Assertion of the Government of the Church of Scotland, Part 2 · Chapter 7
CHAP. VII. The third Argument, taken from the Iewish Church.
IN the third place we take an Argument from the example of the Jewish Church; for as in their Common-wealth there was a subordination of civill Courts, every City having its proper Court, which did consist of seven Magistrates, if we beleeve Iosephus: the Thalmudicall tradition maketh two Courts to have beene in each City, the lesser of the Triumvirat, and the greater of twenty three Judges. Beside these, they had their supreame Consistory, the civill Sanedrim, which governed the whole Nation, and had authority over the inferiour Courts. So was there also a subordination of Ecclesiasticall Courts among them: they had a Consistory in every Synagogue, for their Synagogues were appointed not only for prayer and praising of God, and for the reading and expounding of the Scriptures, but also for publike correction of offences, Acts 26.11. They had besides, a supreame Ecclesiastical Court, whereunto the whole nation, and all the Synagogicall Consistories were subject. This Court having decayed, was restored by Ichoshaphat, 2 Chron. 19.8. and it had the name of Sanedrim, common to it with the supream civill Court. From this Court did the reformation of that Nationall Church proceed, Nehem. 6.13. On the second day were gathered together the chiefe of the fathers of all the people, the Priests and the Levits, unto Ezra the Scribe, even to understand the words of the Law. And they found written in the Law, &c. Whether there was yet another Ecclesiasticall Court, in the midle betwixt the Synagogue and the Sanedrim, called foreign, a Presbytery, Luke 22.66. Acts 22.5. and made up possibly out of the particular Synagogues within the Cities, I leave it to learned men to judge: howsoever, it is plaine from Scripture, that there was at least a twofold Ecclesiasticall Court among the Jewes the Synagogue and the Sanedrim, the latter having authority above the former.
Sutlivius denyeth both these, and so would have us believe that the Jewish Church had no Ecc…esiasticall Court at all.De Presbyt. pag. 25. As for the Synagogues, he saith, they treated of things civill, and inflicted civill punishments, and a civill excommunication. That they inflicted civill punishment, he proveth from Mat. 10. and 23. and Luke 21. where Christ foretelleth that his Disciples should bee beaten in the Synagogues. That their excomunication was civill, he proveth by this reason, that Christ and his Disciples when they were cast out of the Synagogues, had notwithstanding a free entry into the Temple, and accesse to the sacrifices. Answ. This is a grosse mistake; for 1. the civill Court was in the gate of the City, not in the Synagogue. 2. He who presided in the Synagogue was called the chiefe Ruler of the Synagogue, Acts 18.8.17. the rest who sate and voiced therein, were called the Rulers of the Synagogue, Acts 13.15. They who sate in the civill Court had no such names, but were called Judges. 3. Our Saviour distinguisheth the Synagogicall Courts from the civill Courts of judgement in Cities, calling the one Councells, the other Synagogues, Matth. 10.17. 4. The beating and scourging in the Synagogues was an errour and abuse of the later times, the corrective power of those Consistories being properly spirituall, and ending in excommunication, Jo. 16.2. Isai. 66.5. the liberty of which spirituall censures the Romans did permit to the Jewes, together with the liberty of their religion, after they had taken away their civill Jurisdiction. 5. Civill excommunication is an unknowne word, and his reason for it is no lesse unknowne; for where he hath read that Christ or any of his Disciples were excommunicate out of the Synagogues, and yet had free accesse to the Temple, I cannot understand, if it be not in the Gospell of Nicodemus. I read, Luke 4.28.28. that Christ was in a great tumult cast out of the City of Nazareth ▪ but this I hope no man will call excommunication. The blinde man, Joh. 9.34. was indeed excommunicated out of the Synagogue, but wee no where read that hee was thereafter found in the Temple: we read of Christs walking in Solomons porch, Jo. 10.23. but that the blinde man was then with him, it can never be proved, and if it could, it should not import any permission or leave given to excommunicate persons to enter into the Temple, but that some were bold to take this liberty. 6. The casting out of the Synagogue cannot be called civil excommunication, because the communion and fellowship of the Jewes in the Synagogue was not civill, but sacred: they met for the worship of God, and not for civill affaires. 7. If by civill excommunication he meane banishment, or casting out of the City (for I conceive not what other thing this strange word can import) then how doth he suppose that they had still free accesse to the Temple, who were so excommunicated, for this importeth that they were still in the City.
Wee have now evinced an Inferiour Ecclesiasticall Court among the Jewes. Come we next to the supreame Court. That there was an high Ecclesiasticall Sanedrim, distinct from the Civill Sanedrim, is observed by Pelargus on Deut. 17. and S…pingius ad bonam fidem Sibrandi. pag. 261. & seq. Beside many others cited before, part. 1. chap. 11. And that it was so, wee prove from three places of the old Testament, to passe other places, from which certaine collections may be had to the same purpose.
First, we finde Deut. 17. a distinction of two supreame Judicatories, to bee set in the place which the Lord should choose to put his name there, the one of the Priests & Levi…s, the other of the Judges: & unto these two supreame Courts, the Lord appointed all matters which were too hard for the inferiour Judges in the Cities of the Land, to bee brought and determined by their authority, and the sentence of the Priests or of the Judges to be obeyed both by the parties and by the inferiour Judges, under pain of death, v. 8.9.10.11.12.De Presbyt▪ pag. 16. To this Sutlivius answereth, that there is only one Sanedrim in that place, which was civill, as appeareth by their judging of the causes of blood, and their receiving of appellations from the civill Judges mentioned in the preceding Chapter. As for the Judge which is spoken of v. 9. and 12. he saith, we must understand that it was the high Priest. Ans. 1. The disjunctive Or doth distinguish the Judges from the Priests, verse 12. as Iunius and Ainsworth doe rightly note upon that place: The man that will doe presumptuously, and will not hearken unto the Priest (that standeth to minister there before the Lord thy God) or unto the Iudge. Here a distinction betwixt the Court of the Priests and the Court of the Judges, which Lyranus also acknowledgeth. 2. The Chaldee readeth Iudges in the plurall. By the Judge, saith Ainsworth, is understood the high Councell or Senat of Judges, even as they who are called Priests, verse 9. are called the Priest, verse 12. and 1 Chron. 4.42. many Captaines are in the Hebrew called an head. 3. The high Priest cannot be understood to bee the Judge there spoken of, both because there were many Judges, as hath beene said, and because wee finde not in Scripture that ever the high Priest was called by the name of the Judge. 4. Whereas hee objecteth that the causes of blood, and other civill causes were judged in this Sanedrim. Wee answer, there were two severall things in those civill causes,De gub. Eccl. cap. 2. p. 43. the Ius and the factum. The Ius was judged in the Court of the Priests, because as B…lson teacheth, the civill Law of the Jewes was Gods judiciall Law,Mal. 2.7. and it was to be sought at the Priests mouth. But the fact being meerely civill, was judged by the civill Court. Sutl…vius objecteth, that many inconveniences shall follow this distinction. 1. Judges are hereby made ignorant of the Law. 2. That two Courts of judgement are appointed in one sentence. 3. That a Judge (the Priest) may give out a sentence which he cannot execute. 4. That the civill Judges doe in vaine inquire concerning the fact which was before certaine by the Law, nam ex facto jus oritur. 5. That the civill Judges are dumbe Images, which must pronounce according to the sentence of others. To the 1. we say that our distinction doth not import that the Judges were ignorant of the Law, but that it pertained not to them to judge the meaning of the Law, when the same was controverted among the Infeferiour civill Judges: this pertained to the Court of the Priests. 2. It is no absurdity to expound a disjunctive sentence of two severall Courts. 3. He who answereth meerely, de jure, hath nothing to doe with execution of persons more then theory hath to doe with practice, or abstracts with concrets. 4. The fact can never be certaine by the sentence, de jure. It is not the probation, but the supposition of the fact whereupon the exposition of the sence of the Law is grounded. 5. The cognition of the fact, not of the law, do…h belong to an Inquest in Scotland, they are Iudic…s fact…, non Iuris. Yet no dumbe Im…es I suppose. 6. Hee hath followed the Popish Interpreters, in making the Judge to be the High Priest forso they expound it for the Popes cause; yet they themselves acknowledge the distinction of Ius and factum. See Corn. a lapide. in Deut. 17.7. If error had not blinded this mans eyes with whom I deale, I should believe hee had beene flumbring when these things fell from his pen.
But to proceed, as these two Sanedrims were instituted in the Law of Moses, so were they after decay or desuetude restored by Iehoshaphat, U…i supra p. 20., 2 Chro. 19.8. Sutlivius answereth, that wee have here only one Sanedrim which judged both the Lords matters, and the Kings matters, and that it was not an Ecclesiasticall Court, because it judged causes of blood, and other civill causes wherein appellation was made from the Judges of the Cities. By the Lords matters, hee saith, are meant criminall and civill causes, which were to be judged according to the Law of the Lord; and by the Kings matters are meant, his patrimony and domesticke affaires. Answer 1. The Text distinguisheth two Courts, one which medled with the Lords matters, whose president was Amariah, the chiefe Priest: another which medled with the Kings matters, whose president was Zebadiah. This is so plaine, that Bonfierius the Jesuit on Deut. 17. though he maketh the Priests to have beene the Judges, yet acknowledgeth two distinct Courts, 2 Chron. 19. 2. The words vers. 8. must be understood respectively,Alt. dam. p. 24. as Didoclavius hath observed, which we explaine thus, Moreover in Ierusalem did Iehshoaphat set of the Levits, and of the Priests, and of the chiefe of the Fathers of Israel, for the judgement of the Lord, (that is for causes Ecclesiasticall) and (repeat, of the Levits, of the Priests, and of the chiefe of the Fathers of Israel) for controversies (about civill matters, saith Piscator.) So that some of them were appointed to judge the one, and some of them to judge the other, which proveth not either that the Courts were one, or that the same men sate in both, but only that some of the Priests and some of the Fathers of Israel were in both. 3. The Lords matters Lavater and Piscator expound to be matters Ecclesiasticall, the Kings matters to be things civill; and this exposition comprehendeth all things which did fall within the power of those Courts. But Sutlivius glosse doth not so, for there were sundry things to be judged which were neither the Kings domesticke affaires, not yet causes criminall or civill, such as were questions about vowes, questions about the meaning of the Law, and judging betwixt the holy and the prophane, betwixt that which was cleane and that which was uncleane. These and such like Ecclesiasticall causes he leaveth out, and they are indeed left out of the power of the civill Sanedrim, and reserved to the other, for in such controversies the Priests were to stand in judgement, Ezech. 44.23.24. Lastly, it is not to be thought, that the high Sanedrim should neede to be troubled with the Kings domesticke affaires, farre lesse that this should be made the one halfe of their commission.
Now as wee have the institution of these two supreame Courts, Deuter. 17. and the restitution of them both, 2 Chron. 19. so have we an example of both, Jerem. 26. For first, Ieremiah was condemned, as worthy of death, because hee had spoken against the Temple and the holy place, verse 8.11. and herein saith, Oecolampadius on that place, hee was a Type of Christ, against whom it was pronounced in the Councell of the chiefe Priests and Elders,Matth. 26.66. He is guilty of death. So did this Ecclesiasticall Court conclude ag…i…st Ieremy, He is worthy of Death: yet the c…n…rary was concluded in the civill Sanedrim, verse 10.16. This man, say they, is not worthy to dye, for he hath spoken to us in the Name of the Lord our God. As much as to say, you Priests have given sentence de jure against Ieremiah, but we finde he is not guilty of the fact whereof he is accused, for he hath spoken nothing but the truth which the Lord sent him to speake; therefore as you pronounced him worthy of death, upon supposition of the fact, wee now pronounce that he is not worthy of death, because wee finde him blamelesse of the fact. Sutclivius denieth that the Priests were Iudices Iuris, Ubi supra pag. 28.and the Princes Iudices facti; only the Princes did against the will of the Priests set Ieremiah free, whom they had destinated to death: But say I, he must either deny that Ieremiah was judged in two severall Courts, or not, if he deny it, the Text is against him: for that hee was judged in the Court of the Princes, it is plaine from verse 10.16. and that hee was judged in the Court of the Priests, is plaine also from verse 8.9. Where we finde the Priests comming together, neither to reason with Ieremiah (for they had no such purpose as to give him leave to speake for himselfe) nor yet to accuse him; for that they do before the Princes, v. 11. Therefore it was to give sentence for their part against him, which they did; but if he grant that sentence was given in two Courts, I would gladly know what difference could bee made betwixt the one sentence and the other, except that difference, de jure, and de facto, especially the same suting the Text so well as hath beene said.
Of the vestigies of those two supreame Courts still remaining in some sort distinct, in the daies of Christ, I have spoken before. And now to proceed.Bertram. de polit. Jud. cap. 11. ex 18. Wee have proved the Antecedent of this our present Argument, concerning distinct Ecclesiasticall Courts among the Jewes, and the subjection of the lower unto the higher of the Synagogue unto the Sanedrim.
Sutliv. de Pres. cap. 2.But we have yet more to doe, for the consequence of our Argument is also denyed both by the Prelaticall faction, and by others (whom wee are more sorry to contradict) holding that reasons fetcht from the Jewish Church,Robinson Just. of separ. p. 163. doe better fat the Prelats, then the Consistorians; howsoever now to fetch the forme of Government for the Church, from the Church of the Jewes, were, say they, to revive the old Testament. To me it seemeth strange, that both the one side, and the other, doe when they please, reason from the formes of the Jewish Church, and yet they will not permit us to reason in like manner. The former goe about to prove the Prelacy by the high Priesthood, and the lawfull use of Organs in the Church, from the like in the Temple of Solomon. The latter doe argue, that a Congregation hath right not only to elect Ministers,See apolog. against the Oxford D.D. p. 47.48.59.62. Robinson Justis. p. 122.123. but to ordaine them, and lay hands on them, because the people of Israel laid hands on the Levits. That the maintainance of the Ministers of the Gospell, ought to bee voluntary, because under the Law, God would not have the Priests and Levits, to have any part or inheritance in the Land of Canaan, but to be sustained by the Offerings and Altars of the Lord. That the power of excommunication is in the body of the Church, because the Lord laid upon all Israel the duty of removing the uncleane, and of putting away leaven out of their houses at the feast of Passover. Is it right dealing now, to forbid us to reason from the forme of the Jewes. I will not use any further expostulation, but let the Reader judge. The truth is this, even as that which is in a childe, as he is a childe, agreeth not to a man, yet that which is in a childe, as he is animal rationale, agreeth also to a man: so what wee finde in the Jewish Church, as it was Jewish, or in infancy and under the pedagogy of the Law, agreeth not indeed to the Christian Church. But whatsoever the Jewish Church had, as it was a politicall Church, or Ecclesiasticall Republike (of which sort of things, the diversity and subordination of Ecclesiasticall Courts was one) doth belong by the same reason to the Christian Church. I say further, though the Common-wealth and civill Policy of the Jewes, be not in all points a patterne to our civill Policy, yet I am sure it is no errour to imitate the civill policy of the Jewes, in such things, as they had, not for any speciall reason proper to them, but are common to all well constituted Common-wealths, and so wee may argue from their Common-wealth, that it is a good policy to have divers civill Courts, and the higher to receive appellations from the Inferiour, as it was among them. Shall wee not by the very like reason fetch from their Ecclesiasticall Republike, diversity of Spirituall Courts, and the supreame to receive appellations from the Inferiour, because so was the constitution of the Jewish Church, and that under the common respect and account of a politicall Church, and not for any speciall reason, which doth not concerne us.