Part 38

2. An other reason may be, that it may be in this case as it is with waters when their streames are stopped or da[=m]ed up, when they gett passage they flow with more violence, and make more noys and disturbance, then when they are suffered to rune quietly in their owne chanels. So wikednes being here more stopped by strict laws, and y^e same more nerly looked unto, so as it cannot rune in a comone road of liberty as it would, and is inclined, it searches every wher, and at last breaks out wher it getts vente.

3. A third reason may be, hear (as I am verily perswaded) is not more evills in this kind, nor nothing nere so many by proportion, as in other places; but they are here more discoverd and seen, and made publick by due serch, inquisition, and due punishment; for y^e churches looke narrowly to their members, and y^e magistrats over all, more strictly then in other places. Besids, here the people are but few in comparison of other places, which are full & populous, and lye hid, as it were, in a wood or thickett, and many horrible evills by y^t means are never seen nor knowne; wheras hear, they are, as it were, brought into y^e light, and set in y^e plaine feeld, or rather on a hill, made conspicuous to y^e veiw of all.

But to proceede; y^er came a letter from y^e Gov^r in y^e Bay to them here, touching matters of y^e forementioned nature, which because it may be usefull I shall hear relate it, and y^e passages ther aboute.

S^r: Having an opportunitie to signifie y^e desires of our Generall Court in toow things of spetiall importance, I willingly take this occasion to imparte them to you, y^t you may imparte them to y^e rest of your magistrats, and also to your Elders, for counsell; and give us your advise in them. The first is concerning heinous offences in point of uncleannes; y^e perticuler cases, with y^e circomstances, and y^e questions ther upon, you have hear inclosed. The 2. thing is concerning y^e Ilanders at Aquidnett; y^t seeing the cheefest of them are gone from us, in offences, either to churches, or co[=m]one welth, or both; others are dependants on them, and y^e best sorte are such as close with them in all their rejections of us. Neither is it only in a faction y^t they are devided from us, but in very deed they rend them selves from all y^e true churches of Christ, and, many of them, from all y^e powers of majestracie. We have had some experience hereof by some of their underworkers, or emissaries, who have latly come amongst us, and have made publick defiance against magistracie, ministrie, churches, & church covenants, &c. as antichristian; secretly also sowing y^e seeds of Familisme, and Anabaptistrie, to y^e infection of some, and danger of others; so that we are not willing to joyne with them in any league or confederacie at all, but rather that you would consider & advise with us how we may avoyd them, and keep ours from being infected by them. Another thing I should mention to you, for y^e maintenance of y^e trad of beaver; if ther be not a company to order it in every jurisdition among y^e English, which companies should agree in generall of their way in trade, I supose that y^e trade will be overthrowne, and the Indeans will abuse us. For this cause we have latly put it into order amongst us, hoping of incouragmente from you (as we have had) y^t we may continue y^e same. Thus not further to trouble you, I rest, with my loving remembrance to your selfe, &c.

Your loving friend, RI: BELLINGHAM.

Boston, 28. (1.) 1642.

The note inclosed follows on y^e other side.

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. 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: 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.

JOHN REYNOR.

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- (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.