Henry Barrow and the Regulative Principle of the State

Henry Barrow (1550?-1593), Martyr, Separatist Leader, "the Founder of English Congregationalism"

Barrow Defends the Judicial Law in an Inquisitorial Examination 

While under arrest by the English authorities, Barrow underwent an inquisitorial examination. According to Barrow's account, this exam included a question about whether it was lawful to hang ordinary thieves. Barrow denied this, since God's law requires a different punishment:

[T]he judge Anderson asked me, Whether I thought it lawful to hang a thief or no? I answered, that there were many kinds of thieves, as sacrilegious thieves, men-stealers, etc.; that these ought by the laws of God to die. Then, he said, he meant ordinary thieves of goods and chattels. I said, that God in the law had ordained another kind of punishment for such ...[1]

According to Barrow, he was then asked "Whether it be lawful for the prince to alter the judicial law of Moses, according to the state of her country and policy, or no?"[2] Barrow answered,

I ought to be wise in sobriety, and not to answer more than I know. Great doubt and controversy hath been about this question a long time, but for my part, I cannot see that any more of the judicial law was or can be abrogated by any mortal man or country, upon what occasion soever, than belonged to the ceremonial law and worship of the temple, from which we have received other laws and worship in Christ's testament; but that the judgments, due and set down by God for the transgression of the moral law, cannot be changed or altered, without injury to the moral law and God himself.[3]

Wicked Laws Result from Rejecting or Adding To the Judicial Law

Barrow points out that rejecting or adding to the judicial laws of Moses results in the enactment of wicked laws:

In the commonwealth, when they both abrogate all God's judicial laws and cut them off at one blow, as made and belonging to the commonwealth of the Jews only (as though God [had] no regard of the conversation of other Christians his servants also) or else had left some peculiar laws for the manners of the Gentiles, or had left them in greater liberty to be and to make laws and customs unto themselves. Hereupon it commeth to pass, that so many wicked ungodly laws and customs are decreed; that the whole order and course of judgment and justice is constuprate and perverted, that so many capital mischiefs as God punished by death, as blaspheming the name of God, open idolatry, disobedience to parents, are not by law punished at all; incest, adultery, either passed over or punished by some lighter trifling chastisement; willful murder often pardoned; theft (if it be above 13 pence) punished by death; yea, this sin is punished not only in the person of the thief (who that wise king said if he should steal seven times, may yet live and satisfy with his body or goods) but in the persons of all such as this their unjust law judgeth any way accessory; which extendeth so far, as many honest men may for this trifle for buying or receiving part of these stolen goods, be also put to death and forfeit all the lands and goods they have; whereby their wives, children, and families are punished also and utterly undone. And thus by this their policy are many thieves made for one; not to speak of all this guiltles [guilty?] blood that is upon the head of the magistrate, judge, officers, jury, and the whole land by this means: what should I stand to particulate their infinite transgressions of God's laws even in their civil estate, which is in much worse case than many heathen nations which never knew God or his Christ.[4] 

God is the only Lawmaker

Barrow affirms that God, and God alone, has authority to make civil laws. Civil rulers are therefore God's servants, and do not have the liberty to invent their own laws:

Neither will these lymmes [limbs] of the devil be satisfied with any humble acknowledgement of the civil power, or with any Christian submission unto the same; but will extort by oath an allowance and subscription unto this their ungodly power, blasphemous titles, anti-Christian decrees and proceedings, etc. It will not suffice to confess that God hath made the civil magistrate the keeper of the book of the law, to see both the tables thereof observed by all persons both in the church and commonwealth, and so hath power over both church and commonwealth; but they must have this indefinite proposition granted them: that a prince hath power to make laws for the church. ... A godly prince is bound to God's law, made the keeper thereof, not the controller; the servant, not the Lord. God hath in that book made most perfect and necessary laws both for church and commonwealth: he requireth of the king and magistrate to see these laws executed, and not to make new. He that maketh any new laws taketh unto him the office of God, who is the only lawmaker: all men of what estate soever are but God's creatures, servants, and subjects to his law. Moses, Joshua, Samuel, David, Hezekiah, made no new laws, but revived and executed the old laws which God had made.[5] 

Notes
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[1] George Punchard, History of Congregationalism from about A. D. 250 to the Present Time: Volume III (NY: Hurd and Houghton, 1867), 66, 67.

[2] Ibid., 67

[3] Ibid.
[4] Henry Barrow, The Writings of Henry Barrow: 1587-1590, ed. Leland H. Carlson (Elizabethan Non-Conformist Texts: Volume III) (New York: Routledge, 1962), 599, 600.

[5] Ibid., 601, 602.