The Due Right of Presbyteries, Chapter 3
CHAP. 3. SECT. 3. QUEST. 4.
WHether or no is there a necessity of the personall presence of the whole Church in all the acts of Church-censures?
The Author aManuscript. The way of the Church of Ch. in n. E.giveth us ground for this question, whiles as he holdeth the company of believers cloathed with the whole power of the keys, and these meeting all of them, even the whole Church to be the only visible instituted Church. And bAinsworth animad vers. p. 20. 21.Ainsworth sayth, with what comfort of heart can the people now excommunicate him, if they have not heard the proceedings against him? Let wise men Iudge, if this be not spirituall tyranny, that Elders would bring upon the conscience of men? Also it would seem… if the people be to execute the sentence of excommunication, that they cannot in faith repute the excommunicated man, as a Heathen and a Publican, and eschew his company, except they be assured in conscience, that he is lawfully cast out: now how shall they have this assurance? the Elders say, he is lawfully cast out, and the cast out man sayth, no, but he is wronged; therefore it would seem that all the people must be personally present to heare that the processe be lawfully deduced against him, else they punish, upon a blind faith, now the like question is, if Souldiers can make war, if they be not present at the counsell of war to know the just reasons of war, which the Prince and States doe keepe up to themselves, upon grave considerations. And the same is the question, if the Lictor and executioner of the Judges sentence be obliged in conscience to know, if the Judge have proceeded orderly and justly, or if he upon the testimony of the Judge, may execute the sentence of death.
1. Distinction, There be oddes betwixt a free willing people executing the sentence of the Church, and meere Executioners and Lictors.
2. Dist. There is a doubting of conscience speculative, through ignorance of some circumstance of the fact; and a doubt of conscience practicall through ignorance of something, which one is obliged to know, and so there is also a speculative and a practicall certainty of a thing.
3. Dist. There is one certaeinty required in questione Juris, in a question of Law, and another in questione facti, in question of fact.
4. Dist. There is, and may be an ignorance invincible which a man cannot help, in a question of fact; but Papists and Schoole-men erre, who maintaine an invincible ignorance in questione Juris, in a question of Law, and in this they lay imperfection on Gods Word.
5. Dist. There is a morall diligence given for knowledge of a thing which sufficeth to make the ignorance excusable, and there is a morall diligence not sufficient.
6. Dist. There is a sentence manifestly unjust as the condemning of Christ by witnesses, belying one another, and a sentence doubtsomely false.
1. Conclu. The members of the visible Church are not meere Lictors and Executioners of the sentences of the Elder-ship, 1. Because they are to observe, warne, watch over the manners of their fellow members and to teach, exhort, and admonish one another; and are guilty, if they be deficient in that, 2. Because by the Law of charity, as they are brethren under one head Christ, they are to warne and admonish their Rulers. And by the same reasons the people of the Jewes were not meere executioners, though they were to stone the condemned Malefactors, yet were they not Judges as Ainsworth sayth. It is true Levit. 20. 2. they were to kill him who offered his seed to Moloch; but the precept is given first to Moses the supreme Magistrate, the accused for innocent blood stood before the children of Israel, Num. 35. 22. but their Gnedah signifieth the Princes, I…s. 20. 4. The slayer shall declare his cause before the Elders of that City, 2 Sam. 7. 7. there be Tribes who are feeding or governing Tribes, or 1 Chron. 17. 6. Judges: there is no reason to understand by the children of Israel or the Congregation, only the common people, when the word doth include a Congregation of Princes, so Num. 8. 11. the Levites are the children of Israels shake-offering aAinsworth animadvers. p. 25.Ainsworth saith the people are put for the Princes, the sins of unjust Judges are peoples sinnes, not because they judicially exercise unjust acts, for they should not judge at all, but because they mourne not for the publick sins of Judges, Eze. 9 9. and because the people love to have it so, Jer. 5. 31.
2. Concl. When the sentence of the Judge is manifestly unjust, the executioners and Lictors are not to execute it; for Doeg the Edomite sinned in killing the Lords Priests at the command of Saul, and the footmen of Saul did religiously refuse that service, 1 Sam. 22. 17. The Souldiers who crucified Christ, not only as men, but as Licto…s, sinned against a principle of the Gospel which they were obliged to believe (Maries sonne is the true Messiah) nor are we to joyne with a Church excommunicating a man, because he confessed Christ Iob. 9. nor need we consent to these, that the Senate of Venice is excommunicated by Paul the fift An. 1607. and Henricus Borbonius King of Navarre by Sixtus 5. and Elizabeth of England by Pius 5. and Henry the 4. by Gregory 7. or Hilderland, and Martin Luther by Leo the 10. An. 1520. the Pope is not the Catholick Church, as many learned Papists, especially, the Parisian Theologues teach.
3. Concl There is not required the like certainty of conscience practicall in a question of fact, that is required in a question of Law. 1. Because in a question of Law all ignorance is morall and culpably, evill to any who undertaketh actions upon conscience of obedience to others; for to all within the visible Church the word of God is exactly perfect, for faith and manners; and every on is obliged to know all conclusions of Law that are determinable by Gods word. 2. Every one in his actions is to do… out of a plerophorie, and a full perswasion of heart, that what he doth, pleaseth God, Rom. 14. 14. I know and am perswaded by the Lord Jesus, that nothing is uncleane of it selfe. 3. We are to doe nothing but what is lawfull, and what in our consciences we are perswaded is lawfull, and are to know what is sinne, and what is no sin. All Souldiers in war, and Lictors, and these who execute the sentence of excommunication, are to know, what are the just causes of war, and what crimes by Gods Law deserve death, and what not, as what homicide, sorcery, parricide, incest, and the like sinnes deserve by Gods Law, and what not: because every one is obliged to know morally, what concerneth his conscience that he be not guilty before God; the executioner who beheaded Iohn Baptist sinned, because he was obliged to know this (a prophet who rebuketh incest in a King, ought not to be put to death therefore) It was unlawfull for the men of Iudah to come and make war with Ieroboam and the ten Tribes, because God forbade that war, 1 Ki. 12. 23, 24.
4. Concl. It is not enough that some say, if the question be negatively just, then Souldiers and executioners, and people may execute the sentence, that is, if they see no unlawfulnesse in the fact, I meane unlaw fulnesse in materiâ juris, in a matter of Law; hence some say, subjects and common Souldiers not admitted to the secrets of the councell of war, may fight lawfully, when there is this negative justice in the war; but forraine Souldiers who are conduced, may not doe so aRegula juris 19. in 6. and 38. in ff. non est sine culpa, qui, rebus, quae ad ipsum non spectant, se immiscet, cum periculo alterius.for the Law sayth he is not free of a fault who intermedleth with matters which belonge not to him, to the hurt of others; so Teacheth bSuarez, de tripl. virt dis. 13. de bello sect. 6. n. 8.Suarez cBannes in 22. q. 40. concl. 1.D. Bannes dAn. Duvallius in 22. tract. de charit. art. 3.Andr. Duvallius, yet the command of the Prince can remove no doubt of conscience, also that the cause of the war in the matter of Law, so far as it is agreeable to Gods word is not manifest to executioners, is there culpable ignorance no lesse then the ignorance of a sentence manifestly unjust, Ergo, the practise of these who execute a sentence negatively only just, is not lawfull, I prove the antecedent, beacuse the practicall ignorance of what we doe which is not warranted by Gods Word is alwayes culpable, whether the cause be cleare or darke: for no obscurity of Gods Law doth excuse our ignorant practise, when the Word of God can sufficienty resolve us. 2. It is not enough that our morall actions in their lawfulnes be just negatively; because actions morall which are beside the Word of God (praeter dei verbum) to us, who hold Gods Word perfect in faith and manners, are also, contra dei verbum, against the Word of God, and so unlawfull. 3. Because actions morall having no warrant but the sole will and Commandement of superiors, are undertaken upon the sole faith: that what superiors command, if it seeme not to us unjust, though it be in it selfe unjust, may lawfully be done. Now we condemne this in Schoolemen and Popish casuistes, that the Commandement of superiors (as sayth Gregor. de Valent. Bannes, Suarez, Silvester, Navarre) may take away and remove all doubting of conscience, and make the action lawfull.
Whereas aNava…re dist. 7. de poe…itē. c. St qu…s aute….Navarre, bCorduba dist. 3 q. 4 & 5.Corduba cSylvester confessor. 3. s. 10.Sylvester dAdrian quo. l libet 2.Adrian, hold that an action done without a due practicall certainty is unlawfull. If he shoud diligently (eSuarez. 1. 1. par. 2. de oper. sex dier. de proxim. regul. bonit. & malit. dis. 12. sect. 5. n. 3. sayth Suarez) search for the truth, and cannot find it, yet the doubter may practise, so he practically perswade himselse, he doth it out of a good mind; and whereas the Jesuite sayth, that it is his negligence in not seeking the truth, he answereth, his negligence which is by past, cannot have influence in his present action, to make it unlawfull, because it is past and gone. But I answer, it is Physically past, but it is morally present, to infect the action as habituall ignorance, maketh the acts of unbeliefe morally worse or ill. And to these we may adde, that he who doth with such a doubt, 1. He sinneth, because he doth not in faith fRom. 14. 232. He exposeth himselfe to the hazard of finning, and of joyning with an unjust sentence. 3. It is the corrupt Doctrine of Papists who muzzle up the people in ignorance, and discharge them to reade Gods Word, and so maintaine (because of the obscurity and imperfection of Gods Word which is not able to determine all questions) that there is an ignorance of many lawfull duties which is invincible, and to be excused, as no wayes sinfull, and which vitiateth not our morall actions, so aThomas 12. q. 19. art. 9.Thomas bBonavent. ib. art. 1. q. 3Bonaventura, cRichard act. 1. q. ….Richard dGabriel ib. a…t 3.Gabriel eOccam in 3. q. 3.Occam fAntoni. 1 part tit. 3. c. 10. s. 4.Antoninus gAdrian quod. l. 4. ar. 2.Adrianus hAlmaintrac. de opere morali. 1. c. 5.Almaine iSuarez de oper. sex dic… in 12 par. 2. de prox. Reg. Bon. & mal. act. dis. 12. sect. 4 n. 6.Suarez, though Occam and Almain may be expounded favourably.
5. Concl. Souldiers, Lictors, Servants, People under the Eldership, are not meere instruments moved only by superiors, as Schoolemen say. 1. Because they are morall agents, and are no lesse to obey in Faith, then superiors are to command in Faith and they are to obey their Superiours only in the Lord. 2. They are to give all diligence that they be not accessary to unjust sentences, lest they partake of other mens sinnes. What kAquin. 22. q. 19. art. 9.Aquinas lValentia. tom. 3. dis. 3. q. 16 princ. 2.Greg. de Valent mDuvallius 2. Tom. 1. tract. de human. act. 10 q. 4. art. 12.and And. Duvallius saith against this, is not to be stood upon.
6. Concl. But in questione facti, in matters of fact, there is not required that certainty of conscience. But that we may more clearely understand the conclusion, a question of fact is taken three wayes. 1. For a fact expressely set down in Gods Word, as that Moses led the people through the wildernesse, that Cain slew his brother Ab…l, these are questions de facto, not questiones facti, and must be believed as nAlmain. de potest. Eccle. & Laica. c. 16.Almaine and oOccam. in. 3. q. 3.Occam say well, with that same certainty by which we believe Gods Word. 2. A question of fact is taken for a question, the subject whereof is a matter of fact, but the attribute is a matter of Law, as (if Christ in saying he was the Son of God did blasphem) if the Lords Priests in giving David shew-bread, did commit Treason against King Saul) there is some question there made circa factum, about the fact, but it is formally a question of Law. For these questions may be cleared by Gods Word, and the ignorance of any questions which may be cleared by Gods Word, is vincible, and culpable, for the Law sayth aReg. juris Culpabilis est ignorantia rerum quas scire tenemur.The ignorance of these things which we are obliged to know is culpable, and excuseth not. But thirdly a question of fact is properly a question (whether this Corinthian committed incest or no) (whether Tittrs committed murther, or no) and in this there is sometimes invincible ignorance, when all diligence morally possible is given, to come to the knowledge of the fact. Now we know here the question of Law must be proved by the Law, all are obliged in concience to know what sinnes deserve death and Excommunication. But whether this man Iohn, Anna, Marie hath committed such sins, is a question of fact and cannot be proved by the Law, or the Word of God, for aReg. juris lex non est de singularibus, lex non c…rat de particula…bus.the L… is not anent singulars or particulars, this is proved by sense and the Testimonie of witnesses; and therefore the certainty practicall of conscience here is humane and failible, not Divine and infallible.
Now though Souldiers, Lictors, or People joyne to the execution of a sentence, and have their doubtings anent the fidelity of the witnesses, yet when all diligence morally possible is given to try the matter, they may well be said to doe in Faith, though they have not certainty of Faith concerning the fact,, because there cannot be certainty of Divine Faith in facts; mens confession, sense, the Testimony of witnesses cannot breed Divine Faith: yea here the Judge himselfe may condemne the innocent, and yet the sentence of the Judge may be most just because the witnesses are Lyers, and the Judge giveth out that sentence in Faith, because Gods Word hath commanded him to proceed, secundum allegata & probata, he must give sentence under bDeut. 19. 15. Mat. 18. 16. … Tim 5. 19. Exod. 23. 1.two or three witnesses; yea, though the Judge saw, with his Eyes, the guilty commit the fact, yet he cannot by Gods Law condemne him, but upon the testimony of witnesses▪ For the wise Lord seeth what confusion and tyranny should follow, if one might be both Index, actor, & t…stis, the Iudge, the accuser, and the witnesse. And when the Judge giveth out a sentence to absolve the guilty and condemne the innocent, his sentence is judicially and formally just, and materially and by accident and contrary to his intention only unjust, if the Judge in that case should say (as Master Weemes observeth well) cIoh. Weemes 3. vel expos. of judiciall Larres ch. 17. p. 69.such a proposition is true when he knoweth it to be false, and being posed and urged in conscience, is this an innocent man or no? it he should answer and say he is not, he should then answer contrary to his knowledge? but as a Judge he must answer, he is not innocent, because witnesses being with all possible diligence examined, have condemned him, and it is no inconvenience here to say, that the Judge hath one conscience as a man, and another contrary conscience as a Judge, in the question of fact; for God hath tyed his conscience, as a Judge, to the fidelity of witnesses, known not to be false. I desire the Reader to see anent this more in aBonavent. 1. q9.Bonaventura bRich. a…t. 1. q 3.Richardus cOccam. q… 3. a…. 3.Occam dAnton. 1. …. … act. 3. ca. 10. …. 4.Antoninus eAdrian. quod. lib. 4 …. ….Adrian, fWeemes loc. cit.and our Countreyman Iohn Weemes and gHenricus 2…. q…ll. 1. q. 8.Henricus. Now because Souldiers, Lictors, and people are not Judges, if they know the fact in Law deserveth such and such punishments, where the sentence is not manifestly false and unjust, but in the matter of Law just, though erroneous in the matter of fact, all possible dilligence being used by the Judges, they are to execute that sentence upon the testimony of the Judges, though they be not personally present at the proceedings of the Judges and Eldership which may be proved many wayes. 1. By the confession of our brethren, i… any of the Congregation be absent by Sicknesse, Child-birth paine, Trading over Sea, imprisonment, the Congregation doth justly put away from amongst them the incestuous Corinthian, and they who are absent are to repute the party Excommunicate, as a Heathen; as their own practise is at censures in the week-day, the largest halfe of the Congregation is absent, yet the absent upon the testimony of the Church hold valid what is done by the Church. 2. Other sister Churches who ought not to be present at Church-censures, as our Brethren teach, are to repute the Excommunicate cast out by a sister Church-independent (as they say) as an Heathen, because being bound in Heaven: here, is he not bound in a Church visible, one mile distant from the Church Excommunicating? yet this is no tyranny of conscience. 3. Women are to execute the sentence and to eschew the company of the party Excommunicated, yet are they not to be present …s Judges to n…rp authority over the men. This hRobnson justi…. of sepa…at. p. 170.Robinson granteth. 4. This should evert all judicatories of peace and war, so many thousands, Acts 2. could not be present at every act of censure and that dayly, nor are acts o… Discipline necessarily tied to the Lords-day They are (I grant) acts of Divine worship, but the whole multitude of women and children are deprived of the liberty that God hath given them for six dayes to the works of their calling, if they must be personally present, at all the acts of Discipline, to cognosce of all scandals, and to here and receive Testimonies against Elders under two or three witnesses, which is the office of Timothy i… Tim. 5. ….this way the overseeing of the manners of the people, which also our Brethren laye upon the whole people, taketh up the great part of the Pastors office, and the whole office of ruling Elders. And if we lay upon the people the worke and all the acts of the office, how can we not lay upon them the office it selfe? 5. All Israel gathered to war, from Dan to Beersheba, could not, by vertue of duty and obligation, be present personally at the determination of lawfull War: Nay if they were all present, as Judges, as cAins. loc. cit.Mr. Ainsworth would have them, there be no Governors and Feeders in Israel, but all the governed are Feeders, and so no Magistrate and Ruler, as Anabaptists teach here. 1. It were not lawfull for one to be King over more people, then he could in his own personall presence judge, contrary to Gods Word, that teacheth us to obey these who are sent by the supreme Magistrate, as we obey the King, 1 Pet. 2. 13. 14. Ergo, these who are sent by him are lawfull Judges, and yet the King Judgeth by them, and in them. 2. This error is founded upon a worse error, to wit, that the supreme Magistrate had no power of life and death in Israel, without consent of the people, but certainly there are as specious and plausible reasons, if not more specious, for the peoples government in all civill matters, then there can be for their Churchpower of judging in the Church-matters, and government therof. Yet there is no ground for it. 1. Because the Rulers only could not be charged, to execute judgement in the morning, to deliver the oppressed, to execute judgement for the Fatherlesse and the VViddow, nor can there be a promise made to establish, the Kings Throne for obeying that Commandement, as (a) Gods Jer. 22. 3, 4, 5. Deut. 17. 18, 19, 20. 1 Ki. 11. 38. 39. Isa. 1. 22. 23.Word teacheth; if the people have as great, yea, greater power in Judging, then the Rulers have by this our Brethrens argument. They say all the Believers at Corinth. 1 Cor. 5. could not be commanded to cast out the incestuous person, nor could they all be taxed for omitting that duty, if they had not power to excommunicate. 2. Neither can the Spirit of God complaint that the Judges builded Zion with blood, and the heads of the house of Jacob, and Princes of the house of Israel did abhor judgement and pervert equity as the Prophets say, eMicah. 3. 9, 10. 11.nor could they be condemned as roaring Lyons and evening Wolves, as the Prophet sayth: for the Judge… might well be faultlesse, when the poore were crushed in the Gate, and Judgement turned into Gall and Wormewood, because they cannot helpe the matter, the people are the greatest part in caring matters in judgement. 2. We see fZeph. 3. 3.Davids practise in condemning the Amalckite out of his own confession, not asking the peoples consent, and in condemning to death g2 Sam. 1. 15Baanah and Rehab, for killing Ishbosheth. Solomon gave sentence h2 Sam. 4. 8. 12.against Adoniiah, Ioab, Shimei, without consent of the people, David pardoned Shimei contrary to the counsell of Zerviahs sons. 3. If from the peoples witnessing and hearing of judgement in the Gate, we conclude the people were Judges, with the Rulers, there was never a time, when there was no King in Israel, and no Iudge to put evill doers to shame, but every man did what seemed good in his own Eys, contrary to Scripture i1 Ki. 2.because all are a generation of Kings and Princes no lesse then the Ruler himselfe, as Anabaptists teach. By the Doctrine of Jud. 18. 1. v. 7.our brethren I deny not but he that gathered stickes on the Sabbath was brought, Num. 15. 33. to Moses and to Aaron and to all the Congregation, but the Congregation signifieth not the common multitude. For 35. Moses received the sentence from God and pronounced it, and the Congregation stoned him to death, And Numb. 27. 1. The Daughters of Zelophehad stood before Moses, Eleazar, and before the Princes as Iudges, and before all the Congregation, as witnesses, not as Judges: but v. 6. 7. Moses gave out the judiciall sentence, from the Lords mouth. And 1 King. 21. 12. Naboth stood in presence of the people to be judged, but the Nobles and Princes were his Judges, because v. 8. Iezabel wrote to the Nobles and Princes that v. 10. they should carry out Naboth and stone him, to wit, judicially, and v. 11. The Nobles and Princes did as Iezabel had sent unto them. And Ieremiah cap. 26. pleaded his cause before the Princes and people, for v. 10. The Princes.
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Set down (judicially) in the entry of the new gate of the Lords House, nothing can be gathered from the place to prove that the people judged, but because Ieremiah spake to the Princes and the people who vers. 24: were in a fury and rage against Ieremiah, if Ahikam had not saved him from their violence.