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Essays on Church, State, and Politics, edited, translated, and with an Introduction by Ian Hunter, Thomas Ahnert, and Frank Grunert (Indianapolis: Liberty Fund, 2007).

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ESSAY 4

Is Heresy a Punishable Crime?

JULY 14, 16971

Conversation between a (so-called) Orthodox Believer and a Christian

I

One must add a little more to that: Heresy is an obstinate error in the foundations of faith by a person who is or was a member of the church.17 For in this, papalist, Lutheran, and Reformed teachers, theologians as well as jurists, for the most part agree with each other.a Here, everything is quite clear. For when I say that heresy is an intellectual error, then I have distinguished it from punishable crimes which arise from the will, such as murder, adultery, and so on. Through the word obstinacy, flagrant heretics are distinguished from the weaker and more innocent ones, who are not so bad, and who are not so much the seducers as the seduced. Through the words error in faith, a heretic will be distinguished from those who err in philosophy and other sciences. Through the words error in the foundations of faith one can distinguish a heretic from those who err in articles which do not belong to the foundations of faith, who should be regarded as schismatics rather than heretics. Finally, through the fact that a heretic is a member of the church, heresy is distinguished from paganism, the Mohammedan faith, and Judaism. Now that all the words in the definition of heresy have been distinguished from those related to them, I do not see how you could object to anything in this definition.

V

VI

Christian

That is your choice. Now we want to discuss the word obstinacy, which you have likewise included in your definition of heresy. This obstinacy is otherwise called a malice impervious to all admonition.a But here again it is very difficult to comprehend exactly what is to be understood by obstinacy. In fact, it is well known that our Lutherans distinguish between formal and material heretics, or, between the seducers and the seduced, describing the former but not the latter as obstinate people, and regarding them as heretics properly so called.b It is well known that papalist law first paved the way for this distinction.c But it is also well known that some among the papalists were not happy with this distinction, wishing to declare all heretics to be obstinate people—the seduced as well as the seducers.d Our theologians themselves admit that it is difficult to judge the obstinacy of heretics, and that one can not always tell with certainty whether a heretic defends an error from willful obstinacy or from human weakness, as a result of persuasion by others or from ancient custom.e It is easy to see, however, that whether someone is seducer or seduced has little to do with obstinacy. For an erring and seducing teacher need not be obstinate, just as a seduced learner can be obstinate enough. Moreover, obstinacy need not always contain malice. Setting aside that here we are not talking about an obstinacy of the will, or a deliberate opposition to things one should do, but about an obstinacy in matters of the intellect, so this obstinacy regarding intellectual matters can be explained in two ways. On the one hand, it signifies a shortcoming of the intellect if someone can put forward nothing against the truth, yet will not change his opinion, refusing intellectual assent to the truth because of the prejudice of authority. On the other hand, obstinacy signifies a maliciousness of the will if someone is convinced of the truth of a thing in his intellect, yet refuses to acknowledge this recognized truth, instead teaching falsely and contrary to his conscience. We are not concerned here with the first meaning—as just illuminated through that which we have introduced from our theologians—which thus cannot be properly called obstinacy. As for the second meaning, such obstinacy is rarely to be found, for in human nature it is quite impossible that someone should speak about matters of the intellect other than he intends, unless he acts from fear of torment. It is well known that among a thousand heretics, most of them—even doctors—err in good faith. It is thus a slander when the papalists say that our theologians teach contrary to their conscience. Likewise, we must ascribe it to lack of contact with our adversaries, or to lack of travel, when our people want to persuade us, as perhaps they have persuaded themselves, that the papalists, together with the Reformed theologians or teachers of other sects, are ordinarily obstinate and convinced in their conscience of the falseness of their doctrines. Further, the judicial way of convincing heretics, which presupposes their obstinacy, is typically very uncertain, if not to be wholly repudiated. To convince does not mean to arouse fear in a man through a legal action, or to force him to acknowledge the truth of something through judicial authority. Rather, it means to show him his error in a friendly way, with proper proofs, or through a spiritual power and virtue, mediated by a discourse or clear questions. This is how Christ and his apostles refuted their adversaries. But the Anti-Christ30 raged against dissenters with imprisonment, murder, and banishment; with judicial authority; with majority votes; and with confiscation of their books. And this is called convincing or enlightening the erring! Heretics are exiled, or banned from the halls of disputation, or, if they are allowed in, are prevented from opposing and disputing. Thus one disputes against the absent, or against those who may not speak. And this is called convincing! One might wish that this papalist way of convincing did not also reign among the Protestants. I would gladly keep quiet about this if the very stones did not cry out, and if common public practice did not testify to this.

VII

XII

[1. ]This date records the presentation of the Latin disputation An haeresis sit crimen? (Is heresy a crime?). The disputation was delivered by one of Thomasius’s doctoral students, Johannes Christoph Rube, under Thomasius’s direction, forming part of a series of such disputations in which Thomasius campaigned to make religiously based offenses immune from judicial and political punishment. It provoked immediate and hostile responses from representatives of Lutheran orthodoxy, including the Rostock theologian, J. Fecht, and, even more problematically, two members of the theological faculty at Thomasius’s own university: the professor of theology, Justus Joachim Breithaupt, and his junior colleague Gustav Philipp Mörl, later a preacher in Nürnberg. But it was not only the orthodox who were opposed. G. W. Leibniz, usually regarded as one of the founders of the Aufklärung, wrote a hostile review in 1698. Leibniz rejected Thomasius’s arguments for relegating theological doctrine in favor of inner piety, arguing instead that such doctrine was itself necessary to purify the will and that in negligently adopting false doctrine heretics were responsible for their own corruption, therefore deserving of punishment. (See Gottfried Wilhelm Leibniz, “Sur Thomasius, Utrum haeresis sit crimen,” in G. W. Leibniz: Textes Inédits, ed. Gaston Grua [Paris, 1948], 210–12.) The German version of Thomasius’s disputation appeared in his Auserlesene deutsche Schriften in 1705, under the title Ob Ketzerey ein strafbares Verbrechen sey? (Whether heresy be a punishable crime?), which is the version principally used for this first English translation.

[2. ]The stilted third-person address between the two dialogue partners (“I find him always over the books”) has been rendered in the standard second-person form (“I find you always over the books”).

[3. ]Benedict Carpzov (1595–1666) was the most famous Saxon jurist of the seventeenth century. A tireless glossator, Carpzov worked on systematizing customary Saxon law, organizing the reception of civil and canon law, and commenting on public law. He was an orthodox Lutheran strongly opposed to heresy and witchcraft and contributed to Lutheran church law through his membership of the Dresden Superior Consistory. Here Thomasius is probably referring to Carpzov’s codification of Saxon criminal law, the Practica nova imperialis saxonica rerum criminalium (New imperial Saxon practice of criminal law) (Wittenberg, 1635).

[4. ]Cornelius à Rynthelen, Iurista romano-catholicus: id est, iuridica romanae catholicae fidei confessio (The Roman-Catholic jurist: that is, the juridical confession of Roman Catholic faith) (Hemmerden, 1618).

[5. ]Lutheranism, Calvinism, and Catholicism, which were recognized as legitimate public bodies in imperial law under the terms of the Treaty of Westphalia in 1648.

[6. ]Jansenism was a dissenting movement within the French Catholic church, inspired by the writings of Cornelius Jansen (1585–1638), bishop of Ypres, but during the seventeenth century the movement was centered in the famous abbey of PortRoyal, where it was protected by the powerful Arnauld family. Jansen wrote commentaries on Augustine, developing “rigorist” doctrines stressing the absolute difference between sinners and those in a state of grace, and viewing grace in a semi-Calvinist way as something reserved for an elect chosen by God. These doctrines were declared heretical by Pope Innocent X in 1653, but the independence of the Gallican church, together with the movement’s support among the French nobility, meant that it remained a significant force throughout the seventeenth century and into the eighteenth.

[7. ]The Donatists, named after their leader, Bishop Donatus of Carthage, were a fiercely independent faction of African Christendom during the fourth century. Augustine fought a long pamphlet war to subordinate them to the emerging Catholic Church.

[a. ]Bellarmine, de Laicis, bk. 3, ch. 21ff. [Robert Bellarmine, De laicis sive secularibus (Of the laity or secular members). This is part of a larger work by Bellarmine De ecclesiae militantis membris (On the members of the church militant) published in various editions, one of which appeared in Jena in 1629, edited and with a commentary by the Lutheran theologian Johann Gerhard.]

[b. ]Franc. Burchardt, Von der Freystellung, pt. 2, chap. 16, pp. 181ff.; chap. 17, p. 188; further, chap. 20, p. 203, and elsewhere. [Francis Burchard (Andreas Erstenberger), De autonomia. Das ist, von Freystellung mehrerley Religion und Glauben (On autonomy. That is, on allowing several religions and faiths) (Munich, 1586).]

[c. ]At several places in his Gerechtfertiger Gewissens-Zwang. [Hierothei Boranowsky, Gerechtfertiger Gewissens-Zwang oder Erweiß daß man die Ketzer zum wahren Glauben zwingen könne und solle (Justified compulsion of conscience, or, proof that heretics can and should be compelled to true faith) (Neyss, 1673).]

[8. ]Robert Bellarmine (1542–1621), a Jesuit and cardinal, was a leading Catholic controversialist and tireless defender of papal authority. Francis Burchard (d. 1592) was the pseudonym adopted by Andreas Erstenberger, Catholic privy secretary to the imperial court, for the publication of his most famous work, De autonomia. Das ist, von Freystellung mehrerley Religion und Glauben (On autonomy. That is, on allowing several religions and faiths) (Munich, 1586). In this work, Erstenberger argued against the toleration of Protestantism in the German Empire, insisting that the Peace of Augsburg (1555) was a plot by “satanic” Lutherans and proponents of state reason against the Catholic church. Hierotheus Boranowsky (1624–77) was a pseudonym of Johannes Scheffler, a Polish-born Catholic convert, who also published works under the names of Angelus Silesius, Bonamicus, and Christianus Conscientiosus. He was a prolific and vehement anti-Protestant polemicist, arguing that rulers could make legitimate use of coercion in seeking to re-Catholicize their territories.

[a. ]In Suscitabulo pro Principibus, pt. 1, chap. 4, p. 48; pt. 2, chap. 14, p. 137. [Anthony Benbellona (Bartholomew Gericke), Ung resveille Matin Sive Tempestivum suscitabulum pro principibus (An alarum or timely rousing on behalf of princes) (Servestae, 1602).]

[b. ]At various places in his ungerechten Gewissens-Zwang. [Samuel Pomarius, Bewiesener ungerechtester Gewissens-Zwang: entgegen gesetzet Hierothei Boranowsky Gerechtfertigtem Gewissens-Zwange (Demonstrably unjustified compulsion of conscience: against Hierotheus Boranowsky’s Justified Compulsion of Conscience) (Wittenberg, 1674).]

[9. ]Antonius Benbellona was one of the pseudonyms used by the Lutheran controversialist Bartholomew Gericke (b. 1557). Samuel Pomarius (1628–83), also known as Samuel Baumgarten, was a Lutheran theologian and church superintendent in Salzwedel whose anti-Calvinist polemics drew the ire of Frederick William I of Brandenburg.

[c. ]Defense des Sentimens sur l’Histoire Critique, lett. 14, pp. 366ff. [Jean le Clerc, Défense des Sentimens de quelques Théologiens de Hollande sur L’Histoire Critique du Vieux Testament. Contre La Reponse Du Prieur de Bolleville (Defense of the sentiments of some Dutch theologians regarding the Critical History of the Old Testament. Against the response of the Prior of Bolleville) (Amsterdam, 1686).]

[d. ]Hist. Inquis., bk. 1, chap. 6. [Philipp van Limborch, Historia inquisitionis hispanicae cum libro Sententiarum Inquisitionis Tholosanae ab a.c. 1307 ad 1323 (History of the Spanish Inquisition together with the book of sentences of the Toulouse Inquisition 1307–1323) (Amsterdam, 1692).]

[e. ]Apol. ad. Libros de erudit. solida &c., append. 5, pp. 457ff. [Pierre Poiret, De eruditione solida, superficiaria, et falsa (On solid, superficial and false erudition) (Amsterdam, 1692).]

[a. ]In the dissertation de scriptis Poireti. ristian Thomasius, Christiani Thomasii, JCTI Dissertatio Ad Petri Poiret Libros De Eruditione Solida, &c. (The jurist Christian Thomasius’s dissertation on Pierre Poiret’s book On Solid Erudition, etc.) (Frankfurt, 1694).]

[10. ]Jean le Clerc (1657–1736) was a Swiss Arminian theologian and biblical scholar. Le Clerc had preached in France and England before finally settling in the Netherlands, where he identified with the cause of the Remonstrants, or moderate Calvinists. Philipp van Limborch (1633–1712), too, was a Remonstrant pastor and Arminian theologian in the Netherlands. He was a friend of John Locke’s and the author of numerous books on theological controversies and the history of religion. His Historia Inquisitionis (History of the Inquisition) was published in 1692 and translated into English by Samuel Chandler in 1731. Pierre Poiret (1646–1719) was a French-born mystical theologian who had initially followed Descartes but then developed his mystical doctrines under the influence of Antoinette Bourignon, whose lifelong disciple he became. Despite this, his scholarship and his moderate teachings were widely admired by Thomasius, Bayle, and Le Clerc, among others. Poiret’s De eruditione solida, superficiara et falsa (On solid, superficial, and false erudition) (1692) drew a critical but respectful response from Thomasius.

[11. ]This was the catchcry of the eclectic philosophers with whom Thomasius identified. Eclecticism had an antischolastic intellectual ethos, and its objective was to obviate sectarian commitment to a particular philosophical or theological tradition by encouraging selective use of different schools of thought.

[12. ]Elias Veiel, Disquisitio Theologica de Sententia S. Augustini (Theological disquistion on Saint Augustine’s opinion) (Ulm, 1689). Veiel (1635–1706) was an orthodox Lutheran theologian who taught at the Ulm higher gymnasium.

[a. ]See [Veiel], Dissertation, pp. 44–45 [Elias Veiel, Disquisitio Theologica de Sententia S. Augustini (Theological discourse on the opinion of Saint Augustine) (Ulm, 1680)]; see Dommaireinus à Dissingau, von der Autonomia, c. 11, pp. 216ff. [Dommarein von Dissingau, Kurtze Information und Anleitung, von der Autonomia, zu Erleuterung des Hochberümbten Tractats (Brief information and instruction on the Autonomia, for the explanation of this most famous tract) (Christligen, 1610).]

[13. ]Metabasis: to prove or assert something in one discipline by improperly using another.

[14. ]This is something about which Thomasius changed his mind. The view alluded to here, according to which jurisprudence could incorporate “divine positive law” or biblical commandments so far as these were interpreted by jurists, was the one outlined in his Institutiones jurisprudentiae divinae (Institutes of divine jurisprudence) of 1688. But he had abandoned this view by the time he published his Fundamenta juris naturae et gentium (Foundations of the law of nature and nations) in 1705, arguing instead that all laws could be derived from a rational reflection on the rules required to maintain inner and outer peace.

[a. ]Ad Cod. tit. de haeret. init. [Code of Justinian, “On Heretics,” beginning.]

[15. ]Johann Jakcob Wissenbach (1607–65) was the author of numerous works intended to expose errors and contradictions in Justinian and canon law.

[b. ]C. dixit 29, qu. 3. [Canon Law, canon 29, question 3.]

[c. ]l. 2, C, de haeret. [Code of Justinian, lex 2, “On Heretics.”]

[d. ]See Cornelius à Rynthelen, Jurist. Rom. Cathol., §70, p. 154. [Cornelius à Rynthelen, Iurista romano-catholicus: id est, iuridica romanae catholicae fidei confessio (The Roman-Catholic jurist: that is, the juridical confession of Roman Catholic faith) (Hemmerden, 1618).]

[a. ]C. Haereticus, 28. c. 24, q. 3. [Canon Law, “Heretic,” canon 28, causa 24, qu. 3. The footnote marker, missing from the German text, has been restored following the Latin.]

[16. ]This is an allusion to Thomasius’s standard argument that faith as such cannot be erroneous, as it is a matter of the will and heart, making no claims to falsifiable knowledge. Only faith contaminated by philosophical explication can be a matter of correct knowledge, leading to charges of error and thence to persecution.

[17. ]This was the cardinal early modern juristic definition of heresy, introduced into the legal codes of Protestant states from canon law, much to Thomasius’s displeasure.

[a. ]Farin. p. 8, qu. crim. 178, §1 [Prospero Farinacci; possibly a reference to vol. 8 of his Opera omina, the Tractatus de haeresi (Treatise on heresy) (Frankfurt, 1686)]; Carpzov, qu. crim. 44, n. 4 [Benedict Carpzov, Practica nova imperialis saxonica rerum criminalium (New imperial Saxon practice of criminal law) (Frankfurt, 1635), question 44, §4]; Ziegler on Lancellotti p. 939 [Caspar Ziegler, Jus Canonicum, Notis & Animadversionibus Academicis ad Joh. Pauli Lancelotti . . . Institutiones enucleatum (Canon law, explained with academic notes and comments on the institutes of John Paul Lancelotti) (Wittenberg, 1669)]; Voet, Dissertationes selectae, disp. 4, de error. & haeres., p. 723 [Gisbert Voetius, (possibly his) Selectarum Disputationum Theologicarum, part 4 (Select theological disputations, part 4) (Utrecht, 1667)]; Limborch, Historia inquisitionis, bk. 3, chap. 1, p. 175.

[a. ]t. t. C. de SS. Eccles. [Code of Justinian, “On the Most Sacred Churches.”]

[18. ]Although the separation of the invisible from the visible church was standard in Protestant theology, Thomasius uses the distinction to attack Lutheran orthodoxy. In treating true Christians as permanently scattered and unknowable by any outward signs, Thomasius separates Christianity as an inner moral condition from the church as a public institution. This not only strikes a theological blow against the notion of heresy—by undermining the notion of a visible religious community from which heretics deviate—but also permits the political secularization of the public church by separating it from the invisible community of the faithful and treating it as an assembly of citizens rather than of Christians.

[b. ]Lancellotti in Ziegler, pp. 938ff.; Limborch, bk. 3, chap. 7, p. 199; Pomarius, in Ungerechten Gewissens-Zwang, pt. I, p. 199.

[19. ]The Augsburg Confession, intended to state and distinguish the Protestant articles of faith, was presented to Emperor Charles V on behalf of the Protestant princes and cities in January 1530. By the end of the sixteenth century it had been somewhat superseded by the stricter formulations of the Formula of Concord (1577), at least in the eyes of orthodox Lutherans, who thus began to reinterpret the Augsburg Confession, giving rise to the kind of disputes mentioned here by Thomasius.

[a. ]See Grübel’s appendix to Dedeken’s Consilia theologica, p. 8. [Georg Dedeken, Thesauri consiliorum et decisionum,volumen primum, ecclesiastica continens (Treasury of opinions and decisions, volume 1, containing ecclesiastical matters) (Hamburg, 1623). Republished with an appendix by Christian Grübel in 1671.]

[20. ]Matthias Flacius Illyricus (1520–75) was a noted Lutheran theologian who had been associated with Luther and Melanchthon at Wittenberg. Flacius participated in several controversies surrounding the demarcation of Lutheran orthodoxy and became notorious for holding the doctrine that original sin inheres in man’s being or substance.

[21. ]The doctrine that Christ will return in bodily form and rule over the earth for a thousand years; hence, too, millenialism.

[22. ]Johann Tauler (1300–1361), a member of the Dominican order at Strasburg, was a leading mystical theologian and preacher. The author of the famous Imitation of Christ, Thomas à Kempis (1379/80–1471), was a monk among the Canons Regular of Windesheim, where he cultivated an ascetic and mystical style of Christian life modeled on the imagined simplicity of life of the early Christians. Theresa of Ávila (1515–82), a Spanish nun in the Carmelite order, was also an ascetic mystic. Her works on the contemplative life played an important role in spreading the devotional fervor associated with the Counter-Reformation.

[23. ]The foremost Lutheran exponent of (so-called) syncretism was Georg Calixt (1586–1656), professor of theology at the University of Helmstedt. Calixt argued for reconciliation between Lutheranism and Calvinism by downplaying the significance of doctrine and stressing the importance of living a shared Christian life. He was opposed by orthodox Lutherans, especially by Abraham Calov (1612–86) of Wittenberg, who sought to have Calixt’s teachings proscribed as heresy.

[24. ]In reducing the Christian religion to these three elementary principles, Thomasius sought to consign the mass of theological doctrine to the domain of adiaphora, or matters of indifference, thereby removing the basis for doctrinal conflict and heresy allegations, and giving the prince the right to resolve doctrinal conflicts, to the extent that these might affect civil peace.

[25. ]Leonhard Hutter (1563–1616) was a leading orthodox Lutheran theologian at the University of Wittenberg who specialized in anti-Calvinist polemics. In 1610 he published the Compendium locorum theologicorum (Compendium of theological topics), which became a basic text for teaching the Lutheran articles of faith, being frequently republished during the seventeenth and eighteenth centuries.

[26. ]After a series of Catholic attacks on the publication of the Augsburg Confession in 1530, a defense or Apology was prepared the following year, under the direction of Luther’s lieutenant, Philipp Melanchthon.

[a. ]Formula of Concord, p. 68. [In fact this refers to the Apology of the Augsburg Confession (1531) in the Book of Concord, which also contains the Formula of Concord (1577).]

[27. ]A standard modern English translation of this passage runs thus: “The faith that justifies, however, is no mere historical knowledge, but the firm acceptance of God’s offer promising forgiveness of sins and justification.” Theodore G. Tappert, ed. and trans., The Book of Concord: The Confessions of the Evangelical Lutheran Church (Philadelphia, 1959), 114. Note that the emphasis on the gratuitousness of God’s gift of grace is missing from this modern version.

[a. ]Ibid., under the heading “What Is Justifying Faith?” the verse “thus regarding proper Christian faith.”

[28. ]Thomasius is referring to section 22.4 of the first part of Justinian’s Digest (also known as the Pandects), De fide instrumentorum et amissione eorum (On the certitude of the instruments and their loss), stipulating the trustworthiness of legal and ecclesiastical documents as instruments giving effect to testimony, covenants, and similar.

[a. ]See, Formula of Concord, p. 74. [That is, Apology of the Augsburg Confession.]

[29. ]Ovid, The Metamorphoses, bk. vii, 20–21.

[a. ]Ziegler on Lancelottus, p. 939.

[b. ]Pomarius, in the foreword to Unrechten Gewissens-Zwang, p. 6.

[c. ]C. dixit Apost. 29. C. 24. qu. 3. [Canon Law, canon 29, causa. 24, question 3.]

[d. ]Boranowsky in Pomarius, as above, p. 499.

[e. ]Wittenberg Theological Faculty, Gründlichen Beweiß wieder der Rinteler Syncretistische Neuerung, pp. 60, 61 [Wittenberg Theological Faculty, Gründtlicher Beweiß daß die Calvinische Irthumb den Grund des Glaubens betreffen und der Seligkeit nachtheilig seyn: Dabey auch angeführet welcher Gestalt Christliche Einigkeit zu stifften, und der Rinteler Syncretistischer Neuerung zugleich begegnet wird (Thorough proof that Calvinistic errors concern the foundation of faith and are harmful to salvation. With this it is also shown in which form Christian unity should be grounded and, at the same time, the Rinteln syncretistic innovation is countered) (Wittenberg, 1664)]; Pomarius, as above, p. 155.

[30. ]The pope.

[31. ]This refers to a hermeneutic doctrine and practice in which disputed biblical passages were interpreted via their analogy or agreement with other passages whose meaning was not contested.

[32. ]Salvian was a fifth-century Gallo-Roman writer who contrasted the decayed virtues of Christian Rome with the sturdy virtue of such barbarian peoples as the Saxons, Franks, Goths, and Vandals.

[a. ]Salvianus, de Gubern. Dei, bk. 5, pp. 162ff. See also similar texts of Arnobius and Lactantius in the notes of Rittershusio on Salvianus. [Salvianus of Massilia, De Gubernatione Dei, (On the providence of God) (Geneva, 1600). Thomasius is referring to the notes in Konrad Ritterhausen’s edition of Salvianus’s Opera, published in Altdorf in 1611.]

[b. ]Galatians IV, 19. [In fact, Galatians 5:19–20.]

[a. ]I Timothy VI, 20.

[b. ]I Corinthians VIII, 1–2.

[a. ]I Corinthians XI, 18–19.

[b. ]Jude I, 19.

[33. ]Those who set themselves apart.

[34. ]The King James translation renders Jude 19 thus: “These be they who separate themselves, sensual, having not the Spirit.”

[a. ]Jude I, 19. [In fact, Jude 1:18.]

[a. ]Titus III, 10.

[a. ]Ephesians IV, 18.

[35. ]See note 8 in this chapter.

[a. ]Hierotheus Boranowsky, Gerechtfertigen Gewissens-Zwang, chap. 2, pp. 156ff.

[36. ]That is, reason.

[b. ]Pomarius, Unrechtigen Gewissens-Zwang, chap. 2, pp. 177ff.

[c. ]Carpzov, Practica nova imperialis saxonica rerum criminalium, qu. 44, n. 30, 31; Tarnovius, in Dedeken’s Consiliorum, pt. 2, fol. 93; Pomarius, as above, pp. 185, 311, 326, and pt. 2, pp. 417ff.

[a. ]Pomarius, pt. 2, p. 418.

[b. ]Pomarius, pt. 1, p. 519.

[c. ]Pomarius, pt. 1, p. 264, and pt. 2, p. 443.

[d. ]Pomarius.

[e. ]See ibid., p. 443; Boranowsky, chap. 10, p. 495; Pomarius, pt. 1, p. 269.

[a. ]Matthew XVIII, 17.

[b. ]I Corinthians VI, 1ff.

[37. ]This paragraph is not immediately clear. Thomasius’s argument is that someone whose conduct leads to their exclusion from the Christian community is no longer a “brother,” may be treated as a “heathen,” and can thus be dealt with by the civil magistrate in cases subject to secular law. This enables him to reconcile Christ’s admonition with Paul’s insistence that a “brother” should not be brought before the civil authorities. Lying behind this somewhat forced exegesis is Thomasius’s attempt to separate religious admonition from civil punishment.

[a. ]I Corinthians V, 2ff.

[b. ]Galatians V, 12; I Timothy I, 20; Romans XVI, 17; II John X, 11. See Pomarius, pt. 1, p. 420, from Gerhard.

[a. ]c. resecandae, 16, C. 24, qu. 3 [Canon Law, canon “resecandae” 16, chap. 24, qu. 3]; L. 1. C. De SS. Eccles. [Code of Justinian, On the Most Sacred Churches, law 1].

[b. ]See Lancellottus, bk. 4, tit. 4, §2, p. 941. [Ziegler, Notis et animadversionibus academicis ad Joh. Pauli Lancelotti.]

[38. ]For an English translation, see Seneca, “On Favours,” in Moral and Political Essays, ed. and trans. J. M. Cooper and J. F. Procopé (Cambridge: Cambridge University Press, 1995), 181–308.

[a. ]Samuel Pufendorf, De jure naturae et gentium (On the law of nature and nations), bk. I, chap. 5, §8.

[39. ]Here, Thomasius is probably referring to his treatises on Das Recht evangelischer Fürsten in theologischen Streitigkeiten (The right of Protestant princes in theological conflicts) of 1696, and Vom Recht evangelischer Fürsten in Mitteldingen oder Kirchenzeremonien (The right of Protestant princes regarding indifferent matters or adiaphora) of 1695 (see chapter 2 of this volume). In these works, Thomasius argues that the prince’s rights and powers extend to all matters capable of threatening social peace, while denying that they have anything to do with his subjects’ inner morality or salvation.

[40. ]Johann Christoph Becmann (1641–1717) was a Calvinist political theologian at the university of Frankfurt an der Oder. His Dissertatio de jure subditorum circa sacra (Dissertation on the right of subjects in religious matters) of 1689 argues for toleration in terms of the subjects’ basic rights in relation to the power of the state. In this regard Becmann differed from Thomasius, who relied on theological arguments regarding the inward and noncredal character of faith, and politico-juridical arguments regarding the incapacity of such faith to disturb social peace. Subjective rights play no significant role in Thomasius’s arguments for toleration.

[a. ]See Becmann, Dissertatio de jure subditorum circa sacra (Dissertation on the right of subjects in religious matters), chap. 3, §§11ff.

[a. ]Acts IV & V.

[b. ]Acts V, 29.

[a. ]Ziegler on Lancellottus, pp. 791 & 941; Carpzov, Practica nova imperialis saxonica rerum criminalium, qu. 44, n. 41ff.; Chemnitz, Exam. Concil. Trident, pt. 2, p. 93 [Martin Chemnitz, Examinis Concilii Tridentini (Examination of the Council of Trent) (Frankfurt am Main, 1615)]; Pomarius, Ungerechten Gewissens-Zwang, pt. 1, pp. 8, 24, 162, 165.

[41. ]That is, limiting the punishment of heresy to cases also involving blasphemy and sedition.

[b. ]Pomarius, pt. 1, pp. 8, 24, 162, 165.

[42. ]The section in square brackets is missing from the German version.

[43. ]Probably a reference to Christian Kortholt, De persecutionibus ecclesiae primaevae sub imperatoribus ethnicis (On the persecution of the early church under the pagan emperors) (Kiel, 1689).

[a. ]See, amongst others, Council of Wittenberg, pt. 1, fol. 246.

[b. ]Pomarius, pt. 1, p. 81.

[c. ]Formula of Concord, preface, halfway to the end.

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ESSAY 4: Is Heresy a Punishable Crime? - Christian Thomasius, Essays on Church, State, and Politics [2007]

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ESSAY 4

Is Heresy a Punishable Crime?

Conversation between a (so-called) Orthodox Believer and a Christian

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Orthodox

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