learned Body of Men who are pleased to stile themselves of the Society of Jesus, and would conse­quently be thought, no doubt, to be, in a peculiar Respect▪ Fautors of that pure Religion, which was instituted by the Divine Person whose Name they assume. Whether they are really so, or not, may best appear from the Doctrine they teach, and openly avow in the Instances hereafter mentioned, to each of which I shall subjoin a Reference to the Book from whence it is faithfully translated.

I will begin with Filliucius: who was a famous Casuist, and the Pope's Penitentiary. ‘The Man, says he, who has externally pro­mised any Thing, but without an Intention of performing, being asked whether he made such a Promise, may deny it, meaning to himself, that he did not make a Promise that was binding; nay, he may even swear to it, otherwise he might be urged to pay what he doth not owe.’ Filiuc. Tom. ii. [...]. 25. n 323

Tambourin out-goes his Brother Filliucius, for he excuses those from keeping their Word and Oath, who even make a Doubt whe­ther they intended to oblige themselves to keep such Word, or such Oath. ‘Tho' you are sure, says he, that you have made a Vow or an Oath, 'tis probable, in my Opinion, that you are not bound by it, if you doubt whether you had an Intention to oblige your­self to stand to it.’ Tambour. in Decal. L. 1. c. 3 §. 7. n. 6.

But Valentia goes still farther than the other two. He is of O­pinion, ‘That, tho' you make a Promise with an Intention of be­ing obliged to it, the Obligation does not take Effect, provided there was no Design to perform the Thing promised; because, says he, the Vow becomes void, if you have no Will to put it in Execution.’ Scio Volenciam. 2 ii. d. 6. q. 6. p. 1. censere. Tam­bour. 16. L. iii. c. 12. §. 1. n. 4.

[Page 21] Sanchez, another worthy and well qualify'd Member of this So­ciety, teaches, that ‘When one goes to swear, or is pressed to take an Oath, to say Uro, I burn, instead of juro, I swear, which, says he, whether you burn or not, would be but a venial Lye at most.’ Sanch. L. iii. c. 6. n. 37. And again, ‘If a Man should swear that he has not done a Thing which in Reality he has, meaning some other Thing, within his own Breast, which he has not done, or some other Day than that alledged for the Thing done, he is neither perjured, nor a Lyar.’ He adds, ‘This, says he, is mighty convenient to hide many Things: But the just Cause of making Use of such Ambiguities, is as often as 'tis necessary or useful for the Defence of one's Person, Honour, or Estate; so a Man may lawfully say, he did not kill Peter; meaning pri­vately another Man of that Name, or that he did not do it be­fore he was born, Sanch. ib. n. 15. 19, and 26.’

I shall not make any Reflections on this hopeful Specimen of Casuistical Divinity, but only cite what the Jesuits very modestly say of their Society in general, and submit it whether it be any Thing less than they deserve. ‘It was chiefly for the Honour of our Society that the wise Man says in the 9th Chapter of his Proverbs, Wisdom hath built her House, and hewn cut her seven Pillars. For may we not with Reason call that the House of Wisdom, on the Front whereof the eternal Wisdom of God was pleased to engrave his Name Jesus, the Name he assumed when he conversed in this World? If you ask now where are the Pil­lars, I will tell you, that Persons of great Note, and even the Sovereign Pontiffs, have declared a long Time ago, that God had raised up this Society to be the Support of the Church in those de­plorable Times.—Therefore I may venture, yea, undoubtedly, I may be allowed, without Arrogance, to ascribe to the HUMBLE Society of Jesus that Oracle which the Prophet-King published of Sion, that is to say, of the Church of Jesus Christ, G [...]ric [...]s Things are spoken of thee, O City of God. These are the English Words taken from their Latin Book of the Picture of the first Cen­tury of the Jesuits, p. 704. and 582.

I was the rather induced to address this to you, Sir, from a Hint I observed in your 2d Letter, that you know but of one Reli­gion that countenances prevaricating with an Oath, in its Votaries, and I think what is here thrown together sufficiently proves that the [Page 22] Religion intended does so, tho' your own Memory and Reading will perhaps furnish you with many other Testimonies to the same Pur­pose. When therefore we see any Thing of this Kind practised, 'twill not be difficult to guess whose Disciples they are that do it, and of what Religion; at least we may be very certain they are not of yours, or that of

Your most humble Servant, Philalethes.

APPENDIX.

Nulli vendemus, nulli negabimus, aut differemus Justitiam, vel Rectum.

Mag. Char.

THE first Attempt to live in Society, and to form Com­munities, was a very bold Undertaking; and we find the Poets have accordingly feigned, that when Men first began to enter into, and make a Common-wealth, JUSTICE came down from Heaven with a Sword in her Hand, threatening the Wicked, and punishing the Profligate Members; otherwise, nothing but Murders and continual Devastations would have ensued. But, without being obliged to Fiction, it is certain that Justice is allowed by all to be a Divine Virtue, and those that have the Distribution of it, as we learn from sacred Writ, derive their Power from the Almighty himself, through the Hands of the Prince who entrusts them with it. Let every Soul be subject unto the higher Powers. For there is no Power but of God. The Powers that be, are ordained of God. Whosoever therefore resisteth the Power, resisteth the Ordinance of God For ye judge not for Men but for the Lord, who is with you in the Judgment. They would do well therefore all of them to re­member the Words in the Wisdom of Solomon. For Power is given you of the Lord, and Sovereignty from the Highest, who shall try your Works, and search out your Councils. Because being Ministers of his Kingdom you have not judged aright, nor kept the Law, nor walked after the Council of God. Horribly and speedily shall he come upon you; for a sharp Judgment shall be to them that be in high Places. For Mercy will soon pardon the meanest; but mighty Men shall be mightily tormented.

[Page 23]By the English Constitution, one of the best in the World, the executive Power is lodged in the King, who is obliged by his Co­ronation Oath to provide proper Officers for the due Execution of Justice, in the several Courts established by Law for that Purpose; and he is himself vertually present in all of them, and supposed to be speaking in Person in the Words at the Head of this Paper. WE WILL NOT SELL JUSTICE, WE WILL NOT DENY JUSTICE, WE WILL NOT DELAY JUSTICE TO ANY ONE. A Noble Declarati­on! And to which every Subject, the meanest as well as the greatest, has an equal Right! A Right moreover, that is founded on the firm­est Basis! For as the Great Charter, wherein it is expressed, has been confirmed, established, and commanded by 32 Acts of Parlia­ment, so Sir Edward Coke, who makes that Observation, assures us likewise, that it is only declaratory of the Fundamental Grounds of the Common Law, and no more than a Confirmation or Restitu­tion of the Privileges which were previously claimed, and doe thereby. 'Tis on this Account, that the Crime of unjust Judges has been thought to be aggravated, in Regard that their evil Prac­tices tend, in some Measure, to make the King himself violate his Oath to his People.

I have often fancied it might be of good Service towards preven­ting very flagrant Instances of this Kind, if the Oath taken by the Judges of every Court were to be set up in Capital Letters, in the respective Places where they fit. It would undoubtedly be a great Satisfaction to the Suiters, and probably of Use too to some of the Judges themselves, whose Memory might not always retain the Pur­port of what they have sworn, perhaps several Years before.

If it be consider'd how frail the Nature of Man is, how liable to Passions and Prejudices, and how surrounded with Temptations of various Kinds; in a Word, that we are prone to do Evil, as the Sparks fly upwards, it must be allow'd, I think, that there cannot be too many Barriers against Injustice, nor too much Precaution used in tying up the Hands of Magistrates from committing it. What I hinted, therefore, concerning the Oaths of our Judges, will not, I presume, appear altogether unreasonable or im­proper; nor can it possibly give Offence to such as mean to act wor­thy of their Character. As they have already vouched the Al­mighty for their Behaviour, they do not care how many of his Creatures are Witnesses to it; and, as they fully intend to make [Page 24] good their Engagements to the Omniscient, they are not in the least averse to the giving all other Security, that may be deem'd requisite.

But as my Desire is not so much to exclaim against bad Magi­strates, as to recommend, promote, and encourage good Ones, I shall cite, here, the Advice given by the Lord Chief Justice Coke to those of his Time, and who were to come after him, which may be seen at the End of his Fourth Institutes. ‘You Honourable and Reve­rend read Judges and justices (says he) that do or shall sit in the high Tribunals and Courts, or Seats of Justice, fear not to do Right to all, and to deliver your Opinion according to the Laws; for Fear is nothing but a betraying of the Succours that Reason should afford. And, if you shall sincerely execute Justice, be assured of Three Things: First, tho' some may malign you, yet God will give you his Blessing. Secondly, That, though thereby you may offend great Men and Favourites, yet you shall have the favourable Kindness of the Almighty, and be his Favourites; and Lastly, That in so doing, against all scandalous Complaints and pragmatical Devices against you, God will defend you as with a Should: For thou, Lord, will give Blessing to the Righteous, and with thy favourable Kindness wilt thus defend him as with a Shield.

After all, I hope it will not be thought necessary that I should make an Apology for the Freedom I have us'd in these my Letters, when I declare that I was prompted thereto meerly by the Love of Justice, and an honest Desire of promoting it, without the least Prejudice against the Persons of any that are at present in Authority here. All therefore I shall say is, that if there should be such a­mongst the rest, as are conscious to themselves of having been hither­to less circumspect than the Nature of their Office requires (with which I am far from charging them) they will do well to be more observant for the future. As I envy none of them their Posts, so nei­ther would I willingly make them, nor indeed ought they to be made uneasy therein, while they endeavour to act suitable to their respec­tive Characters, according to the best of their Knowledge. To con­clude then, and as a Proof of my unfeigned Regards, I heartily wish for their own Sakes, and the Sake of the Publick, they may always feel that inward Satisfaction and Peace of Mind which never fails to attend the Testimony of a good Conscience, and which is a Pleasure I am, for my own Part, folly satisfy'd nothing else can afford.

FINIS.

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