An Assertion of the Government of the Church of Scotland (1641)
Second Part, Chapter 7

In the third place, we take an argument from the example of the Jewish church; for, as in their commonwealth there was a subordination of civil courts, every city having its proper court, which did consist of seven magistrates, if we believe Josephus; the Talmudical tradition maketh two courts to have been in each city, the lesser of the triumvirat, and the greater of twenty-three judges. Beside these, they had their supreme consistory, the civil sanhedrim, which governed the whole nation, and had authority over the inferior courts. So was there also a subordination of ecclesiastical 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 public correction of offences, Acts 26.11. They had, besides, a supreme ecclesiastical court, whereunto the whole nation, and all the synagogical consistories were subject. This court having decayed, was restored by Jehoshaphat, 2 Chron. 19.8, and it had the name of sanhedrim common to it with the supreme civil court. From this court did the reformation of that national church proceed, Nehem. 8.13, “On the second day were gathered together the chief of the fathers of all the people, the priests and the Levites, 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 ecclesiastical court in the middle, betwixt the synagogue and the sanhedrim, called presbuterion, 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 plain from Scripture that there was at least a two-fold ecclesiastical court among the Jews, the synagogue and the sanhedrim, the latter having authority above the former.

Sutlivius [De Presbyt. p. 25.] denieth both these, and so would have us to believe that the Jewish church had no ecclesiastical court at all. As for synagogues, he saith, they treated of things civil, and inflicted civil punishments, and a civil excommunication. That they inflicted civil punishment, he proveth from Matt. 10.23; Luke 21., where Christ foretelleth that his disciples should be beaten in the synagogues. That their excommunication was civil 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 access to the sacrifices. Answer. This is a gross mistake; for, (1.) The civil court was in the gate of the city, not in the synagogue. (2.) He who presided in the synagogue was called “the chief ruler of the synagogue,” Acts 18.8,17; the rest who sat and voiced therein were called “the rulers of the synagogue,” Acts 13.15. They who sat in the civil court had no such names, but were called judges. (3.) Our Saviour distinguished the synagogical courts from the civil courts of judgment in cities, calling the one councils, the other synagogues, Matt. 10.17. (4.) The beating and scourging in the synagogues was an error and abuse of the later times, the corrective power of those consistories being properly spiritual, and ending in excommunication, John 16.2; Isa. 66.5, the liberty of which spiritual censures the Romans did permit to the Jews, together with the liberty of their religion, after they had taken away their civil jurisdiction. (5.) Civil excommunication is an unknown word, and his reason for it is no less unknown; for where he hath read that Christ or any of his disciples were excommunicated out of the synagogues, and yet had free access to the temple, I cannot understand, if it be not in the gospel of Nicodemus. I read, Luke 4.28,29, that Christ was, in a great tumult, cast out of the city of Nazareth; but this, I hope, no man will call excommunication. The blind man, John 9.34, was indeed excommunicated out of the synagogue, but we nowhere read that he was thereafter found in the temple; we read of Christ’s walking in Solomon’s porch, John 10.23, but that the blind 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 Jews in the synagogue was not civil but sacred; they met for the worship of God, and not for civil affairs. (7.) If by civil excommunication he means 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 access to the temple who were so excommunicated, for this importeth that they were still in the city.

We have now evinced an inferior ecclesiastical court among the Jews. Come we next to the supreme court. That there was an high ecclesiastical sanhedrim, distinct from the civil sanhedrim, is observed by Pelargus, on Deut. 17., and Sopingius, ad Bonam Fidem Sibrandi, p. 261, et seq., beside many others cited before, part 1, chapter 11. And that it was so we prove from three places of the Old Testament, to pass other places, from which certain collections may be had to the same purpose.

First, We find Deut. 17, a distinction of two supreme judicatories, to be set in the place which the Lord should choose to put his name there,—the one of the priests and Levites, the other of the judges; and unto these two supreme courts the Lord appointed all matters which were too hard for the inferior judges in the cities of the land, to be 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 inferior judges, under pain of death, verses 8-12. To this Sutlivius [De Presbyt. p. 16.] answereth, that there is only one sanhedrim in that place, which was civil, as appeareth by their judging of the causes of blood, and their receiving of appellations from the civil judges mentioned in the preceding chapter. As for the judge which is spoken of, verses 9, 12, he saith, we must understand that it was the high priest. Answer (1.) The disjunctive or doth distinguish the judges from the priest, verse 12, as Junius and Ainsworth do rightly note upon that place,—”The man that will do presumptuously, and will not hearken unto the priest (that standeth to minister there before the Lord thy God) or unto the judge.” Here is a distinction betwixt the court of the priests and the court of the judges, which Lyranus also acknowledgeth. (2.) The Chaldee readeth judges in the plural. By the judge, saith Ainsworth, is understood the high council or senate of judges, even as they who are called priests, verse 9, are called the priest, verse 12, and 1 Chron. 4.42, many captains are in the Hebrew called an head. (3.) The high priest cannot be understood to be the judge there spoken of, both because there were many judges, as hath been said, and because we find not in Scripture that ever the high priest was called by the name of the judge. (4.) Whereas he objecteth that the causes of blood, and other civil causes were judged in this sanhedrim, we answer, There were two several things in those civil causes, the jus and the factum. The jus was judged in the court of the priests, because, as Bilson [De Gub. Eccl. Cap. 2, p. 43.] teacheth, the civil law of the Jews was God’s judicial law, Mal. 2.7, and it was to be sought at the priest’s mouth. But the fact being merely civil, was judged by the civil court. Sutlivius objecteth that many inconveniences shall follow this distinction: (1.) Judges are hereby made ignorant of the law. (2.) That two courts of judgment are appointed in one sentence. (3.) That a judge (the priest) may give out a sentence which he cannot execute. (4.) That the civil judges do in vain inquire concerning the fact which was before certain by the law, nam ex facto jus oritur. (5.) That the civil judges are dumb images which must pronounce according to the sentence of others. To the 1st 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 inferior civil judges: this pertained to the court of the priests. 2d. It is not absurdity to expound a disjunctive sentence of two several courts. 3d. He who answereth merely de jure, hath nothing to do with execution of persons more than theory hath to do with practice, or abstracts with concretes. 4th. The fact can never be certain by the sentence, de jure. It is not the probation, but the supposition of the fact, whereupon the exposition of the sense of the law is grounded. 5th. The cognition of the fact, not of the law, doth belong to an inquest in Scotland: they are judicis facti, non juris, yet not dumb images, I suppose. 6th. He hath followed the popish interpreters in making the judge to be the high priest, for so they expound it for the Pope’s cause; yet they themselves acknowledge the distinction of jus and factum. See Cornelius à Lapide, in Deut. 17. 7th. If error had not blinded this man’s eyes with whom I deal, I should believe he had been slumbering when these things fell from his pen.

But, to proceed, as these two sanhedrims were instituted in the law of Moses, so were they after decay or desuetude, restored by Jehoshaphat, 2 Chron. 19.8. Sutlivius [Ubi Supra, p. 20.] answereth, that we have here only one sanhedrim which judgeth both the Lord’s matters and the king’s matters, and that it was not an ecclesiastical court, because it judged causes of blood, and other civil causes wherein appellation was made from the judges of the cities. By the Lord’s matters, he saith, are meant criminal and civil causes, which were to be judged according to the law of the Lord; and by the king’s matters are meant, his patrimony and domestic affairs. Answer (1.) The text distinguisheth two courts, one which meddled with the Lord’s matters, whose president was Amariah the chief priest; another which meddled with the king’s matters, whose president was Zebadiah. This is so plain, that Bonfrerius the Jesuit, on Deut. 17, though he maketh the priests to have been the judges, yet acknowledgeth two distinct courts, 2 Chron. 19. (2.) The words, verse 8, must be understood respectively, as Didoclavius [Alt. Dam. p. 24.] hath observed, which we explain thus, “Moreover, in Jerusalem did Jehoshaphat set of the Levites, and of the priests, and of the chief of the fathers of Israel, for the judgment of the Lord (that is, for causes ecclesiastical), and (repeat, of the Levites, of the priests, and of the chief of the fathers of Israel) for controversies” (about civil 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 sat in both, but only that some of the priests and some of the fathers of Israel were in both. (3.) The Lord’s matters, Lavater and Piscator expound to be things ecclesiastical; the king’s matters to be things civil; and this exposition comprehended all things which did fall within the power of those courts. But Sutlivius’ gloss doth not so, for there were sundry things to be judged which were neither the king’s domestic affairs, nor yet causes criminal or civil,—such as were questions about vows, questions about the meaning of the law, and judging betwixt the holy and the profane, betwixt that which was clean and that which was unclean. These, and such like ecclesiastical causes, he leaveth out, and they are indeed left out of the power of the civil sanhedrim and reserved to the other, for in such controversies the priests were to stand in judgment, Ezek. 44.23,24. Lastly, it is not to be thought that the high sanhedrim should need to be troubled with the king’s domestic affairs, far less that this should be made the one half of their commission.

Now as we have the institution of these two supreme courts, Deut. 17, and the restitution of them both, 2 Chron. 19, so have we an example of both, Jer. 26; for, first, Jeremiah was condemned, as worthy of death, because he had spoken against the temple and the holy place, verses 8,11; and herein saith Oecolampadius on that place: He was a type of Christ, against whom it was pronounced, in the council of the chief priests and elders, “He is guilty of death,” Matt. 26.66. So did this ecclesiastical court conclude against Jeremiah, “He is worthy of death;” yet the contrary was concluded in the civil sanhedrim, verses 10,16, “This man (say they) is not worthy to die, 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 Jeremiah, but we find 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 speak; therefore as you pronounced him worthy of death, upon supposition of the fact, we now pronounce that he is not worthy of death, because we find him blameless of the fact. Sutlivius [Ubi supra, p. 28.] denieth that the priests were judices juris, and the princes judices facti; only the princes did, against the will of the priests, set Jeremiah free, whom they had destinated to death. But, say I, he must either deny that Jeremiah was judged in two several courts or not; if he deny it, the text is against him, for that he was judged in the court of the princes, it is plain from verse 10,16; and that he was judged in the court of the priests, is plain also from verses 8,9. Where we find the priests coming together, neither to reason with Jeremiah (for they had no such purpose as to give him leave to speak for himself), nor yet to accuse him, for that they do before the princes, verse 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 be made betwixt the one sentence and the other, except that difference de jure and de facto, especially the same suiting the text so well as hath been said.

Of the vestiges of those two supreme courts still remaining in some sort distinct, in the days of Christ, I have spoken before. And now, to proceed, we have proved [Bertram. de Polit. Jud. Cap. 11, ex. 18.] the antecedent of this our present argument, concerning distinct ecclesiastical courts among the Jews, and the subjection of the lower unto the higher, of the synagogue unto the sanhedrim.

But we have yet more to do, for the consequence of our arguments is also denied, both by the prelatical faction and by others [Sutliv. De Pres., cap. 2.] (whom we are more sorry to contradict), holding that reasons fetched from the Jewish church do better fat the prelates than the Consistorians [Robinson, Just. of Separ, p. 163.]; howsoever, now, to fetch the form of government for the church from the church of the Jews, were, say they, to revive the Old Testament. To me it seemeth strange, that both the one side and the other do, when they please, reason from the forms of the Jewish church, and yet they will not permit us to reason in like manner. The former go about to prove the prelacy by the high priesthood, and the lawful use of organs in the church, from the like in the temple of Solomon. The latter do argue, that a congregation hath right not only to elect ministers, but to ordain them, and lay hands on them, because the people of Israel laid hands on the Levites. That the maintenance of the ministers of the gospel ought to be voluntary, because, under the law, God would not have the priests and Levites 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 unclean, 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 form of the Jews? I will not use any further expostulation, but let the reader judge. The truth is this: Even as that which is in a child, as he is a child, agreeth not to a man, yet that which is in a child, as he is animal rationale, agreeth also to a man; so what we find 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 political church, or ecclesiastical republic (of which sort of things the diversity and subordination of ecclesiastical courts was one), doth belong by the same reason to the Christian church. I say further, though the commonwealth and civil policy of the Jews be not in all points a pattern to our civil policy, yet I am sure it is no error to imitate the civil policy of the Jews in such things as they had, not for any special reason proper to them, but are common to all well constituted commonwealths; and so we may argue from their commonwealth, that it is a good policy to have divers civil courts, and the higher to receive appellations from the inferior, as it was among them. Shall we not, by the very like reason, fetch from their ecclesiastical republic diversity of spiritual courts, and the supreme to receive appellations from the inferior, because so was the constitution of the Jewish church, and that under the common respect and account of a political church, and not for any special reason which doth not concern us?