Of the Office of the Magistrate, whether the care of religion pertains to him or not, and whether may make laws and ordinances in cases of religion
The first and greatest thing that ought to be in a magistrate, is easily perceived by the declaration of his office and duty. In yesterday’s sermon I showed you what the magistrate is, how many kinds of magistrates there are, from whom the magistrate had his beginning, for what causes he was ordained, the manner and order to choose peers, and what kind of men should be called to be magistrates. To this let us now add what the office and duty of a magistrate properly is.
The whole office of a magistrate seems to consist in these three points: to order, to judge, and to punish. I mean to speak of every one of these, severally and in order, as they lie. The ordinance of the magistrate is a decree made by him for maintaining religion, honesty, justice, and public peace. And it consists of two points: in rightly ordering matters of religion, and in making good laws for the preservation of honesty, justice, and common peace. But before I come to the determining and ordering of religion, I will briefly, and in few words, handle their question who demand whether the care of religion pertains to the magistrate as part of his office or not? For I see many who are of the opinion that the care and ordering of religion belongs to bishops alone, and that kings, princes, and senators should not meddle with it.
But the catholic verity teaches that the care of religion especially belongs to the magistrate; and that it is not in his power only, but in his office and duty also, to dispose and advance religion.
For among those of old, their kings were priests; I mean, they were masters and overseers of religion. Melchizedek, that holy and wise prince of the Canaanite people, who bore the type or figure of Christ our Lord, is wonderfully commended in the holy scriptures. Now, he was both king and priest together. Moreover, in the book of Numbers, the laws belonging to religion are given up and delivered to Joshua, newly ordained and recently consecrated. The kings of Judah also, and the elect people of God, have obtained very great praise for the well ordering of religion (as I will shortly declare to you by examples). And again, those who were slack in seeing to religion, are noted with the mark of perpetual reproach. Who is ignorant that the magistrate’s especial care ought to be to keep the commonweal in safe guard and prosperity? Undoubtedly, he cannot do this unless he provides for the word of God to be preached to his people, and causes them to be taught the true worship of God — by that means making himself the minister of true religion as it were.
In Leviticus and Deuteronomy, the Lord largely sets down the good prepared for men who are religious and zealous indeed; and He reckons up, on the other side, the evil appointed for the contemners of true religion. But the good magistrate is commanded to retain and keep prosperity among his people, and to repel all kinds of adversity. Let us hear also what the wise man, Solomon, says in his Proverbs: “Godliness and truth preserve the king, and in godliness his seat is held up.” “When the just are multiplied, the people rejoice; and when the wicked rules, the people lament. The king by judgment establishes his dominion, but a tyrant overthrows it. When the wicked increase, iniquity is multiplied, and the just shall see their decay. Where the word of God is not preached, the people decay; but happy is he that keeps the law.” By this we gather that those who would not have the care of religion pertain to princes, seek and usher in the confusion of all things, the dissolution of princes and their people, and lastly, the neglecting and oppression of the poor.
Furthermore, the Lord commands the magistrate to make trial by doctrines, and to kill those who stubbornly teach against the scriptures, and draw the people away from the true God. This is to be seen in the thirteenth chapter of Deuteronomy. Deuteronomy 13.1-5
God also forbade the magistrate to plant groves, or erect images, as seen in the sixteenth chapter of Deuteronomy. Deuteronomy 16.21 And, he insinuated general things by those particulars; forbidding the magistrate to ordain, nourish, and set forth superstition or idolatry — thus, he commanded him to advance true religion. And so it consequently follows that the care of religion belongs to the magistrate. What may be thought of this moreover: that the most excellent princes and friends of God among God’s people, claimed for themselves the care of religion, insofar as they exercised and took charge of it, as if they had been ministers of the holy things? Joshua caused an altar to be built in mount Ebal, and fulfilled all the worship of God, as commanded of God by the mouth of Moses. David, in bringing in and bestowing the ark of God in his place, and in ordering the worship of God, was so diligent that it is a wonder to tell. So likewise was Solomon, David’s son. Nor do I think that any man knows how much Asa, Jehoshaphat, Hezekiah, and Josiah, laboured in the reformation of religion, which in their times was corrupted and utterly defaced. The very heathen kings and princes are praised because, when they knew the truth, they gave out edicts for the confirmation of true religion against blasphemous mouths. Nebuchadnezzar, the Chaldean, the mightiest monarch of the whole world — I doubt any greater and mightier monarch reigned in the world — publishes a decree that whoever spoke reproachfully against the true God that made heaven and earth, should be torn in pieces, and his house made a jakes,. The place is in the third chapter of Daniel’s prophecy. Darius the Mede, the son of Ahasuerus, king Cyrus’ uncle, says: “I have decreed that all men in the whole dominion of my kingdom fear the God of Daniel,” as seen in the sixth chapter of Daniel. Cyrus, king of Persia, looses the Jews from bondage, and charges them to repair the temple, and restore their holy rites again.
Darius Persa, the son of Hystaspes, says: “I have decreed for every man who changes anything of my determination touching the reparation of the temple, and the restoring of the worship of God, that a beam be taken out of his house, and set up, and he be hanged on it, and his house be made a jakes.” Ezra 6.11 The very same Darius again, who was also called Artaxerxes, says: “Whoever will not do the law of your God (Ezra), and the law of the king, let judgment immediately pass upon him, either to death, or to utter rooting out, or to confiscation of his goods, or imprisonment.” Ezra 7.26 All this we find in the book of Ezra.
The men who are persuaded that the care and ordering of religion belongs to bishops alone, make an objection and say that these examples, which I have alleged, do not pertain to us who are Christians, because they are examples of the Jewish people. My answer to them is this: the men of this opinion should prove that the Lord Jesus and his apostles translated the care of religion from the magistrate to bishops alone. They shall never be able to do this. But we, on the other side, will briefly show that those ancient princes of God’s people — Joshua, David, and the rest — were Christians truly and indeed. And therefore, that the examples which are derived from them and applied to Christian princes, both are and ought to be of force and effect among us today. I will in the end also add the prophecy of the prophet Isaiah, whereby it may appear that even now also, kings have the same office in the church today, that those ancient kings had in that congregation which they call the Jewish church. There is no doubt that they ought to be accounted true Christians who, being anointed with the Spirit of Christ, believe in Christ, and are made partakers of Christ in the sacraments. For Christ (if you interpret the word) is the same as saying “anointed.” Christians therefore, according to the etymology of their name, are anointed. That anointing, according to the apostle’s interpretation, 1 John 2.20,27 is the Spirit of God, or the gift of the Holy Ghost. But St. Peter testifies that the Spirit of Christ was in the kings and prophets. 1 Peter 5.11
And Paul affirms flatly, that we have the very same Spirit of faith 2 Cor 4.13 that those of old had; and moreover, we share our sacraments with them, where he says that they were baptized under the cloud, and they all drank of the spiritual rock that followed them, which rock was Christ. 1 Cor 10.24 Since the case is so, truly then, the examples which are derived from the words and works of those ancient kings, for the confirmation of faith and charity, both are and ought to be of force with us. And yet I know that everything does not consequently follow upon the gathering of examples. But for making good our argument, here we have an evident prophecy of Isaiah, who foretells that kings and princes, after the times of Christ and the revealing of the gospel, should have a diligent care of the church, and should by that means become the feeders and nurses of the faithful. Now, it is evident what it means to feed and to nourish; for it is as if he had said that they should be the fathers and mothers of the church. But he could not have said that rightly, if the care of religion did not belong to princes, but to bishops alone. The words of Isaiah are these:
“Behold, I will stretch out my hand to the Gentiles, and set up my standard for the people; 1 and they shall bring your sons in their laps, and your daughters on their shoulders. And kings shall be your nursing fathers, and queens your nursing mothers; they shall fall before you with their faces flat upon the earth, and lick up the dust of your feet,” etc. Isaiah 49.22-23
Shall not we say that all this is fully performed in some Christian princes? Among the first was the holy emperor Constantine who, by calling a general council, determined to establish true and sincere doctrine in the church of Christ, with a settled purpose to utterly root out all false and heretical fantasies and opinions. And when the bishops did not rightly go to work by the true rule and touchstone of the gospel and of charity, he blamed them, upbraiding them with tyrannical cruelty, and declaring with it what peace the Lord had granted by His means to the churches. He added, moreover, that it was a detestable thing if the bishops, forgetting to thank God for his gifts of peace, go on to bait one another with mutual reproaches and taunting libels. Thereby they give wicked idolaters occasion for delight and laughter, when as of duty they should differently handle and treat matters of religion.
For (he says) the books of the evangelists, apostles, and the oracles of the ancient prophets, are those which must instruct us in the understanding of God’s holy law. Let us expel, therefore, this quarrelling strife, and think upon the questions proposed, to resolve them by the words of
scripture inspired from above. After him again, the holy emperors Gratian, Valentinian, and Theodosius, make a decree and give an edict in these very words: “We will and command all people who are subject to our gracious empire, to be of that religion, the very religion taught and conveyed from Peter till now, which declares what the holy apostle Peter taught to the Romans.” And so on. By this, dearly beloved, you perceive how kings and princes among the people of the new Testament, have been the foster-fathers and nourishers of the church — being persuaded that the care of religion first of all and especially belonged to themselves.
The second objection that they make is the leprosy of Uzziah, king of Judah, which he got by claiming for himself the office of the priest, while presuming to burn incense on the incense-altar.
2 Chronicles 26.18-19 They object citing the Lord’s commandment, who had Joshua stand before Eleazar the priest, and charged the king to receive the book of the law from the Levites hands.
But our disputation does not tend to confound the offices and duties of the magistrate and ministers of the church, as if we would have the king preach, baptize, and minister the Lord’s Supper; or the priest, on the other side, sit in the judgment-seat, and give judgment against a murderer, or pronounce sentence in matters in strife. The church of Christ has, and it retains, several and distinguished offices; and God is the God of order, and not of confusion. Our discourse tends to prove to all men, by demonstration, that the magistrate should by duty have a care for religion, either to restore it in ruin, or to preserve it in soundness; and to see that it proceeds according to the rule of the word of God. For the law of God was given into the king’s hands by the priests to this end: that he should not be ignorant of God’s will touching political and ecclesiastical matters; by this law he must govern the whole estate of his entire realm.
Joshua, the captain of God’s people, is set before Eleazar indeed; yet he has authority to command the priests; and being a political governor, he is joined as it were in one body with the ecclesiastical ministers. The political magistrate is commanded to give ear to the ecclesiastical ruler; and the ecclesiastical minister must obey the political governor in all things which the law commands. So then, the magistrate is not made subject by God to the priests as to lords, but as to the ministers of the Lord. The subjection and duty which they owe is to the Lord himself, and His law, to which the priests as well as the princes should be obedient. If the lips of the priest err from the truth, and do not speak the word of God, there is no cause why any of the common sort, much less the prince, should either hearken to, or in one tittle reverence the priest. “The lips of the priest,” says Malachi, “keep knowledge, and they seek the law from his mouth; because he is the messenger of the Lord of hosts.” Malachi 2.7 To refuse to hear such priests is to repel God himself. The godly princes of Israel always aided and assisted such priests as these; they degraded false priests; they sharply rebuked those who neglected their offices; and they made decrees for executing and rightly administering every office.
We read about Solomon, that he removed Abiathar from the priesthood of the Lord 1 Kings 2.27 (that he might fulfil the word of the Lord, which he spoke to Eli in Shiloh), and made Zadok priest in Abiathar’s stead. In the second book of Chronicles it is said: “And Solomon set the sorts of priests to their offices, as David his father had ordered them, and the Levites in their watches, to praise and minister before the priests day by day, as their course required.” 2Chr 8.14 In the same book again, Jehoiada the priest does indeed anoint Joash king; but nevertheless, the king calls the priest and commands him to gather money to repair the temple. 2Chr 24.1-6 Moreover, that religious and excellent prince, Hezekiah, called the priests and Levites and said to them: “Be sanctified, and sanctify the house of the Lord our God, and allow no uncleanness to remain in the sanctuary. My sons, do not be slack now, because the Lord has chosen you to minister to himself.” 2 Chronicles 29.5,11 He also appointed singers in the house of the Lord, and those who should play on musical instruments in the Lord’s temple. Furthermore, king Hezekiah ordained sundry companies of priests and Levites, according to their sundry offices, each one according to his own ministry. What may be said about this too: that he allocated to the priests their portions and stipends throughout the priesthood? The same king gave charge to all the people to keep the feast of Passover holy, writing to them all those letters which priests are prone to write, to put them in mind of religion and hearty repentance. And after all this there is added: “And the king wrought that which was good, right, and just before the Lord his God.” 2 Chronicles 31.20 When princes therefore order religion according to the word of God, they do what pleases the Lord. This and the like is spoken again by the godly prince Josiah. Who therefore will say after this, that the care of religion belongs to bishops alone?
The Christian emperors, following the example of the ancient kings as of their fathers, with great care provided for the state of true religion in the church of Christ. Arcadius and Honorius determined that, so often as matters of religion were called into question, the bishops should be summoned to assemble a council. And before them again, the emperors Gratian, Valentinian, and Theodosius, established a law in which they declared to the world what faith and religion they would have all men receive and retain: namely, the faith and doctrine of St. Peter. They also proclaimed in this edit, that all whose who thought or taught the contrary, were heretics — allowing those alone to be called catholics, who persevered in St. Peter’s faith. By this we gather that the proper office of the priests is to determine in religion by proofs from the word of God; and the prince’s duty is to aid the priests in the advancement and defence of true religion. But if at any time, it happens that the priests are slack in doing their duty, then it is the prince’s office, by compulsion, to enforce the priests to live orderly according to their profession, and to determine in religion according to the word of God.
The emperor Justinian says, in Novellis Constitut. 3, writing to Epiphanius, archbishop of Constantinople: “We have, most reverend patriarch, assigned to your holiness the disposition of all things that are honest, seemly, and agreeable to the rule of holy scriptures, touching the appointing and ordering of sacred bishops and reverend clerics.” And in the seventeenth constitution he says: “We charge and command that no bishop has licence to sell or take away any immovables, whether houses or lands, belonging to the churches.” he wills that they should receive no commodity or stipend of the provincial stewards, but that their revenue should be employed on the church’s necessities. In the hundred and twenty-third constitution, the lieutenants of every province are commanded to assemble a council for the use and defence of ecclesiastical laws, if the bishops are slack in looking after it. And immediately after he says: “We utterly forbid all bishops, prelates, and clerics, of whatever degree, to play at tables, to keep company with dice-players, to be onlookers of gamesters, or to run to gaze at maygames or pageants.” I do not allege all this as canonical scriptures, but as proofs to declare that princes in the primitive church had power, official authority, and a usual custom, granted by God (as Isaiah prophesied) and derived from the examples of ancient kings, to command bishops, and to determine about religion in the church of Christ.
As for those who object that it is the church’s privilege, let them know that it is not permitted to any prince, nor any mortal man, to grant privileges contrary to the express commandments and very truth of God’s word. St. Paul affirmed that he had power given to him to edify, but not to destroy. 2 Corinthians 13.10 I can be briefer here, because I will not stop to prove that those who do not properly act as priests and Christ’s ministers, are unworthy of indifferent privileges; rather, they are soldiers and wicked knaves, full of all kinds of mischief. Among other things in the canon law, Distinct. 40, we find this written:
See to yourselves, brethren, how you sit upon the seat: for the seat does not make the priest, but the priest makes the seat: the place does not sanctify the man, but the man sanctifies the place. Every priest is not a holy man, but every holy man is a priest. He that sits well upon the seat, receives the honour of the seat: but he that sits ill upon the seat, does injury to the seat. Therefore, an evil priest gets blame by his priesthood, and not any dignity.Corp. Jur. Can. Decret. I. Pars. Distinct. 40. xii. Joan. Chrysost. id est, Autor. Op. Imperf. in Mat Hom. 43. ad c. 23. ed. Par. 1687. p. 54
Thus much touching this matter.
Since I have now declared to you, dearly beloved, that the care of religion belongs to the magistrate too, and not to the bishops alone, and that the magistrate may also make laws in cases of religion, it is requisite that I inquire what kind of laws those are that the magistrates may make in matters of religion. There is no reason why the king or magistrate should suppose that power is given to him to make new laws touching God, the worship of God, or his holy mysteries; nor to appoint a new kind of true justice and goodness.
For just as every magistrate is ordained by God, and is God’s minister, so he must be ruled by God, and be obedient to God’s holy word and commandment, having ever more an eye to that, and still depending on that alone. The scripture, which is the word of God, abundantly enough sets down all that is proper to true religion — indeed, the Lord flatly forbids adding to or taking anything from his holy word. The magistrate therefore makes no new laws touching God, and the honour to be given to God; rather, he religiously receives and keeps, puts in use and publishes, those ancient laws in that kingdom which God has allotted to him. For giving the book of God’s law to the kings of Israel pertains to this: that they might thereby learn the way to do the things which of duty they ought to see done. The Lord says to Joshua:
See that you observe and do according to all the law that Moses my servant commanded you. You shall not turn from it either to the right hand or to the left. Neither shall the book of this law depart out of your mouth, but occupy your mind in it day and night, that you may observe and do according to all that is written in it. For then you shall make your way prosperous, and then you shall do wisely.Joshua 1.7-8
Devout and holy princes therefore endeavoured faithfully and diligently to cause the word of God to be preached to the people, and to retain and preserve among the people the laws, ceremonies, and statutes of God. Indeed, they did their best to spread it to all men as far as they could, and as time and place required, to apply it holily to states and persons. On the other side, they were not slack to banish and drive away false doctrine, and the profane worshipping of God, and blasphemies of His name; but they settled themselves to utterly overthrow and root it out forever. In this way (I say), godly magistrates made and ordained devout laws for the maintenance of religion. In this way, they bore a godly and devout care for matters of religion.
The cities which the Levites possessed, from of old were the schools of Israel. Now Joshua appointed those cities for studies’ sake, and for the cause of godliness. King Hezekiah was no less careful for the revenue and sure payment of the ministers’ stipends, than he was for restoring and renewing every office.
For honour and advancement makes learning flourish, while need and necessity drive men to seek various shifts. Beggary puts religion up for sale, and much more the invented lies of men’s own mouths. Jehoshaphat sends senators and other officers with the priests and teachers throughout his kingdom. 2 Chronicles 17.79 For his desire was, by all means possible, to have God’s word preached with authority and certain majesty; and being preached, to have it defended and put in use to produce good works. King Josiah destroys the false priests that were to be found, together with idolatry and profane worship of God, putting in their place the true teachers of God’s word, and restoring again sincere religion — even as king Joash also, having rebuked the Levites, repaired the decayed buildings of the holy temple. I am not able to run through all the scriptures, and repeat all the examples expressed in them. Let the godly prince or magistrate learn by these few, what and how he ought to determine touching laws for religion.
On the other side, Ahijah the Shilonite 1 Kings 11.29-33 says to Jeroboam:
Thus says the Lord: you shall reign according to all that your soul desires, and shall be king over Israel. And if you hearken to all that I command you, and will walk in my ways, and do what is right in my sight, if you keep my statutes and my commandments, as David my servant did; then I will be with you, and build you a sure house.1 Kings 11.38
But the wretch despised those large promises, and rejected God’s word, his temple at Jerusalem, and his lawful worship. He also refused the Levites. Instead, he made priests of the dregs and rascal sort of people; he built himself new temples, which he decked — no, rather which he disgraced — with images and idols, ordaining and offering sacrifices not taught in God’s word. And by that means, he invented a certain new kind of worshipping God and a new manner of religion. Although his desire was to seem to be willing to worship God, yet he is condemned by God as a wicked man. Hearken, I pray, to the sentence of the Lord, which he denounces against him:
“You have done evil,” says Ahijah, as the Lord taught him, “above all that were before you. For you have gone and made yourself other gods and molten images to provoke me, and you have cast me behind your back. Therefore I will bring evil upon the house of Jeroboam, and will root out from Jeroboam even the one that pisses against the wall, and the one who is in prison and forsaken in Israel; and I will take away the remnant of the house of Jeroboam, as one carries away dung, till all is gone.1 Kings 14.9-10
And all these things were fulfilled according to the saying of the Lord, as the scripture witnesses in these words: “When Baasha was king, he struck all the house of Jeroboam, and left nothing that breathed of that which was Jeroboam’s.” 1 Kings 15.29 But the very same king, being no better or wiser by another’s mishap, nor by the miserable example of his predecessor, does not hesitate to continue to teach the people what Jeroboam had begun: to publish and defend the strange and foreign religion, contrary to the word of God. But what followed from this? In truth, the Lord says to him by the preaching of Hanani the prophet:
Because I exalted you out of the dust, and made you prince over my people Israel, and you have walked in the way of Jeroboam, and have made my people Israel to sin, to anger me with their sins; behold, I will root out the posterity of Baasha, and the posterity of his house, and will make your house like the house of Jeroboam.1 Kings 16.2
This was performed (as the scripture says) by Simri, captain of the host of Israel. For he destroyed king Elah, the son of Baasha, when he was drunk, and all his posterity.1 Amri succeeded in the kingdom, who was the father if Ahab, that mischievous cut-throat whom the Syrians slew in fighting a battle. 1 Kings 22.34 After him reigned his sons Ahaziah and Joram. But when they left the religion taught in the word of God, to follow the new tradition of king Jeroboam, and added to this the worship of the shameful idol Baal, they were utterly (at last) destroyed by means of Jehu, a very just, though rigorous prince. The offspring of Amri reigned about forty years, and not without shedding much innocent blood. But their reign was destroyed at last when the measure of iniquity was fulfilled — utterly torn out by the roots by the just judgment of Almighty God.
Let all princes and magistrates therefore learn by these wonderful and terrible examples, to take heed to themselves how they devise any new religion, or alter the lawful and ancient manner of worshipping, which God himself has ordained already. Our faithful Lord is our good God, who has fully, simply, and absolutely set down in his word his true religion and lawful kind of worship, which he has taught all men to keep alone and forevermore. Let all men therefore cling fast to it, and let them die in defence of it, who mean to live eternally. Whoever adds to, or takes away anything from, the religion and kind of worship first ordained and appointed by God, are punished from above. Mark this, you great men and princes of authority. For keeping or not keeping true religion is the root from which abundant fruit of felicity, or else utter unhappiness, springs and buds out. Therefore, he that has ears to hear, let him hear. Let no man allow himself to be seduced and carried away with any coloured intent, however good it is to the eye, which is indeed a mere vanity and detestable iniquity. To God, obedience is much more acceptable than sacrifices. Nor do the decrees of the Highest need any bit of our fond additions.
Now follows the second part of the magistrates’ ordinance, which consists in making good laws for the preservation of honesty, justice, and public peace; this is likewise accomplished in good and upright laws. But there are some who think it is mere tyranny to lay laws on free men’s backs, as if it were a yoke upon necks that were not used to labour — supposing that everyone would rather be left to his own will and discretion. The apostle indeed said, “The law is not given for the just, but for the unjust.” 1 Timothy 1.9 But the reason why the law is not given to the just, is because he is just. For the just man works justice, and of his own accord he does the thing which the law exacts from every mortal man. This is why the law is not troublesome to the just man, because it is agreeable to the mind and thoughts of those who live upright, who embrace it with all their hearts. But the unjust desires nothing more than to live as he lusts. He is not conformable in any point to the law, and therefore he must be suppressed by the law, and bridled from marring himself and hurting others.
So then, since the laws are not a troublesome burden but an acceptable pleasure to good men, and also necessary for the unjust, as ordained for bridling lawless and unruly people — it consequently follows that laws are good and profitable for all men, and not to be rejected by any man. What may be said moreover about this? That God himself foresaw our disposition, what we would become, and yet He still favoured the true liberty which he desired to always preserve among his people. He ever meant them good, and never ordained the thing that would lead to their hindrance or discommodity. God himself (I say) was their lawgiver. He has not allowed any age, at any time, to live as lawless people. Indeed too, those commonweals have always been happy, which have admitted laws, and submitted themselves to be governed by those laws. Contrarily, those kingdoms have been most miserable of all others, and been torn in pieces by civil dissensions and foreign enemies, which have banished upright laws. They strived to maintain their own kind of freedom, their uncontrolled dealing and licentious liberty — that is, their beastly lust and uncivil rudeness. Good laws, therefore, are for the health and preservation of the people, and they are necessary for the peace and safeguard of commonweals and kingdoms.
This is why it is a wonder to see the folly of some Christians, since the heathens have given so honest a report about laws and lawgivers. They took their lawgivers for gods, confessing thereby that good laws are the gift of God. But the gift of God cannot be superfluous and unprofitable. Plutarch called laws the life of cities. Demosthenes expressly confessed that laws are the gifts of God. Cicero named laws the bonds of the city (because without laws, it is loosed and dispersed), the foundation of liberty, and the well-spring of justice and perfect honesty.
For laws undoubtedly are the strongest sinews of the commonweal, and the life of the magistrates. So that, the magistrates cannot conveniently live and rule the public welfare without the laws; nor can the laws display their strength and living force without the magistrates. The magistrate therefore is the living law, and the law is the silent magistrate.6 By executing and applying the law, the law is made to live and speak. Those princes do not consider this, who are prone to say, Wir sind das recht, “We are the right, we are the law.” For they suppose that, at their pleasure, they may command whatever they wish, and all men must accept it by and by as the law. But that kind of ruling, without any doubt, is extreme tyranny. This saying of the poet is very well known, which represents the very words of a tyrant:
I say, and it shall be so;
My lust shall be the law.Juv. Sat. vi. 223. P.
The prince, indeed, is the living law, if his mind obeys the written laws, and does not depart from the law of nature. Power and authority, therefore, is subject to laws. For unless the prince in his heart agrees with the law, in his breast writes the law, and in his words and deeds expresses the law, he is not worthy to be called a good man, much less a prince. Again, good princes and magistrates have power over the law, and are masters of the laws — not that they may turn, put out, undo, make and unmake, laws as they wish, at their pleasure; but because they may put them into practice among the people, apply them to the necessity of the state, and temper their interpretation to the meaning of the Maker.
Therefore, they are deceived as far as heaven is wide, who think that for a few privileges, granted by emperors and kings to the magistrate, to add, diminish, or change some point of law, that they may therefore utterly abolish good laws, and live against all law and seemliness.
For, just as no emperors or kings are permitted to grant any privileges contrary to justice, goodness, and honesty, so if they grant any such privilege, it should not be received or taken by good subjects, as a good turn or benefit. Rather, it is to be considered (as it is indeed) their utter destruction and clean overthrow. Among all men, at all times and in all ages, the meaning and substance of the laws touching honesty, justice, and public peace, is kept inviolable. If change is made, it is according to circumstances, and the law is interpreted as the case requires, according to justice and a good end. The law says, “Let no man kill another: let him that kills another be killed himself.” That law remains forever unchangeable; nor is it lawful for any man at any time to put it aside or wipe it away. And yet the rigour of the law may be diminished, and the law itself may be favourably interpreted. Take, for example, a man who kills someone he loves entirely well, and he kills him by chance, and not from a set purpose or pretended malice. Thus, when he has done this, he is sorry for it at the very heart, and he would (if it were possible) buy his life back with whatever he has to give for it. In such a case the killer should not be killed, and in this the magistrate may dispense with the rigour of the law. Say another bears a deadly and continual grudge towards someone, whom he kills, and goes about colouring the matter under the pretence of a mishap or misfortune — for he sought an occasion to provide himself with a show of chancemedley. In such a case as this, the magistrate cannot change any jot of the law, but must kill the one whom the meaning of the law commands to kill. I could allege more examples like these; but my care, on purpose, is to say only so much as I may, and not be too tedious to you with too long a discourse. By what I have spoken, it is evident that laws are good and not to be broken, and how far they should allow the prince’s epiekeian, that is, the prince’s moderation, interpretation, limitation, or dispensation, lest perhaps that old and customary proverb be rightly applied to them: “Law with extremity is extreme injury.”
Up to here I have declared that laws are good, profitable, necessary, and not to be broken. It remains now to tell which and what kind of laws the magistrate should chiefly use for ordering and maintaining honesty, justice, and public peace, according to his office. There are some whose opinion is that the magistrate should not use any written laws, but that he should rather give sentence as he thinks best according to natural equity, as the circumstances of place, time, persons, and cases seem to require. There are some others who endeavour to thrust the judicial laws of Moses into all kingdoms and commonweals. And there are some who, having rejected the law of Moses, would have no judgment given in law, except what is derived out of the laws of heathen princes. But those who have pre-eminence and the magistrate’s authority are either good men or bad; and even in the best men, covetousness, anger, hatred, favour, grief, fear, and other affections, are rife. Therefore, having rejected all written statutes and certain laws, and having a magistrate give judgment as he thinks best, to whom I pray you, have they committed the commonweal? Have they not committed it to the rule of a beast? But what shall I say then of evil men who are in authority, since things are so amiss in the best men? A kingdom subject to the furies of hell, would be as good as one bound to the judgments of naughty men. But we will (they say) have them give judgment according to the equity of nature’s law, and not according to the lust of their corrupt affections. My answer is that, without control, they will give judgment as affection leads them, and claim that they judged by natural equity. They will say that they cannot judge otherwise, nor otherwise understand the pith of the matter. They think that what they have determined is best, and that nothing is done contrary to conscience. And for your labour, you shall be called Coram nobis for daring to find fault with their sentence in judgment.
And so the just man will perish, barbarous affections will have the upper hand, and naughty men will rule the roost. Yes, and even if we grant that all men who are called to be magistrates are good, yet the diversity of opinions that will rise in giving judgment, will stir endless brawls and continual troubles among them. If all things, therefore, are well considered, the best way by far is to put written laws into use.
Let us learn this by the example of our eternal, wise, excellent, and mighty God, who gave to the Jews, his peculiar people, such laws as at his commandment were set down in writing. The magistrate has otherwise business enough to judge, that is, to apply and confer the causes with the laws; to see how far and wherein they agree or disagree; and to judge who has offended against the law, and who have not transgressed the law.
Now it is to be marked, that in Moses’ judicial law there are many things proper and peculiar to the Jewish nation, and so ordained according to the state of the place, time, and persons, that if we were to apply and thrust them all upon other nations, we would seem to show ourselves more than half mad. And to what end should we bring back and set up again among the people of God the offscourings of the heathen that were cast out a great while ago? The apostles of our Lord Jesus Christ bound or burdened no man with the laws of Moses; they never condemned good laws of the heathens, nor commended naughty laws of the Gentiles to any man. But they left the laws, with the use and free choice of them, for the saints to use as they thought good. But with this, they did not cease most diligently to beat into all men’s heads the fear of God, faith, charity, justice, and temperance; because they knew that those in whose hearts those virtues were settled, can either easily make good laws themselves, or pick and choose the best of those which other men make. For it makes no matter whether the magistrate picks for him and his countrymen Jewish laws out of Moses, or sufficient laws out of the allowable laws of the heathen, or else keeps the old and accustomed laws which have been used before in his country — so long as he has an eye to cut off those wicked, unjust, and lawless laws, which are found among the better sort.
For I suppose that upright magistrates should remove curiosity and newly invented novelties. “Seldom,” says the proverb, “is the crow’s eye picked out without troublesome stirs.” And curious men’s new laws are for the most part worse than the old that are broken by them and utterly abolished.
Furthermore, all laws are given for ordering religion or the outward worship of God, or else for the outward conversation of life and civil behaviour. Touching the laws of religion, I have spoken of them before. For civil and political laws I add this much, and say that those seem to be the best laws which, according to the circumstance of every place, person, state, and time, come nearest to the precepts of the Ten Commandments and the rule of charity — not having in them any spot of iniquity, licentious liberty, or shameless dishonesty. Let them, moreover, be brief and short, not stretched out beyond measure, and wrapped in with many expositions. Let them have a full respect to the matter to which they are directed, and not be frivolous and of no effect.
Now, mark that political laws for the most part consist in three especial and principal points: honesty, justice, and peace. Let laws therefore tend to this end, that discipline and honesty may be planted and maintained in the commonweal, and that no unseemly, licentious, and filthy act be committed there. Let the law forbid all uncleanness, wantonness, frivolity, sensuality, and riotousness, in apparel, in building, in bibbing and banqueting. Let wedlock be commanded by law to be kept holy. Let stews and brothel-houses be banished from the realm. Let adulteries, whoredoms, rapes, and incests, be exiled. Let moderate feastings be allowed and admitted. Let thriftiness be used, which is the greatest revenue that a man can enjoy. Briefly, whatever is contrary to honesty and seemliness, let it be driven out and rejected by law.
Let justice be strongly fortified by laws. Let it be provided by laws, that neither citizen nor foreigner be hurt or hindered in fame, goods, body, or life.
Let upright laws be made for obtaining legacies and inheritances, for performing contracts and bargains, for covenants and agreements, for suretyships, for buying and selling, for weights and measures, for leases and things let for hire, for lending and borrowing, for pawns in mortgage, for use, commodity, and usury of money. Let order be taken for maintaining peace between the father and his children, between man and wife, between the master and the servant — and, to be short, that every man may have his own. For my meaning here is not to reckon up particularly every separate point and tittle of the law.
Lastly, means must be made by giving laws, that peace may be established, whereby every man may enjoy his own. All violent robberies and injuries must be expelled; private grudges and close conspiracies must not be thought of. And war must be quieted by wisdom, or else undertaken and finished with manly fortitude.
But that we may have such a magistrate and such a life, the apostle commanded us earnestly to pray, where he says: “I exhort you that, first of all, prayers, supplications, intercessions, and giving of thanks, be made for all men; for kings and for all that are in authority, that we may live a quiet and peaceable life in all godliness and honesty.” 1Tim 2.1-2
I am now again compelled to end my Sermon before the matter is finished. That which remains I will add tomorrow. Make your earnest prayers, with your minds lift up into heaven, etc.