do ye not rather suffer yourselves to be defrauded?”81 Finally, capital punishment seems to be forbidden for Christians: Matthew 5, “Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil, etc.”82 Moreover it is clear that in the Old Testament inflicting the poena talionis was not permitted except to the magistrate, and therefore Christ prohibits precisely this when he says in Matthew 26: “All they that take the sword shall perish with the sword.”83
The second error is Calvin’s. Although in book 4 of the Institutiones, chapter 20, he proves, against the Anabaptists, that in the Church there must be civil laws, tribunals, and capital punishment, he nevertheless in book 4 of the Institutiones, chapter 10, section 5, affirms that the civil laws do not bind in conscience, something that was taught before him by Jean Gerson in De vita spirituali, lecture 4, and by Jacques Almain, in De potestate ecclesiastica, question 1, chapter 10. These are their reasons.
First, since political authority is temporal, it has nothing to do with conscience. Second, the end of the civil laws is external peace. Third, the prince does not judge in internal matters. Fourth, since the prince cannot inflict a spiritual punishment, he cannot make subjects liable to such punishment. Fifth, the prince cannot absolve, nor can he bind. Sixth, the sin would be punished twice, once here and once in the next world. Seventh, the prince for the most part does not intend to impose an obligation under pain of sin. Eighth, we should rather violate the most pressing civil law than the least divine law, such as that of not telling an officious lie. But since the latter binds only under pain of a venial sin, consequently the former does not bind at all, for if it bound under pain of sin, and especially mortal sin, it would be necessary to avoid a mortal sin rather than a venial sin.
The first proposition
Against those errors, the first proposition is this: it is lawful for a Christian prince to make laws. It is proved, first of all, because it is a prerogative of the prince to make laws, according to that passage in Proverbs 8: “By me kings reign, and princes decree justice,”84 and Isaiah 33: “For the Lord is our judge, the Lord is our lawgiver”;85 for it is the prerogative of the king to command, and by commanding to direct. Moreover, the law is the command and rule itself, and therefore if Christians can be princes, certainly they can also make laws, and this is confirmed by Augustine, De civitate Dei, book 19, chapter 17, where he says: “The heavenly city, as long as it lives as a captive and pilgrim, even if it has already accepted the promise of redemption and the spiritual gift as a pledge, does not hesitate to obey the laws of the earthly city, which are directed to support the mortal life,” and later “therefore this heavenly city, as long as it wanders on earth, summons its citizens from all nations in every tongue and brings together a society of pilgrims in which no attention is paid to the differences in customs, laws, and institutions, by which the earthly peace is either established or preserved. This heavenly city, however, does not annul or destroy such customs, laws, and institutions; indeed it preserves and follows them.”
Second, this proposition is proved out of the necessity for the civil laws. Christians do not cease to be men and citizens, and therefore members of the temporal commonwealth, because they are Christians; thus they must have some rule for their human actions, by which they might be directed in their affairs and social relations with other men. And the natural law is not sufficient, for it shows only the general principles, and it does not get into the specifics. Not even the evangelical law is sufficient, for it deals only with heavenly and divine matters, as is well known. Moreover, the divine political law of the Old Testament has now been abrogated, since it was only fitting for that people, the Jews, and in that state. Therefore another human rule, that is, the will of the princes, or a civil law established by the prince’s authority, is necessary. Even if the will of the prince could suffice in a case where the prince is wise and the people are few, nevertheless in absolute terms it is necessary that the people be ruled by laws, not solely by the will of the prince, if the people are to be ruled justly. That the will of the prince sometimes is sufficient is obvious because kingdoms are older than laws. Justinus, in book 1 of Epitoma historiarum, says that once the peoples used to be governed without any laws and only by the will of the princes, and from Livy, book 3, it is evident that the Roman commonwealth for three hundred years was governed without laws. Finally, the first lawgiver is either Moses, as Josephus argues in book 2 of Contra Apionem, or, if not Moses, definitely Phoroneus, who was three hundred years older than Moses, as Eusebius in his Chronicle and Augustine in book 18 of De civitate Dei, chapter 3, teach. And before Phoroneus the kingdoms of the Assyrians, of Greece, of Egypt, and others were established.
Aristotle, in Politics, book 3, chapter 11, affirms that a people is better ruled by laws than by the prince’s will alone, indeed, that this is in some sense necessary. And this is proved, first, because it is easier to find one or two good and wise men than many, and if the commonwealth has to be ruled by the will of a good prince, it will need an infinite number of good princes, so that one can succeed the other, but if it is governed by laws, it is sufficient that there once had been one or a few wise men who made the laws.
Second, those who make laws are many and they examine them diligently, while a prince is only one person and often he must judge quickly.
Third, those who made laws made judgments based on neither love nor hate, since they made judgments on hypothetical cases. The prince makes judgments on current issues, in which friendships, proximity, bribes, fears, etc., have a role; hence the judgment of the laws is a judgment of reason only, while the judgment of man is by reason and passion, that is, of man and beast.
Fourth, the judgment of the prince, even if it is most just, is hardly ever free from suspicion, envy, complaints, reproaches; while the judgment of the law is free from all of these, for indeed it is well known that the law cannot be corrupted by bribes.
Fifth, government through laws can last for the longest time unaltered, while the judgments of men often change.
Sixth, government through laws can be constructed as a system and more easily carried out; government according to the will of man cannot.
Seventh, the government of the prince is better when the prince himself does it rather than through his deputies, but government without laws necessarily requires many deputies who might make judgments according to their own will. However, when one governs by laws, the prince effectively judges everything by himself, since judgments are made according to his laws.
Third,86 it is proved because if it were not lawful for a Christian prince to bind people with laws, this would be because of Christian freedom. Such a statement, however, cannot be made, for the law is so far from being opposed to Christian freedom that it is rather opposed to the slavery that contravenes such freedom than to the freedom itself. I show this from the very nature of Christian freedom, as Christian freedom is opposed to the slavery of sin, John 8: “Verily, verily, I say unto you, whosoever committeth sin is the servant of sin. And the servant abideth not in the house for ever: but the Son abideth ever. If the Son therefore shall make you free, ye shall be free indeed,”87 and Romans 6: “Being then made free from sin, ye became the servants of righteousness.”88 But being cleansed from sin is said to be a freedom of a particular kind, since he who is in sin cannot want the good that is necessary to the eternal life, unless he is freed from it through grace. He certainly has free will, since he can choose one out of many evils, and also a moral good, but he cannot choose a divine good, unless he at least begins to be freed through the prevenient grace of God, since he is taken captive by the Devil at his will, as is written in 2 Timothy 2. But the free will, freed through grace, can want and accomplish the divine good, and this freedom was even greater in the state of innocence, since man then could avoid any evil wishes, something which even just men now
