Mr. St. JOHN'S SPEECH, OR ARGUMENT, IN PARLIAMENT; Showing, whether a man may be a Judge, and a Witness in the same CAUSE.  
By way of Preface, I shall return a distinction between a doubtful and a scrupulous CONSCIENCE.   

Mr. St. JOHN'S ARGUMENT IN PARLIAMENT, showing whether a man may be a judge and a Witness in the same Cause.  
THe former assents to neither of the two opinions wherewith it is distracted, and by his means suspends the action. The latter inclines to one of the two opinions, and goeth on to the performance of the Action, but neither so cheerfully and roundly as it ought to do, but with some reluctancy in regard of that consideration it still retaineth of the contrary opinion. As a man that hath a little stone or some gravel got into his shoes (which is a scruple in the proper & granatical sense) makes a shift to get home to his house, though not without some pain and molestation: these scruples if we cannot cast them out, by reason and better information, Casuists advise us to forget them, if it be possible, or how ever to pass them over, and fall to the Action, notwithstanding their jogging and interruption of us, in the cheerful performance of the same, Amesius de Consc. li. 1. cap. 6. regularly and in ordinary proceeding, one and the same man, in one and the same cause may be excepted against for being both judge and Witness. For Deut. 17. 16. (which I take to be the ground whereon the Resolution of this question is to be erected) the judges in the gate, and the two witnesses are not the same, but several 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 judge and a Witness. As the two Elders were against Susanna, 6. & 34. verse, is as Apocryphal as the Book itself from whence it is quoted. For they are not the judges or Elders, but the Assembly 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 judge and a Witness against me, saith the same Testatus, in 23. Exod. Where he quotes for his opinion, Greg. 9 in his Decretals, Lib. 5. de verborum, signific. cap. forus. And of this opinion the Civil 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 judge, and that of a Witness, Jelinus, & Auferius in Hut. Aemilius his tractate, de testibus, pag. 208.  
2. Because by this means the same Agent might act and operate upon itself, by becoming both the judge imposing, and the Witness receiving the oath, to deliver the whole truth, which is not convenient, saith Albericus de Rosate, Tract. Doctor Wol. 1. pag. 260. And Pawfrancus 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 Cajetan, Man ought not to be judge as God, but as God would have him to judge: that is secundum Allegata & probata, and by a public not a private knowledge. The Act of judging is a public Act, and must arise from public Causes, a public person a public power, a public knowledge (from others and not from himself) and a public will: and this cannot be when a man judgeth upon that, which he only knoweth himself as a private person, Cajestan in 22. De. 4. 67. Act. 2. And it is the conclusion of all the Doctors, that a judge non potest testeficare coram se, can give himself no convincing evidence. 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 Bar, Cogitationem memorem omnium factorum, A glimpse or thought that shall cause all the Actions of his whole life to appear before him, when he beholds the judge in the face, nor unto the hearer's probations, cogitations, a clear and naked evidence of all the proofs in the Cause. This God only can do of himself, other judges cannot without the help of witnesses. Tract. in Math. cap. 25. quaest. 334.  
4. That old observation of the Canonists, and of St. Augustine, would fail if a man could be a judge and a Witness: that a false witness is injurious to all these three, to God, to the judge, to the party, which would fail, if the judge himself might be a witness.  
Lastly, as they exclude him that hath been a Counsellor in the Cause, because he is like to make good his own Plea, so do they conceive the Witness 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 ordinary proceed a Witness may be excepted against from being in the same Cause.  
But I do not find in any Lawyer or Casuists, that a man is bound in Conscience, to except against himself, for being a Judge in that cause, wherein he had been produced in a Witness; And I find rather the contrary opinion in good Authors. And that if both parties be content, and take no exception to it, a Witness may be 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 all question to be made thereof, if he have Contests, that is, some Witnesses more besides himself, that concur in the Evidence; Hut. Emilius de testib: pag. 200.  
Provided always, that when he comes to giv● Judgement: He must never ground his sentence upon any private knowledge of his own, but upon what is alleged and proved before him, by the Testimonies and depositions of other witnesses, that is, as the Schoolmen speak it, he must not sentence out of his private, but out of his public knowledge, acquired generally from the Municipal laws of that Country wherein he lives; and more particularly from matters of Record, Writings and depositions of Witnesses: Aquni. 22. de quest. 67. act. 2.  
For the Jury of the voisinage, I do under favour conceive them no Judges at all; they are to inquire out and to find a fact; They are not to apply the general Law unto a particular fact, which properly is to judge and determine it. Whether the Lord Cobham was first produced as a Witness, and afterwards sommuned as a Peer in the Trial of the Lord Grace, I know not, nor ever heard of it before this time; But I do believe that upon the Rolls of 50. of Edw. 3. it will appear, that john Duke of Lancaster, was Accuser, Witness, and Judge, in the Trial of Alice Peirs, which many altar the Rules of the Law, in Parliamentary proceed. 23. of March. 1641.   
FINIS.