An assertion of the government of the Church of Scotland in the points of ruling-elders and of the authority of presbyteries and synods with a postscript in answer to a treatise lately published against presbyteriall government.
Gillespie, George, 1613-1648.

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 Page  165 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 prai∣sing of God, and for the reading and expoun∣ding 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, un∣to 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 〈 in non-Latin alphabet 〉, 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 two∣fold Page  166 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 Eccesiasticall Court at all.* As for the Sy∣nagogues, 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 foretel∣leth 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 pre∣sided 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 o∣ther Page  167 Synagogues, Matth. 10.17. 4. The bea∣ting and scourging in the Synagogues was an errour and abuse of the later times, the cor∣rective power of those Consistories being properly spirituall, and ending in excommu∣nication, Jo. 16.2. Isai. 66.5. the liberty of which spirituall censures the Romans did permit to the Jewes, together with the li∣berty of their religion, after they had taken away their civill Jurisdiction. 5. Civill ex∣communication 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 excom∣municated 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 im∣port any permission or leave given to excom∣municate persons to enter into the Temple, Page  168 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 excommunica∣tion 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 Ec∣clesiasticall Court among the Jewes. Come we next to the supreame Court. That there was an high Ecclesiasticall Sanedrim, di∣stinct from the Civill Sanedrim, is observed by Pelargus on Deut. 17. and Spingius ad bonam fidem Sibrandi. pag. 261. & seq. Be∣side 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 Page  169 his name there, the one of the Priests & Levis, the other of the Judges: & unto these two su∣preame Courts, the Lord appointed all mat∣ters 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.* To this Sutlivius answereth, that there is only one Sanedrim in that place, which was civill, as appeareth by their jud∣ging of the causes of blood, and their recei∣ving 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 distin∣guish the Judges from the Priests, verse 12. as Iunius and Ainsworth doe rightly note up∣on that place: The man that will doe presump∣tuously, and will not hearken unto the Priest (that standeth to minister there before the Lord thy God) or unto the Iudge. Here a distinction be∣twixt the Court of the Priests and the Court of the Judges, which Lyranus also acknow∣ledgeth. 2. The Chaldee readeth Iudges in the plurall. By the Judge, saith Ainsworth, is understood the high Councell or Senat of Page  170 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,* the Ius and the factum. The Ius was judged in the Court of the Priests, because as Blson teacheth, the civill Law of the Jewes was Gods judiciall Law,* and it was to be sought at the Priests mouth. But the fact being meerely civill, was judged by the civill Court. Sutlvius objecteth, that many incon∣veniences 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 Page  171 Judges are dumbe Images, which must pronounce according to the sentence of o∣thers. To the 1. we say that our distinction doth not import that the Judges were igno∣rant of the Law, but that it pertained not to them to judge the meaning of the Law, when the same was controverted among the Infe∣feriour civill Judges: this pertained to the Court of the Priests. 2. It is no absurdity to expound a disjunctive sentence of two seve∣rall 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 sen∣tence, de jure. It is not the probation, but the supposition of the fact whereupon the expo∣sition of the sence of the Law is grounded. 5. The cognition of the fact, not of the law, doh belong to an Inquest in Scotland, they are Iudics 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 ac∣knowledge 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 Page  172 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,*, 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 ac∣cording to the Law of the Lord; and by the Kings matters are meant, his patrimony and domesticke affaires. Answer 1. The Text di∣stinguisheth two Courts, one which medled with the Lords matters, whose president was Amariah, the chiefe Priest: another which medled with the Kings matters, whose pre∣sident 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,* as Didoclavius hath observed, which we explaine thus, Moreover in Ierusalem did Iehshoaphat set of the Levits, Page  173 and of the Priests, and of the chiefe of the Fa∣thers 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 pro∣veth 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 contro∣versies the Priests were to stand in judge∣ment, Page  174 Ezech. 44.23.24. Lastly, it is not to be thought, that the high Sanedrim should neede to be troubled with the Kings dome∣sticke 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,*He is guilty of death. So did this Ecclesiasticall Court conclude agist Ieremy, He is worthy of Death: yet the cnrary was concluded in the civill Sane∣drim, 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 a∣gainst 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 Page  175 that he is not worthy of death, because wee finde him blamelesse of the fact. Sutclivius denieth that the Priests were Iudices Iuris,* and the Princes Iudices facti; only the Prin∣ces 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, nei∣ther 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 sen∣tence was given in two Courts, I would gladly know what difference could bee made betwixt the one sentence and the other, ex∣cept that difference, de jure, and de facto, es∣pecially 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. Page  176 And now to proceed.* 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.

*But we have yet more to doe, for the con∣sequence 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,* 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 o∣ther, 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,* 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, Page  177 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 ex∣postulation, 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 rati∣onale, 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 Eccle∣siasticall Republike (of which sort of things, the diversity and subordination of Ecclesia∣sticall 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 Page  178 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 Ecclesiasti∣call Republike, diversity of Spirituall Courts, and the supreame to receive appel∣lations from the Inferiour, because so was the constitution of the Jewish Church, and that under the common respect and ac∣count of a politicall Church, and not for any speciall reason, which doth not concerne us.