On the Civil Magistrate’s Just Authority for Restraining the Congregating of Citizens, even the Church, and Quarantining, with Sufficient Natural Warrant

“For rulers are not a terror to good works, but to the evil.  Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:  For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.”

Rom. 13:3-4

“Knowing this, that the law is not made for a righteous man, but for the lawless and disobedient, for the ungodly and for sinners, for unholy and profane…”

1 Tim. 1:9

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Subsections

The Magistrate’s Authority Around Spiritual Things (circa sacra)

Contra Libertarianism

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Order of Contents

On Quarantining
On Civilly Restraining the Assembling of Persons
That the Church is Subject to Legitimate Civil Law
On Restraining Church Assemblies with Sufficient, Natural, Civil Warrant
That the Magistrate cannot Restrain Church Assemblies without Sufficient, Natural Civil, Warrant
On the Restraints of the Church in Civil Matters
On the Magistrate’s Power Regarding the Place of Public Preaching
On the Church’s Right to its Own External Government in Sacra
On the Authority of the Civil Magistrate to Punish the Church which Errs in Natural Matters & Evident Truth
On the Right of the Magistrate to Punish those who Publish Dangerous Opinions Contrary to the Light of Nature & the Settled Doctrines of the Church
On Extraordinary Civil Power in Extraordinary Circumstances

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On Quarantining Infectious Persons from Harming Others

Quotes

James Balmford

Balmford (1556- after 1623) was an English minister at Southwark who appears to have been presbyterian, as he affirmed the office of ruling elders (pp. 22-23), unlike episcopal Anglicans.

A Short Dialogue Concerning the Plague’s Infection, Published to Preserve Blood through the Blessing of God  (London, 1603), p. 10

“Professor [Layman]

“…that which I know doth most trouble most men, especially of the poorer sort.  To wit, they think it most extreme cruelty, to be barred from going abroad to seek relief or maintenance
for them and theirs, except they either had sufficient of their own, or their wants [needs] were supplied.

Preacher

I am of the same mind: for lepers might go abroad to seek relief: but yet in such sort, as has been showed.  And so I could wish that our infected poor, since they must needs go abroad,
wold remember the ten lepers, how they stood afar off, and lift up their voice, when they craved help of our Savior (Lk. 17:12-13): so they would go abroad in such sort as authority directs: to wit, out of the most frequented way, and with a rod in their hand.

I say with grief (must needs) for if authority had regarded these things betimes, when there were but few infected houses, they might have been well shut up and provided for, till they were cleansed, either of their own, or the common charges.  But what say you to those, who are not so poor, but that they may keep their houses at their own charges, till
they be cleansed?

Professor

They think it an hell to be so long shut up from company and their business: the neglecting whereof is the decay of their state.

Preacher

Indeed this impatiency is the cause why so many smother the
plague in themselves and their families, so long as they can, to the hazarding of life: but I advise them to consider the resolution of Paul, which was, never to eat flesh rather than he would offend his brother (1 Cor. 8:3): much more ought they patiently to endure a little restraint and loss, rather than to endanger the life of many (Gen. 4:10).  O blood is a grievous and crying sin! (Ps. 51:14) and therefore David would not drink the water of the well of Bethlehem though he longed for it, because it was gotten with the jeopardy of lives, but called it blood (2 Sam. 23:15-17).  Let them believe that God is able to give them more than they loose by following his direction.  Let them know what this is: ‘I will have mercy, and not sacrifice.’ (Hos. 6:6)  Let them show their faith by patience. (Rom. 8:25)  ‘For he that believeth, maketh no haste’, (Isa. 28:16 being assured of God’s promise: that in quietness and confidence shall be their strength (Isa. 30:15).  Let them imitate Moses and Aaron, who were as hasty in behalf of their sister Miriam, but yet were persuaded by God to shut her out of the host seven days (Num. 12:12 ff.).  Thus much for these goers abroad. (Eze. 34:2,8)”

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James Durham

Durham is speaking of the civil magistrate’s right and responsibility to use his authority and force to restrain spiritual seducers and deluders.

The Dying Man’s Testament to the Church of Scotland, or, A Treatise Concerning Scandal... (Edinburgh, 1659), p. 255

“Nor is it the restraining of him [a spiritual seducer] from personal liberty because of it [his false opinion]; but, because he doth not, nor will not use his personal liberty without prejudice to the whole body, which is to be preferred to him: even as a man, infected with the pestilence, ought justly to be restrained, though against his will; yet cannot that be accounted a restraint of just liberty; for, it is no just liberty to have liberty to hurt others.”

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On Restraining the Assembling of Persons

Quote

Baxter, Richard – on ommitting assemblies by magistrate

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That the Church is Subject to Legitimate Civil Law

Samuel Rutherford

The Due Right of Presbyteries (1644), Appendix, pp. 454-5

“We do not teach that Church-men are loosed from the positive laws of emperors and kings.  Bellarmine [a Papal apologist] says that the magistrate can neither punish Church-men, nor convene them before the tribunal; so [Pope] Innocentius the third, says the empire is not above the Pope, but the Pope is above the empire…  And what they allege for Peter’s exemption from paying tribute, will exime [exempt] all the disciples, and so all Church-men by divine right from the laws of princes.  Yea all Clergy-men (say they [Papists]) by a divine positive law are eximed from the laws of magistrates.  So says Suarez, Bellarmine, and the [??] of Rheimes, but with neither conscience, nor reason.  And contrary to their own practice and doctrine:

For Paul will have every soul subject to superior powers, and except the Roman Clergy want [lack] souls, they must also be subject.  Solomon punished Abiathar, Josiah burnt the bones of the priests upon the altar, Christ subjected himself to his parents, payed tribute to Caesar, and commanded scribes and pharisees to do the like, Mt. 22, willing that they should give to Caesar those things which are Caesar’s.  Paul appealed to Caesar’s tribunal, and Rom. 13, as many as may do evil [unqualified], as many as are in danger of resisting the power, are to be subject. Rom. 13:4; but Church-men are such, therefore they are subject.”

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On Restraining Church Assemblies with Sufficient, Natural, Civil Warrant

James Balmford

Balmford (1556- after 1623) was an English minister at Southwark.  He disputed with Thomas Gataker about casting lots.

A Short Dialogue Concerning the Plague’s Infection, Published to Preserve Blood through the Blessing of God  (London, 1603), pp. 5-8, 11-13

“Preacher:

…But I will show you by the word of God, that princes both may and ought keep from assemblies, such as be no less dangerous to them, than one scabbed sheep is to an whole flock, and restrain the whole and sound from unnecessary running into eminent danger….

Kings and queens ought to be nursing fathers and nursing mothers to the Church (Isa. 49:23), so as that God’s people may lead a quiet and a peaceable life, in all godliness and honesty (1 Tim. 2:2).  But this is an honest thing before God and men, that kings should (out of a fatherly care) preserve their subjects from destruction, by infection, as well as by the sword (2 Sam. 24:17; 19:9).  As David was no less careful for his people when the pestilence raged, than valiant in defending them against their enemies.

Again, what other thing do sundry laws and customs of Israel teach us?  Priests were forbidden to drink wine or strong drink, that they might put difference between the clean and unclean (Lev. 10:9-10): that every leper and every one that had an issue, and whosoever is defiled by the dead, should be put out of the host (Num. 5:2,45,57): that garments and houses defiled by leprosy (Lev. 13:45,57,14), should be destroyed: that every one to do the work of nature [defecate], should go out of the host (Dt. 23:12-13): and that the dead were buried out of the city (Lk. 7:12).

What (I say) do these laws and customs (well considered)
teach us in their equity, but that God’s people should be carefully preserved from filthiness and contagion?  Let us
a little better consider the laws of lepers, as most nearly concerning us, and we shall find that they were not only to have marks to be known by, but also to give warning to company approaching, by saying: ‘I am unclean, I am unclean’ (Lev. 13:45).  Whereby it is evident, that lepers should shun other, and other should shun them. And it is as evident, that they were not to come into the house of God (2 Chron. 26:20-21).  For a king being a leper, was kept out thereof all the days of his life.  Much more may Moses (a magistrate) shut out Miriam (though his sister) of the host for seven days (Num. 12:10,14).

But the plague is more dangerously contagious being mortal, then the leprosy which is not mortal [as is evident in many cases in the Scripture testimonies to the ‘leprosy’ described therein]: therefore princes and magistrates (which are called shepherds, Eze. 34:2,8) may and ought to be very careful, to keep the sound from the infected, and the infected from the sound, especially in assemblies.  As the shepherd is careful to keep scabbed sheep from his flock, and his flock from scabbed sheep.

…touching the comfort of soul, which they desire by coming to Church.  I pray them examine what true comfort they
can have when they consider that they are more dangerous than they who go abroad.  For in the Church they sit by it,
and that in a throng and heat: whereas if they humble themselves under God’s hand, and tarry at home, though taking it as a part of their cross that they keep so long from the Church; I doubt not but that they shall find God (who turns
his children’s bed in time of sickness, Ps. 41:3) as a sanctuary to them.

And this I further say, that he rather is in the assembly of saints, who is there in spirit, though absent in body (Eze. 11:16; 1 Cor. 5:4); than he that is present in body, but absent in spirit (Isa. 29:13).

Professor [Layman]

All this (as I understand) concerns such as being infected themselves, do yet come to Church.  But what say you to those who have spacious houses, so as they come not near the sick of their family, and be sound themselves: may not they come to Church as well as those, between whom and the infected there is but a wall?

Preacher

They may, as I am persuaded, but all things are not expedient
which are lawful (1 Cor. 10:23-24)…”

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Samuel Rutherford

A Survey of the Survey of that Sum of Church Discipline Penned by Mr. Thomas Hooker…  (London, 1658), bk. 4, ch. 12, ‘Of the Magistrate’s Power in Convocating Synods’

pp. 487-9

“Answer 1: Mr. Hooker [a New England Independent puritan] makes all that Christians do as [private] Christians and as Churches, that is, gathering of Churches, hearing, partaking of seals and censures, to be private actings not belonging to the magistrate.

Strange it is, that the convening of the ten thousand subjects in the same place (as our Brethren [the Independents] say) belongs nothing to the magistrate; sure it sides with peace or war.

[Answer] 3:  I wonder more in what capacity the magistrate can have to do with commanding and governing men, if not as they converse morally with men, and in their families, as fathers and sons, as masters and servants, and as Christians who both in private and public may perform duties to one another, or oppress one another…

But if Mr. Hooker mean that private actings of citizens, of members of families, of Christians, that are good and indifferent, do not appertain to the magistrate, who is an adversary to him in this?  Though all good actions done in private or public deserve praise, reward and protection from the magistrate…

Mr. Hooker: “Commission and just permission are all one: A ruler permits a finder [founder] to set up a school; he needs no commission.”

[Rutherford’s] Answer:  …and yet its worse to say [that] the Christian ruler owes to assemblies, pastors, schools only permission.  Paul says, he owes praise, Rom. 13:3, which, with good ground, famous interpreters expound to be countenancing, favor, protection, reward, stipends…”

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p. 499

“…the King has sufficient power to oppose wasters of his kingdom and to require homage of his subjects.  Suppose he have not an unlimited power to forbid these of other nations and Churches, and his own, to go to a synod, within or without his nation, for the settling of the Churches in necessary peace and truth, if the Churches must seek liberty and counsel for their souls good, and edification:

nor has he any lawful power from God to hinder his own subjects to send commissioners to sound and godly synods for counsel and synodical light, more than Jeroboam could lawfully forbid the people to go and worship at Jerusalem, upon pretense that they might be persuaded to cleave to Rehoboam their lawful prince, and waste his new kingdom: nor hath the prince an unlimited and absolute power to exact such absolute homage of his people; nor such a power over their moving from place:

([Margin note:] The Lord of Life has principally in the First Table laid a law upon our locomotive, and all our actings, to honor and love Him first, and the prince only secondarily and subordinately to God; if God charge us first to go to public meetings to honor Him, the Prince under pretense of peace cannot forbid the people to go up to Jerusalem to worship; we are to obey God rather than man.)

for so the [claimed] Church Independent of Jerusalem consisting of ten thousand, if not more, should have no intrinsic power to meet for the public worship of God; but the prince must have a lawful power to hinder their meeting, or then the Church cannot have a lawful power to meet; for the convening of ten thousands, if abused, is as dangerous for wasting of a kingdom in its own way, as the convening of a national synod, is, or may be destructive to peace.”

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That the Magistrate cannot Restrain Church Assemblies without Sufficient, Natural Civil, Warrant 

Samuel Rutherford

Divine Right of Church Government (1646), pp. 584-5

1. Whereas he [William Prynne, an Erastian] proves emperors and kings to have a power to convocate councils; It has not strength against us: all our [reformed] divines teach so.  But how?  [By:]

1. An accumulative civil power, so Jewel, Alley, Bilson, Whitaker, Willet, White, Roger, he might have cited more; but no privative [depriving], no ecclesiastical power, so as [that] synods may not lawfully convene without the command of the civil magistrate;

Our divines say many synods and Church meetings were in the apostolic Church without the consent and against the will of the civil magistrate; our divines oppose the Pope, who claims the only accumulative, civil, privative, and ecclesiastic power to convocate synods, and that no synods are lawful without the consent and mandate of the holiness of such a Beast.”

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A Survey of the Survey of that Sum of Church Discipline Penned by Mr. Thomas Hooker…  (London, 1658), bk. 4, ch. 12, ‘Of the Magistrate’s Power in Convocating Synods’, pp. 501-2

“…but it follows not that they [Churches] have no intrinsic power from Christ to meet themselves, if the prince refuse to convocate them, as Asa, Hezekiah, Josiah did, for the Magistrate ought to protect the independent congregation, and every single professor [of Christ]: but it follows not, therefore, [that] the single congregation has no power-intrinsic to meet for Word and seals, except the prince, who is a persecutor, give him leave…

For Christ has given to his Church, and members thereof, power to worship him in private, in public, in Church-assemblies, and has laid above their heads no lawful privative [depriving] power of rulers to hinder his people to worship the Lord God, Exodus 3…  The prince has no power under pretense of keeping civil peace to Caesar, to hinder actings of rendering honor to God, contrary to truth and destructive to the Gospel.”

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On the Restraints of the Church in Civil Matters

Samuel Rutherford

The Due Right of Presbyteries, pt. 2, p. 410

“Hence I reason thus, no synods-ecclesiastical can meddle with the blood and temporal lives of men…”

 

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On the Magistrate’s Power Regarding the Place of Public Preaching

Intro

Rutherford at the end of the quote below affirms that the civil magistrate may prohibit ministers’ preaching (irregardless of where it takes place) if ‘it is injurious and hurtful to human societies’ or if it ‘disturb the public peace’, which things are part of the magistrate’s proper jurisdiction.

This is similar in today’s context to zoning laws: a minister does not have an absolute moral right, or a civil right, to preach in residential areas, as the magistrate has already determined that such would disturb the intended, agreed upon, use of those areas, and the public peace pertaining to them.  However, the minister is free to preach in the public areas that the magistrate, usually at the community’s consent, has agreed are naturally fitting for the purpose of free public speech within certain noise orinances.

Rutherford shows in the beginning and middle of the below quote, contra the Arminians and Erastians, that the magistrate has no grounds to prohibit the spiritual preaching of ministers in public places simply because they are public places, and the magistrate is claimed to have (an absolute) governance over such.

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Samuel Rutherford

Divine Right of Church Government  (1646), pp. 557-8

“Nor do the Arminians much honor the magistrate, who, walking in the steps of Erastus, do hold that the magistrate having power of public places, preachers are obliged not to preach in public places if the magistrate forbid them; but they may preach in private places.  But:


2.  The Lord has no more given to magistrates power of places, or religious-actions in places, than He has given to them power of truths:  Therefore, they [Arminians] must be obliged in conscience, rejecting a vain and sapless distinction, to preach in public places: for as that judicious and learned, [reformed] professor, Jacob Triglandius says, ‘The place is accident all to the worship, and changes not the nature of it;’ (Trigland, de Potest. et Eccelesiastica Dissertatio, Theol., p. 123)…

3.  The apostles knew not this distinction, for they not only preached truth (the scribes and pharisees forbidding them), but in public places, and at all occasions, and daily in the Temple, and in every house they ceased not to teach and preach Jesus Christ (Acts 6:2,4; 4:1,20; 5:20-21).  The magistrate, being Antichristian, forbids not preaching of saving truths because of the place, be it private or public, but he forbids them because they are saving; and if Jesus Christ has called a man to preach in public in the housetops, the magistrate has no power from God to silence him in public more than in private.  The magistrate forbids that any teach false doctrine, not for the place, but because it is injurious and hurtful to human societies that men should be principled in a false religion, and cannot but disturb the public peace.”

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Due Right of Presbyteries (1644), Appendix, pp. 430-1

“But I answer, [1.] the king as king has dominion-civil of places and times, as places and times, but not of places as sacred in use, and of times as sacred and religious: for his power in Church matters being accumulative, not privative [depriving], he cannot take away a house dedicated to God’s service no more than he can take away maintenance allotted by public authority upon hospitals, schools, doctors and pastors.

God has here a sort of propriety of houses and goods as men have.  Places as sacred-abused are subject to regal power; he may inhibit conventions of heretics.

2. The apostles might preach in the Temple, though civil authority forbid them.

3. Kings are as much lords of places as sacred and public, as they have a dominion of civil places, in respect the king may by coactive [coercive] power hinder that false and heretical doctrine be preached, either in public, or private places, for this he ought to do as a preserver of both Tables [of the Law] and a bearer of the sword for the good of religion; and if they may command pure doctrine to be preached, and sound discipline to be exercised, they may command the same to be done in public places.”

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On the Church’s Right to its Own External Government in Sacra  (in Sacred Things)

Samuel Rutherford

Due Right of Presbyteries  (1644), Appendix

p. 419

“2. If they [Churches] decree things good, lawful and necessary, the prince has a power given him of God to ratify, confirm, and approve these by his civil sanction, but he has no power-ordinary to infringe, or evert what they have decreed.

3. And if the Church be altogether incorrigible and apostate, then we say as follows…”

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p. 425-7

“…external and vocal preaching, and a visible administration of the sacrament in such an orderly way, as Christ has instituted, is an external ruling of Church members according to the law of Christ as King, an external ordaining of the worship, is an external ordering of the worshippers according to the acts of worship thus ordered, as sense teaches us: but the external ordaining of the worship, to preach, this, not this, to celebrate [the sacrament] in both kinds [bread and wine], by prayer and the words of institution, and not in one kind only [a wafer, as the Papists], is an external ordering of God’s worship:

therefore as kings cannot administrate the sacraments, nor preach, so neither can they have the external government of the Church in their hands.

2…  John Reynolds [the English puritan] answers [the fore-stated Popish and Erastian opinion] that, from two offices [of external government and inward, spiritual government] of the head [Christ], which is to give life and influence of motion to the members, and also to guide and moderate the actions external of the body [the Church], we cannot make two heads [the king for the outward and Christ for the inward, as in Anglicanism]; and because the king has some civil government about the Church, we cannot make two heads over the Church, Christ one, and the King another under him.

[Reynolds is saying, Rutherford approving, that because the king, on presbyterianism, rightfully has ‘some civil government about the Church’, it does not follow that the king is therefore a head of the Church, under Christ or otherwise.  If the king legitimately ruled in sacra, in sacred things, this would be the case; but he does not, and it cannot be the case.]

3.  This [Erastian Anglican tenet] is Anabaptistical; for because the visible government of the Church is external, we are not to cut off all necessity of the ministry to feed and rule with ecclesiastical authority, and because the prince is gifted and a Christian, to give all to him, for a calling there must be from God, for the king to govern the Church of Christ by laws, and prescribing external worship therein, for Christ has left, Eph. 4; 1 Cor. 12; 1 Tim. 3; men to be feeders and governors of his Church by office, whose it is to be answerable for souls, Heb. 13:18.

4.  It is tyrannical, because [1.] it puts power into the magistrate’s hand to take from the Church, that inbred and intrinsic power of external and visible government over herself and members, which all civil incorporations by instinct of nature have, and the magistrate, as such, not being a member of the Church has [would have] a headship, even being a heathen magistrate, over the redeemed body of Christ.

2.  By this reason, the Lord Jesus as King has no pastors in his name to use the laws of his kingdom, by binding and loosing; for discipline being an external thing, (say they) is not a part of Christs kingly power, but the King as Christ’s civil vicar has this power [which Rutherford denies]…”

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pp. 442-3

“Whereas some object that the care both of temporal good and spiritual good belongs to the magistrate, therefore he must have a power to make Church laws.  See [David] Pareus.  For his care cannot be supreme, if he must rule at the nod and beck of Church-men.

I Answer, the connection is weak: he who has the care of both the temporal and spiritual good of the people, he has a nomothetic [law-making] power to procure both these two goods: it follows [in] no way, for then might he have a power in his own person to preach, and administrate the sacraments; this power [of the magistrate] procures the spiritual good, but such as is the care, such is the power: the care is politic and civil; Therefore the power to procure the spiritual good, must bee politic and civil [circa sacra, not in sacra].”

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On the Authority of the Civil Magistrate to Punish the Church which Errs in Natural Matters & Evident Truth

Westminster Confession  1645

ch. 20, section 4

“And because the power which God hath ordained, and the liberty which Christ hath purchased, are not intended by God to destroy, but mutually to uphold and preserve one another; they who, upon pretense of Christian liberty, shall oppose any lawful power, or the lawful exercise of it, whether it be civil or ecclesiastical, resist the ordinance of God;[p]

And for their publishing of such opinions, or maintaining of such practices, as are contrary to the light of nature, or to the known principles of Christianity, whether concerning faith, worship, or conversation; or to the power of godliness; or such erroneous opinions or practices, as either in their own nature, or in the manner of publishing or maintaining them, are destructive to the external peace and order which Christ hath established in the church; they may lawfully be called to account,[q] and proceeded against by the censures of the church, and by the power of the civil magistrate.[r]

[p] Matt. 12:251 Pet. 2:13,14,16Rom. 13:1-8Heb. 13:17.
[q] Rom. 1:32 with 1 Cor. 5:1,5,11,13. 2 John ver. 10,11 and 2 Thess. 3:14 and 1 Tim. 6:3-5 and Tit. 1:10,11,13 and Tit. 3:10 with Matt. 18:15-171 Tim. 1:19,20Rev. 2:2,14,15,20Rev. 3:9.
[r] Deut. 13:6-12Rom. 13:3,4 with 2 John ver. 10,11. Ezra 7:23,25-28Rev. 17:12,16,17Neh. 13:15,17,21,22,25,302 Kings 23:5,6,9,20,212 Chron. 34:332 Chron. 15:12,13,16Dan. 3:291 Tim. 2:2Isa. 49:23Zech. 13:2,3.”

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ch. 31, section 5

“Synods and councils are to handle or conclude nothing but that which is ecclesiastical; and are not to intermeddle with civil affairs, which concern the commonwealth, unless by way of humble petition, in cases extraordinary; or by way of advice for satisfaction of conscience, if they be thereunto required by the civil magistrate.[f]

[f] Luke 12:13,14John 18:36

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Samuel Rutherford

Due Right of Presbyteries, Pt. 2

pp. 412-414

“But if that cannot be conveniently had, as in a national Church it may fall out, then the Magistrate as a preserver of peace and truth, may command the sincerer part [of the Church] to convene in a synod, and do their duty, as the good kings of the people of God did: 2 Chron. 15, Asa gathered together a people who entered in covenant to seek the Lord God with all their heart, and laid an obligation of punishment to death on the rest, vv. 12-13;

and Jehoshaphat, 2 Chron. 23:4, he laid charge on Hilkiah the High Priest, and the priests of the second order, whom he knew to be better affected to the work, to bring out the vessels made for Baal; which proves that the king should put the sincerest to do that, which in common belongs to the whole, in which case of the erring of the most part of the Church, the prince indirectly condemns the erring part of the [ecclesiastical] synod, because it is his place to forbid and to punish with the sword, the transgressors of God’s Law.

But because his power is accumulative [to build up, according to the truth], not privative [to take away], under that pretense he has not power to hinder the sincerer part to meet and determine according to the Word of God.

…but the king’s power cannot make Church-canons [determinations], for it is a part of the ministerial calling to make canons, and therefore he [the magistrate] cannot annul and dissolve canons: but some greater kingly power is due to the king in the case of the Church’s aberring, than in the case of the Church’s right administration;

and as our divines do justly give to the prince an extraordinary kingly power in the case of universal apostasy of the Church, as Jehoshaphat, Hezekiah, Josiah, and other worthy reformers in the Church of the Jews, did warrantably use their kingly power, when the Church-men were corrupted and negligent in their duty; so in a particular case of a particular error of the synod, the king as king, may use his kingly power in this fact, that is, secundum quid extraordinarie [according to that which you must do extraordinarily], for the king is obliged as king to add his accumulative power of a civil sanction to all just and necessary Church constitutions, and if the canon or Church constitution be wicked and popish, he is obliged to deny his civil sanction, and not that only, (for he that is not with Christ is against him) but he is to employ his kingly power against such canons, and so is to deliver the Church of God in that, and in denying his accumulative power to unjust canons, he adds his kingly power accumulative to the true Church, in saving them from these unjust canons.”

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p. 420

“The king’s influence in Church canons (as we think) is:

[1.] as a Christian antecedent, to exhort that the Lord Jesus be served;

2. concomitant, as a member of the Church to give a joint suffrage with the synod;

3. consequent, as a king to add his regal sanction to that which is decreed by the Church according to God’s Word, or otherwise to punish what is done amiss.”

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On the Right of the Magistrate to Punish those who Publish Dangerous Opinions Contrary to the Light of Nature & the Settled Doctrines of the Church (in a Christian nation)

Samuel Rutherford

A Free Disputation Against Pretended Liberty of Conscience...  (London, 1649)

pp. 57-58

“Then the true state of the question is not [1.] whether the sword be a means of conversion of men to the true faith [which its not], nor 2. whether heathen by fire and sword are to be compelled to embrace the truth [they’re not], nor 3. whether violence without instruction and arguing from light of scriptures, should be used against false teachers [its not], nor 4. whether the Magistrate can punish the opinions of the mind, and strain internal liberty [it can’t].

But whether or not ought the godly and Christian prince [to] restrain and punish with the sword false teachers, publishers of heretical and pernicious doctrines, which may be proved by witness, and tends to the injuring of the souls of the people of God, in a Christian society, and are dishonorable to God, and contrary to sound doctrine; and so coerce men for external misdemeanors flowing from a practical conscience sinning against the second table, as well as from a speculative conscience (to borrow these terms here) when they profess and are ready to swear they perform these externals merely from and for conscience.”

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pp. 116-7

“…but it cannot follow, that because teaching and publishing of errors in non-fundamentals is consistent with [the persons having] saving grace, that therefore these non-fundamental sins of murder, adultery, tolerating of idolatrous high places, persecuting of faithful prophets, making of a golden calf, and hallowing of it to be adored as the God that brought Israel out of Egypt, are sins not to be tolerated in the truly godly, such as Aaron, David, and Asa, for then should they be tolerated in the wicked also, for the toleration of such in the godly, because they are not fundamental wickednesses inconsistent with saving grace, is as destructive and more because of their extreme scandalousness, to all peace and safety of human societies, and to the duty of the godly magistrate, as these same sins in the wicked, upon the same grounds publishing of all errors non-fundamental, the toleration of the high places, are as inconsistent with peace, destructive and injurious to souls, especially in the godly, as scandalous to other false teachers, as these non-fundamental sins.”

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ch. 10, p. 124

 “For we are as much obliged to believe non-fundamentals that are clear (as that there were eight persons saved in the ark, and the old world drowned with waters, Sodom burnt with fire), as to believe fundamentals, that there is no name whereby men may be saved, but by the name of Jesus, for the Authority of God speaking in his Word and his command does equally oblige to both; but there is no such necessity so absolute in believing non-fundamentals, as in believing these, without the knowledge whereof, we cannot be saved.

But it never follows that errors in non-fundamentals published and taught to the ruin of the souls of many, they having such a strong connection and influence on the knowledge of fundamentals, are to be tolerated since our sinning here does as equally and strongly strike against the authority and express command of God (at least in most things of that kind) as in points fundamental; and therefore the magistrate, who is to look to the honor of God as a Christian, and peace of societies in all, is as much obliged to punish clearly opened, non-fundamental, as fundamental, false doctrines.”

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pp. 142-3

“Now toleration lays this ground as a principle: Men are not to be troubled for their conscience, because they believe, hold, publish and teach what they do, right or wrong, according to their conscience, be it erroneous or not erroneous; and their zeal, hope, persuasion, comfort, carries them to undergo the reproaches of heretics, seducers, false prophets, imprisonment, torture, death, burning quick, rather than they would sin against known truth, and offend against a conscience, though erroneous;

Yet because the sufferers are not infallible, and it may be a lie, they believe, publish, and suffer, for their hope may be grounded on a lie, their comfort not bottomed on the Scripture, and so false hope and comfort, their rejoicing in sufferings, and undergoing torture and violent death, but fleeting and counterfeit joy, their zeal without knowledge, a bastard zeal, having nothing to do with the Word and Gospel-promises; but in the bottom, as contrary to them as light is to darkness: For what any saint or professor believes and publishes, he is to believe and publish, and die in it, and for it, with a faith that the contrary may be a truth of God, and so to be tolerated and born with:

Now the hope of the hypocrite is therefore compared to the spider’s web, to a broken tree, to a blasted olive tree, his joy to a night vision, a dream, the cracking of thorns under a pot, because both hope and joy, and all his comfort is grounded on an erroneous conscience, a lie, an imagination, not on the Word of God.”

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pp. 348-9

“…for they teach, that a man may publish that which by consequence destroys the faith of fundamentals, and so subvert the faith of others, which to do is a sin; but because the man follows the indictment [conviction] of his erroneous conscience, it is no sin to the man that so teaches; yea, he may innocently suffer persecution for his conscience, thus erroneous; yea, and die a martyr for it.

Therefore, if the following of an erroneous conscience shall make a less sin to be no sin but innocency, it shall make a greater sin, to wit, killing of his son to his heavenly father [as an erroneous sacrifice, modeled off of Gen. 22], no sin, and so he may lawfully do it [though this is murder].

Nor will it suffice to say, to offer a man to God and kill him, is against the light of nature, and [in]vincibly a sin; what then? if the man believe he is commanded to kill him, his erroneous conscience must bind, as the offering of whole burnt offerings to God, to us is a sin, against the light of nature, in regard the law of nature can no more warrant it, than it can warrant Christ to offer up himself to God [Christ needed the positive command from his Father].

But upon the supposition of Libertines, its no murder; nor is it punishable at all, because the father may, yea, and lawfully, ought to worship God according to the indictment of his conscience, whither the conscience be right or bloody and erroneous, and yet he is not punishable for blood-shed, by their way for merely, and simply, without any malignancy or hatred to the child; he believes, he ought to prefer his Maker to his dearest child’s life as well as Abraham, and the conscience does naturally, and as under no Law, simply believe it is the like service, and worship that Abraham would have gratefully performed unto God, if God in reward of that love, had not forbidden him again to kill his Son.

And this answer presupposes also, that it is impossible for a father to have such a conscience, as may stimulate, and command to kill his son, and that in the authority, and name of God, as he erroneously, yea, and as he invincibly holds, as Socinians, Familists, Papists, believe purgatory, merits, justification by works, who yet are not to be punished for their conscience, according to Libertines.

Again, there is no intrinsic malignancy [in intention] in the act of naticide, or son-sacrificing, but what it has from the Lord’s Law forbidding to kill, now those that killed their sons to Molech, yea, to God, as they thought, strongly, yea, invincibly believed God commanded them, to do Him such bodily service, as is clear from Jer. 7:31; 15:5.  And that this is invincible ignorance (I take the word invincible in the Libertines’ sense) Libertines grant, for in our condemning son-sacrificing, they will say we are not infallible.  Yea, the understanding, being spiritual, cannot be restrained, says Dr. [Jeremy] Taylor, sect. 13, n. 6, and no man can change his opinion when he will, says he, ibid., n. 7, and so should not be punished for it, and n. 13, there is nothing under God Almighty that has power over the soul of man, so as to command a persuasion.  If he be then persuaded, that he ought to kill his son, he ought unpunishably so to do.”

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On Extraordinary Civil Power in Extraordinary Circumstances

Article

Aaron’s Rod Blossoming... (London, 1646), Bk. 1, Appendix, ‘The Erastians Misrepresent the Jewish Government…  Their confounding of that which was extraordinary in the Jewish Church with that which was the ordinary rule…  The power and practice of the godly kings of Judah in the reformation of religion cleared…’, pp.65-75

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Quotes

Samuel Rutherford

Due Right of Presbyteries  (1644)

p. 412

“Hence our Fifth Conclusion: when there is an equal rupture in the body, nothing extraordinary would be attempted if ordinary ways can be had:  if Saul the ordinary magistrate had, at God’s commandment, killed Hagag, Samuel the prophet should not have drawn his sword…”

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pp. 413-4

“…but some greater kingly power is due to the king in the case of the Churches aberring, than in the case of the Churches’ right administration; and as our divines do justly give to the prince an extraordinary kingly power in the case of universal apostasy of the Church, as Jehoshaphat, Hezekiah, Josiah, and other worthy reformers in the Church of the Jews did warrantably use their kingly power, when the Church-men were corrupted and negligent in their duty;

so in a particular case of a particular error of the synod, the king as king, may use his kingly power in this fact, that is, secundum quid extraordinarie [according to that which is extraordinary], for the king is obliged as king to add his accumulative power of a civil sanction to all just and necessary Church constitutions, and if the canon or Church constitution be wicked and popish, he is obliged to deny his civil sanction, and not that only (for he that is not with Christ is against Him), but he is to employ his kingly power against such canons, and so is to deliver the Church of God in that, and in denying his accumulative power to unjust canons, he adds his kingly power accumulative to the true Church, in saving them from these unjust canons.”

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pp. 415-6

“…but the truth is, neither the king’s judgement, as a certain rule to the representative Church, nor [is] the representative Church’s judgment a rule to the King, but the Word of God [is] the infallible rule to both.  Judgment may crook, truth cannot bow; it stands still unmoveable like God, the father of truth;

but in this case if both err, excellently says Junius (contra Bellarmine, on Councils, bk.1, ch. 12), the magistrate erring, the Church may do something extraordinarily; and the Church erring the magistrate may do something also in an extraordinary way, as common equity and mutual law requires, that friends with mutual tongues bick [quarrel?] the wounds of friends.”

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p. 417

“Though the king have power in case of the Church aberration (which is somewhat extraordinary) it follows not therefore, in ordinary, he has a nomothetic [law-making] power to make Church-Laws.”

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p. 419

“7th Conclusion.  When the representative Church is universally apostatical, then may the prince use the help of the Church-essential of found believers, for a reformation; and if they also be apostatic (which cannot be, except the Lord utterly have removed his candlestick) we see not what he can do but hear witness against them, but if there be any secret seeker of God in whose persons the essence of a true Church is conserved.

The king by a royal power, and the law of charity is obliged to reform the land, as the godly kings with a blessed success have hitherto done, Asa, Josiah, Jehoshaphat, in which case the power of reformation and of performing many acts, of due belonging to the Church officers, are warrantably performed by the king, as in a diseased body, in an extraordinary manner power recurs from the members to the politic head and Christian prince, who both, as a King, in an authoritative way is obliged to do more then ordinary, and as a Christian member of the Church, in a charitative and common way, is to care for the whole body.”

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Divine Right of Church Government  (1646)

p. 481-2

“If there be no formed Church endued with knowledge and discretion to choose their own elders, if there be godly men fit to be chosen, they are to convene and choose from amongst them elders, the godly magistrate is to join his vote and power, because there is a Church not yet constitute[d], it is now Perturbatus aut corruptus Ecclesiae status [the state of the Church is disturbed or corrupted], and I ever judged it a golden saying of that great divine Francis Junius:

“that when the magistrate will not concur, the Church in that extraordinary case may do somewhat, which ordinarily they cannot do; and again, when the Church does not their duty, the magistrate in that case may do something more than ordinary, to cause the Church [to] do their duty; for its a common Law, to ills out of order, remedies out of the roadway may be applied.” (Junius nim•• in Bellarmine, do∣ci. bk. 1, ch. 12, note 18, pp. 329-30)

So if the priests and Levites be corrupt, Jehoshapaht and Hezekiah and Josiah may reform: And therefore though the godly Magistrate, jure communi, by the common Law of Nature, employ his power to appoint elders, all errors and confusions in the Church are in some measure out of order…”

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George Gillespie

111 Propositions (1647)

“84.  …in the worst and troublesome times, or in the decayed and troubled estate of things…  diverse things are yielded to be lawful to godly magistrates, which are not ordinarily lawful for them, that so to extraordinary diseases extraordinary remedies may be applied.  So also the magistrate abusing his power unto tyranny, and making havoc of all, tis lawful to resist him by some extraordinary ways and means, which are not ordinarily to be allowed.”

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