Introduction
You’ve probably seen it going around. Almost as soon as the COVID-19 pandemic began, Christian commentators, following the right and well-meaning impulse to look to the past for guidance in a seemingly unprecedented time, have invoked a certain quote from Richard Baxter (1615-1691), the famous Puritan author of the Reformed Pastor (1656). The quote in question comes from his Christian Directory (1673).
The full section from which the quote (Question 109) is derived will be featured in Part II of this series, but the portion upon which everyone has focused is as follows: “If the magistrate for a greater good, (as the common safety) forbid church assemblies in a time of pestilence, assault of enemies, or fire, or the like necessity, it is a duty to obey him.”
On first blush, the now-oft-invoked passage seems to justify church closures by state governors, or at least that seems to be the end to which certain commentators are using it. It appears that Baxter is giving a straightforward Romans 13 application. The specific inclusion of “a time of pestilence” as a justifiable reason for magistrate-ordered church closure is obviously why people have been drawn to this part of the Directory. Back in April, Andrew Spencer cited Baxter to this end. Joel Beeke seemed to do the same, although his only comment about Question 109 was that it was “Wise and interesting advice” from Baxter.
Most recently, Brad Littlejohn of the Davenant Institute, a thoughtful and learned scholar of seventeenth century Reformed orthodoxy (Richard Hooker is his bag), included Baxter’s quote, along with a host of other Reformed sources from the late sixteenth and early seventeenth centuries, in a 7,500 word essay arguing (charitably, if forcefully) against John MacArthur’s and Grace Community Church’s protest of California state public health orders which presently disallow indoor worship services.
As stated already, reading the excerpt cited by Littlejohn and others in isolation and with reference to our present situation seems to be a slam dunk. But on a closer reading Baxter, at bare minimum, complicates rather than simplifies the situation for us. That is, the quote does not quite do the work that Littlejohn, Spencer, and Beeke think it does.
This three-part series endeavors to do a few things. Part I begins with an assessment of Question 10 of the Directory in an effort to lay the groundwork for Question 109. Part II will walk through Question 109 itself and other relevant passages from the Directory to shed light on the fuller meaning of Baxter’s advice. Part III, after concluding the survey of the relevant Directory sections, will argue that, contrary to how Question 109 has been employed by others so far, Baxter may provide justification for rather than against MacArthur and GCC’s choice to defy various of California’s public health orders.
This is not an attempt at full rebuttal of Littlejohn or anyone else. Given the sheer breadth of Littlejohn’s article and his evident learning, I do not have the expertise or space here to do so. Plus, as I will return to in Part III, there is much that Littlejohn (as well as Jonathan Leeman) and I agree on. Nor is this series a direct defense of MacArthur and GCC, nor a comment on their ongoing litigation. But hopefully, this series will serve as a model for our use of similar historical sources when attempting to chart a course through sometimes murky— though never as unprecedented as we imagine— ethical waters. The ruckus once again caused by MacArthur, as is his custom, is a welcome sight because it forces Christians to develop their political theology in order to answer questions that they have not, but probably should have, had to previously answer.
The focus in this series will be on Baxter’s thought alone in light of how it has been used of late, that is, in a piecemeal fashion. For instance, Baxter’s quote above must be made sense of in conjunction with what he says later, namely, that if “princes profanely forbid holy assemblies and public worship, either statedly [sic], or as a renunciation of Christ and our religion,” then it is not lawful to obey them. We will return to these quotes again in an attempt to more fully assess it and reconcile the two.
Question & Answer
To really understand Baxter’s advice in Question 109 we must examine it in the context of several questions throughout the Directory that deal, more or less, with the same issue, approached from different angles, viz. the nature and confines of the civil magistrate’s authority in religious affairs. To breach the chronological divide between ourselves and the mid-to-late-seventeenth century, we will have to do a fair bit of leg work, especially here in Part I, to sketch out the confines and import of Baxter’s prescriptions.
Question X
In Question X, Baxter considers a scenario in which the commands of a magistrate and bishop conflict, specifically, in the context of ordaining a pastor. Space does not permit a full summary of Baxter’s political assumptions most obviously presented in his Holy Commonwealth (1659). (I have written elsewhere on the political thought of John Cotton (1585-1652), as articulated in his Discourse About Civil Government (1663), which more or less correspond to Baxter’s beliefs.)
Suffice it to say at this juncture, like most men of his day, Baxter envisioned church and commonwealth as coordinate states, two powers united but unmixed.[1] Though the two, coordinate states had different immediate or “next” ends, they shared the final end of the glory of God. Civil authority, therefore, had broad legislative jurisdiction over nearly all aspects of life, including religious matters. It was the duty of the magistrate to maintain the purity of the church in doctrine and leadership, predominately through dealing out civil punishments for blasphemy, heresy, and idolatry (according to how the church defined those crimes). Indeed, it was, in part, the job of the magistrate to reform the (“corrupted”) church.[2] Hence, Baxter (like Cotton and others) could not conceive of a pluralist society, nor of a purely “secular,” which is to say “civil,” state— a then-emerging opinion for which he ruthlessly denounced Thomas Hobbes (1588-1679) and James Harrington (1611-1677).[3]
Baxter was notoriously intolerant of other religious sects, desired a national church establishment (of course, in accordance with his own eccentric non-conformist specifications), and despised pure or “mere” democracy. But none of these opinions were all that unique back then. John Coffey has convincingly shown that radical toleration was a minority opinion in the seventeenth-century, even amongst Baptists, and that the predominate stance was one of limited toleration for the godly, that is, of differences in church polity and (to some extent) liturgy.[4] But there was no quarter given to heretics (e.g. Socinians and Quakers), idolaters (e.g. Catholics and Jews), or blasphemers (e.g. atheists and Muslims). Even suffrage was limited to orthodox Christians under Baxter’s scheme.[5] Contemporary observers must, therefore, resist walking assumptions acquired after the modern turn in political thought— which Perry Miller locates in the eighteenth century[6]— back into Baxter’s day, as so many Whig historians like A.S.P. Woodhouse have done. With Baxter’s political assumptions in mind, we can return to the inquiry at hand.
The Directory rhetorically asks, What if the magistrate command the people to receive one pastor, and the bishops or ordainers another, which of them must be obeyed?[7] Baxter approaches the question by first delineating the power of the magistrate vis a vis the church, a subject he returns to often. The content of Baxter’s answer to Question X is essential to grasp before moving forward. It is foundational, and the rest of the Directory passages dealing with this topic cannot be approached before understanding Question X.
The magistrate… hath the power and disposal of the circumstantials [sic] or accidents of the church; I mean of the temple, the pulpit, the tithes, &c. And he is to determine what ministers are fit either for his own countenance or toleration, and what not. In these therefore he is to be obeyed before the bishops or others.
When it comes to circumstantial elements or accidents of the church, Baxter is clear, the magistrate has purview over these things.
Importantly, the vocabulary employed by Baxter here, that of “accidents” and “circumstantials,” is significant in this context. Baxter is not plucking these terms out of thin air. Of course, the metaphysical origin of “accidents” lies with Aristotle (i.e. substance and accidents) and that origin is not irrelevant here. But more proximately, discussions regarding temporal power, and specifically human law, had been employing the basic idea alluded to by Baxter in this passage for some time.[8] A brief excursus into the use of these terms in the context of discussing temporal authority is, therefore, necessary.
Franciscus Junius and Girolamo Zanchi on Human Law
In Thesis 7 of his Mosaic Polity (1593), Franciscus Junius (1545-1602) takes up the division of law from Thomas Aquinas, that of eternal, natural, divine, and human.[9] What follows from Junius is more or less a recital of key distinctions of law within the classical legal tradition, the assumptions of which endured well into Baxter’s lifetime. It should be no surprise, therefore, that much of what Junius says mirrors Aquinas’ Treatise on the Law (ST I-II, QQ. 90-108) and other Protestant commentators of the sixteenth and seventeenth centuries.[10]
Describing human law, Junius explains,
The human law is that which humans, proceeding by reason, produce from the preceding laws, accommodated first to common just, honest, useful, and necessary conclusions, then to particular determinations for the condition of persons for whose good it is produced, the things or matters concerning which it is produced, and for the circumstances which occur to them.[11]
Junius then partially recites his earlier definition of law, viz., it is “the ordering of reason to the common good, established by the one who has care of the community.” But he adds that “in this human ordering a special circumscription from three places must especially be sought, namely, the principle, action, and mode of it.”
The principle of human law differs from eternal, divine, and natural law in that it is “not essential to God, as that eternal law; nor is it simply from nature, as that law that we call natural; nor is it from God, as that divine law… but it is from human beings… [who] produce it by proceeding from the common principles of the laws, which we call reason.”[12] Nevertheless, human law remains authoritative if mutable because it is “born from preceding laws, but not as if it were equal with them in immediate principle, authority, and dignity.” This is how Junius makes sense of the particulars (i.e. “determinations”) of the Mosaic law.[13]All human law is a composite of immutable and mutable elements. Insofar as the Mosaic law reflects the natural law and both the general and specific conclusions therefrom, it is immutable. But this does not apply to the human determinations therein that are suited to particular (mutable) circumstances.
Those specific determinations in the law of Moses are mutable, to which one proceeds from unmoved principles and common conclusions according to the mode and condition of those matters subject to the regulation of [human] laws.
Human law can, of course, prove fallible. Its authority is entirely contingent on its right representation of, and connection to, the forms of law that bear a higher principle from which it springs[14]— the eternal law is the immutable archetype of law, in which the divine and natural law participate as ectypes.[15] Everything must ultimately be “ordered according to the form of eternal reason.”[16] Should a law wander form its source it becomes “degenerate, unworthy of the name law.” What is more, since natural law is, like all other law, ordained by God for his own glory and, by extension, the well-being of his creatures, any law that dishonors God or opposes the well-being of his creatures is per se invalid.
The principle (or origin or foundation) of human law is its procession from the higher forms of law in the Thomist four-fold division. It is worth noting that as the hierarchy of law is descended each form is less comprehensive than the last. The natural law, because of its creaturely referent, is less comprehensive than the eternal law; so too is the divine law. Likewise, human laws are less sweeping than the natural law— the most obvious example of this is that the natural law governs internal behavior and affections whereas human laws can attend only to external crimes and duties. Even then, human laws do not govern every external action, nor even every external sin.
But what of human law’s actions? Junius lists two kinds of actions by which human law validly manifests. First, there is the accommodation of the higher principles of natural and divine law (i.e. the eternal law with a creaturely referent and the condescension of eternal law through divine revelation, respectively) to “common just, honest, useful, and necessary conclusions,” drawn therefrom.[17] These conclusions or implications are to flow as a stream from either the innate principles of natural law or the inspired principles of divine law— there is, of course, much overlap between the two.
As Girolamo Zanchi (1516-1590) explained in his On Law in General,[18] human laws (which he calls “political laws”) are necessary because the principles known innately from the natural law are general. It is, therefore, necessary to draw more particular conclusions therefrom.[19] Thereafter, however, said conclusions or implications must be applied in context and real time.[20] Albeit, even these applications may be governed by the jus gentium, the law of nations or “common conclusions.”[21]
Accordingly, the second action of human law, per Junius, is “particular determinations.”[22]
We call determinations that part of human law that circumscribes any of those natural conclusions with specific (as we call it) boundaries, not by the authority of nature, but rather by the judgment of the wisest persons, by the common law of nature specifically accommodated to the mode of individual things.[23]
Determinations must agree with pure conclusions— those things derived from the natural law by good and necessary consequence, to borrow from the Westminster Confession (1646)[24]— of the first action in order to maintain validity within the unbroken chain of the hierarchy of law.[25] It is through these conclusions and subsequent determinations that natural and divine law is effectively applied to human society— the examples of such provided by Junius primarily have to deal with criminalizing certain actions (e.g. murder) based on common principles and then establishing corresponding, proportional punishments.[26]Conclusions or implications have the force of natural law when rightly derived therefrom.
This is why, in days past, jurists of the Anglo-American common law tradition would refer to the common law as the “natural law applied to English [or American] life,”[27] thereby recognizing the classical hierarchy of law, human law’s necessary dependence on natural law for its validity.[28] Human law determinations have not the force of natural law but nevertheless possess legal force if properly promulgated by a rightly appointed authority unto the common good for the sake of enacting and applying pure conclusions from the natural law.[29]
Whereas the natural law, stemming more directly from the eternal law can never be altered, human law, obviously, can and should change on a contextual, for lack of a better word, basis because (per Zanchi) “they are enacted from circumstances of place, time, and personality [and, therefore] cannot be eternal and unchangeable because their circumstances can change.”[30] Though, predictably, Zanchi adds, like Junius, that “Anything that human laws retain from natural law cannot be changed.” Nevertheless, the way in which the natural law is applied must be responsive to particular circumstances.[31]
To review, in Junius’ words (channeling Aquinas[32]), “Determinations customarily arise from conclusions, and conclusions from principles. Principles are either natural, existing from nature, or supernatural, existing from grace. Conclusions are produced by way of reason.” He illustrates this division through a simple hypothetical,
For example, it is a general principle that a human being ought to love his neighbor… It is a general conclusion that a neighbor must not be injured, and that whatever is owed to him must be paid to him, and so forth. A particular or individual conclusion is that Peter, John, and Maevius must not be injured. From this the particular determinations arise that Peter, John, and Maevius must not be injured at all in this or that way, time, or place, and so forth.
Determinations are the province of human laws and have to do with “those minute things pertaining to right action, according to any particular thing that can be contingent for persons, things, and circumstances.”[33] It could be said, then, that determinationsare the particularization of conclusions drawn from natural law principles. Patrick Button, writing at Ius & Iustitium recently on this topic, helpfully provided the example of parking regulations as a particular determinations arising from the principle that the material world must be used justly and according to its proper ends. Being human law, a parking regime is mutable, it can respond to changing circumstances as needed. Hence, determinations can also be conceived as the manifestation of natural law’s responsiveness to the material world and human circumstances through human agents.
Proportionality and Equity
With all of this in the background, Junius adds a qualifier of sorts to the matter of determinations— it is this point that is most relevant to the present discussion. Determinations must be governed by the rule of proportionality. That is, human law determinations via pure conclusions must be proportional to a proper object. In scholastic fashion, Junius breaks down the objects of proportionality into three kinds.
The objects of just proportion exist in three kinds… for the sake of producing specific determinations. For either they are [1] primary objects whose good is seen by natural, divine, and human law; or [2] they are secondary objects that are ordered to the former ones as to their own end; or, [3] finally, they are accidents, by which the previous two objects are commonly clothed in a certain way and change.[34]
Junius further explains the difference between the three objects of determinations and their hierarchical, interconnected structure:
The first kinds are persons, for whose good the laws are produced. The second kinds are things, matters, and deeds, about which the laws are produced. In the third kind are counted as circumstances—first, those that necessarily accompany persons and things ceaselessly, such as time and place, and, second, those that vary through changes and by a perpetual succession, such as mode, causes, instruments, and similar things. For since the condition of all persons, things, and circumstances may change both in themselves and among themselves, equity demanded that those individual things for nature and for the public order ought to be suitably provided for by human law.[35]
Inherent in proportionality is also equity,[36] which Neils Hemmingsen (1513-1600), the Danish protégé of Philip Melanchthon (1497-1560), defined simply as
the suitable application [i.e. determination] of the law to the demands of the situation, in which is seen the law’s will and intention [i.e. the spirit of the law]… or it is the moderating and amendment of the law that comes about from the prudence of the judge accommodating himself to the circumstances of the case, and bending the law to the case, not the case to the law.[37]
Indeed, in the classical tradition, the natural law itself always demands whatever is conducive to the common good and equitable.[38]
The Mutability of Determinations
Much more could be relayed from Junius’ account of the nature and divisions of law. But for the purpose of illuminating Baxter’s use of this common language of accidents and circumstantials relating to human law and temporal authority Junius has been sufficiently mined.
Enlightened by Junius’ commentary, we are now better equipped to examine Baxter’s comment that the magistrate has purview over the “circumstantials” and “accidents” of the church. (“Circumstantials” being those procedures and the like that correspond to the changing circumstances, but Baxter seems to use “circumstantials” and “accidents” interchangeably.) Junius makes clear that civil authorities are empowered to make determinations (applications and specifications) of human law in order to fit them to particular circumstances. Determinations must be agreeable to, and stem from, pure conclusions from the natural (or divine) law in order to be valid. Further, human law determinations must be proportional to the object or end for which they are promulgated and conducive to the common good. Determinations lose validity when they either do not agree with the conclusions (implications) from higher law (thereby disrupting the hierarchy of law) or frustrate the end to which they are directed by disproportionate application of human law.[39] Determinations most especially relate to accidents, that is, the time, place, mode, causes, and instruments of the proper objects of human law.
Looking again to Zanchi we find that these same principles apply to the church vis a vis temporal authority. In Thesis 6 of his chapter on human law, Zanchi distinguishes between human (“political”) laws and the natural law. Whilst the former is derived from the latter the two are not synonymous, as already made clear above. To briefly rehash the primary difference between the two, the natural law cannot be altered but “[h]uman laws, conversely, because they are enacted for circumstances of place, time, and personality, cannot be eternal and unchangeable because their circumstances can change.” Zanchi argues that human laws can be changed either for the sake of improvement thereof, or because not all human laws are “conducive to the same people, communities, or States.”[40]
Context and political conditions change and so too, sometimes, must human laws. Zanchi is also allowing here for differences between geographic and cultural location without compromising the general reliability of the jus gentium, the law held in common by diverse locales. What must govern any potential changes to human law is the integrity of their proper object (i.e. common good and public safety) and pure fealty to their original source (i.e. natural law). So long as those criteria are met, change is permissible and, often, even preferable.
For example, Zanchi suggests (quoting Augustine’s On Free Will at length) that sometimes, in order to preserve public order, peace, and welfare, political polity and electoral processes must be altered. What is essential is not the form of government itself but that the form of government be conducive to the ends of governance and the common good of society. Zanchi says this same principle applies to “church law” as well as “political law,” both being emanations of human law.
Now, what exists in political law must also be done in church law. For this reason, whenever it is more useful for the church that ministers are chosen by the entire body, they should be chosen by it, just as the whole church chose two men whom they placed before the Lord so that he might speak through these men, and just as the entire church chose seven men as deacons in Acts 6:1-6. When, however, this is not feasible, they are chosen by fewer but more mature people as they are by the councils and synods where the method of choosing is also changed, just as we read in the book of Acts that there were some chosen by the apostles to become ministers but confirmed by the entire church. Consequently, it is clear that those who want to maintain one policy are wrong and should not lead the church. These are the reasons why human laws, both political and ecclesiastical, should be changed. However, remember that when human laws are derived from natural law, they are unchangeable.[41]
Zanchi, in this passage, is speaking to the accidents and circumstances of the church that are governed by the ecclesiastical analog to “political” (human) law, which are subject to change. But any change applied must still conform to the requirements already mentioned, viz., it may not violate the natural law, it must be conducive to the common good, and it may not frustrate the ends of the object it is applied to. Like Richard Hooker, Zanchi sees certain elements of church polity as negotiable, as human law. So too did Baxter.[42] So long as said elements aid or further the appointed ends and role of the church they are somewhat malleable.[43]They may change towards improvement, says Zanchi, or they may change in order to meet the needs of a particular context, that is, to preserve the ends, purity of doctrine, and order of the church.[44]
Conclusion
Keeping elements of the classical legal tradition as presented by Junius and Zanchi in mind, we can begin to see what Baxter is saying in Question X of the Directory: that the magistrate may dictate the accidents and circumstantials (but not the substance) of church practice, but those determinations, in order to be valid (i.e. worthy of obedience), must not contradict pure conclusions drawn from the natural law, and the magistrate’s determinations as to the accidents— those things pertaining to the time, place, and conditions— must be proportional to the proper object and end of the thing in focus (i.e. the church, her doctrine, worship, and societal role). Whilst superficial alterations are allowed, determinations by the magistrate cannot substantively frustrate the purpose of the object, and its end, in view—those things are dictated by a higher law (either natural or special) and, therefore, beyond the jurisdiction to alteration by human law.
In Question X, Baxter is preserving the proper role of the civil authority in things of religion, albeit in a limited fashion, as we further shall see. The magistrate is the proper promulgator and enforcer of human law. But human law is limited in its purview and power. The things which the magistrate can dictate to the church, therefore, are limited to that which human law pertains to, viz., the circumstantials and accidents.
Accordingly, “Neither magistrate or bishop… may deny the church or the people any liberty which God in nature, or Christ in the Gospel hath settled on them, as to the reception of their proper pastors.” Obedience to Christ, who is the sole head of all earthly governments, especially of his church, and the ultimate source of all power, always takes precedence. Hence, “If one of them [magistrate or bishop] command the reception of a worthy person, and the other of an intolerable one,” then the choice is clear, “the former must prevail, because obedience to Christ, and care of our souls” is of prime importance, and the ultimate end of both church and state. An unworthy minister or heretic cannot be suffered, as Baxter will explicitly address in later questions covered in Part II.
But in the alternative, if the recommendations of the magistrate and the bishops are equally matched, then the magistrate is to be obeyed because, as Baxter already said, the order has to do with the “circumstantials” or accidents. Elsewhere in the Directory, Baxter adds, “Do not easily go against the magistrate’s commands; unless they be apparently unlawful, and to the church’s detriment or ruin, in the reception of your pastors.”[45]
Armed with the groundwork laid early on in the Directory by Baxter via certain principles and vocabulary of the classical legal tradition, Part II will proceed by examining later questions surrounding Question 109 and thereby further explicate its meaning. Part III will then attempt to bring these insights gleaned from Baxter to bear on our contemporary context and the debate surrounding MacArthur and GCC.
[1] See e.g. Baxter, Holy Commonwealth (1659), Thes. 234 (characterizing the relationship of church and state as that of the intellect and will).
[2] Christian Directory, Q. CVI.
[3] See generally Richard Schlatter, Richard Baxter and Puritan Politics (New Brunswick: Rutgers University Press, 1957), pp. 3-42.
[4] John Coffey, “Puritanism and Liberty Revisited: The Case for Toleration in the English Revolution,” The Historical Journal, 41(4) (Dec., 1998), pp. 961-985.
[5] As it was under John Cotton’s, the defense of which was the occasion for his Discourse originally written to John Davenport to “correct” the latter’s contrary opinion.
[6] Perry Miller, Errand into the Wilderness (Cambridge: Belknap, 1956), pp. 141ff.
[7] The same issue is again addressed in Q. CV.
[8] On Baxter’s use of Aristotle see, David Sytsma, Richard Baxter and the Mechanical Philosophers (New York: Oxford University Press, 2017).
[9] “The highest principle and chief rule of principles… we call the eternal law; the innate principle and rule that is naturally formed in us according to the pattern of the eternal law… we call the natural law; and… a principle added to us by grace… we call the word of God or the divine law, by which God graciously accommodated the proofs of that eternal law to our capacity.” Mosaic Polity, p. 75.
Junius was heavily relied upon by John Cotton in his Discourse About Civil Government, which had much in common with Baxter’s Holy Commonwealth. The Mosaic Polity, in particular, was well-received and went through multiple printings all the way through the 19th century. On the connection between the Dutch and English and Scottish churches in the 17th century, see generally Keith L. Sprunger, Dutch Puritanism: A History of English and Scottish Churches of the Netherlands in the Sixteenth and Seventeenth Centuries (Leiden: brill, 1982).
[10] C.f. Niels Hemmingsen, On the Law of Nature: A Demonstrative Method (1562), E.J. Hutchinson (ed.) (Grand Rapids: CLP Academic, 2018); see also John T. McNeill, “Natural Law in the Teaching of the Reformers,” Journal of Religion, 26(3) (July, 1946), pp. 168-182.
[11] Junius, The Mosaic Polity, Todd M. Rester (trans.), Andrew M. McGinnis (ed.) ([Leiden, 1593] Grand Rapids: CLP Academic, 2015), p. 54.
[12] Mosaic Polity, pp. 54-55. “…that eternal reason, which is also immutable, that exists in God as the founder of the universe… the natural law, by which God adumbrated in nature his own eternal reason… the divine law that he expressed in his word. These three things, as principles of human law, are in a certain sense one principle because eternal reason is one, which both produces the natural law and infuses the divine law.” Mosaic Polity, p. 73.
[13] Mosaic Polity, pp. 98-100, 140-164 (Thes. 22 and Thes. 36).
[14] “… human laws properly speaking are made from conclusions, not from principles. Moreover, the conclusions drawn from those principles are, by force of those principles, just, upright, useful, and necessary, and their laws are accordingly immutable.” Mosaic Polity, p. 85.
[15] “For something derived from a bad and impure source is impure, something derived from an unfavorable and incongruous place is ruinous, and something derived from a bad end and bad counsel is unjust.” Mosaic Polity, p. 75.
[16] Mosaic Polity, p. 76.
[17] “For instance, from the common principle that no one wants to be afflicted by evil, the conclusion is drawn that therefore one must not murder, commit adultery, steal, and so forth.” Mosaic Polity, p. 56.
[18] Operum theologicorum, tome 4, De primi hominis lapsu, de peccato, and de legi Dei (Geneva, 1617). Zanchi’s Operum, and especially On the Law in General, has often been styled as the 16th century Protestant equivalent to Aquinas’ Treatise on the Law within the Summa, I-II, Q.90ff.
[19] Zanchi, On Law in General, Jeffrey J. Veenstra (trans.) and Stephen J. Grabill (ed.), Journal of Markets & Morality, 6(1) (Spring 2013), pp. 305-398, 338; republished in Zanchi, On Law in General, Jeffrey J. Veenstra (trans.) (Grand Rapids: CLP Academic, 2012).
[20] “[A] commandment is derived from some principle of natural law as a later conclusion. For example, it is a principle of natural law that no one should be affected by injury because one should not do to someone else what one does not want done to oneself. From this, wise lawmakers have deduced the laws about not killing anyone, not lying, not sleeping with someone else’s wife, et cetera— that is, later conclusions…. [But] because natural law reveals itself only in general that someone who sins must be punished, wise individuals according to their own senses of justice and fairness apply and define what natural law teaches in general to the different forms of punishment according to the severity of crime.” Zanchi, On Law in General, p. 339.
[21] Zanchi, On Law in General, p. 340. See also Aquinas, ST I-II, Q. 95, Art. 4 (saying that the law of nations is derived from the natural law as a conclusion from principle held in common).
[22] “For example, the punishment could be more or less severe, such as by noose, sword, fire, stoning, fines, and similar things.” Mosaic Polity, p. 56.
[23] Mosaic Polity, pp. 56-57.
[24] Hemmingsen, On the Law of Nature, p. 30 (“… Reason constructs these conclusions from the principles by necessary consequence for the government of human life…”).
[25] “[W]hatever by certain reason has been ordered for the common good by him who has authority, according to the form of that eternal reason, which God adumbrated in nature or expressed in his word, is equally immutable in human decrees and in the judicial decrees of Moses.” Mosaic Polity, p. 71. Junius also determines that each division of law differs in mode from the others. So, “the very thing that the eternal law ordains divinely and most perfectly, the natural law witnesses to according to the mode of nature, and the divine law accommodates to our capacity above the mode of nature.” Mosaic Polity, p. 75.
[26] Baxter allowed for the possibility of further revelation from God but only as “subordinate determination of some undetermined case, or the circumstantiality of an action.” Directory, Q. CLX.
[27] Alan Cromartie, “The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England,” Past & Present 163 (May 1999), pp. 76-120, 327-28.
[28] See also Stuart Banner, “When Christianity Was Part of the Common Law,” Law and History Review, 16(1) (Spring, 1998), pp. 27-62; A.H. Wintersteen, “Christianity and the Common Law,” American Law Register (May, 1890), pp. 273-285.
[29] Zanchi writes that “…all political laws have their origin, as far as their essence is concerned, in natural law.” On Law in General, p. 339. See also Ibid., pp. 347-349 (“Even if human and political laws derive from natural law, there is still some difference between them.”). Though the jus gentiumis fairly or generally stable (i.e. it attests to the universality of the natural law), Zanchi recognizes that context will sometimes necessitate disagreement in human laws from place to place but this nowise permits disagreement as to the natural law from which all human laws, despite contextual discrepancies, derive.
[30] On Law in General, p. 347 (emphasis added).
[31] On Law in General, p. 348.
[32] Summa, I-II, Q. 95, Art. 2.
[33] Mosaic Polity, p. 99.
[34] Mosaic Polity, p. 57 (emphasis added).
[35] Mosaic Polity, p. 57.
[36] See generally Eric Engle, “The History of the General Principle of Proportionality: An Overview,” Dartmouth Law Journal, 19(1) (Winter, 2012).
[37] Hemmingsen, On the Law of Nature, pp. 125-126. Notably, Hemmingsen uses “lex,” a species of the general “ius,” and which likely refers to a written legal decision or legislation. See Todd M. Rester and Andrew M. McGinnis, “Introduction,” in Junius, Mosaic Polity, pp. xix-l.
[38] See Alexander Passerin D’Entreves, Natural Law: An Introduction to Legal Philosophy (Hutchinson & Co., 1951) (commenting on the Corpus Juris Civilis).
[39] “Laws are enacted from natural law for the common good and for the welfare of human beings, and only for as along as they do so do they have the power to obligate.” Zanchi, On Law in General, p. 346.
[40] On Law in General, p. 347.
[41] On Law in General, p. 348.
[42] See e.g. Directory, Q. LVII, “It seemeth to me that the first distribution of churches in the Roman empire… were only determinations of such adjuncts or extrinsic things, and partly by the emperors, and partly by the church’s consent upon the emperor’s permission.”
[43] Zanchi also adds as “definitely not the least important” requirement of human laws that they be “possible.” By this he means “in accordance with both nature and the customs of the people.” On Law in General, p. 349.
[44] See also On Law in General, pp. 349-358 (“On the Traditions of the Church”).
[45] Directory, Q. CV.
