[246] _M^r. Partrich his writing, in ans: to y^e questions._
What is y^t sodomiticall acte which is to be punished with death?
Though I conceive probable y^t 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 y^t sin which is
forbiden, Levit: 18. 22. & 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 y^t the law specifieth;
yet I dar not be con-[EK] (1.) because, Gen: 19. 5. y^e intended acte
of y^e Sodomits (who were y^e first noted maisters of this unnaturall
act of more then brutish filthines) is expressed by carnall copulation
of man with woman: Bring them out unto us, y^t we may know them;
(2^ly.) because it is observed among y^e nations wher this unnaturall
unclainnes is co[=m]ited, it is w^th penetration of y^e body; (3^ly.)
because, in y^e judiciall proceedings of y^e judges in England, y^e
indict: so rune (as I have been informed).
Q. How farr may a magistrat extracte a confession of a capitall crime
from a suspected and an accused person?
Ans. I conceive y^t a magistrate is bound, by carfull examenation of
circomstances & waighing of probabilities, to sifte y^e accused, and
by force of argumente to draw him to an acknowledgment of y^e 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 i[=n]ocente; if guilty, he shall be compelled to be his
owne accuser, when no other can, which is against y^e rule of justice.
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 y^t, in y^e 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 & firme to prove y^e facte as a witnes is, then one witnes
may suffice; for therin y^e end and equitie of y^e law is attained.
But to proceede unto sentence of death upon presumptions, wher
probably ther may subesse falsum, though ther be y^e testimony of one
wittnes, I supose it cannot be a safe way; better for such a one to be
held in safe custodie for further triall, I conceive.