“He loveth righteousness and judgment…”
Ps. 33:5
“Give me now wisdom and knowledge… for who can judge this thy people, that is so great?”
2 Chron. 1:10
“Then shalt thou understand righteousness, and judgment, and equity; yea, every good path, when wisdom entereth into thine heart, and knowledge is pleasant unto thy soul;”
Prov. 2:9-10
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Subsections
Positive Laws
Ordinances, Order & Policy of the Church
How Far Human Authorities’ Laws & Commands Bind the Conscience
Authorities’ Mere Will, Determination or Judgment: an Insufficient Ground of Faith
. & Obedience
Historic, Reformed Books of Church Order & Discipline
General Equity of Mosaic Civil Laws
Public Worship & Courts by Distance Through Technology
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Order of Contents
Intro
Quotes 2
Books 55+
Readings 3
History 3
. Mosaic Laws 6+
. Common Law & English Law 14
. Post-Reformation 12
. Scots’ Law 7
. American Law 4
. Talmud 1
. Islam 7
Legal Maxims & Law Dictionaries 30
Bibliography 1
For Individuals
Caution in Going to Law
How to Go to Law with Another
Whether One Guilty May Ever Plead ‘Not Guilty’
Lawful to Decline All Questions
Specific Classes of Law Cases
Court Resolving to Receive Nothing Further From Someone
Inferiors may Warn & Admonish Rulers
Non-Principal Parties may Bring a Matter to a Court
For Lawyers: Godly Advice
For Judges & 3rd Parties
Error, Guilt, Certainty, Private Knowledge & Passive Obedience in Judicial
. Rulings, & Conscience in Following Them, or Not
Regarding Courts
Courts’ Responsibility to God, Christ, Themselves & the People
Power of Jurisdiction & Anything Unlawful Therein Makes Void the Ruling
May Conflict of Interest be Allowed in a Court?
Precedents & Stare Decisis
Appeals
Receiving Accusations & Cases where their is No Accuser
Latin 10+
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Intro
Edmund Burke
“All human laws are, properly speaking, only declaratory.”
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Richard Baxter
Ҥ 1. Direction 1. Take the whole frame of polity together and study each part in its proper place, and know it in its due relation to the rest: that is, understand first the doctrine of polity and laws in genere [in their genera], and next the Universal Polity and laws of God in specie [in specific]; and then study human polity and laws as they stand in their due subordination to the polity and laws of God, as the by-laws of corporations do to the general laws of the land.
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§ 3. [Direction] 2. And he that understands not the Divine Dominium & Imperium as founded in Creation (and refounded in Redemption), and man’s subjection to his Absolute Lord, and the Universal Laws which He has given in Nature and Scripture to the world, can never have any true understanding of the polity or laws of any kingdom in particular: No more than he can well understand the true state of a corporation, or the power of a mayor, or justice, or constable, who knows nothing of the state of the kingdom, or of the king, or of his laws. What ridiculous discourses would such a man make of his local polity or laws?
He knows nothing worth the knowing, who knows not that all kings and States have no power but what is derived from God, and subservient to Him, and are all his officers, much more below Him than their justices and officers are to them; and that their laws are of no force against the laws of God, whether of natural or supernatural revelation.
And therefore it is most easy to see that he that will be a good lawyer, must first be a divine; And that the atheists that deride or slight divinity, do but play the fools in all their independent broken studies. A man may be a good divine that is no lawyer, but he can be no good lawyer that understands not theology. Therefore let the government and laws of God have the first and chiefest place in your studies, and in all your observation and regard:
1. Because it is the ground of human government, and the fountain of man’s power and laws.
2. Because the divine polity is also the end of human policy: Man’s laws being ultimately to promote our obedience to the laws of God, and the honor of his government.
3. Because God’s laws are the measure and bounds of human laws; against which no man can have power.“
– A Christian Directory: a Sum of Practical Theology and Cases of Conscience Buy (1673), pt. 4, Christian Politics, 4. ‘Directions to lawyers about their duty to God’
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Quotes
Edmund Burke
The Works & Correspondence of the Right Honourable Edmund Burke. A New Edition, in 8 Volumes, vol. 6 (d. 1797; London, 1852), p. 17. See also the larger context from pp. 14-18, which includes helpful Latin quotes from Suarez. Burke is opposing certain laws contrary to Romanists in Ireland.
“In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force; I mean equity and utility.
With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice.
The other foundation of law, which is utility, connected in the same manner with, and derived directly from, our rational nature; for any other utility may be the utility of a robber, but cannot be that of a citizen; the interest of the domestic enemy, and not that of a member of the commonwealth. This present equality can never be the foundation of statues which create an artificial difference between men, as the laws before us [under consideration in his time] do, in order to induce a consequential inequality in the distribution of justice. Law is a mode of human action respecting society, and must be governed by the same rules of equity which govern every private action; and so Tully [Cicero?] considers it in his Offices as the only utility [being a utility to all commonly] agreeable to that [common] nature…”
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Thomas M’Crie, the elder
‘The Spirit of Judgment. Delivered at the opening of the Synod of Original Seceders, Edinburgh, September, 1829’ in Sermons, ed. Thomas McCrie (the younger) (d. 1835; Edinburgh: 1836), p. 306
“Divine revelation takes the dictates of sound reason for granted, and refers to them in such terms of approbation as impose it upon us as a duty to be guided by them in those cases as to which the scriptures are silent, or have merely laid down general rules.
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The range of this class of objects is still more extensive in relation to the government and discipline of the church, as to which Divine wisdom saw it fit to be less minute and precise in its prescriptions. Every society, and consequently the church of Christ, the most perfect of societies, must have external bonds of union, rules of management, and, in short, all those means which are necessary to her preservation, or conducive to the ends of her erection.
The essential principles of jurisprudence, which are founded on natural laws, are common to civil and ecclesiastical society; and they dictate the observance of certain forms of process as safeguards to justice, and means of eliciting truth in dubious or controverted cases.”
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Books
The works from the 1500’s-1600’s are mostly reformed. The works after that are protestant in varying degrees with a chronological trajectory towards secularism. See also the works on our pages, On Positive Laws & Historic Treatises on Resistance to Tyranny, which are very relevant, but are generally not repeated here.
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1500’s & on the 1500’s
Ponet, John – A Short Treatise of Politic Power, & of the True Obedience which Subjects Owe to Kings & Other Civil Governors… Buy (1556) See also the 1970 edition.
Ponet (c. 1514–1556) was a reformed bishop of the Anglican Church and controversial writer, as well as an exile during the reign of Bloody Mary. He is now best known as a resistance theorist who made a sustained attack on the divine right of kings.
Musculus, Wolfgang – On Righteousness, Oaths & Usury Buy (CLP Academic, 2013) 160 pp.
Musculus (1497-1563) was a German/Swiss reformed theologian.
“This text is a translation of Wolfgang Musculus’ commentary on Psalm 15 and his related appendices on the topics of oaths and usury. In these selections from his expansive exegetical work, Musculus presents a theological exposition of the psalm and gives guidance in matters of enduring relevance for Christian living—particularly how to preserve truth and honesty in one’s relationships, speech, and economic practices.”
Linder, Robert Dean – The Political Ideas of Pierre Viret Buy (Librairie Droz, 1964)
Viret (1511–1571) was a Swiss Reformed reformer and theologian. He likely preached to more common people of France and Switzerland than heard either Calvin or Beza.
Buchanan, George – De Jure Regni apud Scotos, or, A Dialogue Concerning the Due Privilege of Government in the Kingdom of Scotland, Betwixt George Buchanan & Thomas Maitland (d. 1582; London : Baldwin, 1689)
Buchanan (1506–1582) was a reformed Scottish historian and humanist scholar. His ideology of resistance to royal usurpation gained widespread acceptance during the Scottish Reformation.
Zanchi, Girolamo – On the Law in General Buy (CLP Academic, 2012) 138 pp.
Zanchi (1516-90) was an Italian Protestant Reformation clergyman and educator who influenced the development of Reformed theology during the years following John Calvin’s death.
“The disciplines of economics, ethics, and law cannot be detached from a historical background that was, it is increasingly acknowledged, religious in nature. Economists like Adam Smith and Leon Walras, as well as political theorists like John Neville Figgis and Otto von Gierke, drew on the work of sixteenth- and seventeenth-century theologians, jurists, and ethicists.”
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1600’s
Finch, Henry – Law, or a Discourse Thereof, in Four Books (London, 1627) 506 pp. Subject Index This appears to be the same as his, A Description of the Common Laws of England… (London, 1759) ToC
Finch (c.1558-1625) was a reformed English lawyer and politician, was created serjeant-at-law and knighted, and is remembered as a legal writer.
Bacon, Francis – The Use of the Law 72 pp. ToC bound after A Collection of Some Principal Rules & Maxims of the Common Laws of England… (London, 1636)
Bacon (1561–1626) was an English (Anglican) philosopher and statesman who served as Attorney General and as Lord Chancellor of England. His works are credited with developing the scientific method and remained influential through the scientific revolution.
Althusius, Johannes
Politica: Politics Methodically Set Forth & Illustrated with Sacred & Profane Examples Buy (1603/14; Liberty Fund, 1995) 302 pp.
Althusius (1557-1638) was an important reformed, German jurist and political philosopher. He has certain Erastian elements in his thought.
On Law & Power Buy (CLP Academic, 2013) 136 pp.
“The Dicaeologicae was an immense Latin work that sought to construct a single comprehensive juridical system by collating the Decalogue, Jewish law, Roman law, and various streams of European customary law. The translated sections comprising On Law and Power address such topics as common law, natural law, private or individual (civil) law, the nature of sovereign public authority, and limitations on public power.”
Lessius, Leonardus – On Sale, Securities & Insurance Buy (CLP Academic, 2016) 163 pp.
Lessius (1554-1623) was a Flemish Jesuit, moral theologian.
“This translation is a selection from Lessius’ treatment of contract law in his larger work On Justice and Right. By drawing on diverse sources ranging from Roman and canon law to moral philosophy, Lessius offers practical advice in commercial and financial matters. These chapters on sale, securities, and insurance engage perennial questions concerning the lawfulness of insider trading, the sale of toxic debt, and asymmetric information in insurance markets.”
Rutherford, Samuel – Lex Rex: The Law & the Prince Buy 1644 318 pp.
Rutherford’s treatise not only presents a comprehensive theological, natural and philosophical view of law, but it is also amazingly detailed on particulars of jurisprudence, in a way that transcends his own time, circumstances and context.
This was the puritan magnum opus on the subject.
Ascham, Antony
Ascham (c. 1614–1650) was a was a reformed, puritan, British academic, political theorist, Parliamentarian and diplomat. According to Anthony Wood, Ascham:
“closed with the Presbyterian in the beginning of the rebellion, took the [Solemn League &] Covenant [1643], sided with the Independents, became a great creature of the long parliament by whose authority he was made tutor to James, Duke of York [would later be King James II], and an active person against his sovereign [King Charles I]”.
Ascham was murdered by royalists in Spain.
Wiki: “His first published work was A Discourse… This appeared in 1648, probably in July at the height of the political uncertainty engendered by the second Civil War. The previous month the Army had shown that it wielded both political and military power and Ascham’s Discourse was widely seen as a defense of the Army as the conquering power, and as a plea for “the rank of the people” to adopt a position of political quiescence.
Parliament’s ultimate victory and the establishment of the Commonwealth posed a problem for those who felt unable to accept the legality of the new government but were now being required to give it their allegiance, and also for those who regarded their oath of allegiance to King Charles I… as a solemn oath to God that could not be broken. One argument, provided by a group of political theorists variously called the Engagers, or de facto theorists, was to argue that an individual could give their obedience to the de facto government in being simply because it was in power.
For many such a theory was deeply shocking since it emphasized power at the expense of authority, and subordinated allegiance to self-interest. The debate was initiated by Francis Rous who published a brief pamphlet in April 1649 [The Lawfulness of Obeying the Present Government] in which he argued that allegiance could be given to the Commonwealth even though it were acknowledged to be an illegal power. It was a radical shift in the basis of the argument that was to be followed through by theorists engaged in the debate on de facto government.
In the debate that followed Ascham played a major part in developing a theory of political obligation to the de facto power. In 1649 it is possible that he was author of a short anonymous pamphlet, A Combate between Two Seconds. One for Obeying the Present Government. The Other the second part of a Demurrer undeservedly called Religious, which was published in July. This work firstly took issue with those whose arguments continued to be based on Romans 13:1–2 and in particular addressed the arguments in an anonymous work that may have been published in two parts, but that is extant only in its second part entitled The Second Part of the Religious Demurrer; and secondly bypassed the critical emphasis on Romans 13:1–2 to develop arguments based on the need to protect oneself from chaos, as originally deployed by Ascham in his 1648 Discourse.
Having thus entered the pamphlet “war”, Ascham then began to expand his arguments. He was certainly the author of a longer pamphlet, The Bounds and Bonds of Publique Obedience, which appeared in August 1649; and by November he had added nine chapters to his 1648 Discourse, which now appeared under the title Of the Confusions and Revolutions of Government. This work attracted the attention of Robert Sanderson who criticized it in a short and pungent pamphlet [Resolutions of Conscience (by a learned Divine) in answer to a letter sent with Mr. Ascham’s Book, Treating, How farre it may be lawful to submit to an Usurped Power.]. Ascham’s Reply to a paper of Dr. Sanderson’s, containing a censure of Mr. A. A. his book of the Confusions and Revolution of Government, which was published on 9 January 1650, was directed as much as against Edward Gee‘s Exercitation concerning usurped powers as against Sanderson’s work. In these works Ascham’s essential argument was that in a situation in which people had to look after their own safety, they were justified in giving their allegiance to any power that was capable of protecting them, whatever the legality of its title to power.
By the autumn of 1649 the debate began to center on the specific question of the Oath of Allegiance and the Engagement to the Commonwealth: Two Acts of Parliament were passed requiring people to take an Oath of Allegiance to the Commonwealth, on 11/12 October 1649, and on 2 January 1650. Conventionally oaths were regarded as “the strictest ties and obligations that a man can be under”. For many the Engagement to the Commonwealth was impossible to take because it overrode their prior obligation to the monarchy (King Charles I and his heirs). The Presbyterian Richard Baxter held that he “could not judge it seemly for him that believed there is a God to play fast and loose with a dreadful oath”. (Reliquiae Baxterianae, London, 1696, p. 54) In contrast, Ascham argued that all oaths involved tacit conditions, of which the ability of the government to protect the people was the main one. A government that could not protect its people lost the right to their allegiance.
Ascham’s 1648 Discourse was to be republished, anonymously, following the ousting of King James II [in 1688/9]. Then the question of the legality of the oath of allegiance to King William and Queen Mary [in the Glorious Revolution] had come to the fore. It did not, however, generate any discussion. By then the leading theorist in the field was Thomas Hobbes, whose De Corpore Politico, De Cive (first edition), and Leviathan, had systematized a coherent and secular defense of the contract as between ruler and ruled.”
This is a reply to Hammond’s, A Vindication of Dr. Hammond’s address etc. from the exceptions of Eutactus Philodemius… (1649).
Hawke, Michael – The Right of Dominion & Property of Liberty, whether Natural, Civil or Religious… (London, 1655)
Hawke (fl.1655-1659) was reformed.
Baxter, Richard – A Holy Commonwealth: or Political Aphorisms, Opening the True Principles of Government: for the Healing of the Mistakes, & Resolving the Doubts, that Most Endanger England at this Time… Buy (London, 1659) ToC
“A Holy Commonwealth… is a candid confession as to why a conservative [congregationalist] Puritan fought for Parliament in the Civil War and gave his support to the Cromwells. Baxter publicly repudiated the work in 1670, and in 1683 the Oxford University authorities ordered it to be part of a book-burning that included the works of Hobbes and Milton.” – on Amazon
Hale, Matthew – The Analysis of the Law 3rd ed. (d. 1676; n.p., n.d.)
Hale (1609-1676) was an Anglican and influential barrister, judge and jurist most noted for his treatise, The History of the Pleas of the Crown. Hale’s early works, including, A Discourse of the Knowledge of God, reflect his early Puritan and Reformed background. After ca. 1660 his thought becomes more Arminian.
Hale’s Analysis of the Common Law (below) is noted as the first published history of English law and a strong influence on William Blackstone’s Commentaries on the Laws of England. Hale’s jurisprudence struck a middle-ground between Edward Coke’s “appeal to reason” and John Selden’s “appeal to contract”, while refuting elements of Thomas Hobbes’s theory of natural law.
Stair, James Dalrymple – The Institutions of the Law of Scotland, Deduced from its Originals, & Collated with the Civil, Canon & Feudal Laws, & with the Customs of Neighboring Nations… (Edinburgh, 1681)
Dalrymple (1619–1695), 1st Viscount of Stair, was a Scottish lawyer, statesman and had close relationships at times with leading covenanters. In 1662, as a judge, though it was required of him, he refused to declare the National Covenant and the Solemn League & Covenant to be unlawful oaths. The work above shows influences from Stair’s philosophical training, his foreign travels, and continental jurists as well as English lawyers.
In 1695 there was published a small volume entitled, A Vindication of the Divine Perfections, Illustrating the Glory of God in them by Reason and Revelation, methodically digested… It is undoubtedly Stair’s work, and was edited by the two Nonconformist divines, William Bates and John Howe.
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1700’s
See below on Common Law & English law.
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1800’s
Thomas, John Penford – A Treatise of Universal Jurisprudence (London, 1829) ToC
Bastiat, Frederic – The Law (1850; NY: 1964)
Bastiat (1801–1850) was a French economist, writer and a prominent member of the French Liberal School. A Freemason and a member of the French National Assembly, Bastiat developed the economic concept of opportunity cost. As an advocate of classical economics and the economics of Adam Smith, his views favored a free market and influenced the Austrian School.
Bastiat did most of his writing during the years just before — and immediately following — the Revolution of February 1848. This was the period when France was rapidly turning to complete socialism.
As a Deputy to the Legislative Assembly, Bastiat was studying and explaining each socialist fallacy as it appeared. And he explained how socialism must inevitably degenerate into communism. But most of his countrymen chose to ignore his logic.
Lindley, Nathaniel – An Introduction to the Study of Jurisprudence, being a translation of the general part of [Anton] Thibaut’s System Des Pandekten Rechts, with Notes & Illustrations (London, 1855)
Thibaut (1772–1840) was a German jurist.
Wiki: “The fame of this book [of Thibaut’s] results from its being the first modern complete compendium of the subject, distinguished alike by the accuracy of its sources and the freedom and unpedantic manner in which the subject is handled. It is, in effect, a codification of the Roman law as it then obtained in Germany, modified by canon law and the practice of the courts into a comprehensive system of Pandect [Roman] law.”
Austin, John
The Province of Jurisprudence Determined… being the First Part of a Series of Lectures on Jurisprudence, or the Philosophy of Positive Law (London, 1861) 500 pp. ToC For an abridgment of these volumes, see below at 1906.
Austin (1790–1859) was an English legal theorist, who influenced British and American law with an analytical approach to jurisprudence and a theory of legal positivism. Austin opposed traditional approaches of ‘natural law’, arguing against any need for connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way.
Though Austin’s brand of legal positivism was greatly influential in the late 19th and early 20th centuries, it is widely seen as overly simplistic today. Critics such as H. L. A. Hart (below) have charged, as well as amongst other things, that Austin’s account fails to recognize that in many modern societies, lawmaking power is dispersed and it is very difficult to identify a ‘sovereign’ in Austin’s sense.
Lectures on Jurisprudence, being the Sequel to ‘The Province of Jurisprudence Determined’, to which are Added Notes & Fragments, vols. 2 & 3 (London, 1863) These vols. continue the work above.
Phillipps, Charles Spencer March – Jurisprudence (London, 1863) 380 pp. ToC
Amos, Sheldon – A Systematic View of the Science of Jurisprudence (London, 1872) 570 pp. ToC
Lorimer, James
The Institutes of Law: a Treatise of the Principles of Jurisprudence as Determined by Nature (Edinburgh, 1880) 590 pp. ToC
Lorimer (1818–1890) was a Scottish advocate and regius professor of public law at Edinburgh. He was an authority on international law. His legal philosophy was one of Natural law that stood against the prevailing Legal positivism. Lorimer has some respect for God and religion, but does not strongly hold to Christian orthodoxy in this work.
From the front page:
“All human laws are, properly speaking, only declaratory.” – Edmund Burke
“The unfettered multitude is not dearer to me than the unfettered king.” – Edward Tyrrel Channing
The Institutes of the Law of Nations: a Treatise of the Jural Relations of Separate Political Communities, vol. 1, 2 (Edinburgh, 1883) ToC 1, 2
Lorimer’s concerns with the application of natural law to international relations were particularly influential in formalizing the forms of inter-state recognition in 19th century continental Europe.
Pollock, Frederick – Essays in Jurisprudence & Ethics (London, 1882) 390 pp. ToC
Markby, William – Elements of Law, Considered with Reference to Principles of General Jurisprudence (Oxford, 1885) 450 pp. ToC
Holland, Thomas Erskine – The Elements of Jurisprudence (Oxford, 1886) 390 pp. ToC
Holland (1835–1926) was a British jurist and a professor of international law. The work above is often cited in legal philosophy.
Keener, William A. – Selections on the Elements of Jurisprudence (St. Paul, Minn., 1896) 230 pp.
Smith, George H. – Elements of Right & of the Law, to which is Added a Historical & Critical Essay upon the Several Theories of Jurisprudence (Chicago, 1887) 420 pp. ToC
Hastie, W. – Outlines of the Science of Jurisprudence: an Introduction to the Systematic Study of Law, translated & Edited from the Juristic Encyclopedias of Puchta, Friedlander, Falck & Ahrens (Edinburgh, 1887) ToC
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1900’s
Herkless, W.R. – Jurisprudence, or the Principles of Political Right, Lectures Delivered… (Edinburgh, 1901) 200 pp. ToC
Salmond, John W. – Jurisprudence, or the Theory of the Law (London, 1902) 740 pp. ToC
Miller, William Galbraith – The Data of Jurisprudence (Edinburgh, 1903) ToC
Kinkead, Edgar – Jurisprudence, Law & Ethics; Professional Ethics (NY, 1905) 400 pp.
Brown, W. Jethro – The Austinian Theory of Law, being an edition of Lectures I, V & VI of Austin’s ‘Jurisprudence’… with Critical Notes… (London, 1906) 380 pp. ToC For the unabridged work of Austin, see above at 1861.
Taylor, Hannis – The Science of Jurisprudence: a Treatise, in which the Growth of Positive Law is Unfolded by the Historical Method & its Elements Classified & Defined by the Analytical (New York, 1908) 745 pp. ToC
Pattee, William Sullivan – The Essential Nature of Law, or the Ethical Basis of Jurisprudence (Chicago, 1909) 290 pp. ToC
Salmond, John W. – Jurisprudence (London, 1913) 550 pp. ToC
Pound, Roscoe – Outlines of Lectures on Jurisprudence (Cambridge, 1914) 100 pp. ToC
Pound (1870–1964) was an American legal scholar and educator. He served as Dean of the University of Nebraska College of Law from 1903 to 1911 and Dean of Harvard Law School from 1916 to 1936. He was a member of the faculty at UCLA School of Law in the school’s early years, from 1949 to 1952. Pound has been one of the most cited legal scholars of the 20th century.
Vinogradoff, Paul – Outlines of Historical Jurisprudence, vol. 1 (Intro, Tribal Law), 2 (Oxford, 1920) ToC 1, 2
Vakil, A. – Principles of Jurisprudence (For the Use of Law Students) (Calcutta, 1926) 240 pp. ToC
Keeton, George W. – Elementary Principles of Jurisprudence (London, 1930) 330 pp. ToC
Paton, George Whitecross – A Text Book of Jurisprudence (Oxford, 1946) 535 pp. ToC
Lloyd, Dennis – Introduction to Jurisprudence, with Selected Texts (London, 1959) 5th ed., 1985
Adler & Wolff – Philosophy of Law & Jurisprudence (Chicago: Encyclopedia Britannica, 1961) ToC
Mahajan, Vidya Dhar – The Principles of Jurisprudence (1962) 390 pp. ToC
Bodenheimer, Edgar – Jurisprudence: the Philosophy & Method of the Law (Harvard Univ. Press, 1962) 415 pp.
Llewellyn, Karl Nickerson – Jurisprudence; Realism in Theory & Practice (Chicago Univ. Press, 1962) 545 pp.
Essays on Jurisprudence from the Columbia Law Review (NY, 1963) 440 pp. Chapters are grouped around the nature, growth and paradoxes of the judicial process.
Wortley, B.A. – Jurisprudence (New York, 1967) 490 pp.
Hall, Jerome – Foundations of Jurisprudence (Indianapolis, 1973) 190 pp. Hall also has an anthology of selected jurisprudence readings below.
Pollack, Ervin H. – Jurisprudence: Principles & Applications (Ohio State University Press, 1979) 975 pp. ToC
Hart, H.L.A. – Essays in Jurisprudence & Philosophy (Oxford, 1983) 400 pp. ToC
Hart (1907–1992) was British and was considered one of the world’s foremost legal philosophers in the twentieth century, alongside Hans Kelsen.
Cotterrell, Roger – The Politics of Jurisprudence: a Critical Introduction to Legal Philosophy (London, 1989) 290 pp.
Posner, Richard A. – The Problems of Jurisprudence (Harvard Univ. Press, 1990) 500 pp. ToC
Murphy, Jeffrie & Coleman, Jules – Philosophy of Law: an Introduction to Jurisprudence (1990) 250 pp. ToC
Bix, Brian – Jurisprudence: Theory & Context (London, 1999) 285 pp.
d’ Entrèves, A.P. – Natural Law. An Introduction to Legal Philosophy (New Brunswick/London: Transaction Publishers, 1999)
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2000’s
Chinhengo, Austin – Essential Jurisprudence (London, 2000) 145 pp.
ed. McConnell, Cochran, Carmella – Christian Perspectives on Legal Thought (Yale Univ. Press, 2001) 544 pp. ToC
Guest, Geary, Penner, Morrison – Jurisprudence & Legal Theory (n.p., 2004) 75 pp. ToC Includes chapters on post-modern theories of law.
Meyerson, Denise – Understanding Jurisprudence (Routledge, 2007) 215 pp. ToC
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Readings in Jurisprudence
1900’s
ed. Hall, Jerome – Readings in Jurisprudence (NY: 1938) 1,220 pp. Includes valuable selections on ancient and historical jurisprudence, analytical jurisprudence, and as jurisprudence relates to social sciences.
Cohen, Morris Raphael – Readings in Jurisprudence & Legal Philosophy (1951) 960 pp.
ed. D’Amato, Anthony – Analytic Jurisprudence Anthology (Cincinnati, 1996) ToC
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On the History of Jurisprudence
See also the Latin section, which has a subsection on Roman Jurisprudence.
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1900’s
Lee, Guy Carleton – Historical Jurisprudence: an Introduction to the Systematic Study of the Development of Law (New York, 1900) 525 pp. ToC
Bryce, James – Studies in History & Jurisprudence (Oxford, 1901) ToC
Sherman, Charles Phineas – Roman Law in the Modern World, vol. 1 (Hist. of Roman Law’s Descent into English, French, German, Itallian, etc.) (Boston, 1917) 460 pp. ToC
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On the Mosaic Laws
‘The Judicial Laws’ on our page, Commentaries on Exodus
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On Common Law & English Law
1600’s
Finch, Henry – A Description of the Common Laws of England: According to the Rules of Art, Compared with the Prerogatives of the King.. from the Commencement of Magna Charta… until this Day (d. 1625; London, 1759) ToC This appears to be the same as his, Law: or a Discourse Thereof, in Four Books (1627)
Finch (c.1558-1625) was a reformed English lawyer and politician, was created serjeant-at-law and knighted, and is remembered as a legal writer.
Bacon, Nathaniel – An Historical & Political Discourse of the Laws & Government of England, from the First Times to the End of the Reign of Queen Elizabeth. With a Vindication of the Ancient Way of Parliaments in England. Collected from Some Manuscript Notes of John Selden, Esq. 5th ed. (London, 1760) ToC
Bacon (1593-1660) was an English Puritan lawyer, judge, writer and politician who sat in the House of Commons at various times between 1645 and 1660.
Selden (1584–1654) was an English, Erastian, jurist, a scholar of England’s ancient laws and constitution and scholar of Jewish law. He was known as a polymath; John Milton hailed Selden in 1644 as “the chief of learned men reputed in this land.”
Hale, Matthew – The History of the Common Law of England & an Analysis of the Civil Part of the Law 6th ed., Charles Runnington (d. 1676; London, 1820) ToC
Hale (1609-1676) was an Anglican and influential barrister, judge and jurist most noted for his treatise, The History of the Pleas of the Crown. Hale’s early works, including, A Discourse of the Knowledge of God, reflect his early Puritan and Reformed background. After ca. 1660 his thought becomes more Arminian.
Hale’s Analysis of the Common Law is noted as the first published history of English law and a strong influence on William Blackstone’s Commentaries on the Laws of England. Hale’s jurisprudence struck a middle-ground between Edward Coke’s “appeal to reason” and John Selden’s “appeal to contract”, while refuting elements of Thomas Hobbes’s theory of natural law.
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1700’s
A Description of the Common Laws of England, According to the Rules of Art, Compared with the Prerogatives of the King… from the Commencement of Magna Charta… until this Day (London, 1759) ToC
Blackstone, William – Commentaries on the Laws of England, in 4 Books… with Notes… vol. 1, 2, 3 ed. William Lewis (in 3 vols.) (1765; 1902) Here is an abridgment by William C. Sprague (1915).
Blackstone (1723–1780) was an English jurist, judge, professor of English law and Tory (traditionalist) politician of the eighteenth century, and is most remembered for his work above. He was sympathetic to Christianity.
One of Blackstone’s successors as Vinerian Professor, argued that “If the Commentaries had not been written when they were written, I think it very doubtful that the United States, and other English speaking countries would have so universally adopted the common law.” In the United States, the Commentaries influenced Alexander Hamilton, John Marshall, James Wilson, John Jay, John Adams, James Kent and Abraham Lincoln, and remain frequently cited in Supreme Court decisions.
A Law Grammar; Or, An Introduction to the Theory & Practice of English Jurisprudence… (London, 1791)
Gros, John Daniel – Natural Principles of Rectitude, for the Conduct of man in all States & Situations of Life; Demonstrated & Explained in a Systematic Treatise on Moral Philosophy. Comprehending the Law of Nature– Ethics– Natural Jurisprudence– General Economy– Politics– & the Law of Nations (New York, 1795)
Gros (1737-1812) was a minister in New York City of a German reformed, church and a professor at Columbia College.
ed. Hargrave, Francis – A Collection of Tracts Relative to the Law of England, from Manuscripts, vol. 1 (Dublin, 1787) ToC
This includes the tract by Matthew Hale, ‘Considerations Touching the Amendment or Alteration of Laws’ in eight chapters.
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1800’s
Nasmith, David – The Institutes of English Public Law: Embracing an Outline of General Jurisprudence, the Development of the British Constitution… (London, 1873) 550 pp.
MacLaren, J.J. – Roman Law in English Jurisprudence: a Thesis for the Degree of Doctor of Civil Law, in Course, in McGill University (Toronto, 1888) 28 pp.
Pollock, Frederick – A First Book of Jurisprudence for Students of the Common Law (London, 1896) 360 pp.
Broom, Herbert – Commentaries on the Common Law, Designed as Introductory to its Study 9th ed. Archibald & Colefax (London, 1896) ToC
Broom (1815–1882) was an English writer on law.
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1900’s
Indermaur, John
Principles of the Common Law: Intended for the Use of Students & the Profession 11th ed. Thwaites (London, 1909)
An Epitome of Leading Common Law Cases, with Some Short Notes Thereon… 10th ed. Jelf (1872; London, 1922) ToC
Pollock, Frederick – The Genius of the Common Law in Columbia University Lectures (NY: 1912) 155 pp. ToC
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Jurisprudence During the Post-Reformation
Taylor, Hannis – The Science of Jurisprudence: a Treatise... (New York, 1908)
England – Ch. 4, sections 12-20
France – Ch. 3, section 17
Germany – Ch. 3, section 18
Netherlands – Ch. 3, section 19
Sea Laws, or International Laws – Ch. 3, section 21
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Puritan Jurisprudence
Articles
1900’s
Berman, Harold J. – ‘Religious Foundations of Law in the West: An Historical Perspective’ Journal of Law and Religion, Vol. 1, No. 1, Summer 1983, pp. 3-43
Gatis, G.J. – ‘Puritan Jurisprudence: A Study in Substantive Biblical Law’ in Contra Mundum, No. 12, Summer 1994
‘Jurisprudence’ is used very broadly in this article.
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2000’s
Ross, Richard J. – ‘The Career of [New England] Puritan Jurisprudence’ in Law & History Review Vol. 26, No. 2 (Summer, 2008), pp. 227-258
ed. Moyer, Paul B. – Ch. 7, ”According to God’s Law’: Witch-Hunting as a Judicial Process’ in Detestable & Wicked Arts: New England and Witchcraft in the Early Modern Atlantic World (Cornell Univ. Press, 2020), pp. 171-198
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Books
Tatham, G. B. – The Puritans in Power: A Study in the History of the English Church from 1640 to 1660 (Cambridge University Press, 1913) 290 pp. ToC
Flynn, John Stephen – The Influence of Puritanism on the Political and Religious Thought of the English (NY: 1920) 290 pp. ToC
Pearson, A. F. Scott – Church and State: Political Aspects of Sixteenth Century Puritanism Pre (Cambridge University Press, 1927)
Haller, William – Liberty and Reformation in the Puritan Revolution (Columbia University Press, 1955)
Eusden, J.D. – Puritans, Lawyers & Politics in Early Seventeenth-Century England (Yale Univ. Press, 1958)
Wilson, John F. – Pulpit in Parliament: Puritanism during the English Civil Wars, 1640-1648 (Princeton, University Press, 1969)
Zaret, David – The Heavenly Contract: Ideology & Organization in Pre-Revolutionary Puritanism (University of Chicago Press, 1985)
Todd, Margo – Christian Humanism & the Puritan Social Order (Cambridge University Press, 1987)
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On Scots’ Law
1600’s
Hale, Matthew – Ch. 10, ‘Concerning the Communication of the Laws of England unto the Kingdom of Scotland’ in The History of the Common Law of England… 6th ed., Charles Runnington (d. 1676; London, 1820)
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1800’s
Young & Hislop – Lectures on Scots Law… (Glasgow, 1889) 115 pp. ToC
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1900’s
Taylor, Hannis – Ch. 6, section 9 in The Science of Jurisprudence: a Treatise... (New York, 1908)
Marshall, Enid A. – General Principles of Scots Law in Concise College Texts (Edinburgh, 1982) 605 pp.
Walker, David M. – The Scottish Legal System: an Introduction to the Study of Scots Law (Edinburgh, 1992) 590 pp.
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2000’s
Way, George – Everyday Scots Law (Glasgow, 2000) 285 pp. ToC
Ashton, Brand, Brodie, et al. – Fundamentals of Scots Law (Edinburgh, 2003) 650 pp. ToC
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On American Law
1800’s
Sergeant, Thomas – Constitutional Law: Being a Collection of Points Arising Upon the Constitution & Jurisprudence of the United States which have been Settled by Judicial Decision & Practice (Philadelphia, 1822) 430 pp. Table of Cases
Rawle, William – A View of the Constitution of the United States of America (Philadelphia, 1829) 350 pp. ToC
Hilliard, Francis – The Elements of Law; being a Comprehensive Summary of American Civil Jurisprudence, for the Use of Students, Men of Business, & General Readers (New York, 1835) 340 pp. ToC
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1900’s
Presser, Stephen B. – Law & Jurisprudence in American History: Cases & Materials (St. Paul, Minn.: 1989) 1150 pp. ToC
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Talmudical Jurisprudence
Kadushin, Rabbi J.L. – Code of Jewish Jurisprudence: Talmudical Law Decisions Civil, Criminal & Social (NY: 1921) ToC
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Muslim Jurisprudence
1900’s
Rahim, Abdur – The Principles of Muhammadan Jurisprudence, According to the Hanafi, Maliki, Shafi’i & Hanbali Schools (London [1911]) 455 pp. ToC
MacDonald, Duncan Black – Development of Muslim Theology, Jurisprudence & Constitutional Theory (NY: 1965) 400 pp.
Schacht, Joseph – The Origins of Muhammadan Jurisprudence (Oxford, 1967) 360 pp. ToC
ed. Khadduri, Majid – al-Shafiis Risala: Treatise on the Foundations of Islamic Jurisprudence, Translated, with an Introduction, Notes & Appendices (The Islamic Texts Society, n.d.) 380 pp. ToC
Al-Shafii (d. 820). This work is described on Wikipedia.
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2000’s
Rahim, Abdur – Questions & Answers: Islamic Jurisprudence (n.d.) 200 pp. ToC
Al Fawzan, Salih – A Summary of Islamic Jurisprudence, 2 vols. (2005) ToC 1, 2 Organized by traditional Islamic ethical topics, to which laws, or rules, are subjoined. Helpful for surveying traditional Islamic practices.
Wacks, Raymond – Understanding Jurisprudence: An Introduction to Legal Theory (Oxford, 2009) ToC Very helpful in summarizing simply the various, main, historical and modern schools of thought in jurisprudence.
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Legal Maxims
Website Collections
‘Legal Maxims’ at LatestLaws.com Alphabetical order
Hundreds of maxims in Latin, translated and explained.
‘Maxims of Law’ at Famguardian.org By subject
Hundreds of English maxims taken from five standard law books and dictionaries
‘Maxim’ at TheFreeDictionary.com
Explains the force of maxims and explains 12 foundational maxims of equity.
‘Maxims of Equity’ at Wikipedia 20 maxims with interpretations
‘Brocard (law)’ at Wikipedia 50+ examples of these maxims
‘Supreme Court Maxims’ 2012 299 pp. at GovernmentAttic.org by the Dept. of Justice
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Books of Maxims
1800’s
Halkerston, Peter – A Collection of Latin Maxims & Rules in Law & Equity, Selected from the Most Eminent Authors on the Civil, Canon, Feudal, English & Scots’ Law, with an English Translation, & an Appendix of Reference to the Authorities from which the Maxims are Selected (Edinburgh, 1823) 205 pp. Alphabetical order by Latin.
Phillimore, John George – Principles & Maxims of Jurisprudence (London, 1856) 430 pp. ToC 66 principles explained, plus other appended rules
Wharton, George Frederick – Legal Maxims with Observations & Cases… Pt. 1, 100 Maxims, with Observations & Cases; Pt. 2, 800 Maxims, with Translations (London, 1865) 300 pp.
Peloubet, Seymour, S. – A Collection of Legal Maxims in Law & Equity, with English Translations (NY, 1880) 345 pp. Subject Index 2,613 maxims in alphabetical order
Lely, J.M. – Wharton’s Law Lexicon: forming an Epitome of the Law of England; and Containing Full Explanations of the Technical Terms & Phrases Thereof, Both Ancient & Modern… Together with a Translation of Latin Law Maxims… 7th ed. (Boston, 1883)
Morgan, James Appleton – An English Version of Legal Maxims, with the Original Forms Alphabetically Arranged… (Cincinnati, 1878) 380 pp.
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1900’s
Shumaker, Walter A. & George Foster Longsdorf – The Cyclopedic Dictionary of Law: Comprising the Terms of American Jurisprudence, Including Ancient & Modern Common Law… with an Exhaustive Collection of Legal Maxims (St. Paul, MN: 1901)
Broom, Herbert – A Selection of Legal Maxims, Classified & Illustrated 8th ed. Pease & Chitty (1845; London, 1911) 900 pp. ToC Arranged by subject
Broom (1815–1882) was an English writer on law. This work gained wide circulation as an established text-book for students.
Cotterell, John – A Collection of Latin Maxims & Phrases, Literally Translated… (London, 1913) 190 pp. 288 maxims
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Historic Collections of Maxims
Middle Ages
Boniface VIII – Regulae Juris [Rules of Law] A.D. 1298 at Wikipedia 88 maxims of interpreting ecclesiastical canon law. The Latin is translated. Some of the maxims reflect Romanist theology.
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1600’s
ed. Rushton, William Lowes – Shakespeare’s Legal Maxims (London, 1859) 34 pp.
Bacon, Francis – A Collection of Some Principal Rules & Maxims of the Common Laws of England, with their Latitude & Extent… (London, 1636) 94 pp. ToC Expounds 25 maxims There is another volume bound after this volume.
Bacon (1561–1626) was an English (Anglican) philosopher and statesman who served as Attorney General and as Lord Chancellor of England. His works are credited with developing the scientific method and remained influential through the scientific revolution.
Wingate, Edmund – Maxims of Reason, or, The Reason of the Common Law of England (1658) 214 maxims
Noy, W. – A Treatise of the Principal Grounds & Maxims of the Laws of this Nation… (London, 1677) 175 pp.
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1700’s
Lofft, Capel – ‘Maxims & Rules of the Law of England, & Principles of Equity…’ 651 maxims in Latin in Reports of Cases Adjudged in the Court of King’s Bench… (Dublin, 1790)
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On Scots’ Law
1800’s
Trayner, John – Latin Phrases & Maxims: Collected from the Institutional & Other Writers on Scotch Law, with Translations & Illustrations (Edinburgh, 1861) 356 pp. alphabetically arranged; the Latin is translated
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On the Significance & Interpretation of Maxims
Article
Smith, Jeremiah – ‘The Use of Maxims in Jurisprudence’ Harvard Law Review, Apr. 25, 1895, vol. 9, no. 1 (Apr. 25, 1895), pp. 13-26
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Law Dictionaries
1600’s
Leigh, Edward – A Philological Commentary, or an Illustration of the Most Obvious & Useful Words in the Law, with their Distinctions & Divers Acceptations, as they are found as well in Reports Ancient & Modern… Useful for all Young Students of the Law (London, 1658)
Leigh was reformed.
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1800’s
Lely, J.M. – Wharton’s Law Lexicon: forming an Epitome of the Law of England; and Containing Full Explanations of the Technical Terms & Phrases Thereof, Both Ancient & Modern… Together with a Translation of Latin Law Maxims… 7th ed. (Boston, 1883)
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1900’s
Shumaker, Walter A. & George Foster Longsdorf – The Cyclopedic Dictionary of Law: Comprising the Terms of American Jurisprudence, Including Ancient & Modern Common Law… with an Exhaustive Collection of Legal Maxims (St. Paul, MN: 1901)
Black, Henry – A Law Dictionary: Containing Definitions of the Terms & Phrases of American & English Jurisprudence, Ancient & Modern, & Including the Principal Terms of International, Constitutional, Ecclesiastical… (St. Paul, Minn.: 1910) See also the later editions of 1951 & 1990.
Bouvier, John – Bouvier’s Law Dictionary & Concise Encyclopedia, vol. 1, 2, 3 3rd rev. (Kansas City, 1914)
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2000’s
Wikipedia – ‘List of Latin Legal Terms’ in alphabetical order
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Bibliography
Dias, Reginald W. M. – A Bibliography of Jurisprudence: being a Companion to ‘Jurisprudence’ (London, 1964) 245 pp. ToC see also the 1979 edition.
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For Individuals
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On Caution in Going to Law
Baxter, Richard – A Christian Directory… (London, 1673), pt 4, Christian Politics
ch. 17, ‘Directions for Keeping Peace with All Men’, pp. 103-107
ch. 22, ‘Cases & Directions Against Injurious Law-Suits, Witnessing & Judgement’, pp. 148-151
ch. 26, ‘Directions Against Selfishness as it is Contrary to the Love of our Neighbors’, pp. 166-68
ch. 27, ‘Cases & Directions for Loving our Neighbor as Ourselves’, pp. 169-172
ch. 29, ‘Cases & Directions for Loving and doing Good to Enemies’, pp. 186-89
Ch. 32, ‘Cases & Directions About Satisfaction & Restitution’
Title 1, ‘Cases of Conscience About Satisfaction & Restitution’, pp. 203-205
Title 2, ‘Directions about Restitution & Satisfaction’, p. 206
ch. 34, ‘Cases & Directions about Self-Judging’, pp. 210-214
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On How to Go to Law with Another
Quotes
John Trapp
Commentary on Luke 6:30
“Or, if you take the benefit of the law to recover them [your possessions], do it without hate or heat; as tilters [those who do jousting] break their spears on each other’s breasts, yet without wrath or intention of hurt.”
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Richard Baxter
A Christian Directory… (London, 1673), pt. 4, ch. 22, ‘Cases & Directions Against Injurious Law-Suits, Witnessing and Judgment’, p. 151
Ҥ 10, Direction 7. Meddle not with lawsuits till you have offered an equal arbitration of indifferent men, or used all possible means of love to prevent them. Lawsuits are not the first, but the last remedy. Try all others before you use them.
§ 11, Direction 8. When you must needs go to law, compose your minds to unfeigned love towards him that you must contend with, and watch over your hearts with suspicion and the strictest care, lest secret disaffection get advantage by it; And go to your neighbor and labor to possess his heart also with love, and to demulce [pacify] his mind, that you may not use the courts of justice as soldiers do their weapons, to do the worst they can against another, as an enemy: but as loving friends do use an amicable arbitration, resolving contentedly to stand to what the judge determines, without any alienation of mind or abatement of brotherly love.
§ 12, Direction 9. Be not too confident of the righteousness of your own cause, but ask counsel of some understanding, godly and impartial men; and hear all that can be said, and patiently consider of the case, and do as you would have others do by you.”
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Articles
Richard Baxter – A Christian Directory… (London, 1673), pt. 4
ch. 16, Title 3, ‘Special Directions for Reproof & Exhortation for the Good of Others’, pp. 101-103
ch. 23, ‘Cases of Conscience & Directions Against Backbiting, Slandering & Evil Speaking’
ch. 24, ‘Cases & Directions Against Censoriousness & Unwarrantable Judging’, pp. 157-163
ch. 31, ‘Cases & Directions about Confessing Sins & Injuries to Others’
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Whether a Guilty Person May Ever Plead ‘Not Guilty’?
Article
Hall, Joseph – Decade 2, Case 8, ‘Whether a Prisoner Indicted of a Felonious Act which he has Committed, and Interrogated by the Judge Concerning the Same, may stand upon the Denial & Plead ‘Not Guilty’?’ in Cases of Conscience Practically Resolved Containing a Decision of the Principal Cases of Conscience of Daily Concernment & Continual Use Amongst Men: Very Necessary for their Information & Direction in These Evil Times (London, 1654)
Hall was a godly Anglican bishop.
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Quote
Richard Baxter
A Christian Directory… (London, 1673), pt 4, ch. 22, ‘Cases & Directions Against Injurious Law-Suits, Witnessing & Judgment’, p. 149
“Question 8: May a guilty person plead not guilty, or deny the fact?
Answer: Common use is the interpreter of words: If the common use of those words does make their public sense a lie, it may not be done. But if the forensic [legal] common use of the denial is taken to signify no more but this, ‘Let him that accuses me, prove it’ [then]:
I am not bound to accuse my self, or, in foro [in court] I am not guilty till it be proved, then it is lawful to plead ‘not-guilty’ and deny the fact, except in cases wherein you are bound to an open confession, or in which the scandal will do more hurt than the denial will do good.”
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Is it Morally Lawful to Decline to Answer All Questions, or to Plead the American 5th Amendment?
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“And Joshua said unto Achan,
‘My son, give, I pray thee, glory to the Lord God of Israel,
and make confession unto Him; and tell me now what thou hast done;
hide it not from me.'”
Josh. 7:19
“Give not that which is holy unto the dogs, neither cast ye your pearls before swine, lest they trample them under their feet, and turn again and rend you.”
Mt. 7:6
“And the High Priest arose, and said unto Him,
‘Answerest thou nothing? What is it which these witness against thee?’
But Jesus held his peace…”
Mt. 26:62-3
“The sins forbidden in the ninth commandment are… hiding, excusing, or extenuating of sins, when called to a free confession; (1 Kings 1:6; Lev. 19:17)
Westminster Larger Catechism #145
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Quote
Richard Baxter
A Christian Directory… (London, 1673), pt 4, ch. 22, ‘Cases & Directions Against Injurious Law-Suits, Witnessing & Judgment’, p. 149
“Question 9: Is a man ever bound to accuse himself, and seek justice against himself?
Answer 1: In many cases a man is bound to punish himself: As when the law against swearing, cursing or the like, does give the poor a certain mulct [fine] which is the penalty: He ought to give that money himself: And in cases where it is a necessary cure to himself: And in any case where the public good requires it: As if a magistrate offend whom none else will punish, or who is the judge in his own cause: he should so far punish himself as is necessary to the suppression of sin, and to the preserving of the honor of the laws: As I have heard of a justice that swore twenty oaths, and paid his twenty shillings for it.
2. A man may be bound in such a divine vengeance or judgment as seeks after his particular sin, to offer himself to be a sacrifice to justice, to stop the judgement: As Jonah and Achan did.
3. A man may be bound to confess his guilt and offer himself to justice to save the innocent, who is falsely accused and condemned for his crime.
4. But in ordinary cases a man is not bound to be his own public accuser or executioner.
Question 10: May a witness voluntarily speak that truth which he knows will further an unrighteous cause, and be made use of to oppress the innocent?
Answer: He may never do it as a confederate in that intention: Nor may he do it when he knows that it will tend to such an event (though threatened or commanded) except when some weightier accident does preponderate for the doing it (as the avoiding of a greater hurt to others than it will bring on the oppressed, etc.).
Question 11: May a witness conceal some part of the truth?
Answer: Not when he swears to deliver the whole truth: nor when a good cause is like[ly] to suffer, or a bad cause to be furthered by the concealment: nor when he is under any other obligation to reveal the whole.”
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On Specific Classes of Law Cases
Baxter, Richard – A Christian Directory… (London, 1673), pt. 4, Christian Politics
ch. 10, ‘Cases resolved about forgiving injuries & debts, & about self-defence, & seeking right by Law or otherwise’, pp. 61-66
ch. 18, Title 2, ‘Certain Cases of Conscience about Theft & Injury’
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On a Court Resolving to Receive Nothing Further From Someone, Despite the Possibility of Further Light, Witnesses, New Evidence, etc., or in Reference to Causes Untried
Quotes
James Durham
The Dying Man’s Testament… (Edinburgh, 1659), pt. 2, ch. 10, ‘Clearing whether in Church-processes an Accuser be always necessary’, pp. 120-21
“Assertion 4. There may be some cases in which it is expedient to admit an accuser, and not to admit a process without one. As suppose one were under no ill report and yet some gross scandal were imputed to him, which were not of such fame, or had not such presumptions as to give ground for a Church-judicatory immediately to interpose, and the scandal being of such a nature as the trial thereof could neither be omitted, nor closed in private; in that case, suppose one should complain of the Church’s negligence in the same, asserting the evidences to be clear, and offering to make them out;
In such a case, I say, the Church can hardly refuse to hear him, lest they be thought partial; nor is there ground, nor is it fit for them immediately to pursue it: Therefore an accuser is expedient, that so, upon the one side, the Church’s impartiality may be vindicated in refusing the complaint of no sober man, nor the uttermost of any trial, that in well grounded reason they may expect; And, on the other side, that the mouths of some needless and too importunate complainers may be stopped, and they themselves found censurable, if either without cause they traduce the Church-officers as negligent and partial, while there is access to make out before them such a truth if it be truth; or if precipitantly and inconsiderately (if not maliciously) they have tabled a scandal against another as a public scandal which they cannot make out, and so have needlessly troubled a Church-judicatory in such a matter and sinfully wronged their neighbor.
For, a process in such cases where it cannot be made out, is scandalous: therefore if a person rest not satisfied so as to abstain till he have trial put to the utmost, he is to be dealt with as a scandalous person, lest men take liberty, under the pretext of pursuing offences, to defame others and abuse the ordinance of Christ. And though it be just in such a case, that he be materially dealt with as unjust accusers use to be in civil courts, yet this does not only flow from the consideration of such a persons being a formal accuser, but from the nature of the deed which is scandalous in such a measure, and that publicly, and therefore is to be restrained, whether the person take on him that formal consideration or not, lest yet, upon the matter, he continue publicly and importunately to press the pursuit. And we conceive, the imposing the title of accuser in such a case, or the making of it necessary, that one take on him that formal notion, is rather for conveniency to restrain men’s inordinateness and stop their mouths, and to add weight to the matter of the sentence if they fail, than as being simply necessary for making such a person to be accounted scandalous, if he come short.”
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Richard Baxter
A Christian Directory… (London, 1673), pt 4, ch. 22, ‘Cases & Directions Against Injurious Law-Suits, Witnessing & Judgment’, § 4, III, ‘The Evil of Unrighteous Judgments’, p. 150
“1. An unrighteous judge does condemn the cause of God Himself: For every righteous cause is his.
2. …It is a damnable sin not to relieve the innocent and imprisoned in their distress, when we have power…
3. It is a turning of the remedy into a double misery; and taking away the only help of oppressed innocency. What other defense has innocency, but Law and Justice? And when their refuge itself does fall upon them and oppress them, whither shall the righteous fly?
4. It subverts laws and government, and abuses it to destroy the ends which it is appointed for.
5. Thereby it turns human society into a state of misery, like the depredations of hostility.
6. It is a deliberate resolved sin, and not done in a passion by surprise: It is committed in that place, and in that form, as acts of greatest deliberation should be done: As if he should say, upon full disquisition, evidence and deliberation, I condemn this person, and his cause.
7. All this is done as in the Name of God, and by his own commission, by one that pretends to be his officer or minister, Rom. 3:3- 6. For the judgement is the Lord’s; 2 Chron. 19:8-10 & 19:5-7. And how great a wickedness is it thus to blaspheme, and to represent Him as Satan, an enemy to truth and righteousness, to his servants and Himself?…
8. It is sin against the fullest and frequentest prohibitions of God. Read over Ex. 23:1-3, etc.; Lev. 10:15; Dt. 1:16-17 & 16:18; Isa. 1:17, 20, 23; Dt. 24:17 & 27:19, ‘Cursed be he that perverts the judgement of the stranger, the fatherless and widow, and all the people shall say Amen’; Ezra 7:26; Ps. 33:5 & 37:28 & 72:2 & 94:15 & 106:3,30; Prov. 17:27 & 19:28 & 20:8 & 29:4 & 31:5; Eccl. 5:8; Isa. 5:7 & 10:2 & 56:1-2 & 59:14-15; Jer. 5:1 & 7:5 & 9:24; Eze. 18:8 & 45:9; Hos. 12:6; Amos 5:7,15,24 & 6:12; Mic. 3:9; Zech. 7:9 & 8:16; Gen. 18:19; Prov. 21:3,7,15. I cite not the words to avoid prolixity…
9. False judges cause the poor to appeal to God against them, and the cries of the afflicted shall not be forgotten, Lk. 18:5-8.
10. They call for God’s judgement upon themselves, and devolve the work into his hands… Ps. 9:7-9, ‘The Lord hath prepared his throne for judgement, and he shall judge the world in righteousness, he shall minister judgement to the people in uprightness; he will be a refuge for the oppressed;’ Ps. 37:6, ‘He will bring forth righteousness as the light, and thy judgement as the noon day;’ Ps. 89:14, ‘Justice and judgement are the habitation of his throne;’ Ps. 103:6, ‘The Lord executeth righteousness and judgement for all that are oppressed;’ Ps. 146:7. In a word, the sentence of an unjust Judge is passed against his own soul, and he calls to God to condemn him righteously, who unrighteously condemned others. Of all men, he cannot stand in judgement, nor abide the righteous doom of Christ.”
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Form of Process (1707) 8.18
in The Practice of the Free Church of Scotland in her Several Courts 8th ed. (1995), p. 196. This is part of the Free Church of Scotland’s constitution.
“…it be the duty of pastors and ruling elders to use all diligence and vigilance, both by doctrine and discipline respectively, for preventing and purging out such errors, heresies, schisms, and scandals, as tend to the detriment and disturbance of the Church…”
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Article
Murray, David – ‘Why do Churches Cover Up Sin?’ (2018) 20 points
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Inferiors may Warn & Admonish Rulers
See also, ‘Elders may be Rebuked by Lay-Persons & the Younger in some Circumstances’.
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Samuel Rutherford
The Due Right of Presbyteries... (1644), Ch. 3, Section 3, Question 4, ‘Whether or no is there a necessity of the personal presence of the whole Church in all the acts of Church-censures?’, pp. 41
“1st Conclusion. The members of the visible-Church are not mere lictors [those who execute judicial decisions] and executioners of the sentences of the eldership:
1. Because they are to observe, warn, 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 warn and admonish their rulers.”
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Non-Principal Parties may Bring a Matter Before a Court
Quote
Samuel Rutherford
The Due Right of Presbyteries (1644), pt. 1, ch. 10, section 10, p. 303
“This is a received maxim also: Quod tangit omnes, ab omnibus, suo more, tractari debet. ‘What concerns all, should be agitated by all, according to their degrees of concernment’; but excommunication of a person, in a consociated Church, concerns all the consociated Churches in a presbytery: all are scandalized; all may be, and are in danger to be leavened with the infectious lump.”
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Free Church of Scotland
The Practice of the Free Church of Scotland in her Several Courts 8th ed. (Edinburgh: Knox Press, 1995), p. 24
“24. Petition to a Kirk Session: People connected with a congregation have freedom of access to the Kirk Session regarding any matter which affects their spiritual interests or those of the congregation, or the diffusion of the gospel in the district.”
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Historical
On the Scottish Reformation
Todd, Margo – p. 32 in The Culture of Protestantism in Early Modern Scotland (Yale University Press, 2002)
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For Lawyers
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Godly Advice
Article
Baxter, Richard – Ch. 4, ‘Directions to Lawyers about their Duty to God’ in A Christian Directory… (London, 1673), pt. 4, Christian Politics, pp. 39-41
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Book
Cook, John – The Vindication of the Law: so far Forth as Scripture & Right Reason may be Judge, & Speedy Justice (which exalts a Nation) may be Advanced. Wherein is Declared what Manner of Persons Christian Magistrates, Judges & Lawyers Ought to be (London, 1652)
Cook was an Erastian Westminster divine and a member of the English House of Commons.
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For Judges & 3rd Parties
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On Error, Guilt, Certainty, Private Knowledge & Passive Obedience in Judicial Rulings, & Conscience in Following Them, or Not
Articles
1500’s
Willet, Andrew – Hexapla in Genesis & Exodus (d. 1621; 1633, London), ‘Of the Ten Commandments in Particular’, ch. 23, 3. Questions Discussed
Question 13, ‘Whether a Judge Ought Always to Follow the Evidence, when He Himself Knows the Contrary?’
Willet argues ‘No’, and responds to many arguments for ‘Yes’.
Question 14, ‘A Judge is Not Bound of his Knowledge to Condemn a Man, Not Found Guilty in Public Judgement’
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1600’s
Weems, John – ch. 17, ‘Whether a Judge is Bound to Give Sentence According to Things Proved & Alleged, or According to his Own Private Knowledge’, pp. 66-70 in Exposition of the Laws of Moses (1632), vol. 2
Weems was Scottish and answers ‘Yes’.
Ames, William – ch. 54, ‘Of Public Judgments, the Judge, Accusers, Witnesses, Advocate & Defendent’ in Conscience with the Power & Cases Thereof (London, 1639)
See Question 5, ‘Whether the Judge Ought Always to Give Sentence According to the Things Alleged & Proved?’ Ames argues that the judge may not sentence against what is alleged and publicly proved, but he must also not condemn one whom he certainly knows is innocent, as such is intrinsically sinful. If it comes to that, “he is bound to leave his office of judge rather than to condemn him.”
St. John, Oliver – Mr. St. John’s Speech, or Argument in Parliament Showing Whether a Man may be a Judge & a Witness in the Same Cause. By way of Preface I shall Return a Distinction between a Doubtful & a Scrupulous Conscience (London, 1642)
St. John was a member of the English House of Commons and a Westminster divine. Amongst other helpful points, he lists five reasons why a judge may not be a witness in a case in ordinary circumstances. Then he argues certain circumstances in which a judge ought to be able to be a witness in a given case.
Hall, Joseph – 2nd Decade, Case 6, ‘Whether a Judge may upon Allegations, Proofs & Evidences of Others, Condemn a Man to Death, whom He Himself Certainly Knows to be Innocent’ in Cases of Conscience Practically Resolved Containing a Decision of the Principal Cases of Conscience of Daily Concernment & Continual Use Amongst Men: Very Necessary for their Information & Direction in These Evil Times (London, 1654)
Hall was a godly Anglican bishop and answers ‘No’. Hall holds the better end of the debate, contra Rutherford.
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Quotes
Samuel Rutherford
The Due Right of Presbyteries... (1644), Ch. 3, Section 3, Question 4, ‘Whether or No is there a Necessity of the Personal Presence of the Whole Church in All the Acts of Church-Censures?’, pp. 41-49
“1st Distinction. There be odds betwixt a free willing people executing the sentence of the Church, and mere executioners and lictors [those who execute judicial sentences].
2nd Distinction. There is a doubting of conscience-speculative, through ignorance of some circumstance of the fact; and a doubt of conscience practical through ignorance of something, which one is obliged to know, and so there is also a speculative and a practical certainty of a thing.
3rd Distinction. There is one certainty required in questione juris, in ‘a question of law’, and another in questione facti, in ‘question of fact’.
4th Distinction. There is, and may be an ignorance-invincible which a man cannot help, in a question of fact; but Papists and schoolmen err who maintain an invincible ignorance in questione juris, in ‘a question of law’, and in this they lay imperfection on God’s Word.
5th Distinction. There is a moral diligence given for knowledge of a thing which suffices to make the ignorance excusable, and there is a moral diligence not sufficient.
6th Distinction. There is a sentence manifestly unjust as the condemning of Christ by witnesses belying one another, and a sentence doubtsomely false.
…
3rd Conclusion. There is not required the like certainty of conscience-practical in a question of fact, that is required in a question of law:
1. Because in a question of law all ignorance is moral and culpably evil to any who undertakes 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 everyone is obliged to know all conclusions of law that are determinable by God’s Word.
2. Every one in his actions is to do out of a plerophory, and a full persuasion, of heart, that what he does pleases God, Rom. 14:14, ‘I know and am persuaded by the Lord Jesus that nothing is unclean of itself.’
3. We are to do nothing but what is lawful and what in our consciences we are persuaded is lawful, and are to know what is sin and what is no sin. All soldiers 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 God’s Law deserve death and what not, as what homicide, sorcery, parricide, incest and the like sins deserve by God’s Law, and what not: because every one is obliged to know morally what concerns his conscience, that he be not guilty before God; the executioner who beheaded John Baptist sinned, because he was obliged to know this [much]: a prophet who rebukes incest in a king ought not to be put to death; therefore [the conclusion follows]; it was unlawful for the men of Judah to come and make war with Jeroboam and the ten tribes because God forbade that war, 1 Kings 12:23-24.
4th Conclusion. It is not enough that some say: if the question be negatively-just, then soldiers and executioners and people may execute the sentence; that is, if they see no unlawfulness in the fact, I mean unlawfulness in materia juris, in ‘a matter of law’. Hence some say subjects and common soldiers not admitted to the secrets of the council of war may fight lawfully when there is this negative-justice in the war; but foreign soldiers who are conduced [brought in], may not do so, for the [Scriptural] law says he is not free of a fault who intermeddles with matters which belong not to him, to the hurt of others; so teaches Suarez, D. Bannes and Dr. 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 God’s Word, is not manifest to executioners, is there culpable ignorance no less than the ignorance of a sentence manifestly unjust; Ergo [Therefore], the practice of these who execute a sentence negatively-only-just, is not lawful. I prove the antecedent:
[1.] because the practical ignorance of what we do which is not warranted by God’s Word, is always culpable, whether the cause be clear or dark: for no obscurity of God’s Law does excuse our ignorant practice when the Word of God can sufficiently resolve us.
2. It is not enough that our moral actions in their lawfulness be just-negatively; because actions moral which are beside the Word of God (praeter dei verbum) to us, who hold God’s Word [to be] perfect in faith and manners, are also, contra dei verbum, against the Word of God, and so unlawful.
3. Because actions-moral, having no warrant but the sole will and commandment of superiors, are undertaken upon the sole faith that what superiors command, if it seem not to us unjust, though it be in itself unjust, may lawfully be done. Now we condemn this in schoolmen and Popish causuists, that the commandment of superiors (as says Gregory de Valent., Bannes, Suarez, Silvester, Navarre) may take away and remove all doubting of conscience and make the action lawful.
Whereas Navarre, Corduba, Sylvester [and] Adrian hold that an action done without a due practical-certainty is unlawful. If he should diligently (says Suarez) search for the truth, and cannot find it, yet the doubter may practice, so he practically persuade himself, he does it out of a good mind; and whereas the Jesuit says that it is his negligence in not seeking the truth, he answers, his negligence which is by past cannot have influence in his present action, to make it unlawful, because it is past and gone.
But I answer: it is physically past, but it is morally present to infect the action, as habitual ignorance makes the acts of unbelief morally worse or ill. And to these we may add that he who does with such a doubt:
1. He sins, because he does not in faith;
2. He exposes himself to the hazard of sinning and of joining with an unjust sentence.
3. It is the corrupt doctrine of Papists, who muzzle up the people in ignorance and discharge them to read God’s Word, and so maintain (because of the obscurity and imperfection of God’s Word, which is not able to determine all questions) that there is an ignorance of many lawful duties which is invincible and to be excused as no ways sinful and which vitiates not our moral actions; so Thomas, Bonaventura, Richard, Gabriele, Occam, Antoninus, Adrianus, Almaine, Suarez, though Occam and Almain may be expounded favorably.
5th Conclusion. Soldiers, lictors, servants [and] people under the eldership are not mere instruments moved only by superiors, as schoolmen say:
1. Because they are moral agents and are no less to obey in faith than superiors are to command in faith, and they are to obey their superiors only in the Lord.
2. They are to give all diligence that they be not accessory to unjust sentences, lest they partake of other men’s sins. What Aquinas, Greg. de Valent. and And. Duvallius says against this, is not to be stood upon.
6th Conclusion. But in questione facti, in matters of fact, there is not required that certainty of conscience. But that we may more clearly understand the conclusion, a question of fact is taken three ways:
1. For a fact expressly set down in God’s Word, as that Moses led the people through the wilderness, that Cain slew his brother Abel, these are questions de facto [in fact], not questiones facti [questions of fact], and must be believed as Almaine and Occam say well, with that same certainty by which we believe God’s Word.
2. A question of fact is [sometimes] taken for a question [which is actually mixed]: 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 blaspheme; if the Lord’s priests, in giving David showbread, 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 God’s Word, and the ignorance of any questions which may be cleared by God’s Word is vincible [able to be overcome] and culpable, for the law says [that,] ‘The ignorance of these things which we are obliged to know is culpable’, and excuses not.
But thirdly, a question of fact is properly a question whether this Corinthian committed incest or no [1 Cor. 5], whether Titus committed murder 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 [that] the question of law must be proved by the law; all are obliged in conscience to know what sins deserve death and excommunication. But whether this man John, Anna, Marie has committed such sins, is a question of fact and cannot be proved by the law or the Word of God, for the Law is not anent singulars or particulars; this is proved by sense and the testimony of witnesses, and therefore the certainty-practical of conscience here is human and fallible, not divine and infallible.
Now, though soldiers, lictors or people join 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 do in faith, though they have not certainty of faith concerning the fact, because there cannot be certainty of divine faith in facts; men’s confession, sense [and] the testimony of witnesses cannot breed divine faith: yea here the judge himself may condemn the innocent, and yet the sentence of the judge may be most just because the witnesses are liars, and the judge gives out that sentence in faith, because God’s Word has commanded him to proceed secundum allegata & probata [according to what is alleged and proved]: he must give sentence under two or three witnesses.
Yea, though the judge saw with his eyes the guilty commit the fact, yet he cannot by God’s Law condemn him, but upon the testimony of witnesses. For the wise Lord sees what confusion and tyranny should follow if one might be both index, actor and testis, the judge, the accuser, and the witness. And when the judge gives out a sentence to absolve the guilty and condemn 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 observes well) [that] ‘such a proposition is true, when he knows it to be false, and being posed and urged in conscience, is this an innocent man or no?’ If he should answer and say [that] he is not, [or] should he 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 has one conscience as a man and another contrary conscience as a judge in the question of fact; for God has tied 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 Bonaventura, Richardus, Occam, Antoninus, Adrian and our countryman John Weems [Exposition of the Laws of Moses (1632), vol. 2, ch. 17, ‘Whether a Judge is Bound to Give Sentence According to Things Proved & Alleged, or According to his Own Private Knowledge’, pp. 66-70] and Henricus.
Now because souldiers, lictors and people are not judges, if they know the fact in law deserves 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 diligence 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 ways:
1. By the confession of our [congregationalist] brethren, if any of the congregation be absent by sickness, childbirth-pain, trading over sea, imprisonment, the congregation does justly put away from amongst them the incestuous Corinthian, and they who are absent are to repute the party excommunicate[d], as a heathen; as their own practice is at censures in the weekday, the largest half 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 [necessarily] to be present at Church-censures, as our [congregationalist] Brethren teach, are to repute the excommunicate[d] cast out by a sister Church-independent (as they say) as a 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 as judges to usurp authority over the men. This [John] Robinson grants.
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 daily, nor are acts of discipline necessarily tied to the Lord’s Day. They are (I grant) acts of divine worship, but the whole multitude of women and children are deprived of the liberty that God has given them for six days 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, this way the overseeing of the manners of the people, which also our Brethren lay upon the whole people, takes up the great part of the pastor’s office and the whole office of ruling elders. And if we lay upon the people the work and all the acts of the office, how can we not lay upon them the office itself?
5. All Israel, gathered to war from Dan to Beersheba, could not, by virtue of duty and obligation, be present personally at the determination of lawful war: Nay, if they were all present as judges, as Mr. Ainsworth would have them, there [would] 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 lawful for one to be king over more people than he could in his own personal presence judge, contrary to God’s Word, that teaches us to obey these who are sent by the supreme magistrate, as we obey the king, 1 Pet. 2:13-14. Therefore, these who are sent by him are lawful judges, and yet the king judges 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 civil matters than there can be for their Church-power of judging in the Church-matters and [the] government thereof. 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 fatherless and the widow; nor can there be a promise made to establish the king’s throne for obeying that commandment, as God’s Word teaches, if the people have as great, yea, greater power in judging than the rulers have by this our Brethren’s 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, nor could they be condemned as roaring lions and ravening wolves, as the prophet says: for the judge might well be faultless when the poor were crushed in the gate and judgment turned into gall and wormwood, because they cannot help the matter: the people are the greatest part in carrying matters in judgment.
2. We see David’s practice in condemning the Amalakite out of his own confession, not asking the people’s consent, and in condemning to death Baanah and Rehab, for killing Ishbosheth. Solomon gave sentence against Adonijah, Joab [and] Shimei without consent of the people; David pardoned Shimei contrary to the counsel of Zerviah’s sons.
3. If from the people’s witnessing and hearing of judgment in the gate we conclude [that] the people were judges with the rulers, there was never a time when there was no king in Israel and no judge to put evil doers to shame, but every man did what seemed good in his own eyes, contrary to Scripture because all are a generation of kings and princes no less than the ruler himself, as Anabaptists teach. By the doctrine of our brethren, I deny not but he that gathered sticks on the Sabbath was brought, Num. 15:33, to Moses and to Aaron and to all the congregation, but the congregation signifies not the common multitude. For [verse] 35, Moses received the sentence from God and pronounced it, and the congregation stoned him to death; and Num. 27:1, The daughters of Zelophehad stood before Moses, Eleazar and before the princes as judges, and before all the congregation as witnesses, not as judges: but vv. 6-7, Moses gave out the judicial sentence from the Lord’s mouth. And 1 Kings 21:12, Naboth stood in presence of the people to be judged, but the nobles and princes were his judges, because, v. 8, Jezabel 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 Jezabel had sent unto them. And Jeremiah, ch. 26, pleaded his cause before the princes and people, for v. 10, the princes [text in Hebrew] set down (judicially) in the entry of the new gate of the Lord’s House: nothing can be gathered from the place to prove that the people judged, but because Jeremiah spake to the princes and the people, who, verse 24, were in a fury and rage against Jeremiah, if Ahikam had not saved him from their violence.”
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Richard Baxter
A Christian Directory… (London, 1673), pt 4, ch. 22, ‘Cases & Directions Against Injurious Law-Suits, Witnessing and Judgment’, p. 149
“Question 12: Must a judge and jury proceed secundum allegata & probata, ‘according to evidence and proof’, when they know the witness to be false and the truth to be contrary to the testimony, but are not able to evince [prove] it?
Answer: Distinguish between the negative and the positive part of the verdict or sentence:
In the negative they must go according to the evidence and testimonies, unless the Law of the land leave the case to their private knowledge. As for example: They must not sentence a thief or murderer to be punished upon their secret unproved knowledge; They must not adjudge either moneys or lands to the true owner from another without sufficient evidence and proof; They must forbear doing justice because they are not called to it, nor enabled.
But positively they may do no injustice upon any evidence or witness against their own knowledge of the truth: As they may not upon known false witness, give away any man’s lands or money, or condemn the innocent: But [they] must in such a case renounce the office: The judge must come off the bench, and the jury protest that they will not meddle or give any verdict (whatever come of it): Because God and the Law of Nature prohibit their injustice.
Objection: ‘It is the Law that does it, and not we.’
Answer: It is the Law and you: and the Law cannot justify your agency in any unrighteous sentence. The case is plain and past dispute.”
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Regarding Courts
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On a Court’s Responsibility to God, Christ, Themselves & the People
Articles
Baxter, Richard – A Christian Directory… (London, 1673), pt 4, Christian Politics
ch. 2, ‘Memorandums to Civil Rulers for the Interest of Christ, the Church & Men’s Salvation’, pp. 5-8
ch. 20, ‘Motives & Directions Against Oppression’, pp. 137-42
Ward, Richard – The Principal Duty of Parliament-Men, or a Short & Compendious Treatise Concerning the Unity & Unanimity which Should be in the Members of that Honourable Assembly (London, 1641) 52 pp. on Jn. 17:21, “That they all may be one, as Thou Father art in Me, and I in Thee.”
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On the Power of Order vs. the Power of Jurisdiction, & that Anything Unlawful in the Latter Makes Void the Ruling
Quote
George Gillespie
Assertion of the Government of the Church of Scotland (1641), pp. 12-14
“…we will distinguish with the School-men a two-fold power, the power of Order, and the power of Jurisdiction; which are different in sundry respects.
1. The power of Order comprehends such things as a minister by virtue of his ordination, may do without a commission from any Presbytery, or Assembly of the Church, as to preach the Word, to minister the Sacraments, to celebrate marriage, to visit the sick, to catechize, to admonish, etc. The power of Jurisdiction comprehends such things as a minister cannot do by himself, nor by virtue of his ordination; but they are done by a Session, Presbytery, or Synod; and sometimes by a minister, or ministers, having commission, and authority from the same, such as ordination and admission, suspension, deprivation and excommunication, and receiving again into the Church, and making of laws and constitutions ecclesiastical and such like; whereof we boldly maintain, that there is no part of Ecclesiastical Jurisdiction, in the power of one man, but of many met together in the name of Christ.
2. The power of Order is the radical and fundamental power, and makes a Minister susceptive, and capable of the power of Jurisdiction.
3. The power of Order goes no further than the court of conscience; the power of jurisdiction is exercised in external and ecclesiastical courts.
Fourthly, the power of Order is sometime unlawful in the use, yet not void in itself. The power of Jurisdiction when it is unlawful in the use, it is also void in itself. If a minister do any act of Jurisdiction, as to excommunicate, or absolve without his own parish, wanting also the consent of the ministry and elders of the bounds where he does the same, such acts are void in themselves, and of no effect. But if without his own charge, and without the consent aforesaid, he baptise an infant, or do any such thing belonging to the power of Order, though his act be unlawful, yet is the thing itself of force, and the sacrament remains a true sacrament.”
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Article
Phillimore, John George – III. ‘Everything Contra Bonos Mores [Good Mores] is Invalid’ of Principless & Maxims of Jurisprudence (London, 1856), pp. 370-71
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May a Conflict of Interest be Allowed in a Court?
Samuel Rutherford
The Due Right of Presbyteries (1644), pt. 1, pp. 456-7
“Answer. None of us do teach that it is against the light of nature that the adverse party be the judge; it might fall out in a general council lawfully convened, from which there is no provocation; yea and in a national council (for all councils may err) the adverse party may judge, as it was a lawful council according to a Church-constitution that condemned Christ of blasphemy, and they were also his enemies;”
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On Precedents & Stare Decisis.
Intro
Stare Decisis means in Latin, ‘Let the judgment stand’, and is the practice of ruling in accord with previous precedents for the sake of good order amongst the body of the people and the judicial system. This practice is not a law, but the common, even near universal, practice of the American judicial system. The doctrine is considered a ‘super-precedent’ which would likely never be overturned.
The practice holds strongly with respect of subordinate courts to precedents of higher courts, and less strongly between coordinate courts, or the same court. Stare desisis may be departed from if moral necessity requires it. Unfortunately, as is documented in the material below and is heard about in the media, stare decisis has been, and is, abused by some judges, as if they may rule contrary to morality upon the (claimed) constraint of precedents.
Immediately below are articles that discuss the numerous qualifications and different applications of stare decisis, as well as debate issues surrounding it. We hope it is of help, especially to Church courts, in navigating the many important issues surrounding this subject. For a place to start, see this very helpful and qualified article:
‘Stare Decisis’ in Bouvier’s Law Dictionary & Concise Encyclopedia, vol. 3, 3rd rev. (Kansas City, 1914), pp. 3118-3120
Below the articles section is a section of quotes from reformed Church history on when courts need to rule according to God’s moral law before erroneous precedents of higher courts.
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Articles
1800’s
Black, H. Campbell – ‘The Principle of Stare Decisis’ in The American Law Register, vol. 34 (Dec., 1886), pp. 745-757
Chamberlain, D.H. – ‘The Doctrine of Stare Decisis as Applied to Decisions of Constitutional Questions’ in Harvard Law Review, vol. 3, no. 3 (Oct. 15, 1889), pp. 125-31
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1900’s
Whitney, Edward B. – ‘The Doctrine of Stare Decisis’ in Michigan Law Review, vol. 3, no. 2 (Dec., 1904), pp. 89-107
‘Stare Decisis’ in Harvard Law Review, vol. 17 (1904), p. 366
Lile, W.M. – ‘Some Views on the Rule of Stare Decisis’ in Virginia Law Review, vol. 4 (1916), pp. 95-113
‘Stare Decisis’ in Harvard Law Review, vol. 34 (1920), pp. 74-76
Sprecher, Robert – ‘1945 Prize – Winning Ross Essay: The Development of the Doctrine of Stare Decisis and the Extent to Which It Should Be Applied’ in American Bar Association Journal, vol. 31, no. 10 (Oct., 1945), pp. 501-509
Lobingier, C. Sumner – ‘Precedent in Past & Present Legal Systems’ Michigan Law Review, vol. 44, no. 6 (Jun., 1946), pp. 955-996
Szanton, Peter L. – ‘Stare Decisis: A Dissenting View’ in Hastings Law Journal, vol. 10, issue 4 (1959), pp. 394-403
Knight, Jack & Lee Epstein – ‘The Norm of Stare Decisis’ in American Journal of Political Science, vol. 40, no. 4 (Nov., 1996), pp. 1018-1035
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2000’s
Staszewski, Glen – ‘Precedent & Disagreement’ in Michigan Law Review, vol. 116, issue 6 (2018), pp. 1019-1043
Wikipedia – ‘Precedent’
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When Precedents Need to be Departed From or Overturned: Historic Reformed Resources
Quotes
John Pym
A Speech Delivered in Parliament, by a Worthy Member Thereof… (London, 1641), p. 17. Pym was a puritan member of the English House of Commons & a Westminster divine.
“…from whence diverse inconveniences and mischiefs are produced: 1. The danger of the precedent that a judgement in one court, and in one case, is made binding to all the kingdom. ([Margin note:] The Kingdom bound by one private case.)”
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Samuel Rutherford
A Survey of the Survey of that Sum of Church Discipline Penned by Mr. Thomas Hooker 1658, Epistle to the Reader
“3. Nor does it belong to the essence of Presbyterial Government, that all members of this Church, and inferior judicatures, should so submit to the superior respective judicatures, that if they be grieved with the sentence, they ought to acquiesce thereunto, and not to contra-act, but only appeal, until there shall be a general assembly to determine the matter.
This never was, and I trust, nor shall ever be their mind who are for presbyterial government; nor do our brethren justly father it upon the general Assembly, 1648. Session 30. For our Church acknowledges no subjection nor subordination of inferior judicatures unto superiors, but in the Lord, and so to submit to any sentence, and to forbear a duty of preaching the Gospel, praying, visiting, exhorting, catechizing pastorally in families, to abstain from the Lord’s Supper, and from acts of due censure necessary for the flock upon the known unjust sentence of a synod, until a general Assembly (which possibly cannot be convened in an age to determine) is to:
1. Obey men unjustly forbidding a called minister of Christ to preach in season, and out of season, rather than God; for they unjustly forbid, and the Lord justly commands; therefore the called minister must act and contra-act to their unjust sentence, and not forbear for an hour, as the Scripture clears, 2 Tim. 4:1-2; Acts 20:17-20; 1 Cor. 9:16; Isa. 58:1; Jer. 1:17; Eze. 2:3-5 & 3:10,17; Acts 5:28-29; and so this is unjust.
2. It is to make synods and ecclesiastical judicatures lords of our faith, which the Reformed Churches detest in popish councils; for all men and councils most lawful can challenge only limited obedience and submission in the Lord to their determinations, if they speak and command according to the Law and the Testimony, Isa. 8:20, otherwise there is no sight in them. And so it is popish.
3. We conceive in performing acts of that government which Christ owns in his Word, we do not sin; for no authority of a judicature can make that to be the word of God, and obedience to God, which was not, as to the matter, obedience to God before that authority, nor on the contrary. Now to abstain from preaching, praying, eating and drinking as the Lord’s Supper in a called minister, and in a visible professor, duly called and fitted, is sin; then cannot the authority of the Church, far less their known unjust sentence make it lawful.
4. Suppose the general Assembly should ratify and confirm the unjust sentence of the inferior judicature, or annul their just sentence, the people of God are not obliged to stand to either the one or the other. So we disown the point which our Brethren delivered to us in their papers for union sought by us, as nothing belonging to the essence of presbyterial government, but reject it as unsound, tyrannical and popish.”
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Sundry London Ministers, Divine Right of Church-Government 1646/1653, Part 2, Ch. 15
“5. It is granted, that the highest ecclesiastical assembly in the world cannot require from the lowest a subordination absolute, and at their own mere will and pleasure, but only in some respect; subordination absolute being only to the law of God laid down in Scripture. We detest popish tyranny, which claims a power of giving their will for a law. ‘Tis subjection in the Lord that is pleaded for: the straightest rule in the world, unless the holy Scripture, we affirm to be a rule to be regulated; peace being only in walking according to Scripture canon, Gal. vi. ver. 16.”
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James Guthrie
“Inferior Kirk-judicatories, being ordinances of Jesus Christ, have the promise made to them when they meet in His Name and do adhere to His Truth, Mt. 18:18-19. And if so, shall the sentence of the superior Judicatory, when wrong upon the matter, oblige them to submission? If a Presbytery, or a Synod with the consent of the Presbytery, do in an orderly way of procedure, cast out an heterodox and scandalous minister, must they, because the Synod or General Assembly does sustain his unjust appeal, be obliged in conscience again to receive him as a member of the Presbytery or Synod, and acknowledge him for a lawful minister of the Gospel; or, if they have in an orderly way of procedure, admitted an able orthodox godly man to the Ministry: Must they, because the superior Judicatory commands them so to do, cease to acknowledge him or own him for one of their number, or as a Minister of the Gospel?
If so, it seems to be an ill-grounded truth that is commonly delivered by some divines writing of synods, that the power of synods is not corruptive, privative, or destructive to the power of classical presbyteries or single congregations, but perfective, acumulative, and conservative thereunto.
8. What is denied jure to ecumenic councils, and so lawfully called prophets and ministers of the Gospel, to Nathan, to David, to Paul, to an angel from heaven, Gal. 1:8, cannot warrantably be given to General Assemblies. If ecumenic councils, lawfully called ministers, if Nathan, if Samuel, if Paul, if an angel teach or decree but according to the Word of the Lord, we are to counteract, and to contradict, Gal. 1:8. “But though we or an angel from heaven, preach to you, beside what we have preached, let him be accursed,” Gal. 1:8. Therefore, etc.”
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Articles
6 Scottish Covenanting Ministers – pp. 462-63 of ‘The Proceedings Against the Prisoners in Blackness [Castle]… as it was Penned by Themselves…’ (1606) in David Calderwood, History of the Kirk of Scotland, vol. 6
King James of Scotland disallowed a faithful presbyterian assembly. The assembly declined his order and continued anyway. The king put 14 of the Church-officers in jail. 6 ministers were legally prosecuted. This excerpt is from the ministers’ defense, written from jail.
The ministers give five main reasons for their original declinature. While the context is of a Church court declining a civil court, yet their reasons are excellent as to why any God-given court may decline a ruling, if need be, of any other God-given court.
For more background on the context, see M’Crie, Story of the Scottish Church… (London, 1875), circa p. 97. The ministers were John Forbes, John Welch, Andrew Duncan, Robert Dury, John Sharp and Alexander Strachan.
Rutherford, Samuel – Part 1, pp. 383-85 of The Due Right of Presbyteries (1644)
Some reformed folk believed that Church power derived from higher courts to lower courts; some believed that it derived from lower courts to higher courts. Rutherford argues that that all Church courts have a divine right from Jesus Christ immediately.
Note that Rutherford was arguing this in 1644, about a decade before the Resolutioner-Protester controversy; hence his views cannot be said to be ex post facto from that division. Rutherford was also the leading spokesman for Scottish presbyterianism (being a professor in their schools), hence his view may be regarded not simply as his alone, but as a significant strand, if not the significant strand of Scottish presbyterianism.
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On Appeals
Quotes
George Gillespie
English Popish Ceremonies (1637), pt. 3, ch. 8, Digression 4, p. 194
“Neverthelesse, if any man think the sentence of the b∣shop and the presbytery given forth against him to be unjust, he ought to have liberty of recourse to the synod and there to be heard, according as it was decreed by the Fourth Council of Carthage, Canon 66.
But oftimes the matter is of such difficulty or importance, that the bishop and the presbytery may not giveout an peremptory sentence of suspension or deprivation (Fenner, Theol., bk. 7, ch. 7, p. 153), till the matter be brought to the synod of the province (Hemming, Enchir., class. 3, ch. 11, pp. 390-91), where according to the ancient order the matter is to be handled, not by the censure of one bishop, but by the judgement of the whole clergy gathered together.”
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An Assertion of the Government of the Church of Scotland in the points of Ruling-Elders and of the Authority of Presbyteries and Synods (Edinburgh, 1641), pp. 125-6
“4. He [Parker] makes a distinction betwixt the case of appellation and the case de nulla administratione mala praesumpta. Though the particular eldership has proceeded aright, though it consist of able and sufficient men, and though it be in re propria [in a proper thing], yet if one think himself wronged, and so appeal, then is it made obnoxious to a higher consistory, for says Parker, as the Council of Sardis ordains, audience must not be denied to him who entreats for it.
So says Zepperus, speaking of the same purpose: ‘cuivis integrum quoque sit ad superiores gradus provocare, si in inferioris gradus sententia aut decreto aliquid desideret.’ (de Pol. Eccl., bk. 3, ch. 2)”
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Samuel Rutherford
Due Right of Presbyteries (1644), Part 1, ch. 10, sect. 10, pp. 315-316
“Objection 9 [of a congregationalist to presbyterianism]: ‘From the church here spoken of [in Mt. 18] there is no appeal because the sentence is ratified in heaven. It inflicts the highest punishment: the censure of excommunication; and a higher judicature can do no more.
There is no reason to appeal to a higher judicature because the inferior may err, because all above a congregation are courts which may err also. For presbyteries, provincial councils, national, and the universal council of the catholic Church may err.’ So Mr. Mather (Richard Mather & William Tompson, Answer to Mr. Herle, ch. 2, pp. 13-14).
[Rutherford’s] Answer [1.]: Because the sentence is ratified in heaven is no reason why we may not appeal from a congregation. The sentence of an inferior judge proceeding rightly is ratified in heaven, yet we may appeal from him. To appeal is but upon fears of ill administration; to desert a lower court and go to a higher court. So when we fear that a counsel and advice given by a sister church is not according to the Word of God, which yet is according to the Word of God, upon the supposal of that fear we decline that council and take another.
Neither are we to appeal de jure, ‘from a just sentence,’ in a presbytery. Illud possumus quod jure possumus [‘What we can do, is that which we can do by law’]. What the inferior Sanhedrin of Israel did justly was ratified in heaven. Yet by God’s Law there might be an appeal from it to the highest Sanhedrin.
2. Nor is this a good reason: that we may not appeal from a judicature which may inflict the highest censure. For inferior judicatures in Israel had power of life and death, yet might man appeal from them.
3. The cause of appeals is not because inferior judicatures may err: for so we might appeal from all judicatures, even from a general council, for it may err. But the true grounding [of appeals] is:
1. Because rarius errant, they [higher councils] ‘do not so frequently err’.
2. They are not so inclined and disposed to err, ‘for many eyes see more than one,’ and many eyes do more seldom miscarry in not taking up the right object than one.
3. Because we conceive more equality and less partiality in higher courts.”
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Article
‘Debate on Appeals’, pp. 279-88 in ed. Hall & Hall, Paradigms in Polity… (Eerdmans, 1994) This section is an excerpt from the Westminster Assembly minutes.
This is a very detailed debate, expressing a variety of opinions, on the nature and warrant of appeals according to Scripture and the light of nature.
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On Courts Receiving Accusations & on Cases where their is No Accuser
Articles
Ames, William – Question 4, ‘How Many Ways May a Judge Lawfully Proceed Against Offences?’ in ch. 54, ‘Of Public Judgments, the Judge, Accusers, Witnesses, Advocate & Defendent’ in Conscience with the Power & Cases Thereof (London, 1639), pp. 278-281
Durham, James – The Dying Man’s Testament to the Church of Scotland, or A Treatise Concerning Scandal… (Edinburgh, 1659), pt. 2
ch. 10, ‘Clearing whether in Church-Processes an Accuser be Always Necessary’
ch. 11, ‘Concerning what is to be done when the Complaint is of some Injury …one to the Complainer’
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Quote
Form of Process (1707) 8.18
in The Practice of the Free Church of Scotland in her Several Courts 8th ed. (1995), p. 196. This is part of the Free Church of Scotland’s constitution.
“…it be the duty of pastors and ruling elders to use all diligence and vigilance, both by doctrine and discipline respectively, for preventing and purging out such errors, heresies, schisms, and scandals, as tend to the detriment and disturbance of the Church…”
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Latin
See also the Latin works on our page: On Positive Laws.
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Latin Articles
1500’s
Oldendorp, Johann – A Judicial [Forensis] Disputation on Law & Equity in A Collation of Civil & Canonical Law… (Leiden, 1547)
Oldendorp (1480-1567) was a German, Lutheran, jurist and reformer.
Godefroy, Denis – Miscellaneous Controversies of Law (Argentoratum, 1592) This is a disputation with 34 theses.
Godefroy (1549-1622) was a reformed professor of law at Geneva, Strassburg and Heidelberg.
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Latin Books
1500’s
Ehem, Christoph – On the Principles of Law, in 7 Books, in which the Art, Method & Order of Jurisprudence is Given, & its Proper Ends being Circumscribed are Clearly Set Forth (d. 1592; Hanau, 1601) ToC
Ehem (1528-1592) was reformed and was a professor of law at Heidelberg, Germany.
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1600’s
Winkler, Benedikt – 5 Books of the Principles of the Law, in which the Origin [Genuina] of the Law of Nature and Positive Law, and the Principles and Most Firm Fundamentals of Jurisprudence are Displayed, and the Highest End of it, to the Eyes, is Set Down, and its Divine Authority is Proved (Frankfurt: 1615) This work has a subject index at the end, but no table of contents.
Winkler (1579-1648) was a Lutheran.
Voet, Paulus – Sacred Jurisprudence… (1662) ToC
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1700’s
Heidegger, Johann Heinrich – 16. ‘Of the Judicial Law of Moses’ in The Marrow of Christian Theology: an Introductory Epitome of the Body of Theology (Zurich, 1713)
28-30. ‘Of the Use of the Judicial Laws in the Judaic Republic’
31-35. ‘Of the Use of the Judicial Laws in a Christian Republic’
Thomasius, Christian – Fundamentals of the Law of Nature & the Law of Nations, Deduced by Common Sense, throughout which is Distinctly Treated the Principles of Honesty, Justice & Decorum, Adjoined to which is an Emendation to those Fundamentals on the Institutions of Divine Jurisprudence (Halle & Leipzig, 1718)
Thomasius (1655-1728) was a Lutheran professor of Natural Law and Law at Leipzig and Halle, Germany respectively.
Darjes, Joachim Georg – Institutions of Universal Jurisprudence, all parts of which Explain by a Scientific Method the Law of Social Nature and of Nations (Frankfurt, 1740)
Darjes (1714-1791) was a professor of philosophy and law at Jena and Frankfurt, Germany, in the Lutheran context.
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Latin: On Roman Law
1600’s
Althusius, Johannes – A Distributed Method of Roman Jurisprudence in Two Books (Corvinus, 1607) 696 pp. ToC
Althusius was reformed.
Godefroy, Denis – A Body of Roman Civil Law… vol. 1, 2, 3, 4, 5 (d. 1622; Neapoli, 1828)
Godefroy (1549-1622) was a reformed professor of law at Geneva, Strassburg and Heidelberg.
Le Fèvre, Jean-Rodolphe – The Key of Jurisprudence, or a Brief & Methodical Explication of the Institutions of Justin… (Gratianopoli, 1638)
Le Fevre (fl.1620-1643) was a reformed professor of philosophy, law, math and Greek at Die, France and Lausanne and Geneva, Switzerland.
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1700’s
Petit, Samuel – Roman & Attic Jurisprudence, Containing Various Commentaries… (1741) Subject Index Larger Subject Index
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“The fear of the Lord is the beginning of knowledge: but fools despise wisdom and instruction.”
Prov. 1:7
“Submit yourselves to every ordinance of man for the Lord’s sake… as unto them that are sent by Him for the punishment of evildoers, and for the praise of them that do well. For so is the will of God…”
1 Pet. 2:13-15
“Hear this, I pray you, ye heads of the house of Jacob, and princes of the house of Israel, that abhor judgment, and pervert all equity.”
Micah 3:9
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