compared to the wringing of the nose, Pro: 30. 33.' which is as well forbiden the fathers of the countrie as of the family, Ephe. 6. 4.2 as produsing many sad and dangerous effects. That an oath (ex officio) for shuch a purpose is no due means, hath been abundantly proved by the godly learned, and is well known." Q. 3. In what cases of capitall crimes one witnes with other circomstances shall be sufficiente to convince? or is ther no conviction without.2. witneses? 4 1 "When one churneth milke, he bringeth forth butter: and hee that wringeth his nose, causeth blood to come out, so he that forceth wrath, bringeth forth strife." "And ye fathers, provoke not your children to wrath: but bring them up in instruction and information of the Lord." The Court of High Commission was empowered to convict by testimony to be obtained "by all other ways and means" which could be devised. "The meaning of this vague clause was soon evident to all. The Court began to make use of a method of extracting information from unwilling witnesses, which was known as the ex-officio oath. It was an oath tendered to an accused person, that he would give true answers to such questions as might be put to him. He was forced not only to accuse himself, but he was liable to bring into trouble his friends, concerning whom the Court was as yet possessed of no certain information." Gardiner, History of England, 1603–1642, 1. 36. This method of procedure was particularly hateful to the Puritans, and the right to apply it was gravely questioned. The subject is noticed in Neal, History of the Puritans (1837), 1. 271, 342, 435. ♦ When on trial for his life Sir Walter Ralegh demanded the production of at least two witnesses in open court. In support of this contention he cited two acts of Edward VI (1 Ed. VI. ch. 12, and 6 Ed. VI. ch. ii), and one of Philip and Mary (1 & 2 Philip and Mary, ch. 10) confirming them. But Chief Justice Popham decided against him, on the ground that in 1556 the Judges had dealt in consultation with this very question and had decided that the later act had repealed the earlier, and they were thus bound to fall back upon the old custom by which they were to be content with one accuser, who need not be produced in court. So far, therefore, as English precedent showed, one witness would suffice. Gardiner, History of England, 1. 99. This conclusion was reversed soon after, and the contrary practice has been recognized for two centuries. Reyner and Partridge followed the Bible; beginning with a like opinion, Chauncy concluded by having recourse, in cases of open doubt, to decision by lot. Even in causes other than capital, this matter of two witnesses was not neglected. As in the case of Thomas James, pastor of the church at Charlestown, the brethren "had not proceeded with him in a due order for of the two witnesses produced, one was the accuser." Winthrop, I. *182. Ans: In taking away the life of man, one witnes alone will not suffice, ther must be tow, or that which is instare; the texts are manifest, Numb: 35. 30. Deut: 17. 6. and 19. 15.1 2ly. Ther may be conviction by one witnes, and some thing that hath the force of another, as the evidencie of the fact done by shuch an one, and not an otther; unforced confession when ther was no fear or danger of suffering for the fact, hand writings acknowledged and confessed. JOHN REYNOR.[246] Mr. Partrich his writing, in ans[wer] to the questions. What is that sodomiticall acte which is to be punished with death? Though I conceive probable that a voluntary effusion of seed per modum concubitus of man with man, as of a man with woman, though in concubitu ther be not penetratio corporis, is that sin which is forbiden, Levit: 18. 22. and adjudged to be punished with death, Levit: 20. 13. because, though ther be not penetratio corporis, yet ther may be similitudo concubitus muliebris, which is that the law specifieth; yet I dar not be con-2 (1.) because, Gen: 19. 5. the intended acte of the Sodomites (who were the first noted maisters of this unnaturall art of more then brutish filthines)3 is expressed by carnall 1 The texts adduced by Reyner are: "30. Whosoever killeth any person, the Iudge shall slay the murtherer, through witnesses: but one witnesse shall not testifie against a person to cause him to die." "6. At the mouth of two or three witnesses shall he that is worthy of death, die: but at the mouth of one witnesse, he shall not die." "15. One witnes shall not rise against a man for any trespasse, or for any sinne, or for any fault that he offendeth in, but at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be stablished." See p. 239, supra. 2 "Confident?" DEANE. The punishment of a city at the hands of an offended deity for its wickedness by some overwhelming catastrophe is found in the mythic stories of many peoples, and usually with a moral attached, inculcated by the saving of one good man and his family. "It is now beyond gainsaying that naïve races, in viewing certain striking phenomena of nature, suggestive of special divine interventions, are led by a mental law, to form mythic narratives respecting calamities which have happened to individuals or to populations under circumstances which in the most widely separated regions resemble each other. The Sodom-story in the traditional text can be in its main features explained as such a mythic narrative, and cannot otherwise be accounted copulation of man with woman: Bring them out unto us, that we may know them; (2ly.) because it is observed among the nations wher this unnaturall unclainnes is commited, it is with penetration of the body; (3ly.) because, in the judiciall proceedings of the judges in England, the indict[ments] so rune (as I have been informed).1 Q. How farr may a magistrate extracte a confession of a capitall crime from a suspected and an accused person? Ans. I conceive that a magistrate is bound, by carfull examenation of circomstances and waighing of probabilities, to sifte the accused, and by force of argumente to draw him to an acknowledgment of the truth; but he may not extracte a confession of a capitall crime from a suspected person by any violent means, whether it be by an oath imposed, or by any punishmente inflicted or threatened to be inflicted, for so he may draw forth an acknowledgmente of a crime from a fearfull innocente; if guilty, he shall be compelled to be his owne accuser, when no other can, which is against the rule of justice.2 for in any way that is not open to well-founded critical objection." This interpretation tends to disprove that "the peoples with whom the Israelites had intercourse were so much beneath them in morality as the traditional text represents. Misunderstood mythology is the true source of the terrible narratives in Gen. XIX, 1-11. Judg. XIX, 15-30." T. K. Cheyne, in Encyclopedia Biblica, Iv. 4666. 1 In Lambarde's Eirenarcha, or of the Office of the Iustices of Peace, first printed in 1581 and issued seven times between 1582 and 1610, he classes among "felonies in Lay causes" the "detestable vice of Buggery with man or beast, 25 H. 8. c. 6 & 5 El. c. 17." (Book Iv, cap. 4.) And in the forms of indictments, presentments, etc., appended to the volume he gives that for this crime "ac cum dicto I. S. puero praedict, sceleratissime, felonice, ac contra naturae ordinem, tunc ibidem rem habuit veneream, dictumque puerum carnaliter cognovit, ac sic cum eodem puero peccatum illud horribile, ac Zodomiticum Anglice vocatum Buggerie, ad tunc ibidem felonice commisit, ac perpetravit, contra pacem,” etc. Lambarde's compilation was known at New Plymouth. 2 The Massachusetts Body of Liberties (1641), § 45, provided: "No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty, After which if the cause be of that nature, That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.” This provision was incorporated in the first compilation of laws in 1648. |