Lex Propria – Proper Law

lex propria proper law

The judicial law of Israel, the laws whose subject matter concerned Israel as a civil body, is expired with the state of that people and is no longer binding except for its general equity (WCF 19:4). “Proper law” (lex propria) recognizes the authority of magistrates to make positive human laws based upon the moral law of God “according to the nature, utility, condition, and other special circumstances of his country” (Althusius, Politica, ch 21). It is applying the moral law (which is written on the human heart and evident through the light of nature, but held in unrighteousness cf. Romans 1:18; 2:14-15) and the general equity of the judicial law to particular circumstances of modern nations.

The essential goal of civil government (upholding the moral law) is the same at all times and in all places, but the means differ in form according to the circumstances of each society. That which was sufficient to promote the good and restrain the evil (Romans 13:3-4) in ancient agrarian societies is going to be different in form than what is needed in technologically advanced and urban societies. Circumstances do not change the moral law of God, and proper law does not give license to magistrates to go beyond the moral law or the lex talionis, but when circumstances change, prudent magistrates must apply the moral law to their particular circumstances even when those circumstances are not directly addressed in the Word of God. Since men suppress the truth of God’s Law written on their hearts and in nature, without proper law everyone would do what is right in his own eyes and would not be curbed by the civil use of the Law (Judges 17:6).

A Survey of Proper Law in Reformed Civil Ethics.

The Confession of Saxony succinctly defines proper law in this way:

“We teach that ‘it doth belong to the authority and duty of the magistrate to forbid and (if need be) to punish such sins as are committed against the Ten Commandments, or the law natural;‘ as likewise ‘to add unto the law natural some other laws, defining the circumstances of the Natural Law, and to keep and maintain the same by punishing the transgressors.‘”

Article 23 of the Confession of Saxony, cited by George Gillespie, Aaron’s Rod Blossoming, pg. xvi.

Scottish Commissioner to the Westminster Assembly Robert Baillie points out the error of rejecting the magistrate’s legislative power:

“They spoil kings and parliaments of their legislative power.

“But their great tenent about the magistracie is this, that no prince nor state on the earth hath any legislative power; that neither king nor parliament can make any law in any thing that concerns either church or state; that God alone is the law-giver; that the greatest magistrate hath no other power, but to execute the Laws of God set down in Scripture; that the judicial Law of Moses bindes at this day all the nations of the world as well as ever it did the Jews: They tell us that whatever God in Scripture hath left free, it may not be bound by any human Law, whether civil or ecclesiastike; and what God hath bound by any law in Scripture, they will not have it loosed by the hand of any man.”

A Dissuasive From the Errours of the Time, pg. 31.

Johannes Althusius, the great Calvinist political philosopher and federalist of the 17th century, also explains what is called lex propria, or jus proprium, the proper law; which is positive human law based upon the moral law of God applied to particular circumstances of a given nation. Althusius explains proper law and then gives two reasons why it is necessary:

“Proper law (lex propria) is the law that is drawn up and established by the magistrate on the basis of common law (lex communis) and according to the nature, utility, condition, and other special circumstances of his country. It indicates the peculiar way, means, and manner by which this natural equity among men can be upheld, observed, and cultivated in any given commonwealth. Therefore, proper law (jus proprium) is nothing other than the practice of this common natural law (jus naturale) as adapted to a particular polity. It indicates how individual citizens of a given commonwealth are able to seek and attain this natural equity. Whence it is called the servant and handmaiden of common law (jus commune), and a teacher leading us to the observance of common law.

“Proper law is established for two principal reasons, as Zanchius says. The first reason is that not all men have sufficient natural capacity that they are able to draw from these general principles of common law the particular conclusions and laws suitable to the nature and condition of an activity and its circumstances. The second reason is that natural law is not so completely written on the hearts of men that it is sufficiently efficacious in restraining men from evil and impelling them to good. This is because it merely teaches, inclines, and accuses men. It is therefore necessary that there be a proper law by which men who are led neither by the love of virtue nor by the hatred of vice may be restrained by the fear of punishment that this law assigns to transgressions of common law. In this sense, it is said that ‘law is set forth not for the just, but the unjust‘.”

Politica, chapter 21.

George Gillespie also noted that “other judicial or forensical laws concerning the punishments of sins against the moral law may, yea, must be allowed of in Christian Republics and Kingdoms; provided always, they are not contrary or contradictory to God’s own judicial laws” (Wholesome Severity Reconciled With Christian Liberty).

Further, human laws ought to be made carefully and solemnly in accord with God’s moral law. To make human laws contradictory to God’s moral law, or to disobey legitimate human laws, is to misrepresent God and make an unlawful oath.

“It is in the law of God, that all our deputed authority to command others, or to bind ourselves is allotted to us. The requirement of moral duties by the law of God obligeth us to use all lawful means to promote the performance of them; and hence requires human laws and self-engagements, and the observance of them as conducive to it. Nay they are also expressly required in his law, as his ordinances for helping and hedging us in to our duty. In making lawful vows, as well as in making human laws, we exert the deputed authority of God, the supreme Lawgiver, granted to us in his law, in the manner which his law prescribes, and in obedience to its prescription… Whoever doth not, in his attempts to obey human laws or to fulfill self-engagements, consider them as having that binding force which the law of God allows them, he pours contempt on them, as ordinances of God, and on the law of God for allowing them a binding force. Thus, through maintaining the superadded but subordinate obligation of human laws, and of self-engagements to moral duties, we do not make void, but establish the obligation of God’s law.”

John Brown of Haddington, The Absurdity and Perfidity of All Authoritative Toleration of Gross Heresy, Blasphemy, Idolatry, and Popery, pg. 101-103.

William Perkins in A Discourse of Conscience (pages 61-64), likewise elucidates on the legislative power of magistrates concerning things “indifferent” but that are wholesome and “are agreeable to God’s word, serve for the common good, stand with good order, and hinder not the libertie of conscience.”

“Wholesome laws of men, made of things indifferent, binde conscience by virtue of the general commandment of God, which ordaineth the Magistrates authoritie: so as whosoever shall wittingly & willingly, with a disloyal mind, either breake or omit such laws, is guiltie of sinne before God.

“By wholesome lawes, I understand such positive constitutions, as are not against the law of God, and withall tend to maintaine the peaceable estate and common good of men.

“Furthermore I adde this clause, made of things indifferent, to note the peculiar manner whereof humane lawes properly intreat: namely such things as are neither expressely commanded or forbidden by God.

“Now such kinde of lawes have no virtue or power in themselves to constraine conscience, but they bind onely by virtue of an higher commandment. Let every soule be subject to the higher powers, Rom. 13.1. Or, honour father and mother, Exod. 20. Which commandments binde us in conscience to performe obedience to the good laws of men. As S. Peter saith, submit yourselves to every humane ordinance for the Lord, 1 Pet. 2.13. that is, for conscience of God, as he saith afterward, v.19. whereby he signifieth two things: first that God hath ordained the authority of the gouernours: secondly that he hath appointed in his word, and thereby bound men in conscience to obey their governours lawfull commands.”

Perkins goes on to explain other laws that are not indifferent, but are good in themselves, “intreating of things that are morally good, and the parts of God’s worshippe, are the same with God’s laws: and therefore binde conscience.” Not because they are enacted by men, but because they are God’s laws and morally binding on all men. Thus, breaking these laws is sinful in two ways, first because it would be violating God’s most holy moral law that the conscience ought to be bound and ruled by, and secondly because it would be disobeying the lawful authority of the civil magistrate to govern (which comes from the secondary laws of nature derived from the 5th commandment (cf. Rutherford, Lex Rex, Question 2)).

Next, Perkins moves on to civil laws made by magistrates that are directly contradictory to the Law of God. These laws do not bind the conscience and the magistrate has no authority to enact them. Peter and John refused to obey unlawful commands (Acts 4:19) as well as Shadrach, Meschach, and Abednego (Daniel 3). “Moreover, in that man’s law binds onely by power of God’s law, hence it follows, that God’s law alone hath this priviledge, that the breach of it should be a sinne.”

“It is all that the lawes of God doe or can doe, to binde conscience simply and absolutely. Therefore human laws bind not simply, but so farre forth as they are agreeable to God’s word, serve for the common good, stand with good order, and hinder not the libertie of conscience.”
(ibid., 64).

It is important to interject here and point out that Perkins does not understand “liberty of conscience” the same way that it is commonly understood today. For just a few paragraphs before, he states that civil laws which “prescribe the worship of God, standing in the practice of true religion & virtue, of this kind are all positive lawes touching articles of faith & the duties of the moral law” are within the purview of the civil magistrate to enforce. So “the pretended liberty of conscience” to worship God in any way that we please, is clearly not what Perkins has in mind here.

Thus we see that classic Reformed theologians did not believe magistrates were restricted to the letter of the Law, rather, they believed that magistrates have the legislative power to adapt God’s moral law, Natural Law, to their particular polity and context “so farre forth as they are agreeable to God’s word, serve for the common good, stand with good order, and hinder not the libertie of conscience” and “tend to maintaine the peaceable estate and common good of men.” Neither did they believe that the first table of the Law was outside the power of the Christian civil government to enforce.

 

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23 thoughts on “Lex Propria – Proper Law

  1. Good article. I would only challenge the understanding of the notion of the natural man’s “suppression” of the knowledge of God and His Law. The word Paul uses in Romans 1 is used almost exclusively everywhere else in the New Testament as “hold fast”. That is, the natural man “holds fast the truth in unrighteousness”. He counts on it, depends upon it, demands it for himself, but violates it when it is contrary to his own base desire. The idea includes suppression, but more, it epitomizes the natural rebellion in the natural man, who demands equity and more for himself, but denies it to the God who created him, making himself to be his own object of worship.

    Liked by 3 people

  2. Matthew Henry on 1 Peter 2:13, that civil government is an ‘ordinance of man’:

    “Every ordinance of man. Magistracy is certainly of divine right; but the particular form of government, the power of the magistrate, and the persons who are to execute this power, are of human institution, and are governed by the laws and constitutions of each particular country; and this is a general rule, binding in all nations, let the established form of be what it will.”

    Liked by 2 people

  3. Matthew Poole on 1 Pet. 2:13. ‘Ordinance’ in the Greek is ‘creature’. ‘Submit to every human creation’:

    “ordinance of man; the word creature being taken for an ordinance, or constitution, and creating for ordaining, or appointing… But this creature, or ordinance, here is to be understood of the magistrate; (as appears by the following words), which is called human, not as if magistracy were not an ordinance of God, {for, Romans 13:1, the powers that are are said to be ordained of God} but either because it is only among men, and proper to them; or because it is of man secondarily and instrumentally, though of God primarily and originally, God making use of the ministry of men in bringing them into the magistracy; as, though church offices are God’s ordinance, yet he makes use of men to put them into office.”

    Liked by 1 person

  4. John Calvin on 1 Pet. 2:13:

    “To every ordinance of man… But I have no doubt but that Peter meant to point out the distinct manner in which God governs mankind: for the verb κτίζειν in Greek, from which κτίσις [‘ordinance’ or ‘creature’] comes, means to form and to construct a building. Suitable, then, is the word “ordination;” by which Peter reminds us, that God the maker of the world has not left the human race in a state of confusion, that they might live after the manner of beasts, but as it were in a building regularly formed, and divided into several compartments. And it is called a human ordination, not because it has been invented by man, but because a mode of living, well arranged and duly ordered, is peculiar to men.”

    Liked by 1 person

  5. John Trapp on 1 Pet. 2:13:

    “Verse 13: Submit to every ordinance. That is, although the ordinance or government in the manner of its constitution be from man, yet because of the necessity of its institution it is from God; submit to it, though of man, for the Lord’s sake. (Fuller’s Answer to Dr Fern.) For although it is called here man’s creature or ordinance, either in respect of man the subject, by whom it is exercised, or man the object, about whom it is conversant, or of man the end, to whose emolument it tendeth; yet it is still the gift and institution of God, the primary author and provident ordainer. A Deo sane est sive iubente, sive sinente , Of God it is surely, either so commanding or so suffering it to be, saith Augustine (contra Faust. Man xxii. 7.).”

    Liked by 1 person

  6. The Geneva Bible Notes, 1599, on 1 Pet. 2:13:

    “(c) By ordinance, is meant the inventing and ordering of civil government, which he calls ordinance of man, not because man invented it, but because it is proper for men.”

    Liked by 1 person

  7. William Ames on 1 Pet. 2:13:

    “Question: Why is the Magistracy called an ordinance of man, v. 13, seeing all powers are ordained of God, and every power is the ordinance of God, Rom. 13:1,2.

    Answer: The superiority of power, or government itself is simply and absolutely commanded by God, and in that respect is called the ordinance of God; but this or that special manner of power or government is not determined by God, but by men; and is therefore called an ordinance of men, which as touching the nature of it, may also be called an ordinance of God: And this is the difference betwixt an Ecclesiastical and a civil office. An Ecclesiastical office is not legitimate, if it be not directly determined by God Himself, and consequent∣y cannot be changed by men: but this or that civil office may be made and changed by men. And the reason of the difference is this, because God and Christ alone hath dominion and power in spiritual matters; but in civil matters men are also Gods, though not absolute.”

    Liked by 1 person

  8. Nicholas Byfield on 1 Pet. 2:13:

    “First, that Magistrates are an ordinance of men; and so they are in diverse respects, because magistracy is a thing proper to men.

    Secondly, in respect of the end, because it is ordained for the good of men.

    Thirdly, because the choice of the kind of Magistrates hath been for the most part left unto men: for God hath not tied all nations to a kind of government, but left them for the most part free: and therefore some governed by Kings, some by Emperors, some by Consuls, some by Dukes, some by Princes or Earls, or the like.

    Fourthly, because in the New Testament Christ did not at all employ Himself in settling any order for the corporal government of his Church in this world, it being specially his intent for the raising of his spiritual kingdom, and the ordering of the government that concerned the souls of men and their full subjection.

    Only we must take heed of one sin here, and that is, that we conceive not the Magistrates are man’s ordinance, as if man appointed or ordained, or invented them, for that is contrary to express Scripture, that calls all those earthly powers God’s ordinance: they are by divine institution, Rom. 13.1, 2, 3. Pro. 8.15. 2 Chron. 19.6. Dan. 4.14, 22.”

    Liked by 1 person

  9. Alexander Nisbet (1658), a Scottish Covenanter, on 1 Pet. 2:13:

    “…they should carry themselves with respect and submission to any form of lawful government established in the several countries where they were scattered, whether the same were exercised by the supreme magistrate or by the inferior: which several forms of civil government he calls a human ordinance; mainly because the Lord has not determined in His Word what particular kind of government every place in the world should have, whether monarchy or some other form but has left the determination thereof to human prudence walking by the general rules of His Word…

    (2.) although civil magistracy be a divine ordinance in regard it is of God’s appointment, Prov. 8:15, yet it is here called a ‘human ordinance’ in regard it is mainly exercised about human affairs, and for the good of human society as such, in regard the particular forms thereof are left to be determined by men, as was touched upon in the Exposition, and in some cases may be altered by them. In all which respects it differs from that spiritual government which Christ has established in His house, this being wholly about spiritual affairs, 2 Cor. 10:8, the particular form thereof determined by Jesus Christ in his Word, and never to be altered in any place of the world, Eph. 4:11-13 for civil government for the fore-mentioned respects, as also to difference it from the ecclesiastic, is here called an ‘ordinance of man’.”

    Liked by 1 person

  10. John Gill on 1 Pet 2:13:

    ” and “human”; not only because they [heathen magistrates] were men, and were taken out from among men that bore the office of magistrates, and governed over men, and were for the good and advantage of mankind, but because they were created and placed in such a station by men; though government itself is of God, is a divine institution, yet this and that particular form of government is of man; and especially the forms of government among the Gentiles were human; and are here so called, in distinction from the form of government among the Jews, which was a theocracy, and was divine; wherefore the Jews, and so these converted ones, scrupled yielding obedience to Heathen magistrates; on which account they were spoken against, as evildoers; hence the apostle, in the first place, and as a principal part of their honest conversation among the Gentiles, exhorts them to submission to civil magistrates, though they were creatures of men; and to everyone of them, though a Gentile, an unbeliever, and a wicked man: and this he urges,”

    Liked by 1 person

  11. Here is George Gillespie on how the Bible instructs magistrates *generally* (as opposed to a ‘Regulative principle of Civil Government’:

    Proposition 48 of his 111 Propositions

    “For to that end also is the holy Scripture profitable, to shew which is the best manner of governing a Commonwealth, and that the Magistrate as being Gods Minister may by this guiding Starre bee so directed, as that he may execute the parts of his office, according to the will of God, and may perfectly be instructed to every good work…”

    Liked by 1 person

  12. Thanks Paul (and Tmothy for the extra quotes). This post is very helpful. I have a few questions.

    1) Proper law is not a necessary deduction from moral/natural law, correct? It is not contrary to moral law, but it is not a necessary consequence of it.

    2) “proper law does not give license to magistrates to go beyond the moral law or the lex talionis…” Can you define lex talionis (quotes would be great)? How can it be determined if a law goes beyond lex talionis?

    3) If you are so inclined, it would be helpful to see a pie chart visualizing proper law. The pie chart would represent all of life. A section would be cut out for ecclesiastical government where the civil magistrate has no authority. A section would be cut out for things contrary to God’s law, again where the civil magistrate has no authority. Another section would be cut out for matters of the heart (rather than outward actions) where the civil magistrate has no authority. It would seem that whatever is left would rightly fall under the civil magistrate’s authority. Visualizing it in this way could help to comprehend and refine the view.

    4) This statement seems contrary to the rest of the article “positive laws “intreating of things that are morally good, and the parts of God’s worshippe, are the same with God’s laws: and therefore binde conscience.” Not because they are enacted by men, but because they are God’s laws and morally binding on all men.” Previously you said that positive law was not the same with God’s laws but was superadded to God’s law by men. Or are you/Perkins only referring to one subset of positive civil law in this instance – those that are not superadded to God’s law (in which case they wouldn’t be positive law, would they)?

    5) Hebrews 12:5-11 establishes a difference between fatherly discipline/training and retributive justice by a judge. Christians experience the former but have been freed from the latter by the death of Christ in their place. You have argued here that the civil magistrate fulfills the role of fatherly discipline/training for the rest of society. That would seem to require that he does not fulfill the role of a judge administering retributive justice. Or do you believe he does both? Some laws are fatherly discipline, others are retributive justice?

    Thanks

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    1. I appreciate your thoughtful response and sharpening Brandon! To answer your questions:

      1) My understanding is that Proper Law is needed based on circumstance, so I’d say that it is not necessary, but it is contingent.

      2) By lex talionis I mean the moral principle of the punishment meeting the crime, not being too harsh or too lenient. “How can it be determined if a law goes beyond lex talionis?” Is a great question that I’ll have to think about more. Certainly executing someone for hunting the king’s pheasants would be unjust, but I think there are situations that are more difficult to determine than that (which I think demonstrates the need for prudence on the part of civil magistrates and not viewing the Judicial Law as a rigid list of requirements).

      3) That would certainly be interesting!

      4) I should not have said “positive laws” there, I just fixed that. Thank you! Perkins moves on and specifies a different type of laws, “not of things indifferent, but of things that be good in themselves, that is, commanded by God, then are they not human properly but divine lawes” (pg. 62-63).

      5) From what I’ve read, the Establishmentarians would say both. The civil government is to punish crime justly, but is also fatherly to the people in encouraging them to come to faith and in his support of the institutional Church as a “nursing father” (Isa. 49:23).

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  13. Thanks Paul. Let me know if you reach a conclusion/answer on lex talionis. It’s a pretty crucial part of all of this. To help towards a resolution – what precisely makes executing someone for hunting the king’s pheasants unjust?

    Regarding the last point, are not the two mutually exclusive? If it is retributive justice then it it is not fatherly chastisement. For example, John Gill comments on 12:5

    “my son, despise not thou the chastening of the Lord; by which is meant, not vindictive punishment; this would not be speaking to them, nor dealing with them as children, and would be contrary to the love of God towards them; besides, chastisement in this sense has been upon Christ for them, and it would be unjust to lay it on them again; but a fatherly correction is designed, and which is given in love by God, as a Father, and for the instruction of his children, as the word used signifies”

    A.W. Pink says

    It is of first importance that we learn to draw a sharp distinction between Divine punishment and Divine chastisement—important for maintaining the honor and glory of God, and for the peace of mind of the Christian. The distinction is very simple, yet is it often lost sight of. God’s people can never by any possibility be punished for their sins, for God has already punished them at the Cross. The Lord Jesus, our blessed Substitute, suffered the full penalty of all our guilt, hence it is written, “the blood of Jesus Christ His Son cleanseth us from all sin”
    (1 John 1:7). Neither the justice nor the love of God will permit Him to again exact payment of what Christ discharged to the full. The difference between punishment and chastisement lies not in the nature of the sufferings of the afflicted: it is most important to bear this in mind. There is a threefold distinction between the two.

    First, the character in which God acts. In the former God acts as Judge, in the latter as Father. Sentence of punishment is the act of a judge, a penal sentence passed on those who are charged with guilt. Punishment can never fall upon a child of God in this judicial sense, because his guilt was all transferred to Christ: “Who His own self bare our sins in His own body on the tree.” But while the believer’s sins cannot be punished, while the Christian cannot be condemned (Rom. 8:33), yet he may be chastised. The Christian occupies an entirely different position from the non-Christian: he is a member of the family of God. The relationship which now exists between him and God is that of Parent and child; and as a son he must be disciplined for wrong-doing. Folly is bound up in the hearts of all God’s children, and the rod is necessary to rebuke, to subdue, to humble.

    The second distinction between Divine punishment and Divine chastisement lies in the recipients of each. The objects of the former are His enemies; the subjects of the latter, His children. As the Judge of all the earth God will yet take vengeance on all His foes; as the Father of His family God maintains discipline over all His children. The one is judicial, the other parental. A third distinction is seen in the design of each: the one is retributive, the other remedial. The one flows from His anger, the other from His love. Divine punishment is never sent for the good of sinners, but for the honoring of God’s law and the maintenance of His government. Divine chastisement is sent for the well-being of His children: “We have had fathers of our flesh which corrected us and we gave them reverence: shall we not much rather be in subjection unto the Father of spirits, and live? For they verily for a few days chastened us after their own pleasure; but He for our profit, that we might be partakers of His holiness” (Heb. 12:9, 10).

    Owen observes

    Chastising is an effect of his love. — It is not only consequential unto it, but springs from it. Wherefore there is nothing properly penal in the chastisements of believers. Punishment proceeds from love unto justice, not from love unto the person punished. Chastisement is from love to the person chastised, though mixed with displeasure against his sin.

    Do you agree? Or do you believe the same punishment can be both chastisement and retribution from the hand of the magistrate? Or do you believe some punishments are retributive while others are chastisements?

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    1. Agreed. My point was just that punishment is not the only duty of civil magistrates. They also have the duty to “countenance and maintain” the visible Church within their borders (WLC Q. 191).

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  14. “Hence I say that all things in God’s worship must have a warrant out of God’s Word. It must be commanded; it’s not enough that it is not forbidden. I beseech you to observe it. It is not enough that a thing is not forbidden, and you cannot see what harm there is in it. But it must be commanded. I confess that in matters that are civil and natural this may be enough. If it is according to the rules of prudence and not forbidden in the Word, we may make use of this in civil and natural things. But when we come to matters of religion and the worship of God, we must either have a command, or something out of God’s Word drawn from some command, wherein God manifests His will, either by a direct command, or by comparing one thing with another, or drawing consequences plainly from the words.”

    – Jeremiah Burroughs, Gospel Worship, p. 8.

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  15. I really appreciate this website especially with its dealings with God’s Civil Law. I do have a question however. Does this mean that the magistrate can take any law that is a part of one of the 10 commandments and make it a crime? For example, could a magistrate lawfully make drunkenness a crime? Certainly it is sinful, but drunkenness by itself is never criminalized in Scripture. If he can, how could he justly determine the penalty? And if this be so, could not the magistrate make laws against every sin, and become a “Christian tyrant” placing restrictions in areas of life that are not in his sphere of jurisdiction? Or is proper law dealing more with applying the moral judicial case laws of the OT in modern cultures. For example, making laws about car accidents and the purely accidental taking of human life based upon the axe head flying off the handle case law. Thanks :)

    In Christ Alone,
    John

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