§ 1. Theophrastus spoke excellently: ὀλίγων ἀγαθοὶ νόμων δέονται. Good persons need few laws. The cause is that in most matters they direct themselves and are taught by nature to do those things which belong to law. Evil persons need very many laws, concerning whom Seneca rightly said: “It is a miserable innocence to be good only according to law.” Virtue, anticipating law, directs the good; law deters the evil from crime and directs them toward virtue. The first office of law, therefore, is to direct the state and all citizens within the state.
§ 2. The second office of law is to command. The essence of law consists in commanding, for it is not law unless it commands. By commanding, it also forbids contrary things; and when it permits indifferent things, it commands that there be liberty in either direction and forbids impediments.
§ 3. Punishment also is an effect of law, about which we must speak later. Modestinus speaks truly in law 7 On Laws: “The force of law is this: to command, forbid, permit, punish, and affect with reward.” These things are clear. But we must treat the primary effect of law.
§ 4. The primary effect of law is to bind. Suárez discusses this in book 3, as do many others; but our times have seen those teachers who, by removing the obligation of human law, overturn with great temerity all order and peace in the state and the authority of the magistrate. Concerning this we establish the following.
§ 5. The power of enacting laws is not only from God but also proceeds ἀμέσως, immediately, from God. “For there is no power except from God.” This is indicated both by other acts and especially by punishment, which is inflicted upon bodies and above all is death, a power which cannot have been conceded to a human being except by God. But when human beings unite into one political body, they cannot prevent that power from existing among them, for it arises as a natural affection and property. Each person by his own nature is suited to entering a society of this kind; but when the state has been constituted, it is within its power to institute monarchical government, aristocratic government, or the polity of the people. Thus the state possesses power from God first and immediately; magistrates designated by it possess power mediately from God and immediately from the people. By the nature of the thing this power exists wholly in the community first and immediately. Nevertheless, if God establishes a king by revelation and by his command, or if some king has legitimately subdued a state by war, he will not be said to possess power from the people. Yet the power even of other kings is from God, because he approves it as legitimate; next, because he inclined the mind of the state to choose a king; finally, because when the king has been established, he now acts in the place of God, is greater than his own kingdom, commands the state which subjected itself to him, and writes laws. And the saying addressed by the emperor to rebellious soldiers is worthy of an emperor: “It was within their power not to choose; now that they have chosen, they must obey.”
§ 6. This power can exist, and very frequently does exist, even in unjust human beings. Thus long ago the Church and all systems of law judged against Wycliffe and Hus.
§ 7. Civil laws, with God as their author and a faithful magistrate as their director, are directed not only toward temporal but also toward eternal happiness. Civil laws possess as their end the happiness of the whole state, of perfect human society, and of individual human beings insofar as they are its members.
§ 8. Civil law is occupied only with external acts. For internal thoughts and acts of will are judged by God alone and are not subject to a secular court, because by their nature they are hidden. Therefore, witnesses cannot be summoned against them, nor can proceedings be conducted against them by laws; much less does the legislator possess coercive power to compel someone to love, hate, believe, or hope. By what instruments of torture will you compel a human being to love you? Roman laws therefore rightly establish: “A bare thought must not be punished if the will has not passed beyond the bounds of thought.” For judges correct those crimes of which they possess full proof; they leave thoughts to him who searches hearts and reins, who gave them the precept, “You shall not covet.” Before a judge, one who has not been convicted is innocent. But God, who is present at the actions of hearts, also threatens vengeance upon them: “Woe to you who devise evils in your hearts.” Chapter Si quis, 15, question 1; law Illicitas, § Veritas, On the Office of a Governor; final law of the Code, On Proofs; canon Cogitatio and On Penance, distinction 1; canon Si quandoque, 15, question 6; canon Si omnia, 6, question 1.
§ 9. If, therefore, there is suspicion of a hidden thought, purgation by oath is instituted. Hostiensis, on canon Licet, On Rules of Law. But if hidden machinations have broken forth, the wickedness of the will is punished, not the outcome. For a will which has become known stands before the judge as the deed. Thus one who endeavors to create unchaste desires is held by law; one who has sought after a virgin is arraigned under the law concerning corrupters. Peter Gregory produces notable examples in the Syntagma of Law, book 24, chapter 12, § 12 and following.
Dio Cassius writes that certain men were condemned to death because they had encountered Livia, the mother of Tiberius Caesar, while naked. Nevertheless, she rescued them from death by a pardon, saying that to chaste women such men differed in no respect from statues. Among the islanders of Utopia, to have solicited someone to sexual violation is the same as to have committed the violation. The sacred page relates that Pharaoh was afflicted with many disasters merely for attempting the chastity of Sarah, Abraham’s wife, and Abimelech, king of Gerar, for the same causes. Marcus Claudius Marcellus, the curule aedile, accused Gaius Scantinius Capitolinus, tribune of the plebs, before the people because he had solicited his son for sexual violation; the defendant was condemned upon the testimony of the single person who had been solicited. Metellus Celer, likewise a punisher of an unchaste intention, brought Gnaeus Sergius Silo to trial because he had given money to a married woman. He was condemned, and not the deed but the intention was brought into question. The athletic contest among the people of Vienne was abolished by Trebonius Rufinus during his duumvirate, with Emperor Trajan confirming the measure, because the morals of the people of Vienne were being infected by this effeminate and unchaste contest. And things which give an occasion for wrongdoing must be removed.
Therefore, a will which has given sufficient signs of a crime is rightly punished, yet less than a will which has been put into daring action, because the latter was more deliberate, more obstinate, and more harmful in evil. For the mind could more easily have corrected things only contemplated.
§ 10. When civil laws command good works or prohibit evil ones, they consequently bind the act of mind and will joined to external obedience in such a way that it cannot be opposed to them. For law is given to human beings as free persons, so that they may act willingly. Thus, when a law of the emperor established that no one except an equestrian might wear a ring, it also forbade anyone to possess a will contrary to the law. For such a will is opposed to the law and therefore belongs to a disobedient person.
§ 11. When a civil law is enacted without the prescription of a definite time, it binds immediately if it is negative; if it is affirmative, it binds when the command of execution presses. It does not, however, bind in those places to which knowledge of it could not morally have arrived. For an emperor establishing a law at Vienna cannot at the same time bind those who dwell upon the Rhine, since they could not yet have suspected anything about the law. It is indeed a law, but it binds only those to whom it has been sufficiently made known; for one who is ignorant of it without fault does not offend against the law.
§ 12. A law must therefore be promulgated. Nevertheless, most persons think that an imperial law does not bind until two months after its constitution. Thus the Authenticum states: “But so that the matter may be declared still more openly, we sanction that, if a law of this kind has been written, it shall have force after two months from the date assigned to it.” Yet they do not extend this to the laws of inferior magistrates.
§ 13. Acceptance of a law is not an ordinary condition for its validity. When a law is just, it must necessarily be accepted by the peoples, for in the magistrate there is the authority and will to enact law and bind subjects. The subject must therefore obey, for violators are immediately punished. Acceptance is an effect which follows obligation; but the effect of a cause is not a necessary condition for the cause to exist or act.
§ 14. Once these matters have been established, there is a great controversy whether civil law not only binds but also binds the consciences of subjects, so that those who transgress it sin against God. For example, by a sumptuary law a prince defines a fixed number of guests at weddings, and likewise the duration and manner of the courses. Titius increases the number, the courses, and the duration. Does he not offend against the law in such a way that he sins?
§ 15. All who profess the Catholic faith agree in saying that civil law also binds consciences. Many heretics deny this; some concede it. In this year 1618, a certain Scharpius, a man of malicious ignorance, attempted by many arguments to persuade others that the laws of princes do not pertain to consciences. But the Apostle Paul himself refutes him most clearly in Romans 13:1 and following: “Let every soul be subject to higher powers. For there is no power except from God, and those that exist have been ordained by God. Therefore, he who resists power resists the ordinance of God; but those who resist acquire damnation for themselves. For princes are not a terror to good work but to evil. Do you wish not to fear the power? Do good, and you will have praise from it. For he is God’s minister to you for good. But if you do evil, be afraid, for he does not carry the sword without cause. For he is God’s minister, an avenger unto wrath against him who does evil. Therefore, be subject from necessity, not only on account of wrath but also on account of conscience. For this reason you also pay tribute. For they are the ministers of God, serving God in this very thing. Render, therefore, to all their dues: tribute to whom tribute is due; tax to whom tax; fear to whom fear; honor to whom honor.”
The same Paul says in Titus 3:1: “Admonish them to be subject to princes and powers, to obey what is spoken, to be prepared for every good work, to blaspheme no one, not to be contentious but modest, showing every mildness toward all human beings.”
Nor is it surprising, since Christ commanded that those things which are Caesar’s be given to Caesar and those which are God’s to God. He himself also paid tribute, Matthew 17:24.
From this a firm and evident argument is taken: God commands obedience to the laws of kings; therefore, one who transgresses them resists God’s command, and one who resists that command sins; therefore, one who violates royal laws sins.
Hence Augustine teaches that those who obey the just laws of princes merit a great reward, while those who neglect them merit a great punishment. Certainly, obedience is owed even to harsh masters, 1 Peter 2.
For since the magistrate enacts laws as a minister of God and exercises a power received from God, in contempt for him the divine majesty itself is contemned. 1 Samuel 8: “They have not rejected you, but me, lest I reign over them.” But if the state established a prince under the condition that he not write constitutions binding conscience, it would not follow from this that no laws bind. For that state together with the king will be able to bind consciences if a law is written for that end by common consent.
Next, the law which commands obedience to princes is natural law—indeed, eternal law. “For this is the will of God,” says the Apostle. But natural law binds conscience. Hence even the gentiles frequently commend obedience. Obedience is the greatest good in the state, in military service, and at home. Xenophon, On the Lacedaemonian State; and Augustine, book 14 of The City of God, chapter 12: “In a rational creature obedience is in a certain manner the mother and guardian of the virtues.” Who would believe that the greatest good of the state, in a state established by God, does not bind citizens, or that they do not sin if they act contrary to it?
The command of masters over slaves, of a husband over a wife, and of parents over children is not only legitimate but also of such a kind that those who evade it sin gravely before God. In Deuteronomy 21 a disobedient son is commanded to be killed. Women are commanded to be subject to their husbands; why should citizens not likewise be subject to the magistrate? To obey kings, therefore, is to obey God; to rage against the just laws of kings is to overthrow the power of God. The disobedience of all these persons injures conscience; therefore, every such command binds it.
The nature of law is to bind and direct; therefore, when a law is proposed seriously, it also binds. Otherwise coercive power could often be eluded. For many can escape an external penalty, some hold it in contempt, and most transgress in the hope of impunity. But the Calvinists, although disagreeing among themselves, rise up vehemently against this.
§ 16. Pareus, on Romans 13:5, doubt 7, says that Calvin appears to defend the negative opinion in the Institutes, book 3, chapter 19, numbers 15–16, and book 4, chapter 10, numbers 3–5. Beza follows him in his notes, as does Sibrandus, On the Roman Pontiff, book 8, chapter 7. Stapleton assails this bitterly as an infamous doctrine in the Antidote, page 783. Bellarmine too reproaches Calvin with it in book 3, chapter 9 of On the Laity, and says that John Gerson had taught the same before him in lecture 4 of On the Spiritual Life.
But among them all John Scharpius pleaded the worst cause most gravely and shamelessly—not the Hercules, as his flatterers call him, but the Cacus of Britain, the Ives of France. Let us therefore examine his arguments.
Objection 1. God alone possesses right over the consciences of human beings. Romans 1:32 and 2:15; 1 Corinthians 7:25; James 4:12; 1 Peter 4:19; and elsewhere. Therefore, no law except divine law binds conscience.
I answer, first: nothing of this kind is found in Romans 1:32, nor is it there; there is only this: “Although they had known the justice of God, they did not understand that those who do such things are worthy of death—not only those who do them but also those who consent to those who do them.” Among the other persons, however, he enumerated those disobedient to parents and those without order, from which the contrary is inferred. Those disobedient to parents are worthy of death; therefore, so are those disobedient to magistrates; therefore, so are those who violate the laws of magistrates. For they do not obey the magistrate but are without order; therefore, disobedience injures conscience.
Second, in Romans 2:15 the gentiles who do not possess the law are said to show the work of the law written in their hearts. He does not say that the gentiles lacked civil law, since they possessed innumerable laws, but denies that they had received the law of God under which the Jews lived. Much less does he indicate that their consciences were not bound by civil laws.
Third, in 1 Corinthians 7:35 the Apostle denies that he wishes to cast a snare upon the Corinthians. He is treating the preservation of virginity and declares that he is not establishing a precept but giving counsel. But what sort of reasoning is this? Paul does not give the Corinthians a precept to preserve virginity and does not cast a snare upon their consciences; therefore, the laws of kings do not bind subjects in conscience. Would anyone who observed any law of argument speak in this way? What has the liberty of counsels to do with the necessity of precepts?
Fourth, James 4:12: “There is one legislator and judge, who can destroy and deliver.” But what has this to do with the olive trees? The Apostle admonishes them not to judge the law but to do it, because there is one legislator and judge. Yet it is not thereby proved that there are no other legislators, just as it is not proved that there are no other secondary judges. If there are other legislators and judges, but secondary ones, then there are also laws and therefore obligation.
Fifth, 1 Peter 4:19 says: “Let them commend their souls to the faithful Creator in good deeds.” What follows? Are they therefore not bound by the laws of their princes? The soul is commended to God by obeying magistrates. “But God alone possesses right over consciences.” Certainly, in the same way God alone possesses right over bodies and fortunes, yet he has communicated that right to others: he commanded some to reign, command, forbid, and punish, and commanded others to obey. When he gave makers of laws, he willed others to obey. The first and supreme right is in God; in God’s vicars, kings, there is a participated right, just as in parents, teachers, and husbands. A prince can therefore bind in what they call the forum of conscience, the forum of God, because God commanded that he be obeyed.
But it is preferable to answer the French minister from the opinion of another minister. Pareus, on Romans 13:5, doubt 7, objects thus: “Conscience regards God alone.” He himself answers: first, conscience regards not only God but also human beings, as Paul testifies in Acts 24. Second, conscience regards civil laws, not as such, but as enacted by a minister of God and fortified by the authority of the general divine precept, “Honor your father,” and so forth.
Pareus objects secondly: “To bind consciences belongs to divine law alone and therefore not to civil laws.” He answers: “The fallacy of the non-cause. For God binds consciences either immediately, under the character of worship, through divine laws, or mediately, under the character of discipline, through the laws of his ministers,” and so forth. By the judgment of his own people, therefore, that Calvinist who attacks the Most Christian king of France with these sayings is refuted.
Objection 2. Human law often must not be obeyed on account of conscience, Daniel 3 and 6. But divine law must always be obeyed on account of conscience. Therefore—
I answer: from this nothing against the truth is established, but only ignorance. For what sort of argument is this? Impious laws commanding idolatry must not be obeyed; therefore, the upright and useful laws of princes do not bind conscience. Augustine speaks very differently in Letter 50 to Count Boniface: “When emperors establish evil laws on behalf of falsehood against truth, those who believe rightly are tested and those who persevere are crowned. But when they establish good laws on behalf of truth against falsehood, those who rage are terrified and those who understand are corrected. Therefore, whoever refuses to obey the laws of emperors which are enacted against the truth of God acquires a great reward. But whoever refuses to obey the laws of emperors which are enacted on behalf of the truth of God acquires a great punishment.”
When we say that laws must be obeyed, we are speaking of just laws. But if one reasons correctly who says, “Human laws often must not be obeyed; therefore no human law binds conscience,” I do not see why we should not argue in the same manner: “A human magistrate must often not be obeyed—namely, when he commands depraved things; therefore, no commands of a magistrate bind conscience; therefore, there is no need for power, nor is a soul subject which can oppose him and even resist if he wishes to enforce his commands by punishments.”
Objection 3. Laws of conscience cannot be changed, just as neither conscience nor God can be changed. But human laws are various and mutable. Therefore—
I answer that this argument too belongs to ignorant malice. It has neither the form nor the matter of a syllogism. For if it is to be put into a legitimate form, the argument must be made thus:
No law of conscience is mutable.
All human laws are mutable.
Therefore, no human law is a law of conscience.
But the major premise, understood in this manner, belongs to the Manichaeans and removes nearly the whole Old Testament, for the ceremonial and judicial laws were changed. The general law of conscience remains unmoved: evil must be avoided and good sought; nothing must be done contrary to the dictate of conscience. But particular laws which at one time bind conscience are frequently changed. Formerly, unless a soul was circumcised, it was destroyed from among its people; but now the law says, “If you are circumcised, Christ will profit you nothing.” Behold, one law contrary to another: a mutable law, but an immutable God, who from eternity immutably decreed to change the law at the appointed time, to abrogate the old, and to enact the new. If Scharpius pursues this argument, therefore, he will suddenly establish that the old law of God did not bind consciences.
Objection 4. Political power is temporal and concerns external things, not internal ones, and its end is external peace. Therefore, it cannot produce a spiritual effect, that is, bind conscience.
I answer that political power is of itself occupied with external matter and therefore cannot of itself and directly introduce a spiritual obligation in a spiritual matter. Nevertheless, because honorableness and baseness can be found in external and temporal things, temporal law can introduce obligation in that matter. For it is a participation in divine power. Pareus answers weightily: “It is the same fallacy”—of the non-cause—“for although the magistrate may not intend by laws to bind consciences, nevertheless the conscience of subjects senses itself bound to obedience under guilt on account of the general command of God: ‘Honor your father and mother.’”
Yet he errs in this matter, for in reality a magistrate often enacts a law in such a way that he does not wish to bind consciences, and if he does not wish to do so, it does not bind. For the right of a law does not extend beyond the will of the legislator. Pareus himself testifies that a magistrate sometimes wishes to bind, though amid so great a rhapsody he is little mindful of himself. On Romans 13:5, doubt 7, proposition 5: “Civil laws by which a prince intends not only to make known or show what must be done, but seriously to command and to bind transgressors to guilt, bind consciences in particular and of themselves under mortal guilt and offense against God.”
The disagreement lies here. But the affirmative reasons contend validly for this position, and especially the determination of the Apostle: it is necessary to obey not only on account of wrath but also on account of conscience. The reason is evident: violation of a particular law necessarily carries with it violation of the general law concerning obedience toward the magistrate. But violation of the genus injures conscience. Therefore, so does violation of the particular law. It therefore binds conscience. These are truly the words of Pareus.
But Scharpius’s own reasoning destroys itself. He says that the end of political power is external peace. But we are bound in conscience to external peace and therefore to those things without which that peace cannot exist. Yet external peace cannot exist without laws, for laws are the bond of citizens with one another and with the magistrate. Laws therefore bind conscience.
Objection 5. Political power cannot inflict a spiritual punishment or absolve from it; therefore, neither can it bind conscience spiritually.
I answer that the punishment of some transgression can be understood in two ways. First, an altogether spiritual punishment may be imposed for violation of a command. Political power cannot do this, for it cannot inflict upon contemners of its laws a spiritual punishment such as suspension, interdict, or excommunication. Yet it can inflict a punishment through a certain consequence, because it can bind to guilt. For since God wills the magistrate to be obeyed, there is no doubt that the violator of the divine order incurs a spiritual punishment—not so much by the force of the human precept as of the divine precept, which is contemned through violation of the human one. Let the elder Eurystheus, his parent, teach the young Hercules.
Nor is the knot loosed or tightened by saying that the magistrate must be obeyed on account of conscience, not because he can enact laws for consciences, but because with a safe conscience you cannot resist him to whose power God subjected you. For by this very statement it appears that consciences are bound by the laws of the magistrate, because it is not lawful to resist them on account of God. To resist the magistrate is to resist his laws.
Objection 6. Political power cannot absolve conscience from an offense; therefore, neither can it bind.
I answer that in votis, vows, and laws it is not required that one who can bind must also be able to absolve. By a vow, contract, or stipulation anyone can bind himself, but he cannot absolve himself. Suárez says that this is true when the obligation is not imposed directly. Nevertheless, that general proposition can be true in this manner: whoever can impose the obligation of a law can also remove it. First, just as the legislator can establish a law which binds consciences, so he can remit that obligation either by abrogating the law or by indicating that his intention in this matter is to direct subjects but to bind no one’s conscience. He can also dispense from his own law, provided this can be done without injury to a third party.
It is not necessary, however, that after the law has been violated he be able to remit the whole guilt. For if the just law of a viceroy is violated, not only the dignity of the viceroy but also the royal majesty, from which the authority of the inferior magistrate comes, is injured. The viceroy can remit his own injury, but not the king’s, unless he has received special power concerning that matter. So too must it occur in these cases. One who transgresses a civil law is held under liability to the punishment which the magistrate established, and the same magistrate can remove that punishment. Yet he cannot bring it about that the person did not commit an offense, nor can he remit that guilt and punishment which pertain to God, for this is the power of a higher order. The transgressor acted against this will of God, which wills him to obey not only on account of wrath but also on account of conscience.
Thus the commands of parents bind the consciences of children, yet parents cannot absolve the disobedient from the offense. This belongs to divine right.
Objection 7. If civil laws bound no less than divine laws, then human laws would have to be obeyed no less than divine laws, and no one could exempt himself from the observance and punishments of human laws, because no one can exempt himself from divine laws. For where there is an equal reason, the same right ought to obtain. But the Papists teach that the latter is false when they contend for the immunity of clerics.
I answer that the question is not about equality between the obligation in divine laws and that in human laws. Divine laws bind more strictly, because they are always not only just, useful, and holy, but are also certainly known to be such. Next, in violating them divine majesty, from which they proceed immediately, is injured more greatly. Third, divine laws bind everyone; human laws do not bind everyone, because some are exempt from the jurisdiction of a political magistrate. All are equally subject to God. But just as God can exempt some from his own positive law, so too can a magistrate exempt some from his law, for someone can be given a privilege by which he is not held by a law.
Objection 8. If ecclesiastical laws do not bind conscience outside a case of scandal and contempt, then civil laws do so much less. But the former was proved above. Therefore—
I answer that we argue the contrary: if civil laws bind, ecclesiastical laws bind much more, as we shall teach in their place. The conflict between Scharpius and Pareus is extraordinary. Scharpius says that ecclesiastical law does not bind and concludes from this that civil law binds much less. But Pareus deliberately defends the contrary: ecclesiastical law does not bind for the reason that civil law does bind.
We have long experienced more than enough how much confusion this opinion produces, especially in the Roman Empire. Those who have imbibed these opinions think that neither the sentence of judges nor laws must be observed.
Objection 9. No law enacted by a human being, as such, can bind conscience, because a law extends no further than the legislator.
I answer that human law binds absolutely and that consciences are held by human laws. Whether they bind as human laws is not a question of morals; yet to deny it is contrary to good morals, since human magistrates, as such, possess the right of commanding and enacting laws. Thus this was formerly censured in Gerson, because he said that human law does not bind insofar as it is human, but insofar as it is a degree of divine law, lecture 4, corollary 4. Deservedly so. For the meaning is that the obligation to obey is founded not upon the power
of the legislator but upon our reasoning, by which we deduce that the law which we obey is derived from divine or natural law. When this deduction is brought into morals, it must disturb the state; for according to the varying capacity of human beings, that derivation will be established variously. Next, an examination of all human laws will be undertaken by everyone, and the power of kings will be restrained according to the doubtful and most frivolous deduction of restless human beings. Finally, how much license is here conceded to the most cunning subtleties of legal instruments? They will compare contrary laws and will set before the laws by which they are governed other laws differing from them in any manner whatsoever. It must therefore be said that obligation arises from human power and consequently that the law of human power, even as such, binds, for even as such it possesses its whole force from God because it possesses it from the vicar of God. For the rest, it is not fitting to argue so subtly, lest real tumults arise from false trifles.
Objection 10. Human law establishes a means remotely, or mediately, toward an end, and a means for preserving human society invented by human thought, in which it often errs. Therefore human law, as such, does not bind conscience before God.
I answer that a knot is being sought in a bulrush. Although Pareus and Calvin appear to think in this manner, Pareus, by dissenting from the others, sufficiently shows that he thinks human laws bind of themselves, in proposition 5 cited above. But the French Hercules indicates his meaning through other things which he teaches unsuitably: namely, that they do not bind because they do not command acts of the virtues, as he says in his response to objection 4. And in response to objection 5 he says: “Next, the laws of kings bind conscience only when they promulgate those things which God has commanded.” According to his opinion, therefore, whatever the king commands, unless God has commanded it beforehand, will be rejected with a free conscience. Nor must scandal be feared, because no one is rightfully scandalized if another exercises his own right. Therefore no Calvinist instructed in this heresy will be bound to obey the king unless the king shows his law plainly in the sacred Bible. What could be more seditious than this? Finally, if divine law is promulgated by royal law, it receives no new obligation beyond that which it possessed before. For if the king possesses no jurisdiction over conscience, no new obligation will be added even when he enacts divine law.
At last Scharpius, forgetful of what he has disputed, draws this conclusion in his response to objection 7: “We are commanded to obey the magistrate on account of conscience. Therefore—” He answers: “The inference is denied, because the Apostle treats only those who condemn and spurn the magistrate and withdraw themselves from obedience to him. Next, this is said with respect to the authority in commands which is from God, not with respect to individual laws. Finally, civil laws do not bind of themselves, because the necessity of observing them does not consist in the things commanded but depends upon the authority of the magistrate and the general end of laws.”
These are so many arguments against himself. First, Paul reprehends not only contempt for the magistrate but disobedience. He wills obedience on account of conscience. But when someone does not obey a law because he thinks there is no power of binding, he contemns the authority of the magistrate. Second, he says that obedience is owed with respect to the authority which is from God. But this is sufficient, for that authority has been communicated by God to magistrates; therefore obedience is owed with respect to the authority given to the magistrate, and therefore with respect to individual laws insofar as they possess authority from the magistrate. It makes no difference that civil laws concern indifferent things, for many laws of God concern only means; yet when they are commanded by God, they cease to be indifferent, for they become necessary. So too these indifferent matters of civil laws, by reason of the power which God conferred upon the magistrate, are necessary means for preserving human society.
And at last he admits this when he says: “Because the necessity of observing them does not consist in the things commanded but depends upon the authority of the magistrate and the general end of laws.” If necessity depends upon the authority of the magistrate, then that authority constrains consciences, upon which it imposes the necessity of obeying. He therefore appears to hold a milder opinion than he had declared in words—if, indeed, he knows what he thinks. For heresy draws him toward depravity, reason toward truth.
In question 1, where he asks whether it is lawful for a magistrate to establish laws, he answers that it is lawful and proves it by these arguments:
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Princes are called legislators, Proverbs 8:11 and Isaiah 33:22. Therefore—
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If Christians can be kings, then they can also establish laws, because supreme magistracy and νομοθεσία, legislative power, necessarily cohere according to the rule of law: when jurisdiction has been conceded, those things without which it cannot be exercised are conceded. But the former has been proved above. Therefore—
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A law is nothing other than the command of a king. Therefore, if kings can command, they can also enact laws.
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Christians are human beings and therefore citizens of a state. They must therefore possess a rule of civil actions. Natural law is insufficient as the rule because it shows only certain general principles, and evangelical law is insufficient because it treats only divine matters. Human law is therefore necessary.
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If it were not lawful for a Christian prince to bind the people by laws, this would be because it is opposed to Christian liberty. But the latter is false, because Christian liberty is opposed only to the slavery of sin, to which a just law is also opposed. Next, what possesses its foundation in integral nature is not opposed to Christian liberty. But every just civil law is such. Therefore—
§ 17. From this a firm argument, necessary for peace, is deduced. Princes are legislators; therefore, they can bind subjects. Second, νομοθεσία, or the power of enacting laws, is connected with jurisdiction; therefore, it binds as jurisdiction does. But jurisdiction binds in conscience; therefore, so does νομοθεσία. For if a judge is bound in conscience to judge according to civil laws, subjects are also bound to obey. The example is clear.
Immovable things are acquired by usucaption among persons present in ten years, and among persons absent in a period of twenty years. §1 On Usucaptions; the single law On the Transformation of Usucaption. A judge is bound in conscience to judge according to this law and adjudge the property of Gaius to Titius if Titius has acquired it by prescription. There is no one who would not judge a judge deciding otherwise impious, unjust, perjured, and a robber. His conscience is therefore held by human law, for divine law did not define periods of usucaption. But if the necessity of judging in this manner rests upon the judge, Gaius will be held by the same necessity to obey and will act against conscience if he does not obey, since the necessity of judging according to this law and that of abiding by the judgment are reciprocal. Thus the whole force and determination are in human law, though derived from divine law.
But if Gaius is a Scharpian Calvinist, he will be able to obstruct execution by any means, for he will judge that law and judgment have nothing to do with conscience. Secretly or openly, now or later, whenever his strength gives him opportunity, he will go to recover the property. Thus the war could be just on both sides: Titius will retain the property by the privilege of the matter adjudged, while Gaius will say that without guilt he can resist the judgment of human law.
If, therefore, νομοθεσία is connected with jurisdiction, human law binds consciences. One who teaches otherwise introduces sheer brigandage and the overthrow of the state in place of legitimate judgments.
§ 18. I refute Scharpius from his own words as well. If a law is nothing other than the command of a king, and a command must be obeyed on account of conscience, then a law, which is nothing other than the command of a king, must also be obeyed. But a king is bound to command many things, and therefore a subject is bound to obey them. What the king is bound to demand, the subject is bound to furnish. Besides natural and evangelical laws, human law is necessary. If the law is necessary, obedience to it is therefore necessary. For it is ridiculous that in a city some law should be necessary for the city’s safety, yet the observance of a necessary law should be optional and every citizen should be able to violate the necessary law.
Finally, if a just civil law does not obstruct Christian liberty, if it has its foundation in nature, and if a prince can bind his citizens, who would doubt that consciences too can be bound?
Nevertheless, these statements conflict with what he teaches in question 3 On Antichrist: that Christ does not wish our consciences to be pressed by this yoke. He speaks generally of the Church and secular princes. And argument 10 says: “A human being cannot condemn someone to hell; therefore, he cannot bind conscience to observe a law under penalty of eternal death.” As though a human being endowed with divine authority could not do this. For if someone sins against the law, he has already condemned himself. Thus it is not the father but God, the avenger of disobedience, who consigns a rebellious and contumacious son to hell.