The Catholic Hierarchy, Chapter 16
CHAP. XVI. Of the Ʋſe of the Magiſtrates Sword, in the Execution of Eccleſtaſtical Juſtice.
§ 1. THe Second Enquiry propounded about the Magiſtrates power is this; Whether in the Execution of Eccleſiaſtical Juſtice, the Sword of the Civil Magiſtrate may, or ought to be uſed? i. e. Whether for the puniſhing and reforming Offendors againſt Church-Laws, the Magiſtrate may inflict ſuch penalties on the outward Man, as he and the Church ſhall agree upon; as Pecuniary Mulcts, Scourgings, Impriſonments, Confiſcations, yea, death it ſelf in ſome caſes, as in matters of Hereſie and Seduction. And to prevent miſtakes, we ſhall premiſe theſe things: 1. That Church-Members offending Civil Laws, may, and ought to ſuffer the penalties thereof from the hands of Magiſtrates, as ſuch as ſtand ſubjected to them in a civil capacity, equal with other Subjects. 2. That a Church-Member (as of the Church of England, or any other) may juſtly ſuffer for the ſame Offence, from the Church, and Civil Magiſtrate; as for Drunkenneſs, Swearing, Fornication, &c. Moral Tranſgreſſions falling under the cognizance of both States, though under divers reſpects; but a Man is not ea ratione to be puniſhed by the Magiſtrate, becauſe cenſured by the Church, nor vice verſa. 3. Hence we aſſert, That the Civil Magiſtrate cannot puniſh any Eccleſiaſtically, virtute Officii; neither doth any one meerly upon that account deſerve a puniſhment from the Magiſtrate, becauſe he is apprehended to remain under a Church-cenſure; neither can the Church Appoint or Depute the Magiſtrate to uſe his Coercive power to reduce any one to Eccleſiaſtical obedience.
§ 2. The Queſtion (on ſuppoſition that the Church will preſume to take on her the enacting and executing more Laws than ever Chriſt did or impowred her to do) hath two parts: 1. That in execution of Eccleſiaſtical Juſtice, of Chriſt's own Inſtitution, it is not agreeable to Chriſt's mind and will, that ſhe ſhould uſe the Magiſtrates Sword. 2. That the Church is not to uſe it in requiring her own Laws. I prove the firſt as follows.
§ 3. Arg. 1. Chriſt hath not annexed any Corporal puniſhments, or Pecuniary Mulcts to his Laws, which he hath enacted for the due governance of his Church; if he hath, let the Aſſerters ſhew where our Saviours Law is, If thy Brother offend, tell of it privately; if he hear not thee, take two or three more and admoniſh him; if he bear not them, tell the Church; if he bear not the Church, let him be as a Heathen and as a Publican unto thee; i. e. in reſpect of Chriſtian Communion and Society: and this is called by the Apoſtle, the delivering up unto Satan; there being but two ſorts of Communions in the world in this fence, in the Church, and out; in the Church is in Chriſts Kingdom; out of the Church, is Satans; and when he is caſt out of the viſible Society of the Saints, it's for the humbling of him, and bringing him to godly ſorrow and Repentance; which is called there by the Apoſtle, 1 Cor. 5. the deſtruction of the fleſh. But here is no farther degree of puniſhment, this being the higheſt the Church is capable of executing: he ſays not, If he comes not in and ſubmits in ſo many days, let the Paſtor certifie to the Secular Powers, and let them ſeize his Body and Impriſon it, or his Eſtate and Confiſcate it: This is a new way of bringing Men into Goſpel-Repentance for Church-Offences, which Chriſt and his Apoſtles never practiſed or preſcribed. Will the Aſſertors ſay, that the meaning of delivery of an Offender to Satan, is the delivery of him to the Magiſtrate to be puniſhed? this were to caſt a great odium on Civil Government, as if the Spirit of God did there repreſent the Magiſtrate under ſo contemptible a Character. 2. It were to conclude, that Church-Members were not under the Magiſtrates power, to puniſh them for any Offences, till they were delivered up by the Church thereunto; and therefore, that he cannot take immediate cognizance of his Subjects Offences; ſo fat as concerns Moral or Civil Juſtice, but muſt proceed ſtill according to the Churches appointment and determination. 3. That the Church hath a binding or looſing hand on the Magiſtrates Sword, to draw it out or put it up at her pleaſure and the Magiſtrate ſhould be Armor-bearer to the Church.
§ 4. If Chriſt had annexed any ſuch penalties to his Eccleſiaſtical Laws, he had left his Church very lame in its Polity; for in moſt Ages it hath been Hated, Perſecuted, and Maligned, by Civil Powers under whom it hath Militated, and the point of the Magiſtrates Sword hath been turned againſt her, and not the Hilt put into her hand: now in ſuch a ſtate, how ſhould the poor Church obtain the ſaid Sword to cut off a periſhing Member? and how ſhould ſhe be able to execute any Cenſure effectually, according to Chriſt's Law, if there be ſuch a penalty annexed which no Church of Chriſt in ſome Ages hath been in the leaſt capacity of executing? If the Church were in capacity of doing it, it muſt be capacitated from within, or from without; if from within, then Chriſt hath empowered it with a Magiſtratical authority, and every Church, as ſuch, may uſe it: and if ſo, ſhe muſt ſhew Chriſt's Commiſſion for it. And if ſhe pretend to it, it's a queſtion whether Civil States will allow it; ſhe had need have good power and ſtrength to maintain it, as the Pope hath. And where the challenge of ſuch Right hath been made, hath it not always been the occaſion of the greateſt Civil Broils in Kingdoms and States through Chriſtendom? And if it ſhould be made under Heathen States, and ſuch Churches ſhould preſume to inflict corporal Puniſhments, or pecuniary Mulcts on offending Brethren, they muſt certainly expect the loſs of any Liberties they do enjoy, and be adjudged for Sedition, Treaſon, and Uſurpation. But if it be ſaid, that it's not from any Intrinſick power that the Church uſeth this Sword, then it will follow, that it belongs not to the Church as ſuch, neither is her inſeparable propriety. 2. She muſt onelyonly borrow it; and ſuppoſe it will not be lent, doth the true execution of Chriſt's Laws fall to ground? and cannot Eccleſiaſtical Juſtice be diſtributed? 3. Again, if we muſt borrow the Magiſtrates Sword upon all occaſions of Reformation, then ſhe is not ſufficiently empowered by Chriſt to reform her ſelf; and Ergo, left more imperfect than any State or Society in the world; as civil Corporations and Families, yea, and particular Perſons, they have power intrinſick ſufficient for Self-reformation, if Vertue prevail, and the greater ruling part be not corrupt. The Sword of the Magiſtrate is no more Eſſential to the being or reforming a Church, than of a Family; a man may correct a child, or turn away a ſervant, without a Magiſtrates power, or offending it, ſo he keep within the ſphere of Domeſtick Juſtice: So may a Church inflict the greateſt Eccleſiaſtical puniſhments without the Magiſtrate, or without intrenching upon him, ſo as the true bounds of Eccleſiaſtical Juſtice which Chriſt hath ſet, be obſerved. And this brings me to the ſecond Argument.
§ 5. Arg. 2. If the Church may and ought to inflict Eccleſiaſtical puniſtments to the full ſatisfaction of the Laws of Chriſt, without the uſe of the Sword of the Civil Magiſtrate, then they may not uſe the ſaid Sword, &c. nay, it's the higheſt Injuſtice to uſe it, it being ſeverity beyond Summum jus. But the Church may inflict puniſhments to the full ſatisfaction of Chriſt's Laws; Chriſt hath put an Eccleſiaſtical Sword into the hands of the Church, to be managed againſt Offenders (diſtinct from the Civil Sword,) the juſt management whereof is as much as he requires from the Church, and the undergoing the pains whereof, is as much as he requires that Eccleſiaſtical Offenders ſhould ſuſtain in a Church-way. Neither doth the political Laws of his Church demand any ſuch ſatisfaction from Church-offenders, as Fines, Whippings, Impriſonment, though the Offence be ſuch, as under the cognizance of the civil Magiſtrate, by his Laws, and in his State, are deſervedly puniſhed ſo: As if a Church-member be drunk, the Magiſtrate may take him up in the ſtreet and ſet him by the heels; but if the Paſtor of the Church ſee him ſo, he hath no ſuch power as to puniſh his outward man, but to adminiſter Admonition, or Excommunication, as the matter requires, till the perſon offending is brought to true godly Remorſe and Reformation; but the Church hath nothing to do to impriſon him, put him in the Stocks, &c. or deliver him to the Magiſtrate by their Sentence ſo to be dealt with.
§ 6. Arg. 3. If the Church can and ought to uſe the Sword of the Magiſtrate, it's ſurely to correct for the moſt groſs and criminal Tranſgreſſions; as for Drunkenneſs, Swearing, Lying-Theft, Fornication, &c. for all juſt Laws inflict the moſt Exemplary Puniſhments on the moſt hainous and ſcandalous Offenders. But it's moſt evident the Church cannot uſe the Sword of the Magiſtrate, in caſe of the moſt criminal and hainous Tranſgreſſion; becauſe, 1. Chriſt nowhere empowers a Church, or ſo much as allows it, as ſuch, to fine, impriſon, hang, &c. for offences deſerving the ſame at the hands of the civil Magiſtrate. 2. He nowhere requires the Churches to become Informers unto civil Magiſtrates; it belongs to the Magiſtrate to look after the obſervation of his own Laws; the Church is not to be his Conſtable to ſeize Offenders for him, neither is the State to be the Churches Hangman to execute for her; each State is to look after the execution of their own Laws, in their own way and manuer. 3. Where Paul is diſtinct in each particular of the cenſure to be denounced upon the inceſtuous perſon, 1 Cor. 5.4. requiring them to execute it in a ſtrict and ſharp manner in the Name and Power of the Lord Jeſus; and although Inceſt is a crime to be puniſhed by the Judge, and with death by the Law of God, he writes not to the Church to inflict any corporal puniſhment on him; neither doth he certifie the civil Magiſtrate againſt him, or command the Corinthians to inform. What Peter did in the caſe of Ananias, was extraordinary and miraculous, and not preſidential in the leaſt to any ſucceeding Church-Officers; neither did he aſſume any civil Authority in ſo doing.
§ 7. Neither doth the National Church (notwithſtanding all her ſeverity uſed towards Non-conformiſts) execute any ſuch puniſhments on the like ſort of groſs Offenders, or by the higheſt cenſures turn them over to Civil Powers for that end, though ſhe ſaith that all men and women inhabiting within her Precincts, at leaſt all ſuch as are chriſtened, are actually Church-members; and although it's a confeſſed Principle of all Proteſtants, that all openly ſcandalous Church-members incorrigible, ought by cenſure to be cut off from Communion; and although her ſelf affirms that the ultimate means to be uſed in caſes of obſtinacy, perſiſted in (which ſhe calls Contempt) after Church-cenſures, is the application of the Magiſtrates Coercive power. Now how well ſhe doth apply theſe Church-Remedies to the ſcandalous Church-members, let the impartial judge. Is it not requiſite that ſhe ſhould wait upon all her Tyburn and Goal-bird Sons and Daughters a little more than ſhe doth? and endeavour firſt by Admonition to bring them to Remorſe; and in caſe of obſtinacy to excommunicate them, and not ſuffer obſtinate Felons and Traitors to be hang'd within the Pale of the Church? Indeed there needs no certifying to the Magiſtrate, and taking them by a Writ de Excom. cap. becauſe the Magiſtrate hath ſecured them already: but I will tell you where there is need, viz. for the picking up of obſtinate contumacious Drunkards, Swearers, and fornicating Church-members, which the Land ſwarms with. And what a bleſſed Reformation would there be, if Mother-Church did do her duty in this kinde ſo ſtrictly as ſhe deals with Non-conformiſts! viz. in admoniſhing them; and in caſe of contumacy, to excommunicate them; and upon their perſeverance in the ſaid ſins, to take them all up with Writs de Excom. cap. and ſend them to Priſon, there to abide till they repent. If the Church proceeded thus with the generality of ſcandalous and looſe Pariſh-members, the major part left at liberty would be Non-conformiſts; and if they were ſecured too for Non-conformity, the old Woman might know where to finde moſt of her children of both adventures. But who is ſo blinde as not to ſee the unſpeakable Partiality of the Church in this kind, in crying out againſt the conſcientious Diſſenters, and perſecuting of them in ſo mercileſs and outrageous a manner, and in letting all the reſt of the ranting debauched Church-members go Scot-free, yea, and encouraging them to perſecute the reſt more ſerious and conſcientious, under the name of Separatiſts and Schiſmaticks? Dat veniam corvis, vexat cenſura columbas. Juven.
§ 8. The ſecond part of the Queſtion about the uſe of the Magiſtrates Sword in execution of Eccleſiaſtical Juſtice, is built upon a ſuppoſition that the Church might make Laws, beſides what Chriſt hath made, i. e. ſuppoſing ſhe might change Indifferencies into Neceſſities by poſitive Laws. The Queſtion is, Whether it be agreeable to her Juſtice and Wiſdom, to annex to her Laws the ſaid corporal or pecuniary Puniſhments, or cauſe the Magiſtrate ſo to do? We anſwer in the Negative, for theſe reaſons. 1. Becauſe to annex or cauſe to be annexed the ſevereſt puniſhments, or at leaſt moſt ſmarting to Offenders of Laws of leaſt concernment to the Publick weal of Church and State, and of the leaſt neceſſity in reſpect of the Obſervers, is neither Juſtice nor Wiſdom; but for the Church to annex Excommunication, or cauſe to be annexed corporal Puniſhments, or pecuniary Mulcts, to Laws of her own making, in matters of Indifferency, is to put the ſevereſt Penalties to Laws of leaſt concernment. The Major is moſt evident, becauſe Wiſdom and Juſtice always requires that there be a due proportion between the weight of Obedience required, and the Puniſhment of the Diſobedience forbidden. The Minor is granted by the Impoſers and Compoſers of Eccleſiaſtical Laws of this kind, and (as they think) a plauſible defence of themſelves in ſo doing, viz. that they exerciſe this Legiſlation onelyonly in matters of ſmaller concern, not neceſſary to ſalvation, left by Chriſt indifferent; and what neceſſary goodneſs they pretend to be in them, is the ſhewing our obedience to our Superiours, and ſatisfying the Will of man, and ſome little external Decency and ſuperficial Uniformity: And for offending in this kind, her children m…ſt be ſtript of Priviledges, and laid open to all injuries of Church and State. Doth this conſiſt of Chriſtian Prudence and Juſtice? Is it not to tythe Mint and Annice with the greateſt zeal, and not onelyonly to neglect the weighty Laws, but to encourage the violation of them, by taking into her boſome and dandling on her knee the moſt audacious Tranſgreſſors, and the greateſt and moſt profeſſed Enemies not onelyonly to the power of Godlineſs, but to common Honeſty and Morality? 2. If it had been Political Wiſdom or Juſtice to annex ſuch Penalties to Eccleſiaſtical Laws of any kind, ſure Chriſt (in whom are all the Treaſures of Wiſdom) would not have been wanting in annexing Penalties of that kind to his own Laws of the greateſt and weightieſt concern to his Church. 3. We judge of the greatneſs and weighty concern of any Law, uſually by the greatneſs of the Penalty annexed, in caſe of tranſgreſſion: and therefore herein we may apprehend that the Churches own Laws challengeth a preheminency before the Laws of Chriſt's own compoſure; and would this King of kings make onelyonly Laws of leſſer concern, and ſubſtitute others to make the greater? this is abſurd to believe. 4. It is a great piece of pride in Mother-Church to advance her ſelf ſo far above the Civil State, that the Magiſtrate ſhould become the Executioner of her Laws; for the Law-maker hath always a great priority and dignity above the Executioner. If it be replied, That the Church onelyonly craves the Magiſtrates aſſiſtance to compleat her Eccleſiaſtical cenſures, and make them ſtick cloſer on upon the backs of Offenders, Anſw. Herein the Church bewrays her own weakneſs, in that ſhe confeſſeth ſhe is not a compleat Polity, neither hath power enough to reform her ſelf, or effectually enough to execute her own Laws, without being beholding to an Exotick power: As if a Maſter of a Family had not power enough to execute Domeſtick Laws in correcting a Child or Servant, without asking his neighbours leave, and calling for his aſſiſtance. But in caſe the Church ſaith, (as indeed ſhe doth) that ſhe goeth to the civil Magiſtrate by way of Appeal, and the ſaid Magiſtrate hath power at his pleaſure to ſuperſede her proceedings; This is to ſet the State above the Church in Eccleſiaſticks; whereas the civil State is Subordinate to the Eccleſiaſtick eccleſiaſtically, and the Eccleſiaſtical to the Civil civilly; and both in reſpect of the exerciſe of Juriſdiction in each particular Orb parallel or co-ordinate.
§ 9. Laſtly, ſuch Penalties that cannot anſwer the natural end and deſigne of Church-cenſures, may not be annexed or uſed by the Church; but ſuch a Penalty anſwers not, &c. The Major is undoubted; the Minor thus appears: 1. Becauſe the Sword of the Magiſtrate reacheth but the outward man; whereas the end of Church-cenſures is to reach the Conſcience. 2. The natural uſe of Church-cenſures, is the exerciſe of them in foro Eccleſiae; but the Coercive power of the Magiſtrate may not be exerciſed in foro Eccleſiae, upon any allowable pretence whatſoever.