The General Equity of the Old Testament Civil Laws

“Behold, I have taught you statutes and judgments…  this is your wisdom and your understanding in the sight of the nations, which shall hear all these statutes, and say, ‘Surely this great nation is a wise and understanding people.’…  And what nation is there so great, that hath statutes and judgments so righteous as all this law?”

Dt. 4:5-8

“It hath been said, ‘Whosoever shall put away his wife, let him give her a writing of divorcement.’ [Dt. 24:1-3]  But I say unto you that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery…”

Mt. 5:31-32

“To them also, as a body politic, He gave sundry judicial laws, which expired together with the State of that people; not obliging under any now, further than the general equity thereof may require.”

Westminster Confession, 19.4

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Subsection

Expositions of the Ten Commandments

Expositions of the Judicial Laws

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Order of Contents

Where to Start?
What does ‘General Equity’ Mean?
The Best Articles and Book
Historic Articles

In Latin
Modern Articles
Books

Historic Quotes  (45+)

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Where to Start?

Contemporary Articles

Myers, R. Andrew – ‘Theodidactic‘  2009, 4 pages, 13 paragraphs, Theodidactic means ‘God-taught’

Myers helpfully shows from a number of the puritans that Israel’s political laws are to be wisdom for modern civil governments.

Barth, Paul – Lex Propria – Proper Law’  2016  19 paragraphs  

Also note the 10 puritan quotations to the same effect in the comments below the article on 1 Pet. 2:13, “Submit yourselves to every ordinance of man for the Lord’s sake…”

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Historic Articles

Weemes, John – ‘Of the Excellency of the Moral Law above other Laws’  1632  8 pp.  being ch. 1 of An Exposition of the Moral Law, or Ten Commandments of Almighty God

Weemes was an early Scottish covenanter and Hebrew scholar.  Here he demonstrates from Scripture how the Moral Law is superior to the Judicial Law, which had a temporary and occasional nature.

Gouge, William – ‘Of the Judicial Law of the Jews’ & ‘Of the Moral Law’  †1653  2 pp.  in Commentary on Hebrews 7:12

“Gouge (1575-1653) was a member of the Westminster Assembly.  During the preparation of the Confession’s chapter on the law, the Assembly appointed a committee to consider propositions ‘about the meaning of the description of ceremonial and judicial’ laws, and Gouge was made a member of the committee.” – Sherman Isbell

Dickson, David – Truth’s Victory Over Error, ch. 19, Questions 4 & 5  1684  †1662  3 pp.  If it is easier to read, the whole section on the expiring of the Judicial Law is in the Quotes section below.

This was the first commentary in defense of the Westminster Confession.  Look up the proof-texts Dickson cites, and his arguments are inescapable.  

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What does ‘General Equity’ Mean?

‘General Equity’ means the universally applicable and binding moral principles in the Judicial Laws of Moses.  In its historical and theological context, ‘general equity’ was contrasted with ‘particular equity’.

‘Equity’, with relation to jurisprudence in the 1600’s (when the Westminster Confession, 1646, was written), is defined by the Oxford English Dictionary (1971) as:

‘The recourse to general principles of justice (the naturalis aequitas [natural equity] of Roman jurists) to correct or supplement the provisions of the law.  ‘Equity of a statute’: the construction of a statue according to its reason and spirit, so as to make it apply to cases for which it does not expressly provide.’

In the late 1500’s and early 1600’s, that in the Mosaic Judicials which was shared with all nations was often categorized as ‘common law’ (Junius, Zanchi, Althusius; see the Articles and Quotes sections below).  In the mid-1600’s the concept and language of ‘general equity’ (Beza, Bolton, Ussher, Palmer, Cawdry, Jus Divinum, Cheynell, Hall, Dickson) was often taken as synonymous with:

‘common equity’ (Perkins, Bolton, Jus Divinum, Sedgwick, Ussher, Henderson, Rutherford, Edwards, Hall, Milton),

‘natural equity’ (Beza, Althusius, Henderson, Shields),

‘moral equity’ (Althusius, Palmer, Cawdry, Rutherford, Edwards, Cheynell, Shields) and

a ‘general meaning’ (Palmer, Cawdry).  

At the height of reformed, scholastic orthodoxy in the late 1600’s, Francis Turretin uses the language of a ‘common right’ (as well as Zepper, Alting & Alsted and Jus Divinum earlier).  

Clearly the term ‘general equity’ was not so technical that it was hard to be understood.  It conveyed the broad, common sense meaning that theologians were all using various language to get at: the fundamental, moral and natural principles contained in the Mosaic Judicials that applied universally to all men and societies.

This equity in the Mosaic Judicials was understood to be according to and founded upon:

the ‘light of reason’ (Turretin),
‘universal law’ (Leiden Synopsis),
‘the principles of reason and nature’ (Jus Divinum),
‘the dictates of nature’ (Cheynell),
‘the light of nature’ (Hall),
the ‘instinct of nature common to all men’ (Perkins),
‘natural law’ (Rollock)
and the ‘law of nature’ (Bullinger, Alting, Sedgwick, Rutherford, Dickson, Turretin, Shields), which is ‘common to all nations’ and ‘peoples’ (Beza, Althusius, Alting, Hall) and is ‘written in the heart of man by nature’ (Henderson).

This natural equity which has been written on the human heart (Rom. 2:14,15) and into the Creation itself in its due relations, proportions and created ethical design (see the page: Natural Law, which is God’s Law by way of General Revelation), is in substance the same as that revealed by Scripture in the ‘Moral Law’ (Calvin, Althusius, Perkins, Palmer, Cawdry, Jus Divinum, Rutherford, Hall), especially as summarized in the Ten Commandments (Calvin, Bullinger, Alting, Sedgwick, Rutherford, Durham).  Thus the general equity of the Judicial Laws is recognized by that which agrees to Natural Law and the Moral Law, especially as summarized in the Ten Commandments.

Perhaps the most important (and neglected) concept in understanding ‘General Equity’ is its being historically distinguished from ‘particular equity’.  This distinction and contrast was integral to the classic reformed paradigm of civil law.  William Perkins wrote (Discourse of Conscience, 1596, p. 17):

“Therefore the Judicial Laws of Moses, according to the substance and scope thereof, must be distinguished; in which respects they are of two sorts:  Some of them are laws of particular equity, some of common equity.  Laws of particular equity, are such as prescribe justice according to the particular estate and condition of the Jews’ commonwealth and to the circumstances there of time, place, persons, things, actions.”

The concept of ‘particular equity’ was also largely synonymous for substance (though with some nuances) with: 

‘singular law’ (Junius),
‘proper law’ (Zanchi, Althusius),
‘proper right’ (Alting),
‘particular right’ (Zepper, Alting, Alsted, Sedgwick, Jus Divinum, Dickson, Turretin) and ‘particular law’ (Junius, Leiden Synopsis).  

See these authors in the Quotes section below for a fuller unfolding and application of this concept.

Thus, ‘general’, in the phrase ‘general equity’, was mainly understood (amongst other nuances) to refer to that which applies to all societies generally (in their genera), as opposed to that equity which was particular to Israel (in its specific temporal, geographic, cultural and typical peculiarities).

To see the classic Reformed interpretation of Matt 5 demonstrated and the specific method elucidated of how general equity is discerned in specific case laws, see the Westminster divines Herbert Palmer and Daniel Cawdry in their work regarding the 4th Commandment (published 1645, during the sitting of Westminster), Sabbatum Redivivum, or the Christian Sabbath Vindicated  Buy  (fascimile), quoted below, but especially around those quotations and generally as well.  They also demonstrate (contrary to the claims of those that say that some judicials which are more moral in nature have not expired) that neither a ceremonial law nor a judicial law can be wholly moral (and hence unexpired insofar as it is a judicial).

As all the judicials as a category have expired with the nation of Israel as bound under the older administration of the Covenant of Grace, the magistrate today (as was the heathen magistrate in the Old Testament) is to rule by natural and moral law (Rom. 13:3-4), especially as summarized in (all of) the 10 Commandments (see The Establishment Principle) and the general equity of the Old Testament judicials.

How does general equity apply penalties to crimes? 

Recognizing that various penalties existed within the judicial laws for the same crime and liberty was given therein (Ex. 21:22; 21:29-30; 21:23-25 with 22:1), that penalties were graded to accommodate different circumstances and degrees of severity (Ex. 21:31-36; 22:2-3), that they often reflected geographical and cultural customs of the people, along with circumstances that are not universally applicable or are no longer the same today (Ex. 22:2-3; 17Dt. 17:5; 19:6,1221:10-1422:8; 25:4,  9-1013-14), that Israel was sometimes in peculiarly heightened and extraordinary circumstances (Lev. 21:9Num. 15:30-36), that numerous practices were tolerated and civilly regulated due to Israel’s immaturity and the hardness of their hearts, till Christ came (Mt. 5:31-32 with Dt. 24:1-4; Gal. 4:1-5Ex. 21:2, 8-11), that penalties sometimes had spiritually symbolic aspects (Ex. 21:6Num. 5:13-31Lev. 21:9), that many of these laws had ceremonial aspects to them (Lev. 25:14-16; Dt. 15:12; 23:20), that the penalties were often left up to the judge to decide (Ex. 21:22Dt. 17:8-1125:1-3) and that these statutes were given peculiarly and particularly to Israel and not to other nations (Num. 27:8-11; Ps. 147:19-20):

Thus, it is clear that the various Mosaic penalties do not entirely reflect the unchanging will of the eternal nature of God towards all of his creatures in all cultures and circumstances (as does the Decalogue) and hence the specific penalties in the Mosaic Code, in their judicially binding force, have largely been understood by historic, Reformed Christianity as God-given particular-law for Israel: they are the specific enactments that applied common law to Israel’s particular circumstances, and, as such, are not strictly binding for other nations today.  

John Owen lays out how, while specific penalties may be modified, yet there are general, moral ends within them that must be upheld (Dissertation on Divine Justice, ch. 17, in Works, vol. 10, pp. 613-14):

“…The modification of punishment respects either its appointment or infliction. 
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Punishment itself is considered either in respect of its general end, which is the punishment of transgression, and has a regard to the condition of the creatures with respect to God; or in respect of some special end, and has a respect to the condition of the creatures among themselves. 
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But whatever modification punishment may undergo, provided it attain its proper end, by accomplishing the object in view, the nature of punishment is preserved no less than if numberless degrees were added to it.  As to the establishment of punishment, then, in a human court… that degree of punishment is just which is fit and proper for accomplishing the proposed end.
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…But not even in a human court can any such modification be admitted as would render the punishment useless in respect of its end…”
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Thus, the sovereignty of God and human rulers is upheld in their necessary ability and liberty to appoint various appropriate penalties for the crimes of their subjects under varying circumstances and conditions, while the unchanging nature of God and his moral law, and the civil ruler’s accountability to that, is upheld in upholding the fundamental, unchanging principles of law and justice that apply to all created persons in all cultures and circumstances.

In the articles and quotes below, see Rutherford, Gillespie and Baillie argue against the Theonomists of their day who held to the necessity of a wooden application of the Mosaic laws: the Erastians, Brownists and New England Independents.

Civil penalties today are to be implemented by governments for transgressions of Moral Law (in nature and as summarized in the 10 Commandments), not as determined by the letter of Israel’s specific Judicial Law, but according: 

(1)  to the natural and moral equity inherent in the specific situation and crime (this being a standard assumption of nearly every courtroom and culture, though it is sometimes applied far from what it should be, which natural reason and your average daytime radio talk show discerns), and

(2)  as the general equity and proportion of the Old Testament case laws ‘may require.’ (WCF 19.4)

 The Oxford English Dictionary gives as the broader definition of ‘equity’:

“The quality of being equal or fair; fairness, impartiality; even-handed dealing”

The punishment is to fit the crime (not less and not more, unless there are exceptional circumstances).

The magistrate derives its right and responsibility to implement the death penalty not from the Judicial laws of Moses, but from its natural, commissioned office from God the Creator (Gen. 9:5-6; the ‘sword’ in Rom. 13:4, and in jurisprudence, only has one purpose: to cut off a criminal’s head).  As the magistrate is to rule by God’s natural and moral laws (Rom. 13:3), the magistrate, according to the standard Reformation and Puritan view, was able to, and ought to, execute the death penalty for the severest crimes against any of the 10 Commandments.

Thus, you will find Robert Rollock, Thomas Cartwright, Samuel Rutherford and James Fergusson (in his A Brief Refutation), amongst others, arguing, not from the letter of the Judicials, but from moral and natural principles for the death penalty for the moral crimes against the Ten Commandments of severe, public, worshipping of false gods, idolatry, blasphemy, Sabbath breaking, rebellion against authorities, murder, adultery, theft, perjury, breaking and entering, etc., and not for all of the penalties (or all the death penalties) of the Mosaic Judicials.  

In their writings, as well as in the proof-texts of the Westminster Larger Catechism in its exposition of the 10 Commandments (Q. 98-148), you will see them illustrate and found their points on certain Mosaic case laws, not because the Judicial Law is binding in exhaustive detail, but because, as one would expect, God’s revealed civil code for Israel is founded on the Law of Nature, and in the severest breaches thereof, it cries out: ‘He shall surely be put to death.’ (Ex. 21:15-17; 22:19; Lev. 24:17, etc.)

In noting how the puritans and the Westminster Larger Catechism buttress their arguments upon the Mosaic Case laws, you will see how ‘general equity’, contrary to the understanding of much of puralistic Christianity today, has been understood and applied, rightly, by historic, Reformed Christianity.

For a further technical, historical elucidation and delineation of the definition and category of ‘general equity’ see the articles by Winzer, Isbell and Troxel.

Please carefully peruse these writings with much repentance, faith and strength in the Holy Spirit, and may God’s name be hallowed.

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The Best Articles and Book on the Historic Reformed View of General Equity

Contemporary Article

Winzer, Matthew – ‘The Westminster Assembly & the Judicial Law: A Chronological Compilation and Analysis. Part Two: Analysis’  Buy  from The Confessional Prebyterian Journal, #5 (2009), p. 56-88

This is the best and fullest article to date demonstrating that Theonomy is a departure from the Westminster Confession and the thought of the majority of the puritan era.

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Historic Article

Samuel Rutherford on the Judicial Laws of Moses: Excerpts Arranged Topically  1644-1649  32 pp. ed. Travis Fentiman

“As a Scottish commissioner to the Westminster Assembly, Samuel Rutherford (1600-61) sat with the drafting committee which bore primary responsibility for the text of the Westminster Confession…  In defending the role of the civil magistrate in suppressing heresy, Rutherford refers often to the question whether there is an enduring obligation in the judicial laws, and in this connection he uses the term equity in the same way as do the Genevans and the English Puritans.  Rutherford argues that the practice of magistrates must rest upon a broader justification than the Mosaic judicial laws. Apostolic doctrine and the law of nature hold forth a common moral equity that defines what remains pertinent in the judicial laws.  This common equity requires magistrates to punish moral offences, but it will not sustain an appeal to the specific penalties in the judicial laws.” – Sherman Isbell

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Historic Book

Junius, Francis – The Mosaic Polity  Buy  1592  216 pp.  The original Latin work is fully online, see below.

“Through clear distinctions and theses, and by drawing on diverse sources ranging from Greek and Roman law to medieval Christian theology, Junius develops a method of classifying and interpreting the Mosaic laws that honors both their particular Jewish context and their universal and perpetual significance.”

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Historic Articles  (chronological order)

Reformers

Bucer, Martin – Of the Reign of Christ, ch. 60, ‘The Fourteenth Law: the Modification of Penalties’ in Melancthon and Bucer  Buy  ed. Pauck (1969), pp. 379-384  †1551

Calvin, John – ‘Of Civil Government,’ sections 14-16  †1564  4 pp.  in Institutes of the Christian Religion, Book 4

Bullinger, Henry – ‘The Abrogation of the Judicial Laws’  †1575 3 pp.  being part of Decade 3, Sermon 8 of The Decade of Henry Bullinger, pp. 280-282

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Puritans & one non-Puritan

Zanchius, Jerome – ‘On Divine Laws’ & ‘On the Laws of the Jewish State’  being chs. 6 & 7 in On the Law in General  Buy  (CLP Academic, 2012) pp. 71-98  †1590

Hooker, Richard – ‘That Neither God’s being the Author of Laws, nor the Committing them to Scripture, nor the Continuance of the End for which they were Instituted, is any Reason Sufficient that they are Unchangeable’  d. 1600  8 pp.  being ch. 10 of Book 3 of Ecclesiastical Polity

Hooker (1554-1600) was the most foundational and important writer on law and polity for the Church of England.  His writing needs to be read with discernment as he is an Erastian and is largely arguing that the ecclesiastical form of government in Scripture is not of perpetual rule (contrary to Thomas Cartwright and the puritans).  However, he also discusses the positive (non-moral) aspects of the Mosaic civil law, for which the point of his chapter stands.  The Free Church of Scotland professor John MacPherson said of Hooker’s chapter, that, on the topic of the expiring of the ceremonial and judicial laws, it was:

“Perhaps the very best discussion of the subject now before us…”

Perkins, William – Discourse of Conscience, pp. 14-20  1596

Junius, Francis – ‘On Possible Changes in the Common Law of Moses’  †1602  7 pp. from ‘An Introduction to Moses’ Administration’, ch. 6 in The Theological Writings of Franciscus Iunius Biturigus (Geneva, 1607) in The Anonymous Writings of George Gillespie  Buy  (Naphtali Press, 2008) pp. 40-46  

In this section Junius expounds his understanding of ‘common law’ in Moses, roughly equivelent to general equity, as opposed to ‘particular law’, that which was unique to Israel (which section follows, but is not translated).  See below in the Quotes section for a quote.

Cartwright, Thomas  †1603

Helps for Discovery of the Truth in Point of Toleration…  wherein the power and duty of the magistrate in relation to matters of religion is discussed; as also whether the Judicial Laws given by Moses to the Jews are abrogated by the coming of Christ.  More particularly in relation to some sins, viz. blasphemy, adultery, etc.,…   12 pp.

The Second Reply of Thomas Cartwright against Master Doctor Whitgift’s Second Answer toughing the Church Discipline  (1575)  pp. 95-107 

Bayne, Paul – Commentary on Eph. 2:15, Use 2, pp. 161-162   †1617  2 pp.  the section begins on the bottom right of the right column of p. 161

Eph. 2:13-16, “But now in Christ Jesus, ye who sometimes were far off are made nigh by the blood of Christ.  For He is our peace, who hath made both [Jews an gentiles] one, and hath broken down the middle wall of partition between us; Having abolished in his flesh the enmity, even the law of commandments contained in ordinances; for to make in himself of twain one new man, so making peace;  And that he might reconcile both unto God in one body by the cross

Weemes, John – ‘Of the Judicial Laws in General’  1632  3 pp.  being ch. 1 of An Explication of the Judicial Laws of Moses

Weemes was an early Scottish covenanter and Hebrew scholar.

Ames, William  1576-1633

‘Of Heresy’  1639  5 pp.  being ch. 4 of Book 4 of Conscience with the Power and Cases Thereof

‘Of the Equity of the Mosaical Laws, which are Appendices to the 5th Commandment’  1639  4 pp.  being ch. 26 of Book 5 of Conscience with the Power and Cases Thereof

‘Of the Equity of Some Certain Mosaical Laws which belong to the 6th Commandment’  1639  5 pp.  being ch. 34 of Book 5 of Conscience with the Power and Cases Thereof

‘Of the Mosaical Laws belonging to the 7th Commandment’  1639  2 pp.  being ch. 40 of Book 5 of Conscience with the Power and Cases Thereof

‘Of Some Mosaical Laws belonging to the 8th Commandment’  1639  6 pp.  being ch. 52 of Book 5 of Conscience with the Power and Cases Thereof

‘Of the Equity of the Law of Taliation, established by Moses, against a false witness, Dt. 19:16 etc.’  (on the 9th Commandment) 1639  2 pp.  being ch. 56 of Book 5 of Conscience with the Power and Cases Thereof

Palmer, H. & Cawdry, D. – Sabbatum Redivivum, or the Christian Sabbath Vindicated  Buy  (fascimile)  See especially Part 1, pp. 3-4, 6-7, 17-18; 22-23; 26-27, 37, which sections are also quoted in Coldwell’s article in Confessional Presbyterian, vol. 5.  More very relevant quotes are in the quotes section below.

Samuel Rutherford on the Judicial Laws of Moses: Excerpts Arranged Topically  1644-1649  32 pp. ed. Travis Fentiman

“As a Scottish commissioner to the Westminster Assembly, Samuel Rutherford (1600-61) sat with the drafting committee which bore primary responsibility for the text of the Westminster Confession…  In defending the role of the civil magistrate in suppressing heresy, Rutherford refers often to the question whether there is an enduring obligation in the judicial laws, and in this connection he uses the term equity in the same way as do the Genevans and the English Puritans.  Rutherford argues that the practice of magistrates must rest upon a broader justification than the Mosaic judicial laws. Apostolic doctrine and the law of nature hold forth a common moral equity that defines what remains pertinent in the judicial laws.  This common equity requires magistrates to punish moral offences, but it will not sustain an appeal to the specific penalties in the judicial laws.” – Sherman Isbell

Edwards, Thomas – The Casting Down of the Last and Strongest Fold of Satan. Or, A Treatise Against Toleration and Pretended Liberty of Conscience, pp. 53-89  1647  Be the pages around this section have much more material on the subject.  Check the table of contents at the beginning.

Edwards (1599-1647) was a major defender of Presbyterianism in England and this article here is one of the most full from the time period respecting the Judicial Law, quoting numerous other orthodox divines of the day.  

“The Judicial Law concerning the punishments of likedness, for the substance, viz. that it should be punished remains under the Gospel, because it comes within the nature of the Moral Law, and was prescribed to the Jews, not quae [as] Jews or a people peculiarly taken into Covenant, but qua [as] men subject to the Law of nature as other nations were…

The Judicial laws may be considered according to their substance and equity, or according to many accessories, circumstances, forms and manner of them.  Now though the magistrate under the Gospel is not bound unto these laws simply, that is, to every circumstance and particular of them for form, manner, time and place; as for example, not to the same kinds and formality of punishments set down in those laws; for those forms are accessions of the law; and therefore out of the nature of persons, times, places, and constitution of commonwealths, mutable:  Yet he is bound to the substance and  equity of them, so as not to derogate from the right of those laws…  Now though to the degrees and measures of punishment, the severity and utmost rigor the Magistrate is not now tied, yet to the thing in cases of idolatry, seduction, false prophesying, speaking lies in the name of the Lord he is bound, and in some cases of gross and high idolatry and blasphemy committed presumptuously, to inflict capital punishment” pp. 50, 54-55

Shephard, Thomas – ‘The Judicial Laws’  †1649  2 pp. in Theses Sabbaticæ, Thesis 42 in Works, vol. 3, pp. 53-4  See also Thesis 40 on the Moral Law

“The learned generally doubt not to affirm that Moses’ judicials bind all nations, so far forth as they contain any moral equity in them, which moral equity does appear not only in respect of the end of the law, when it is ordered for common and universal good, but chiefly in respect of the law which they safeguard and fence, which if it be moral, it is most just and equal, that either the same or like judicial fence (according to some fit proportion) should preserve it still, because it is but just and equal that a moral and universal law should be universally preserved…”  p. 54

Fergusson, James – ‘The Second Argument that the Magistrate is bound to Suppress and Punish Error, Heresy, and other sins against the First Table’ pp. 61-66  1652  7 pp. from A Brief Refutation of the Errors Toleration, Erastianism, Independency and Separation

Fergusson was a prominent Scottish covenanter and Biblical commentator.  Here he argues along the same lines as Rutherford.

Roberts, Francis – ‘On the Moral Law and Judicial Law’  1675, 21 pages, being Book 3, Chapter 4, Aphorism 1, Question 2, Section 3 of his The Mystery and Marrow of the Bible: God’s Covenants with Man 

Roberts (1609–1675) wrote the puritan magnum opus on Covenant Theology.  This section from that work gives a window into the majority puritan view that the Moral Law in Moses (the Ten Commandments) continues to oblige in all ages, while the Judicial Law expired with the state of Israel (only the general equity therein continuing to oblige).  Roberts enumerates five very helpful distinctions that demonstrate the Biblical priority of the Moral Law over the Judicial Law in this respect.

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1800’s Scots

Bruce, Archibald – ‘Israel’s Theocracy’  1802  5 paragraphs from A Historico-Politico-Ecclesiastical Dissertation on the Supremacy of Civil Powers in Matters of Religion

Archibald Bruce (1746-1816) was pastor of… the Secession church…  he was elected… to be Professor of Divinity for the General Associate Synod.  Among the young men who sat under Bruce’s instruction… were Thomas M’Crie (Bruce’s successor in the chair), George Stevenson, Robert Shaw (who followed Bruce as pastor in Whitburn, and wrote a standard Scottish exposition of the Westminster Confession), and ‘Rabbi’ John Duncan.”

Shaw, Robert – An Exposition of the Confession of Faith, 19.4  1845  2 pp.  

Shaw was originally a Scottish Seceder who later came into the Free Church of Scotland.  His commentary on the Confession is the best that history has given to us.

Brown, John (of Edinburgh) – ‘The Giving of the Law’  1853 57 paragraphs from  An Exposition of the Epistle of Paul the Apostle to the Galatians on 3:19-4:5

This John Brown (1784-1858) was the justly famed exegetical commentator from the Scottish Secession Church, grandson to John Brown of Haddington.  Most of his commentaries have been reprinted by the Banner of Truth. 

Brown shows that the ‘law’ that was abolished in this passage by Christ’s coming, which had separated Jews and gentiles, refers to the whole Mosaic Law and administration generally as enforced by statutes, and hence includes the Judicial Law.  Only the moral elements of Moses (which was before Moses and inherent in much of Moses, applying universally as the natural and perpetual Moral Law) remains.

Gal. 3:19-4:5,  “Wherefore then serveth the law?  It was added because of transgressions, till the seed should come to whom the promise was madeWherefore the law was our schoolmaster to bring us unto Christ, that we might be justified by faith.  But after that faith is come, we are no longer under a schoolmaster…  There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus…  Now I say, That the heir, as long as he is a child, differeth nothing from a servant, though he be lord of all; But is under tutors and governors until the time appointed of the father.  Even so we, when we were children, were in bondage under the elements of the world:  But when the fulness of the time was come, God sent forth his Son, made of a woman, made under the law,  To redeem them that were under the law, that we might receive the adoption of sons.”

 MacPherson, John – ‘Of the Law of God’ sections 3 & 4  †1902  2 pp.  being ch. 19 of The Westminster Confession of Faith, with Introduction and Notes

MacPherson was a professor in the Free Church of Scotland.

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In Latin

Beza, Theodore – A Book Concerning the Civil Magistrate Punishing Heretics, against the mashed fodder of Martin Bell and the New Academic Sects  1554  See especially pp. 154-160Pages 222-23 as translated by Sherman Isbell:

“Although we do not hold to the forms of the Mosaic polity, yet when such judicial laws prescribe equity in judgments, which is part of the Decalogue, we, not being under obligation to them insofar as they were prescribed by Moses to only one people, are nevertheless bound to observe them to the extent that they embrace that general equity which should everywhere be in force…  The Lord commands that a deposit be returned, and that thieves be punished…  Because it follows natural equity, and expounds that perpetual precept of the Decalogue, Thou shalt not steal, to this extent all are bound to fulfill them both.  The thief is sentenced to make restitution for the theft, sometimes twice as much, sometimes four times as much…  This penalty is purely political, and it binds the one nation of the Israelites, to whom alone it was adapted.  Therefore it is permitted for the magistrate, in his exercise of sovereignty and for definite and good causes, to prescribe a more severe manner of punishment…  And to be sure, if anyone compares several of the laws of the Greeks, and many of the laws of the Romans, with the Mosaic, he will find a similarity among them in establishing penalties, so that it is sufficiently plain that all were adapted to the same goal of natural equity.”

Junius, Francis (†1602) & Immanuel Tremellius (†1580) – ‘Preface’ to The Old Testament of the Holy Bible in Latin  printed 1630  the pages of the preface are unnumbered, but see pp. 5-6 thereof, which starts ‘ex quibus pii at fideles

Junius, Francis – An Investigation into the Polity of Moses concerning what out of it is to be observed in the people of God and what is not to be observed after the promulgation of the Gospel of grace that has come through Jesus Christ  1602, 1st ed. 1592  This whole work has been translated into English.  See the books section below.

Table of Contents

Ch. 1 – Of the Right Definition and Division of the Law, 11

Ch. 2 – Of the Law of Moses and the Substance of it in General [or ‘in its Genera’], 34

Ch. 3 – Of the Part in the Judicial Laws of Moses and other Human Laws which is Immutable, 47

Ch. 4 – Of the Part in Human Laws which is Mutable, and the Causes of the Mutability, 63

Ch. 5 – Of the Particular Part in the Law of Moses which is Mutable, 73

Ch. 6 – Of that which is Common Law in the Mutable Part of the Law of Moses, 88

Ch. 7 – Of the Particular Law in Moses which is Wholly Mutable and Passing, 99

Ch. 8 – Of that which is Mutable in the Mixed Laws of Moses, 110

Polyander, Johannes – ‘Of the Civil Magistrate’  1625  being ch. 50 of Synopsis of Pure Theology, see especially sections 50-65    1625

Alsted, Johannes Heinrich – ‘Of Civil Polity’  1630  being the third book in vol. 4 of Encyclopedia, see the table of contents to this section on p. 1228, and specifically the section ‘Are Judicial Law Binding to Christians?’

“Of the forensic laws of Moses, those are perpetual which are of common right, or which have something moral. However, those have been abrogated which are of particular right, that is, such laws as were specially for the Mosaic constitution, and which have something ceremonial attached.” p. 1599, trans. Adam Brink

Maccovius, Johannes – ‘Disputation 14: of the Judicial Law’ in A Volume of Theological Theses of Common Places, pp. 102110  1639

Alting, Heinrich – ‘7th Place: of the Law of God’ 1646  13 pp.  in Common Places in The Scriptural Theology of Hedielberg, vol. 1, pp. 100-113, esp. p. 108 ff.

Alting was a delegate to the Synod of Dort (1618-19).

“The Judicial Law is entirely abrogated so far as it concerns the distinction of Jews from the Gentiles (Eph. 2:14-15) and the typical signification of the kingdom of Christ (Col. 2:17; Heb. 10:1).  However, as far as it concerns a form of civil government, it is abrogated in some particular aspects.  For whatever was a particular proper right, such as peculiarly concerned the Jews, of which sort was the law concerning the office of the Levites, as another concerning inheritances not being transferred from one tribe to another, all of this kind have ceased.  But insofar as it concerned common right, enacted according to the law of nature for all men together, of which sort are the laws concerning the punishments of crimes, these same all remain.  

The reason is that it enters into the order of the Moral Law and is thus perpetual.   It was prescribed to the Jews, not as Jews, as a peculiar people admitted into Covenant, but as men, by the Law of Nature, subject with the other nations.  If the same conclusion is recognized by the rule of common law from other [countries’] legislators, or it is discovered to be framed in view of the precepts of the Decalogue, it is sanctioned.”  p. 112, trans. Adam Brink & T. Fentiman

Rutherford, Samuel – ‘Of the Magistrate’ being ch. 19 of An Examination of Arminianism, pp. 728-752.  pp. 728, 732 (trans. T. Fentiman):

Rom. 13:4

It is queried whether a magistrate is authorized to impose capital punishment on the exceedingly shameful and murderers?  Some Remonstrants [Arminians] deny…  but others openly assert…

We all affirm to authorize, and the contrary sentiments we condemn and reject as errors:

1. For Gen. 9:6, “Whoso sheds man’s blood, by man shall his blood be shed.”  Ex. 21:14, “But if a man come presumptuously upon his neighbor, to slay him with guile; thou shalt take him from mine altar, that he may die.”  Num. 35:31, “Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death.”  which is not a judicial law and temporary, but is clearly effected out of the Law of Nature, which innocent blood cannot be expiated as in the Ceremonial or Judicial Law [Dt. 21:1-9].  But it says never: Num. 35:33, “So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.”  Mt. 26:52, “for all they that take the sword shall perish with the sword.”  But not all slayers, in fact, shall perish.  Therefore Christ says [means], by the law [de jure] that the magistrate keeps.

7.  The Law of Nature is the force that repels in force, and protects the right of life, able to kill when killed.”

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Modern Articles

Coldwell, Chris – ‘The Westminster Assembly & the Judicial Law: A Chronological Compilation and Analysis. Part One: Chronology’  Buy  from the Confessional Presbyterian Journal, #5 (2009), p. 3-55

This is an extensive anthology (excerpts in full) of the relevant writings during the sitting of the Assembly period touching on the Judicial Laws. 

Free Church of Scotland – The Report of the General Assembly: Theonomy and the Confession of Faith, 1998, 35 paragraphs

Isbell, Sherman – The Divine Law of Political Israel Expired: General Equity  no date, 44 paragraphs

Isbell’s article clearly articulates the issues at hand, historically defines “General Equity”, demonstrates how Theonomy collapses the Judicial Laws into the Moral Law so that only two categories of law remain (Moral and Ceremonial) instead of three, and analyzes the theology of numerous reformers and Scots on the issue.

Troxel, A.C. & Wallace, P.J. – “Men in Combat over the Civil Law: ‘General Equity’ in WCF 19.4”,  Westminster Theological Journal 64 (2002): 307-18

Robert Letham: “They consider the phrase ‘general equity’ against the background of English common law, where judges were accustomed to apply statute law and common law to particular situations, while the Court of Chancery functioned as an appeals court and adjudicated in areas where there was no clear application of the law, the Chancellor using ‘equity’ as a distinct principle to inform his judgment.”

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Books

Calvin, John – Sermons on Deuteronomy  d. 1564

Calvin here is at the most detail of how the particular judicial laws do and do not apply to modern civil government (these sermons are different from his commentary on Deut.).  His Sermons on Dt. 27 & 28 have been helpfully reprinted   Buy  in an easy to read format by the Theonomist James Jordon (who is highly not recommended for many other significant reasons), even though Calvin was not a Theonomist, but simply held to general equity.  Calvin here sets forth the Reformation standard of civil society that should be aimed at today.

Piscator, Johannes – Disputations on the Judicial Laws of Moses  Buy  1618, 213 pages, reprinted 2012, being originally an appendix his Commentary on Exodus

This work discusses the relevance of the Judicial Laws of Moses for Christian magistrates.  It was recommended by numerous divines in its own day. While Piscator says that the category of ‘moral judicial laws’ continue to bind (whereas the others have expired), note that he also, at times, says that only the general equity of those ‘moral judicial  laws’ continues to oblige, and not other particular and local aspects of them, hence paring down many of his strong statements regarding the Judicials to simply the general equity of the Westminster Confession.  

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Expositions of the Judicial Laws

Expositions of the Judicial Laws  5

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Order of Historic Quotes  (45+)

** – a Westminster divine
** – a Scottish covenanter

Martin Bucer  †1551                                     Samuel Rutherford  c. 1646  **  **  
Peter Martyr Vermiglil  †1562                   George Gillespie  1646 **  **
John Calvin  †1564                                       William Gouge  †1653  **
Henry Bullinger  †1575                                Francis Cheynell  1650  **
Jerome Zanchi  †1590                                  John Owen  1652
Robert Rollock  †1599  **                           Thomas Hall  1658
.                                                                         James Durham  †1658  **
Francis Junius  †1602                                  James Fergusson  1659  **
Thomas Cartwright  †1603                        Anthony Burgess  1661  **
Theodore Beza  †1605                                 John Milton  †1674
Johannes Althusius  1614                           Matthew Hale  †1676
William Zepper  1614                                   David Dickson  1684  **
Leiden Synopsis  1625                                 Francis Turretin  1687

Johannes Wolleb  †1629                              Alexander Shields  1687  **
J. Heinrich Alsted  1630                             Institutions of the Law of Scotland  1693  **
John Weemes  1632  **                                 Richard Kidder  1694  
William Ames  †1633                                    John Sage  1695
J.H. Alsted  †1638                                          Thomas M’Crie  1807
William Fenner  †1640                                 John Murray  †1975 
John Sedgwick  1643
Alexander Henderson  1643  **  **
Thomas Edwards  1644                               

Herbert Palmer 1644 **
Palmer, H. & Cawdry D.  1645  **
Samuel Bolton  1645  **                            
James Ussher  1645
Robert Baillie  1645  **  **
Heinrich Alting  1646
Jus Divinum  **
                 

      
                  


Historic Quotes

Martin Bucer  d. 1551

Of the Reign of Christ  HT: Rev. Shawn Mathis

Book 2, ch. 17, as quoted by John Milton, A Complete Collection of the Historical, Political and Miscellaneous Works of John Milton, vol. 1, p. 394

I confess that we being free in Christ, are not bound to the Civil Laws of Moses in every circumstance; yet seeing no laws can be more honest, just and wholesome, than those which God Himself gave, who is eternal Wisdom and Goodness, I see not why Christians, in things which no less appertain to them, ought not to follow the Law of God, rather than of any men…

Book 2, ch. 60

Forasmuch as we have been freed from the teaching of Moses through Christ the Lord, so that it is no longer necessary for us to observe the civil decrees of the law of Moses, namely, in terms of the way and the circumstances in which they are described, nevertheless, insofar as the substance and proper end of these commandments are concerned, and especially those which enjoin the discipline that is necessary for the whole commonwealth, whoever does not reckon that such commandments are to be conscientiously observed is certainly not attributing to God either supreme wisdom or a righteous care for our salvation.

Commentary on Matthew 5:19, as quoted by John Milton, A Complete Collection of the Historical, Political and Miscellaneous Works of John Milton, vol. 1, p. 394

Since we have need of civil laws and the power of punishing, it will be wisest not to contemn those given by Moses; but seriously rather to consider what the meaning of God was in them, what he chiefly required, and how much it might be to the good of every nation, if they would borrow thence their manner of governing the commonwealth; yet freely all things and with the Spirit of Christ. 

For what Solon or Plato, or Aristotle, what lawyers or Caesars could make better laws than God?  And it is no light argument, that many magistrates at this day do not enough acknowledge the Kingdom of Christ, though they would seem most Christian, in that they govern their States by laws so diverse from those of Moses.

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Peter Martyr Vermiglil  †1562

Common Places, ch. 16, p. 583, 586-7

2.  League [Covenant] is divided into the New and into the Old: which division is not of a general thing into special things, but of the subject into accidents.  Forasmuch as in either league the thing itself and the substance, is utterly one and the self-same: only certain qualities do vary.  For the Old League was made with one only nation of the Jews, and had certain things annexed; I mean the possession of the land of Canaan, the kingdom of the Jews, and the priesthood of Aaron…  And on the other side, in the New League, there be properties in a manner contrary.  For it pertains not to any one certain nation, but to all nations, how far soever the world be extended: neither is there any peculiar civil administration joined thereto.

Although there must be granted some differences, by reason of the accidents, which are that…  they had a certain and assured public-wealth [commonwealth], for the preservation wereof, they had civil precepts delivered unto them, which we have not.

11.  But as touching the other argument, that in the epistle to the Hebrews it is said, that “The Old Testament is abolished, and made void, the New taking place” (Heb. 8:13)…  

And if you will say that the prophet there also understands this word ‘testament’ in such sort as we now speak of it: we may then grant that by the coming of Christ, is made some abrogation; seeing those accidents, conditions and qualities which we have showed in the Old Testament, are now abrogated.  

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John Calvin  †1564

‘Of Civil Government,’ sections 14-16  4 pp.  in Institutes of the Christian Religion, Book 4

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Henry Bulllinger  †1575

‘The Abrogation of the Judicial Laws’  being part of Decade 3, Sermon 8 of The Decade of Henry Bullinger, p. 280

It remains for me to say somewhat concerning the abrogation of the judicial laws.  Now therefore the judicial laws do seem to be abrogated in this sense, because no Christian commonweal, no city or kingdom, is compelled to be bound and to receive those very same laws, which were by Moses in that nation, according to the time, place, and state, published and set out of oldTherefore every country has free liberty to use such laws as are best and most requisite for the estate and necessity of every place, and of every time and persons: so yet that the substance of God’s laws be not rejected, trodden down, and utterly neglected.  For the things which are agreeable to the law of nature and the Ten Commandments, and whatsoever else God has commanded to be punished, must not in any case be either clean forgotten, or lightly regarded…

…and that they may believe that the substance of God’s judicial laws is not taken away or abolished, but that the ordering and limitation of them is placed in the will and arbitrement of good Christian princes; so yet that they ordain and appoint that which is just and equal, as the estate of time, place, and persons shall best require, that honesty and public peace may be thereby preserved, and God the Father duly honored through his only-begotten Son Christ Jesus, to whom all praise is due forever.  For we do see that the apostles of Christ did neither require nor command any nation, in the administration of politic affairs, to bind themselves to the strict keeping of Moses’ law.

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Jerome Zanchi  †1590

On the Law in General (CLP Academic, 2012)

Ch. 2, ‘On Natural Law’, pp.9, 10, 13, 14

Common lawyers and theologians restrict natural law to human nature, defining it this way, “Natural law is the law common to all nations and that is obeyed everywhere by natural instinct, not by any statute.” (Gratian, Decretum, 1.7)  Jurists use this definition for the law of nations because all people employ these laws and are led by them…

Therefore, what jurists include in the law of nations, that is, human affairs, theologians and canon lawyers classify as natural law.  On the other hand, the apostle to the Romans 2[:14-15], when he speaks about natural law, describes it only as far as it concerns human affairs…

Some then define natural law in this way: Natural law, they say, is a common principle and, therefore, a distinct rule put into the hearts and minds of human beings by God Himself, warning them what they should do and what they should avoid.

Moreover, they define “common” [in “common law”] as follows: It is human beings’ shared knowledge, judgment, and perception by which all people without distinction pondering their actions in their hearts either condemn or absolve themselves.  This perception also comes from God when He speaks or inscribes his judgments in the hearts and minds of human beings

I.  I call natural law the “will of God” because it is the basis of all justice, and therefore the rule for all just actions.

Therefore, it is called “natural law” not so much because it is passed down to us from Adam naturally (we are, indeed, by nature blind and depraved toward true goodness, as I have said earlier) but because God has so impressed it into our very souls by inscribing some general, natural principles of worship, goodness, fairness, and honesty that they seem innate and natural to us.

Ch. 6, ‘On Divine Laws’, p. 81

Remember that this law [the Mosaic Law generally] was given to the Jews alone–not to the GentilesWhy, then, do the nations obey many of the things laid out in the Mosaic law?  They learned them from natural law

From these passages [Dt. 4:36-37; Ps. 147:20], it is clear that the Gentiles were never bound to these laws; only the Jews were bound because this law was given not to the Gentiles but to the Jews.  See Romans 2[:14]… and Rom. 2[:12]… Therefore Paul does not accuse the Gentiles of violating the Mosaic law as he does the Jews.  He, instead, condemns them for violating natural law.  Why is this?  Because a law speaks only to those who are under it.

Thus the Jews at the time of the apostles sinned in two respects when they wanted to subject Gentiles who converted to Christ to the Mosaic law: because the Gentiles had never been obligated by this law, and it did not apply to them at all because Christ Himself had freed even the Jews from this law.  How great is the iniquity then, if Christians want to subject people today, Gentiles and magistrates, to Judaic law?  As long as those laws were handed down to the Israelites, they did not apply to the Gentiles.  It is only when they coincide with natural law and were confirmed by Christ Himself that they apply to all people.

Ch. 7, ‘Of the Laws of the Jewish State’, p. 98

It is clear that these [judicial] laws endured from the time of Moses all the way to the renewal of the church that was built after Christ out of both Jews and Gentiles.  Then it was allowed for Gentiles to follow their own laws and Jewish laws, and for Jews to follow both theirs and Gentile law..

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Robert Rollock  1599  **

Select Works, vol. 2, p. 87-90 on Mt. 27:16-17

…Pilate uses all means to get Jesus loose; he uses the present occasion to that purpose; knowing the use [custom] of the Jews, he would have been glad to have had Jesus set at liberty, above all the prisoners.  To speak somewhat of this custom:

They had this custom, to get a prisoner set at liberty at festival times, to the honor of their feasts…  but therewith they dishonored God.  Is that to honor God, to break his commandment?…  We know this, there is nothing wherein a prince resembles God more than in clemency; but it is a sin to let a wicked man escape, or that the emperor should let him go; for God’s law says, Dt. 19:11-13, “Thine eye shall not spare the murderer, neither look upon him with a pitiful eye.”…  Some will say, has not a free prince license to give him his life, albeit the law of God says, “The murderer shall die the death?”…  

It is true, indeed, a prince should be loath to put out that life that God has put in, and should beware to judge rashly in capital crimes.  It is no small matter to make a crime capital; but if the crime be capital and deadly, the prince has no power to hold his hand aback from execution, and to forgive.  Indeed, for weighty and great considerations, a prince may mitigate [lesson] the punishment, but to say he may let the man go free, he has no power.  

But they will insist further, and say, Is not this on the the judicial laws that was given to the Jews–then what have we to do with it?  I answer, these laws, seeing the Jews, and their commonwealth, and laws politic, are abrogate, in so far as they concerned that people, we have nothing ado with them–they are abolished; but for as much as they are grounded upon nature, and natural law, we have ado with them.

As for this law, it is natural.  Ye know that natural men, ethnics, who had never the law of the Jews, they executed the murderer.  But yet they insist, and they will bring in the example of good kings, who forgave capital crimes committed against the very universal and natural law; and namely of David.  Forgave he not Joab for slaying of Abner and Amasah? and Amnon, for committing incest? and again, forgave he not Absalom for slaying of Amnon, his brother?  But I answer: We are bound to live by God’s laws, and not by examples…  

Indeed, there is a difference between these crimes that are capital, and the crimes that in their own nature are not capital, but by the laws of princes are made capital; for upon just considerations, the prince has power to dispense with them: as, for example, it was not deadly of the own nature to Shimei to go out of the ports of Jerusalem, but because Solomon forbade it, it became deadly.  Like as it is in the hands of princes to make and to change such special laws; so it lies in his hands to forgive such a man transgressing them, upon weighty and great considerations.  So, to return, these crimes that are capital by natural law, a prince has no power to remit them, albeith he were ruler of all the world; he derogates to God’s glory.

And secondly, if there were no more to let us see that God has not given that power to forgive capital crimes against God’s law and nature, the judgments of God which ceased on such men and their posterity were sufficient to show it

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Francis Junius  †1602

‘On Possible Changes in the Common Law of Moses’, from ‘An Introduction to Moses’ Administration’, ch. 6 in The Theological Writings of Franciscus Iunius Biturigus (Geneva, 1607) in The Anonymous Writings of George Gillespie  Buy  (Naphtali Press, 2008) pp. 40-41

As we have established before, it is clear, from the law of Moses and from other related laws, there are two bases for the law – common law and singular law.  Common law is the law given by God through Moses to the Jews as members of a larger community – humankind.  Singular law or particular law given by God to the Jews as members of a more restricted community – their religious community…

…and the principles underlining the common and civil law of Moses still apply today, because the underlining basis for justice and law is one and immutable; but the circumstances, which are subject to change, imply that analogy, with respect to the law, may allow certain changes.  

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Thomas Cartwright  †1603

Reply of Thomas Cartwright to the Answer to the Admontion to Parliament, as quoted by Archbishop John Whitgift, Works, vol. 1, p. 270.  HT: Andrew Myers
And, as for the judicial law, forasmuch as there are some of them made in regard of the region where they were given, and of a people to whom they were given, the prince and magistrate, keeping the substance and equity of them (as it were the marrow), may change the circumstances of them, as the times and places and manners of the people shall requireBut to say that any magistrate can save the life of blasphemers, contempuous and stubborn idolaters, murderers, adulterers, incestuous persons, and such like, which God by his judicial law hath commanded to be put to death, I do utterly deny, and am ready to prove, if that pertained to this question.  And therefore, although the judicial laws are permitted to the discretion of the prince and magistrate, yet not so generally as you seem to affirm, and, as I have oftentimes said, that not only it must not be done against the Word, but according to the Word, and by it.

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Theodore Beza  †1605

Concerning the Rights of Rulers Over Their Subjects and the Duty of Subjects Towards Their Rulers, trans. Henri-Louis Gonin, ed. A. H. Murray (Cape Town: H.A.U.M., 1956), p. 68. The work was published in 1574 as De Iure Magistratuum.  As quoted by Sherman Isbell.

If again someone were to raise the objection that public law referring to the constitution of the people or nation… differs widely from the law of nature common to all nations, I shall concede that this is true indeed in certain matters, but with this limitation that that entire distinction is connected with circumstances which cannot prevent general fairness and equity [generalis illa aequitas et epieicheia] from so far remaining steadfast and invariable that every polity acting in violation of it – as for example if undisguised impieties, robberies and similar crimes both against God and against the law of nations and good morals were to meet with approval – should be utterly condemned and cast off.

De Haereticis a Civili Magistratu Puniendis Libellus (Geneva: Robert Stephanus, 1554), pp. 222-23.  Translated by Sherman Isbell.

Although we do not hold to the forms of the Mosaic polity, yet when such judicial laws prescribe equity in judgments, which is part of the Decalogue, we, not being under obligation to them insofar as they were prescribed by Moses to only one people, are nevertheless bound to observe them to the extent that they embrace that general equity which should everywhere be in force…  The Lord commands that a deposit be returned, and that thieves be punished…  Because it follows natural equity, and expounds that perpetual precept of the Decalogue, Thou shalt not steal, to this extent all are bound to fulfill them both.  The thief is sentenced to make restitution for the theft, sometimes twice as much, sometimes four times as much…  This penalty is purely political, and it binds the one nation of the Israelites, to whom alone it was adapted.  Therefore it is permitted for the magistrate, in his exercise of sovereignty and for definite and good causes, to prescribe a more severe manner of punishment…  And to be sure, if anyone compares several of the laws of the Greeks, and many of the laws of the Romans, with the Mosaic, he will find a similarity among them in establishing penalties, so that it is sufficiently plain that all were adapted to the same goal of natural equity.

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Johannes Althusius  3rd ed. 1614

Politica  Buy  (abridged, Liberty Fund, 1995) ch. 21, pp. 144-148

§29  The Decalogue has been prescribed for all people to the extent that it agrees with and explains the common law of nature for all peoples.  It has also been renewed and confirmed  by Christ our king.  Jerome Zanchius says that this is the common judgement of theologians (De Redemptione, I, 10, 1 [actually thesis 1 of the second section (“De legibus humanis“) of Chapter 10].)…

§30  Proper law (lex propia) 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.

§31  Proper law is established for two principal reasons, as Zanchius says [De Redemptione, I, 11, 1].  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…  In this sense, it is said that “law is set forth not for the just, but the unjust.” (1 Tim. 1:9)

§32  There are two parts of this [proper] law.  The first is its agreement with common law, and the second is its difference, as Francis Junius observes (De Politicae Mosis Observatione) and the jurists teach (In commentaries on the Digest I, 1, 4)…

Its agreement (convenientia) with common law is in those matters common to each law, namely, in the starting point from which analogical deductions are made, in the subject under consideration, and in the purpose…  The purpose of each [common and proper law] is justice and piety, or sanctity, and the same equity and common good in human society.

Its difference (discrepantia) from common law arises from the fact that, in accommodation to particular and special circumstances, it departs somewhat from common law, adding or subtracting something from it.    Proper law differs for two reasons, each of which provides a necessity for adding or subtracting something from common law.  And so mutability, or the possibility and necessity of just changes, is introduced…  Since the nature and condition of these circumstances may be diverse, inconstant, and changeable, it is not possible for proper law to acknowledge one and the same disposition of common law for everything and in everything, as Junius and Zanchius, together with the jurists, say.  

Therefore, this law is rightly said to be mutable or subject to change with respect to circumstances and its consequent difference from common law.  But it is altogether immutable with respect to its agreement with common law.  So the jurists assert together with Junius, Zanchius, Martyr, and Bucer.  Thus common or moral law concludes from its principles that evildoers ought to be punished, but proposes nothing concerning the punishment.  Proper law determines specifically that adulterers, murderers, and the like are to be punished by death, unless the punishment should be mitigated because of further circumstances.  Various punishments, for example, exist in the Mosaic Law for these crimes…  For this reason, the moral precepts of the Decalogue, having no certain, special, and fixed punishment attached to them, are general.  The forensic and political law then makes specific determinations, which it relates to the circumstances of any act.

§34  This proper law is one thing among the Jews, another among the Romans, another among the Germans today, and still another among other peoples…

§35  Jewish proper law is twofold.  It is in part ceremonial, and in part forensic or judicial…

§37  The forensic [judicial] law was the means by which the Jews were informed and instructed to observe and obey both Tables, or the common law, for the cultivation of human society among them in their polity, according to the circumstances of things, persons, place, and time

§40  It should be observed that often one and the same law of the Jews could be said in varying respects to be moral (or common), ceremonial, and forensic, and to this extent mixed.  What is moral in such a law is perpetual; what is judicial can be changed by the change of circumstances

Ch. 22, §3  From these things it follows that the magistrate is obligated in the administration of the commonwealth to the proper law of Moses so far as moral equity or common law are expressed therein.  This is to say, he is required to conform to everything therein that is in harmony with common law.  But he is by no means required to conform in those things in which the proper law of Moses, in order to be accommodated to the polity of the Jews, differs from common law.

§4  For if the magistrate should establish as absolutely necessary these proper Jewish laws, which by their nature are either changeable or obsolete, he would destroy christian liberty, which has been given for edification to him and to others, and would entangle himself and others in the yoke of slavery.  Thereby he would make a necessity of something free, and impede consciences by a grievous and dangerous snare.  He would obtrude mortal laws, which were promulgated in former times only for the Jewish people and are by their nature subject to change for a variety of reasons, as if they were immortal.  And unless proper laws are changed with the changing circumstances because of which they broadly exist, they become wicked and attain neither to the equity of the Second Table of the Decalogue nor the piety of the First.  Thus they cease to contain the common foundation of right reason.  Accordingly, the magistrate who makes the proper law of Moses compulsory in his commonwealth sins grievously.  For those particular circumstances and considerations because of which the Jewish proper law was promulgated should bear no weight in his commonwealth…

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William Zepper  1614

Legum Mosaicarum Forensium Explanatio, 2nd ed. (Herborn: 1614), 71. Trans. Vindiciae Legis. 

“A violator of the Sabbath was to be punished capitally, not civilly from common right but by particular and ceremonial right.”

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The Leiden Synopsis  1625

Johannes Polyander, Disputation 18, Concerning the Law of God, Theses 49-51

The political law is what determines the duties of the governing officials and the subjects of the Israelite nation by means of certain civil regulations.  It lends authority to them through the corporal punishment of those who rebel, in keeping with the norm of the Decalogue’s two tables, and in particular the second one.  

The foremost use of this political law is that by the precise keeping of the precepts of the moral and ceremonial laws, justice might thrive in conjunction with piety especially among the Jews.

Even to the present day governing officials and their subjects one and all are obliged to obey those precepts in this political law that belong to the universal law; however, the ones that belong to the particular Jewish [political] law have become obsolete along with the Mosaic system of government.

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Johannes Wolleb  †1629

Compendium of Christian Theology (Baker, 1965) ch. 14  ‘The Ceremonial and Political Law’, p. 79, 84

1.  The ceremonial and political law is ancillary to the moral law; the former is especially on the first table, and the latter on the second.

(6)

So much for the ceremonial law.  The political law dealt with the civil constitution of the Jews.

Propositions

I.  As the ceremonial law was concerned with God, the political was concerned with the neighbor.

II.  In those matters on which it is in harmony with the moral law and with ordinary justice, it is binding upon us.

III.  In those matters which were peculiar to that law and were prescribed for the promised land or the situation of the Jewish state, it has not more force for us than the laws of foreign commonwealths.

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Johannes Heinrich Alsted  1630

Encyclopedia, vol. 4, p. 1599, trans. Adam Brink

Of the forensic laws of Moses, those are perpetual which are of common right, or which have something moral. However, those have been abrogated which are of particular right, that is, such laws as were specially for the Mosaic constitution, and which have something ceremonial attached.

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John Weemes  1632  **

An Explication of the Judicial Laws of Moses, pp. 1-3

These Judicial Laws were determinations of the Moral Law.

A determination is either Iuris Divini [Divine law] or Humani [human]; these determinations in Moses’ Judicial Laws are Divini Juris; therefore they had greater force to bind the Jew, than any municpal law has to bind the subjects now, in respect they were given by God Himself, and these laws of men which draw nearest to them in equity, are most perfect; although particularly they cannot be fitted to every nation, no more than a shoe of one measure can serve for every foot.

Fourthly, the punishments inflicted by human laws are alterable: so were the punishments in Moses’ Judicial Law; therefore the Jews say of them, ascendunt et descendunt [ascending and desceding], which they understand, not of the greatest and highest transgressions, but of the middle sort of transgressions, which praecepta media, their middle precepts did forbid.  Example, Ex. 21:29-36, If a man kept a pushing ox, knowing that he were wont [accustomed] to push, if he kill a man, then the Law ordains that the man shall die, or else to redeem himself with a sum of money; here the law ascended or descended: but if a man had willfully killed a man, that was praeceptum grave [a grave precept], the punishment neither ascended nor descended, but he was to die the death.  

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William Ames  †1633

The Substance of Christian Religion, p. 209-210

Doctrine: 1. This Law of God contained in the Decalogue, or Ten Words (that is brief sentences) is the most perfect rule for directing of the life of man.

This is gathered from the definition, which we said before was pointed out in two circumstances: because it has not only God for its author, but is also given with singular majesty in the perfectest manner, as after extraordinary preparation, that we may understand all perfection that can be desired in any law, is to be found in this.

Reason 1:  Because it prescribes all the duties of man, whether they look at God Himself directly, as in the First Table; or our neighbor, as in the Second.

Reason 2:  Because in all those duties it not only requires the works themselves, but also the most perfect way of working them; to wit, that they come from the whole heart, and from the bottom of the heart; that is, from the entire strength of the whole man and with perfect purity and sincerity, and that they be directed to the glory of God.

Reason 3:  Because it contains in itself a delineation or draught of that perfection whereunto man in his first or innocent nature was created, according to the image of God.  And therefore also it is called the Law of Nature, because that rule of life, which was written in the heart of man, according to its primitive and pure nature, is in this Law explained.

Reason 4:  Because it belongs not only to one nation, as the Judicial Law did; nor unto some certain time only, as the Ceremonial Law did; but it is the common law of all nations, times, and persons.

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J.H. Alsted  †1638

Alsted (1588-1638) was a German Reformed theologian who was a member of the Synod of Dort.  As quoted by Robert Bolton, True Bounds of Christian Freedom, p. 72

“Of the Judicial Law, there are things perpetual, such as common law, or which have something moral, but the things abrogated are particulars…”

Ex legibus judicialibus illae sunt perpetuae quae sunt juris communis, sive quae habent aliquid morale, illae vero abrogatae quae sunt particularis, etc.

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William Fenner  d. 1640

Four Profitable Treatises; of the Sabbath, p. 184  1657

I conclude the proof of this point with the saying of our Savior Christ, Matt 5:18, “Heaven and earth shall pass away, but not one jot or title of the Law shall pass away:”  Mark, our Savior says there, that there shall not one jot or title of the Decalogue pass away.  As for the Ceremonial, and Judicial Law, they stand not still, but the whole compass of them is removed, the Ceremonial Law is quite and clean abolished; and the Judicial Law, in many particulars; therefore our Savior meant it not of those two Laws, but he speaks of the Decalogue, and He says, Heaven and earth shall passe away, before one jot of it shall pass away, much less an whole branch be rooted out.

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Alexander Henderson  1643  **  **

A Sermon preached to the Honorable House of Commons at their late solemn fast, Wednesday, Dec. 27 on Ezra 7:23, 1643, p. 30

This consideration may be very useful: For it may first serve to be a cure of two great ills in this land: One is of such as conceive that the Law of God, belongs not to Christians; They may as well say that common and natural equity belongs not to Christians.  Is it not written in the heart of man by nature?  Is it not confirmed by Jesus Christ?  Is it not recommended to Christians by the apostles?  Is it not established by faith?  Is not the observing of it, a testimony of our communion with God?  Is not the end of it love from a pure heart, a good conscience, and faith unfeigned?  Is it thankfulness to God, because we are delivered from the condemnation, coaction [compulsory force], and rigor of the Law, not to acknowledge the obligation of the Law?  Shall not the domestics of the house of God observe the commandments of God, or shall they not be grieved when they transgress and observe them not?

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John Sedgwick  1643

Antinomianism Anatomized…,  p. 7 as quoted in Chris Coldwell, ‘The Westminster Assembly & the Judicial Law: A Chronological Compilation and Analysis’ in The Confessional Presbyterian, vol. 5 (2009) p. 9

A Threefold Law.

You must know that there were three sorts of Laws delivered by God to Moses… 2. Judicial, which were peculiar ordinances given by God to Moses, for the well ordering of the Common-wealth of Israel.

This Law concerned the Jews not simply as men, but as Jews; the national, personal, or particular binding right of this Law rested so in them, that it died with the decay of their commonwealth: only the common equity or right hereof remains as far as it was grounded on the Law of Nature, served directly to confirm any of the Ten Commandments, or to uphold the good of family, Church, or commonwealth, it is still in force, and of good use

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Thomas Edwards  1644

Antapologia, or, A Full Answer to the Apologetical Narration of Mr. Goodwin, Mr. Nye, Mr. Sympson, Mr. Burroughs, Mr. Bridge, members of the Assembly of Divines wherein is handled many of the controversies of these times (1644) p. 69

For in the Old Testament there are many rules, directions and examples, as a pillar of fire to guide the Churches now by (as that Rom. 15:4 shows) namely those examples and rules of moral and common equity, else the Church of God should loose now many a good ground, for many practices…  Now if you [Independents] will use the Old Testament in some examples and commands, as you do (though here you forget to mention it), then grounds out of the Old Testament (in matters not ceremonial and judicial proper to the Jews’ policy, nation and times) but in things of moral and common equity will justify other practices

The Casting Down of the Last and Strongest Fold of Satan. Or, A Treatise Against Toleration and Pretended Liberty of Conscience, pp. 50, 54-55

The Judicial Law concerning the punishments of likedness, for the substance, viz. that it should be punished remains under the Gospel, because it comes within the nature of the Moral Law, and was prescribed to the Jews, not quae [as] Jews or a people peculiarly taken into Covenant, but qua [as] men subject to the Law of nature as other nations were

The Judicial laws may be considered according to their substance and equity, or according to many accessories, circumstances, forms and manner of them.  Now though the magistrate under the Gospel is not bound unto these laws simply, that is, to every circumstance and particular of them for form, manner, time and place; as for example, not to the same kinds and formality of punishments set down in those laws; for those forms are accessions of the law; and therefore out of the nature of persons, times, places, and constitution of commonwealths, mutable:  Yet he is bound to the substance and  equity of them, so as not to derogate from the right of those laws…  Now though to the degrees and measures of punishment, the severity and utmost rigor the Magistrate is not now tied, yet to the thing in cases of idolatry, seduction, false prophesying, speaking lies in the name of the Lord he is bound, and in some cases of gross and high idolatry and blasphemy committed presumptuously, to inflict capital punishment.

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Herbert Palmer  1644

The Glass of God’s Providence  1644  p. 52  In the context of a rule in Scripture for Church Government.

That whatsoever Law of GOD, or command of His, we find recorded in the Lawbook, in either of the volumes of God’s statute, the N. T. or the Old, remains obligatory to us, unless we can prove it to be expired, or repealed.  So it is with the statute-law of this nation [England], or of any nation; What I can prove to be once enacted, I may urge as still in force, unless any one can answer me with a just proof that it is now out of date, or repealed by a latter Law.

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Palmer, H. & Cawdry D.  1645  **

Sabbatum Redivivum, or the Christian Sabbath Vindicated  Buy  (fascimile)  What is below is in addition to the sections referenced in the Historic Articles section above.

The First Part, 1645,

pp. 63-4, 66

But here is on exception [by our opponents] more to our first general answer: “That (forsooth) the instances made by our Savior in the following part of the [5th] chapter [of Matthew] are not all Moral Laws.  For…  in the 31st verse He brings and expounds a law judicial concerning divorce, and verse 38, another judicial of retaliation.”

This we shall thus discharge:  …3. As for judicials instanced in, if we granted them both such we could easily answer that those which are produced are not brought in [to the end of Mt. 5] for their own sakes, but for the explication of the Moral Commandments to which they did belong.  And then one of them, to begin with (which we desire him seriously to consider) mentioned, not to be confirmed, but rather to be destroyed from this time forth.  For the law of divorce mentioned, verse 31, is by our Savior quite disallowed and disanulled:

“It has been said (viz. by the Mosaical Law by way of indulgence) whosoever shall put away his wife, let him give her a bill of divorce; but I say unto you, whosoever puts away his wife, except for fornication, causes her to commit adultery, and he that marries her that is put away, commits adultery.”

As if He had said, “I now put an end to that Law, and bring you to the Law of the Decalogue.”

…So still it will remain that all the laws that Christ expounds are Moral, and so not other are meant in those verses 17-19 [of Mt. 5] whence we fetch our argument.

In conclusion, whatsoever men talk of the ceremonials and judicials included in verse 17 [as Greg Bahnsen], we would desire them but to remember that (as we showed) Christ does even now destroy the law of divorce, and then let them make sense of this if they can:“Till heaven and earth pass, one jot or tittle of the Law shall not pass, and yet I now destroy the law of divorce,” which is to put upon Christ a flat contradiction, besides that which reflects upon verse 19, of which by and by. 

Therefore we must conclude, if Christ in this sermon expound no ceremonial or judicial, and one judicial He plainly destroys, then [in] verse 17 He only speaks of the Moral Law.  [see the pages following for more on the interpretation of Mt. 5:19]

pp. 298-9

The general meaning and scope of every Commandment of the Decalogue, is without controversy perpetual and moral.  Our advarsaries [anti-Sabbatarians] everywhere speak to that purpose when they fly from the words of the Fourth Commandment to a general meaning and moral equity, and the like;…  but we take in the mean time their grant of a general meaning moral an perpetual… For it is no more than they (and all divines besides) usually ascribe to the Festival Sabbaths which are in their particularities undeniably ceremonial.  And usually also even all the rest of the ceremonials (and so of the judicials too) are acknowledged to have some general morality in them, which is perpetual

Now this general meaning and moral scope we are speaking of, restraining all times necessary to religion, to God’s own appointment, it does by a sure inference, from the general to the particular, restrain the chief time necessary to religion for all men, to God’s appointment, and peculiar determination, infallibly.

2nd Part, 1651-2

pp. 49 ff.

The Fourth Commandment in the letter of it, is a moral precept

Before we come to state the question now before us, we shall desire leave to premise a double consideration; the first is this, that to judge aright of the nature of any law, we must carefully distinguish between a law, and the appendixes or additions belonging to that law.  We explain ourselves thus: there are many truly moral laws, and so confessed by all, which have ceremonial, or judicial appendixes belonging to them.  Hence is that common saying that the Ceremonial Law determined the moral, in order to God; the political or judicial, in order to men, in a civil society; and both in accommodation to that state of the Church (Aquinas, 12, q. 101). 

On the other side, there are many ceremonial and judicial laws which have a general equity attending on them; so we are told by some of the adverse party.  These (the Ceremonial and Judicial Laws) have something in them which is juris moralis [moral law] and so far forth are contained under the moral precepts; that is, as we take it, in regard of their general equity.

[Note that above the authors speak of the Judicial Law, and hence in the train of thought below, Judicial Law, can be transposed for Ceremoninal Law, contrary to those who would make some judicials wholly moral.]

Now the way to judge of the nature of a divine law, whether it be moral or ceremonial, is not to proceed upon either of these.  For as general equity cannot make a ceremonial commandment to be moral, or so accounted; so, nor can a special ceremonial appendix make a moral commandment ceremonial That would bring in a strange confusion of divine laws: moral should be ceremonial, and ceremonial moral.  What is then to be resolved on, in this case?  We must carefully distinguish the substance, subject, matter of the commandment from all additions thereunto, or collections therefrom. 

The Law is thence to receive its denomination of moral or ceremonial:  If the substance, subject, matter of it be ceremonial, it is not any general equity that style it properly moral.  If the substance, etc. of it be moral, it is not any ceremonial appendix that can style it ceremonialOtherwise one and the same law should be both moral and ceremonial; which yet are generally distinguished by all, as distinct species of divine laws.

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Samuel Bolton  1st ed. 1645  **

The True Bounds of Christian Freedom (London: 1656) p. 72

Secondly, [the word ‘law’ in Scripture may be taken] for the Judicial Law, which was an appendix to the Second Table; and was an ordinance containing precepts concerning the government of the people in civil things:

1.  That there might be a rule of common and public equity.
2.  That they might be distinguished from others.
3.  That the government of Christ might be typified.

And so here as this was typical of Christ, so far it is ceased; but that which is of common and general equity remains still in force.  It is a maxim, ‘Those judgments which are common and natural, are moral and perpetual.’  But in these two [the Ceremonial and Judical Laws] we find few dissenters [as to how they are interpreted].  All the controversy will be in the third [category: the Moral Law].

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James Ussher  1645

“No other single theologian perhaps had as much indirect influence on the compilations of the Westminster Assembly as James Ussher.  Next to the Irish Articles this work was the next in importance.”

– Chris Coldwell, ‘The Westminster Assembly & the Judicial Law: A Chronological Compilation and Analysis’ in The Confessional Presbyterian, vol. 5 (2009) p. 30

Body of Divinity  p. 204

What call you the Judicial Law?

That wherein God appointed a form of politic and civil government of the commonwealth of the Jews, which therefore is ceased with the dissolution of that State, for which it was ordained; saving only in the common equity.

Is this law utterly revoked and abolished by Christ?

No; for He came not to overturn any good government of the commonwealth, much less that which was appointed by God Himself.

May not Christian Magistrates then swerve any thing from those laws of government, which were set down by Moses?

In some circumstances they may, but in the general equity and substance they may not.

What Judicial laws are immutably to be observed now of Christian Magistrates?

Those which have reasons annexed unto thēm and specially those wherein God has appointed death for the punishment of heinous offenses.

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Robert Baillie  1645  **  **

A Dissuasive from the Errors of the Time

p. 31, 49-50

But their [the separatist Brownists] great tenet about the magistrate, is this, that no prince nor State on the earth has any legislative power; that neither king nor parliament can make any law in anything that concerns either Church or State; that God alone is the Lawgiver; that the greatest magistrate has no other power, but to execute the laws of God set down in Scripture;

(Bar. Dis., p. 84.  “I am persuaded, that the magistrate ought not to make permanent law of that the Lord has left in our liberty.”  

Ibid., p. 255.  “We approve all the laws of God, to be most holy and inviolable, and all-sufficient both for Church and Commonwealth, and the perfect instruction of every member and officer of the same, in their several duties, so that nothing is now left to any moral man of what high dignity and calling soever, but to execute the will of God according to his Word.”)

That the Judicial Law of Moses binds at this day all the nations of the world as well as ever it did the Jews:

(Bar. Disc., p. 108.  “God will have his laws and statutes kept, and not altered according to the state and policy of times; for these laws were made, not for the Jews’ estate, as master Calvin teaches; but for all mankind, especially for all the Israel of God, from which laws it is not lawful in judgment to decline to the right hand, or to the left.  By the neglect of these laws, the whole world overflows with sin.”

Ibid., p. 212.  “In the Commonwealth they have abrogated all God’s Judicial Laws, and cut them off at one blow, as made for the Commonwealth of the Jews only, as if God had no regard of the conversation of other Christians, or had left the gentiles in greater liberty to make laws and customs to themselves.”)

They tell us that whatever God in Scripture has left free, it may not be bound by any human law, whether civil or ecclesiastic; and what God has bound by any law in Scripture, they will not have it loosed by the hand of any man.

They lay it up upon the magistrate to punish by death, without any dispensation, every adulterer, every blasphemer, every Sabbath-breaker, and above all, every idolater.  

(Ibid.  “Hereby it comes to pass that so many ungodly laws are decreed, and the whole course of justice perverted, that so many capital mischiefs as God punishes by death, such as blaspheme the Name of the Lord, open idolatry, disobedience to parents, are not by law punished at all: incest and adultery, are either passed over or punished by some light or trifling punishment.”  

Ibid., p. 155.  “The High-Commission punishes the most execrable idolatries but with prisons or forfeitures, making it a pecuniary matter, contrary God’s Word.)

And here is the great danger, that by idolaters they will have understood, not only pagans and papists, but the far greatest part of all Protestants, all absolutely who are not of their way; for, the using of a set prayer, were it the Lord’s own Prayer, to them is clear idolatry.  For all this, they will not permit any magistrate to hang any thief at all.

(Bar. Disc., p. 211.  “Theft, if above thirteen pence, is punished by death.”)

pp. 127-8

Seventhly, are any of the Reformed Churches or any Churches or persons of the whole world so injurious to magistrates as their principles [that of the New England Independents, such as John Cotton] force them to be, who spoil Christian kings and parliaments of their whole legislative power?  They will have us to believe, as good divinity, that it is not only unlawful for Church-assemblies to make ecclesiastic canons, but that it is alike unlawful for any prince or State to make a civil law, that the placing of a legislative power in kings or parliaments, is to usurp the property and prerogative of God.

These principles cannot be very favorable to the State, which at one stroke annihilate all the acts of Parliament that now are in force, either in this or any other kingdom, and make it impossible (if they were believed) to have any more in any place of the earth, to the world’s end

Look back upon what I have cited from the chief of the Brownists’ writings.  I grant the New English polishers of Brownism do not express their tenets in terms so hugely gross; yet see how near they come to them in substance, when they tell us that no magistrate may make any Laws about the bodies, lands, goods, liberties of the subject, which are not according to the laws and rules of Scripture, Scripture being given to men for a perfect rule, as well in matters of civil justice, as of devotion and holiness; and if so, then they must make it as unlawful and contrary to the Scripture’s perfection, for any man to make laws in matters of righteousness and of the State, as in matters of holiness and of the Church.

That beside things in themselves good or evil, which Scripture determines by its laws expressly, things of an indifferent nature, whereupon the most of civil laws are made, must be regulated according to the Scripture rules of piety, charity, and conscience, so far that the expediency and reason of the law must ever carry and convince the conscience of the subject: that no man is obliged to the obedience of a civil Law in a thing never so indifferent by the authority of the lawgiver, but every man whose conscience is not convinced of the piety and charity of that Law, is free from all obedience and subjection thereto: Thus far Mr. Cotton

¹ Cotton’s Model of Power in The Bloody Tenet, p. 140.  “The magistrate in making laws about civil and indifferent things in the commonwealth; First, he has no power given him of God to make what laws he pleases, either in restraining from or constraining to the use of indifferent things; because that which is indifferent in its nature, may sometimes be inexpedient in its use, and consequently unlawful: it is a prerogative proper to God to require obedience of the sons of men, because of his authority and will.  

It is an evil speech in some, that in some things the will of the law, not the reason of it, must be the rule of conscience to walk by: and that princes may forbid men to seek any other reason but their authority, yea when they command men frivola & dura; and therefore it is the duty of the magistrate in all laws about indifferent things, to show the reasons, not only the will; to show the expediency as well as the indifferency of things of that nature; and because the judgement of expedient and inexpedient things, is often difficult and diverse, it is meet that such laws should not proceed without due consideration of the rules of expediency set down in the Word, which are these three:

First, the rule of piety, that they may make for the glory of God, 1 Cor. 10:31. Secondly, the rule of charity, that no scandal come thereby to any weak brother, 1 Cor. 8:13. Thirdly, the rule of charity, that no man be forced to submit against his conscience, Rom. 14:14,23.”

Eighthly, what men besides them have made so bold with kings and parliaments, as not only to break in pieces their old laws, and to divest them of all power to make new ones; but also under the pretext of a divine right, to put upon their necks that unsupportable yoke of the Judicial Law of the Jews, for peace and for war, without any power to dispense either in addition or substraction?  I grant this principle of Barrow is limited by Mr. Cotton to such judicials as do contain in them a moral equity;² but this moral equity is extended by him to so many particulars, as Williams confesses the whole Judicial Law to be brought back again thereby, no less than by the plain simple and unlimited tenet of the rigidest Brownists

² Cotton’s Model in The Bloody Tenet, p. 140. “The Magistrate has power to publish and apply such civil laws in a State as either are expressed in the Word of God, in Moses’ Judicials; to wit, so far as they are of general and moral equity, and so binding all nations in all ages; or else to be deducted by way of general consequence and proportion from the Word of God.”

³  Ibid., p. 118.  A strange model of a Church and commonwealth after the Mosaical and Jewish pattern, framed by many able, learned and godly hands, which wakens Moses from his unknown grave, and denies Jesus yet to have seen the earth.

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Heinrich Alting  1646

‘7th Place: of the Law of God’ in Common Places in The Scriptural Theology of Hedielberg, vol. 1, pp. 112, trans. Adam Brink & Travis Fentiman

The Judicial Law is entirely abrogated so far as it concerns the distinction of Jews from the Gentiles (Eph. 2:14-15) and the typical signification of the kingdom of Christ (Col. 2:17; Heb. 10:1).  However, as far as it concerns a form of civil government, it is abrogated in some particular aspects.  For whatever was a particular proper right, such as peculiarly concerned the Jews, of which sort was the law concerning the office of the Levites, as another concerning inheritances not being transferred from one tribe to another, all of this kind have ceased.  But insofar as it concerned common right, enacted according to the law of nature for all men together, of which sort are the laws concerning the punishments of crimes, these same all remain.  

The reason is that it enters into the order of the Moral Law and is thus perpetual.   It was prescribed to the Jews, not as Jews, as a peculiar people admitted into Covenant, but as men, by the Law of Nature, subject with the other nations.  If the same conclusion is recognized by the rule of common law from other [countries’] legislators, or it is discovered to be framed in view of the precepts of the Decalogue: it is sanctioned.

Exegesis Logica & Theologica Augustanae Confessionionis (1647), p. 97 trans. Adam Brink

The forensic Laws of Moses are not all of one sort. In truth, some are only of particular right; others, moreover, are of common right and equity.

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Jus Divinum: The Divine Right of Church Government  1646-7, 1654  **

This work was authored by ‘sundry London ministers’, a number of which were Westminster divines.  

Part 1, ch. 7

Only take this caution, the divine right of things enjoined by God’s express command is to be interpreted according to the nature of the thing commanded, and the end or scope of the Lord in commanding: e.g.:

1. Some things God commands morally, to be of perpetual use; as to honor father and mother, &c.; these are of divine right forever.

2. Some things He commands but positively, to be of use for a certain season; as the ceremonial administrations till Christ should come, for the Jewish church, and the judicial observances for their Jewish polity; and all these positive laws were of divine right till Christ abrogated them.

Ch. 15, Argument 2

We answer, the laws of the Jewish church, whether Ceremonial or Judicial, so far forth are in force, even at this day, as they were grounded upon common equity, the principles of reason and nature, and were serving to the maintenance of the Moral Law

The Jewish polity is only abrogated in regard of what was in it of particular right, not of common right: so far as there was in their Laws either a typology proper to their church, or a peculiarity respecting their state in that land of promise given unto them.  Whatsoever was in their laws of Moral concern or general equity, is still obliging

Ch. 9, Section 1, Point 6

We have sufficient intimation of the magistrate’s punitive power in cases against the second table, as the stubborn and rebellious, incorrigible son that was a glutton and a drunkard, sinning against the fifth commandment, was to be stoned to death, Deut. 21:18-21.  The murderer sinning against the sixth commandment was to be punished with death. Gen. 9:6; Numb. 35:30-34; Deut. 10:11-13.  The unclean person sinning against the seventh commandment, was to be punished with death. Lev. 20:11-25, and before that see Gen. 38:24.  

Yea, Job who is thought to live before Moses, and before this law was made, intimates that adultery is an heinous crime, yea, it is an iniquity to be punished by the judges. Job 31:9, 11.  The thief, sinning against the eighth commandment, was to be punished by restitution, Exod. 22:1-15, etc.  The false witness, sinning against the ninth commandment, was to be dealt withal as he would have had his brother dealt with, by the law of retaliation, Deut. 19:16 to the end of the chapter, etc.  

Yea, the magistrate’s punitive power is extended all to offences against the first table; whether these offences be against the first commandment, by false prophets teaching lies, errors, and heresies in the name of the Lord, endeavoring to seduce people from the true God:

“If there arise among you a prophet or a dreamer of dreams—That prophet or that dreamer of dreams shall he put to death, because he hath spoken to turn you away from the Lord your God which brought you out of the land of Egypt,” etc., Deut. 13:1-6.  

From which place Calvin notably asserts the punitive power of magistrates against false prophets and impostors that would draw God’s people to a defection from the true God, showing that this power also belongs to the Christian magistrate in like cases now under the gospel.  Yea in case of such seducement from God, though by nearest allies, severe punishment was to be inflicted upon the seducer, Deut. 13:6-12; see also verse 12 to the end of the chapter, how a city is to be punished in the like case.  And Mr. Burroughs, in his Irenicum shows that this place of Deut. 13:6, etc. belongs even to us under the gospel

Or whether these offences be against the second commandment, the magistrate’s punitive power reaches them Deut 17:1-8; Lev. 22:2-8; 2 Chron. 16:13, 16…  Or whether the offences be against the third commandment…  

Besides all this light of nature, and evidence of the Old Testament, for the ruler’s political punitive power for offences against God, there are diverse places in the New Testament showing that a civil punitive power rests still in the civil Magistrate: Witness those general expressions in those texts, Rom. 13:3,4,

“Rulers are not a terror to good works, but to the evil. If thou dost 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 doth evil…”  

Now (as Mr. Burroughs notes) seeing the Scripture speaks thus generally, except the nature of the thing require, why should we distinguish where the Scripture does not? so that these expressions may be extended to those sorts of evil doing against the first as well as against the second table…

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Samuel Rutherford  1644-1649  **  **

Samuel Rutherford on the Judicial Laws of Moses: Excerpts Arranged Topically  32 pp.

“As a Scottish commissioner to the Westminster Assembly, Samuel Rutherford (1600-61) sat with the drafting committee which bore primary responsibility for the text of the Westminster Confession…  In defending the role of the civil magistrate in suppressing heresy, Rutherford refers often to the question whether there is an enduring obligation in the judicial laws, and in this connection he uses the term equity in the same way as do the Genevans and the English Puritans.  Rutherford argues that the practice of magistrates must rest upon a broader justification than the Mosaic judicial laws. Apostolic doctrine and the law of nature hold forth a common moral equity that defines what remains pertinent in the judicial laws.  This common equity requires magistrates to punish moral offences, but it will not sustain an appeal to the specific penalties in the judicial laws.” – Sherman Isbell

‘Of the Magistrate’ being ch. 19 of An Examination of Arminianism, pp. 728, 732 (trans. T. Fentiman):

Rom. 13:4

It is queried whether a magistrate is authorized to impose capital punishment on the exceedingly shameful and murderers?  Some Remonstrants [Arminians] deny…  but others openly assert…

We all affirm to authorize, and the contrary sentiments we condemn and reject as errors:

1. For Gen. 9:6, “Whoso sheds man’s blood, by man shall his blood be shed.”  Ex. 21:14, “But if a man come presumptuously upon his neighbor, to slay him with guile; thou shalt take him from mine altar, that he may die.”  Num. 35:31, “Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death.”  which is not a judicial law and temporary, but is clearly effected out of the Law of Nature, which innocent blood cannot be expiated as in the Ceremonial or Judicial Law [Dt. 21:1-9].  But it says ‘never’:

Num. 35:33, “So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.”  

Mt. 26:52, “for all they that take the sword shall perish with the sword.”  

But not all slayers, in fact, shall perish.  Therefore Christ says [means], by the law [de jure] that the magistrate keeps.

7.  The Law of Nature is the force that repels in force, and protects the right of life, able to kill when killed.

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George Gillespie  1646  **  **

Though Wholesome Severity Reconciled with Christian Liberty (1644, which is categorically Theonomic and was published anonymously) is sometimes attributed to Gillespie, yet there is a strong case that Gillespie was not the author of it.  

Either way, in the quote below from Aaron’s Rod Blossoming (1646), Gillespie distinguishes himself from the Theonomists of his day (usually Erastians), his comments are in line with General Equity and he argues that not all capital punishments need to be as they were in Moses (contra Wholesome Severity).  

Gillespie’s comments of unknown date in Miscellany Questions (in Works, vol. 2) pp. 68-69, are consistent with the general puritan understanding of the application of General Equity (see Rutherford above, amongst others):

“By the same principle they must deny that..  that the magistrate ought to put to death a blasphemer, an incestuous person, an adulterer, a witch, or the like (the scriptural warrants which make these crimes capital being in the Old, not in the New Testament”

This whole section of Miscellany is dealing with moral and natural things that carry over from the Old to the New Testament, not a categorical hermeneutical device that necessarily implies the Judicial Law as a category is permanently in force.

Further, all of Gillespie’s later, and most mature, writings on the role of the civil magistrate are consistent with general equity, of the magistrate ruling according to the Moral Law and the 10 Commandments, and show no trace of Theonomy.  See, for instance, 101 Propositions (1647).

Please enjoy Aaron’s Rod (reprint, Sprinkle) p. 2.  Gillespie is arguing against an Erastian:

“Now all this being unquestionably true of the Jewish Sanhedrin: if we should suppose, that they had no supreme Sanhedrin but that which had the power of civil Magistracy, then I ask where is that Christian State, which was, or is, or ought to be molded according to this pattern.

Must ministers have vote in parliament? Must they be civil lawyers?   Must all criminal and capital judgments be according to the Judicial Law of Moses, and none otherwise?  Must there be no civil punishment, without previous admonition of the offender?  Must Parliaments sit, as it were in the Temple of God, and interpret Scripture, which sense is true, and which false, and determine controversies of faith and cases of conscience, and judge of all false doctrines?

Yet all this must be if there be a parallel made with the Jewish Sanhedrin.  I know some divines hold, that the Judicial Law of Moses, so far as concerns the punishments of sins against the moral Law, idolatry, blasphemy, Sabbath-breaking, adultery, theft, etc. ought to be a rule to the Christian Magistrate. and for my part, I wish more respect were had to it, and that it were more consulted with.”

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Francis Cheynell  1650  **

The Divine Trinunity of the Father, Son, and Holy Spirit, pp. 476-4

XIII.  The glory of God, the good of souls, the happiness of Christian societies, are irresistible motives to quicken the magistrate to act (against such dangerous persons as we have described according to the law of judgement, and their different demerits) in Faith and Love:

1. In Faith; for the Christian magistrate does not act like himself, if he does not perform acts of civil-justice in faith.  And it is clear that if there be no moral equity in any of the judicial laws in the Old Testament (and there are none at all extant in the New) [then] the Christian magistrate cannot perform any act of Civil-justice in faith.  

But it is indeed too evident to be denied that all divine laws which concern the punishment of moral transgressions are of perpetual obligation, and therefore still remain in force according to their substance and general equity, abstracted from special circumstances, typical accessories and the old forms of Mosaical polity, for:

1.  These divine laws are not expired in their own nature.

2.  They are not repealed by God.

3.  The authority of the Lawgiver is the same under both administrations, old and new; the consciences of Christians as well as Jews are subject to his sovereign and perpetual jurisdiction.

4.  The matter of the laws is moral, and very agreeable to the dictates of nature, as does appear by the several laws and decrees of heathens: Dan. 3:29; Ezra. 7:23,25-27; Ezra 10:3,5,8 compared with Num. 15:30-31; Lev. 24:15-16; Deut. 13:8-9; Zech. 13:3,6.  Seducing, poisoning, slaying of souls is by the law of Nature and Nations the worst of injuries.

5.  The reason of these divine laws is immutable, and that reason is sometimes expressed and declared: But it is not necessary that there should be any express ratification of every moral law in the New Testament which is plainly delivered in the Old.

6. These divine laws are independent on the will of man, and therefore indispensable man’s authority.

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John Owen  1652

Christ’s Kingdom and the Magistrate’s Power: a Sermon, p. 509  HT: Rev. Shawn Mathis

5thly.  I shall only propose one thing more to your consideration.  Although the institutions and examples of the Old Testament, of the duty of magistrates in the things and about the worship of God, are not, in their whole latitude and extent, to be drawn into rules that should be obligatory to all magistrates now, under the administration of the gospel,-and that because the magistrate then was ‘custos, vindex, et administrator legis judicialis, et politiae Mosaicae,’ [the custodian, vindicator and administrator of the Judicial Law and Mosaic polity] from which, as most think, we are freed;–yet, doubtless, there is something moral in those institutions, which, being unclothed of their Judaical form, is still binding to all in the like kind, as to some analogy and proportion.  Subduct [subtract] from those administrations what was proper to, ad lies upon the account of, the church and nation of the Jews, and what remains upon the general notion of a church and nation must be everlastingly binding.

Dissertation on Divine Justice, ch. 17, in Works, vol. 10, pp. 613-14, see also all of pp. 613-616 for the fuller discussion.

“Neither, however, do we think ourselves bound to teach that God could not forbid sin but under the penalty of eternal death; for we hold that not one or another kind of punishment is necessary, but that punishment itself is necessary, and the punishment, according to the rule of God’s wisdom and justice, is death. 
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Moreover, a rational creature, conscious of its proper subjection and obediential dependence, being created and existing, God did not account it at all necessary to forbid it to sin by a free act of his will, under one penalty or another; for both these follow from the very situation of the creature, and the order of dependence,–namely, that it should not transgress by withdrawing itself from the right and dominion of the Creator, and if it should transgress, that it should be obnoxious and exposed to coercion and punishment.  But it being supposed that God should forbid sin by an external legislation, the appointment of punishment, even though there should be no mention made of it, must be coequal with the prohibition.
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The modification of punishment respects either its appointment or infliction.  Punishment itself is considered either in respect of its general end, which is the punishment of transgression, and has a regard to the condition of the creatures with respect to God; or in respect of some special end, and has a respect to the condition of the creatures among themselves.  But whatever modification punishment may undergo, provided it attain its proper end, by accomplishing the object in view, the nature of punishment is preserved no less than if numberless degrees were added to it.  As to the establishment of punishment, then, in a human court, as it has not primarily and properly a respect to the punishment of transgression, nor a regard to the condition of the creatures with respect to God, but with respect to one another, that degree of punishment is just which is fit and proper for accomplishing the proposed end.
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The punishment, then, of theft by a quadruple restitution had in its appointment no such modification conjoined with it as could render it unfit and improper in respect of the end proposed, among that people to whom that law concerning retributions was given; but as the infliction of punishment, according to the sentence of the law, depended on the supreme Ruler of that people, it belonged to him to provide that no temporal dispensation with punishment exercised by him, in right of his dominion, should turn out to the injury of the commonwealth.
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But not even in a human court can any such modification be admitted as would render the punishment useless in respect of its end; nor, in respect of God, do we think any degree or mode of punishment necessary, but such as may answer the end of the punishment, so far as respects the state of the creatures with respect to God…”

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William Gouge  †1653  **

‘Of the Judicial Law of the Jews’ & ‘Of the Moral Law’  2 pp.  in Commentary on Hebrews 7:12

“Gouge (1575-1653) was a member of the Westminster Assembly.  During the preparation of the Confession’s chapter on the law, the Assembly appointed a committee to consider propositions ‘about the meaning of the description of ceremonial and judicial’ laws, and Gouge was made a member of the committee.” – Sherman Isbell

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Thomas Hall  1658

A Practical and Polemical Commentary, Or Exposition upon 2 Tim. 3-4  1658

pp. 64-65

Lastly, as ’tis the greatest sin, so it makes men obnoxious to the saddest judgements of God, and severest punishments of the magistrate, when a man shall directly and purposely speak reproachfully of God, denying him in his attributes, or attributing that to Him which is inconsistent with his nature; this is called direct and immediate blasphemy, and if it be acted not out of infirmity of nature, the person not being distempered with sickness, melancholy, or madness; but out of malice, deliberation, and obstinacy; then the party is to die without mercy (Lev. 24:13-16). This was no judicial Law, peculiar only to the Jews, but it being of the Law of Nature, is an Universal Law for all Nations.  He, whoever he be that shall directly and obstinately blaspheme the Name of the Lord; shall surely die.

Hence wicked Jesabel, that she might stone Naboth to death, proclaims him a blasphemer (1 Kings 21:11, 14).  This stoning endured till Christ’s time, as appears by their stoning of Steven (Acts 7).  Now if every direct and obstinate blasphemers should be stoned to death in England, what showers of stones would there be in all parts of the land?  And if Nebuchadnezzar, a heathen, by the light of Nature could make a decree, that who ever blasphemed the God of Heaven, or spake any thing amiss concerning Him, should be cut in pieces, and his house be made a Dung-hill (Dan. 3:29), how much more ought Christian Magistrates to make severe laws for the punishing of such high offenders; lest as their light and charge is greater, so they suffer double punishment.  We see how careful magistrates are to punish thieves and murderers of men; and shall spiritual thieves, who rob God of his honor, deny his being, and since they cannot kill Him yet will smite Him with their tongue, be suffered to go unpunished? 

We see how tender great men are of their own names, honors, privileges, and lives; if any oppose them, he must die for it, and shall he that abuses and blasphemes the King of Kings, not die the death?  Surely, as this is the greatest sin, so it should be punished with some eminent and remarkable punishment. This hellish sin defiles the land, and cannot be purged away, but by the death of the blasphemers.  Impunity breeds blasphemy, and all manner of sin (Eccl. 8:11).

p. 227-8

Some judicial precepts are Juris communis, of common equity, such as are agreeable to the instinct and law of nature, common to all men; and these for substance bind all persons, both Jews and Gentiles; as being Moral, and so agreeing with the Moral Law.  These judicial precepts which were Juris particularis, of particular equity, such as pertained especially to the Jews’ commonwealth, and were fitted for them and their time, are now abolished, e.g., that a man should marry with none but his own stock; that the brother should raise up seed to his brother, and that a thief should restore fourfold, this was peculiar to the Jewish commonwealth and not to ours….

So then those judicial and civil precepts which are agreeable to the Moral Law, and do confirm and uphold it, they bind for ever.  For example, ’tis a judicial Law that adulterers and adulteresses should die the death; now this being agreeable to common equity, and to the Law of Nature, as appears (Gen. 38:24) where Judah (before this judicial Law was publish by Moses) appoints Tamar his daughter-in-Law to be burnt for this sin, and Nebuchadnezzar burnt Ahab and Zedekiah for it (Jer. 29:21-23), so this judicial Law of putting witches to death by the magistrate, is agreeable to common equity, it helps to preserve all the Moral precepts which are broken by the idolatry, murder, and malice, of witches.

p. 266

3. Politics in the Judicial Laws of Moses, very useful for the well-ordering of a commonwealth.

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James Durham  d. 1658  **

The Law Unsealed, or a Practical Exposition of the Ten Commandments (1676) Preface, pp. 4-5  HT: Rev. Shawn Mathis

4. Distinguish between the Moral, and Ceremonial, and Judicial Law:

[1.]  The first concerns manners, and the right ordering of a godly conversation; and because these things are of perpetual equity and rectitude, the obligation of this Law as to that is perpetual; and therefore in the expounding of it, these two terms, Moral, and of Perpetual Authority, are all one, and to be taken so.

2.  The Judical Law is for regulating outward society, and for government, and does generally (excepting what was peculiar to the people of Israel) agree with the Moral Law; this as given to them is not perpetual, their policy being at an end.

3.  The Ceremonial Law is in ceremonies, types, and shadows, pointing at a Savior to come; this is also abrogate[d], the substance being come; but there is this difference, that the Judicial Law is but mortua, ‘dead’; and may, where ’tis thought fit, with the foregoing caution, be used under the New Testament; but the Ceremonial Law is mortifera, ‘deadly’, and cannot without falling from grace, Gal. 5:2,4, be revived.

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James Fergusson  1659  **

Commentary on Ephesians 6:2

2. Though the Law of Ceremonies, given by Moses, does not oblige Christians, (Christ, the sub∣stance of those shadows, being come, Col. 2:17) nor yet the Judicial Law, which was given to the Jewish Commonwealth, and to stand and fall with it, Num. 36:6-7, yet, the Moral Law, or the Law of the Ten Commandments, as being never yet repealed by God, does stand in force, and is binding unto Christians: for, Paul does urge this duty of obedience unto parents upon children, because the Moral Law enjoins it: ‘Honor thy father and mother, which is the first commandment with promise.’ [Eph. 6:2]

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Anthony Burgess  1661

An Expository Comment, Doctrinal, Controversal, and Practical upon 2 Cor. 1, p. 350

Even as we say of the Judicial Law, though the particular duty or punishment may not oblige us Christians, yet the moral equity and reason, upon which it was grounded, does.

Spiritual Refining, p. 565-6

To open this, consider, That there is a twofold original fountain of Righteousness towards man:

1. There is the immediate command and word of God, and that is called Jus Divinum, Divine Righteousness.

2. There is the Law and Command of Nature, and that is Jus Humanum, An humane Righteousness, or Right:

And this is either general, the first and immediate principles of nature, such as the apostle speaks of, Rom. 1, concerning the gentiles, that they had ‘a Law written in their hearts,’ [sic] verse 7 [2:14-15], about just and unjust things, and their consciences accusing or excusing, upon the omission or commission of such things, or else they are more remote and particular dictates, such as the good and wholesome laws of all lawgivers, in respective nations.

So what is righteous and just between man and man, is to be determined by the laws of that land where they live: Indeed, if any lawgivers (as some heathenish have) commanded or allowed anything that is against the Law of God, or the universal dictates of right reason; such commands are not worthy the name of laws, they are rather unjust decrees, and so do not bind: But otherwise, the laws of a land determine what is righteous and just between man and man: for although it be God’s command, that a man should not steal, yet they are human laws that give the bounds and proprieties of estates to men:

So that we Christians, and the Jews, do something differ about the rules of righteousness and equity; for God was the immediate Lawgiver unto that people: Moses as a messenger from God, received from God’s mouth the Judicial Law, which he delivered to them; so that the Judicial Law appointed by God Himself, was the statute-law of that realm: Their Laws were not human, as all the laws of kingdoms and states are since Christ’s coming, but they were Divine: Their laws about a thief, a murderer, the buyer and the seller, were all Divine laws, because immediately commanded by God, though the matter was merely human.

Now its greatly disputed how far these Judicial Laws commanding judgement and justice between man and man, do bind us Christians; and whether all lawgivers and statesmen, are not bound to bring in those Judicial Laws?  For who can determine what is righteousness and equity better then God, a righteous and wise God? 

It’s not pertinent to wade into this excellent question at this time: Though some in this point are very rigid, to make all obligatory, that are not expressly repealed by Christ; and some again are very remiss and lax; yet all conclude that the Moral Equity and Reason that was in every Judicial Law, does bind Christians as well as Jews; and with that we shall conclude this particular, whatsoever law God made about justice, restitution or punishment to the Jews, the equity and reason of that law, does still bind us, though not the particular manner

As for the New Testament, Christ’s Kingdoms was not temporal, or of this world; and therefore He only commands righteousness in the general, and commands that excellent maxim, which an heathen emperor did so much admire, saying, he received it from Christians, ‘What ye would have men do to you, do ye to them, for this is the Law and the Prophets,’ Mt. 7:12…

Christ therefore He has only given us general rules of righteousness, and for the particulars, He does command Christians to obey and submit to the wholesome laws of that place where they are; as Rom. 13, ‘Pay tribute to whom tribute, custom to whom custom:’  And this the Scripture does often press, that none might think that the freedom they had by Christ did take them off from human obligations and relations: This was a great temptation, they thought because they were Christians, and made free by Christ, that this also did take them off from obedience to civil magistrates, and from the laws they lived under: No, the Scripture is diligent to teach this, That Christianity and the Gospel does not abolish political and civil government, but rather greatly advances it as an institution of God, pressing obedience thereunto for conscience sake.

A Vindication of the Moral Law and the Covenants

p. 155

Again, in the next place, take also this general observation, That although the Judicial and Ceremonial Laws were given at the same time with the Moral Law, yet there is a difference between them.  And this is to be taken notice of, lest any should think, what will this discourse make for the honor of the Moral Law, more than the other laws? 

It’s true, these three kinds of laws agree in the common efficient cause, which was God; and in the minister, or mediator, which was Moses; in the subject, which was the people of Israel; and all and every one of them; as also in the common effects, of binding and obliging them to obedience, and to punish the bold offenders against them.  But herein the Moral Law is preeminent:

1. In that it is a foundation of the other laws, and they are reducible to it.
2.
This was to abide always, not the other.
3.
This was immediately written by God, and commanded to be kept in the Ark, which the other were not.

p. 168

And thus for the Judicial Laws, because they were given to them as a politic body, that polity ceasing, which was the principal, the accessory falls with it; so that the Ceremonial Law, in the judgement of all, had still bound Christians, were there not special revocations of these commands, and were there not reasons for their expiration from the very nature of themNow no such thing can be affirmed by the Moral Law; for the matter of that is perpetual, and there are no places of Scripture that do abrogate it.

p. 211-2

about a law there are these affections (if I may call them so):  There is an interpretation, a dispensation, or relaxation; and these differ from an abrogation.  For the former do suppose the law still standing in force, though mitigated; but Abrogation is then properly, when a Law is totally taken away. And this abrogation arises sometimes from the express constitution at first, which did limit and prescribe the time of the law’s continuance: sometimes by an express revoking and repealing of it by that authority which made it, sometimes by adding to that repeal an express law commanding the contrary.

Now it may be easily proved that the Ceremonial and Judicial laws, they are abrogated by express repealThe Judicial Law: 1 Pet. 2:13, where they are commanded to be subject to every ordination of man: and this was long foretold Gen. 49:10.  The Lawgiver shall be taken from Judah. 

The Ceremonial Law that is also expressly repealed Acts 15 and in other places…

In the second place, if we would speak exactly and properly, we cannot say, in any good sense, that the Moral Law is abrogated at all.

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John Milton  †1674

The Works of John Milton, Historical, Political and Miscellaneous, vol. 1,  p. 289  HT: Rev. Shawn Mathis

Of the ceremonial law He told them true, that nothing of it should pass ‘until all were fulfilled.’  Of the moral law He knew the Pharisees did not suspect He meant to nullify that: for so doing would soon have undone his authority, and advanced theirs.  Of the judicial law therefore chiefly this apology [in Mt. 5:17-18] was meant [as Milton notes, much of the rest of the chapter concerns Judicial Laws]: For how is that fulfilled longer than the common equity thereof remains in force?  And how is this our Savior’s defense of Himself not made fallacious, if the Pharisees chief fear be left He should abolish the judicial law, and He to satisfy them, protests his good intention to the moral law?  It is the general grant of divines that what in the judicial law is not merely judaical, but reaches to human equity in common, was never in the thought of being abrogated.  If our Savior took away ought of the law, it was the burdensome of it…

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Matthew Hale  (1609-1676)

Historia Placitorum Coronæ: The History of the Pleas of the Crown, vol. 1, p. 2  HT: Rev. Shawn Mathis

And therefore, although most certainly the penalties instituted by God Himself among his ancient people upon the breach of their laws were the highest wisdom fitted to that state, and all laws and instituted punishments should come up as near to that pattern, as may be; yet as to the degrees and kinds of punishments of offences in foro civilis vel judiacario [in the sight of civil authority or judicature] they are not obliging to all other kingdoms or states, but all states, as well Christian as heathen, have varied from them.

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David Dickson  1684  †1662  **

Truth’s Victory Over Error, ch. 19, question 4  (the first commentary defending the Westminster Confession)

Did the Lord by Moses give to the Jews as a body politic sundry judicial laws which expired with their state?

Yes.

Do they oblige any other now, further than the general equity thereof may require?

No (Ex. 21; 22:1-29; Gen. 49:10; 1 Cor. 9:8-10; 1 Pet. 2:13-14; Mt. 5:17,38-39).

Well then, do not some err, though otherwise orthodox, who maintain that the whole judicial law of the Jews is yet alive and binding all of us who are Christian gentiles?

Yes.

By what reasons are they confuted?

1.  Because the judicial law was delivered by Moses to the Israelites to be observed, as to a body politic (Ex. 21).

2.  Because this law, in many things which are of particular right, was accommodated to the commonwealth of the Jews, and not to other nations also (Ex. 22:3; 21:2; Lev. 25:2-3; Dt. 24:1-3; 25:5-7).

3.  Because, in other things which are not of particular right, it is neither from the law of nature obliging by reason; neither is it pressed upon believers under the gospel to be observed.

4.  Because believers are appointed under the gospel to obey the civil law and commands of those under whose government they live, providing they be just, and that for conscience’ sake (Rom. 13:1; 1 Pet. 2:13-14; Titus 3:1).

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Francis Turretin  †1687

Institutes of Elenctic Theology, vol. 2, pp. 165-167.  HT: Andrew Myers

Twenty-Sixth Question: Whether the judicial law was abrogated under the New Testament. We make distinctions.

III.  In that law various ends must be distinguished…. Undoubtedly those things are to be accurately distinguished which in the law were of particular right (which peculiarly applied to the Jews in relation to time, place and Jewish nation: such was the law concerning a husband’s brother, the writing of divorcement, the gleaning, etc.) from those which were of common and universal right, founded upon the law of nature common to all (such as the laws concerning trials and the punishment of crimes widows, orphans, strangers and the like, which are of moral and common right).  As to the former, they may well be said to have been abrogated because the Jewish polity having been taken away, whatever had a peculiar relation to it must also necessarily have ceased.  But as to the latter, it still remains because it enters into the nature of the moral and perpetual law and was commanded to the Jews not as Jews simply, but as men subject with others to the law of nature

For distinguishing those things which are of common and particular right, a threefold criterion can be employed:

(1)  That what prevails not only among the Jews, but also among the Gentiles (following the light of right reason) is of common right.  Thus the Greeks, Romans and others had their laws in which are many things agreeing with the divine laws (which even a comparison of the Mosaic and Roman law alone, instituted by various persons, teaches).

(2)  What is found to be conformed to the precepts of the Decalogue and serves to explain and conform it.  This is easily gathered, if either the object and the matter of the laws or the causes of sanctioning them are attended to.

(3)  The things so repeated in the New Testament that their observance is commended to Christians.

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Alexander Shields  1687  **

A Hind Let Loose, or an Historical Representation of the Testimonies of the Church of Scotland, p. 687  HT: Shawn Mathis 

But these general truths may be added, concerning the Judicial Laws:

1.  None can say that none of the Judicial Laws, concerning political constitutions, is to be observed in the New Testament: for then many special rules of natural and necessary equity would be rejected, which are contained in the Judicial Laws of God: Yea all the laws of equity in the world would be so cast; for none can be instanced, which may not be reduced to some of the Judicial Laws: And if any of them are to be observed, certainly these penal statutes so necessary for the preservation of policies, must be binding.

3.  Those Judicial Laws, which had either somewhat typical, or pedagogical, or peculiar to the then Judaical State, are indeed not binding to us under that formality; though even these doctrinally are very useful, in so far as in their general nature, or equity of proportion, they exhibit to us some documents of duty: but those penal judgments, which in the matter of them are appended to the Moral Law, and are in effect but accurate determinations and accommodations of the Law of Nature, which may suit our circumstances as well as the Jews, do oblige us as well as them.   And such are these penal statutes I adduce; for, that blasphemy, murder and idolatry, are heinous crimes and that they are to be punished, the Law of Nature dictates; and how, and by whom, in several cases, they are to be punished, the Law judicial determines.  Concerning the Moral Equity even of the strictest of them: [William] Ames, Of the Conscience, Book 5, ‘Of the Appended Precepts of Moses’.

4.  Those Judicial Laws, which are but Positive in their form, yet if their special internal and proper reason and ground by Moral, which pertains to all nations, which is necessary and useful to mankind, which is rooted in and may be fortified by human reason, and as to the substance of them approven by the more intelligent heathens; those are Moral, and oblige all Christians as well as Jews: and such are these laws of punishing idolaters, etc. founded upon Moral grounds, pertaining to all nations necessary and useful to mankind, rooted in and fortified by human reason, to wit that the wrath of God may be averted, and that all may hear and fear and do no more so wickedly; especially this reason be superadded, when the case is such, that innocent and honest people cannot be preserved, if such wicked persons be not take order with.

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James Dalrymple, Viscount of Stair  1693  **

The Institutions of the Law of Scotland, vol. 1, p. 5  HT: Rev. Shawn Mathis

9.  The prime Positive Law of God is the Judicial Law, which God by the ministry of Moses, prescribed to the people of Israel, wherein the Lord was pleased to be the particular Lawgiver and Judge of that people, whom He had chosen from among all nations for a peculiar people to Himself, and to whose inclinations it is befitted. 

There are not a few who esteem the Judicial Law obliging unto all nations, mainly, because it does not appear in the Gospel, to be abolished as the Ceremonial Laws are, and because of its excellency beyond the laws of heathens, or other men, who might not only err in expediency, rendering their laws unprofitable, but also might make them unjust and inconsistent with the immutable moral Law of Nature; which reasons do sufficiently infer, that in the constitution of human laws, chief respect ought to be had to the Judicial Laws of God, and they assumed where the inclination of the people and their condition do not render them inconvenient

But that these laws were accommodat[ed] unto the Jews proper temper, is evident in the law concerning the bill of divorcement [Dt. 24:1-4], which bears, to be permitted for the hardness of their hearts; which was natural and peculiar to them, of jealousy and bitterness against their wives, therefore the Lord not only appointed trial, neither natural, necessary, nor accustomed elsewhere, by those tokens of virginity, for evidencing the wife’s unfaithfulness in not giving a polluted woman for a chaste [Dt. 22:14-20], but also the extraordinary and miraculous trial, by the water of jealousy [Num. 5:12-31], and therefore Christ did expressly abrogate that law [Mt. 5:31-32] and show us that Moses did not command to divorce, but for the hardness of their hearts only permitted it, and did command that when the husband would put away his wife, he should give her a bill of divorce, but it does not follow that the Judicial Law is in itself a Law to all nations, or that the Lord purposed it so to her, but on the contrair, it appears that his purpose was only to deliver it, for a peculiar Law to Israel, when He says,

‘What nation is so great that has statutes and judgments so righteous, as is all this Law, which I set before you this day,’ Dt. 4:8

And again

‘He shows his Word unto Jacob, his statutes and judgments to Israel, He has not dealt so with every nation, and as for his Judgments, they have not known them.’ Ps. 147:19

And therefore the same Law was not to Israelites and to strangers, even to proselytes; as appears in the matter of usury and bondage, which were allowed to strangers, but the former simply forbidden, and the latter limited as to Israelites:

Neither is there any necessity of an express abolition of this Law in the Gospel, seeing it was not given to all nations; and it does yet bind the Jews so far as it does not build upon the Ceremonial Law: And therefore that part of the Judicial Law, which is founded upon, or conducible to the Moral Law may be well received by other nations, to whose inclination the same expediences will agree as most of the criminal laws are…

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Richard Kidder  1694

Commentary on the Five Books of Moses, vol. 1, p. 272  HT: Rev. Shawn Mathis

For besides the moral precepts (in which all mankind are concerned) we have an account of the laws of the Israelites by which they were to be governed in their own land: And though it be true, that these judicial laws were given to the Hebrews, and that they were concerned in them, and that other nations must be governed by the laws of their several countries, yet, certain it is, that the justice and the equity, on which these laws are founded, and which they recommend, are worthy the consideration and imitation too of other nations.  And if inquisitive persons think it worth their while to look into the laws of Sparta, and Athens, of Rome and other kingdoms and commonwealths, certainly they must judge the laws of Moses, which came from God Himself, are well worthy their looking into, and their serious consideration.

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John Sage  1695

The Fundamental Charter of Presbytery, as it has been lately Established in the Kingdom of Scotland, p. 337  HT: Rev. Shawn Mathis

In short, our Reformers [of the Scottish Church, specifically John Knox, c. 1560] maintained:

That the doctrine of defensive arms was necessary: that passive obedience or non-resistance was sinful when people had means for resistance (Knox, History, pp. 389, 396, Append. p. 25, 107, Passim.)

That Daniel and his fellows did not resist by the sword because God had not given them the power and the means (Ibid., p. 317)

That the primitive Christians assisted their preachers, even against the rulers and magistrates, and suppressed idolatry wheresoever God gave them force (Ibid., p. 393). 

(d) They maintained that the Judicial Laws of Moses (though not adopted into the Christian system) in many considerable instances continued still obligatory; particularly that the laws punishing adultery, murder, idolatry with death, were binding; that in obedience to these laws, that sentence was to be executed not only on subjects, but on sovereigns (Ibid., pp. 391-393; Passim.)

That whosoever executes God’s Law, on such criminals, is not only innocent, but in his duty…

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Thomas M’Crie  1807

Statement of the Difference (Edinburgh: George Caw, 1807) pp. 125-126.

With respect to the particular laws by which the Jews were governed, the common sentiment of sound divines, and the best writers on the laws of nations, is, that although the judicial law is not binding as such upon Christian nations, so that they should be bound to regulate all their laws according unto it, yet it demands distinguished attention, and is to be regarded, as a pattern, in those laws which proceeded upon moral grounds.

In it there was nothing inconsistent with the principles of equity and religion. God give unto Israel ‘right judgments and true laws, good statutes and commandments.’  All just laws among men are deductions from the moral law, applied to human affairs.  But in the judicial law, the conclusions were deduced and applied, not by the fallible and corrupt reason of man (as in ordinary laws) but by unerring wisdom. These respected either the first or second table of the moral law, duties which immediately related to God or man.  It is a radical mistake, on this subject, to suppose that the peculiarity of the judicial law did lie solely and properly in its reference to matters of religion, or the first table. It is to be observed also in those laws which related to things civil, or the duties of the second table. There is no more propriety in representing all the judicial laws respecting the first table as peculiar, than there is in representing all those which related to the second table as peculiar. Peculiarities there were in both; but after allowances are made for these, there remain moral grounds for both; and whatever proceeded upon moral grounds in the judicial law, whether it respected things immediately connected with religion, or with justice and civil order, is exemplary, and must be obligatory.

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Robert Shaw  1845

Commentary on the Confession of Faith, 19.4

Besides the moral law, God gave to Israel ceremonial and judicial laws; the two latter are of limited and temporary use; the former is of universal and perpetual obilgation.

2.  The judicial law respected the Jews in their political capacity, or as a nation, and consisted of those institutions which God prescribed to them for their civil government.  This law, as far as the Jewish polity was peculiar, has also been entirely abolished; but as far as it contains any statute founded in the law of nature common to all nations, it is still obligatory.

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John Murray  †1975

Collected Writings, 1:211

It is true that certain regulations both preceptive and punitive, regulations which governed the observance of the Sabbath under the Mosaic law, do not apply to us under the New Testament…

…For, recognizing to the fullest extent the discontinuance of certain regulatory provisions in the jurisprudence of Israel under the law of Moses

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“I do not see that the Christian church is now under the theocratic law of the Jews…   It will not do to bring us under bondage to any purely Jewish practice.”

John ‘Rabbi’ Duncan

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Related Pages

Civil Government

The Establishment Principle

The Ceremonial Law