Explication of the Judicial Laws of Moses, Part 1 · Chapter 20
CHAPTER XX. That a Iudge may giuegive out ſentence by the information of the falſe witneſſes, and yet be free.
2 SAM. 1. 16. And David ſaid unto him, thy bloud be upon thy head; for thy mouth hath teſtified againſt thee.
IN Iudgement the principall part dependeth uponThe chiefe part in judgment dependeth upon the witneſſes. the witneſſes, and if they teſtifie an untruth, they make a wrong ſentence to proceed out of the mouth of a juſt Iudge: David here giueth out ſentence againſt the Amalekit… it was a juſt ſentence in reſpect of the Iudge, becauſe he condemned him out of his owne mouth, but a wrong ſentence in reſpect of the Amalekite, becauſe he did not kill Saul, but bragged onelyonly that he had killed him, for the Text ſaith, that Saul killed himſelfe, 1 Sam. 31. 5.
When the Grecians beſieged Troy, Palamedes was killed there amongſt the reſt; and when the Greekes had Simile. raiſed their ſiege from Troy, and taken Ship to returne to Greece; Nauplius the father of Palamedes (to be revenged upon the Greekes) tooke a Boate in a darke night, and went into the Sea, and ſet up a Beaken upon a rock, which when the Greekes did ſee, they tooke it to be the Harbour, and directed their Courſe towards it, and ſo they runne the moſt of their Shippes upon the rockes, and were caſt away. We cannot ſay here, that the fault was in the Pilots, becauſe the Shippes were caſt away; but the fault was in falſe Nauplius, who held up a wrong light unto them. So when a good Iudge giveth out a wrong ſentence, the fault is not in the Iudge, but in the falſe witneſſes, who hold up a falſe light unto him, and therefore the Iudge ſhould labour to puniſh theſe falſe witneſſes, and to reſtore the partie who is wronged to his right; and as Telephus was healed by the ſpeare that hurt him, ſo ſhould they ſtudie to cure the perſon whom they hauehave wounded by their ſentence.
If a Iudge call two or three witneſſes, that is the firſtA Iudge muſt not proceed without witneſſe. thing required of him in tryall of the truth, nam teſtimonio unius non proceditur, and one witnes doth not proue. There are three witneſſes in heaven to certifie us of the truth, the Father, the Word, and the holy Ghoſt. And there are three that beare witneſſe to us in the earth of the remiſſion of ſinnes, the Spirit, the water, and bloud, 1 Ioh. 5. 7. 8. So in Indicatories of the Church three witneſſes are required, 2 Cor. 13. 1. This is the third time that I am comming to you, in the mouth of two or three witneſſes ſhall every word be establiſhed. So in the tryall of civill cauſes, every thing was eſtabliſhed by the mouth of two or three witneſſes. Deut. 21. 15.
Secondly, The Iudge muſt call faithfull witneſſes;A Iudge is to make choiſe of faithfull witneſſes. they are called faithfull witneſſes when they are reputed ſo in the common eſtimation of men; Eſay 8. 2. And I tooke unto me faithfull witneſſes, Vriah the Prieſt and Zechariah the ſonne of Ierebechiah, Vriah was not a faithfull man, yet becauſe he was ſo reputed amongſt the people; therefore he is called a faithfull witneſſe.
Thirdly, Hee muſt call witneſſes who hauehave bothThey muſt be eye-witneſſes. heard and ſeene, 1 Ioh. 1. 1. That which we hauehave heard, that which we hauehave ſeene with our eyes, which we hauehave looked upon &c.
Fourthly, They muſt be conteſtes, and their teſtimonies muſt be foreign, agreeing in one, Mark. 14. 56. Now if the Iudge proceed this way, and the ſentence be falſe, it is not his fault, for by the mouth of two or three witneſſes every word ſhall be eſtabliſhed, that is ſhall be holden for truth.
When a Iudge demaundeth of the witneſſes, hee asketh them not foreign, what murther is. Secondly, he asketh not of them, foreign, the effects and conſequents of murther which follow it, as the guilt and puniſhment. Thirdly, foreign, he asketh them whether it were caſually or maliciouſly done. And fourthly, foreign, if they ſaw him kill ſuch a man; this is the ſpeciall thing that they require, and if the Iudge giuegive out ſentence this wayes according to things proved, then the blame lieth not upon him if there bee a wrong ſentence pronounced.
It may be ſaid, when a man taketh a thing to bee a Object. truth, although it be an untruth, he ſpeaketh an untruth: why doth not a Iudge then pronounce a ſentence which is not true, although he take it to be a truth?
There is a greater vniformitie required betwixt the Anſw. mind and the tongue, then betwixt the ſentence of the Iudge, and the teſtimonie of the witneſſes; for there is nothing required in the Iudge, but that he proceed ſecundùm allegata et probata, according to things alledged and proved.