oblige the conscience Hence we may gather how impossible it is to share betwixt laity and clergy by Divine and humane right power of legislation and jurisdiction about things causes and persons as that pastors and ministers should be over things that are of divine right and magistrates over those things that are of humane right without clashing of powers causes and persons there being such a complication of right causes and persons that they cannot be so much as imagined a sunder besides that the preaching of the Gospell and magistracy do comprehend all actions of man and parts of life wherein men ought to live godly justly and soberly CHAPTER III. The nature matter forme and author of law The canons and sentences of Church-judicatories have no force of law except they receive it from the sanction of the magistrate The defects in the division of lawes into Divine and humane into morall ceremoniall and politick and into Ecclesiasticall and civil INtending chiefly to prove the vanity and nullity of a power called ecclesiasticall distinct from that of the magistrate since also no power of legislation nor of jurisdiction can be exercised without a power to make a law and to command obedience to the law it will be requisite to know the nature of law that so making good that Church-officers are not invested with any power to make lawes or to command obedience to them all their jurisdiction may be brought to just nothing Law sometimes is taken for a dictate of nature or right reason and consent of nations thus they say of Aesop that though he was free by nature yet the law of man enslaved him generally it is defined the rule of actions and duties This ensuing definition I conceive to be one of the most perfect Law is a rule of life and of morall actions made and published by a legislatour armed with a judiciall power commanding things to be done and forbidding things that are not to be done under recompenses and penalties To understand the nature of law we must consider the matter of law which is whatever can be commanded whether God or man be the author of it so that no causes or things can be exempted from being the matter of the law of God or of man it is enough that it may be commanded The very doctrine and matter of faith may be matter of the law for the Hebrew thorah signifieth both law and doctrine so that there is no doubt but that not only the decalogue but also all the doctrine of the Gospell is matter of the law For were there any thing that should not be the matter of the law of man we had need to have a visible infallible judge on earth besides the soveraign magistrate who should determine which thing must be the matter of the law which not The very doctrine of the Trinity is made the matter of the Code of Justinian and Theodosius commanded that all his subjects should embrace the religion that Peter the Apostle Damasus of Rome and Peter of Alexandria professed 2. Next we must consider the form of the law which giveth force of law and without which law would be no law and no obedience were due to it in the court of man That form is the stamp or sanction of the soveraign power obliging men to obey upon penalties Law saith Campanella without penalty is no law but counsell That form is expressed in short in the Digests Legis virtus c. the vertue of the law is to command to forbid to permit to punish The soveraign power giveth the form of law to any matter that is the subject of a mans dutie or obedience either to God or man yea it giveth form to the lawes of God which though they oblige the conscience whether published or no by the magistrate yet they are of no force in the court of man to oblige for fear of punishment and as the Apostle speaketh for wrath except they are commanded by the magistrate So that it is properly man that giveth name and force to a law and a man may well say with St. Austin ep 66. that Jesus Christ commandeth by the magistrate hoc jubent Imperatores quod jubet Christus quia cum bonum jubent per illos non jubet nisi Christus 3. We must consider the author of the law either as he that hath given his counsell and it may be furnished the matter and contrivance of the law as Tribonianus to Iustinian or he that hath given sanction and force of law to the matter brought to him such was only Justinian and not Tribonianus Sometimes the same person contrives the law and giveth sanction to it such was Solon and Lycurgus God who is the author of his lawes is not the enforcer of them among the Mahumetans nor any where else without a Moses but with those people whom he doth encline to obedience by a law of the spirit 4. To the nature of the law it is required that the legislator be armed with a sword to punish the transgressours of the law therefore equity truth and justice are no conditions required to the validity of a law for it receives force from the will of him who is able to make his will good were it never so bad 5. It is required that the legistator should command his own lawes not anothers commanding in his own name and not in the name of another and therefore those that are invested with judiciall soveraign power are to give account of their actions only to God By what I have said it is easily conceived what force of law have the judgements sentences canons decrees of ecclesiasticall judicatories except they receive form and sanction from the magistrate without which they are but counsels admonitions and advices 1. Touching the matter they may afford it as Tribonianus to Iustinian in that sense they may be the authors of a law but they cannot give form and sanction to it obliging men under penalties in case of disobedience since they are not invested with coactive power without which law is no law except they have that power in subordination to the magistrate for two coordinate powers cannot give sanction to the same law except it could be imagined that the will of one should never crosse the will of the other which is not conceivable 2. Ministers and church-judicatories are not to command any lawes much lesse their own lawes but only deliver the commands of a superiour either God or the magistrate The pastor may say with Moses Exod. 18. v. 15. I do make the people know the statutes of God his lawes but he cannot lay any penalty upon the breaker of the law except as Moses he be invested with magistracy But were the minister not only to deliver the commands of God but also lay a command this he could not do but in the name of God and therefore the magistrate hath this priviledge that although he be a minister of God as well as
magistrate thus the decalogue is as well a law of the magistrate as of God Yea I maintain that a command or law of God hath no force of law in the court of man or in any presbytery synod or assembly whatsoever binding to active or passive obedience except it hath the stamp of magistracy and be published anew by the soveraign magistrate and that no man can be punished legally for robbing and stealing yea not for killing much lesse can he be excommunicated except there be a law of man against robbers and murtherers and that some magistracy impowereth churches or synods to passe a sentence of excommunication 5. This also hath been a great mistake which made many deny a subordination of ecclesiasticall to civil because those that embrace the true religion and live under those that hate them or persecute them endeavour as to have a communion independent from the magistrate so also a jurisdiction 6. Another errour in making the church jurisdiction not subordinate but wholly independent from the magistrate is this assertion easily descending into the minds of those that affect rule and jurisdiction viz. that the end of magistracy is outward peace and quietnesse only and purchasing all means to the attaining of the preservation of temporall life wealth and prosperity having nothing to do with promoting the eternall good and happinesse of the soul But this errour is not only refuted by the very heathens but also by the most learned orthodox Divines both English and others Pareus on the 13. to the Romans dubio 5. saith the end of the magistrate is not only the civil good but also the spirituall good of the subjects that religion may flourish in the church according to the word of God and so Junius Meditat. on the 122. Psalm tom 1. col 721. saith that the magistrate is to procure by divine and humane right the good of the spirituall Kingdom of Christ But Antonius de Dominis lib. 5. de republica ecclesiastica cap. 5. § 1. is very prolix and nervous to prove that he that is invested from God with a power to purchase naturall felicity is also invested with a power to promote the spirituall 7. It is also a great errour to make a coordination of powers seated in the same persons For if it could be imagined that one part of the people were the Church and the other part the Commonwealth they might be also imagined independent one from another thus a society of merchants and a colledge of scholars may be well imagined to be corporations so independent one from the other that none of the society of merchants are part of the colledge and none of the colledge are part of the society But granting that the same persons are members of the society of merchants and of the colledge of scholars the command law discipline of those two corporations as long as they admit the same members must have either a perpetuall conflict and clashing or the command of one corporation must be subordinate to the command of the other or else if they be both coordinate they must also be both equally subordinate to a power set over them both This is the case between the Church and the Commonwealth Granting that the same persons are members of the Commonwealth and of the Church it is not possible to make these two jurisdictions coordinate and yet subsist together in peace love and amity and without one disturbs the other they must joyntly agree to have one power over them or the law injunction and commands of one must be subordinate to the lawes of the other 8. The grandest inconvenience in this coordination of powers and jurisdictions is that the same persons being members of societies under both these powers and submitting to the commands of both shall be in continuall perplexity which to obey if both do not command one thing There is such a communion in mens actions causes relations functions callings commands duties jurisdictions freedoms liberties among those that live under one soveraign power and within the precincts of one jurisdiction that it is impossible that any outward action can be performed in whatever relation a man be considered as husband master father pastor lawyer physitian merchant at home or in church in a synod or in a city or hall except they all are modified ruled and directed by one supreme jurisdiction otherwise the saying of Tacitus would prove true ubi plures imperant nemo obsequitur where there be many coordinate powers there is none found to obey When a magistrate doth command a subject to attend him in the wars this command doth exempt him from the commands and injunctions that may be made to him as he is a son member of a consistory or of a synod or of some other corporation therefore when the King of Scotland in the year 1582. commanded the magistrate of Edenburgh to entertain and feast a French Ambassadour on a set day and the presbytery of Edenburgh to crosse this command had enjoyned a fast upon the same day since both commands could not be obeyed at once by the magistrate of Edenburgh either the magistrates commands must be subordinate to those of the presbytery or the commands of the presbytery must be subordinate to those of the magistrate or else the different commands of both must be subordinate to a third power above both presbytery and magistrate I have brought in my Paraenesis a cloud of witnesses Martyr Musculus Gualterus Iunius Pareus Cassander Hooker Antonius de Dominis proving the necessity that the power called ecclesiasticall should be subordinate to that of the magistrate I will only alledge Musculus in whom we shall see the sense of all the rest loc com de magistratibus The way and nature of government cannot bear that in the same people there be two authentick powers two diverse legislations and dominations except it be by subordination as there is no place for two heads upon one body Learned Dr. Hammond who is neither for Geneva presbytery nor of Erastus opinion nor yet of Musculus Bullingerus Gualterus who made little account of excommunication yet he holds that ecclesiasticall power is subject to the civil magistrate who in all causes over all persons is acknowledged supreme under Christ These be his words in his tract of the power of the keyes p. 87. though by them he overthroweth all power in ministers and Bishops of excommunicating independently from the magistrate which yet he strives to assert against Erastus Mr. Rutherford and Mr. Gillespie think that if it were granted that the magistrate is Christs viceregent it would subvert wholly the grounds upon which ecclesiasticall presbyterian power is built I question whether this concession of Dr. Hammond that the magistrate is the governour of the Church under Christ would not equally unsettle his episcopall excommunication I should in this chapter as I intended at first shew the vanity and nullity of the multitude of divisions and subdivisions of ecclesiasticall
naturall power right liberty and prudence in ordering all kinds of affairs societies and families are no otherwise distinct in kind or species then a yard that measured cloth differs from that which measured searge as a yard is alike appliable to silk and thred and the same hammer will knock in an iron naile and a wooden pin so the same power and prudence governeth the church and a colledge It is also observable that a man being at once a member of a family hall city Parliament church doth not act alwaies according to the quality of his relation function and place publick or private not acting as a physitian father or husband but as a judge and not as a church-member but as a free member of a society Thus a member of a colledge of physitians joyneth in consultation with his brethren in a case of physick as a physitian but in making lawes regulating the practise of physick and the apothecaries entrenching upon the physitians he doth not act as a physitian but as a judge and as a person invested with judiciall power from the state The same physitian in a Parliament upon the matter and question of physick and of physitians to be regulated may speak pertinently of his art as a physitian but doth not vote give his consent to the making of a law about physick as a physitian but as a judge of the land Likewise to be sure by what right pastors and people act in the church the acts and actions of a pastor or church-member are to be considered either as acts of pastors and of church-members or as they are acts of rulers and members of a society The act of a pastor as pastor is to discharge all ministeriall function commanded in the revealed word and not declared by any dictate of nature In those acts I see no right of jurisdiction but over the inward man when by the power of the word the sinner is brought to the obedience of the crosse of Christ The acts of church-members as such are either in relation to the pastor or of one member to another In relation to the pastor the acts are to submit to the minister ruling them and dispensing unto them the word They may have that liberty to try his doctrine and to do as they of Beroea who searched the Scriptures to know whether it was so as St. Paul preached unto them this is also an act of every faithfull member of the church not to assent to any doctrine because it hath been assented unto by the major part of suffrages but in things that concern order and discipline to yield to the constitutions agreed on by the major part of the assembly so that by them the bond of charity and the truth of the doctrine be not violated and perverted The acts of church-members relating one to another are to bear one anothers burthens to forgive and edifie one another to preferre another before himself The acts of pastors and church-members as they are endowed with a power common to all other societies are 1. to do all things orderly 2. to make a discipline sutable to time and place since there is not in the Scripture a positive precept concerning the same 3. to oblige every member to the lawes of the discipline voted by the major part of the members 4. to admit and expell the members which by the major part are thought fit so to be Many other acts are performed by the same members not as church-members as to appeal to a superiour tribunall as magistracy or synod in case of wrong sustained for they do not oppose a just defence to wrong by any other right then a member of any society should do Thus an assembly of Christians meeting in a church way being persecuted or assaulted in their temple by rude and wicked men doth not oppose a just defence by weapons or otherwise as church-members but as men invested with naturall power against an unjust violence In short ministers and people have many actâ—ngs within the sphear of Christian duties which are not proper to them as Christians and members of churches being like in that to a physitian who doth not build as a physitian or to a counsellor of State carrying a letter to a friend who acts then the part of a letter-bearer thus a father hath a power over his son by a naturall paternall right but he doth instruct him in a Gospell way by a paternall Christian right and duty grounded upon a positive precept of the Scripture thus Queen Mary of England established a religion by a naturall right power and duty annexed to all soveraignty to order sacred things with a soveraign authority but Queen Elizabeth did overthrow the false worship and did set up Protestant religion not only by the same right that Queen Mary had but also by a positive right as principall church-member as Ezechiah Iosiah c. appointed by God to be heads and nursing fathers and mothers of the churches The same things lawes and constitutions that are of divine right are also of humane right and likewise the things that are of humane right in a good sense may be said to be of divine right Things are said to be of divine or humane right either because the matter of right is concerning Gods worship or humane policie or because God or man is the author of them Thus the lawes of the Iewes regulating their Commonwealth are said both to be of divine and humane right divine because God is the authour of them humane because they order all affairs about mine and thine right and wrong and betwixt man and man Likewise many things have been instituted with great wisedome by magistrates and councils which may well be said to be both of divine and humane right Divine because they further the purity of worship and power of godlinesse humane because they were instituted by men and may suffer alteration and reformation So things that are every way of divine right both for the matter and institution as the eating of the passeover and the observation of the Sabbath may be said to be of humane right because commanded and enjoyned by humane authority The very calling of synods which they say is of divine institution both for their institution which is Apostolick and for the matter that is handled in them none but a papist did yet deny to be the Emperours and magistrates right Thus fasting prayer publick humiliation though duties to be performed by divine right and precept are also of humane right as commanded and ordered by the magistrate in a publick way Thus it was the good Kings of Iuda's right and none can blame them for it to command fasting and prayers Lastly things that are every way of humane right and made by man and have for their object the regulating of humane affairs as are the lawes concerning conduit-pipes buildings forests chases c. may conveniently be said to be of divine right because by divine right they
the magistrate is not head of the church more then of other societies for as the callings of a physitian merchant smith sea-man so of a Christian as Christian and church-member are not subordinate to magistracy but only under the notion of and as they are members of families societies corporations and commonwealths in all which magistracy is virtually and eminently resident in regard that no society of men can be imagined to be governed either without a power delegate from the magistrate or without assuming magistracy within it self In that sense the magistrate may be said for these three or four reasons to be head of a visible nationall church 1. Because the matter manner and extent of the power exercised by that church being wholly the same with that of the magistrate it is needlesse to make of one power two and therefore the magistrate being the supreme governour in the managing of that power exercised alike in all kinds of societies within his dominion he may very properly be the supreme governour as well of churches as of all other societies 2. The magistrate may be said to be head of the visible church because there is no man of what place function calling dignity so ever he be that in an externall visible way can so much promote the interest of Jesus Christ and the building up of his Kingdom as the supreme magistrate not so much considered as Christian but as magistrate and by vertue of his magistracy None doth doubt but that one single woman namely Queen Elizabeth being a magistrate did contribute more for establishing and spreading the Gospell of Christ in England then all the godly ministers put together in the dayes of Queen Mary Let but one single magistrate countenance religion this will avail more then thousands of Greenhams or Bradfords under a magistrate of a contrary religion Sure where God hath given more ability and power to do good he also hath placed there more right duty to promote that good I think there was more stresse of duty laid upon Queen Elizabeth to advance Christs Kingdom in England then on 100. Bradfords Latimers and Ridleys in Queen Maries dayes A 3. ground may be added why the sovereign magistrate may be called the head of the church and which is much pressed by Reynolds Martyr Musculus Bullingerus Gualterus Zanchius Pareus is because all the decisions of ministers about matters of faith or discipline are but mere counsels advices and directions not binding externally that is actively or passively any church society or corporation except they receive a sanction from the magistrate and besides that these sanctions are not to be made by him caeco judicio with a blind judgement standing to their determination without examination and doing as much as those of Beroea who ere they believed St. Paul searched the Scriptures to know whether it was so as he preached As no obedience is to be rendred by any person society or corporation without they duly weigh in their judgement of discretion whether the command be just or no so a command is not to be made by the person whose duty and part it is to command untill he first understandeth and apprehendeth by his judgement of discretion the thing to be a good and a fitting rule of obedience So that since presbyteries and â—ynods cannot enforce obligation of obedience to their declarations and decisions without the injunction and command of the magistrate since also he is not to enjoin or command any thing repugnant to his own judgement it doth consequently follow that good reason it is that he who last is to judge and command any thing propounded and debated in whatever assembly of men should be stiled the sovereign judge head ruler and governour of those things that are solely in his own power Fourthly he may be said to be head of the church because of three main duties which are annexed to his office of magistracy which comprehend what is requisite for life godlinesse and happinesse The 1. is provisio mediorum conducentium ad finem optimum provision of the means conducing to the best end 2. remotio impedientium the removing of hinderances 3. actualis directio in illum finem an actuall direction ordering things to that end These 3. conditions Javellus a Romish Bishop layes down to assert the soveraign power of the magistrate in judging providing ordering and removing in order to obtaining the best end which he saith is the main felicity of man Lastly he may be well called head of the church that receiveth appeals from all church-judicatories and disannuls or ratifies their judgements and sentences But Mr. Rutherfurd denieth those acts to be appeals being not in eadem serie from a lower ecclesiasticall court to a superiour ecclesiasticall court and saith that from an ecclesiasticall court to a civil as to the magistrate there is no appeal but a removall by a declinator a complaint a refuge But we having proved that synods presbyteries c. have no jurisdiction but what they have from the magistrate therefore all appeals from a church-judicatorie to the magistrate are but from an inseriour court of the magistrate to a superiour of the same magistrate Rivet on the decalogue had not learned such squibs of distinctions betwixt appeals and refuges complaints and declinators for by any means he would have men to appeal to the magistrate from church-sentences Ministers as ministers are the subjects of the soveraign magistrate and why may it not be lawfull for subjects to appeal from the judgements of subjects to the supreme magistrate and why may it not be lawfull to the supreme magistrate to review the judgements of his subjects to ratifie them if they be good and abolish them if they be bad For call those removals what you will so that the thing be still the same for he that from an unjust sentence of a church-judicatorie hath his recourse to the magistrate both declines the sentence of that court appeals to a higher court and makes his complaint to him that can redresse him help him and disannull the first sentence I confesse if a man be condemned in England he may have his refuge to some neighbour Prince but this Prince can but protect him from the execution of the sentence against him but cannot disannull the sentence against him nor restore him in statu quo prius Such are the examples of Chrysostomus Flavianus and Athanasius which are to no purpose for they repaired to the Bishop of Rome desiring indeed to be judged by him but they did not look upon him as their superiour that could relieve them and quash the sentence against them they repaired to him only as to a mediatour and intercessour Authorities should now make good what I have proved to be consonant to reason such as might be brought out of the best reformers as Martyr Reynolds Pareus Chamier who make no other supreme visible governour of the church then the soveraign magistrate but I will
not of their own nation and religion then they performed by a confederate discipline what the magistrate was to enjoin and command them The confession of Basilartic 6. hath a notable saying speaking of the duty of magistrates to propagate the Gospell as they are magistrates This duty was enjoyned a magistrate of the gentils how much more ought it to be commended to the Christian magistrate being the Vicar of God If then the heathen magistrate fails of his duty in not propagating the Gospell those that live under him and are better minded ought to supply the part of the magistrate in that particular and yet in doing of that they do but perform their own duty and businesse like as a master leading his horse down the hill his man being out of the way doeth both his own businesse and that of his man and both employeth his own strength in guiding an unruly horse and supplieth that of his man or which expresseth more lively the thing in hand as the Duke of Somerset in training up Prince Edward in the true religion did both do his own duty and that of Henry the 8. his father who being wanting to his duty in shewing his power authority to have his son brought up in the true Protestant religion Somerset Cranmer and others were not to be wanting to theirs and yet were not to act by a power distinct from the power of the King for if so then when ever a power is exercised rightly and yet against an unlawfull command of a superiour we had need to give a new name to that power and there would be as many kinds of power as duties to be performed Having done with Origen I come to Ambrose whom I was to alledge upon the 1. of Timothy relating to the places of St. Paul and Origen and to the power of magistracy assumed by churches There he teacheth the custom both of the synagogues of Christian churches of having elders that composed in stead of the magistrate controversies arising amongst church-members saying that first synagogues and afterwards churches had elders without whose advice there was nothing done in the church and wondreth that in his time which was about the year 370 such men were out of use which he thinks came by the negligence or rather pride of some Doctors who thought it was beneath them to be esteemed the lesse in the church as S. Paul saith of them while they are to decide controversies not as judges invested with a coercive power but only as arbitrators and umpires But the true cause why these elders ceased which he wisheth had been still continued he mentioneth not but the true cause is when the magistrate that was for above 300. years heathenish became Christian these arbitrators and elders ceased in great part at least they were more out of churches then in churches and in stead of them the Emperours created judges which yet retained much of the nature of those whereof Origen and Ambrose speak and which were invested as most of the Lawyers affirm as Cujacius for one with them my Rev. Father in his book de Monarchia temporal and in his Hyperaspistes lib. 3. cap. 15. not with a coercive jurisdiction but as they term it audience hence comes the Bishops and Deanes and Chapters Audit However such arbitrators sate in a court and were chosen by the Christian Emperours and were not members as before ever since St. Pauls time chosen by the members of that church where the contention did arise betwixt brother and brother and at that time it was not thought a violation of the command of St. Paul if a wronged brother had gone to secular judges because they were not infidels but Christians faithfull and saints as the Apostle termeth them 1 Cor. 6. 2. therefore it was free for any lay-man or other either to repair to the Audit of the Bishop or to the secular judge Which custome Ambrose doth not like so well as when Jewes and Christians were obliged by the law of their discipline to have controversies decided by their own elders Certain it is that these elders though they were not as Ambrose wisht they had been in his time arbitrators in those churches whereof they were members kept that office a long time under Christian Emperours but with more authority and dignity because they were countenanced by the Emperours their masters We have them mentioned pretty late even in Theodosius Honorius and Arcadius time for in one law they enjoin that ordinary judges should decide the contentions between Jewes and Gentils not their own elders or arbitrators Thereupon it is worth considering that that title which in the Theodosian Code is de Episcopali audientia in the Justinian Code is de Episcopali judicio a main proof that these judgements in episcopall courts had much still of the nature of those references in churches under the heathen Emperours These episcopall courts were set up by the Emperours to favour the clergy that they might be judged in prima instantia by their own judges for if either party had not stood to the sentence of that court they might appeal to the secular court The words of the 28. Canon of the councell of Chalcedon are very expresse If a clerk hath a matter against a clerk let him not leave his Bishop and appeal to secular judgement but let the cause first be judged by his own Bishop Now this episcopall court being in substance the same power with that of the elders mentioned by Ambrose which were first in synagogues and then in Christian churches under the heathen Emperours one may plainly see how weak and sandy the grounds are upon which ecclesiasticall jurisdiction and the power of the keyes and of binding and loosing in the hands of church-officers is built which government say they is the government of Christ and is to be managed by those church-officers by a warrant from Christ the mediatour For Constantine erecting an episcopall court and empowering the judges of the court to decide causes and controversies did not intend to give them a commission of binding and loosing or to put into their hands the keyes of Heaven so delegating a power which was none of his to give but only granted what was in his own power namely that some magistrates under him should set all things in order in the church and among the clergy Besides he intended to set up that magistracy which was through the necessity of the times assumed first by synagogues then by Christian churches under persecution for sure Constantine did not place the power of the keyes of binding and loosing in the exercise of that power managed either by the elders which Ambrose mentioneth or by the episcopall court erected by himself Neither Constantine nor any of his successours did ever conceive that churches were to be governed by any other power then their own as all other societies of men were In this episcopall court any cause between man and man