The Dying Mans Testament to the Church of Scotland, Part 2 · Chapter 10
CHAP. X. Clearing whether in Church-processes an Accuser be alwayes necessary.
IF it be asked, concerning an accuser, Whether it be necessary in all Church-processes, that one, under such a consideration, be fixed, before there can be proceeding against any party, in reference to triall. We answer in these assertions.
Asser. 1. It is not alwayes necessary in every case that there should be a formall particular accuser, as may appear from the cases formerly instanced; for, that any offence or offender should passe without being taken notice of, (especially if offences be continued in) is contrary to the end for which Church-censures are appointed, and yet neither de facto is there alwayes an accuser where there is an offence; nor de jure can any be constrained to be an accuser: therefore it is necessary that in some cases there must be a processe without an accuser, in this way of enquiry.
Asser. 2. Where an offended Brother followeth Christs way in pursuing of an offence, he is not to be accounted an accuser formally, as the terme of accusation useth properly to be taken: Because, 1. To accuse often is a thing that may be omitted, but this kind of pursuit is laid on as a necessary duty. 2. To accuse, respects some paticular wrong and injury usually, and the following thereof▪ importeth a prejudice and hurt to the party accused. But this which respects offence without any particular injury, proceedeth from love, tendeth to the advantage and recovery of the party, and so properly cannot be called accusation. Yea▪ 3. When a person hath followed the second step, and made out his private admonition by two or three witnesses, when he cometh to the Church with them, neither of them can be accounted accusers more than when he did privately speak to the person, or after that to those witnesses, because all is dutie, and a piece of that Christian mutuall communion, that brethren and members of the same body, owe one to another, and to the body in common; yet is he who so entereth a complaint, oblieged to make it evident to the Judicatory; and if he hath rightly performed the second step, and made it appear before two or three, there is no hazard or difficultie in this; but if he hath failed in that, he ought not to have proceeded to this.
Asser. 3. We say, that to have a formal accuser, seemeth not so well to agree to the nature of ecclesiastick processes, and looketh liker a civil Court. For, 1. If the offence be publick, there is no accuser needfull, as is said. 2. If it be privat, no accuser is to be heard, but in the ordinary method, because Christs Ordinance is not to be subservient to mens passions, or to be the mean of their seeking revenge for injuries: And therefore in some cases, though an accuser would undertake the pursuing of some processe against a person, where neither the Scandal is flagrant, nor the party accused, after private admonition and conviction, obstinate, in that case the accusation might be rejected; because so the accuser looketh not like a Brother, that is stumbled, seeking the gaining of the other, and his own satisfaction upon that account, but rather like a person that is irritate, vindictive or malicious, to whose humour Church-officers ought not to give way; neither doth such an accusation become Christs Court. Yet, if the thing be indeed scandalous, Church-officers are to enquire therein, and not to sleight any mean of evidence which may be had, lest profane persons mouths be opened; but that rixal and contentious way of following of processes by particular accusers, against particular persons, as useth to be in other Courts, we conceive no way becoming the gravity and convincing way that ought to be in this; And we suppose in experience is not often found to be edifying, but rather doth ingender hatred, prejudice, contention, and such like, which is altogether contrary to Christs scope.
Again, on the other side, there may be no particular accuser against the person and yet it be necessary that he be tried, as hath been said.
Asser. 4. The…e may be some cases in which it is expedient to admit an accuser, and not to admit a processe without one. As suppose one were under no ill report, and yet some grosse scandal were imputed to him, which were not of such fame, or had not such presumptions, as to give ground for a Churchjudicatory immediately to interpose, and the scandal being of such a nature as the trial thereof could neither be omitted, not closed in private; in that case, suppose one should complain of the Churches negligence in the same, asserting the evidences to be clear, and offering to make them out; In such a case, I say, the Church can hardly refuse to hear him, lest they be thought partiall; nor is there ground, nor is it fit for them immediately to pursue it: Therefore an accuser is expedient, that so, upon the one side, the Churches impartiality may be vindicated, in refusing the complaint of no sober man, nor the uttermost of any triall, that in well grounded reason they may expect; And, on the other side, that the mouths of some needlesse and too importunate complainers may be stopped, and they themselves found censurable, if either without cause they traduce the Church-officers as negligent and partiall, while there is accesse to make out before them such a truth if it be truth; or if precipitantly and inconsiderately (if not maliciously) they have tabled a scandal against another as a publick scandal, which they cannot make out, and so have needlesly troubled a Church-judicatory in such a matter, and sinfully wronged their neighbour.
For, a processe in such cases where it cannot be made out, is scandalous: therefore if a person rest not▪ satisfied, so as to abstain till he have triall put to the utmost, he is to be dealt with as a scandalous person, lest men take liberty, under the pretext of pursuing offences, to defame others, and abuse the Ordinance of Christ. And though it be just in such a case, that he be materially dealt with as unjust accusers use to be in civil courts, yet this doth not only flow from the consideration of such a persons being a formall accuser, but from the nature of the deed which is scandalous in such a meature, and that publickly, and therefore is to be restramed, whether the person take on him that formall consideration or not, lest yet, upon the matter, he continue publickly and importunately to presse the pursuit. And we conceive, the imposing the title of accuser in such a case, or the making of it necessary, that one take on him that formall no ion, is rather for coveniencie to restrain mens inordinatenesse, and stop their mouths, and to add weight to the matter of the sentence, if they fail, than as being simply necessary for making such a person to be accounted scandalous, if he come short.