THE QUESTION OF THE EXTENT OF THE POWER OF MAGISTRATES IS PROPOSED
The third question follows: Is it lawful for a Christian magistrate to make laws, to give judgment, and to punish the wicked ? Two errors must now be refuted. The first is that of the Waldensians and the Anabaptists, who deny all these points. They argue that obligation to obey laws destroys Christian liberty, and that judgments are forbidden in, “If a man will contend with thee in judgment, and take away thy coat, let go thy cloak also unto him,” and, “Already indeed there is plainly a fault among you, that you have lawsuits one with another. Why do you not rather take wrong? Why do you not rather suffer yourselves to be defrauded?” Finally, capital punishment seems to be forbidden to Christians in, “It hath been said : An eye for an eye, and a tooth for a tooth. But I say to you not to resist evil.” Moreover, it is evident that under the old law the infliction of the poetia talionis was permitted only to magistrates, therefore, Christ forbids this very thing, and He also says, “All those who take the sword shall perish with the sword.”
The second error is that of Calvin, who, although he re-proves against the Anabaptists that there should be in the Church civil laws, judgments, and military power, nevertheless states that civil laws are not binding in conscience; which had been taught before him by Jean Gerson and Almain. These are their reasons:
First, because political power is temporal, it has, therefore, nothing to do with conscience. Second, because the end of civil laws is external peace. Third, because the ruler does not judge interior things. Fourth, because the ruler cannot inflict a spiritual penalty, he cannot therefore impose the obligation.
Fifth, because a ruler cannot absolve, therefore he cannot bind. Sixth, because the same sin would be punished twice, once here, and once in the next world. Seventh, because most rulers do not intend to bind under pain of sin. Eighth, because we ought rather to break a most important civil law than a most unimportant Divine law, as that of not deceiving where it would affect the common good ; but this latter obliges only under pain of venial sin, therefore the former does not oblige at all ; for if it obliged under pain of sin, especially of mortal sin. It would be our duty to avoid mortal sin rather than venial.