Q. In what cases of capitall crimes one witnes with other circomstances shall be sufficente to convicte; or is ther no conviction without two witnesses?

Ans: I conceive that, in the case of capitall crimes, ther can be no safe proceedings unto judgmente without too witnesses, as Numb: 35. 30. Deut: 19. 15. excepte ther can some evidence be prodused as aveilable and firme to prove the facte as a witnes is, then one witnes may suffice; for therin the end and equitie of the law is attained. But to proceede unto sentence of death upon presumptions, wher probably ther may subesse falsum, though ther be the testimony of one wittnes, I supose it cannot be a safe way; better for shuch a one to be held in safe custodie for further triall, I conceive.

RALPH PARTRICH.1

The Answer of Mr. Charles Chancy.

An contactus et fricatio usque ad seminis effusionem sine penetratione corporis sit sodomia morte plectenda?

Q. The question is what sodomiticall acts are to be punished with death, and what very facte committed, (ipso facto,) is worthy of death, or if the facte it selfe be not capitall, what circomstances concuring may make it capital. The same question may be asked of rape, inceste, beastialitie, unnaturall sins, presumtuous sins? These be the words of the first question.

Ans: The answer unto this I will lay downe (as God shall directe by his word and spirite) in these following conclusions: (1.) That the judicials of Moyses, that are appendances to the morall law, and grounded on the law of nature, or the decalogue, are immutable, and perpetuall, which all orthodox devines acknowledge; see the authors following. Luther, Tom. 1. Whitenberge: fol. 435. and fol. 7.2 Me1 In the inventory of his estate, taken April 25, 1658, a library of four hundred volumes is mentioned. N. E. Hist. Gen. Reg., v. 387.

2 Numerous tracts and volumes of Luther were printed at Wittenberg, a place inseparably connected with his life work. The university in the town had been opened in 1502 by the Elector Frederick the Wise of Saxony, who used for its beginnings a sum of money obtained from the sale of Indulgences some years before, and retained in the country. The university in practice belonged to the Augustinian Eremites,

lancthon, in loc: com loco deconjugio.1 Calvin, l. 4. Institu. c. 4. sect. 15.2 Junious de politia Moyses, thes. 29. and 30.3 Hen: Bulin: Decad. 3. sermo. 8. Wolf: Muscu. loc: com: in 6 precepti explicaci: Bucer de regno Christi, l. 2. c. 17.6 Theo: Beza, vol: 1. de hereti: puniendis, fol. 154. Zanch: in 3. precept: Ursin: Pt. 4. explicat. contra John. Piscat: in Aphorismi loc. de lege dei aphorism. 17.10 And more might be added. I forbear, for brevities sake, to set downe their very words; this being the constante and generall oppinion of the best devines, I will rest in this as undoubtedly true, though much more might be said to confirme it.

2. That all the sinnes mentioned in the question were punished with death by the judiciall law of Moyses, as adultry, Levit: 20. 10.

and to it Luther came in 1508, to teach the Dialectic and Physics of Aristotle and to preach.

1 Probably this refers to Melanchthon's Defensio Conivgii Sacerdotum pia et erudita, first printed in 1540, and again in 1561, with the title De Conivgio piae commonefactiones collectae a Philippo Melanthone.

2 This book and chapter of the Institutes treat of "De statu veteris Ecclesiae et ratione gubernandi quae in usu fuit ante Papatum."

Franciscus Junius [François du Jon] (1545-1602), issued, in 1578, the first part of a translation into Latin of the Old Testament. The title mentioned in Bradford is De Politicae Mosis Observatione, quid in populo Dei observari, quid non observari ex ea oportet, postquam gratia et veritas per Christum facta est, et Evangelio promulgata, etc. Lugduni Batavorum, 1593.

Heinrich Bullinger (1504-1575), Sermonum decades quinque, de potissimis Christianae religionis capitibus, in tres tomos digestae. Tiguri, 1557. An English translation appeared in 1557, and it is included in the issues of the Parker Society, 1849. 'Wolfgang Musculus [Müsslein or Meusslin] (1497-1563), Loci communes Sacrae Theologiae, jam recensa recogniti et emendati. Basileae, 1573.

Martin Bucer (1491-1550?), De regno Christi Jesu. Basileae, 1577.

▾ Théodore de Bèze (1519-1605), De Haereticis a Ciuili Magistratu puniendis libellus, aduersus M. Bellii farraginem, et nouorum Academicorum sectam. [Geneva?], 1554. • Girolamo Zanchi (1516-1590), professor of theology at Heidelberg, and a voluminous writer on theology.

• Zacharias Ursinus (1534-1583), Corpus doctrinae orthodoxae, Geneva, 1612, of which an English translation by H. Parry appeared in 1645. Three volumes of Ursini ... Opera theologica, appeared in Heidelberg in 1612.

10 Johann Piscator, of Herborn, Aphorismi Doctrinae Christianae ex Institutione Calvini excerpti. An English version was printed in 1596.

Deut: 22. 22. Ecech: 16. 38. Jhon. 8. 5. which is to be understood not only of double adultrie, when as both parties are maried, (as some conceive,) but whosoever (besides her husband) lyes with a married woman, whether the man be maried or not, as in the place, Deut: 22. 22. or whosoever, being a maried man, lyeth with another woman (besides his wife), as P. Martire1 saith, loc: com: which in diverce respects makes the sine worse on the maried mans parte; for the Lord in this law hath respect as well to publick honesty, (the sin being so prejudicall to the church and state,) as the private wrongs (saith Junious). So incest is to be punished with death, Levit: 20. 11. 22 [21]. Beastiality likwise, Lev: 20. 15. Exod: 22. 19. Rapes in like maner, Deut: 22. 15 [25]. Sodomie in like sort, Levit: 18. 22. and 20. 13. And all presumptuous sins, Numb: 15. 30. 31.2

3. That the punishmente of these foule sines with death is grounded on the law of nature, and is agreable to the morall law. (1.) Because the reasons annexed shew them to be perpetuall. Deut. 22. 22. So shalt thou put away evill. Incest, beastiality, are caled confusion, and wickednes. (2.) Infamie to the whole humane nature, Levit: 22 [20]. 12. Levit: 18. 23. Rapes are as murder, Deut: 22. 25. Sodomie is an abomination, Levit: 22 [18].22. [247] No holier and juster laws can be devised by any man or angele then have been by the Judge of all the world, the wisdome of the Father, by whom kings doe raigne, etc. (3.) Because, before the giving of the Law, this punishmente was anciently practised, Gen: 26. 11. 38. 29 [24?]·39.20. and even by the heathen, by the very light of nature, as P. Martire shews. (4ly.) Because the land is defiled by shuch sins, and spews out the inhabitants, Levit: 18. 24, 25. and that in regard of those nations that were not acquainted with the law of Moyses. 5. All the devines above speci

1 Pietro Martire Vermigli (1500-1562), known as Peter Martyr. See Dictionary of National Biography, LVIII. 253. The reference in the text is to his Loci Communes sacrarum Literarum, published at Zürich in 1563, and in English in 1583.

2 "But the person that doeth ought presumptuously, whether he be borne in the land, or a stranger, the same blasphemeth the Lord: therefore that person shall be cut off from among his people.

"Because he hath despised the word of the Lord, and hath broken his commandement: that person shall be utterly cut off: his iniquitie shall be upon him."

fied consent in this, that the unclean acts punishable with death by the law of God are not only the grose acts of uncleannes by way of carnall copulation, but all the evidente attempts therof, which may appeare by those severall words that are used by the spirite of God, expressing the sins to be punished with death; as the discovering of nakednes, Levit: 18. 20. which is retegere pudenda, as parts per euphemismum (saith Junius), or detegere ad cubandum (saith Willett1), to uncover the shamefull parts of the body (saith Ainsworth 2), which, though it reaches to the grose acts, yet it is plaine it doth comprehend the other foregoing immodest attempts, as contactum, fricationem, etc.; likwise the phrase of lying with, so often used, doth not only signifie carnall copulation, but other obscure [obscene?] acts, preceding the same, is implyed in Pauls word ȧpoevoкoîтal, 1. Cor: 6. 9. and men lying with men, 1. Tim: 1. 9 [10]. men defiling them selves with mankind, men burning with lust towards men, Rom: 1. 26. and Levit: 8 [18.] 22. sodomy and sin going after strange flesh, Jud: v[erses]. 7. 8. and lying with mankind as with a woman, Levit: 18. 22. Abulentis says that it signifies omnes modos quibus masculus masculo abutatur, changing the naturall use into that which is against nature, Rom: 1. 26. arogare sibi cubare, as Junius well translates Levit: 20. 15. to give consente to lye withall, so approaching to a beast, and lying downe therto, Levit: 20. 16. ob solum contie[conatu] (saith Willett) or for going about to doe it. Add to this a notable speech of Zepperus de legibus' (who hath enough to end controversies of this nature). L. 1. he saith: In crimine adulterii voluntas (understanding manifeste) sine effectu subsecuto de jure attenditur; and he proves it out of good laws, in these words: solicitations [solicitatores] alienum nuptiam itemque matrimonium interpellatores, etsi effectu sceleris potiri non possunt, propter voluntatem tamen perni

1 Andrew Willet (1562-1621), whose writings are listed in the Dictionary of National Biography, LXI. 288.

2 Henry Ainsworth.

Abulentis. Probably Alonso des Tostado, bishop of Avila, who wrote in thirteen volumes Commentaria in Pentateuchum, printed in Venice, in 1596.

Wilhelm Zepper, Legum Mosaicarum forensium Explanatio. Herbornae Nassoviorum, 1604.

ciosæ libidinis extra ordinem puniuntur; nam generale est quidem effectum sine effectu [non] puniri, sed contrarium observatur in atrocioribus et horum similibus.

5. In concluding punishments from the judiciall law of Moyses that is perpetuall, we must often proceed by analogicall proportion and interpretation, as a paribus similibus, minore ad majus, etc.; for ther will still fall out some cases, in every commone-wealth, which are not in so many words extante in holy write, yet the substance of the matter in every kind (I conceive under correction) may be drawne and concluded out of the scripture by good consequence of an equevalent nature; as, for example, ther is no express law against destroying conception in the wombe by potions, yet by anologie with Exod: 21. 22, 23. we may reason that life is to be given for life. Againe, the question, An contactus et fricatio, etc., and methinks that place Gen: 38. 9. in the punishmente of Onans sin, may give some cleare light to it; it was (saith Pareus 1) beluina crudelitas quam Deus pari loco cum parricidio habuit, nam semen corrumpere, quid fuit aliud quam hominem ex semine generandum occidere? Propterea juste a Deo occisus est. Observe his words. And againe, Discamus quantopere Deus. abominetur omnem seminis genitalis abusum, illicitam effusionem, et corruptionem, etc., very pertinente to this case. That allso is considerable, Deut: 25. 11, 12. God comanded that, if any wife drue nigh to deliver her husband out of the hand of him that smiteth him, etc., her hand should be cutt off. Yet shuch a woman in that case might say much for her selfe, that what she did was in trouble and perplexitie of her minde, and in her husbands defence; yet her hand must be cutt of for shuch impuritie (and this is morall, as I conceive). Then we may reason from the less to the greater, what greevous sin in the sight of God it is, by the instigation of burning lusts, set on fire of hell, to proceede to contactum and fricationem ad emissionem seminis, etc., and that contra naturam, or to attempte the grosse acts of unnaturall filthines. Againe, if that unnaturall lusts of men with men, or woman with woman, or either with beasts, be to be punished with death, then

1 David Pareus (1548-1622), whose German name was Wängler, was professor of theology at Heidelberg.