Eight charges delivered, at so many several general sessions, & gen'l deliveries

Eight charges delivered, at so many several general sessions, & gen'l deliveries

1703-1707

Eight charges delivered, at so many several general sessions, & gen'l deliveries : held at Charles Town for the Province of South Carolina in the years 1703, 1704, 1705, 1706, 1707. Together with a general charge to the Grand Juries for the said province, containing a methodical summary of the principal matters retaining tot he pleas of the Crown & criminal causes. Unto which is added a speech made upon the condemnation of three persons for murther [sic] Judge Nicholas Trott's handwritten thoughts and opinions on Christianity, witchcraft, ethics and morals, and other issues pertaining to the law and his position.

Transcriber: Hogue, L. Lynn

Public Domain
All rights reserved
For access to this item, please contact the Charleston Library Society, 164 King Street, Charleston, SC.

image/jpeg

Manuscripts

Presented to the Charleston Library Society by Benjamin R. Smith, Esqre, May 2, 1834.

English

Ms. 360

[Page blank]
Not to be taken from the library.
Presented to the Charleston Library Society by Benjamin R. Smith Esqre
Mary. 2 1834
From B. R. Smith Esqre
EIGHT CHARGES delivered, at so many several General Sessions, & G(ao)l Deliveries: Held at Charles Town for the Province of South Carolina. In the Years 1703. 1704. 1705. 1706. 1707.
Together with General Charge to the Grand Juries for the said Province Containing A Methodical Summary of the Principal Matters relating to the Pleas of the Crown, and Criminal Cause
Unto which is added A Speech made upon the Condemnation of three Persons for Murther.

By Nicholas Trott Esq;
Chief Justice of the Province of South Carolina


The Contents

Charge I.
Of the Nature & Origine of Laws in general, and of the Laws of England in particular.

II.
Of the Necessity & Usefulness of Humane Possitive Laws.

III.
Of the Happiness of living under Laws & government.

IV.
Of the Obligation incumbent upon all Men to obey the Civil Laws of the Land wherein they dwell.

V.
Of the Nature & Obligation of Oaths.

VI.
The Explication of the Oath of the Grand Jury.

VII.
Of the Excellency & Reasonableness of the Laws of England.

VIII.
A General Exhortation to put the Laws in Execution against all Vice and Immorality.
A General Charge to the Grand Juries: containing A Summary of the Principal Matters of the Pleas of the crown.
A Speech made upon the Condemnation of three Persons for Murther committed in South Carolina.



A Charge delivered, at the General Sessions, & Gaol Delivery: Holden at Charles Town, for the Province of South Carolina.
Wednesday March ye 17th 1702./3.

Gentlemen
Wee are here assembled to hold this Court of Assize & General Gaol-delivery; and it is my duty to give in charge to You the things that you are to Enquire of & to Present.
It hath been usual to open a Charge, with something of Perefe, or Introduction: And considering that you Gentlemen Jurors for her Majesty, & for ye whole body of this Province in which you serve , and so hath power to Present all Offences whatsoever, committee there in against ye Laws; I thought, I could not Introduce the particular Articles that I shall give you in Charge better, then by opening to you, by way of Preface, or Introduction, the Nature & Origine of Laws; in General and then descend in particular, to peak of ye Laws of England, & especially of that part of the English Law which


relates to Criminal matter, commonly called ye Pleas of the Crown, in which you are more immediately concerned.
The knowledge or learning of the Law, is defined both by the Civile Law, (a), & the Laws of England, (b) to be a knowledge of things both Divine & Humane, & a Science distinguishing what is Just, what Unjust. But this is rather an Encomium of Law, than a Definition of it.
Law is by some (c) defined to be a Rule of Acting which a Superior. having Power & Authority so to do imposeth upon an Inferior. Or as others (d) to the same purpose say, that Law is a decree by which a Superior obliges one that is subject to him, to compose & order his Actions according to that Decree.
But according to these Definitions the name of Law (e) is only applyed to the Rule of Working which a Superior Authority imposeth, & by consequence exclude that Law Eternal, which God before all ages (which cannot be superior to him selfe) did set down with him selfe, and for him selfe to work by.



(a) Jurisprudentia est divinarum atque humanarum rerun not tia, justi atque injusti scientia Justin Inst. 1. 1 t. 1.
(b) Cowel Inst. Jur. Angl. 1 1. ¶ 1.
(c) Lex est regula agenda subdito a Superiore potestatem habente imposita. Sanderson. de oblig: Consc. Prae ec. 5 3 p. 159.
(d) Pufendorf. de Offic. hom. & civ. secund. Leg. Nat 1. c. 1. ¶2.
(e) Dawson. Orig. of Laws. 1. 1. c. 2. p. 3.

And therefore the Word Law by Divines is taken in a far larger Sense: And is defined to be, (f) A Rule which an Intelligent Being setteth down for ye, framing of Actions by. Or as others (g) more fully define it; A Rule of Acting, or not Acting, set down by some intelligent Being, having Authority for so doing.
Which last Definition is full & comprehensive of all Kinds of laws, whither Eternal or Temporal, Divine or Humane, Possitive or Negative, For in this Definition is comprehended the Eternal Law; whereby God himself doth work.
(h) All things work after a Sort according to a Law: all other things according to a Law, whereof some Superior, unto whom they are Subject is Author; onely ye works & Operations of God, have him both for the Worker, & for the Law whereby they are wrought.
The being of God, is a kind of Law to his Working: for that perfection which God is, giveth per ection to what he doth.
And therefore although we cannot always give ye proper & certa n Reason of his Works, yet that there is a Reason for them is certain, For that (i) he worketh all things according to ye Counsel of his own Will. And whatsoever is done with Counsel or wise Resolution, hath of necessity some reason why it should be done, albeit that reason be to us in some things so secret,



(f) Hooker. Eccles. Pol. L. 1. ¶. 3.
(g) Dawson. 1. 1. c. 2. p. 4.
(h) Hooker. 1. 1. V. 2. p. 3.
(i) Ephes. 1. v. 11.


that it forceth the wit of Man to stand, as the Apostle himself doth, amazed thereat, and to cry out; (k) O the depth of ye Riches both of the wisdom! & knowledg of God! How unsearchable are his Judgments, and his ways past finding out.
Of this Eternal Law no less can be acknowledged, than that her seat is the bosom of God, & her Voice ye harmony of the World: which testifieth of her selfe that she is that Wisdom which God (1) possessed in the beginning of his way, & before his Works of Old, & which was set up from everlasting, or ever ye Earth was.

Law Eternal
This Law Eternal, contains not only that order which God hath eternally purposed to him selfe in all his Works to observe; but also


that order which he hath set down to be kept by all Creature , which are either Natural or Voluntary Agents, or Angels, or Men.
So that the Law Eternal (m) will consiste of four Branches.
1. The Law of divine Operations, such a Creation or
Providence.
2. The Law which Natural Agent, such as the Sun & Stars, and all Brutes work by, which is properly the Law of
Nature.
3. The Law which Angels act by, which we may call the Law Celestial.
and 4. The Law which Man as a Rational



(k) Rom. 11. v 33.
(l) Prov. 8. v. 22, 23.
(m) Dawson. p. 5.



Law of Reason
Creature acts by, or ye Law of Reason, which bindeth Creatures reasonable in this World, & with which by reason they may most plainly perceive themselfes bound. for That which bindeth them, & 1.s not known but by special

Divine Law
Revelation from God, is called ye Divine Law; which was first delivered by God, & written by direction of ye Holy Spirit in the Old & New Testament; and

Therefore next to ye Eternal Law, ye Divine Law springing from the same, hath his place & preheminence, before all others in Dignity & Antiquity; because from it all other good Law have their Devotion & Foundation, or else are squared by it. for

Humane Law
Humane Law (n) is that wh ch out of ye Law either of Reason or of God, men probably gathering to be expedient, they make it a law. Humane Laws are many & various according to the various Capacities & Conditions of Men. (o) Now Mankind may be considered as consisting of several Societies or Bodie Politick, distinct from, & yet having a national Relation each to ye other, & having to do one with another in Matters either of Secular or Religious concerne, from hence proceedeth ye Jus

Law of Nations
Gentium or ye Law of Nations, which hath three branches,
1. Civile
2. Military,
3. Ecclesiastical.



(n) Hooker. L. 1. ¶. 3.
(o) Dawson. p. 5.

Againe the Men of every particular State or Church, may be considered according to their mutual & reciprocal Relations each to other; and hence arise Law , which prescribe the duties & offices of Princes & Subjects, Fathers & Children, Masters & Servants, Pastors & People.
And the particular Men of One & ye same Society or Body Politick, may be considered as Acting & trading among themselvse, & hence proceed Laws about Contracts & Bargaining.
Now the Particular Laws of each free State may be called

Civil Law
the Civile Laws thereof. But ye Civile Law (or the appellation thereof) being in a strict signification accounted particularly & only for ye Roman Laws: the particular Laws which every Kingdom, Common Wealth, or free State doth Constitute for it

Municipal Laws
selfe, are commonly called the Municipal Laws thereof.
(p) For though the Roman Imperial (called ye Civile Laws) do bear much sway in most countries of Christendom, and have place in their proceedings of Justice, (but least of any place with in the Kingdom of England) yet have all Countries their several Customs, Statutes, particular Ordinances, discrepant in diverse points from ye Rules of ye Roman Imperial Civile Laws.



(p) Enchirid, Leg. p. 25.



Laws of England
And so hath the Realm of England in particular, which hath a larg Body of Excellent Law, then which no Nation in ye world perhaps may have better.
The Principles (q) upon which the Laws of England are grounded are Six.
1. The Law of Reason.
2. The Law of God, or ye Divine Law by Revelation.
3. General Customs.
4. Divers Principles, call d th Law Maximes.
5. The Statute Laws or Acts of Parliament.

Laws of South Carolina
The main Body of the English Law, as ye Common Law, & those Statutes yt are declarative of ye Common Law, are of force in this Province. And many of ye particular Statute of England are here made of force, by a particular (r) Act of Assembly: which together with ye particular Acts of this Province make ye Law thereof: The Offences
against which Laws, it is your Duty to present, that so Justice may be executed upon the Offenders:

The End of ye Law. Justice.
For the End of all Laws is Justice·, (s) which a constant & perpetual Will of rendering unto every one their Due. And the

The Means
Means to do Justice is (t) the due Observation of Law and Judgment: to endeavour to know the Law, & by Reason & Study to find out in every particular Case, what is Just or Unjust, Equal or Unequal:



(q) Doctor & Stud. Dial. 1. c. 4. p. 14.
(r) No. 8, p. 23 to p. 36 MS.
(s) Justin. Inst. 1. 1. 5. 1. Cowel. Inst. Jur. Angl. 1. 1. 5. 1.
(t) Zouche. Elem. Jurispr. Par. 1. 5. 10. p. 16.
And the same being found out & known, rightly to interpret & declare ye same in ye Courts of Justice; & to apply it rightly & equitably to all humane Acions both Publick and Private.
For the Law, barely considered as A Rule, would be but a

Courts.
Dead Letter, without Courts of Judicature, & Magistrates impowered to execute ye same. And therefore a all civilized Nations have their Laws: So they have Courts of Judicature, & Magistrates intrusted with
the Execution thereof.
By the Laws of England ye Executive Power of the Law is in the Crown: from whence the Jurisdiction, & Authority of other inferior Magistrates is immediately, mediatly derived; and ye Courts of Judicature have their Jurisdiction: for as it is impossible the Justice of a Nation should be confined within the Compass of A Crown: No one person being able to hear ye Complaints of ye People; Some part of this Jurisdiction hath been derived to particular Courts, that so Justice may be conveyed by them, from the Crown to ye People.

Court of Assize &c.
The Court of Assize or General Gaol-delivery in which we now are, is so well known, & the jurisdiction of it, that it would be needless for me to explain it to you.
The Laws of England, which are Laws of Mercy, hath taken care in all Cases of Life, that

no one shall be touched for any crime whatsoever, but by ye

Jurors.
Judgment of at least Twenty four Men: That is Twelve or more to find the Bill of Indictment; and Twelve more, commonly called ye Petit-Jury, to give Verdict, upon ye general Issue of Not guilty pleaded.

Grand Jury.
You Gentlemen of ye Grand Jury are the Persons, in whom the Law reposeth a great Trust for the Discovery of Offences. In your Hand ye Reputation & Peace of your Neighbours & fellow Subjects doth much consiste. For though the Indictments found by you, or Presentments made, amount to little more then legal Accusations, in order to bring the person upon his Tryal, he having an other Jury to pass upon h m, before whom he may be heard, & make his defence: Yet you ought to be very careful how you put a person upon the Hazard of a Tryal, & indanger his Life or a least his Reputation.
Your Oath (which I hope yt all of you will have a due regard to) saith that, You shall diligently Enquire & a true Presentment make; Hereby you are obliged to Enquire, & that diligently, not to be Slothful, or negligent, not to take things upon Trust, or hurry them over carelessly; but to proceed on a mature & strict Examination, and then to make true Presentment,

Of all such things and matters as shall be given You in Charge, or shall come to your knowledge.
Now because this part of your oath, doth in some measure depend upon the Charge, that shall now be given You; and seeing that by Matters & Things is to be understood, all Offences against the Laws: which Offences you are now to Enquire & Present; I shall therefore lay before You a General Scheme of them, and shall something inlarge upon those particulars which I have any Reason to think will come before You.
You shall Enquire & Present all Kinds of Offences against the Laws.
The Kinds of Offence are distinguished &c.
As in the General Charge to the Grand Juries pag: 126.


A Charge delivered, at the General Sessions, & Gaol Delivery: Holden at Charles Town, for the Province of South Carolina.
Wednesday, October ye 20th. 1703.



Gentlemen
Wee are now againe as embled to hold a Court of Assize & General Gaol-delivery: and ye Duty of my Office requires me to give in charge to you the things that you are to Enquire of & to Present.
In my last Charge, by way of Preface of Introduction to the particular Articles, I then showed the Nature & Origin of Laws in general, & the Laws of England in particular. And I think I cannot better inforce that Discourse, than by now showing & proving to you, the necessity & usefulness of humane and possitive Laws; without which, it is impossible that Humane Societies should Subsist, but must necessarily fall into a Chaos or Confusion.


God the Creator of the Universe of World, having created Man, not only a (a) Rational, but a Free agent: It so was necessary there should be a Rule or Law by which his Actions should be regulated and governed.
But if we further consider that Man was ordained by God to be a Social Creature, whose Being, Preservation, & Happiness, was to depend upon the Assistance & Good-will of God his Creator, as also those of his own kind; there arises a necessity of certain Laws or Rules whereby he may be directed how to render himself an useful Member of Society.
(b) Their Rules are called ye Laws of Nature. Which Laws may be contracted into one single Proposit on or practical Conclusion drawn from the nature of God, our own Nature, & that of things without us, Viz t: (c) That God wills or commands that all reasonable Persons should endeavor the Common Good of Rational Beings, as the great End for which they were Created & in pursuance of which consists their own true Good or Happiness , as in it's neglect or exclusion, their greatest Misery.


(a) Adde praeteria, loquende de propria Lege, de qua nunc agimus, fartueae esse posse propter creuturam rationalem: nam lex non impositur, nisi naturae liberae, nec habet pro materia nisi actus liberas. Suarez de Leg. 1. 1. c. 3. ¶. 2. p. 9.
(b) Pufendorf de Offic. 1. 1. c. 3. ¶. 8.
(c) Tyrrell's disquisitione of ye Law of Nature. c. 3. p. 106.

These Law of Nature of Reason, if Man had retained his Original Integrity, had been sufficient to direct him in all his Duties & Affairs: but seeing by the fall of Man, the Understanding was darkened, as well as the Will inclined to Ev 1, Humane Nature grew so corrupt & sinful chat it required the access of other Laws. For those Laws of Polity & Government, which would have served Men living in publick Societies with that harmless disposition which then they should have had, are not ab[l]e now to serve, when Men's Iniquity is so hardly restrained within any reasonable Bounds.

And this brings me to ye point I chiefly proposed to prove, viz. the Necessity of humane possitive Laws. And the Argument of the Judicious Mr Hooker makes this very evident; For (saith he) (d) the first kind of things appointed by humane Law, containeth whatsoever being in it selfe naturally good or evil, is notwithstanding more secret, then that it can be discerned by every Mans present conceit, without some deeper discourse & Judgment; in which discourse because there is difficulty & possibility many ways to err, unless such things are set down by written Laws, many will be ignorant of their duties, & many that know what they should do, would nevertheless dissemble it, & to excuse themselves pretend ignorance and simplicity, which now they cannot. And that honored civilian Rodin his Argument for ye necessity of humane


(d) Eccles. Pol. 1. 1. ¶. 10. p. 27.

positive Laws, is much to ye same purpose, For (saith he) (e) tho' we could suppose all Magistrates to act and judge without any by-respect, and according to Equity, nevertheless there would be a need of humane written Laws, that by them, as by a Shining Lamp, the ignorant may be directed in the ways of virtue, and the wicked affrighted from the ways of vice.
For, it is most evident that the Law which God has writ in the Heart of every Man, sets down only some (f) general Heads of what Men are to do, or not to do, as, that we ought not to be injurious; that we ought to do as we would be done by, and the like: and therefore as in the Sciences & Matters of Speculation, there is a proceeding from Principles, to Propositions & Conclusions: So is it also in matters of Practice, or those Conclusions or Rules for the ordering of the Actions of Mankind, which we call humane Laws; which


(e) Nihilominus meuus tamen Legibus opus esset quibua velut lucerni quandam vel imperiti in densissimis humanarum actionum tenebr s dirigantur, vel Scelerati metu poenarum terreantur. De Rep. 1. 6 c. 6.
(f) Necessitas manat ex eo, quod Lex naturalis, vel divine generalis est, & solum complectitur quaedam principia morum per se nota, & ad summum extenditur ad ea, quae necessaria, & evidenti illatione ex illis principiis consequuntur; praeter ilia vero multa alia sunt necessaria in republica humane ad ejus rectam gubernationem, & conser-vationem; ideo necessarium fuit, ut per humanam rationem aliqua magis in particulari determinarentur circa ea, quae per solam rationem natu-ralem definiri non possunt, & hoc fit per legem humanam. Aquinus L. 2. Q.91. Art. 3. Suarez de Leg. 1. 1. c. 3. ¶18. p. 12.
are but as so many Conclusion drawn from the First & general Principles of the Law of Nature.
(g) Again, though the Law which is put & writ in the Heart of every Man shews man what is good & evil, yet are there no Penalties imprinted in it to deter & affright Men from evil; and therefore God himself, by his own example, shewed what need there was of positive written Laws for the well-ordering of a Conmonwealth, by his ordering Moses to enact such & such Laws, and annex unto them such & such Penalties.

To conclude this Point, Law is a divine Thing, a steady Guide, an impartial Judge, & an even Rule; so that there is a manifest need of positive written Laws, for ye well-governing & ordering of every State or Commonwealth.
And accordingly so hath been the practice of all civilized Nations; for where there is distinct Societies or Governments there is always Laws (+) agreed upon & published, a necessary Rules to be observed for the good & preservation of the whole as well as each particular Member thereof. Laws being always thought as necessary to direct as Armes to inforce obedience.
The Emperor Justinian in the Proem or Preface to his Institutes of the Civile Law saith, (h) That the Imperial Majesty ought not also to be adorned with Arms, but also to be armed with Laws.


(g) Dawson of ye Origin of Law. 1. 2. c. 5. p. 65.
Dawson Ib.
(+)Tanta est dignitas, tanta utilitas, tanta denique necessitas Legum, ut sine illis Respublica nulla conatitui, sed mere sit barbariea, uti omnium temporum & gentium historiae satin supirque declarant. Rosin. Antiq. Rom. 1. 8. p. 759.
Nulla respublicae sine certo legum praescripto itare, multo minus florere potest, man Lex dicitur non immerito, Reipublicae anima. Ib. p. 760.
(h) Imperatoriam majeatatem non solum armis decoratam, sed etiam Legibus oportet ease armatam. Prooam. de confirm. Instit.


And Bracton begins his Book of the Laws and Customs of England with
these Words, (j) Every King who will govern well, will find two things very necessary, viz. Arms & Laws.
From this Account given you of the necessity of humane positive Laws, for the preservation & good of humane Society: I hope you are abundantly satisfied of your Happiness in being governed by known Laws; And that you are not under an Arbitrary Power where the Will of the Prince is a Law; but where the Laws, which are made upon mature deliberation & adapted, not for the Interest, & to serve the turnes of particular persons, but for ye good of ye whole Society are ye Fountain (k) Government, and which according to our present Constitution, are the standing Rules by which all ye Actions both of the Prince & ye People are to be guided, squared, & ordered.
I hope therefore, that you will esteem ye Laws not as so many Tyes & Fetters upon you; & that you might be more happy & more at Liberty without them; But as Rules to direct you in the right ordering of your Actions, & made for your good & preservation: And therefore that you will look on them as your Birthright & one of your greates[t] Treasures and happiness.


(j) In Rege qui ecti regit, cessaria sunt duo haec, arms delicet ges. racton 1. 1. c. 1. f. 1.
(k) Dawson of ye Orig. of Laws. 1. 2. c. 5. 11. 1. p. 63.
It was the observation of ye Roman Orator concerning the Laws; And which is applyed by the Lord Coke to the Laws of England, being
placed in the Title page of the first part of his Institutes;
Major Haereditus Venit unicuique erortium a Jure & Legibus, quam a Parentibus. A greater Inheritance is derived to every one of us from Laws than from our Parent.
Which indeed is evident from common Reason; For what would it signify for your Parents to leave you Estates & Riches, if the Law did not preserve your Right & Property to them?
Of all the parts of ye Law there is no one more excellent (1) & useful, & that more immediately concerns the good of Society in general, then that part of it which is the Jus criminis, or the Law touching matters criminal, commonly called the Pleas of the Crown in which you are more immediately concerned, & the Offences against which it is your Duty to present. I
For without a Presentment from you they come not regularly before this Court, neither


(l) Inter leges, quae huic Regno gubernando laetae aunt, haud postremum locum tenent hae, que Coronae leges appeilantur. Nam cum vindicando in malos res cum privatae, tum publicae, sirmissime tenentur: quae possunt leges ease prestantiores, quam hae, quae hanc vindictam fieri jubent? Reliquae vero leges, privatorum hominum commodis pros-piciunt; Sed hae, Regiae Maiestati, subditorum vitae, ac publice tranquillitati consulunt. Staunforde Plees del Coron, Lectori.
can the person offending be brought to punishment. I suppose I need not tell you, that Laws, though never so useful & excellent; Yet without a faithful & due execution of them, & particularly in punishing
offenders, will be of little or no Use: For Such is the general corruption of humane Nature, that few persons would obey the Laws, merely as Rules distinguishing Good from Evil, if there was not a Sanction or penalty added to them for punishing the Transgressors.
I hope therefore that you will be very careful to perform conscientiously that great Trust the Law hath reposed in You: And which you are further bound to by the sacred Obligation of an Oath: Which requires you to make true presentment of all such things as shall be given you in charge, or shall come to your knowledge.
Now because that part of your Oath doth in some Measure depend upon the Charge that shall now be given You: Therefore be pleased to Observe;
That you are to Enquire & Present all kinds of Offences against
the Laws. The Kinds of Offences are distinguished &c.
As in the General Charge to the Grand Juries pag: 126.


A Charge delivered, at the General Sessions, Gaol Delivery Holden at Charles Town, for the Province of South Carolina.
Wednesday March ye 15th. 1703./4.


Gentlemen.
You being the Grand-Inquest of the Province, it is your Duty to present all kinds of Offence committed against the Laws.
And I hope you will be very careful conscientiously to discharge that great Tru t the Law hath reposed in You: For upon a faithful Administration of publick Justice in the due Execution of the Laws; & particularly those Laws that are made for the punishment of publick Offences, depends not only ye Happiness of the People, but the Preservation of the Government.
I suppose you are all of you sensible of your Happiness of living under Law & Government: without which no one could be protected in his just Rights, if a Stronger then him would attempt to take it from him:


For the Law barely considered as a Rule to distinguish Right from Wrong would never be able of it self to obtain it's true End without Government to enforce it's Sanctions & Penalties against Offenders.
Government therefore is the Ordinance of God: instituted by him; not purely to distinguish one sort of Men in the same Society from others, & to set them above the rest, but for ye good & happiness of ye whole Society, & without which the Society cannot Subsist.
For if we consider Man purely in a State of Nature without Society & Government, what a miserable person must he needs be: Without Government he would be defended only by his only Single Strength; but under Government by ye Strength of all. Without Government no Man is sure to keep Possession of what his Industry has gain'd; but under Government every body is secure from that danger. To conlude out of Society & Government we have ye Tyranny of Passions, War, Fear, Poverty, Filthiness, Barbarity, Ignorance & Wildness: But in Society & under Government we have the sway of Reason, Peace, Security, Riches, Decency of Ornament, Company, Elegancy, Knowledg & Benevolence. Those Persons therefore had a true prospect of ye Misery & Confusion which attends a Natural State; who brought it into a Proverbial Saying, that unless there were such things in ye World as Courts of Justice, Men would infallibly devour one an other.



Rom. 13. v. 1.
Pufendorf de Jure Nat. ac Govt. 1. 2. c. 2. ¶. 2.
And this will more evidently appear if we consider that God designed Man & framed his Nature so that he should live in Society & under Government & Laws: For although God created Man a Rational & Free agent: Yet the all-wise Creator did not invest with such a wild Liberty, as should impower him to act merely as he list, & as his wandering lnclinations lead him; without being under the Restraint of any Rule, necessity or Law.
Indeed God hath allowed ye Brute Creatures (tho placed below our Degree of Being) a Liberty proper to their Nature & State. But this Liberty cannot be otherwise then very Ignoble; since ye Power of those Animals is confined to such narrow Bounds, & Since such is the dullness of their Senses & such the lowness of their Appetites, that they are concerned about very few objects, & regard even those but very negligently & superficially; nor are excited by any thing but what is extreamly gross & perpetually obvious, & tends to ye Service of their Belly.
But now why the great Creator should not indulge Man in so lawless a Liberty, 4 many Rea ons maybe given, arising both from ye Primitive and from ye Accessory State & Condition of Humane Nature. The Dignity of Man & his Excellency above all ye other parts of the Animal World, made it requisite that his actions should be squar'd by some Rule; without which no Order, no Decorum, no Beauty can be conceived. Hence it is his greatest Honour that he has obtained an Immortal Soul, indued with the Light of


Pufendorf, 1. 2. c. 1. ¶. 5.

understanding, with the Faculties of judging and choosing things, & with an admirable Capacity for Arts & Knowledg. Of all which Powers & Abilities there would be very little Use, or rather none at all in a Lawless a Brutal & an Unsociable Life.
An other Reason why it was inconvenient to allow Man ye same extended Liberty as Brute, wash prodigious Corruption & Degeneracy. To which may be added ye great Variety of Dispositions & Inclinations that is in others: and ye almost infinite ways of living & managing their Course of Life. So ye Humane Life would be nothing else but Noise and Confusion, were not ye arr ng Dissonance composed & sweetened by Law & Government: which makes this exceeding Variety of Parts & Dispositions to be an Ornament & an Advantage to Mankind; since when it is thus rightly tempor'd, there naturally results from it so admirable an Order & Grace a would not have been produced by an Universal Likeness.
It is therefore sufficiently evident, that the natural Liberty of Man, such as really & truly agree to him, must always be understood as guided, & restrain'd by the Tyes of Reason, & by the Laws of Nature. And therefore ye Heathen Philosophers only by the Light of Nature taught, that a general & unbounded License of acting, was disagreable to the Condition and to the Dignity of Man.



Ib. ¶. 6.
Those persons only (says one of them) who live in obedience to Reason, are worthy to be accounted Free. They alone live as they will who have learnt what they ought to Will. Those who give ye reins to unworthy practices and pursuits,use an imaginary Freedom, to purchase
a real Dissatisfaction. And an other says, That Law & Justice are to be admitted as it were for Sovereigns amongst Men, without the Government of which they could not continue or Subsist.
But though Communities & Government are necessary for the preservation of Men, & Laws are necessary to ye very being of Communities, & Good Laws to their Happiness: Yet they cannot be supposed, by any Rational Man, to be any more sufficient of themselves, to preserve the Welfare of the Body Politick, without Execution than the best Medicines can preserve the Health of the Natural Body without the Use & Application of them.
The Administration of publick Justice in the faithful & due Execution of ye Laws is ye great End of Government; which was substituted by God for ye Common Good to protect the Innocent & aveng the Injured: It is therefore the Duty of the Magistrate to execute Wrath upon those that do evil, & to punish Vice, Wickedness, Profaneness, Debauchery & all Immoralities; which are as fatal to publick Societies, as they are destructive to private persons.



Plutarch
Jamblicus
Rom. 13. v. 4.
If therefore the Execution of Good Laws is necessary to the welfare of Communities, & in which their Good is so deeply concerned. It is then a Matter that deserves the greatest regard; & which it behooves all men in their several Capacities to endeavour according to ye several Powers by Law committed to them.
In you Gentlemen of ye Grand Jury the hath lodged great Power inputing in Execution tho e Laws which concern all publick Offences, & in bringing the Offenders to Punishment.
And I hope I need use no further Argument to perswade you to your Duty; to which you are bound by your Oath by which you are required diligently to Enquire & present all such matters & things as shall be given you in Charge or shall come to your Knowledge.
See the General Charge to ye Grand Juries pag: 125.


A Charge delivered, at the General Sessions, & Gaol Delivery: Holden at Charles Town, for the Province of South Carolina.
Wednesday December ye 6. th 1704.


Gentlemen:
You being the Grand-Inquest of this Province, it is your Duty to present all kinds of Offences committed against the Laws.
And I cannot think of any Argument more proper to incite you to your Duty therein, then by offering to your consideration, The Obligation incumbent upon all Men to obey the Civil Laws of the Land wherein they dwell.
For though the Civil or Municipal Laws of any Nation be only Humane; Yet it is a great mistake to think that Obedience is


only due to them, upon the Account of the Penalties annexed to them, & that they do not also oblige the Conscience.
Indeed strictly & properly peaking a (a) Rule or Law cannot be sayed to bind the Conscience, but the Authority of the person that imposeth ye same: Nevertheless by consequence, truly, though less properly, the Rule itself may be sayed to oblige, because the Obligation is made by it, & to it: If the Law is sayed to Judge, although the Law doth not judge, but the Judg, because the Judg [i]s out to judge
according to Law.
Now though (b) God alone is Lord of the Conscience; (c) Yet Conscience being nothing 1 e, but a Mans Judgment concerning Actions as good, or bad, or indifferent, it is certain that A Man must have some (d) measure to proceed by in order to the framing such a Judgment about Actions. (e) This Measure is the Rule of Conscience, & conscience is no farther safe, than as it follows that Rule.



(a) Sicut ergo in foro externo subditos ad obediendum obligat proprie & formaliter, non Lax ipsa, sed potestas Legislatoris; very tamen dicitur & Lex ipsa obligors, etsi impropria 61 quasi materialiter, sive terminative, quia per eam & ad eam fit obligatio; sicut dicitur Lex etiam judicare etsi ipsa non judicet, sad Praetor, quia Praetor debet secundum legem Judi-care: Sic & in foro interno Conscientiam propriC obligat, non Regula sive Lax ai imposita, sed potestas & authoritas imponentis: its tamen ut ex consequenti vora & non incommoda, licet minas propria, dici possit regulam ipsam obligare. Sanderson. de oblig. Conac. prael. 4. 5. p. 114.
(b) Deus solus merum & directum habet imperium in Conscientias hominum. Ib. Sect. 8. p. 117.
(c) Arebp Sharp of Conscience Collec. of Cases agt. ye Dissenters. pag. 148.
(d) Conscientiae ut munus suum debits exequatur, necessariam esse aliquam Regulam, cui subesse debeat. Sander. Sect. 2. p. 111.
(e) Bennet Abridg. of ye London Cases. p. 230.

(f) Now this Measure or Rule of Conscience can be nothing else but the Law of God; because nothing can be a Duty or Sin, but what is commanded or forbidden by God's law; (the very notion of sin being that it is (g) a transgression of the law) and that thing only is indifferent, which his Law neither commands nor forbids.
Now the Law of God which is the Rule of Conscience, is (h) God will for the Government of Men's Actions, in what way soever that Will is declared to them, whether by Nature, or Revelation.
By the Law of Nature I mean those Principles of Good & Evil, just & unjust, which God hath stamp'd upon the Minde of all Men, in the very Constitution of their Natures. Which consists not only in those first Principles which Philosophers call (i) notions common to all Mankind; as That what is Good is to be followed & done; What is evil, is to be let alone & shun'd; and that the greater good, is to be chosen before the less; but also in (k) Deductions & Conclusions drawn from those principles.
So by the Revealed will of God delivered to us



(f) Sharp of Consc. p. 148. Bennet Abridg. p. 230.
(g) [Greek text] 1. Joh. 3. v. 4. Siquidem nihil aliud est Peccatum, quasi aberratio, sive recessus a regula illa sive Lege quam sequi debemus. Sand. Prael. 5. Sect. 5. P. 161.
(h) Propria & adaequata Conscientiae Regula Dei voluntas est, qualitercunque hominibus revelata. Prael. 4. Sect. 20. p. 132. Vid. Sharp & Bennet, ubi supra.
(i) Sunt has [Greek text] Lex illa Dei, quam Apostolus, Rom. 2. Scriptam ait in cordibus hominum; prorsua ut Leges civitatum aut Prin-cipis tabulis aensia inscribi solitae sunt. Sand. Prael. 4. Sect. 24. p. 139. Vid. Dawson. Orig. of Laws. 1. 1. c. 5. p. 21.


in the Old & New Testament is to be understood, (1) not only expressed Commands & Prohibitions; but also the necessary Consequence of those Commands & Prohibitions: so that whatever is by direct inference or parity of Reason commanded or forbidden, is a Duty or a Sin; though it be not commanded or forbidden in the express Letter of ye Law[.]
Now though the Laws of God be the great, & indeed the only Rule of Conscience, yet the (m) Law of Men, generally speaking, do also bind ye Conscience, & are a part of it’s Rule in a secondary Sence; that is, by virtue of, & in Subordination to ye Laws of God.
And the truth of this Proposition will appear very evident to you if you Consider. That there is nothing more certain, than that the Law of God, as iit is declared both Nature & Scripture, doth command us to obey the Laws of Men.
As to ye Law of Nature there is no one Dictate of it more obvious than this, that we are to obey the Government we live under in all honest & just things; for this is indeed the



(k) Ib. p. 22.
(l) Vid. Sharp ubi supra p. 149. p. 8. Bennet p. 231.
(m) Leges humanae rita constitutae, etiam in particulari, etsi non directs & per se, ex consequenti tamen & virtute generalis praecepti Divini, obligant subditorum conscientias. Sander. prael. 5. Sect. 23. p. 186. Vid. Sharp ubi supra & Bennet p. 232.

principal Law, & Foundation of all Society: without which no State, City or Family can subsist in Peace and Happiness.
And as to the Laws of God in Scripture it is most evident that by them we are commanded to (n) Obey them that have the rule over us; (o) And to be subject not only for Wrath, but also for Conscience sake. So that no man can doubt but that he is really bound in duty to obey theLaws of Men, that are made by just & sufficient Authority, & so consequently they are a part of the Rule of Conscience.
1st Peter commands us to (p) submit our selves to very Ordinance of man for the Lords Sake. Which expression for the Lords Sake imparts the Obligation of the Conscience: as is evident not only from the use of the like expression in (q) other places of Scripture, but also from the following Words of ye same Apostle, (r) For so is the Will of God. But whatsoever is the Will of God is the adequate Rule of Conscience.
Be pleased further to Consider; That to disobey Humane Lawe rightly constituted, is to resist the Legislative power; which Power being ordained of God, they that resist it, are in Scripture sayed to resist the Ordinance of God; & therefore consequently & by interpretation to resist God himself; upon which consideration the Apostle concludes the necessity of Subjection (s) not only for wrath, but also [Greek text] for conscience sake.



(n) Heb. 13. v. 17.
(o) Rom. 13. v. 5.
(p) 1 Pet. 2. v. 13.
(q) Ephes. 6. v. 1, 7. Col. 3. v. 23.
(r) v. 15.
(s) Rom. 13. v. 5.
I could offer several Reasons from the Use & End of Laws to prove to you the Obligation that lyes upon you from Conscience to obey humane Laws. But I shall only offer this one thing more to your consideration. That humane Laws are participations of the Law Eternal, & have all their obliging power from God. This the Heathens asserted from the Light of Nature as I could easily prove to You by particular citations from their Authors: but there is no need of producing their Testimony when that point is so clear from plain texts of Scripture, a that for Instance of Solomon; (t) By me Kings reign, and Princes decree Justice. For by (u) Princes there, are meant those Counsellors which Kings use to call to assist in making Laws: and by justa decernunt, as it is in the Latin, or decreeing of justice, can not well be understood any thing else than the defining & declaring what is justum & honestum, or ye making of just and equitable Laws: and upon that account it is that the LXX. translate it [Greek text], they write down Justice: that is, they publickly declare to ye People, what is just & equitable, by their making & writing of laws. And this Legislative Power (saith the Wiseman) is derived from the Eternal Wisdom, by wch Kings do Reign, & their Princes or Counsellors do derive Justice, or make righteous Laws. And St Augustin speaking of



(t) Prov. v. 15.
(u) Dawson, Orig. of Laws. t. 1. c. 2. ¶. 5. p. 9, 10.


humane Laws saith, (w) That God doth distribute them to mankind by Kings
& Emperors. And in another place he saith (x) That there is nothing just in humane positive Laws, which is not derived from God. And that most learned & judicious Casuist Bishop Sanderson, speaking of humane positive laws, & from whence they derived their obliging Power, saith, (y) That whichever obliging force they have, they owe it all to the Divine Law. And in an other place he tells us. (z) That properly speaking, the Magistrate doth not oblige the Conscience of the Subject to obey the Law, but God obligeth the Conscience of the Subject to obey the Magistrate. So that in the Opinion of that great Casuist, all the obliging & constraining power which is in any humane laws is merely derivative, & flows from the Divine Eternal Law, which is the only adequate Rule of Conscience.
What I have said of the Obligation upon You from Conscience to
obey humane Laws, must always be understood, not only of (*) such humane Laws as are made by them that have power to make Laws; but also that



(w) Ipsa Jura humana per Imperatores b Rages Deus distribuit genari humano. Tract. 6. in Johan.
(x) Nihil est in lege temporali justum quad ex lege aeterni non derivatur. De lib. arb. 1. 1. 6.
(y) Quammunque habent obligandi vim, eam toto divinae legi acceptam debeant. de oblig. Consc. prairie 5. sect. 2. p. 157.
(z) Non enim, propria loquendo, Magistratus obligat conscientiam ad parendum Legi, sed Deus obligat conscientiam ad parandum Magistratui. Ib. sect. 40. p. 204.
(*) Loges Humanae latae persona vel cammunitate non habente legitimam potestatem, non obligant in Conscientia. Ib. sect. 11. p. 170.
the Laws that are so made command things just & honest. For should humane Laws command any thing in it self unjust, & contrary to the Law of God either by Nature or Revelation; This would be to do what the Psalmist (a) calls, Framing mischief by a Law. Or as the Prophet (b) expresseth it, Decreeing unrighteous Decrees. And in such Case no man (c) would be obliged to obey such Laws, but to act quite contrary to them. But where humane Laws command nothing contrary to the Law of God there they are to be obeyed in things otherwise of themselves (d) indifferent: which truly speaking are the (e) proper Subject of Humane Laws: for those things which are puri bona & such as God hath (f) commanded, we are obliged to do Although. they should not be enjoyned, nay, though they should be forbidden by the higher Powers. And those that are puri inata, and (g) forbidden by God, we ought to abstain from, Although they are not prohibited, nay, though they should be commanded by humane Laws.
But those things which are of themselves indifferent, & are neither
Commanded



(a) Psal. 94. v. 20.
(b) Isai. 10. v. 1.
(c) Loges humanae injustae non obligant ad obediendum. Sand. prael. 5. sect. 7. p. 164.
(d) Res autem Mediae sive adiaphorae aunt, quarum tote species nulla Divine Lege (naturali vel positive) aut praecipitur aut prohibetur. Ib. prael. 6. sect. 22. p. 235.
(e) Res istae adiaphorae Legum Humanarum propriissima & maxima idonea Materia. Ib.
(f) Quandoquidem ad eorum, quae Deus mandavit, observationem obligamur, vel tacentibus, imò, etiam vel contradicentibus, quorumcunque hominum imperiis. Id. Ib.
(g) Ad ea very quae a Deo vetita aunt, non facienda obligamur, vel tacentibus vel etiam jubentibus hominum legibus. Id. Ib. p. 236.

nor forbidden by any divine Law either natural or positive, but left indifferent may be (h) commanded and forbidden, & determined this way or that, by any humane lawful legislative Power; Which being done they (i) bind the Conscience, not by any vertue in themselves, but merely by vertue of God's Law, who has commanded us both by Nature & Scripture to obey our Superiors.
But now as to those law that will fall more immediately under your Cognizance, which concerne matters criminal, & are commonly called the Pleas of the Crown, they are Laws for the most part only declarative of the Laws of God by Nature & Revelation: And therefore are only so many (k) Penal Sanctions annexed by Civil Authority to the Divine Law; And therefore upon that account lay a (1) farther Obligation of Obedience upon us.
The Offences against those Laws it is your Duty to Enquire of & to Present: And to this faithful discharge of your Duty in this Affair you are bound, not only upon account of the Obligation that lyes upon you to obey


(h) Dawson Orig. of Laws L. 2. c. 5. ¶2. p. 69.
(i) Sharp of Conic. p. 149. Bennet Abr. p. 232. See also Ap. Taylor's Duct. Dub. or Rule of Conscience B. 3. c. 1. Rule 1. p. 427. p. 429. 5. 11. & p. 442. S. 34.
(k) Vid. Introduc. to Puffendorf of ye Law of Nature & Nations. Engl. p. 18.
(l) Lex humane prohibens rem simpliciter malam, ut furtum, adult-erium, sacrilegium; aut jubens rem bonam & necessariam, ut cultum Dei, solutionem debiti, honorem parentum; inducit novam obligationem in Conscientia. Sander. Prael. 5. Sect. 10. p. 167. Vid. prael. 6 Sect. 9. p. 217.


the laws, which require thi of You, (which how great an Obligation that is I have now proved to You) but also by the sacred obligation of your Oath, by which you are required, diligently to enquire, & have presentment to make, of all such matter & things as shall be given you in Charg, or shall come to your knowledg.
See ye General Charge to ye Grand Juries pag: 125.


A Charge delivered, at the General Sessions, & Gaol Delivery Holden at Charles Town, for the Province of South Carolina.
Wednesday March ye 21st. 1704./ 5.


Gentlemen,
We are here assembled to hold this Court of Assize & General Gaol-delivery: And the Duty of my Office requires me to give in charge to you the things that you are to Enquire of & to Present.
But before I give you the particular Articles in charge. I shall by way of Preface or Introduction lay before you the Nature and Obligation of Oaths. And I hope that what I shall say upon that Subject will have that effect upon you, that you will be careful conscientiously to discharge that great Trust the Law hath reposed in you: Especially when you consider it, not only a a Duty






incumbent upon You, as you owe Obedience to ye Laws which requires it you, But also that to ye faithful performance of the same you are bound by the Obligation of an Oath. An obligation wch was always esteemed Sacred amongst the very Heathens by ye Light of Nature: and therefore Tully (a) call an Oath, affirmatio religiosa, a religious affirmation. And the same person saith; (b) the Nullum vinculum ad astringendam fidem majores nostri jurejurando artius esse voluerunt; Our forefathers had no stricter bond whereby to oblige the faith of men to one another, then that of an Oath.
An Oath may be defined (c) to be a Religious Act, in which God is invocated as a Witness to confirme a thing doubtful, or this, (d) An Oath is an invocation of God or an Appeal to him as a Witness of the truth of what we say. So that an Oath is a Sacred thing, as being an act of Religion and an invocation of the Name of God. And in many cases is of great necessity, to confirm a doubtful thing, and to put an End to controversies which cannot otherwise be decided to the satisfaction of the parties contending; Therefore the Apostle


(a) Est Jus jurandum affirmatio ralisiosa. Cic. lib. 3. Offic.
(b) Ib.
(c) [Greek script] Elem. Alsxand. Strom. vii. [Greek script] Philo. Juramentum est actus religiosus, in quo ad confirmandam rem dubiam Deus testis invocatur. Sanderson de Juram. Oblig. Prated. 1. ¶. 2. p. 4.
(d) Archbp. Tillotson. Assize Serm. Vol. 3. p. 117.


saith, (e) that an Oath for confirmation is to them an end of all strife.
I shall not trouble you with ye various Distinctions of Oaths given by Divines & Lawyers (f). But shall only mention to you that most common Distinction, whereby an Oath is distinguished, (g) into an Assertory oath, and a Promisory Oath. An Assertory Oath, (h) which is what is commonly used in Judicial Affairs, is when a man confirms or denies upon Oath a matter of Fact, past, or present: when he swears
that a thing was, or is so, or not so, A Promissory Oath, which is mostly used in Premisses, Covenant & contract , is a promise confirmed by an Oath, which alway respects something that is future: and if the promise is made directly


(e) Hebr. 6. v. 16.
(f) Variae extant spud Theologos & Iureconsultos, pro diverso respectu Iuramentorum sou divisiones, seu distinctiones. Dividitur alit. in Iudiciale, & Extrajudiciale: alias in publicum & privatum: in simplex, & Solenne: in Nudum, & Execratorium in absolutum, & conditionals, & alias aliter. Sand. Prael. 1. Sect. 8. p. 12.
(g) Sed nobilissima omnium, nec ulli eorum qui de Juramentia scripsere (quod sciam) praetermissa, ea est qua distinguitur in Assertorium & Promissorium. Ib. p. 13.
(h) Quoties ergo adhibito Juramento Deus advocatur in testimoni• rei praeteritae, vel praesentis, dici solet ejusmodi Juramentum Asser-torium: quia jurans sine ulla in futurum sponsione, asserit tantum r ita ease vel suisse sicut ipse tunc jurat. Quod si Deus interpos to Juramento invocetur in testimonium rei futurae, dicitur id Juramentum Promissorium: quia jurans pollicetur se aliquid in poaterum facturum vel non facturum. Assertorii usus ecipuus eat in Judiciis, ad lites terminandas maxime in Quaestione facti: Promissorii exiguus est in Judiciis, sed in Promissis, pactionibus & contractibue plurimus Ib.
and immediately to God, then it is called a Vow; if to Men., an Oath.
As to ye Forms of an Oath, with respect to the Words by which an Oath may be expressed; they are various in Scripture.
The most usual formes were by these Words; 1. (j) As the Lord liveth. 2. (k) The Lord forbid: which forme was generally used ina negative Oath. 3. (1) -G-o-d-- d-o-- -so to me & more also. Which fortne was
used in an Affirtnative Oath and is the last of an Imprecation.
As to ye outward Rites or Ceremonies used in the taking of anOath, they vary according to ye various Customs of Nations.
In the Scripture there are two Ceremonies mentioned of Swearing. One, of putting the Hand under the Thigh of him to whom the Oath was made. Thus Abraham's Servant swore to him (m): & Joseph to Jacob (n). The other was by lifting up the Hand to Heaven. Thus Abraham expresseth ye manner of an Oath, (o) I have lift up the Hand to ye Lord, ye most high God. To which Rite ye Scripture (p) in several places alludes.
But there is not the



(j) Jud. 8. v. 9. 1 Sam. 14. v. 45. c. 19. v 6 c. 20. v. 3. c. 25. v. 34. &c.
(k) 1 Sam. 24. v. 6. 1 Reg. 21. v. 3 Absit mihi a Jehova, qua formula jurandi ulimur in re aliqua reganda. Ravan. Biblioth. Sacr. Voc. Juram.
(l) 1 Sam. 14. v. 44. c. 25. v. 22.
(m) Gen. 24. v. 2. & v. 9.
(n) Gen. 47. v. 29.
(o) Gen. 14. v. 22.
(p) Deut. 32. v. 40. Psal. 144. v. 8. & v. 11. Ezek 20. v. 5.
least intimation in Scripture (q) that either of these Ceremonies were prescribed & appointed by God, but voluntarily instituted & taken up by men.
As to ye Rites used, in taking of an Oath, among Christians, they have varied as other Rites & Ceremonies have done, according to the differences of places & times.
The most usual, & wh1ch by succession of time hath come down to us, is that Ceremony which we now use by laying the Hand on ye Holy Gospel & kissing the Book. And this solemn kind of Oath is called a Corporal Oath, because the Sign or Ceremony is performed by some part of ye Body: And it is no just Exception against the Ceremony that it is not found in Scripture; for this as I have now observed to You was always [a] matter of Liberty; But tis a Ceremony very solemn & significant, and also very ancient. St Chrysostom, (r) who lived in ye Fourth Century, alluding to this Custom calls the Gospel, [Greek text]; the Book which you tender in an Oath. And in ye words immediately following: [Greek text]; the Gospel which taking in your Hands you commend to swear by, I could easily produce you several other Authorities to ye same purpose from the



(q) Non tamen legimus id ullo expresse Dei inandato niti, sed fuisse quantum notis quidem constare potest, liberae amnia in institutionis. Sander. Prael. 5. Sect. 11. p. 147.
(r) Chrys. Homil. XV ad pop Antioch.

ancient Fathers, & the ancient Canon law: but ye (s) Custom of swearing on ye Gospels is so well known both as to ye Antiquity & ye Useof it: that there is no one that is conversant in Antiquity, & the Writings of ye ancient fathers but knows the same.
I shall only observe to You that this or any other outward Ceremony or Signe added to an Oath makes it more solemn: for though ye Obligation of an Oath (t) doth properly cons st in this, that God is called to witness ye truth of what is so affirmed, Yet the generality of Casuists (u) agree that a Solemn Rite being added to ye words of the Oath, it makes an Agravation in the Perjury,· And that for two reasons. 1. st because it is done more deliberately & 2. dly by reason of the open Scandal.
Which observation naturally lead me to the thing which I chiefly designed to speak to, which



(s) Satis antiquus & usitatus mos ills per proposita Evangelia jurandi. Suiceri Thesaur. Eccles. Tom. 1 p. 1225.
(t) Obligatio Juramenti quatenus Juramentum ex eo quad Deus testis & vindex invocatur. Sand. p. 150.
(u) Juraro corporaliter plus est quam instrumento aut nude vere. Gothofr. ad 1. 3. Cod. Quanta plan crescunt solannitates, tantb majus est perjurium. Dico, quod solennitas juramenti aggravet peccatum perjurii, id ex accidenti rovenire; sed tamen necessarib & inseparabiliter, non autem contingenter: idque duplici rations. Primo, ob majorem deliberationem. Ad hoc enim adhibetur externorum rituum solennitas, ut majorem incutiat interiori menti actus reverentiam, & religionis quasi senaum quendam; ut ita agens majors cum animi attentions & deliberations versetur circa ilium actum: & omne peccatum caeteris paribus ea gravius est, quB fit contra actum vo-un-tatis antacedaneum magis deliberatum. Secunda, solennis juramentl gravius eat perjurium, propter majus scandalum; quia qua solannfib aliquid sit, eo attentius & I pluribus observatur; & proinde ai in eo peccetur, exemplum magis erit & notorium & perniciosum.
is the Sacred Obligation of an Oath.
And this will appear,
First, as it is a Religious Act, and that clear, not only from the Consent of all civilized at on, with whom an Oath was always esteemed sacred; but also from plan Texts of Scripture; thus Moses speaking to the People of Israel, saith, (w) Thou shalt fear ye Lord thy God, & serve him, and halt swear by his Name. From which place the Schoolmen (x) unanimously conclude, that an Oath is an Act of that Supreme Worship which they call Latria, & is due to God only. And therefore to swear by the Name of God, in Scripture (y) is put for confessing themselves to worship the true God, & to be members of his Church: thus the Prophet Isaiah (z) when he foretold the calling of Egypt to ye Church; signified it by this, that they should swear to ye Lord of Hosts: Which was a proof of their confessing the true God, & belonging to his people; Who were expressly commanded (a) by God, not only to swear by him, but that they should not swear by any other God. So that God himselfe by the Prophet Jeremiah, useth that as a proof of the People of ye Jews having utterly forsaken him, in that they swore by other Gods: upon which occasion hem t earnestly expostulate with them saying, (b) How shall I pardon thee for this? My Children have forsaken me, & sworn by them



(w) Deut. 6. v. 13.
(x) Aquin. 2. 2. qu. 89. 4.
(y) Psal. 63. v. 1. Isa. 48. v. 1.
(z) Isa. 19. v. 18.
(a) Exod. 23. v. 13. Josh. 23. v. 7.
(b) Jer. 5. v. 7.

that are no Gods. So that it is most evident from these, & several other places of Holy Scripture that might be produced, that an Oath is A Religious Act of Worship due to God only.
Secondly, The Sacred Obligation of an Oath appears in this, That God is invoced as A Witness to confirm ye truth of what is so affirmed upon Oath. So that it is not possible for men to lay a more Sacred and Solemn Obligation upon their consciences, then by the Religion of an Oath. Moses very well expreseth it, (c) by binding our Souls with A Bond, Or as it may be literally translated from the Original, by binding a Bond upon the Soul. Where the doubling the word according to ye propriety of the Hebrew speech hath the greater Emphasis with it, as (d) Blessing I will bless thee, & multiplying I will multiply thee. I.e. I will accordingly bless thee, & will accordingly multiply thee: So by binding A Bond, i.e. binding most firmly. And indeed nothing can be a firmer Tye then that of an Oath; which is A Solemn appeal to God as A Witness of the truth of what we say: ''To God, I say, from whose piercing & all-seeing eye, from whose perfect & infinite knowledg nothing is or can be hid: So that there not



(c) Num. 30. v. 2. [Hebrew script] ligando ligamen super animam suam. Pag.
(d) Gen. 22. v. 17.
Tillot p. 136.
a thought in our heart but he sees it, nor a word in our tongue but he discerns the truth or falshood of it." Therefore to wear falsly is to call God to witness an untruth; which is a facile denyal of his Veracity & Omniscience, and the highest proanation of his sacred Name: for Perjury directly contrary to the third Commandmen[t], (e) Thou shalt not take the name of ye Lord thy God in vain: which our Savior in his Sermon on ye Mount referring to that Commandment renders, (f) Thou shalt not forswear thy Self. So that ye primary if not the sole intent on of that law was to forbid the great Sin of Perjury. To deter men from which, a severe threatning is there there added; for the Lord will not hold him guiltless that taketh his Namein vain; that is, he will most severely punish such a One. "And 'tis very observable, that there is no threatning added to any other Commandment but to this & the second; Intimating to us that, next to Idolatry & ye worship of a false god, Purjury is one of the greatest affronts that can be offered to the divine Majesty.” It is one of those Sins that cries so loud to Heaven, & quickens ye pace of God's Judgments. The Prophet Jeremiah when he enumerates the manifold



(e) Exod. 20. v. 7.
(f) Matt. 5. v. 33.
Tillot. p. 147.
corruptions of the Jewish State before ye Captivity, & which brought that dreadful judgment upon them, amongst the rest reckons ye Sin of Perjury; (g) Though they say, ye Lord liveth, surely they swear falsly. And then he concludes saying, (h) Shall not I visit for these things? saith the Lord: and shall not my Soul be avenged on such a Nation as this?
I could easily cite many more pace from ye holy Scriptures, wherein the greatness of this Sin is set forth, & most severe threatnings denounced against it: but that I think it is altogether needless, to agravate a Sin which is evident to all person by the light of Nature: and which ye civilized Heathens condemned as one of the worst of Crimes, as being utterly destructive of humane Society; for if you destroy ye Sacredness of an Oath it will be impossible to preserve Truth & Justice amongst men: "An Oath being ye utmost security that one man can give to
another of ye truth of what he says; the strongest tye of fidelity, the surest ground of judicial proceeding, and the most firm and sacred Bond that can be laid upon all that are concerned in the administration of publick Justice; upon Judge, & Jury, & Witnesses.”



(g) Jer. 5. v. 2.
(h) v. 9.
Tillot. p. 115.
In you Gentlemen of ye Grand Jury ye Law hath lodged a great Power, in putting in Execution those Law that concern all publick Offences, & in bringing Offenders to Punishment.
I hope I need us no further Arguments to persuade you to your Duty; But to tell you that you are bound to the same by your Oaths, which you have now taken; and how Sacred an Obligation that , I have now proved to You; and which l question not you are all sensible of.
By your Oaths you are required, diligently to Enquire & have Presentment to make of all such matter & things as shall be given you in Charge, or shall come to your knowledg.
Now because that part of you Oath doth in some Measure depend upon the Charge that hall now be given You; Therefore be pleased to observe;
That you are [to] enquire & present all kinds of Offenses committed against ye Law.
See ye General Charge to ye Grand Juries pag. 125.


A Charge delivered, at the General Sessions, & Gaol Delivery: Holden at Charles Town, for the Province of South Carolina.
Wednesday March ye 20th. 1705/06.


Gentlemen.
Wee are here assembled to hold this Court of Assize & General Gaol-delivery: And ye Duty of my Office requires me to give in Charge to you the things that you are to Enquire of & to Present.
In my (a) last Charge, by way of Preface of lntruduction to ye particular Articles, I then laid before you (b) ye Nature & Obligation of Oaths. Which I proved to You; 1st. As (c) an Oath was a Religious Act of Supreme Worship due to God only. 2dly. (d) That in an Oath God is invoced as a Witness to confirm ye Truth of what is so affirmed upon Oath.


p. 41.
p. 43.
p. 49.
p. 50.

And I cannot thinke of anything more proper to follow that Discourse of ye Obligation of Oaths, then to give you a short but plain & Exposition of ye Oath, that you have now taken.
For as I do not in the least doubt, but you are all of you Sensible of ye Obligation that an Oath layes upon You, & that you will faithfully discharge your Duty therein. So in order thereunto, it is necessary that you rightly understand the True Sense of the Oath you have taken, least by a mistake you should make a breach of your Oath,
when you doe not design it.
For ye prevention of which, before I come to explain the particular Branches of your Oath, I shall promise to you in general; that as to all publick Oaths enjoyned by Law, Such as yours is, the Sense of them must be taken according to ye Intent of ye Law maker who imposed them: And therefore in this matter you must govern your Consciences, by ye most plain Sense of the Words of your Oath, and by the Rules and Resolutions of the Law, and not by ye loose Reasonings & Resolutions of ill minded men, made on purpose to debach your Consciences, by teaching you to play fast & loose with Oaths.


These things being thus promised: I shall now proceed to consider your Oath in the several Branches thereof. And
1 st. As to ye works that you are to doe; You shall diligently Enquire, and true Presentment make; (e) Hereby you are obliged to Enquire, & that diligently, not to be slothful, or negligent, not to take things upon Trust, or hurry them over carelessly; but to proceed on a mature & strict Examination: (f) And this Enquiry is to be made amongst your selves, in what you know of your own Knowledge, or shall be
brought unto you by ye Testimony of Witnesses: and upon one or both of
these to make true Presentment.
But you must remember that as Grand Jury Men that you are only to make Enquiry & to Present for the Queen.
And therefore your Business is diligently to examine all such Witnesses as shall be produced to You on the Queen's behalfe: (g) For no other Witnesses must be heard by you, for you cannot hear Witnesses in the Prisoners Defense, to Confront & weaken ye Evidence brought against him.
And you are likewise to hear such Counsellers or Lawyers, as shall manage ye matter on ye Queens behalfe: But you are not [to) hear Counsel to



(e) Babington's Advice to Grand Jurors--Pref. p. 11
(e+ )Grand-jury-ma oath 5, office explain Id. p. 5.
(f) Babing. p. 12. English Liberties p. 142, 143. Sr. James Astry's Charge to Grand Juries p. 9.
(g) Grand-Jury-Mane Oath and Office. p. 9. Sr. James Astry Ib. p. 11. b p. 14. Babington. Pref. p 15. The Advice. p. 71. 79. 82 p. 110. 116. 130. 131. 179. 203.

plead for ye Prisoner against the Bill. Muchless are you to suffer Witnesses that are brought before you to be examined, (besides giving the Evidence,) to read Case of Conscience before you, to draw you into Error, & to make a false presentment: For your Business is to examine the Witnesses that come before you, and not hear them plead.
You are not to try ye Prisoner but to consider whether or no there is just cause of Accusation, or that probable proof of ye fact
laid in the Charge, as that the Per on ought to be put upon his Tryal for the same: For then there is an other Jury which properly are said to try ye prisoner, and are to pass between him & Queen upon his Life or Death.
But though the indictments found by You, or Presentments made, are virtually but legal accusations, in order to bring ye per ons upon their Tryals, they having an other Jury to pass upon them, before whom they may be heard to make their Defence: Yet you ought to be very careful how you put a person upon the hazard of a Tryal, & indanger his Life, or at least his Reputation.



Babington p. 63. 89. 121. 122. 125. 128. & see Whitlock his Essays Par. 2. p. 254, 255. p. 257, 258, 259.
2. The next thing to be considered is the subject matter of your Enquiry contained in these word; Of all such Things & Matters as shall be given You in Charge, or shall come to your knowledge, concerning this present Service. These words are general Things & Matters by which are meant & intended (h) ye general Head of all offenses by you enquirable, as Treasons, Murders, Felonies, Perjuries; Forgeries, misdemeanours &c. A general Scheme of which I shall give you in charge. And all & every such Offenses, which either you know of your own knowledge, or which shall appear to you by the Testimonies of others, You are to present.
3. Then it follows in your Oath; The Queen's counsel, your Fellows & your own, you shall well & truly keep secret. By the Queens Counsel, is to be understood the Evidence of witnesses that shall be produced to you on the Queens behalfe; this must not be Revealed or Discovered by you ye grand-jurors, but Faithfully kept secret according to your Oath, from ye party concerned, his Friends, & all others, except the Court demand any question from you upon your Evidence.
Now the Reason of this part of you Oath



(h) Babington p. 12. Grand-jury-man's Oath & Office p. 5. [Babington, Advice.] Sr. James Astry Ib. p. 10.
Babington Pref. p. 15. Advice p. 94.
is this, your presentment. (as I before said) but of the Nature of an Accusation or Charge. Now if after having heard & examined the Witnesses, you shall devulge ye Part cular where n ye force of ye Evidence lies; The patty accused might make his Escape (for sometimes ye party Indicted is not taken, or goes under Bail 1) or else there might be some Indirect means used to take of ye Evidence; when it comes to be Tryed by the Petty Jury.
But now you must remember that it is the Queen's Counsel that you are to keep secret: And therefore if any Person shall come before you, under pretense of giving you Information against some Offenders: And instead of that, shall upon that opportunity endeavour to corrupt, & disswade you from your Duty, And shall give you in Defamatory Libels against the Government, or Arguments & Discourses to disswade you from
doing your Duty, as hath been lately offered to a Grand-jury in this Province. In such case, you must know, that this is not the Queen's Counsel which you are obliged


to keep secret: but the Counsel of Factious persons Enemies to the Queen, & the Government, & Disturbers of ye Peace & quietness of this Province, & whose Counsels ought to be made known to the Court, in order to have such Persons brought to Such condign punishment as they deserve.
Your Oath also requires you to keep your fellow Jurors Counsel & your own; that is (j) you are not to discover what any of you have together Counselled, advised, or Debated n ye Business before you, Because ye Same might discourage part cular Members from freely giving their Opinion in discharge of their Consciences, & render them liable to Malice & Reflections. For if the person accused know in particular of any Person that was forward in finding the Bill of Indictment against him, he, or his Friend, or abettors might seek an opportunity to be revenged.
4. So much for the matter of your Oath what you are to doe: It follows in your Oath, with what Integrity you ought to do your Duty; in these words following; You shall present nothing for Maice or evil Will you bear to any Person; neither shall you leave any thing unpresented, for Love, Favour, Affection, Reward, or. any hopes thereof; but in all



(j) Grand-jury-man's Oath. p. 5, 6. Sr. John Astry Ib. p. 11.
things that shall concern this present Service, You hall present the Truth, the whole Truth, & nothing else but the Truth, according to the best of your Skill! Knowledge. These words are so plain that they need no explication, but rather an Exhortation to you conscientiously to performe your Duty without Malice or Favour as your Oath requires You.
Malice & Favour (two great Enemies to Justice) are to be excluded from all Courts of Justice, as to[o] partial. It is the express command of God; thou shalt not respect the person of ye poor, nor honour the person of the mighty: but in righteousness shalt thou Judge thy Neighbour. And in an other place; (1) You shall not respect persons in Judgment, but you shall hear the small as well as ye great; You shall not be afraid of the face of man for the Judgment is God's. And again in an other place; (m) Thou shalt not wrest judgment, thou shalt not respect persons, neither take a gift: for a gift doth blind ye Eyes of ye wise, & pervert ye word of ye righteous.
It would be endless for me to recite to you all the Text of Scripture against partiality in Judgment, & needless, for as I question


(k) Lev. 19. v. 15.
(l) Deut. 1. v. 17.
(m) ch. 16. v. 19.
not but you are all of you sensible of ye great Trust ye Law hath reposed in You. So I hope you will conscientiously discharge your Duty therein, for upon the faithful discharge of your Duty depends the due Administration of Justice. For if the Judges are never so willing to doe Justice, without you they cannot doe it, for without your Inquisition & Presentment no Malefactor can be brought to his answer.
The Law hath put into your hands ye very Key of Justice, in all Criminal Causes; for by your Billa vora, or your Ignoramus, you do open & shut all Proceedings in all Pleas of ye Crown. Since therefore the Law hath reposed so great a Trust in You, and you have taken a Solemn Oath for the performance thereof, I doubt not that you will discharge the same as becomes good Christ ans & good Subjects.
And for your better guidance therein, I shall now lay before you a general Scheme of ye Laws touching matters Criminal, commonly called the Pleas of ye Crown, & shall something inlarge upon those particulars, that I have any Reason to thinke may come before you.
Be pleased therefore to observe that You being the Grand-Inquest of this Province, it is your Duty to present all kind[s] of Offenses committed therein against the Law


The Kinds of Offenses are distinguis[h]ed according to the diversity of Laws by which they are Introduced, viz.
Offenses by the Common Law.
Offenses by the Statute.
Offenses by the common Law are distinguished according to the Degrees of the Offense.
Capital.
Not Capital.
Of Capital Offenses they are such,
1st. As are immediately against God, as Witchcraft.
Now becuase this is a matter that will come before [you]: and being a thing of great difficulty. I must therfore pray your Patience & diligent Attention, till I speak something largely to it.
We live in an Age of Atheism & Infidelity, and some Persons that are no great Friends to Religion, have made it their Business to decry all Stories of Apparitions and of Witches.
Now thoug(h) I will not assert that every one that denies that there is witches must


necessarily deny the Existence of Spirit, for they may believe the one though they do not the other: much less that they deny the being of God, which ye Sadduces did not do, though they denyed ye Existence of Angels & Spirits & ye Re urrection: for if they had denyed the being of God our savior would never have proved ye Resurrect on to them from a Testimony taken from ye Books of (n) Mose; which supposed the being of God & the Revealing of his Will to Moses.
But this I think I may very well as ert, that they yt have given us good proof of Apparitions & Witche, have done Service to ye common Cause of Religion: for if there be such Creatures as Witches, then
there is certainly Spirits by whose aid & Assistance they Act, and by
consequence then there is an other invisible world of Spirits.
Now though I am not at all inclined to believe every common & idle Story of Apparitions & Witches: neither would I have you be over credulous in things of yt Nature, expecially when they come before you in a judicial manner; Yet that there is such creatures as witches I make no doubt, neither do I think that they can be denyed, without denying the truth of the holy Scriptures, or


(n) Luke 20. v. 37, 38. compared with Exod. 3. v. 6.
most grosly perverting the Sense of them.
Now that the Scriptures do affirm that there are Witches & Magicians, is evident, from so many Places that might be produced out of them, that time will not permit me now to recite them to You.
I shall therefore only produce two or three Testimonies from them, & vindicate the truty of the Translation, & the Sense of them, from those false Glosses, that ye denyer of Witchcraft have endeavoured to put upon them.
The first place that I shall insiste upon is that of Deut. c. 18. from v. 9. to v. 12. (o) When thou art come into ye Land which the Lord thy God giveth thee, thou shalt not learn to do after ye abominations of those Nations. (p) There shall not be found among you any one that maketh his Son or his Daughter to pass through the fire, or that useth divination, or an observer of times, or an enchanter, or a Witch. (q) Or a charmer, or a consulter with familiar Spirits, or a wizard, or a necromancer, (r) For all that do these things are an abomination to the Lord: and because of these abominations, the Lord thy God doth drive them out from before thee.


(o) Deut. 18. v. 19.
(p) v. 10.
(q) v. 11.
(r) v. 12.
Again in Lev. 19. v. 31. God commandeth his people, saying; (s) Regard not them that have familiar Spirits, neither seek after wizards to be defiled by them: I am the Lord your God. And chap. 20. v. 6. (t) And the Soul that turneth after such as hath familiar Spirits, & after wizards, to goe a whoring after them, l will even set my face (saith God) against that Soul, and I will cut him off from among his People.
And v. 27. it is sayed; (u) A man also or woman that hath a familiar Spirit, or that is a wizard, shall surely be put to death[;] they shall stone them with stones: their bloud shall be upon them.
Now to avoid the force of these, & several other Texts of Scripture, usually brought to prove that there are Witches: Mr. Webster in his Displaying of Supposed Witchcraft hath several Chapters. And in chap. ye 6th. of his Book, he endeavours to show how the several termes

for Divination, & Witchcraft, used in the above cited places in Deuteronomy, have been mistranslated.
The chapter is very long & time will not permit me to examine every part of it: But I shall only insiste upon that expression, One that hath a familiar Spirit, which


(s) Lev. 19. v. 31.
(t) c. 20. v. 6.
(u) v. 29.
any one will allow to be a full & proper Epithet for a Witch, in the vulgar sense, & common acceptation of the Word. And which is the Term used for the (w) Witch of Endor.
The word used in the original Hebrew in all the above recited places, which we translate, One that hath a familiar Spirit, is Both (x) Scot, & (y) Webster find fault with our translation of ye word [Hebrew script] though neither of them tell us plainly how they would have the word in the above recited texts translated.
Mr. Webster sayeth; "what the word [Hebrew script] meaneth is more obscured & erroneously translated then any of the rest. And th she sayeth our English translators have ignorantly or wilfully but however erroneously rendered in all places where it is used, to be, One that hath a familiar Spirit."
Scot sayeth that the word Ob signifies most properly a Bottle, And Webster sayeth that the word hath two Significations the one is Uter i.e. a Bottle: vel Lagena i.e. a Flagon, or stone bottle to keep wine in: And the other Python.
Now how this confutes our Translation of these Texts I cannot see. Is it so strange a


(w) 1 Sam. 28. v. 7.
(x) Scot's Discovery of Witchcraft. lib. 7. c. 1. p. 71.
(y) Webster c. 6 .. 7. p. 120.
thing for a word to have two Significations? It is common in all Languages, but more especially in the Hebrew.
The word [Hebrew script] by the learned (z) Buxtorf is rendered Pytho; & then he explains what he meaneth by the word Pytho, that it is one, qui responsa dando diabolicis artibus homine a Deo avocat: i.e. One who by giving Answers by diabolical Art calleth away men from the Service of God.
The word signifieth a Bottle but none place throughout the Bible, & that is in ye Book of Job, in which book many Words are used in a different sense from what they are used in other parts of ye Bible, which makes the Text of that book so very difficult to be understood.
The Place in Job is Cap. 32. v. 19. where Elihu saith; (*) Behold my Belly is as wine which hath no vent, it is ready to burst like new Bottles.
The original word is [Hebrew script].
And to ye same Sense that the Word is rendered by Buxtorf, it is rendered by all


(z) [Hebrew script] Pytho, qui response dando diabolicis artibus homine a Deo avocet. Lev. 20. 27. Plural. [Hebrew script] Pythonea, Lev. 19. 31. Item Utres; unde [Hebrew script] sicut utres, Job. 32 19. Hinc. Pythonis significatio juxta Aben Karam, quod ex tumido ventre, quasi Utre oracula, daponeret. Inde [Greek script] dictus fuit. Buxtorf. Lox. p. 10.
(*) Job. 32. v. 19.




other Authors that explain ye hebrew of ye Bible that I have seen. And particularly by (a) Reuchlinus in his Lexicon. by (b) Alphonsus Tamora a learned Jew, and afterwards a converted Christian, who was assistant to Cardinal Ximenius in publishing ye Complutensian Bible: and whose (c) Lexicon & Grannnar make the last Tome of that Edition.


(a) [Hebrew script] Python, daemon, are pythonissandi: ut Levitici 20. Vir sive mulier ni quibus pythonicus vel divinationis fuerit Spiculus. Reuchlini Lex. p. 73.
(b)Alphonsus Zamora, & alione Hispanus, ortu tamen Judaeus, Judaeis parentibus in urbo Zamora natus eat Hebraius literis ac mysteriis eruditissimus, publicus inter Judaeos, antiquam fidem Christianum susci-peret, Schola: moderatus. Domum baptism initiatus, claruit anno 1506. Ob insignem rerum Hebraicarum periliam amplissimo stipendio Cardinali Ximenio invitatus nobilissimus illi Bibliorumi Complutensi editioni adornandae quindecennem fora operam locavit Cave Hist Liter Ap. p. 201.
(c) [Hebrew script] Ob. Phyton. daemon, vel are phytonica ut Lev. 20 Vir sive mulier ni quibus phytonicus vel divinationis fucrit Spiritus. & Esa. 29. Et erit quasi phytonis de terra vex tua. & ni plur Oboth. 1. phytones Deut. 18. Nec. phytones consulatis. & Esa. 8 Et cum dixerit ad vos q-rile phytonibe. Significat etiam in numero plur. Utres sive lagunculas Job. 32. En venter meus quas mustum aliq; Spiraculo, quod lagunculas novas disrumpit. Alphon. Lex. f 2.

By Pagnine (d) & Mercer, by (e) Kircher, by (f) Shindlerus, by (g)


(d) [Hebrew script] Pytho, Daemon. Lev. 20. 27. Juxta doctores Hebr. ZiK '77M pythonem habens is dicitur qui ex juncturis aut axillis daemonem facit ascendere seu evocat. Sunt qui Spiritum in Sepulcris mortuorum; vel locis Subterraneis exponent, qui rogatus stridula voce respondeat, quod nomen evocati manes tribuitur. Ex Isah. 29. 4. apparet hos velut a terra response edidisse. Vide & pando infra. & plurals aecundum faemam faemineam, rrmx, ut extat. Levit. 19. 31. Significat & Utres. Isah. 32. 19. Sicut utres novi rumpetur. Him aunt qui pythones aut pythonicos dictos pulsnt, quad eo apiritu afflati ex ventre ut ex utre, aut lagena oracula depromant: unde. & Graecis iyyacripipv._,ous quasi ventriloquos dictos putant Vide in Decretis 26 q. 3. Pythonissae fit mentio Actor. 16. Pag. & Mercer. Lex. p. 40.
(e) [Hebrew script] Pytho, daemon 2) Spiritus, qui in Sepulcris mortuorum, & locis subterraneis sciscitatus, voce stridula response edit. Significat etiam ejuamodi sciscitaterem qui talem actem exercet, umbras & manes evocat, sive via sit, sive mulier. Kircher. Concord. tea Lex. p. 86.
(f) [Hebrew script] Duo significata habet. I. [Hebrew script] Ob, Species divinationis, sive magiae, python, magus, habens apiritum responsa dantem. Lev. 20. v. ult. Via aut mulier si fuerit in illia [Hebrew script]. Targ. [Hebrew script] python. utres, lagenae, quibus vinum continetur, deportatus, aut asseratur, semel reperitus in Scripture. Job. 32. v. 19. Inde videtur dici pytho quod obsessi veluti utres inflati turgescent, & spiritus immundus ex illorum ventre, de praeteritia, praesentibus, & futuris interrogatus respondeat unde etiam [Greek script] ventriloqui, dicuntur. Schind. Lex. pentagl. p. 33, 34.
(g) Zitt m. Pytho: Ib romm semel significa- utres. Job 32 19. ex Buxt. Robert. Lex. R. 30. p. . [William Robertson, Lexicon novum Hebraeo-Latinum. . . (n.p., 1687). (?); Buxtorf, Lexicon Hebraicum, 1771.671
(h) [Hebrew script] Pytho. Spirt familiari , ventriloquas semel Uter. Hinc. Pythonis significatio es quod ex tumido ventre, quas utre oraculo deponeret. Bythner Clay. Ling. Sanct. p 109.
(i) [Hebrew script] m. Pytho. Lev. 20. 27 Pl. c 19. 31. It. Utres. Job 32. 19. Hinc Pythonis significatio. quod ex ventre qs. Utre oracula depromaret: unde [Greek script], dicuntur Castel. Lex p 5
(k) [Hebrew script] No. Rad. Pytho. Leusden. Lex. p. 9.

And agreeable to this Interpretation of Buxtorf, & ye other Lexicographers are the several ancient oriental Versions of ye Bible.
The Chaldee Paraphrase or the Targum or (1) Onkelos, as also that of (m) Jonathan render the word [Hebrew script] signifieth, Pythones.
And so it [is] rendered by other of the oriental Versions.
By the Vulgar Latin it rendered (o) Pytho, (p) pythonicus spiritus, (q) Magus. By (r) Pagnin & Arias Montanus, & also by Junius
& Imemellius, it i rendered Pytho.
By the (s) LXX it s rendered [Greek script], & by the old ltalick Version, which, answer exactly to ye Septuagint, it is rendered Ventriloquus one that speaketh out of the Belly.
(t) And R. Aben Esra sayeth that they were called Pythoniste, because from their Belly, being swelled like a Bottle, they gave forth their Oracle or Answer.
Mr (u) Webster acknowledgeth yt, "The most or



(l) Vid. Targ. Onkel. in Deut. 18 v. 11. Lev. 19. v. 31 & cap. 20. v. 6, 27.
(m)& Targ. Jonathan in Lev. 19. v. 31 & c. 20. v. 6, 27.
(n) [Hebrew script] Pythones: Targum pro Hebraeo [Hebrew script] Buxtorf. Lex. Rel. p. 295. & Castel. Lex. Heptag. p. 337.
(o) Vid. vers. Vulg. Lat. in Deut. 18. v. 1.
(p) Lev. 20. v. 27.
(o) Vid. vers. Vulg. Lat. in Deut. 18. v. 11.
(p) Lev. 20. v. 27.
(q) Lev. 19. v. 31. etc. 20. v. 6.
(r) Vid vers. Pagnin. & Ar ae Montan. & etiam Juni Tremel in Deut. 18. v. 11. Lev. 19. v. 31. etc. 20. v. 6, 27.
(s) Vid. LXX. & Vere. Lat. in Deut. 18. v. 11. &c
(t) R. Aben Esrapud Buxtorf. ex. p. 10.
(u) Webster. p. 120.


all the translations in the Polyglott do render it Pythonem, vel Spiritum Pythoris in this place of Deuteronomy, & other Places: But what is to be understood by Python, or the Spirit of Python (he saith) is as difficult to find out, as the meaning of the Hebrew word Ob, because it must be digged forth of ye rubbish of Grecian lies." But ye ending his Reader to the Greek to know in what sense the Chaldeans & other [of] the oriental at on understood ye word Pytho the sending him as far out of the way as he could: For though the Ancient Greeks received several things by Tradition from the Eastern nations, Yet they endeavoured to cover them by Fables, that as near as they could no one should find their Origine. And as for those later Greek Authors as Plutarch, Thucydides; and Lucian which he cites, we have no ground to believe they understood any thing of the oriental Languages. Therefore if he had not designed more to puzzle his Reader then to instruct him, he should rather have sent him to the Jewish Talmud, & the Writings of the Rabbins for the Sense of the Word.


Now ye word (w) [Hebrew script], wch answers to ye Hebrew word [Hebrew script]; in ye Talmud, & ye Writings of ye Rabbins signifieth a Diviner, who by the help of an evil Spirit, giveth forth prophesie .£!:. foreteleth things to come.
Thus in the Jewish Talmud in the Tract Sanhedrin (x) cap. 7. Speaking of Capital Punishment & ye Offenses in : 7. It is sayed that [Hebrew script] which otherwise is called [Hebrew script], is one who speaketh out of his Armpits. And that ye Wizard or Diviner is one yt speaketh in his Mouth. All which are to be stoned to death.
Now though the armpit is only mentioned in ye Text of ye Talmud, Yet that one place is only put for an Example: for Coch (y) in his Notes upon the place sayeth, that they procured a voice to be given from a dead person from various parts, as from the head, the Armpits, the joynts, & the groin or belly.



(w) [Hebrew script] Pithom, [Hebrew script], Python, Divinator, qui adminiculo mali Spiritus, vaticinia edit. Hebraia dicitur [Hebrew script] , & Rabbinis [Hebrew script] de quibus Levit. 19. 31. & 20. 27. & alibi. Buxtorf. -ex. Chald. Tel. & Rab. p. 1874.
(x) [Hebrew script] Baal obh est qui aliits dicitur Pythom. Buxt. Ib. p. 1875. [Hebrew script] Qui spiritum habet, is est Pythomantis, qui loquitur ex axillis Buis. Bariolua is est, qui loquitur ore suo. Hi omnes lapidantur. Sanhed. c. 7. ¶. 7. Coch. 2 Tit. Tel. p 55.
(y) Ex variis partibue vocem sibi eddendam a mortuo procurabant, ut capite, axillis, articulis, [Greek script]. Coch Ib. p 64

The Gloss (z) upon ye Talmud sayeth That Python is the name of a Magician speaking from his Armpits. And then he telleth how it is done viz. That he bringeth or calleth a dead corps out of the Earth, & placeth it under his Armpits or Arms, & by magical Art maketh the dead body to speak.
Rab. Bartinora in his comment upon that part of ye Talmud addeth; (a) That some of those Pythonists used to take to take ye Skull of a dead man, & having taken off the Flesh, they then used to offer a sort of Incense to it. And afterwards the Magician used to aske that Skull by Magical Art.
And Moses Maimonides one of the most learned of the Jewish Rabbins, of whom the Jews have a saying, (b) that from Moses ye Law-giver, to Moses Maimonides, there was never an other Moses like this Moses.
This learned Rabbin in his book of


(z) Python nomen est magi loquentis ex axillis uis Educit sive evocat mortuum ex terra, & collocat eum sub axillis suis & brachiis suis, & facit loqui mortuum istum arte magici. Glossa in Sanhed. apud Buxt. p. 1875.
Idolatry (c) giveth a further Account of these things as followeth; Python (saith he) was~ that stood & offered a certain and known Incense, & held a rod made of myrtle in his Hand, & moved it up & down.
And at ye same time did murmur with a low voice some words known amongst
them selves, until he that interrogated or inquired could hear, as it
were somebody talking with him, & answering him to what he sought in words, but with a voice very low & as it were coming out of the Earth, that it could hardly be perceived by the ears, but he might begin



(a) Quosdam ex pythonibus accipere cranium h s mo u absumpti ejus carne, eique suffitum facere. Postea queerit ex eo futura, & cranium illud respondet, nempe per Spiritum in cranium illud arte magici adductum. Barten. Com. in Corum. apud Buxt. Ib.
(b) Young Students Library p. 244. & Jac Basnage Hist of ye Jew. B. 7.
c. 8 .¶. 11, 12. p. 628, 629.
(c) [Greek script]
i.e. Python fuit, qui stabat & adolebat uff1tum certum & notum,
tenebatque virgam ex myrto in manu sua, & agitabat eam. Ipse vero mu -
murabat submiss~ verba quaedam nota apud ipsos, done audiret ea nte -
rogans, quasi aliquis loqueretur cum ipso, & responderet ei ad id, quod
quaerebat ipse verbis, qua 1 ex terra voce depre sa admodum, ut fere
auribus percipi non pos et, sed cogitatione sent sceret & p rciperet
eam. Similiter qui accipiebat cranium mortu1, ac u ficum fa ebat ei,
muss cabat eo donec audiretur, voce quasi ex axillis prodeunte ubmi e admodum, & respondebat ei. Omnia haec fuerunt opera pythonis, & qui unum faciebat ex illis, lapidabatur. Majmon. de Idolatria. c. 6. Apud Buxtorf lb.


to know & perceive it by cogitation. Likewise (saith he) the Magician used to take ye Skull of a dead man, & offered Incense to it, & then used to mutter in it till he could be heard, & it did answer him with a very low voice, like to such a voice as used to come out of the Armpits.
All these things (saith he) are the Works of one that the Spirit of Pytho, and he that doth any one of them, ought to be stoned to Death.
These kinds of Divination mentioned by this a learned Rabbin more certainly of ancient Use amongst the Jews: and I think ye prophet Esaiah plainly alludes to chem in the 29th Chapter of his Prophesie, where denounceing God's Judgments against Jerusalem, v, 4. He saith; (d) And thou shalt be brought down, & shalt speak out of ye ground, & thy Speech shall be low out of the dust, and thy voice shalt be as of (*) one that hath a familiar spirit, out of the ground, & thy speech shall whisper out of ye dust.
Thus from these Authorities of the Jewish Writers, (if you will allow them to understand ye sense of ye hebrew words, which is their own language, & which every one that knoweth



(d) Isaiah 29. v. 4.
(*) [Hebrew script]


anything of that learning will allow) it is very plain that they understood the word [Hebrew script]; and the word [Hebrew script] that answered to it, to signify, not one that used only to play cheating juggling trick by slight & art, a Scot & Webster would perswade you, But one that used to perform diabolical Tricks, by real magical Art, & by the help of an evil Spirit: and therefore is very properly rendered by our translators; One that hath a familiar Spirit. Which as I before observed to You a proper form for a Witch, according to ye vulgar Sense and common
acceptation of the Word.
This much I thought fitting to speak to You, to vindicate ye truth of ye Scriptures, & ye English Translation of the above recited places, least you should be deceived by men of Mr Webster's principles, & should not only deny that there is Witches, but by consequence de ye many Miracles of our Savior recorded in the Gospel, of the many Demoniacks which he cured, by really casting ye Devil out of them with whom they were possessed: As also the Miracle of St Paul recorded in ye (e) Acts of the Apostle, who in the name of Christ cast out the Spirit of Pytho or divination out of ye maid.



Now though I thinke I have fully proved to you that there are such Creature Witches, Yet I hope you will not infer from thence, that may be accused before you is such, for this would be a very odd way of argueing, that because a crime may be, or hath been committed, that therefore such a person in particular hath committed it: Which is such an Absurdity that I am sure of it you will not be guilty of it.
And therefore for your better guidance herein, I shall now lay before you.
1st. What the Law of England hath determined concerning Witchcraft; &
2dly. What may be a sufficient proof for you to convict A Witch. and 1st. As to the Law of England.
By the ancient common Law &c.
as in the General Charge to the Grand Juries pago 126. to p. 130.



(e) [Hebrew script] Act. 16. v. 16, 17 18.
Thus having laid before you what the Law hath determined concerning Witchcraft; I shall now according to my promise, proceed in the second place to show you, what may be a Sufficient proof for You to convict A Witch.
Now through Witchcraft be a most execrable Crime, And Witches when detected & convicted ought to be exterminated & cut off: Yet this should not make you more forward to find an Indictment against a person accused of Witchcraft, but rather the more careful of exposing ye Life, & Reputation of any one to ye Imputation of so heinous a crime, without good & sufficient Proof.
You should therefore remember, that the same God who hath said, (f) Thou shalt not suffer a Witch to live: hath also said, (g) At the Mouth of two Witnesses, or three Witnesses, shall he that is worthy of death, be put to death; be put to Death. But at the Mouth of one Witness, he shall not be put to Death.
Some Persons in their Zeal have supposed


(f) Exod. 22. v. 18.
(g) Deut 17. v. 6.
that a less clear evidence ought to pass in this than in other Cases, supposing that else it will hardly be possible to bring such to condignPunishment, by reason of those secret Transactions that are between the Devil & Witches; but this is a very dangerous & unjustifiable tenet.
Therefore let me premise to you in general that the Evidence in this Crime ought to be as clear as any other Crime of a capital Nature. The Scriptures doe no where intimate, that a less clear Evidence, or that fewer or other Witnesses may be taken to convict a person of Sorcery or Witchcraft, that would not convict the same person, if charged with any other Capital Crime.
Mr (h) Bernard in his Guide to Grand-jury Men layeth down several Rules for ye discovery of Witches. The chief of those Rules are by (1) Dalton inserted into his Office of a Justice of ye Peace: and from him into (k) Keble's book of Assistance to Justices of the Peace.
But notwithstanding their being so inserted, yet many of them Rules (1) are fallacious, & depend upon Spectre Evidence, which by no means is to be relyed on.
And indeed I know of no other way that our Law allows of, to convict any person in ye Case



(h) Bernard (Richard Bernard, Guide to Grand-Jury Men.
(i) Dalton. c. 160. p. 383. to p. 386.
(k) Kebles Just. p. 218, 219.
(l) see several of these Rules confuted in Mr Hale his Enquiry into ye Nature of Witchcra from pag. 50 to p. 65. & p 70 & 85.




of Witchcraft, but the same that is used in any other Crime; which either ye Confession of the Person accused, or good & credible Witnesses proving the fact.
Therefore ye only Rule , which I can think of, that you may depend upon, are these following.
1st. That (m) a free & voluntary confession of ye Crime made by the Person suspected & accused after examination, is sufficient ground of Conviction.
Indeed, if Persons are Distracted, or under ye power of Melancholly; that alters the Case; but the Jurors that examine them, & their Neighbours that know them, may easily determine ye Case, And if they will wilfully accuse themselves wrongfully as some have done, if it doth not appear so to ye Court, their Blood will be upon their own Heads. For when the Amalakite confessed that he killed Saul, although it is probable that he belyed himself, Yet David ordered him to be put to Death, & said to him, (n) Thy Bloud be upon thy Head: for thy Mouth
hath testified against thee. And the Scripture approveth the judging the (o) wicked Servant out of his own Mouth.
2. Next to a clear & full Confession is to be considered (p) an implicite Confession: as when any Man shall


(m) Dalton p. 389. Kebie p 219. Perkins of Witchcraft c. 7. T. 2. p. 644. Mather's Cases of Conscience concerning Witchcraft. p. 34.
(n) 2 Sam. 1. v. 16.
(o) Luk. 19. v. 22.
(p) Ber. Dalton. p. 384.
accuse them for hurting them or their Cattel, if they shall Answer, You should have let me alone then; or, I have not hurt you as yet: These & the like Speeches are in manner of A Confession of their power of hurting.
But yet you must be very cautious how you proceed upon this Second Rule, and not take hold of every doubtful & unwary expression, to imply a confession of ye Guilt.
3. (q) If two credible Persons shall affirm upon Oath that they have seen & heard ye party accused speaking such words, or doing things which none but such as have familiarity with Devil ever did or can do, that is sufficient Ground for Conviction.
As when they have been heard calling upon their Familiar Spirits. And to reveal Secrets wch could not be discovered but by the Devil.
It may be objected that Witches are not so unwise as to do such things in ye sight and hearing of others. But it is certain they have been known to doe so.
The Scriptures assure us, that (r) Saul cut off those that had familiar Spirits, & ye Wizards, out of ye land. And afterwards (s) Josiah ye best of Kings did the same. But both Saul & Josiah had some way to convict them, & prove them to be Witches: for until they be proved to be such, they may & must be suffered to live.


(q) Perkins Ib. Mather Ib. p. 38.
(r) 1 Sam. 28. v. 9.
(s) 2 Kings 23, v. 24. & v. 25.

The Woman at Endor knew very well what would be sufficient Proof against her in that Case, and intimates as much to Saul; for when he said to her, (t) Divine unto me ye familiar Spirit, and bring me him up whom I shall name unto thee: The woman answers, (u) Wherfore then layest thou a snare for my Life, to cause me to die? As if she should say, If it proved by Sufficient Witnesses, that I Divine by a familiar
Spirit, & raise A Ghost from the Dead, I must die by the Law. And after she had raised ye supposed Samuel, she said unto Saul, (w) I have obeyed thy voice, and I have my Life in my hands. As if she had aid, I have done that in obedience to thee; that were if proved against me,
would take away my Life. Here then we see that if it can be proved against any, yt they have divined by a familiar Spirit; or done any other Act of communion with the Devil, as raising the Dead by him, that is the Devil in likeness of the Dead; then such person is proved to be
A Witch, & ought to die.
But this proof, as I before observed to you, ought to be by credible Witnesses, for as for the testimony of Confessing Witches against others, though their Evidence ought not wholy



(t) 1 Sam. 28. v. 8.
(u) v. 9.
(w) v. 21,
to be rejected, Yet I think it is not safe to depend upon that alone, for they are not such credible Witnesses, as in Case of Life & Death are to be desired.
Muchless ought you to receive Spectre Evidence, the Spectres being Devils in the Shape of Persons either living or dead.
Therefore to convict any person upon Spectre Evidence, s to give credit to ye Evidence of the Devil, who is the (x) father of lies.
If it be objected, that according to these Principles it will be extream[ly] difficult, if not impossible to prove any Person to be A Witch, seeing the Workings between Witches & the Devil are so secret.
To that I answer, the Workings of Murderers, Thieves, & other Malefactors are also done in the dark & in Secret: Who (to use ye words of the Prophet) (y) seek deep to hide their Counsel from the Lord, & their words are in the dark, and they say, who seeth us? and who knoweth us? Yet neither they nor their Actions can be hid from the piercing & all-seeing eye of God, (z) Can any hide himself in secret places that I shall not see him? saith the Lord: do not I fill heaven & earth? saith the Lord: by the Prophet Jeremiah. God can bring those & all other hidden Works of Darkness to light, And ye


(x) Joh. 8. v. 44.
(y) Isa. 29, v. 15.
(z) Jer. 23. v. 4.

Actions of them to shame & punishment even in this World: And as we see dayly, by the constant Course of his Providence, he doth. I shall conclude this Matter by telling You that you ought to be very careful how you proceed in such difficult things, And that you ought rather to acquit ten Guilty persons then to condemn one Innocent.
I shall now proceed to the second general Distinction of Capital Offenses, which contain such Offenses as are immediately against Man.

And those are either
Treason
or
Felonies

Treason either
High Treason
or
Petit Treason

High Treason is an Offense &c.
As in the General Charge to the Grand Juries pag: 130.


A Charge delivered, at the General Sessions & Gaol Delivery: Holden at Charles Town, for the Province of South Carolina. Wednesday March ye 19th 1706/07


Gentlemen:
You being the Grand Inquest of this Province, it is your Duty to present all Persons that offend against the Laws, that so they may be brought to punishment for the same. And as a motive to persuade you to ye faithful discharg of your Duty therein, I shall now offer to your Consideration the Excellency and Reasonableness of ye Laws of England, which are (a) the Rules by which Justice is perfectly taught, And the Offense against which Laws it is your Duty to present.



(a) Lases humanae non aliud aunt quam regulae, quibus pertecte & Justitia edocetur. Fortescue de Laud. Leg. Angl. c. 4. f. 11(b),


The Precepts of the Laws of England agreeable to them of ye (b) Civil law are these, (c) To live honestly, to do no Injury to any one, and to render every one their due.
Which precepts are so (d) clear and self evident that they need no proof, the Mind readily giving assent to them as soon as propounded.
And they are breefly comprehended in that Golden Rule of our Saviour, (e) to do as we would be done by.
The Law of England being the Perfection of Reason, it would be Superfluous to spend much time in the commendation of it. which carryes with it a sufficient commendation of it self. For as (f) Reason is the Life of the Law, so


(b) Juris praecepta aunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Inst. 1. 1. t. 1. 3. D. 1. t. 1. 10. S. 1.
(c) Juris praecepta aunt tria haec, honeste vivere, alterum non laedere, jus unicuiq; tribuere. Bract. 1. 1. c. 4. N. 6. f. 3(b). Vide etiam Cowel. Inst. Jur. Ang. 1. t. 1. S. 2. p. 21. William's Pref. to his Reading upon ye Stat. 35. H. 8. c. 6. p. 8.
(d) Juris praecepta] . . . Dictate juris naturae [Greek script] insitae & quasi consignatae in animis nostris notiones. Vinnii Notae in Inst. p. 13.
(e) Matt. 7. v. 12. Luk. 6. v. 31.
(f) Ratio sit anima vigorque ipsius Legs. Coke. 4. Int. c. 74. p. 330.
"the Common Law it selfe, (saith the Lord (g) Coke) is nothing else but Reason, which i to be understood of an artifical perfection of Reason, gotten by long Study, observation, & experience, & not of every mans natural Reason; for Nemo nascitur artifex. This legal Reason est summa ratio."
Now the (h) Law of England is not ye product of the Wisdom of some one Man, or Society of Men in any one Age; but of the Wisdom, Counsel, Experience & Observation of many Ages of wise & observing men: For, (as the same Lord (i) Coke tells us) "If all the reason that is dispersed into so many several heads were united into one, yet could he not make such a Law as the Law of England is, because by many Successions of Ages it hath been fined & refined by an infinite number of great & learned men." For (k) A Body of Laws, that concern the Common Justice applicable to a great Kingdom is vast & comprehensive, consisting of almost infinite particulars, and must meet with various Emergencies, and therefore requires much time & much experience,


(g) Coke. Litt. 1. 2 .. 138. f. 97(b).
(h) see ye Pref. to Rolle's Abridgment.
(i) Ib. f. 97(b).
(k) Pref. to Rolle.
as well as much Wisdom and Prudence successively to discover defects & inconveniencies, & to apply apt Remedies for them; and Such are ye Laws of England, they being more particular than other Laws, which makes them more applicable to the Business that comes to be judged by then. General Laws are indeed very comprehensive, soon learned, and easily digested into method; but when they come to particular application, they are of little Service, and leave a great latitude to Partiality, Interest, & variety of Apprehensions to misapply them: Therefore it hath always been the wisdom & happiness of the English Government, not to rest in Generals, but to be prevent Arbitrariness & uncertainty by particular Laws, fitted almost to all particular Occasions.
As the Laws of England are the productions of much Wisdom, Time & Experience; So they have had the Suffrage of ye whole Kingdom in all Ages for many hundred of Years past; for according to them the publick Justice of the Kingdom hath been administred in all times with great Success & Contentment:


so that (k) old Rule may be justly verified of them, eminem oportet ease sap ent orem legibus: o man (out of his own private reason) ought to be wiser then the Law, which is the perfection of Reason.
The (1) Law of England is that which is called Common Law of England, explained, and declared by judicial records, and supplyed where the plainness cannot reach the injustice & deceits of Men practised in the later, more crafty & wicked age, by that Law which is called Statute Law. For the Laws of England, like ye Laws of the (m) Greeks and Romans are divided into (n) Laws unwritten commonly termed Customs, & Laws written called Statutes.


(k) Coke ubi Supra.
(l) Whyte for ye Sacred Law of ye Whyte,
(m) Constat autem Jus nostrum, quo utimur, aut scripto, aut sine scripto: ut apud Graecos [Greek script] id est, Legum aliae sunt scriptae, aliae non scriptae. Inst. 1. 1. T. 2. ¶. 3. & D. 1. l. t. II. 6. • 1. Di tributio Juris civilis a forma & modo constituendi alterum enim express sancitur & scripto promulgatur, alterum tac toconsensu utentium introducitur. Vinnii otae p. 18. & see ew Int. of ye Law Jstr. p. 9. vi.
(n) Consuetudo quandoqu; pro lege servatur, in partibus ub
fuerit more utentium approbata, et vicem Legis obtinet. Bract. 1. 1.
c. 3. Dr. & St. c. 7. Coke 1. Inst. f. ll(b) 115(b) 344. Ju Angliae duas habet partes: consuetudines inmirum veleres, tam communi populi sponsione, quam Regi Sacramento comprobatis, & tatuta, quae ad dictarum consuetudinum vel supplementum vel etiam emend tionem communi regni consilio Sanciuntur. Cowel. Inst. Jur. Angl. 1. 1. T. 2. ¶. 3. p. 24, 25. The Common Usage Custom & Practice of the Kingdom is one of the main Constituents of our Law. 2. The Authority of Parliament: 3. The Judicial Decisions of Court of Justice. Hal 's History & Analysis of ye Law. Ch. 4. M.S.

(o) A Custom, that hath acquired the force of A Law, is always said to be Jus non Scriptum; for it cannot be made or created, either by Charter, or by Parliament, which are Acts reduced to writing, and are always matter of Record; but being only matter of fact, and consisting in Use & Practise, it can be recorded, & registered no where, but in the Memory of the People.
For a Custom taketh begining, & groweth to perfection in this manner: When A Reasonable Act once done, is found to be good, & beneficial to the People, and agreeable to their Nature & Disposition; then do they use it, & practise it again & again, and so by often Iteration and Multiplication of ye Act, it becometh A Custom, and being continued without interruption time out of Mind, it obtaineth the force of A Law. And so ye Rule 44 Ed 3. 19. holds true That no Law obliges the People but that which is made by the Consent of the People: agreeable to that Rule of ye Civil Law mentioned in the 5th book of ye (p) Code, Quod omnes similiter tangit, ab omnibus comprobetur.


(o) Bridall's View of ye Laws of England. p. 49.
(p) Cod. 1. s. t. 59. ¶. 5.

Of this Common Law Dr Cowel though A Civilian, yet learned in the Common Law, sayes, (q) It is derived from the Law of Nature & Nations, as well as any other Laws whatsoever which are either just or reasonable. And an (r) other sayes that long experience & many tryals of what was best for the Commonwealth begot the Common Law.
Let no man therefore think that the English Law attributeth too much to Custom, by giving it the force of A Law: for [if; MS has "it"] it is no more then what is allowed to it by other (s) Laws & particularly ye (t) Civil Law


(q) Ex jure naturali atq[ue] gentium, sicut & liae leges quaecunque, saltem ju tae atque rationi consentanea, omnino derivantur. Cowel. Inst. Jur. Angl. 1, 1. ~ 2 .. 3. p. 25. [Cowell, Institutiones.]
(r) Sr. John Davis Pref to his Reports
(s) Plat. lib. 7. de legib. & apud Laert. Aristol. s. Rhetor. qui
& 3 Ethic. meravit Legum [Greek script]
(t) Sine scripto Ju venit, quod usus approbavit. am diuturn mores consensu utentium comprobati; Legem imitantur. Inst. 1. 1. T. 2. . 9.
Propria aunt opittieta conscientiudini , ut dicatur, diurturnas longa, invelerata; quanto autem tempore introducatur, Jure nostro definitum non est. Vinnii Notae. p. 23.
Legem imitatur, i.e. Legis vim & effectum habent.
which allows to Custom not only the force of A Law but also that


Quin etiam plus valere & in rebus majoris momenti versari Leges, quae moribus comprobatae Sunt, quam quae scripto constant, testatur. Aristot. 3 Polit. c. ult. Vinnius ubi supra. Et non ineleganter in duas species Jus civile distributum ease videtur: nam origo ejus ab institutis duraum c vitatum, Athenarum scilic et & Laced emoniorum, fluxisse videtur. In his en m civitatibus ita agi solitum erat, ut Lacedaemonii quidem mags ea, quae pro Legibus observabant, memoriae mandarent: Athenienses vero ea, quae in Legibus scripta compr hendissent, custodirent. Inst. lib. 1. t. 2. 10.Lacedaemonii scriptis Legibus usi non aunt, atque una [Greek script] haec erat, [Greek script] scriptia Legibua non uti. Plutarch in Lycurg. Vin. p. 84. Inviolabilea ac diuturnos fore s animis civium non tabulis, mentibus non libris scriberentur. Bodin de Rep. 1. 3. c. 2. Colligi potest, jus consuetudinis fuisse antiquius spud Lacedaemonea quam jus scriptum apud Athenienaes, a quibus jus civile duxit originem. Suarez de Leg. 1. 7. p. 439. De quibus causis scriptia legibus non utimur, id cuatodiri oportet, quod moribus & consueitudine inductum est. Inveterate consue-tudo pro lege non immerito custoditur. (&, hoc eat jus, quod dic.tur moribus constitutum.) Nam cum ipsae leges nulla alia ex cause nos teneant, quam quod judicio populi receptae aunt: merito & ea, quae sine ullo scripto populus probavit, tenebunt omnes. Nam quid interest, suf-fragio populus voluntatum suam declaret, an rebus ipsis & factis' Dig. 1. 1. t. 3. T. 32.
Sic ergo veriasime dicitur, consuetudinem ease jus non Scriptum. Et ratio est, quia nec per se scripturam

Laws may be (u) Abrogated by Custom.
Thus in the Institutes of Justinian (1.1.t.2 .. 9.) it is said, that without writing that becometh A Law which use hath approved. And again, Customs approved by the consent of those who use them obtain the force of A Law.
And in ye Dig. (1.1.t.3 .. 32.) that Laws are abrogated not only by the Suffrage of the Legislator but also by the facile consent of the People signified by their disuse of them.
It is true it hath been an objection often made against the Law of England, that it is not a certain Law, digested into great Volumes, like ye Civil Law.


requirit, nec etiam manat ex jure scripto, im8 nec ex proprio, & expresso praecepto superioris, sed usu ipso introducitur, usus n. non scripturis, aut verbis, sod in factis consistit. Suarez de Leg. 1. c. 2. T. 2. p. 442.
Est substantiale, & essentiale consuetudini, scilicet, ut sit communi populi consensu recepta. Id. Ib. T. 1 p. 442. Vid. etiam Zouch Element. Jurispr. Par. 1. Sect. 5. p. 7. & Dawson Orig of Laws. 1. 2. c. 6. ¶. 2. p. 73, 74.
(u) Quare rectissime etiam illud receptum eat, ut leges non solum suffragio legislatoris, sed etiam tacito consensu omnium per desuetudinem abrogentur. Dig. 1. 1. t. 3. 5. 32. Jura saepe mutari solent vel tacito consensu populi, vel alia postea Lege late. Inst. 1. 1. t. 2. T. 11. Non tantum novum jus longo usu introduci potest; Sod id etiam, quod ante Lege aliqua constitutum erat, contrario usu abrogari. Vin. p. 24. Igitur regula certa ear, legem humanam sive canonicam, sive civilem posse consuetudine abrogari. Suarez de Leg 1. 7. c. 18. 1. 2. p. 479. Vid. Zouch. Ib. p. 8. & Dawson ubi Supra.



Now though I think there is little, if any of the Common Law, but may be found in book Cases, Yet (w) however it is not sufficient to object against any Law only the want of being written: for if no Law were to be admitted, but that which is written, we should condemn the Law of Nature, which is the Parent of all good Laws in the World.
I confess the Common Law of England not being digested into a logical Method, makes it more troublesome to the Student: and the Reason & Excellency of the Law cannot so easily be decerned upon a cursory view of it, as if it were reduced into method; which perhaps is one of the main Reasons, if not the only one, why so few persons Study the English Law, but only they which make it their



(w) Leges namque Anglicanas licet non scriptas leges appellari, non videtur absurdum (cum hoc ipsum lex sit quod principi placet, & legis habe vigorem) eas scilicet, quas super dubiis in consilio definiendis, Procerum quidem consilio, & principis accedente authoritate constat esse promulgatas. Si enim ob Scripture solummodo defectum leges minime censerentur, majoris (procul dubio) autoritatis robur, ipsis Legibus videretur accommodare Scriptura, quam vel decernentis aequitas, vel ratio Statuentis. Glanvil in Prolog. Vide etiam Bract. 1. 1. c. 1. f. 7(a). Fletam in prooentio Sui libri.
profession; because they must take considerable pains in the Study of if, before they can make themselves masters of the Reason of it. Yet barely the want of Method in Laws, doth not make them in themselves either better or worse: for Laws being made as the Exigencies of Affairs require them, it cannot be supposed they can be methodical. And the Common Law of England coming in by Custom & Experience, though unwritten, in many Cases hath the advantage of a written Law. (x) "For when a reasonable Act done is found agreeable to the nature of a People, who use it, & practise it again by iteration, it becometh Law, and this custumary Law is the most perfect, & most excellent to make, & preserve a Commonwealth; For Laws made either by Edicts of Princes, or Councels of States, are imposed upon the subject before any tryal made, whither the same be fit, & agreeable to the nature & disposition of the people, or whither they will breed any inconvenience



(x) Consuetudo sensim, & swmna omnium voluntate in hominum animos illabitur, ac temporis diuturnitate vim acquirit: Lex autem momento sese exserit, ac imperantis jussu saepe nolentibus ac invitis datur. Bodin de Repub.
Sr. John Davis Pref. to his Reports.
or no; but a Custom never bindeth till it hath been tryed & approved time out of minde, dureing which no inconvenience did arise, for if it had been found inconvenient, it had been used no longer, but had been interrupted, & so had lost the vertue of a Law."
As to ye written Laws, termed Statute Laws, every one knows by whom they are made,· they being enacted by the Soveraign, with the Advice & Consent of the Lords Sp ritual Temporal, & by the Commons assembled in Parliament which are the Representative of the People for that purpose. So that there is no Act of Parliament but every man in particular gives his consent to it, ether in person, or by his Representative, and therefore hath no Reason to complain of any hardship it being his own Act: For by our constitution as the People cannot make a Law without the consent of the Prince, neither can the (y) Prince without ye Consent of the People:


(y) Quod principi placuit, legis habet vigo:em. Quicquid ex magnatum suorum consilio & habiti super hoc de ibe tone & tractatu recte fuerit definitum.



And this Consent of the People is not only a bare consent, as when ye Law before-hand is prepared, and then presented to ye People as a Law necessary for ye Weal-publick, with a formal Rogation that they would consent to it and by their suffrages make it a Law. (z) But an express Consent before the Rogation, that is, when the Law is of their own



Nec obstat quod dicitur quod Pr pla et egis habet potestatem, quia sequitur cum lege egia quae de ejus imperio lata est, quod est, non quicquid de voluntate regis tantopere praesumptum est, sed quod magnatum suorum consilio rege automate praestante, & habita super hoc deliberatione & tractatu recte uerit diffinitum. Fleta. 1. 1. c. 17. T. 7. p. 16, 17
Angliae Statuta nedum principis voluntate, sed & totius regni assensu, ipsa conduntur, quo populi laesuram illa efficere nequeunt, vel non eorum commodum procurare. Fortescue de Laud. Leg. Angl. c. 18. f. 40.
Jus Scriptum apud nos sultem quod in usu est, continet Statuta. Illa autem non a sola principis vo untate proficiscuntur, Sed universi regni consensu per Regem action convocati stabiliuntur. Sic tamen ut Regis approbatio necessario requirarur. Cowel. Inst. Jur. Angl. 1. 1. t 2. T. 4. p 25.
(z) Consensus expressus ante rogationem legis. Cumsc [ilicet] Legis formula perscripta, habiti prius inter ipsos justi & de rebus & de verbis deliberatione, Procerum regni & delegatorum plebis conjunctis suffragiis comprobata, Regiae tandem Majestati, cui uni competit Legum ferendarum summa potestas, exh betur, ut ipsius calculo, si id ps commodum vi um fuerit, confirmata, Legi exinde habeat vigorem, al as irrita sit penitus, nee pro Lege habeatur. Sanderson de Oblig. Consc. Prael. 7 .. 27. p. 284, 285,

forming, and making, both as to matter, & words, and way of expressing it, and then presented by their own selves to the Prince for his Confirmation. A way which doth neither debase the Majesty of a prince too much, nor exalt the Power of the People too high; but such a (*) way, as is surely beyond the Wit of Man to invent a better, both for the moderating of Kingly Power, & restraining of Popular Liberty.
The (a) Statute Laws or Acts of Parliament, are made in such Cases where the Law of Reason, the Law of God, Customs, Maxima, nor other Grounds of the Law of England, seemed not to be sufficient to punish evil men, & to reward good men.
Thus I have given you a summary View of the Laws of England, & the Excellency thereof I could easily expatiate upon this Argument, and prove to you in (b) particular Cases wherein the English Law differs from the Civil Law, which for it's known excellency is received in most nations in Europe, that the English Law


(*) Quadoquid m non posse arbitror humano ingenio facile excogitari, ad moderandam hinc Regum potentiam, ill nc licentiam populi continendam coercendamque, Legum eerendarum ratio liqua magis opportuna. Sanders. lb. Dawson Orig. of Laws. 1. 2-:-c. 7 .. 13, p. 85, 86.
(a) Bridall's View of ye Laws of England. p.2.
(b) Vide Forte cue de laud Leg. Angliae a Cap. f usque ad c .


might be esteemed before it.
But (beside that time will not permit me) I think it is needless to say any more upon this subject: for the Law it selfe, to all that know it, speak it's own excellency.
"Neither is this las (as a great & learned (c) professor it said) for Prince & People only as they be in a Body Politick, but also for the singular benefit of ye Church of God, the Rights & Liberties whereof, the Common Law maintaineth inviolably, being as Judge (*) Fortescue defineth the same, Sanctio sancta jubens honesta, prohibensgue contraria. The same in effect which Cicero saith in his second book De Natura Deorum, Lex est recti praeceptio, pravi est depulsio. Wherefore religion & the Law do stand together, do mutually uphold each other, and are concentered in their original, & end, they both come from God, & tend to God. And as Religion, so the Law was given, Ut cives faciat bonos, saith the Philosopher, And therefore the Law in a Christian State is not only convenient, but necessary, that no state can stand & flourish without it." Hence



(c) Sr. Harbottle Grimston, Epist. Ded. to K. Charles ye 2nd to Sr George Crokes Report the 3rd part but first published. [Harbottle Grimston, The First Part of the Reports of Sr. George Croke…
(*) de laud. Leg. Angl. c. 3. f, 9. vid. Bract. 1. l. c. 3. N. 7. f. 2(a).
it is, that where Religion doth find a due regard, a conscientious practise, and the Law a willing Submission, and a chearful obedience; there, if any where in the World, the Prince will be glorious & ye People happy.
But of all the parts of the English Law, as no one is more necessary to be known, So no one is most excellent & reasonable, then that part of it, in which you are more immediatly concerned, which is ye Jus criminis, commonly called the (d) Pleas of ye Crown, which are grounded upon the Law of God, ye Maxims & Rules of right Reason, & the general Customs of the Nation, received and settled for many Ages, and explained, and improved in several Branches of them by the Statute Laws.



(d) Reliquae Loges, privatorum hominum commodia prospiciunt. Sad hae, Regiae Majestati, aubditorum vitae, ac publicae tranquillitati con-sulunt. Nec satin laudari queant, proptaraa quod in vindicando cupidi-tatibua vacant. In neminem enim vindicant, iracundia aut cupiditate eius hereditatem poaisdendi, tantum equitatis cause ad puniandum ducun-tur. Nem/nem odio prosequuntur, quia nesciunt tempore quo feruntur, in quem aunt vindicaturae. Neminem item opprimunt imprudentem, sad prae-miss& praemonitione: amnes generatim vetant a malefaciendo, minitantea vindictam singulis, qui serum praecepta praetergredientur. Itaque hae Loges summo in honors aunt habendae, ataque I studious diligenter euoluerdae ut in promptu habeant: juxta quod judicent, ubi ad audiendum & terminandum capitales causes lagati fuerint. Staunforde Pietas del Cron: Lectori. Coke Proeme to yt 3. Inst.


As I question not but you are all sensible of your happiness in living under Government; without which no man could call any thing his (e) own, if a stronger then him would take it from him: And that without good (f) Laws, Government and Society cannot be preserved: So I hope you are all as fully convinced of the Excellencey & Usefulness of the Laws of England in particular, under which you live, & by which you ought to govern your Actions. Now the end & designe of the Law being to reforme Evil men, & make good men better; to put an end to all strife & Contention; to suppress Vice & wickedness, & to establish Peace & Justice; and that upon the due Execution thereof dependeth the Preservation of both Prince & People: I hope you will not think the Law any Curb upon your Liberty or Infringment upon it, but rather the preservation of it: That only truly


(e) Major haeredita venit unicueque nostrum a Jure & Legibus, quam a Parentibus. Cicero.
(f) Regiam Potestatem solum armis contra rebelles & gentes sibi Regnoque insurgentes oportet ease decoratam, sed & Legibus, ad subditos & populos pacifice regendos, decet ease ornatam. Glanvil in Prolog. Vide etiam Bract. l. 1. c. 1. n. 1. Fletam in prooemio. Pees ne puit mye bien estre saus ley. Britton. f. 1.

deserving ye Name of (g) Liberty which is bounded with Right or Law. And as for those sons (h) of Belial, whose Licentiousness prompts them to disobey all Laws, they are to be looked upon as Persons that endeavour, as much as in them lyes the Destruction of all Government, and Humane Society, and as Invaders of ye Common Rights & Liberties of Mankind, and
as such ought to be brought to such condign Punishment, as the Law hath prescribed for their Offenses.
Therefore if you know of any Offender against the Laws, I hope you will take care to present them, that so this Court may proceed against them. For in you the Gentlemen of ye Grand-jury the law hath


(g) Aristot. 1. Pol. 9. Legum idcirco omnes servi sumus ut liberi ease possimus. Cic. pro Cluent. Libertas est naturalis facultas ejus, quod cuique facers libat, nisi si quid vi aut jure prohibstur. Inst. 1. 1. t. 3. T. 1. Vide etiam Bract. 1. 1. c. 6. N. 2. Fist. 1. 1. c. 2. p. 1.
(h) [Hebrew script] hominos filii nequitiae is nequissini, Deut. 13. v. 13. [Hebrew script] sign. hominos malignos, pessimos, imp issimos. Its omnes Hebrae; vel a [Hebrew script] non, & [Hebrew script] Supra, qui nullum fort super se; vel a [Hebrew script] non, & [Hebrew script] profuit, q. d. homo inutilis vel a [Hebrew script] non, & jugum absque jugo, qui jugum laboris, pretutis, ac Legis Dei excussit. Apud Talmudicos ad Deut. 13. v. 13. [Hebrew script] id est, [Hebrew script], on unn qui ruperunt juguni caeli, i.e. Dei, a cervicilues suis. Santi. fol. 111. 2. LXX. av vo of viri iniquam trensgressones Legis qui legem violunt.

reposed so great a power, that without a presentment first from you, an Offender cannot regularly be brought to Answer for his Crimes.
Now as the Law hath reposed so great a Trust in You, so I hope you will be as careful how you discharge it, to which you have a further obligation laid upon you.that of an Oath: Whereby you are required diligently to Enquire, & true Presentment to make, of all such matters & things as shall be given you in Charge, or shall come to your knowledge.
Now because that part of your Oath doth in some Measure depend upon the Charge, that shall be given You; therefore be pleased to observe;
That you are to Inquire & Present all kinds of Offenses committed against the Laws.
And for your better guidance &c.
As in ye General Charge to ye Grand Juries pag. 125.


A Charge delivered, at the General Sessions, &
Gaol Delivery: Holden at Charles Town, for the Province of South Carolina.
Wednesday March ye 17th. 1707/08.


Gentlemen.

Wee are here assembled to hold this Court of Assize & General Gaol-delivery, and the Duty of my Office requires me to give in Charge to You, the things that you are to Enquire of & to present.
In my last Charge, by way of Preface or Introduction to the particular Article given in Charge, I then shewed the Excellency & Reasonablenes of the Laws of England, the Offense against which Laws you are to Enquire of & to present.
And I cannot think of any thing more proper to follow that Discourse, then now to Exhort you all to put those Excellent & Reasonable Laws in Execution.


For Laws though never so good & reasonable in themselves, and however adapted to the Use & benefit of he People that are to be governed by them, Yet without (a) Magistrates, & others intrusted with the Execution of those Laws, do conscientiously perform their Duty, by a due and
impartial administration of the Publick Justice in puting the Laws in Execution, the Laws of themselves will be but dead and useless Letters.
For however some good & virtuous person might out of choice, make use of just & reasonable Laws, as Rules to govern their Actions by: Yet the generality of Mankind , that always been so currupted, by vicious Habits & Inclinations, that without the Sanctions & Penalties against Offenders annexed, the Laws would be vut very little, or rather not at all regarded by the generality of Men.
Indeed I could wish that all Persons would obey the Laws out of Choice, and from a Sense of the Duty they owe to God, and the innate Justice & Equity that they see


(a) Vere dici potest Magi tratum legem e se lo uentem, legem autem mutum ease Magistr tum. Magistrat bus igitur opus et, ine quorum prudentia & diligentia civitas non potest stare. Cic. de Leg.


in them: But seeing, as I before observed, that is not co be expected, especially in this corrupt & vie ous Age: I know no remedy left, but the faithful Discharge of that Trust ye Law hath reposed in us, by duely executing the Penalties upon Offenders, that so if Persons will not leave their Vices from the fear of an Invisible Power, to whom they must one day be accountable for all their Actions, that at least the law of a visible Power, that of the Civil Magistrate, may keep them from the open committing of Scandalous Sins.
And though the Punishment inflicted by Humane Laws cannot reform the Heart of the Offenders, Yet if it make them abstain from being publicly prophane & immoral, by that means we honour our Profession, by shewing how it discountenances such Practices; and we may keep men from biding an open Defiance to God & his Laws; and so may prevent those national Judgments that will certainly be inflicted upon a People encouraging & practising Impiety[.]
And it may be one Person , that at first left their Vices only out of fear of


humane Punishment, by a long Habit of abstaining from vicious Practices, may at last become truly virtuous out of choice, from ye more noble Principles, of a Sense of their Duty to God, and by plainly seeing the turpitude & filthiness of Vice, and the Beauty & Excellency of Virtue, which exalts humane Nature, that was debased by Sin, & brings it as near as may be to it's original Perfection, when it was pure & Spotless being revealed after the Image of God in Righteousness & true Holiness.
And now se[e]ing so great a Trust is reposed in you the Gentlemen of the Grand Inguest, with respect to the Execution of the Laws, and the punishing [of) all Vice & Immorality, & bringing such Offenders to Punishment: I hope you will by your Action make it appear that you make Conscience of your Duty, and the faithful discharge of the Trust the Law hath reposed in You.
And as motives to perswade you there to, be pleased to consider,
that by a due and impartial Execution of the Laws, & punishing



all manner of Impiety, Prophaneness, and Immorality whatsoever contrary to ye Laws, you do thereby Advance the Glofy of God: for as God is dishonoured by Sin & wickedness, as being expressly contrary to ye Holiness & Rectitude of his Nature: So his Justice is honoured in the Punishment of Such Offenders.
Moreover in the due Execution of ye Laws & discouraging Vice, & encouraging & rewarding virtue doth consist the Honour & Reputation
of a Nation or People: for how e some licentious Persons may fancy that the Laws are as so many Chains & Fetters upon them, and that their Happiness doth consist in gratifyng all their lawless & disorderly Passions, & in committing all manner of Vices that their wild Inclinations
lead & hurry them to; and that they should be more happy without Such Laws as restrain Vice & Prophaneness, then with them: Yet the wisest of Men assure us, that (b) Righteousness is that which Exalteth a Nation: and that Sin is a Reproach to any People.
Be pleased further to consider that by a due Execution of the Laws against all incorrigible Offenders, You answer the End & Design of Magistracy & Government: for as the power of


(b) Prov. 14. V. 34.
the Magistrates, whether it be that of the Supream, or that of those that are Inferior & Subordinate is derived originally from God: The Apostle assureing us that (c) there is no Power but of God: & that thes[e] Powers that be are ordained of God. So he further tell us, that the Magistrate was appointed by God, not only to protect the good & virtuous, that (d) they that do good might have praise of him: But also for a terror to them that do Evil, to whom he is the (e) Minister of God, a Revenger to execute Wrath, for that he bears not the sword in vain.
Thus as I hope from these, & many other Considerations that might be laid before you, There will be nothing wanting on your Part in putting the Laws in Execution, and bringing Offenders to Punishment: So I hope that all Persons that know of any Offenses committed, will not fail of giving you due Information of them.
One would think amongst Christians whose Religion teacheth nothing but Purity[,] Virtue & Goodness, it should be needless to exhort them to punish Vice & Immorality, and to Inform the Magistrate against such Offenders; did not the experience of the too frequent failures of
their duty therein shew the contrary: But


(c) Rom. 13. v. 1.
(d) v. 3.
(e) v. 4.
whatever neglect hath formerly been, I hope for ye future, all Persons will shew their Zeal & Diligence in giving due Information to the magistrate against Offenders, that folley may be legally brought to Punishment: For however the Name of an Informer is become odious upon the Account of the many abuses committed by some Person, who Inform it may be for no other Reason, but out of a particular Malice to ye Offender, & to expose him, & not his Vices, or else out of Covetousness, to receive the Informers part of the forfeiture given upon the breach of the Law, and who often, on that account only, lye in wait to catch & trepan their Neighbours, by taking advantage of their weakness & mistakes, to ensnare them by some nicety in Law; Yet when those Sinister Ends are removed, and a person shall Inform purely out of Zeal, to have Vice & Wickedness punished: such an Office ought not to be looked upon as dishonourable,
nor the persons contemned, but rather, they should by al Court of
Judicature be healed with all due Respect, & Encouraged in their Duty. For it is truly honourable for all Persons, though of the greatest quality to give Information in these Case for the Service & honour of God:



Nay under the Jewish Dispensation, the Prince were not ashamed to become Informers where the breach of God's Law was concerned; (f) Now when these things, saith Ezra, were done, the Princes came to me Saying, The People of Israel, and the Priests, and the Levites have not seperated [sic] themselves from the People of the Lands, doing according to their Abomination, &c.
And it is well known, that in the Kingdom of England, for some Years past, there hath been, & still is, several Societies all over the Nation for ye Reformation of Manners, which consist of Persona of the best Rank & Quality, both of the (g) Clergy & Laity, and who make it
their Business to find out Offenders, and to inform the Magistrates against them.
And however the best of things are sometime abused by some ill Persons or others, and possibly some things in them may not be altogether clear of abuses; Yet it will readily be acknowledged, that those Societies have been very useful in general, to put a Stop to that
Deluge of Vice & Debauchery that had almost over-run the Nation: and their proceedings have been publickly approved, & countenanced by several of the Lords Spiritual, & Temporal, as well as the Judges of the Land. I may ad[d] & by her


(f) Ezra 9. v. 1.
(g) See ye Account of p. 10, 14, 16, 31.
Majesty also, who[se) Proclamation, for ye Encouragement of Piety & Virtue, and for ye Preventing & Punishing of Vice, Prophaneness, & Immorality, you have now heard publickly read: And I wish that all them that heard it this day, would give this as a Text of their Loyalty &
dutyful Affection to her Majesty, by endeavouring every one in his Action, and as much as in him lyes to punish & prevent all Vice and Immorality, the Actions whereof cast a contempt upon her Majesty & her Government, when by their Vices they dishonour God, whose Vice[reg]ent
she is.
Now though these Considerations of ye Glory of God, the Honour & Welfare of the State, the answering the End & Design of Government, are Argument, more then enough, to perswade you to the faithful discharge of your Duty, in discouraging Vice & Immorality, by bringing such Offenders to Punishment; Yet I must not forget mentioning, that further Obligation the Law hath laid upon You, which is that of an Oath: and therefore you will necessarily draw the dreadful Guilt of Perjury upon your selves if being thus intrusted & obliged to Execute the Laws, you
do wilfully neglect to do your Duty therein.


By your Oaths you are required, diligently to Enquire, and have Presentment to make, of all such matters & things as shall be given you in Charge, or shall come to your knowledge.
Now because that part of your Oath doth in some Measure depend upon the Charge, that shall now be given you; Be pleased therefore to Observe;
That you are to Inquire & Present all kinds of Offenses committed against the Laws.
And for your better guidance &c.
As in ye General Charge to ye Grand Juries pag. 125.



A General Charge to the Grand Juries, for the Province of South Carolina. Containing A Methodical Summary of the Principal Matters relating to the Pleas of the Crown, & Criminal Causes.


Gentlemen.
You being the Grand-Inquest of this Province, it is your Duty to Inquire, & Present all kinds of Offenses committed against the Laws.

The Charge
And for your better guidance therein, I shall now lay before you a general Scheme of the Laws touching matters criminal, commonly called the Pleas of the Crown, & shall something inlarge upon those particulars, that I have any Reason to think may come before you.

Offenses
The Kinds of Offenses are distinguished according to the diversity of Laws by which they are Introduced, viz:
Offenses by the Common Law.
Offenses by the Statute.
Offenses by the Common Law are distinguished according to the Degrees of the Offense.
Capital.
Non capital.
Of Capital Offenses they are such.

agt: God, witchcraft
1. As are immediately against God, as Witchcraft. By the
ancient common Law Witchcraft was a (a) branch of Heresie. And the Offenders were to be burnt as Hereticks: as appears by those ancient authors the (b) Mirror, (c) Fleta, & (d) Britton.



(a) Sorcery & divinal sont members de Heresy. Mirror. c. 1. 1. 4. p. 22. F. p. 16. E.
(b) Le Judgment de Heresie eat dee arse in cendre. Id. c. 4. T. 14. p. 252. Fr. p. 194. E.
(c) Chriatiani autem Apostatae, Sortilegii & hujusmodi detractari debent, & comburi. Fleta.
(d) Sorcoreri, Sorceresses, &c. soient arses. Britton.



The Statute (e) of the I Jac. 1. c. 12. (which for the most part is declarative of the common Law) is the only Law now in (f) force against it, & divides it into two (g) Degrees:
I. Witchcraft in the (h) first Degree made Felony without benefit of Clergy, including four Species:

No 1.
1. Invocation or Conjuration of an evil Spirit. ((j) without any other Act or thing, save only the Apparition of the Spirit.)
No 2.
2. Consult,covenant with, entertain, employ, feed, or reward any Evil Spirit to any Intent. ((k) though no act be done thereupon.)
No 3.
3. Take up dead person, or the skin, bone, or any part thereof, to be employed or used in Witchcraft, Charm &c. ((1) Though not actually used or employed.)
No 4.
4. Exercise any Witchcraft, Inchantment, Charm, or Sorcery, whereby any Person shall be killed, destroyed,


(e) 1. Jac. 1. c. 12.
(f) Coke. P. C. c. 6. p. 45. Hale. P. C. p. 6.
(g) Hale Ib.
(h) T. 2.
(j) Co. P. C. p. 4
(k) Co. lb. H. lb.
(l) Co. & Ha. lb.
consumed, or lamed in his or her Body, or any part thereof.
((m) which require the Act to be done, viz. laming, consuming,
&c.)
No 6 & 7.
These & all Accessories before the fact to suffer Death as felons without Clergy.
But (n) Accessories may be after; but then they have Clergy, because not specially excluded.
II. Witchcraft in the second Degree .

. 3. No 2.
1. To take upon him or them by Whitchcraft, Inchantment, Charm, or Sorcery to tell where Treasure is to be found.
(o) They that take upon them to doe it, though they doe it not, nor can doe it, Yet within this Law.
No 3.
2. Or where Goods, or things lost or stolen may be found.
No 4.
3. Or to the intent to provoke any Person to unlawful Love.
(p) These three clauses come under the word (taking upon)


(m) Hal. p. 7.
(n) Ha. Ib.
(o) Coke. p. 46. H. p. 7.
(p) Co. & Ha. lb.




4. Whereby Good or Cattel shall be destroyed.
(q) Which requires an actual destroying, & not a bare taking upon them.
No 6. 7.
5. Or shall use Witchcraft &c. to hurt any person, though the same be not effected.
The Punishment of these, (the (r) Offenders being first convicted, i.e. attainted:)
No 7.
1. The first Offense,
1. a Years Imprisonment without Bail.
2. and once every quarter of the said Year to tand Six Hours upon the Pillory in some open Fair or Market .
4. No 1, 2.
2. The second Offense Felony; without benefit of Clergy; But this requires,
1. (s) An actual conviction & Judgment for the first.


(q) Co. p. 46. Ha. p. 8.
(r) Co. Ib.
(s) Co. & Ha. Ib.
2. The second Offense must be committed after the Judgment for the first.
But the Consequents upon an Attainder, v z. Corruption of Bloud & Losse of Dower saved.
But dureing Life (t) ye Lands forfeit.
I shall now proceed to second general Distinction of Capital
Agt: Man.
Offenses, which containe such Offenses as are immediatly against Man.
And these are either
Treason.
or
Felonies.

Treason.
Treason either
High Treason.
Or
Petit Treason.

High Treason.
High Treason is an Offese at Common Law: but the Statute of the 25. Edw. 3. 14 (which is for ye most part declarative of ye Common Law) reduced & settled all Treasons.
But the several Branches of that Act, and the High Treasons therein mentioned, not being supposed to fall within your Cognizance, I shall for brevity['s] sake omit speaking to them.


(t) Co. p. 47. [Coke, Third fill.] Ha. lb. [Hale, Ple , p. 8.]
Ed. 3. St. 5, c. 2.

Petit Treason.
Petit Treason is when any murther is committed (in the Estate Oeconomical) upon any Subject, by one that is in Subjection, & oweth Faith & Duty & private obedience to the party Murthered,
And the said statute of ye 25. Ed. 3. is confined to three particulars;
1. Where the Servant kills his Master.
2. The Wife kill her Husband,
If the husband kills the Wife it is but Murther. The Reason of this difference is, for that one is in Subjection & oweth Obedience, & not the other.
If ye Wife & Stranger kill the Husband it is Petit Treason in the Wife, Murther in the Stranger.
If the Wife & a Stranger do conspire to kill her Husband, & he killeth her Husband in the Wives absence; this is no Petit Treason, but Murther in ye Stranger, and she shall suffer Death as accessory to ye Murther.
Note whatsoever will make a person guilty or principal in Murther, will make a person guilty or principal in Petit Treason.

3. If a Clerk or any Ecclesiastical person kills his Ordinary, or Superior to whom he oweth obedience, this is Petit Treason.
This Act is not taken by Equity:
Yet if a Child kills father or mother it is Petit Treason: but the Indictment whall be by the Name of a Servant.
Note, Raiders, & Abbetters, & Procurers to Petit Treason are within this Act.
And such as are Accessary before ye Fact, shall not be admitted to have ye benefit of his or their Clergy.

Felonies
Now for Felonies they are either by
Common Law.
or
Statute.

by ye Common Law
Felonies by Common Law are of four kinds. 1. Agn: ye Life. 2. ye Goods. 3. ye Habitation. 4. ye protection of publick Justice.

Agt: ye Life
1. Such as are committed against the Life, which are of two Natures.
1. That which is committed against a Man's own Life, which is Felo de se.
2. Committed against anothers Life; which is of two kinds,


1. Involuntary.
1. Per infortuniam, called Chance medley;
2. Per necessitatem;
In defense of justice;
In defense of a Man's person, house or Goods.
Concerning Homicide in advancement of Justice in Causes Criminal, t being a Matter that will come before you, I shall something more enlarge upon it, and show you what the Law i in that Case. If a sheriff or bailiff, having warrant to arrest a Person indicted of Felony, & he will not obey, or suffer himself to be arrested, the Bailiff kills him, no Felony.
The same if any person that pursues upon Hue-&-Cry, or otherwise to arrest a Felon that Flies.
If a felon arrested break away from his Conductours to Gaol, they may kill him, if they cannot otherwise take him.
Now touching this Homicide these things are observable:


1. There must be no Malice coloured under pretense of Necessity; for if it be, it allows the Case, & makes it Murther.
2. The party that did the Fact must be arraigned, & upon Not Guilty pleaded, the special Matter must be found.
3. Upon this special matter thus found, the party is to be dismist without any forfeiture or pardon purchased.
And therefore as to you the Gentlemen of the Grand Jury, if it appears to You upon Evidence, that any Person actually killed any Man; though it was in Advancement of Justice; that you are not to take notice of, but to find the Bill of Indictment in usual form: And the party accused may then give that special matter in Evidence to ye Petit Jury upon not Guilty pleaded.
2. Voluntary which i either with Malice, or without Malice.
1. Ex malitia praecogitata of Malice forethought which is Murther.

Murther.
Murther is when a person killeth an other of Malice, or he dye within a Year & a day.

Malice is either Implied or Expressed.
1. Implied is collected either,
1. From ye Manner of doing it.
As poysoning wilfully any Man implies Malice.
So doth killing any Person without Provocation.
2. In respect of the person killed.
As if a Watchman, Constable, or any Magistrate, or Minister of Justice be killed, doing his Office.
3. In respect of the person killing.
A assaults B to rob him, B resists, A kills him. Murther.
2. Expressed, which is considerable;
1. In the principal in the first degree that doth the Act.
2. In the principal in the Second Degree, that is present & aiding, or abeting.
3. In the Accessary before the fact.


2. Sine Malitia, without Malice which is - Manslaughter.

Manslaughter is killing an other upon a sudden falling out, or provocation, in a present heat or fury of Mind, yet without any Malice forethought. Or commiting any unjustifiable Act, upon which Death ensueth is Manslaughter.

Felonies agt: ye Goods.
2. A second kinde of felonies are such as are committed against the Goods of a Man. viz. Larceny i.e. Theft, which is of two Kinds:
Simple larceny.
Mixt & Complexed Larceny.
Simple Larceny of two kinds;
Grand Larceny, of the value of 12 pence.
Petit Larceny, under that value.

Larceny.
Simple Larceny, is a felonious & fraudulent taking away by any Person of the mere personal Goods of an other, not from the person, nor out of the House, to ye value of 12 pence.


Complicated or mixt Larceny, hath a further degree of guilt in it.
1. For that it is a taking from the Person.
1. Where the person is put in fear, & then 'tis
Robbery.
Robbery, which is a felonious & violent taking away from the person of an other Money or Goods to any value, puting him in fear.
2. When not put in fear, & then 'tis Larceny from the person; which may be either by picking the pocket, or cutting the purse, which is supposed to be done calm & secrete a persona.
2. Larceny receives another Aggravation when it is taken
from the Habitation of a Man.
Robbing any Person in their dwelling-house the Owner, his Wife or Children, or Servants being within, & put in fear, ousted of clergy in Case of Conviction, together with Accessaries before, by Stat. 23. H. 8. c. 1. 15



23 H. 8. c. 1. . 3 .

Felonious taking of goods to the value of Five Shillings out of any dwelling-house or out-house, though no person within, oust of Clergy, by 39. El. c. 15.
These have a mark upon them as Larcenies complicated, and so oust of Clergy.
Note the before mentioned Statutes of ye 23. H. 8. c. l· & 39. El. c. 15.16 are made of Force in this Province, by the Act of Assembly, entitaled, An Act to in force the several Acts of ye Kingdom of England therein particularly mentioned.
Felonies agt: the Habitation.
3. A third kind of Felony is against the Dwelling or Habitation; & that of two kinds;

Burglary.
1. Burglary which is where a person in the night time breaketh & entereth into the Mansion House of an other, to the intent to commit some Felony within the same, whither ye felonious Intent be executed or not.

Arson.
2. Arson or Burning which is a Felony at the Common Law, committed


39 El. c. 15. . 2 .
by any that malitiously or voluntarily in the night or day, burneth the house of an other.
Burning of a Barn, not parcel of a Mansion-House, if it
hath Corn or Hay in it, is Felony.
Burners of Houses by the (a) Civil Law were to be burned.
And so they were anciently by ye Common Law of England; as appears by (b) Britton.
4. A fourth kind of Felony is against the protection of Publick Justice; as
Breach of prison,
Escape
Rescue.



(a) Qui aedes acervumve frumenti juxta domum poaitum combaaaerit, vinctus verberatus, igni necari jubetur: Si modo sciens prudenaque id commiserit: Si vero casu, id est, negligentia, aut noxiam farcire jubetur, aut si minus idoneu sit, 1 vius castigatur. Appellation• autem aedium omne species aedificii continentur. D. 47. 9. 9. De incendio & 12.
(b) Soit enquis de ceux que felonisement en temps d pees eient autre blees ou autre melons ars et ceux que ser rount de ceo atteyntz solent are issint que eux soient punys par me me cele chose dount ilz pecherent. Britton. c. 9. f. 16d,





Felonies by Statute.
There are several Felonies made so by Statute Law, but many of them Statute do not extend to this Province; and of them that do, for brevity['s] sake I shall omit speaking to any, but them that are likely to come before you. And they are
1. The Statute of ye 25. H. 8. c. 6.17 For ye Punishment of ye Vice of Buggery.
Revived & made perpetual by 5. El. c. 17.
I suppose you will not expect I should expatiate upon that Statute; and upon a Crime the very thought of which is detestable muchless ought to be named amongst Christians.
It is termed by ye express words of ye law of God an (c) Abomination . And the Persons that commit it are to be cut off from among their People. (d) St. Paul calls it a Crime against Nature. And indeed Nature it self, except horribly vitiated doth abhor it.
In ancient times such Offenders were to be burned by the Common Law, as appears by (e) Britton, and (f) others[.]
Sometimes they were buried alive; as appears by the (g) Mirror, & (h) Fleta, two ancient writers of the Common Law.



25. H. 8. c. 6.
5 5 EL c. 7.
(c) Lev. 18. v. 22, 29. c. 20. v. 13, 23.
(d) Rom. 1. v. 26, 27.
(e) Et mesme eel Jugement (sell. to be burned) ayent sorcers & sorceresses, & sodomites. Britton. c. 9. f. 16. (b).
(f) Fitzh. N.B. p. 269. Engl. p. 594. Finch's Law. 1. 3. c. 24. p. 219. Engl. Coke Pl. Of ye Crown c. 10. p. 58. Dalton's Just. of Peace c. 16a. p. 382.
(g) Le mortelle peche de Majesty vers le Roy celeste d' Sodomy soy forni t per enfover le pecheurs touts v fi y found en terre, issint que memoire seont restraine y l'grand abomination del fait. Mirror c. 4 .. 14. p. 252.
(h) Sodomitae in terra vivi confodiantur. Fleta. 1. 1. c. 37.p. 54.

But by the above named Statute of the 25. H. 8. c. 6. which is your guide, the Offense is Felony; but without benefit of Clergy. I shall only remark to You that the before mentioned Statutes of ye 25. H. 8. c. 6. & ye 1 El. c. 17. are made of Force in this Province, by the before mentioned Act of Assembly, as is also,
2. The Stat. 13. Ed. 1. c. 34. 18 which declares it Felony to commit a Rape. Clergy taken away by Stat. 18. El. c. 7. 19
3. The Stat. 1. Jae 1. c. 11 20 made also of force in this Province by the said Act of Assembly, which makes it Felony to marry a second Husband or Wife ye former living. But the following Cases are excepted out of the sad statute.
1. The Man under fourteen, or the Woman under twelve at the time of first marriage, & not agreeing after first Espousals, may marry a second husband or Wife.
2. A Man or Wife absent above seven Years second Marriage no Felony:


13 E. 1. c. 34.
18 El. c. 7.
1. Jae. 1. c. 11.

If beyond Sea, though notice of Life: if in England, then without notice.
3. After a Divorce, though à mensa & there only.
4 After a nullity declared of ye fromer Marriage by Ecclesiastical Court.
Offenders have clergy.
I believe you will have Bills of Indictments brought before you upon this Statute. And I hope you will be very careful in the di charge of your Duty therein.
I suppose I need not exhort you thereto, by telling you, that Marriage is the Institution of God, designed by him for the Procreation & Education of Children; which though not the only End, yet it appears to be the prime Intention of almighty God in the Institution, from that Blessing which he gave to our first Parents, (i) Be fruitful & multiply, & replenish the Earth. Marriage therefore being so essential to the being & well being of Mankind: It ls no wonder that God should fix a Stamp of Holiness upon it, & so secure it from Violation


(i) Gen. 1. v. 2.8
and Contempt, by adopting it into Rel gion, & making it to signify hat (k) great mystery of the admirable love of Christ to his Spouse the Church. So that surely you cannot but know, that to violate Marriage is not only an Offence against God, but of most mischievous consequence with respect to Men, & destructive to humane society; Marriage being the first & most natural of all Societies, & the fountain, & Foundation of all the rest: Therefore I hope you will take care to bring to punishment those persons, who make no Conscience or Scruple to destroy the Foundation of all Societies, & dissolve those Sacred Bonds that tye the world together.

Felony by Act of Assembly.
There is an other kind of Felony that will come before you that is made so by an Act of Assembly of this Province, entituled, An Act to raise the currant Coin & for the promoting of the currancy of heavy Money. In which Act, amongst other things it is enacted & declared, "that all persons whatsoever, their Aiders, & Consenters, Counsellors, & Imployers which hereafter shall Chip, Wash, Round, Counterfeit, Adulterate, or any manner of way whatsoever lighten, or diminish any of the
Coin, made


(k) Ephes. 5. v. 32
currant in the said Act, or ye Coin of the Kingdom of England, shall be taken ajudged & deemed guilty of Felony, without benefit of Clergy."
Counterfeiting the Coin was always esteemed so great an Offense, that it was Treason at Common Law. But the Common Law extending it only to ye proper Money of ye Realm of England; As did also the Stat. 25. Ed 3. St. 5. c. 2. which was made in Affirmance of ye Common Law: Therefore by the Stat. 1. M. c. 6. Forging or Counterfeiting money made
current by the Proclamation, is High Treason, But that Statute not being made of force in this Province; The Bills of Indictments that will be brought before you will be grounded on the aforesaid Act of Assembly, which maketh the offence only Felony, but that without benefit
of Clergy.
I shall now proceed to ye second general head of Division,

Offenses not Capital.
which are Offenses not Capital which you are to Inquire of & present:
as,


1. Perjuries.
2. Blasphemy & Prophaneness, against which you have a late Act of Assembly, Entitaled, An Act for the more effectual Suppressing of Blasphemy & Prophaneness. Which is but a Transcript of ye Statute of the 9. & 10. of his late Majesty K. William 3. c. 32. And which Statute, you now heard, by her present Majesties Proclamation, all Magistrates are expressly required to put in Execution.
The Offenses against this Statute are,
If any person haveing been Educated in, or at any time having made Profession of ye Christian Religion, within this Province, shall, by Writing, Printing, Teaching, or advised Speaking,
1. Deny any one of the Persons in the Holy Trinity to be God, or
2. Shall assert or maintain there are more Gods than one, or
3. Shall deny the Christian Religion to be true, or
4. Shall deny the Holy Scriptures of ye Old & New Testament to be of Divine Authority.
Note this Act punishes not the Error, but the Impudence of ye Offender.



You are also to present,
3. Frauds & deceits.
Under this Head of Frauds & Deceits, I think it proper to mention to You, those Bills of Indictments, that will come before you, against some of the Indian Traders.
Frauds & Deceits are Evils in themselves, as being contrary to that Justice & Honesty, that ought to be in all Dealings between Man & Man: And therefore are destructive to all trade & Commerce. But fraudulent Actions that are done to the Indians, are aggravated with several Circumstances, that increases the Guilt of them.
For first by that means the heathen Indians take Offense, & are scandalized against ye Gospel of Christ. For can they think that we believe ye Doctrine of Christ our Savior? who taught us to deal justly with all Men, & to do as we would be done by: When at the same time, they see our Act ons altogether immoral & unjust. So far from being like the Doctrine & Example of our blessed Master, that an honest Heathen would blush to do them.


And however this Circumstance may be contemned, & even derided in this prophane & w eked Age: Yet be assured that the giving Offense to the Heathen, was one of the Circumstances that aggravated the Guilt of David's Sin, and which God himself took notice of by the Prophet Nathan, (1) That by Deed he had given occasion to the Enemies of the Lord to Blaspheme. Our blessed Savior pronounced a (m) Woe against those by whom Offences come. And the Apostle expressly commands us, to (n) let us our Conversation be as becometh the Gospel of Christ. (o) That we walk honestly toward them that are without. (p) Giving no Offence in any thing.
Besides this religious consideration, be pleased in the second place, to consider how mischievous those Actions are to our Trade & Commerce with the Indians; which is of so considerable Advantage to this Province, and the want of which would be a very great loss to us.
And indeed the last Assembly thought it a Matter of such dangerous Consequence, that they expressly ordered this Prosecution to be made. I do not speak this as prejudging , the


(l) 2 Sam. 12. v. l.4
(m) Matt. 18. v. 7
(n) Phil. 1. v. 27.
(o) 1 Thes. 4. v. 12.
(p) 2 Cor.
persons Causes that may come before You, for the Law supposes all persons to be innocent till proved Guilty, and no Man ought to be thought hardly of only for being accused. Therefore if the Persons accused are innocent, (as I could wish all persons were) God forbid but you should acquit them. But if upon full & evident Proof by credible Witnesses, their Guilt shall appear to You; It is such an Offence as ought not to escape Punishment. And therefore in this, & all other Matters that shall come before you, I hope that according to your Oaths, you will diligently Enquire & true Presentment make.
4. You are to present all Factious and Seditious Persons & Practises, and particularly them that Slander & Abuse the Government, by giving out malitious[,] false & defamatory Libels, or Speeches either against ye Governour; or other the Magistrates & publick Officers
belonging to the Government: And that slander & abuse the Inhabitants of this Province: and that endeavour to sow discord & divisions between the Governour & the People, by attempting to render the one, odious and contemptible to the other.


Inventors of Slanders & defamations, and spreading & publishing of such defamatory Tales & Stories, even against private persons, is a manifest Evil & wrong, and often Causes Discord, & sometimes incurable hatred amongst Neighbours: But it is of far more dangerous Consequence when against the Government. And it hath always been the wisdom of the Law to punish such Offenders.
By the (q) ancient Law of England before ye Conquest, such Offenders were to have their Tongues cut out.
But this Punishment being thought too severe and rigorous, the same was afterward punished by (r) Fine and Imprisonment: and sometimes by (s) infamous Corporal Punishment.
The (t) Statute of Westmens. 1. c. 34. against the Reporters of Slanderous News whereby discord may arise, was but declarative of ye Common Law;


(q) Qui falai rumoris in vulgus sparsi author suisse deprehendetur, leuiori aliqua poena non mulctator, verum lingua ei praeciditor, ni is eam integra capitis sui aestimatione data redemerit. Int. leges Aluredi Regis, cap. 28. Edgari cap. 4.
Si quis alium rumoribus dissipatis improba voce lacerarit, quam ob rem aut corpori ejus damnum inferatur, aut de fortunis imminuatur aliquid, tum si alter auditiones tanquam falsas refellere, & coarguere poterit, aut is linguam data capitis aestimatione redimito, aut ei lingua praeciditor. Inter leges Edgari Regis. & inter leges Regis.
(r) Sunt etiam quaedam atroces injuriae quae prisonam voluntar am inducunt, sicut de inventoribus malorum rumorum, unde pax possit exterminari. Fleta. 1. 2. c. 1 .. 10. p. 63. Co. 2. Inst. p. 226.
(s) Co. 3. Inst. p. 220.
(t) 3. Ed. 1. c. 34.


But as my Lord (u) Coke observes, ye same Offense is aggravated in respect that it is prohibited, by Act of Parliament. Which (w) Act likewise inflicteth punishment upon the Reporter, that he be taken & kept in Prison, until he hath brought him into the Court which was first author of the Tale.
I suppose you will have several Indictments brought before you upon this Matter. And I question not but the Persons guilt doth appear to you upon good Proof, that you will make your Presentments against them, that so they may be brought to such Punishment as their Offenses Deserve.
You are also to present,
5. Nusances.
6. Disorderly publick Houses.
7. Leud & disorderly practices, as keeping of Baudy Houses, &c. which is against the Law of God, on which our Common Law in that Case is grounded: Therefore the Keepers of Houses of Baudry & Incontinence, are to be punished; being a Common Nusance,


(u) 2. Inst. p. 228.
(w). 2 .
Deut. 23. v. 18.
by Indictment at Common Law, by Fine & Imprisonment.
Resorters & Frequenters of the Baudy Houses, are to be bound with Sureties to the good Behavior.
Adultery, &c. and all Acts of Baudry are Breaches of the Peace, for which an Indictment will lie.
You are to present all Offences, that come to your knowledge, against the late Act of Assembly; Entituled, An Act against Bastardy.
8. You are to present all breache of the peace, particularly Assaulting & beating the publick Officers, a Constables, & other being in the execution of their Office.
9. You are to present all Officers neglecting their Duty as Constables, Overseers of the poor, and Surveyors of the Highways


10. And lastly you should pre ent the Defaults of the High-ways & Bridges.
Time will not permit me to inlarge upon these particulars.
And it may be several of them may not come before you;
But if any of them do you ought to present them.
And generally, you ought to Inquire & Present all other things that you know to be within the Compass of your Enquiry, & ye Jurisdiction of this Court.
And so I dismiss you to your Business.


A Speech made upon the Condemnation, of Sarah Dickenson, Edward Beale, &
Joshua Brenan, for Murther.
Monday October ye 25th. 1703


You the Prisoners at ye Bar, Sarah Dickenson, Edward Beale, & Joshua Brenan:
You stand here convicted of one of the greatest of Crimes, willful & malitious Murther.
A crime which carryes it's own natural Horror & Guilt along with it: and the Evil of which is evident to all persons, even by the Light of Nature; so that there is no Nation so barbarous, but by their universal practice do consent to ye Equity & Justice of that ancient Law of God, that (a) whoso sheddeth mans blood, by man shall his blood be shed.
In those Laws which God gave to his own peculiar people the Jews, he expressly commands them saying, (b) Ye shall take no satisfaction for the Life of a Murderer, which is guilty of death: but he shall be surely put to death. And in the following words the reason is given for that Law: (c) For blood it defileth the Land: and the Land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.


(a) Gen. 9. v.
(b) Num. 35. v. 3
(c) v. 33.
It would be endless for me to recite all those places of Scripture where Murther is forbidden. I Suppose none of you are so ignorant, but yt you know yt one of ye Commandments of God is;
(d) Thou shalt do no Murther.
But consider you have not only been guilty of Murther, which is one of ye worst of Crimes: But it is also agravated with such Circumstances as addeth greatly to your Guilt.
As for you Sarah Dickenson you are not only guilty of Murther, but ye Murther of your Husband; him whom you promised at your marriage to Love, cherish & obey: instead of that, not only to conspire his Death, but actually to kill him; is a Crime which I cannot think of words bad enough to express it.
This is not only an Agravation which ye Law of the Land takes notice of, by making you guilty of Petit Treason: but is certainly a great Agravation of your guilt in the Sight of God.
And for you Edward Beale that have been her Aider, Abetter & Procurer to commit this horrid Crime. Consider you murdered the person not because that


(d) Exod. 20 . v. 13.
he had offended You; but because you had offended him. You were not content to rob him of his Wife, and to defile his Bed; (of which your guilt is notoriously known) But such was your malice, (though without any provocation given you) that you conspired to take away his Life
Which you first endeavoured to do, by trying to fix Felonious Crimes upon him; thinking by that means to destroy him under colour of law: which indeed is ye worst of Murther; for by that means you would not only have destroyed his Body, but his good name also.
But being disappointed of that you took, (next to that) the most detestable & basest way of murdering, which was by Poison.
In charity to your Soul I cannot omit mentioning to You an other of your Crimes: which is the Murther of your own Wife. Which I believe in my conscience you have been guilty of.
It is true for want of proof, it cannot be fixed upon you: But remember, if you are guilty of it, that you must answer it before God: from whom nothing can be hid: And who knows not only your actions, but your Thoughts.


As for you Joshua Brenan I cannot omit mentioning to You, as a great agravation of your Guilt; that, besides the Cruelty & Barbarity, with which you murdered the deceased person; that you did it in the sight of the Heathen, ye barbarous Indians: and by that means gave them occasion to contemn, & blaspheme ye Gospel of Christ.
Remember, that this was one of those aggravations, that God himself took notice of, in the Sin of David in killing Uriah when he tells him by the Prophet Nathan, (e) that by that Deed he had given great occasion to the Enemies of ye Lord to blaspheme.
And what do you suppose the Indians must think of the Christian Religion? when they could see such horrid Cruelties committed by one, who call himself a Disciple of The Holy & merciful Jesus whose Life, and Doctrine taught Mercy[,] Compassion & Goodness to all men. But instead of following ye Doctrine, & Example of your Blessed Master; you exercised such cruelty, as made them (though naturally fierce & cruel) abhor to see it.
Surely you cannot but think, that by seeing your Actions, they will have just reason to believe, that though we call our selves Christians,


(e) Sam. 12. v. 14.
we believe no more of the doctrine of Christ then they do: For if we did[,] our Practise could not be so contrary to it.
God is my witness, I do not aggravate these your Crimes to upbraid you with them. For I am so far from it, that I heartily pity every one of your miserable Conditions that your Crimes have brought upon You. But I lay before you the aggravations of your Crimes, hoping by that means I may make you sensible of the greatness of your offenses, & incite you to a true & unfeigned Repentance.
I suppose you all of you know, that You must undergoe an other Tryal for your Crimes before God; to whom all your Actions are known, & from whom nothing can be hid: And which tryal is of far greater Consequence to you, then any that can be had before a humane Court.
You must not think that ye forfeiture of your Lives for your Crimes, is a Satisfaction of the Justice of God. No that is the Punishment for your Offences against the Law of the Land: But remember that you must again answer or your offences before God And the Punishment you suffer here, will be as


nothing, if compared with the everlast ng vengeance of Almighty God, which he hath threatedned & denounced against your Sins.
The Apostle enumerating several of the Works of the Flesh amongst the rest reckons Murders: and then concludes w th these remarkable Words: (f) Of which I tell you before, as I have also told you in time past, that they which do such things, shall not inherit the Kingdom of God.
And murderers are (g) threatened, to have their part in the lake which burneth with fire & brimstone: which is the second death.
Words which carry that horrour with them; that considering your Guilt, surely the Sound of them must make you tremble.
I wish that what I now say to You, in this your deplorable Condition, may make you all so sensible of the greatness of your Offences, that you may become truly penitent. Which if you are, you may yet hope for Mercy from God. (h) For though your Sins be as scarlet (even dyed in blood) yet he can make them white as snow.
As God is Just, so he is merciful: & Mercy is that great & glorious attribute of God, which he delights to display towards us miserable Sinners.


(f) Gal. 5. v. 21.
(g) Rev. 21. v. 8. see c. 22. v. 15.
(h) Isaiah 1. v. 18


Thus when God proclaimed his great Name before Moses upon the Mount, how many Expressions is there. all signifying ye Mercy & goodness of God! (j) The LORD, the LORD God, merciful & gracious, long-suffering, & abundant in goodness & truth, keeping mercy for thousands, forgiving iniquity & transgression & sin. This God hath declared (k) that he hath
no pleasure in the death of the wicked, but that the wicked turn from his way & live. And hath (1) promised that when he doth so he shall save his Soul alive.
But be sure [to] remember that you must goe to God, in & through the alone merits & Intercession of his Son Jesus Christ, who hath made satisfaction to the Justice of God for us: (m) For he is our Advocate with the Father: and he is the Propitiation for our Sins: (n) for his
bloud cleanseth us from all Sin: Know therefore that (o) there is no other name under heaven given among men, whereby we must be saved: but only by the Name of the Lord Jesus.
But then consider, how he invites (p) all them that labour & are heavy laden with their Sins to come unto him, and he will give them rest. (1) He will not brake the bruised reed, nor quench the smoking flax. The Apostle tell[s] us, (r) that Christ Jesus came into the World to save


(j) Exod . 34. v. 6 , 7 .
(k) Ezek. 33. v. 11. see c. 18. v. 23.
(l) v. 27.
(m) 1 John. c. 2. v. 1, 2.
(n) c. 1. v. 7.
(o) Act 4. v. 12.
(p) Matt. 11. v. 28.
(q) Isaiah 42. v. 3, compared with Matt, 12. v. 20.
(r) 1 Tim. 1. v. 15.

Sinners And he himself assures us, (s) that he came to seek & save that which was lost.
Therefore he assured that he will accept you if at last you sincerely turn unto him: even now in your great distress.
But know that the Terms of his Invitation; & acceptance of You; is Faith & Repentance. And great Sins (such as yours are) must have great Repentance.
You must earnestly cry unto God for Pardon & Remission of your Sins, and particularly, that he would (t) deliver you from blood-guiltiness.
I only in general exhort you to Faith and Repentance. I will not pretend to give you particular directions, lest I should be thought to meddle out of my Profession, that being more properly the Office of a Divine.
You may have any of the Ministers of this Province to come to you, that you desire, And from them you may expect more full & particular directions, (u) For y_f Priest's lips shall keep knowledg: (w) For they are the Ambassadors of Christ; & to them is committed the word (or doctrine) of Reconciliation.
Thus having discharged my Duty to You as a Christian, by exhorting you to an unfeigned Repentance for your Crimes, & Faith in Christ:


(s) Luk. 19. v. 10. Matt. 18, v. 11.
(t) Psal. 51. v. 14.
(u) Mal. 2. v. 7.
(w) 2 Cor. 5. v. 19, 20.


by whose merrits alone you must hope for Pardon & Salvation:
I must now do my Office as a Judge:
The Sentence that the Law hath appointed to pass upon you for your Offences, and which this Court doth therefore award, is;
That you Sarah Dickenson shall goe to the place from whence you came, & from thence shall be drawn upon a Hurdle, to the place of Execution, and there shall be burned to Death.
And that you Edward Beale & Joshua Brenan shall goe from hence to the place from whence you came, and from thence to the place of Execution, where you shall be severally hanged by the Neck, till you are severally dead;
And the God of infinite Mercy be merciful to every one of your Souls.