TABLE OF CONTENTS

CHAPTER 9   THE QUESTION OF THE EXTENT OF THE POWER OF MAGISTRATES IS PROPOSED
CHAPTER 10  IT IS LAWFUL FOR A CHRISTIAN RULER TO MAKE LAWS
CHAPTER 11  THE CIVIL LAW IS NO LESS BINDING IN CONSCIENCE THAN THE DIVINE LAW
CHAPTER 12  TO EXERCISE PUBLIC TRIALS IS NOT UNLAWFUL FOR CHRISTIANS

Chapter IX

THE QUESTION OF THE EXTENT OF THE POWER OF MAGISTRATES IS PROPOSED

The third question follows: Is it lawful for a Christian magistrate to make laws, to give judgment, and to punish the wicked? Two errors must now be refuted. The first is that of the Waldensians and the Anabaptists, who deny all these points. They argue that obligation to obey laws destroys Christian liberty, and that judgments are forbidden in, "If a man will contend with thee in judgment, and take away thy coat, let go thy cloak also unto him," and, "Already indeed there is plainlya fault among you, that you have lawsuits one with another. Why do you not rather take wrong? Why do you not rather suffer yourselves to be defrauded?" Finally, capital punishment seems to be forbidden to Christians in, "It hath been said: An eye for an eye, and a tooth for a tooth. But I say to you not to resist evil." Moreover, it is evident that under the old law the infliction of the poena talionis was permitted only to magistrates, therefore, Christ forbids this very thing, and He also says, "All those who take the sword shall perish with the sword."

2 The second error is that of Calvin, who, although he reproves against the Anabaptists that there should be in the Church civil laws, judgments, and military power, nevertheless states that civil laws are not binding in conscience; which had been taught before him by Jean Gerson and Almain. These are their reasons:

3 First, because political power is temporal, it has, therefore, nothing to do with conscience. Second, because the end of civil laws is external peace. Third, because the ruler does not judge interior things. Fourth, because the ruler cannot inflict a spiritual penalty, he cannot therefore impose the obligation.

4 Fifth, because a ruler cannot absolve, therefore he cannot bind. Sixth, because the same sin would be punished twice, once here, and once in the next world. Seventh, because most rulers do not intend to bind under pain of sin. Eighth, because we ought rather to break a most important civil law than a most unimportant Divine law, as that of not deceiving where it would affect the common good; but this latter obliges only under pain of venial sin, therefore the former does not oblige at all; for if it obliged under pain of sin, especially of mortal sin, it would be our duty to avoid mortal sin rather than venial.

Chapter X

5 First proposition: Now against these errors this will be our first thesis: It is lawful for a Christian ruler to make laws. It is proved; for the primary duty of a ruler is to make laws, according to the words, "By Me kings reign, and law-givers decree just things." And, "The Lord is our King, the Lord is our Law-giver." For the duty of a king is to give orders, and to direct affairs by commanding. Besides, law itself is command and rule, therefore, if Christians can be rulers, they can certainly make laws, and this is confirmed by St. Augustine: "The heavenly city," says he, "leads, as it were, a captive life of exile while on earth, and having accepted the promise of redemption and the spiritual gift as a pledge, does not hesitate to obey the laws of the earthly city, by which those things are carried on which are necessary for sustaining earthly life." And below, "Therefore, this heavenly city, while it wanders in exile on earth, calls its citizens from all nations, and summons its wandering band in every tongue, not caring how those by whom the earthly peace is established and maintained differ in customs, laws and institutions, not annulling or destroying any, but preserving and following them."

6 Secondly, our thesis is proved by the necessity of civil laws, for Christians, by the mere fact that they are Christians, do not cease to be men and citizens, and hence members of a temporal State, therefore they should have for their human acts some rule by which they may be guided in their business relations and customary intercourse with other men; moreover, the natural law is not sufficient, for it gives only general principles, and does not come down to particular cases; even the law of the Church is not sufficient, since it is concerned only with Divine and heavenly things, as is known, while the Divine political law of the Old Testament has now been abrogated, since it was suitable only for that one people, the Jews, and for their condition; therefore, some other human rule is necessary, the will, surely, of the ruler, or some law drawn up by the authority of the ruler. And although the will of the ruler suffices to some degree when the ruler is wise and the nation is small, yet it is absolutely necessary that the nation, if it is to be ruled rightly, must be ruled by laws, not merely by the will of the ruler. It is clear that in the meantime the will of the ruler suffices, since kingdoms are older than laws. Justinus says that formerly it was customary for the people to be governed by the will of the ruler, without any laws; and from Livy, it is plain that the Republic of Rome was governed for three hundred without any laws.

7 Finally, the first law-giver is either Moses, as Josephus claims against Appio, or certainly Pharoneus, who lived three hundred years before Moses, as Eusebius, and St. Augustine teach. But before the time of Pharoneus, the Kingdoms of Assyria, of Greece, of Egypt, and others, were founded. Moreover, Aristotle states that it is better for a people to be ruled by laws than solely by the will of the ruler, and, indeed, that this is to a certain extent necessary. And this is proved, first, because it is easier to find one or two good and wise men, than to find many. If the State is to be ruled by the will of a wise prince, this would require an infinite number of good princes, one in succession to the other, but if it is ruled by laws, it is sufficient that there should have been at some time a few wise men, or even one wise man, to make the law.

8 Secondly, those who make laws are many, and they consider the laws carefully; but the ruler is only one, and frequently has to judge without due consideration.

9 Thirdly, those who made the laws did so without love or hatred, for they passed judgment concerning things remote from themselves. A ruler judges of present matters in which friends, relations, gifts, fears, etc., have an influence. Hence, judgment by law is the judgment of reason alone; the judgment of a man is a judgment of reason and passion, that is, of the man and of the beast.

10 Fourthly, even if the decision of a ruler be most upright, it is scarcely ever free from suspicion, envy, complaints, and abusive words; but decision by law is free from all these, because, indeed, it is known that the law cannot be corrupted by bribes.

11 Fifthly, legal decisions can remain the same for a long time, but the judgments of men are often changed.

12 Sixthly, government by law can be reduced to a system and the more easily carried out; not so with government according to the will of a man.

13 Seventhly, it is better for a ruler to govern personally than by deputies, but government without laws necessarily requires many deputies, who are all to judge according to the will of the ruler; but when a nation is governed by laws, the ruler is held to judge all cases personally, since judgments are given according to his laws.

14 The third thesis is proved. For if it were not lawful for a Christian ruler to bind the people by law, it would be because of Christian liberty. But this cannot be said, for so far is law from opposing Christian liberty that it rather opposes the slavery contrary to that liberty, as may be shown from the very nature of Christian liberty; for Christian liberty is opposed to the servitude of sin. "Amen, amen, I say unto you: that whosoever committeth sin is the servant of sin. Now the servant abideth not in the house forever; but the son abideth forever. If, therefore, the son shall make you free, you shall be free indeed." And, "Being then freed from sin, we have been made servants of justice." But this justification from sin is said to be a certain liberty, for he who is in sin cannot, until he is freed by grace, will that good which is ordained for eternal life; he has, indeed, free will, since he can choose one evil from among many, and he can even choose moral good, but he cannot choose salutary good unless he at least begins to be freed by the preventing grace of God, since he is held captive by the Devil according to his will, as it is written. But free will liberated by grace can both will and accomplish salutary good. But this liberty was greater in the state of innocence, since then man could not will any evil, which now even just men cannot do; but it will be greatest in heaven, where we shall not be able to will any evil.

15 And so there is a triple gradation of liberty, just as there is a triple gradation of bodily life. The first is that of the Blessed, who, as they will be able so to live that they cannot die, they will be able so to act that they cannot sin.

16 The second was the liberty of Adam and Eve in the state of innocence, who, as they were able so to live that they could never die, so they also were able to act so well that they also could never sin.

17 The third is our own liberty, and we are not able so to live that we can never die, and we are not able to act so uprightly that we are capable of refraining from sin, at least from venial sin. Below these three grades there is no fourth, except not to live, and not to act rightly, which state is that of the damned. Since, therefore, liberty consists in this, that we can choose good and reject evil, it is plain that law is not opposed to liberty; for it is no hindrance that we cannot so easily choose good and reject evil, but, on the contrary, this rather aids, since it affords opportunity for exercising liberty. But the law may be properly said to be opposed to slavery, since it cannot be fulfilled by the slave of sin. Hence, St. Paul says, "Do we, then, destroy the law through faith? God forbid: but we establish the law."

18 This same thesis may be proved in a second way. Divine law is not opposed to liberty, therefore neither is human law. The antecedent is clear, for Adam was created free, and yet a law was imposed on him that he should not eat of the tree of the knowledge of good and evil. The consequent is proved, for the Divine law and the human law, as far as the obligation of obeying them is concerned, are in every respect equal, as will be explained in the next chapter.

Chapter XI

THE CIVIL LAW IS NO LESS BINDING IN CONSCIENCE THAN THE DIVINE LAW

19 Second proposition: The civil law is no less binding in conscience than the Divine law, even though the former is less fixed and stable than the latter. I will explain. The Divine law differs from the human law as to stability, since the Divine cannot be set aside by man, and the human can; but as to obligation they do not differ, for each obliges in conscience, under pain of either mortal or venial sin, according to the gravity of the case, so that there is no better rule for discovering whether a human law binds under pain of mortal or of venial sin, than to suppose that law to be Divine, and to see in what way the Divine law would oblige.

20 First, it is proved, because obligation is the essence or proper characteristic of law as was said in De Pontifice, therefore, all law, whether made by God, by an angel, or by man, and if by man, whether bishop, king, or father, binds with an equal obligation. The consequent is proved in like manner; for since it is of man's essence to be rational, and hence his proper characteristic is risibility, every man is rational and capable of laughter, whether he be created by God alone, as Adam, or by God from another human being, as Eve, or born of human parents, as Cain. The antecedent is evident, for law is the rule of conduct. But the intrinsic property of rules is so to direct that to break a rule is a sin against good conduct; just as a departure from the law of nature is said to be a sin of nature, as are monsters, so a departure from the rule of art is a sin against art.

21 Here it should be noted that just as other things depend upon a cause as regards their existence, but not as regards their essence, for essences are eternal, since they are certain possible participations of the Divine Essence, so also law depends for its existence on the legislator; for it will not be law unless it is promulgated by him who has authority; but it does not depend on him as regards its essence; for the binding force of the law is that in it which is eternal and immutable and a certain participation of the eternal law of God, which is the first and highest rule, and this seems to be what St. Augustine meant when he says: "Sin is a word or deed or a desire against the eternal law of God." For he who disobeys a law, whether natural or political, whether Divine or human, sins against the eternal law, since all law is a participation of the eternal law.

22 And although it cannot happen that any true law is not from God, since a law cannot be made except by one with authority, and there is no authority except from God, yet if (by an impossibility) there were a law not from God, it would still oblige under pain of sin, just as if (by an impossibility) a man not made by God were to exist, he would still be rational.

23 It is proved, secondly, for if a law were to oblige solely because it is Divine, than all Divine laws would oblige equally, as is evident, for the reason for obligation would be the same in all. But this is false, for the law "Thou shalt not kill," obliges more seriously than the law "Thou shalt not steal," and the law "Thou shalt not steal" than the law "Thou shalt not lie," and the law "Thou shalt not lie" than the law "Thou shalt not speak a careless word."

24 Besides, thirdly, obviously that Divine law obliges more gravely whose infraction is more against the end of the law, that is, charity; therefore it is worse to kill than to steal, since it is more against charity; and therefore it is a mortal sin to tell a harmful lie, but a venial sin to tell a helpful one, for the former is against charity, but the latter, truly, is apart from charity; but the human law also has charity as its end, and ordains means to this end, for what St. Paul says, "The end of the commandment is charity," may be understood of every command; and it is clear, since the civil law is just, that it is always either the conclusion or the moral determination of Divine law; therefore they have the same end, and seem to differ only in this, that human law directs human acts in relation to external acts of love, that is, to the peace and preservation of the State. But the Divine law directs also in relation to internal acts of charity; therefore, there is the same principle in both Divine and human law, so far as obligation is concerned.

25 But you will object, if the gravity of sin arises from the nature of the thing and from the relation to charity, laws are superfluous. For the commandment binds us equally before and after the law, to flee that which of its very nature wounds charity, and to do that which is necessary to preserve charity.

26 I answer that I deny the consequent, for if there is no law commanding or prohibiting something for everybody, many actions which are evil in one man will not be evil in others. For example, if there be no law prohibiting the carrying of weapons, the carrying of weapons will be evil for him who is easily provoked to anger, and who has enemies whom he desires to kill; but it will not be evil for a peaceable man, who only desires to defend himself; yet, if the law forbids it, then it is evil for all, for the law should not consider what is good or evil for this one or that one, but what will profit or harm the State.

27 In addition, many things are necessary or harmful to the common good, which, nevertheless, are neither good nor bad for any one in particular, unless they are commanded or prohibited by law. For example, tribute is necessary for a king, yet, if there be no law, it is not necessary for me to pay it, for what I pay profits the king little, and it is not my business to look out for the needs of the State, and so might all say. Similarly, it is harmful for the State for gold to be exported from the province, yet it is not very harmful for me alone to export my gold, and so might all say. Law, therefore, is necessary which commands and prohibits to all in general what is for the common welfare.

28 Fourthly, positive Divine law, therefore, obliges under pain of sin, for it makes that act which it commands an act of virtue, which formerly it was not; for if a Jew, not from contempt, but from a desire for food, had eaten in moderation the flesh of swine prohibited by the law, without doubt he would have sinned; however, he would not have sinned against obedience, since he did not act from contempt, therefore, he would have sinned against temperance; but to eat the flesh of swine in moderation is not in itself against temperance, but, as it were, an indifferent act, therefore there was a law which made that abstinence a necessary act of temperance. And we see this same thing in human law; for the Divine law makes that to be an act of virtue which in itself was indifferent for no other reason than that it is a rule of conduct promulgated by Him Who has authority to command. But man also can command, and can make rules of conduct, as we have shown above. Therefore man can, by law, determine the nature of an act, indifferent in itself, to be an act of virtue, hence the Divine law and the human law are equal as to obligation.

29 Fifthly, the Divine law and the human law differ in the same way as the law of a king and his viceregent, or the law of the Pontiff and of his legate. But these oblige in the same manner, and differ only in strength, therefore, so do the Divine law and the human law. The proposition is evident, because the Scriptures testify in various places that kings are the ministers of God, and hold their authority from Him, and judge in His place. The assumption is also evident, for the authority of the viceregent is from the king, and that of the legate from the Pope; and experience bears witness to the same thing, and it is confirmed by the holy Fathers Augustine and Bernard. Augustine says, "When the father commands that which is not contrary to the law of God, he is to be heard as though he were God, etc." Moreover, it is certain that the authority of a king is greater than that of a father, as the same St. Augustine says. St. Bernard says, "Whether God or a man, the vicar of God, gives some command, certainly both must be submitted to with equal care, obeyed with equal reverence, provided, however, that the man commands nothing contrary to the law of God." Here he clearly states that laws differ in regard to matter, but not in regard to those commanding.

30 But you may object to this, for St. Bernard, speaking in the same place of the commands of men, says "Commands are not disregarded without blame, are not despised without sin, for culpable neglect and contempt are everywhere to be condemned;" here he seems to say that human law never binds under pain of mortal sin except by reason of contempt.

31 I answer that he is speaking of commands concerning light matters, for in such there can be no grave sin except by reason of contempt. For not even prelates can arbitrarily bind under pain of mortal sin.

32 Sixthly, it is proved, since this seems to imply a contradiction, namely, that rulers can bind with a penalty, and not in conscience, inasmuch as fault and punishment are correlative. And St. Augustine says, "All punishment, if just, is a punishment of sin." And he asserts that God Himself would be unjust if He condemned an innocent man. How, then, can rulers condemn to death those who break their laws, if these latter have committed no sin, if they have incurred no blame in conscience?

33 You will say, "How, then, can some of the rules of religious bind penally and not in conscience?" I answer that they do not bind in the manner of law, but in the manner of agreement and contract, as do purely penal laws. Nor is that law properly penal, but the infliction of punishment is to be taken as a spiritual help.

34 Seventhly and last, from the doctrine of the Apostles, for St. Paul asserts this in many ways; first, when he says, "Let every soul be subject to higher powers: for there is no power but from God." Secondly, when he says, "He that resisteth the power resisteth the ordinance of God." Thirdly, when he says, "And they that resist purchase to themselves damnation." Both the Greek and the Latin Fathers interpret this passage as referring to eternal damnation. Fourthly, when he says, "Wherefore be subject of necessity;" fifthly, when he says, "not only for wrath, but also for conscience's sake." Sixthly, when he says, "For they are the ministers of God." And St. Peter says, "Be ye subject . . . . for God's sake," that is, not merely through fear of punishment. These passages show sufficiently what we have in mind: for if rulers have their authority to rule from God, certainly those who do not obey them offend not only the rulers, but also God; and those who resist the ruler resist the ordinance of God; certainly they sin in conscience just as if they were to violate Divine laws. And if those who resist "purchase for themselves damnation," certainly they commit a fault deserving of that punishment. And if individuals are of necessity subject to rulers not only because of their wrath, but also because of conscience, how is it they do not sin in conscience who do not obey these rulers? Finally, if rulers are ministers of God and are to be obeyed on His account, undoubtedly they despise the majesty of God who despise the commands of the rulers. So much for the arguments against us.

35 In answer to the contrary arguments: To the first, second, and third I answer from this fact, that since political power is temporal, and its end is exterior peace, and man does not judge of internal things, it is rightly concluded that this temporal power cannot oblige except to temporal and exterior acts; moreover, it can bind in conscience; for even if that rule directs exterior acts, yet, since it is a rule, to deviate from it is a sin.

36 You may say, how can law, or temporal power, produce a spiritual effect, that is, bind in conscience? I answer, that granted that political power and law are called temporal by reason of their object, since they are concerned with temporal and exterior affairs, yet in themselves they are spiritual. Besides, to bind in conscience is not to produce some spiritual effect, but only to command another, and so to command that if he does not obey, he sins, and the witness of his own conscience knows, or at least is capable of knowing, that he sins. And so whoever can command can bind in conscience, even if he does not judge of internal matters, and does not examine the conscience of another.

37 In answer to the fourth and fifth arguments I say: A ruler cannot inflict eternal and spiritual punishment, nor can he remit a penalty of this sort; yet he can oblige with this penalty, since he does this with the authority of God, Who grants him the one power, and not the other; just as if a king would allow his viceregent to bind his subjects under capital punishment, and yet he would not allow him to exercise justice of himself, or to pardon a suppliant. Or it should be said that political power binds under penalty of eternal punishment not because it is the law of a man, but because it is the law of a minister of God. For he who offends a minister of God at the same time also offends God Himself; therefore if (by an impossibility) God were not manifest in the nature of things, and yet some political law (likewise by an impossibility) were to exist, that law would oblige in conscience, and to disobey it would be a sin, but no spiritual penalty or eternal damnation would befall the one who disobeyed.

38 In answer to the sixth argument I say that it is not absurd that the same sin should be punished by many, and in many places, when many offend, just as we see that often the hand of a murderer is cut off in that place where he committed the murder, and then his head is cut off in the place of public executions.

39 To the seventh I answer that it depends on the intention of the legislator, whether he wishes truly to command and to make a true law, or, indeed, only to indicate what ought to be done, without any command; but if he wishes to command in earnest, and to make a real law, there is nothing in the nature of his power to prevent the law from obliging under pain of sin, either mortal or venial, according to the gravity of the matter.

40 To the last I answer that the reason that human law yields to Divine law when they cannot both be obeyed at the same time, is not that human law does not bind under pain of sin, but that the foundation of human law is less firm; for in such cases it ceases to be law, and hence also to bind.

Chapter XII

TO EXERCISE PUBLIC TRIALS IS NOT UNLAWFUL FOR CHRISTIANS

1 Third proposition: The exercise of public trials is not unlawful for Christians. It is proved, first, because it is the property of rulers to judge. For the Scriptures are accustomed in general to unite the office of king and of judge. "And now let the kings understand, let those be instructed who judge the earth." "The Lord is our King, the Lord our Law-giver, the Lord our Judge." "The king will rule, and he will be wise, and he will give judgment and justice upon the earth." If, then, it is lawful for Christians to have a ruler, why not a judge also?

42 Secondly, because laws would have no potency, if there ought to be no judgments; but laws should not be abolished, as has been shown above, therefore, neither should judgments.

43 Thirdly, the Sacred Writings of both Testaments permit judgments, for we read as follows, "You shall place judges and magistrates at all your gates, that they may judge the people with a just judgment." "If, therefore, you have judgments of things pertaining to this world, set them to judge, who are the most despised in the Church. . . . . Is it not so that there is not among you any one wise man, that is able to judge between his brethren?" Here St. Paul advises the Corinthians to judge among themselves those cases which did not of necessity have to be brought before the tribunals of the Gentiles.

44 Nor will it be hard to answer the argument which was brought forward at the beginning. Hence, according to that statement, "And if a man will contend with thee in judgment, and take away thy coat, let go thy cloak also unto him." I answer with St. Augustine, that that statement should only be understood according to readiness of spirit; for in the same passage Our Lord says, "If one strike thee on thy right cheek, turn to him also the other." And yet when Our Lord Himself was struck on the cheek, He did not turn the other, but said, "Why strikest thou Me?" By this example He taught in what sense the precepts are to be understood.

45 To the words of St. Paul, "There is no fault among you, etc.," I say first, that the "delictum" is in Greek (?), which does not signify sin, but imperfection, and thus Theodoret explains it. I say, secondly, if "delictum" means sin, as St. Chrysostom and St. Ambrose interpret it here, and St. Augustine in his Enchiridion, I say, I repeat, it is called "delictum" not because it is in itself sin, but because it is generally accidentally sinful, either by reason of the end, as when a lawsuit is begun from avarice; or by reason of the manner, as when the case is tried in the spirit of hatred, of ill-will, of dispute; or by reason of injustice, as when trickery and fraud enter in; or by reason of bad example, as happened in the case of the Corinthians, who were going to law to the scandal of the pagans. I say, thirdly, that judgments are not to be condemned because of the judge, but because of the contestants. And so, even if it were a sin to go to law, nevertheless it would not be a sin to judge, for judgments put an end to controversies, which is a good thing.