[244] Worthy & beloved S^r:
Your letter (with y^e questions inclosed) I have comunicated with our
Assistants, and we have refered y^e answer of them to such Rev[=e]^d
Elders as are amongst us, some of whose answers thertoo we have here
sent you inclosed, under their owne hands; from y^e rest we have not
yet received any. Our farr distance hath bene y^e reason of this long
delay, as also y^t they could not conferr their counsells togeather.
For our selves, (you know our breedings & abillities,) we rather
desire light from your selves, & others, whom God hath better inabled,
then to presume to give our judgments in cases so difficulte and of so
high a nature. Yet under correction, and submission to better
judgments, we propose this one thing to your prudent considerations.
As it seems to us, in y^e case even of willfull murder, that though a
man did smite or wound an other, with a full pourpose or desire to
kill him, (w^ch is murder in a high degree, before God,) yet if he
did not dye, the magistrate was not to take away y^e others life.[EJ]
So by proportion in other grosse & foule sines, though high attempts &
nere approaches to y^e same be made, and such as in the sight &
account of God may be as ill as y^e accomplishmente of y^e foulest
acts of y^t sine, yet we doute whether it may be safe for y^e
magistrate to proceed to death; we thinke, upon y^e former grounds,
rather he may not. As, for instance, in y^e case of adultrie, (if it
be admitted y^t it is to be punished w^{th} death, which to some of us
is not cleare,) if y^e body be not actually defiled, then death is not
to be inflicted. So in sodomie, & beastialitie, if ther be not
penetration. Yet we confess foulnes of circomstances, and frequencie
in y^e same, doth make us remaine in y^e darke, and desire further
light from you, or any, as God shall give.
As for y^e 2. thing, concerning y^e Ilanders? we have no conversing
with them, nor desire to have, furder then necessitie or humanity may
require.
And as for trade? we have as farr as we could ever therin held an
orderly course, & have been sory to see y^e spoyle therof by others,
and fear it will hardly be recovered. But in these, or any other
things which may concerne y^e co[=m]one good, we shall be willing to
advise & concure with you in what we may. Thus w^{th} my love
remembered to your selfe, and y^e rest of our worthy friends, your
Assistants, I take leave, & rest,
Your loving friend,
W. B.
Plim: 17. 3. month, 1642.
Now follows y^e ministers answers. And first Mr. Reynors.
Qest: What sodmiticall acts are to be punished with death, & what very
facte (ipso facto) is worthy of death, or, if y^e fact it selfe be not
capitall, what circomstances concurring may make it capitall?
Ans: In y^e judiciall law (y^e moralitie wherof concerneth us) it is
manyfest y^t carnall knowledg of man, or lying w^{th} man, as with
woman, cum penetratione corporis, was sodomie, to be punished with
death; what els can be understood by Levit: 18. 22. & 20. 13. & Gen: 19.
5? 2^ly. It seems allso y^t this foule sine might be capitall, though
ther was not penitratio corporis, but only contactus & fricatio us[q~]
ad effusionem seminis, for these reasons: [245] 1. Because it was sin to
be punished with death, Levit. 20. 13. in y^e man who was lyen withall,
as well as in him y^t lyeth with him; now his sin is not mitigated wher
ther is not penitration, nor augmented wher it is; wheras its charged
upon y^e women, y^t they were guilty of this unnaturall sine, as well as
men, Rom. 1. 26. 27. Y^e same thing doth furder apeare, 2. because of
y^t proportion betwexte this sin & beastialitie, wherin if a woman did
stand before, or aproach to, a beast, for y^t end, to lye downe therto,
(whether penetration was or not,) it was capitall, Levit: 18. 23. & 20.
16. 3^{ly}. Because something els might be equivalent to penetration
wher it had not been, viz. y^e fore mentioned acts with frequencie and
long continuance with a high hand, utterly extinguishing all light of
nature; besids, full intention and bould attempting of y^e foulest acts
may seeme to have been capitall here, as well as coming presumptuously
to slay with guile was capitall. Exod: 21. 14.
Yet it is not so manyfest y^t y^e same acts were to be punished with
death in some other sines of uncleannes, w^ch yet by y^e law of God were
capitall crimes; besids other reasons, (1.) because sodomie, & also
beastialitie, is more against y^e light of nature then some other
capitall crimes of unclainnes, which reason is to be attended unto, as
y^t which most of all made this sin capitall; (2.) because it might be
co[=m]ited with more secrecie & less suspition, & therfore needed y^e
more to be restrained & suppresed by y^e law; (3^ly) because ther was
not y^e like reason & degree of si[=n]ing against family & posteritie in
this sin as in some other capitall sines of uncleannes.
2. Quest: How farr a magistrate may extracte a confession from a
delinquente, to acuse him selfe of a capitall crime, seeing Nemo tenetur
prodere seipsum.
Ans: A majestrate cannot without sin neglecte diligente inquision into
y^e cause brought before him. Job 29. 16. Pro: 24. 11. 12. & 25. 2.
(2^ly.) If it be manifest y^t a capitall crime is committed, & y^t
comone reporte, or probabilitie, suspition, or some complainte, (or y^e
like,) be of this or y^t person, a magistrate ought to require, and by
all due means to procure from y^e person (so farr allready bewrayed) a
naked confession of y^e fact, as apears by y^t which is morall & of
perpetuall equitie, both in y^e case of uncertaine murder, Deut: 21. 1.
9. and slander, Deut: 22. 13. 21; for though nemo tenetur prodere
seipsum, yet by that w^ch may be known to y^e magistrat by y^e forenamed
means, he is bound thus to doe, or els he may betray his countrie &
people to y^e heavie displeasure of God, Levit: 18. 24. 25. Jos: 22. 18.
Psa: 106. 30; such as are i[=n]ocente to y^e sinfull, base, cruell lusts
of y^e profane, & such as are delinquents, and others with them, into
y^e hands of y^e stronger temptations, & more bouldness, & hardnes of
harte, to co[=m]ite more & worse villany, besids all y^e guilt & hurt he
will bring upon him selfe. (3^ly.) To inflicte some punishmente meerly
for this reason, to extracte a conffession of a capitall crime, is
contrary to y^e nature of vindictive justice, which always hath respecte
to a kno[=w] crime co[=m]itited by y^e person punished; and it will
therfore, for any thing which can before be knowne, be y^e provocking
and forcing of wrath, compared to y^e wringing of y^e nose, Pro: 30. 33.
which is as well forbiden y^e fathers of y^e countrie as of y^e family,
Ephe. 6. 4. as produsing many sad & dangerous effects. That an oath (ex
officio) for such a purpose is no due means, hath been abundantly proved
by y^e godly learned, & 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?
Ans: In taking away y^e life of man, one witnes alone will not suffice,
ther must be tow, or y^t which is instar; y^e texts are manifest, Numb:
35. 30. Deut: 17. 6. & 19. 15. 2^ly. Ther may be conviction by one
witnes, & some thing y^t hath y^e force of another, as y^e evidencie of
y^e fact done by such an one, & not an other; unforced confession when
ther was no fear or danger of suffering for y^e fact, hand writings
acknowledged & confessed.