USA > Massachusetts > Plymouth County > Plymouth > Bradford's history "of Plimoth plantation" from the original manuscript > Part 32
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to you, for ye maintenance of ye trad of beaver; if ther be not a company to order it in every jurisdition among ye English, which companies should agree in generall of their way in trade, I supose that ye trade will be overthrowne, and ye 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) yt we may continue ye 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 ye other side .*
[244] Worthy & beloved ST:
Your letter (with ye questions inclosed) I have comunicated with our Assistants, and we have refered ye answer of them to such Reved Elders as are amongst us, some of whose answers thertoo we have here sent you inclosed, under their owne hands ; from ye rest we have not yet received any. Our farr distance hath bene ye reason of this long delay, as also yt 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 cor- rection, and submission to better judgments, we propose this one thing to your prudent considerations. As it seems to us, in ye case even of willfull murder, that though a man did smite or wound an other, with a full pourpose or desire to kill him, (wch is murder in a high degree, before God,) yet if he
* A leaf is here wanting in the original manuscript, it having been cut out.
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did not dye, the magistrate was not to take away ye others life .* So by proportion in other grosse & foule sines, though high attempts & nere approaches to ye same be made, and such as in the sight & account of God may be as ill as ye accomplishmente of ye foulest acts of yt sine, yet we doute whether it may be safe for ye magistrate to proceed to death ; we thinke, upon ye former grounds, rather he may not. As, for instance, in ye case of adultrie, (if it be admitted yt it is to be punished wth death, which to some of us is not cleare,) if ye body be not actually defiled, then death is not to be inflicted. So in sodomie, & beastialitie, if ther be not pene- tration. Yet we confess foulnes of circonstances, and fre- quencie in ye same, doth make us remaine in ye darke, and desire further light from you, or any, as God shall give.
As for ye 2. thing, concerning ye Ilanders? we have no con- versing 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 ye spoyle therof by others, and fear it will hardly be recovered. But in these, or any other things which may concerne ye comone good, we shall be willing to advise & concure with you in what we may. Thus wth my love remembered to your selfe, and ye rest of our worthy friends, your Assistants, I take leave, & rest,
Your loving friend, W. B.
Plim : 17. 3. month, 1642.
Now follows ye ministers answers. And first Mr. Reynors.
* Exod : 21. 22. Deu : 19. 11. Num : 35. 16. 18.
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Qest : What sodmiticall acts are to be punished with death, & what very facte (ipso facto) is worthy of death, or, if ye fact it selfe be not capitall, what circonstances concurring may make it capitall?
Ans : In ye judiciall law (ye moralitie wherof concerneth us) it is manyfest yt carnall knowledg of man, or lying wth 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? 2ly. It seems allso yt this foule sine might be capitall, though ther was not penitratio corporis, but only contactus & fricatio usg ad effusionem seminis, for these reasons : [245] 1. Because it was sin to be punished with death, Levit. 20. 13. in ye man who was lyen withall, as well as in him yt lyeth with him; now his sin is not mitigated wher ther is not penitration, nor augmented wher it is; wheras its charged upon ye women, yt they were guilty of this unnaturall sine, as well as men, Rom. 1. 26. 27. Ye same thing doth furder apeare, 2. because of yt proportion betwexte this sin & beastialitie, wherin if a woman did stand before, or aproach to, a beast, for yt end, to lye downe therto, (whether penetration was or not,) it was capitall, Levit: 18. 23. & 20. 16. 3ly. Because something els might be equivalent to penetration wher it had not been, viz. ye 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 ye 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 yt ye same acts were to be pun- ished with death in some other sines of uncleannes, wch yet by ye law of God were capitall crimes; besids other reasons, (1.) because sodomie, & also beastialitie, is more against ye light of nature then some other capitall crimes of unclainnes, which reason is to be attended unto, as yt which most of all
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made this sin capitall ; (2.) because it might be comited with more secrecie & less suspition, & therfore needed ye more to be restrained & suppresed by ye law; (3ly) because ther was not ye like reason & degree of sining against family & pos- teritie 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 ye cause brought before him. Job 29. 16. Pro : 24. 11. 12. & 25. 2. (2ly.) If it be manifest yt a capitall crime is committed, & yt comone reporte, or probabilitie, suspition, or some complainte, (or ye like, ) be of this or yt person, a magistrate ought to require, and by all due means to procure from ye person (so farr allready bewrayed) a naked confession of ye fact, as apears by yt which is morall & of perpetuall equitie, both in ye case of uncertaine murder, Deut : 21. 1. 9. and slander, Deut : 22. 13. 21; for though nemo tenetur prodere seipsum, yet by that wch may be known to ye magistrat by ye forenamed means, he is bound thus to doe, or els he may betray his countrie & people to ye heavie dis- pleasure of God, Levit : 18. 24. 25. Jos : 22. 18. Psa: 106. 30; such as are inocente to ye sinfull, base, cruell lusts of ye profane, & such as are delinquents, and others with them, into ye hands of ye stronger temptations, & more bouldness, & hardnes of harte, to comite more & worse villany, besids all ye guilt & hurt he will bring upon him selfe. (3ly.) To inflicte some punishmente meerly for this reason, to extracte a conffession of a capitall crime, is contrary to ye nature of vindictive justice, which always hath respecte to a know crime comitited by ye person punished ; and it will therfore, for any thing which can before be knowne, be ye provocking and forcing of wrath, compared to ye wringing of ye nose, Pro : 30. 33. which is as well forbiden ye fathers of ye countrie as
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of ye 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 ye godly learned, & is well known.
Q. 3. In what cases of capitall crimes one witnes with other circonstances shall be sufficiente to convince? or is ther no conviction without 2. witneses ?
Ans : In taking away ye life of man, one witnes alone will not suffice, ther must be tow, or yt which is instar ; ye texts are manifest, Numb : 35. 30. Deut : 17. 6. & 19. 15. 2ly. Ther may be conviction by one witnes, & some thing yt hath ye force of another, as ye evidencie of ye fact done by such an one, & not an other; unforced confession when ther was no fear or danger of suffering for ye fact, hand writings acknowledged & confessed.
JOHN REYNOR.
[246] Mr. Partrich his writing, in ans: to ye questions.
What is yt sodomiticall acte which is to be punished with death ?
Though I conceive probable yt 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 yt 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 yt the law specifieth ; yet I dar not be con -* (1.) because, Gen : 19. 5. ye intended acte of ye Sodo- mits (who were ye first noted maisters of this unnaturall act of more then brutish filthines) is expressed by carnall copu- lation of man with woman : Bring them out unto us, yt we may know them; (2ly.) because it is observed among ye nations wher this unnaturall unclainnes is comited, it is wth penetration of ye body; (3ly.) because, in ye judiciall pro-
* " Confident " ?
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ceedings of ye judges in England, ye 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 yt a magistrate is bound, by carfull ex- amenation of circonstances & waighing of probabilities, to sifte ye accused, and by force of argumente to draw him to an acknowledgment of ye 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 inocente; if guilty, he shall be compelled to be his owne accuser, when no other can, which is against ye 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 yt, in ye 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 evi- dence be prodused as aveilable & firme to prove ye facte as a witnes is, then one witnes may suffice; for therin ye end and equitie of ye law is attained. But to proceede unto sentence of death upon presumptions, wher probably ther may subesse falsum, though ther be ye 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. RALPH PARTRICH.
The Answer of Mr. Charles Chancy.
An contactus et fricatio usq ad seminis effusiõem sine penetratione corporis sit sodomia morte plectenda?
Q. The question is what sodomiticall acts are to be pun-
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ished wth death, & what very facte comitted, (ipso facto,) is worthy of death, or if ye facte it selfe be not capitall, what circonstances concuring may make it capitall. The same question may be asked of rape, inceste, beastialitie, unnaturall sins, presumtuous sins. These be ye words of ye first question.
Ans: The answer unto this I will lay downe (as God shall directe by his word & spirite) in these following con- clusions : (1.) That ye judicials of Moyses, that are appen- dances to ye morall law, & grounded on ye law of nature, or ye decalogue, are imutable, and ppetuall, weh all orthodox devines acknowledge ; see ye authors following. Luther, Tom. 1. Whitenberge : fol. 435. & fol. 7. Melancthon, 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. præcept : 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 ye constante & generall oppinion of ye best devines, I will rest in this as undoubtedly true, though much more might be said to confirme it.
2. That all ye sines mentioned in ye question were pun- ished with death by ye 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 who- soever (besids her husband) lyes with a married woman, whether ye man be maried or not, as in ye 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 ye sine worse on ye maried
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mans parte ; for ye Lord in this law hath respect as well to publick honesty, (the sin being so prejudicall to ye church & state,) as ye 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 ye punishmente of these foule sines wth death is grounded on ye law of nature, & is agreeable to the morall law. (1.) Because ye reasons anexed shew them to be per- petuall. Deut. 22. 22. So shalt thou put away evill. Incest, beastiality, are caled confusion, & wickednes. (2.) Infamie to ye whole humane nature, Levit: 22. 12. Levit: 18. 23. Raps are as murder, Deut : 22. 25. Sodomie is an abomi- nation, Levit : 22. 22. [247] No holier & juster laws can be devised by any man or angele then have been by ye Judg of all ye world, the wisdome of ye Father, by whom kings doe raigne, &c. (3.) Because, before ye giving of ye Law, this punishmente was anciently practised, Gen : 26. 11. 38. 29. 39. 20. & even by the heathen, by ye very light of nature, as P. Martire shews. (41y.) Because ye land is de- filed by such sins, and spews out ye inhabitants, Levit : 18. 24, 25. & that in regard of those nations yt were not ac- quainted wth the law of Moyses. 5. All ye devins above specified consent in this, that ye unclean acts punishable with death by ye law of God are not only ye grose acts of uncleannes by way of carnall copulation, but all ye evidente attempts therof, which may appeare by those severall words yt are used by ye spirite of God, expressing ye sins to be punished with death ; as ye discovering of nakednes, Levit : 18. 20. which is retegere pudenda, as parts pr euphemismum (saith Junius), or detegere ad cubandum (saith Willett), to uncover ye shamefull parts of ye body (saith Ainsworth), which, though it reaches to ye grose acts, yet it is plaine it
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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"ceding ye same, is implyed in Pauls word aposvonoïrar, 1. Cor: 6. 9. & men lying with men, 1. Tim: 1. 9. men defiling them selves wth mankind, men burning with lust towards men, Rom: 1. 26. & Levit: 18 .* 22. sodom & sin going after strange flesh, Jud: v. 7. 8. and lying with mankind as with a woman, Levit: 18. 22. Abu- lentis says yt it signifies omnes modos quibus masculus mas- culo abutatur, changing ye naturall use into y 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 conatū t (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 (understand- ing manifeste) sine effectu subsecuto de jure attenditur ; and he proves it out of good laws, in these words : Solici- tatores į alienum nuptiām itemų matrimonium interpellatores, etsi effectu sceleris potiri non possunt, propter voluntatem tamen perniciosæ libidinis extra ordinem puniuntur ; nam generale est quidem affectū sine effectu [non] puniri, sed contrarium observatur in atrocioribus & horum similibus.
5. In concluding punishments from ye judiciall law of Moyses yt is perpetuall, we must often pceed by analogicall proportion & interpretation, as a paribus similibus, minore ad majus, &c .; for ther will still fall out some cases, in every comone-wealth, which are not in so many words ex- tante in holy write, yet ye substance of ye matter in every kind (I conceive under correction) may be drawne and con- cluded out of ye scripture by good consequence of an equeva-
* 8 in MS. t Contic in MS.
Į Solicitations in MS.
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lent nature ; as, for example, ther is no express law against destroying conception in ye wombe by potions, yet by anologie with Exod : 21. 22, 23. we may reason yt life is to be given for life. Againe, ye question, An contactus & fricatio, &c., and methinks yt place Gen : 38. 9. in ye punishmente of Onans sin, may give some cleare light to it; it was (saith Pareus) beluina crudelitas quam Deus pari loco cum parri- cidio habuit, nam semen corrumpere, quid fuit aliud quam hominem ex semine generandum occidere? Propterea juste a Deo occisus est. Observe his words. And againe, Disca- mus quantopere Deus abominetur omnem seminis genitalis abusum, illicitā effusionem, & corruptione, &c., very perti- nente to this case. That allso is considerable, Deut : 25. 11, 12. God comanded yt, if any wife drue nigh to deliver her husband out of ye hand of him yt smiteth him, &c., her hand should be cutt off. Yet such a woman in yt case might say much for her selfe, yt 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 ye less to ye greater, what greevous sin in ye sight of God it is, by ye instigation of burning lusts, set on fire of hell, to proceede to contactum & fricationem ad emissionem seminis, &c., & yt contra naturam, or to attempte ye grosse acts of unnaturall filthines. Againe, if yt 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. Circumstantiæ variant vis e actiunes, (saith ye lawiers, ) & circonstances in these cases cannot possibly be all reckēd 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 ye differance betwixte chanc medley, & willfull murder ; so in ye sins of uncleannes, it is one thing to doe
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an acte of uncleannes by sudden temptation, & another to lye in waite for it, yea, to make a comune practise of it; this mightily augments & multiplies ye sin. Againe, some sines of this nature are simple, others compound, as yt is simple adultrie, or inceste, or simple sodomie; but when ther is a mixture of diverce kinds of lust, as when adultery & sodomie & p'ditio seminis goe togeather in ye same acte of uncleannes, this is capitall, double, & trible. Againe, when adultrie or sodomie is comited by pfessors or church members, I fear it coms too near ye sine of ye preists daugh- ters, forbidden, & comanded to be punished, Levit: 21. 9. besids ye presumption of ye sines of such. Againe, when uncleannes is comited with those whose chastity they are bound to pserve, this coms very nere the incestious copula- tion, I feare; but I must hasten to ye other questions.
[248] 2. Question ye second, upon ye pointe of exami- nation, 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 ye 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 ye practise in ye Scripturs is other wise, as in ye case of Achan, Jos : 7. 19. Give, I pray ye, glorie to ye 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 yt, Jer: 38. 14. Jeremiah was charged by Zedechias, who said, I will aske the a thing, hide it not
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from me; & Jeremiah said, If I declare it unto ye, wilt thou not surely put me to death? impling yt, 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 yt those words (whatsoever a man hath) will comprehend also ye conscience of an oath, and ye fear of God, and all care of religion; therfore for laying a snare before ye guiltie, I think it ought not to be donn. But now, if ye question be mente of inflicting bodyly torments to extracte a confession from a mallefactor, I conceive yt in maters of higest consequence, such as doe conceirne ye 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 yt in no case one witness shall arise in judgmente, espetially not in capitall cases. God would not put our lives into ye power of any one toungue. Besids, by ye 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 ye case of ye Amala- kite, 2. Sam: 1. 16. Againe, when ther are sure & certaine signes & evidences by circumstances, ther needs no witnes in this case, as in ye bussines of Adoniah desiring Abishage ye Shunamite to wife, that therby he might make way for him selfe unto ye kingdome, 1. King: 2. 23, 24. Againe, probably by many concurring circumstances, if probabillity may have ye strength of a witnes, somthing may be this
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way gathered, me thinks, from Sallomons judging betweexte ye true mother, and ye 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 ye case of Achan, Josu : 7. 16. which is a clearer way in such doubtfull cases (it being solemnely & religiously per- formed) then any other that I know, if it be made ye last refuge. But all this under correction.
The Lord in mercie directe & prosper ye desires of his servants that desire to walk before him in truth & right- eousnes in the administration of justice, and give them wis- dome and largnes of harte.
CHARLES CHANNCY.
Besids ye occation before mentioned in these writ- ings concerning the abuse of those 2. children, they had aboute ye same time a case of buggerie fell out amongst them, which occasioned these questions, to which these answers have been made.
And after ye time of ye writig of these things befell a very sadd accidente of the like foule nature. in this govermente, this very year, which I shall now relate. Ther was a youth whose name was Thomas Granger; he was servant to an honest man of Duxbery, being aboute 16. or 17. years of age. (His father & mother lived at the same time at Sityate.) He was this year detected of buggery (and indicted for ye same) with a mare, a cowe, tow goats, five sheep, 2. calves, and a turkey. Horrible [249] it is to mention, but ye truth of ye historie requires it. He was first discovered by one yt accidentally
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saw his lewd practise towards the mare. (I forbear perticulers. ) Being upon it examined and comitted, in ye end he not only confest ye fact with that beast at that time, but sundrie times before, and at sev- erall times with all ye rest of ye forenamed in his indictmente ; and this his free-confession was not only in private to ye magistrats, (though at first he strived to deney it,) but to sundrie, both ministers & others, and afterwards, upon his indictmente, to ye whole court & jury ; and confirmed it at his execution. And wheras some of ye sheep could not so well be knowne by his description of them, others with them were brought before him, and he declared which were they, and which were not. And accordingly he was cast by ye jury, and condemned, and after executed about ye 8. of Sept", 1642. A very sade spectakle it was; for first the mare, and then ye cowe, and ye rest of ye lesser catle, were kild before his face, according to ye law, Levit: 20. 15. and then he him selfe was executed. The catle were all cast into a great & large pitte that was digged of purposs for them, and no use made of any part of them.
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