The Ruling of the Church

“As the Word of God is the life and soul of this Church, so this godly order and discipline is, as it were, sinews in the body, which knit and join the members together with decent order and comeliness.  It is a bridle to stay the wicked from their mischiefs.  It is a spur to prick forward such as be slow and negligent, yea, and for all men it is the Father’s rod, ever in readiness to chastise gently the faults committed, and to cause them afterward to live in more godly fear and reverence.  Finally, it is an order left by God unto his Church, whereby men learn to frame their wills and doings according to the law of God…”

‘The Order of Ecclesiastical Discipline’
The Scottish Book of Common Order  1564

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Subsection

On Excommunication

Historic, Reformed Books of Discipline

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Order of Contents

Ordination
Church Discipline
On the Right of Church Discipline
Discipline is Not a Necessary Mark of the Essence of the Visible Church
Acts of Discipline are Worship
On How to Go to Law with Another
Whether a Guilty Person May Ever Plead ‘Not Guilty’?
Is it Lawful to Decline to Answer All Questions?
Contumacy Must be Conjoined with a Specific Commandment of God
On Erroneous Church Rulings
On a Court Resolving to Receive Nothing Further From Someone
On Error, Guilt & Certainty in Judicial Rulings
Inferiors may Warn & Admonish Rulers
Is Any Unrepentant Sin Grounds for Excommunication?
On the Incompatibility of Error & Godliness
When the Least Errors are to be Disciplined
Must Church-Communion be Restored Immediately to a Repentant Person?

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Ordination

Binnie, William – The Concurrence of Popular Election and Official Ordinationp. 132, 16 pages

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Church Discipline

Binnie, William, Church Discipline, p. 98, 7 pages, from his The Church

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On the Right of Church Discipline

Samuel Rutherford

The Divine Right of Church Government...  (1646), ‘To the Ingenuous and Equitable Reader’, unnumbered page

“It is said [about the divine right of Church government] that, ‘All this is but a plea for a dominion of an higher nature, even over the consciences of men by censures.’

But why a dominion?  Because a power of censures?  Surely, if they were not spiritual censures, and such as have influence on the conscience, we should yield a domination were the business.  But this power of censuring spiritually is as strong as authoritative in dispensing rebukes, threats, Gospel-charges and commands in the Word preached, as in censures; The power is ministerial only in the Word, not lordly; and why should it be deemed a dominion, and an arbitrary power in the one, and not in the other?”

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The Exercise of Discipline is Not a Necessary Mark of the Essence of the Visible Church

Samuel Rutherford

The Due Right of Presbyteries…  (1644), ch. 9, section 9, pp. 287-8

“Other two questions here are shortly to be discussed, as belonging to this purpose, as:  1. Whether discipline be a mark of the visible Church?  Mr. [John] Robinson says [that] the power of censures is simply necessary for the being of the Church; sundry of our divines affirm it is.  So the learned professors of Leiden, and Ursinus with Pareus.  Great Junius says [that] it is a note belonging to the Church’s order, ad decorum; the [Lutheran] Augsburg Confession leaves it out from amongst the notes, and so does Calvin and Whittaker, making two notes only: Word and sacraments.  Learned Beza makes only the preaching of the Word a note, not excluding the other two.

I think distinctions may help the matter:

1.  There is a power of discipline, and there is a care thereof.  True Churches have a power given them of Christ, and this Robinson proves, and no more; yet the care to exercise the power may be wanting [lacking] in a true Church.

2nd Distinction:  Right discipline is not necessary for the essence of a visible Church:

[1.]  All our divines condemn Anabaptists and Pelagians, who plead that righteous men only, and such societies as have right discipline, to be true Churches.

2.  Novatians and Donatists came near to them in this also, as we may see in Augustine.  So Richard Field, Parker [and] Cartwright make it necessary to the well-being of the Church:

1.  Because it is not indifferent.
2.  Because it is commanded in God’s Word.
3.  Discipline in the substantial points is immutable.
4.  It is necessary in respect of the end.

And all this the learned Parker demonstrates to be true.  But it is not necessary simply to the being of it: as a city may be without walls, a garden without an hedge.

3rd Distinction:  The power and right to discipline is a propriety essential to the Church, and is not removed from it till God remove the candlestick and the Church cease to be a visible Church; but the exercise may be wanting and the Church a true visible Church, from which we are not to separate.

4th.  Discipline is a necessary note and inseparable from a visible Church, whole, entire and not lame and imperfect.  But a Church may retain the essence and being of a visible Church, and yet have no discipline in actual use, or little; and though want of discipline do leaven a Church, yet it does not (as Robinson says) evert the nature thereof and turn it into Babylon and a den of dragons.

Robinson will have profaneness and impiety, by absolute necessity, rooted out by discipline; but he is too hasty.  Nay, not by public preaching of a sent pastor through absolute [necessity], but only through ordinary and conditional necessity.  You bind the Almighty too hard.”

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Acts of Church Discipline are Worship

Samuel Rutherford

The Due Right of Presbyteries (1644), pt. 1, p. 47

“…nor are acts of [Church] discipline necessarily tied to the Lord’s Day.  They are (I grant) acts of divine worship…”

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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

§ 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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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 and 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 and 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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Guilt for Contumacy & Contempt of Authority Must be for More than Disobedience to Positive, Human Commandments; it Must be Conjoined with Breaking a Specific Commandment of God in Disobeying that Human Authority, or Mere Disobedience to Human Authorities is Not a Sin

1600’s

Samuel Rutherford

The Divine Right of Church Government…  (1646), p. 655

“4.  Pride and contempt are only seen to God: Prelates have no place to punish heart-acts; they are to prove by two witnesses the malice, and pride, and contempt of authority; but this is invisible to men’s eyes.

Refusal of obedience to canons touching indifferent things, the necessity whereof (as the doctor must say) comes only from man’s will, cannot be contempt:  The neglect of a command of God is indeed a virtual contempt of the majesty, authority, power and justice of God, because a command of God has essentially, equity and justice in it, from God’s commanding Will:

But a command of a thing indifferent, that may as well, without sin, be left undone, as done (as our doctor says of our ceremonies) can never have equity or goodness from human authority; and I never contemn human authority except I contemn the just laws made by human authority.”

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James Guthrie

Protesters No Subverters…  (1658), pp. 46-47

“But all Church-power and authority is bounded by the Word of God, and is for edification only; And therefore all the subjection that is due thereunto, is in the Lord only; and when we are thus subject, the power and authority is sufficiently acknowledged and preserved.

But, say our [Resolutioner] Brethren, without this [absolute, necessary, passive] submission [to erroneous Church decisions] which they plead for, our established judicatories would be nothing but consultative meetings.

But this we also deny, because what is resolved and determined by Kirk-judicatories in a right way, does not only bind by virtue of the intrinsic lawfulness thereof, it being for matter God’s Word, and by virtue of the reverence that is due to the gifts and endowments of brethren and friends counselling right things, which is all that can be attributed to a consultative meeting, but also by virtue of a positive law of God, by which He has commanded us to hear the Church, and those that sit in Moses’ chair, and to be subject in the Lord to Church-Governors, to whom He has given a ministerial and official authority and power to assemble in His Name in the respective courts appointed by Himself for governing His House according to the rule of His Word; And therefore as they have authority or a superiority of jurisdiction, which no consultative meeting has; So whosoever resists their power, when put forth to edification, and not to destruction, does not only sin by despising that Word of God which is the matter of their decree, and by despising the gifts and graces of their brethren that are exercised in holding forth light unto them, but does also sin by resisting the ordinance of God: a Kirk-judicatory modeled according to the pattern showed in the mount, and clothed with authority from Jesus Christ, and proceeding according to the Law and to the Testimony, to which they ought to be subject, God having commanded us so to do.”

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Francis Turretin

pp. 285-6, 290-1 of Question 31, ‘Does a legislative power properly so called, of enacting laws binding the conscience, belong to the church?  Or only an ordaining (diataktike) power, of sanctioning constitutions and canons for the sake of good order (eutaxian)?  The former we deny; the latter we affirm against the Romanists.’  under ‘Ecclesiastical Power’ in the 18th topic, ‘The Church’ in Institutes, vol. 3

“IV. (2)  …Laws bind the conscience per se and directly, and a violation of them incurs guilt; but constitutions bind the conscience only indirectly, and a violation of them incurs guilt; but constitutions bind the conscience only indirectly and mediately in case of scandal and contempt.  Hence the guilt arising from their violation is not properly on account of the violation of the constitution, but on account of the neglect of the authority which God ordained, and on account of the scandal given.

XX.  Again, in the transgression of them [church constitutions] there can be no sin except indirectly (i.e., not on account of the usurpation of the thing itself [as in homicide, fornication], but on account of another thing [that is, from contempt of lawful authority], for because obedience is commanded by God, there is sin in a neglect of it, if with a neglect of brotherly edification, or if from impiety and license.

However, if all these are absent, there will be no sin in a transgression of them…  nor is the authority of the one commanding to be so much regarded as the cause of the command.”

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1800’s

 James Bannerman

The Church of Christ, vol. 1, Edinburgh, 1868, p. 243

“…the mere resistance to authority as authority alone, ought not to be made a ground for Church censure or punishment, when there is no moral or spiritual offence connected with the resistance…

…when the consent of the members to the act or deed of the rulers is withheld from no cause in itself sinful, such want of consent or concurrence ought to be dealt with on the principle of forbearance in things indifferent, and not be visited with censure or penalty of an ecclesiastical kind.”

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2000’s

The Free Church of Scotland (Continuing)

The below is in the context of the birth of the Free Church of Scotland (Continuing) over this very issue.

‘The Right of Continued Protest’ (2013), being a revised edition of a report of the Legal Advice & Property Committee (2011), and ‘welcome[d]’ by the General Assembly (2013).

“43.  On 9th December 1999 the Commission of Assembly [of the Free Church of Scotland] declared the FCDA’s [Free Church Defense Association’s] response to represent a prima facie act of continued and wilful contumacy.  Whatever was/were the motive(s) underlying the bringing of a libel on a charge of contumacy rather than, as had been alleged up till now, on a charge of divisiveness regarding the government and discipline of the Church, the bringing of the libel on a charge of contumacy had the effect of depriving the accused persons from mounting a defence regarding their alleged actions which would necessarily not have been denied them had the charge against them been one of divisiveness.

In order to have the libel declared valid all that was required was that three questions be put to the accused: (Regarding the document forwarded by the FCDA to the Commission of Assembly meeting on 8th December 1999, was your name appended to that document with your knowledge and consent? Do you now wish to withdraw your name from that document? If you have not already done so, do you now resign as an office-bearer of the FCDA and sever all connection with that body?) and on the basis of an affirmative answer to the first and a negative answer to the second and third of these the libel was then found to be valid.

This finding also ignored the fact among other things that the bringing of charges of contumacy unrelated to any proven or confessed Biblical sin is contrary to established practice and is unwarranted in terms of the constitution of the Free Church of Scotland. (Practice of the Free Church of Scotland, Chapter V, Part I, paragraph 5 (page 89).

[Practice, p. 89:  “5. …Discipline is Biblically based and this implies that no action or conduct can be regarded as censurable unless it is so declared in Scripture.  The consciences of people cannot be bound by anything but by the word of God who alone is Lord of the conscience.]

In particular, it amounted to a denial of the Headship of Christ over the church, in that an accused person is entitled to a defence founded upon an argument that the demand with regard to which he is alleged to be contumacious is itself ultra vires [outside the powers] and not founded on legitimate Biblical authority.  The Commission of Assembly, on the other hand, was denying this to be a valid foundation for defence, thus arrogating to itself an absolute hierarchical authority and so denying that the Commission was answerable to Christ as Head of the Church.”

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On Erroneous Church Rulings

Samuel Rutherford

The Due Right of Presbyteries  (1644), pt. 1, ‘Of the Addition of Members to the Church’, pp. 279-80

“We acknowledge not what Navarrus and Gregory say, that excommunication, whether just or unjust, is to be feared, for the curse causlessly does not fall.  The sentence is either given out:

[1.] a jure, vel ab homine, by the Law, or the persons.
Secondly, it is either just or unjust.
Thirdly, and that three ways: exanimo, [out of] good or ill zeal; secondly, ex causa, [out of] a just or unjust cause; thirdly, ex ordine [out of order], when order of law is kept.

An unjust sentence is either valid or null.  That which is invalid is either invalid through defect of the good mind of the excommunicators, and this is not essential to the excommunication’s validity.  That which is invalid this way only, ligat, ‘it binds’ in foro exteriore [in the external court]. 

But that which is unjust through want [lack] of a just cause, it only binds from external communion; but because God’s ordinances are to be measured from their own nature, and the general intention of the catholic Church, and not from abuses and particular intentions of such excommunicators: therefore they do not exclude from the general Church-desires.  The fourth Council of Carthage, as also Gerson says, an unjust sentence neminem gravare debet, ‘should affright no man’…”

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Guthrie, James

Protesters No Subverters…  (Edinburgh, 1658), pp. 17-18

“…men…  who…  do make glad the hearts of those whom God has not made glad; and make sad the hearts of those whom God has not made sad:”

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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

Richard Baxter

A Christian Directory…  (London, 1673), pt 4, ch. 22, ‘Cases & Directions Against Injurious Law-Suits, Witnessing and 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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On Error, Guilt & Certainty in Judicial Rulings, & Conscience in Following Them

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’.

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’.

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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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Inferiors may Warn & Admonish Rulers

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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Is Any Unrepentant Sin Grounds for Excommunication?

1600’s

Richard Baxter

Part 3, Question 94, ‘For what sins may a man be denied communion or [be] excommunicated?  Whether for impenitence in every little sin?  Or for great sin without impenitence?’  in A Christian Directory: a Sum of Practical Theology and Cases of Conscience  (1673)

“3.  But ordinarily no man ought to be excommunicate[d] for any sin whatsoever, unless impenitence be added to the sin.  Because he is first to be admonished to repent, Mt. 18:15-16; Tit. 3:10; and repentance is the Gospel condition of pardon to believers.

4.  A man is not to be excommunicated for every sin which he repents not of, because:

1.  Else all men should be excommunicated.  For there are in all men some errors about sin and duty, and so some sins which men cannot yet perceive to be sins.

2.  And ministers are not infallible, and may take that for a sin which is no sin, and so should excommunicate the innocent.

3.  And daily unavoidable infirmities, though repented of, yet awaken not the soul sometimes to a notable contrition; nor are they fit matter for the Church’s admonition.  A man is not to be called openly to repentance before the Church for every idle word, or hour.

5.  Therefore, to excommunication these two must concur:  1. A heinousness in the sin;  2. Impenitence after due admonition and patience.”

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1700’s

The Scottish Form of Process  1707

Ch. 8, ‘Concerning Processes in order to the Censure of the Greater Excommunication’ in The Practice of the Free Church of Scotland in her Several Courts  8th ed. rev.  (Edinburgh: Knox Press, 1995), pp. 193-196

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Walter Steuart of Pardovan

Collections and Observations Concerning the Worship, Discipline, and Government of the Church of Scotland (Edinburgh, 1770), Book IV, Title VI, ‘Of the Order Proceeding to [Greater] Excommunication’, Section 2, p. 234.  See also the whole of Title VI.

“2.  Yet every error or difference in judgment about points wherein learned and godly men may differ, and which subverts not the faith, nor is destructive to godliness, or when persons, out of conscience, do not come up to the observation of all these rules, which are or shall be established by authority for regulating the outward worship of God and government of his Church, the censure of [greater] excommunication should not be inflicted for such causes. See [James] Durham on Scandal.  The letter from the Assembly of Divines at Westminster, with the answer of our General Assembly 1645.”

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On the Incompatibility of Error & Godliness

George Gillespie

Treatise of Miscellany Questions, ch. 12, ‘Whether a Sound Heart and an Unsound Head can Consist Together? and Vice Versa; or, Whether Truth and Holiness be not Insepararable Companions?’  in Works, vol. 2

“It is one of the greatest objections against the suppressing… of… errors and schisms: O, say they, this is a persecuting of those that are godly; this is a wound to piety, and the power of godliness.

I do not deny but there may be, and is, true piety in many who are somewhat infected with the leaven of false doctrine, and live in some erroneous opinion…

Those that are truly godly may in diverse things differ in opinion.  Every error is not inconsistent with holiness, yet every error doth pro tanto [by so much], and proportionably retard, hinder, and prejudge holiness; and although the devil sow his tares among Christ’s wheat (I mean in the same persons as well as in the same church), yet who will say that a field of wheat is nothing the worse for the tares?…

And this I hold as a good rule in practical divinity…  so error of judgment, if continued in, doth not only hinder growing, but makes a dangerous decreasing and falling short in true piety…

It is to be observed that sometimes the Scripture speaketh of an error of the judgment concerning the faith as a fountain and cause of ungodliness, profaneness… 2 Tim. 2:16-19; Gal. 5:4; 2 Jn. 9; as contrariwise, there is a light and knowledge which preserveth from sin and ungodliness, and leadeth the soul in ways of holiness and obedience, Ps. 9:10; 119:33-34; Jn. 17:17.  If the knowledge of God, of his Christ, and of his Word, and will, and name and statutes, preserve us from sin, and lead us in the ways of obedience, then, by the rule of contraries, error of judgment in these things will ensnare us in sin and wickedness.”

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Richard Baxter

A Christian Directory: a Sum of Practical Theology and Cases of Conscience  Buy  (1673), pt. 4, Christian Politics, Ch. 12, ‘Directions Against Scandal as Given’, p. 81

“§ 10.  1. False doctrine is directly scandalous: for it seduces the judgment, which then misguides the will, which then misrules the rest of the faculties!  False doctrine, if it be in weighty practical points, is the pernicious plague of souls and nations.”

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When the Least Errors are to be Disciplined

James Durham

Treatise on Scandal (1659), ch. 8, When Some Errors are to be Foreborne, p. 205-206:

“…there may be somethings truly errors that may and should be forborne [tolerated] in themselves, yet their consequents ought not to be forborne, and this also may be at one time, and in one Church more necessary to be adverted to than in another, because consequents of schism, faction, division, etc. may sometimes follow on the meanest [the least] errors.

And seeing these are always enemies to edification, even when they arise from the least ground, they are never absolutely to be foreborne; for to say, I am of Paul, and I am of Apollos, and for one to think such a man a better preacher than another, seems to be no great matter; yet when it begins to rent [tear] them, and to make factions in Corinth, it is not to be forborne, but to be reproved: And in the former difference of meats, the apostle condemns always the offence and schism that followed on it, although he did not peremptorily decide anything as to men’s practices, or censure for the opinion itself…

Thus the differences and errors concerning Church-government by bishops, and in the Congregational way, may, we conceive, in themselves be forborne in persons where they are not vented to the shaking and drawing away of others; but if pressed in practice, to the renting of a Church, and preferred or equalled to the true government that is established by the Word, in that case they are not to be foreborn, because then truth is to be vindicated, and obstructions to edification in the renting or distracting of a Church to be removed, and at one time more than at another, as such an offence does waken a schism, and disturb order and union in one Church or at one time more than another: hence we see, Acts 15, some things are put in that decree in reference to that time, only for preventing of schism and scandal…”

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Must Church-Communion be Restored Immediately to a Repentant Person? 

Richard Baxter

Part 3, Question 94, ‘For what sins may a man be denied communion or [be] excommunicated?  Whether for impenitence in every little sin?  Or for great sin without impenitence?’  in A Christian Directory: a Sum of Practical Theology and Cases of Conscience  (1673)

“2.  Some sins may be of so heinous scandal, that if the person repent of them this day, his absolution and reception may be delayed till the scandal be removed:

1.  Because the public good is to be preferred before any man’s personal good.

2.  And the Churches, or enemies about, cannot so suddenly know of a man’s repentance.  If they hear of a man’s murder, perjury or adultery today, and hear that he is absolved tomorrow, they will think that the Church consists of such, or that it makes very light of sin.  Therefore the ancient Churches delayed and imposed penances, partly to avoid such scandal.

3.  And partly because that some sins are so heinous that a sudden profession is not a sufficient evidence of repentance, unless there be also some evidence of contrition.”

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Related Pages

Church Government

The Regulative Principle of Church Government

Presbyterianism

Congregationalism and Independency

Church Membership