Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	defendant_n	plaintiff_n	9,017	5	10.6970	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A81826	Of the right of churches and of the magistrates power over them. Wherein is further made out 1. the nullity and vanity of ecclesiasticall power (of ex-communicating, deposing, and making lawes) independent from the power of magistracy. 2. The absurdity of the distinctions of power and lawes into ecclesiasticall and civil, spirituall and temporall. 3. That these distinctions have introduced the mystery of iniquity into the world, and alwayes disunited the minds and affections of Christians and brethren. 4. That those reformers who have stood for a jurisdiction distinct from that of the magistrate, have unawares strenghthened [sic] the mystery of iniquity. / By Lewis du Moulin Professour of History in the Vniversity of Oxford.	Du Moulin, Lewis, 1606-1680.	1658 (1658)	Wing D2544; Thomason E2115_1; ESTC R212665	195,819	444

can have no judicatorie or judgement 2. I never denied the two courts distinctly set down Rom. 13. one is the power of the magistrate to which we are subject for wrath the other that to which we are subject for conscience sake In this latter God hath set up a tribunall wherein the conscience passeth sentence either of condemnation or of absolution The sentences passed in these two courts have no conflict which cannot be said of the sentences passed in presbyteries which many times are opposed and reversed by the magistrate but the magistrates condemning is no hinderance to the conscience from passing a sentence of absolution either for the fact committed or for other sins 3. Neither is the minister a judge whether the condemned person is penitent or no but the conscience of the man is which more properly is the judge that absolveth or condemneth only the minister furnisheth evidences helping the man to plead guilty or not guilty 4. The pastor comforting or rowzing up the prisoner doth discharge the part of a messenger and not the part of a judge in a court for he is no judge of a man who leaveth him to the judgement of another as doth the minister 5. The nature of a court is not to condemn upon supposition that the prisoner knoweth himself guilty but absolutely to condemn that person whom the judge and jury have a particular knowledge to be guilty and such is the nature of the court of conscience when it justifieth only where it knoweth it self clear and condemneth where it is conscious of its guiltinesse But no pastour hath a particular knowledge of any persons evidences for heaven but what he gathereth by outward signes and so all acts of his either of absolution or of condemnation are meerly upon supposition and no acts of a judge and therefore no acts of a court In short both a court of magistrates and a court of conscience in absolving or condemning know what they do but the pastor knoweth not God only knowing it 6. The action of a pastour absolving is no act of court but an act of the same nature with the preaching of the Gospell by which pardon is pronounced to all that truly repent and lay hold on Christ by faith 7. The party arraigned in a true court such is the court of the magistrate and that of conscience is dismissed clear or guilty as the judge of the court shall pronounce but none can be guilty or not guilty and stand or fall as the minister shall verbally pronounce there being here no concurrence of any act of his but that of the spirit in the word by his ministery 8. This arraigned person who is necessitated to under go the sentence of the magistrate either for absolution or condemnation hath no such necessity to go to the church or pastour except he hath personally offended some of them or oweth them mony in which case his reconciliation is no appearance in any court only a brother or a creditour may pardon him his debt or offence that is pray God to forgive him Here there is no footstep of jurisdiction of either party on the other but in case the party arraigned seeks to be reconciled to God none being able to make his peace with God but God himself nor to declare peace but the testimony of his conscience the pastour may help to clear his evidences and so may any godly gifted brother and well read in the Scripture but neither of them properly judgeth him or maketh his peace neither is here any jurisdiction 9. The nature of a court is to have power and jurisdiction over those that are unwilling as Jesus Christ saith to St. Peter Were it free for a thref to appear or not appear before the court and go to prison or to the gellows if he listed such a coure were a name and not a thing but we pastor 〈◊〉 in no court that hath power over the prisoner except he be perswaded to call him or to admit him and be convinced by him for if be let the minister alone the minister ●…th neither power nor court to convene him to 10. What he saith that the magistrate cannot take exceptions that the Consistory absol●… whom the magistrate condemneth as if it would not concerne the magistrate to take an account of the fact of the minister in absolving 〈◊〉 prisoner and as if the pastour were not ●…ged to give an account of it to him may be questioned for the magistrate is bound to take ●…re that his prisoner make his peace with God before he die and to use all means towards it to that end he must appoint ministers and if they will not be employed about that work or in case they do it amisse I say he may interpose his power and authority and so say most of the Divines that if the minister do not discharge his place in all its functions and acts that the magistrate ought to enjoyn him to do it And thus far the externall acts of the minister visiting the prisoners and comforting them are subordinate to the jurisdiction of the magistrate 11. What he also saith that the magistrates office doth not extend to the care of souls may likewise be questioned for the contrary is proved by Scripture and the authority of most Fathers and Divines St. Austin against Cresconius lib. 5. cap. 51. saith that Kings are Gods ministers not only in things that pertain to humane society but also to Divine religion Rivetus on the decalogue saith that the ●esser care of the magistrate is the administration of the Common-wealth● but the first and chief care is the government of the church How can the magistrates be nursing fathers ke●…ers of both tables bound to reform settle and preserve the true religion and promote the interest of Jesus Christ as magistrates except they ayme at the saving of souls But though the office of the magistrate should not extend to the care of souls yet this doth not conclude a church-judicature distinct from that of the magistrate for neither doth the magistrate meddle with the physitians office in curing diseases or look to the health of horses and other cattle every office hath its severall care but not its severall jurisdiction 12. This may be also questioned that the Consistory is not to meddle with the sentence of the magistrate for if he cleareth the nocent and condemneth the innocent he hath as much to do with him as with the poorest wretch condemned to die he must tell him as John told Herod it is not lawfull for thee to do that and cry abomination to him There is no action of the magistrate no sentence or judgement of his wherein there is either right or wrong but falls within the cognizance and reprehension of the minister 13. Briefly in the case propounded there is not the least footstep of jurisdiction or court no citing no witnesses no plaintiff no defendant sentence condemnation absolution sergeant gaole executioner all conditions

Lord neither do I ●…sse honour the churches of Scotland then those of France I would fain make all churches and brethren friends without prejudice to the truth which I conceive I can retain inviolable by that temperament I have followed which giveth unto the magistrate his due and to private churches their right which denyeth not the presbyterians a discipline but only groundeth it upon a firmer and steadier foundation then they have hitherto done themselves The Lord reveal these truths which are very much subservient to saving truths to all sorts of people that so the minds of the people of God may be more settled and united to retain the foundation that is in Christ Iesus not by constraint and by an externall coercive jurisdiction but with a ready mind and that others who are otherwise led captive by their errors and ignorance in doctrine but much more swayed by this mystery of iniquity or ecclesiasticall jurisdiction may now by the discovery of this truth get freedom and by it the knowledge of saving truths hid from them because of their bondage Thus the truth of that saying of the Lord Iesus will be more manifest If ye know the truth ye shall be free indeed Did but those of the Romish communion understand that all Papall Episcopall Presbyteriall and Ecclesiasticall jurisdiction which is not subordinate to the power of magistracy is repugnant to Scripture and reason they would soon by the knowledge of this one truth recover their liberty and with it the opportunity of having saving truths taught them lying no longer in shackles for fear of men which though imaginarie ones have kept them in as much captivity as if they had been really of iron For the ecclesiasticall jurisdiction and excommunication the product of it put forth and exercised over magistrates and people by inconsiderable men for coercive power have hitherto been like to a child leading about an Elephant with a thred who if he knew his own strength would lead the strongest man that is with a single hair In short all ecclesiasticall jurisdiction without a power of magistracy is like the feathers of an arrow which can never hit nor have a direct motion but with the wood to which it is adjoyned The feathers alone may be made to fly at one but never to hurt or make any impression I will conclude this Preface with the words of Antonius de Dominis lib. 5. de rep cap. 2. who says that all ecclesiasticall jurisdiction is ineffectuall without a power of magistracy Nihil sine potestate laica obtinebimus neminem ecclesiastica potestate possumus extrudere abripere expellere If this which is the substance and the whole drift of my book can be made out to me not to be Scripture and reason I will not obstinatly maintain either this or any other errour but acknowledge it both to God and man as I ought continually all those of my life which as I hope God will forgive me so till I be otherwise taught I crave no pardon either of God or man for holding this which to some is an errour but to me and I hope in Gods good time it shall be so to others as clear a truth as that two and two are four ERRATA Pag. 121. l. 16. read to whom I give thanks Pag. 242. l. 11. dele common Pag. 215. l. 2. read Cornelius Nepos saith Pag. 292. l. 27. read next to the magistrates who have Pag. 311. l. 14. for was read is Pag. 355. l. 2. read supra quam Of the Right of CHVRCHES And of The Magistrates power over them CHAPTER I. OF the nature of power and authority That there are but two wayes to bring men to yield obedience either by a coactive power or by perswading them by advice counsell That there is no medium betwixt command and counsell which sheweth that Ecclesiasticall jurisdiction is a name without a thing not being exercised by either of them The division of power and of the subordination and coordination of powers Many errours and mistakes are discovered about subordination and coordination of powers That the power called Ecclesiasticall doth signifie nothing and such as it is is subordinate to that of the Magistrate THe nature of power right command obedience function law judgement are so twisted together and linked that it is not possible to treat of one alone for as the perfection of power is command so power is exercised with lawes by those that have right to it and a function in the state obedience is a yielding to power command lawes counsells and advices The word Potestas power denotes three things Person Right and Office Often it is taken for the person or persons that are the soveraign Magistrate it is also opposite to jus or right thus Tacitus in the third Book of his annals saith that right is weakned when power comes in In a large sense it is defined A faculty to bring any thing to passe either by right or by wrong or thus A faculty in the agent to move it self towards the patient either necessarily or at the will of the agent necessarily in a naturall body but arbitrarily in an intelligence either Divine or Angelicall and humane Authority as it hath relation to man is a faculty in the agent to move it self at the will of the patient for power is exercised over men against their will but authority is over those that willingly yield and are perswaded and convinced yet sometimes power and authority are promiscuously used But philosophers humanists and statists usually ascribe authority to men and writings that put no coercion or force to mens actions thus they attribute great authority to the placita and responsa of wise and prudent men whose judgements dictates and definitions who ever giveth no credit 〈◊〉 is taxed of foolishnesse not of rebellion or disobedience and so to men commendable for their age wisedome prudence and experience as the Heathens did to their Plato Socrates Aristoteles Zeno Princes of Schools who captivated the minds not the bodies of their hearers 'T is in that sense Cicero in his first Book of Offices in the very beginning speaks of the great authority that Cratippus and Athens had though neither of them had power either of legislation or of jurisdiction and in his Epistles he often mentioneth those that were in great favour and authority with Caesar and Pompey although they had no power of jurisdiction over them Albeit Grammarians should put no difference betwixt power authority yet nature custome and the practise of all nations yea the holy Scripture distinguisheth power of jurisdiction and command which imposeth penalties upon the transgressours from that authority which enforceth not the outward man but only worketh upon the soul perswadeth and begetteth belief respect and reverence Power of jurisdiction is alwayes attended with command and followed with obedience either active or passive to the command of the power but authority being for the most part attended with some of

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