RALPH PARTRICH.

_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.

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