_The Answer of M^r. Charles Chancy._
An contactus et fricatio us[q~] ad seminis effusi[=o]nem sine
penetratione corporis sit sodomia morte plectenda?
Q. The question is what sodomiticall acts are to be punished w^th
death, & what very facte committed, (ipso facto,) is worthy of death,
or if y^e facte it selfe be not capitall, what circomstances concuring
may make it capitall. The same question may be asked of rape, inceste,
beastialitie, unnaturall sins, presumtuous sins. These be y^e words of
y^e first question.
Ans: The answer unto this I will lay downe (as God shall directe by
his word & spirite) in these following conclusions: (1.) That y^e
judicials of Moyses, that are appendances to y^e morall law, &
grounded on y^e law of nature, or y^e decalogue, are i[=m]utable, and
ppetuall, w^ch all orthodox devines acknowledge; see y^e authors
following. Luther, Tom. 1. Whitenberge: fol. 435. & fol. 7.
Melanethon, in loc: com loco de conjugio. Calvin, 1. 4. Institu. c. 4.
sect. 15. Junious de politia Moysis, thes. 29. & 30. Hen: Bulin:
Decad. 3. sermo. 8. Wolf: Muscu. loc: com: in 6. precepti explicaci:
Bucer de regno Christi, 1. 2. c. 17. Theo: Beza, vol: 1. de hereti:
puniendis, fol. 154. Zanch: in 3. praecept: Ursin: Pt. 4. explicat.
contra John. Piscat: in Aphorismi Loc. de lege dei aphorism. 17. And
more might be added. I forbear, for brevities sake, to set downe their
very words; this being y^e constante & generall oppinion of y^e best
devines, I will rest in this as undoubtedly true, though much more
might be said to confirme it.
2. That all y^e si[=n]es mentioned in y^e question were punished with
death by y^e judiciall law of Moyses, as adultry, Levit: 20. 10. Deut:
22. 22. Esech: 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 (besids her husband) lyes with a married
woman, whether y^e man be maried or not, as in y^e place, Deut: 22.
22. or whosoever, being a maried man, lyeth with another woman (besids
his wife), as P. Martire saith, loc: com: which in diverce respects
maks y^e sine worse on y^e maried mans parte; for y^e Lord in this
law hath respect as well to publick honesty, (the sin being so
prejudicall to y^e church & state,) as y^e private wrongs (saith
Junious). So incest is to be punished with death, Levit: 20. 11. 22.
Beastiality likwise, Lev: 20. 15. Exod: 22. 19. Raps in like maner,
Deut: 22. 25. Sodomie in like sort, Levit: 18. 22. & 20. 13. And all
presumptuous sins, Numb: 15. 30. 31.
3. That y^e punishmente of these foule sines w^th death is grounded on
y^e law of nature, & is agreeable to the morall law. (1.) Because y^e
reasons a[=n]exed shew them to be perpetuall. Deut. 22. 22. So shalt
thou put away evill. Incest, beastiality, are caled confusion, &
wickednes. (2.) Infamie to y^e whole humane nature, Levit: 22. 12.
Levit: 18. 23. Raps are as murder, Deut: 22. 25. Sodomie is an
abomination, Levit: 22. 22. [247] No holier & juster laws can be
devised by any man or angele then have been by y^e Judg of all y^e
world, the wisdome of y^e Father, by whom kings doe raigne, &c. (3.)
Because, before y^e giving of y^e Law, this punishmente was anciently
practised, Gen: 26. 11. 38. 29. 39. 20. & even by the heathen, by y^e
very light of nature, as P. Martire shews. (4^ly.) Because y^e land is
defiled by such sins, and spews out y^e inhabitants, Levit: 18. 24,
25. & that in regard of those nations y^t were not acquainted w^th the
law of Moyses. 5. All y^e devins above specified consent in this, that
y^e unclean acts punishable with death by y^e law of God are not only
y^e grose acts of uncleannes by way of carnall copulation, but all y^e
evidente attempts therof, which may appeare by those severall words
y^t are used by y^e spirite of God, expressing y^e sins to be punished
with death; as y^e discovering of nakednes, Levit: 18. 20. which is
retegere pudenda, as parts p^r euphemismum (saith Junius), or detegere
ad cubandum (saith Willett), to uncover y^e shamefull parts of y^e
body (saith Ainsworth), which, though it reaches to y^e grose acts,
yet it is plaine it doth comprehend ye other foregoing immodest
attempts, as contactum, fricationem, &c.; likwise ye phrase of lying
with, so often used, doth not only signifie carnall copulation, but
other obscene acts, p^{r}ceding y^e same, is implyed in Pauls word
[Greek: arsenokoitai], 1. Cor: 6. 9. & men lying with men, 1. Tim: 1.
9. men defiling them selves w^th mankind, men burning with lust
towards men, Rom: 1. 26. & Levit: 18.[EL] 22. sodom & sin going after
strange flesh, Jud: v. 7. 8. and lying with mankind as with a woman,
Levit: 18. 22. Abulentis says y^t it signifies omnes modos quibus
masculus masculo abutatur, changing y^e naturall use into y^t which is
against nature, Rom: 1. 26. arrogare sibi cubare, as Junius well
translats Levit: 20. 15. to give consente to lye withall, so
approaching to a beast, & lying downe therto, Levit: 20. 16. ob solum
conatu[EM] (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:
Solicitatores[EN] alie[=n]um nupti[=a]m item[q~] matrimon[=i]um
interpellatores, etsi effectu sceleris potiri non possunt, propter
voluntatem tamen perniciosae libidinis extra ordinem puniuntur; nam
generale est quidem affect[=u] sine effectu [non] puniri, sed
contrarium observatur in atrocioribus & horum similibus.
5. In concluding punishments from y^e judiciall law of Moyses y^t is
perpetuall, we must often p^{r}ceed by analogicall proportion &
interpretation, as a paribus similibus, minore ad majus, &c.; for ther
will still fall out some cases, in every co[=m]one-wealth, which are
not in so many words extante in holy write, yet y^e substance of y^e
matter in every kind (I conceive under correction) may be drawne and
concluded out of y^e scripture by good consequence of an equevalent
nature; as, for example, ther is no express law against destroying
conception in y^e wombe by potions, yet by anologie with Exod: 21. 22,
23. we may reason y^t life is to be given for life. Againe, y^e
question, An contactus & fricatio, &c., and methinks y^t place Gen:
38. 9. in y^e punishmente of Onans sin, may give some cleare light to
it; it was (saith Pareus) 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, illicit[=a] effusionem, &
corruption[=e], &c., very pertinente to this case. That allso is
considerable, Deut: 25. 11, 12. God comanded y^t, if any wife drue
nigh to deliver her husband out of y^e hand of him y^t smiteth him,
&c., her hand should be cutt off. Yet such a woman in y^t case might
say much for her selfe, y^t what she did was in trouble & perplexitie
of her minde, & in her husbands defence; yet her hand must be cutt of
for such impuritie (and this is morall, as I conceive). Then we may
reason from y^e less to y^e greater, what greevous sin in y^e sight of
God it is, by y^e instigation of burning lusts, set on fire of hell,
to proceede to contactum & fricationem ad emissionem seminis, &c., &
y^t contra naturam, or to attempte y^e grosse acts of unnaturall
filthines. Againe, if y^t unnaturall lusts of men with men, or woman
with woman, or either with beasts, be to be punished with death, then
a pari naturall lusts of men towards children under age are so to be
punished.
6. Circumstantiae variant vis e actiunes, (saith y^e lawiers,) &
circomstances in these cases cannot possibly be all reck[=e]d up; but
God hath given laws for those causes & cases that are of greatest
momente, by which others are to be judged of, as in y^e differance
betwixte chanc medley, & willfull murder; so in y^e sins of
uncleannes, it is one thing to doe an acte of uncleannes by sudden
temptation, & another to lye in waite for it, yea, to make a co[=m]une
practise of it; this mightily augments & multiplies y^e sin. Againe,
some si[=n]es of this nature are simple, others compound, as y^t is
simple adultrie, or inceste, or simple sodomie; but when ther is a
mixture of diverce kinds of lust, as when adultery & sodomie &
[p=]^{r}ditio seminis goe togeather in y^e same acte of uncleannes,
this is capitall, double, & trible. Againe, when adultrie or sodomie
is co[=m]ited by [p=]fessors or church members, I fear it coms too
near y^e sine of y^e preists daughters, forbidden, & comanded to be
punished, Levit: 21. 9. besids y^e presumption of y^e si[=n]es of
such. Againe, when uncleannes is comited with those whose chastity
they are bound to [*)p]serve, this coms very nere the incestious
copulation, I feare; but I must hasten to y^e other questions.
[248] 2. Question y^e second, upon y^e pointe of examination, how farr
a magistrate may extracte a confession from a delinquente to accuse
him selfe in a capitall crime, seeing Nemo tenetur prodere seipsum.
Ans: The words of y^e question may be understood of extracting a
confession from a delinquente either by oath or bodily tormente. If it
be mente of extracting by requiring an oath, (ex officio, as some call
it,) & that in capitall crimes, I fear it is not safe, nor warented by
Gods word, to extracte a confession from a delinquente by an oath in
matters of life and death. (1.) Because y^e practise in y^e Scripturs
is other wise, as in y^e case of Achan, Jos: 7. 19. Give, I pray y^e,
glorie to y^e Lord God of Israll, and make a confession to him, & tell
me how thou hast done. He did not compell him to sweare. So when as
Johnathans life was indangered, 1. Sam. 14. 43. Saule said unto
Johnathan, Tell me what thou hast done; he did not require an oath.
And notable is y^t, Jer: 38. 14. Jeremiah was charged by Zedechias,
who said, I will aske the a thing, hide it not from me; & Jeremiah
said, If I declare it unto y^e, wilt thou not surely put me to death?
impling y^t, in case of death, he would have refused to answer him.
(2.) Reason shews it, & experience; Job: 2. 4. Skin for skin, &c. It
is to be feared y^t those words (whatsoever a man hath) will
comprehend also y^e conscience of an oath, and y^e fear of God, and
all care of religion; therfore for laying a snare before y^e guiltie,
I think it ought not to be donn. But now, if y^e question be mente of
inflicting bodyly torments to extracte a confession from a
mallefactor, I conceive y^t in maters of higest consequence, such as
doe conceirne y^e saftie or ruine of stats or countries, magistrats
may proceede so farr to bodily torments, as racks, hote-irons, &c., to
extracte a conffession, espetially wher presumptions are strounge; but
otherwise by no means. God sometims hids a sinner till his wickednes
is filled up.
Question 3. In what cases of capitall crimes, one witnes with other
circumstances shall be sufficente to convicte, or is ther no
conviction without 2. witneses?
Deut: 19. 25. God hath given an express rule y^t in no case one
witness shall arise in judgmente, espetially not in capitall cases.
God would not put our lives into y^e power of any one toungue. Besids,
by y^e examination of more wittneses agreeing or disagreeing, any
falshood ordenarilly may be discovered; but this is to be understood
of one witnes of another; but if a man witnes against him selfe, his
owne testimony is sufficente, as in y^e case of y^e Amalakite, 2. Sam:
1. 16. Againe, when ther are sure & certaine signes & evidences by
circumstances, ther needs no witnes in this case, as in y^e bussines
of Adoniah desiring Abishage y^e Shunamite to wife, that therby he
might make way for him selfe unto y^e kingdome, 1. King: 2. 23, 24.
Againe, probably by many concurring circumstances, if probability may
have y^e strength of a witnes, somthing may be this way gathered, me
thinks, from Sallomons judging betweexte y^e true mother, and y^e
harlote, 1. King. 3. 25. Lastly, I see no cause why in waighty
matters, in defecte of witneses & other proofes, we may not have
recourse to a lott, as in y^e case of Achan, Josu: 7. 16. which is a
clearer way in such doubtfull cases (it being solemnely & religiously
performed) then any other that I know, if it be made y^e last refuge.
But all this under correction.
The Lord in mercie directe & prosper y^e desires of his servants that
desire to walk before him in truth & righteousnes in the
administration of justice, and give them wisdome and largnes of harte.