1st. The non-constitution of a judge in case of heresy, as a thing civilly criminal. As to spiritual censures, and an ecclesiastical judgment of errors, and false doctrines, we find them appointed, and a lawful judge as to the determin- ing concerning them, divinely instituted ; so that in such ways they may be warrantably proceeded against; Rev. xxi. 3. But now, for any judge that should make disquisition concerning them, or proceed against them as things criminal, to be punished with civil censures, I conceive the Scripture is silent. And indeed, who should it be ? The custom of former ages was, that some persons of one sort should de- termine of it as to right, viz. that such or such a thing was heresy, and such or such a one a heretic ; which was the work of priests and prelates ; and persons of another sort should ' de facto' punish, and determine to be punished, those so adjudged by the former, and these were, as they called them, the secular magistrates, officers of this world. And indeed, had not the God of this world blinded their eyes, and the God of the spirits of all flesh hardened their hearts, they would not have so given up their power to the man of sin, as to be made so sordidly instrumental to his bloody cruelty. We read, Jer. xxvi. 10, 11. that the priests and prophets assemble themselves in judgment, and so pro- nounce sentence upon the prophet Jeremiah, that he should die for a false prophet, ver. 12. Jeremiah makes his appeal to the secular magistrate, and all the people, who taking cog-
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nizance of the cause, pronounce sentence in the behalf of the condemned person, against the priests and prophets, and deliver him whether they will or not, ver. 16. I spare the application of the story : but that princes and magistrates should without cognizance of the thing, or cause, proceed to punishment or censure of it, upon the judgment of the priests condemning such or such a man for a heretic, or a false prophet, blessed be the Lord, we have no warrant. Had this proceeding been regular, Jeremiah had died without mercy for a false prophet, as thousands since standing be- fore the Lord in his spirit have done. This course then, that the civil magistrate should proceed to sentence of cor- poral punishment upon others judging of the fault, is vile, sordid, unwarrantable, and exceedingly unworthy of any rational man, much more such as are set over the people of the land. That the same persons must determine of the cause, and appoint the punishment is clear. Now who must these be ?
(1st.) Are they the ministers of the gospel? Of all others they are the most likely to be the most competent judges in spiritual causes ; let it be so : but then also, they must be the determiners and inflicters of the punishment upon default ; now let them pour out upon obstinately erring persons all the vengeance that God hath betrusted them withal, ' The weapons of our warfare are not carnal, but mighty through God,' &c. By this course, admonition, avoiding, rejection, excommunication, will be the utmost that can be inflicted on them; which for my part I desire may be exercised to the utmost extent of the rule.
(2dly.) Shall the magistrate be made judge of the cause, as well as of the person ? Is he intrusted to determine what is error, what not; what heresy, whatnot; who is an heretic, who not; and so what punishment is due to such and such errors, according to the degrees wherein they are?
[1st.] I desire an institution of this ordinance in the church. Where is the magistrate intrusted with such a power? Where are rules prescribed to him, in his pro- ceedings?
[2dly.] Is not a judiciary determination concerning truth and error (I mean truths of the gospel) a mere church act? and that church power, whereby it is effected? Must not
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then the magistrate, ' qua talis,' be a church officer? Will men of this mind tolerate Erastianism?
[3dly.] If there be a twofold judicature appointed for the same person, for the same crime, is it not because one crime may in divers respects fall under several considera- tions? and must not these considerations be preserved im- mixed, that the formal reason of proceeding in one court may not be of any vv^eight in the other ? We proved before, and it is granted of all, that the church is judge in case of heresy and error, as such, to proceed against them, as con- trary to the gospel : their opposition to the faith delivered to the saints, is the formal reason upon which that pro- ceedeth to censure : if now this be afterward brought under another sentence, of another judicature, must it not be under another consideration? Now what can this be, but its disturbance of civil society, which when it doth so, not in pretence, but really and actually, none denies it to be the magistrate's duty to interpose with his power.
[4thly.] If the magistrate be judge of spiritual offences, and it be left to him to determine, and execute judgment in such proportion as he shall think meet, according to the quality and degrees thereof; it is a very strange and un- limited arbitrariness over the lives and estates of men : and surely they ought to produce very clear testimonies, that they are entrusted from the Lord herewith, or they can have no great quiet in acting.