Mr. St. Johns speech, or argument in Parliament;: shewing, whether a man may be a judge, and a witnesse in the same cause. By way of preface, I shall return a distinction between a doubtfull and a scrupulous conscience.
St. John, Oliver, 1598?-1673.
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Mr. St. JOHNS ARGV∣MENT IN PARLIAMENT, shewing whether a man may be a Iudge and a Witnesse in the same Cause.

THe former assents to neither of the two opinions wherewith it is di∣stracted, and by his means suspends the action. The latter enclines to one of the two opinions, and go∣eth on to the performance of the Action, but neither so cheerfully and roundly as it ought to do, but with some reluctancie in regard of that consideration it still retaineth of the con∣trary opinion. As a man that hath a little stone or some gravell got into his shoes (wch is a scru∣ple in the proper & grāatical sence) maks a shift to get hōe to his house, though not without som pain and molestation: these scruples if we can∣not cast them out, by reason and better infor∣mation, Casuists advise us to forget them, if it be possible, or how ever to passe them over, and fall to the Action, notwithstanding their jog∣ging Page  2 and interruption of us, in the cheerfull performance of the same, Amesius de Consc. li. 1. cap. 6. regularly and in ordinarie proceeding, one and the same man, in one and the same cause may be excepted against for being both Iudge and Witnesse. For Deut. 17. 16. (which I take to be the ground whereon the Resolution of this question is to be erected) the Iudges in the gate, and the two witnesses are not the same, but severall and distinct persons.

And Testatus his opinion that under the old Testament, one and the same man in one and the same Cause, might be a Iudge and a Wit∣nesse. As the two Elders were against Susanna, 6. & 34. verse, is as Apochryphall as the Book it self from whence it is quoted. For they are not the Iudges or Elders, but the Assemblie which pronounce the sentence, so the 41. verse. And we live under the new Testament where it is not permitted that a Man shall be a Iudge and a Witnesse against me, saith the same Testa∣tus, in 23. Exod. Where he quotes for his opi∣nion, Greg. 9. in his Decretals, Lib. 5. de verbo∣rum, signific. cap. forus. And of this opinion the Civill Lawyers gives these reasons.

1. First, because this were for one man to usurp two functions, which ought to be several and distinct, as that of a Iudge, and that of a Witnesse, Jelinus, & Auferius in Hut. Aemilius his tractate, de testibus, pag. 208.

2. Because by this means the same Agent might act and operate upon it self, by becom∣ing Page  3 both the Iudge imposing, and the Witnesse receiving the oath, to deliver the whole truth, which is not convenient, saith Albericus de Ro∣sate, Tract. Doctor Wol. 1. pag. 260. And Paw∣francus ab Arrad. Tract. Doc. Vob. 4. pa. 157.

3. Because this were for a man to judge as God, say the Schoolmen, that is, out of his own private knowledge. Whereas, saith Caje∣tan, Man ought not to be judge as God, but as God would have him to judge: that is secundum Allegata & probata, and by a publike not a pri∣vate knowledge. The Act of judging is a pub∣like Act, and must arise from publique Causes, a publique person a publique power, a publique knowledge (from others and not from himself) and a publique will: and this cannot be when a man judgeth upon that, which he onely know∣eth himself as a private person, Cajestan in 22. De. 4. 67. Act. 2. And it is the conclusion of all the Doctors, that a Iudge non potest testeficare coram se, can give himself no convincing evi∣dence. Alber. de Rosate in Tract. Doctor Vob. 1. pag. 260. Testatus gives a reason hereof, because no man can do as God doth, that is, infuse into the Prisoner at the Barre, Cogitationem memorem omnium factorum, A glimpse or thought that shall cause all the Actions of his whole life to appeare before him, when he beholds the Iudge in the face, nor unto the hearers probations, cogitations, a clear and naked evidence of all the proofes in the Cause. This God onely can do of himself, other Iudges cannot without Page  4 the help of witnesses. Tract. in Math. cap. 25. quaest. 334.

4. That old observation of the Cannonists, and of St. Augustine, would fail if a man could be a Iudge and a Witnesse: that a false witnesse is injurious to all these three, to God, to the Iudge, to the partie, which would faile, if the Iudge himself might be a witnesse.

Lastly, as they exclude him that hath been a Counceller in the Cause, because he is like to make good his own Plea, so do they conceive the Witnesse to be excluded with much more reason, lest he should be too much wedded to his former disposition.

These are the reasons why Regularly and in ordinarie proceedings a Witnesse may be excepted against from being in the same Cause.

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But I doe not find in any Lawyer or Casuists, that a man is bound in Conscience, to except a∣gainst himselfe, for being a Judge in that cause, wherein hee had been produced in a Witnesse; And I find rather the contrary opinion in good Authors. And that if both parties be content, and take no exception to it, a Witnesse may bee a judge in the same Cause. It is the opinion of that great Jurisconsultum Felinus, but quoted by Hutor Aemilius, Tract: de Testibus, page 213.

And this without al question to be made ther∣of, if he have Contestes, that is, some Witnesses more besides himselfe, that concurr in the Evi∣dence; Hut. Emilius de testib: pag. 200.

Provided alwayes, that when he comes to giv Judgement: He must never ground his sen∣tence upon any private knowledge of his owne, but upon what is alleadged and proved before him, by the Testimonies and depositions of o∣ther witnesses, that is, as the Schoole-men speake it, he must not sentence out of his private, but out of his publique knowledge, acquired gene∣rally from the Municipall lawes of that Coun∣try wherein he lives; and more particularly from matters of Record, Writings and depositi∣ons of Witnesses: Aquni. 22. de quest. 67. act. 2.

For the Jury of the voisinage, I doe under fa∣vour conceive them no Judges at all; they are to inquire out and to finde a fact; They are not to applie the generall Law unto a particular fact, Page  6 which properly is to judge and determine it. Whether the Lord Cobham was first produced as a Witnesse, and afterwards sommuned as a Peere in the Tryall of the Lord Gray, I know not, nor ever heard of it before this time; But I doe beleeve that upon the Rolls of 50. of Edw. 3. it will appeare, that Iohn Duke of Lancaster, was Accuser, Witnesse, and Judge, in the Tryall of Alice Peirs, which many alter the Rules of the Law, in Parliamentary proceedings. 23. of March. 1641.