Understanding the Westminster Confession of Faith, Section 19.4, on the Judicial Law and General Equity: Part 2

"Judicials of common [or general] equity are
such as are made according to the law or
instinct of nature common to all men: and
these in respect of their substance, bind the
consciences not only of the Jews but also
of the Gentiles: for they were not given to
the Jews as they are Jews ... but they were
given to them as they were mortal men
subject to the order and laws of nature as all
other nations are." William Perkins, A
Discourse of Conscience (Cambridge:
John Legate, 1596), 17.

By Vindiciae Legis

[Editor’s note: this series is highly recommended. It rigorously addresses the historical context of WCF 19.4, clearing up the confusion that has for so long plagued many in understanding its theonomic implications. In addition, the quotes from the Westminster divines about law categories are very instructive.]

Second Prerequisite

A second prerequisite for understanding WCF 19.4 is to realize that only the first category was viewed as the judicial law proper. The second category, because of its moral nature and application to all nations, was viewed as moral rather than strictly judicial.

Westminster divines Daniel Cawdrey and Herbert Palmer[1] summarize the difference between the categories in these terms:

“So then we esteem those properly judicials, which between man and man were relatives[2] to the Land of Canaan, and expectation of the Messiah. And all other, (not such, nor ceremonial as before) we esteem moral.”[3]

Like Cawdrey and Palmer other divines also tended to use words like proper or properly to qualify their references to the first category of judicial law. Over a decade before Cawdrey and Palmer, William Perkins’ former student at Christ’s College, Cambridge, William Ames, had defined the judicial law proper in similar language to theirs:  

“Those Lawes were properly termed Judiciall; which being not Ceremoniall, had some singular respect to the people of the Jewes, so that the whole reason and ground of them, was constituted in some particular condition of that Nation.”[4]

According to the Westminster divine, William Gouge:

“[T]he Jews had a judicial law, proper and peculiar to that polity.[5] This law concerned especially their civil estate.”[6]

Besides the word proper, other terms like simply and Mosaic or Mosaical were also used to describe the first category. Thomas Edwards, London divine, contemporaneous with the Assembly, well regarded by and influential with the Presbyterian party in the Assembly, spoke of the first category as “Lawes properly judicial,”[7] “commands simply Judicial, given to the Jewes only…”[8] and as “merely Mosaical and abrogated.” [9] [10]

Other divines spoke of the first category simply as the judicial law and omitted any qualifying adjectives whatsoever. Westminster divine, Anthony Burgess, speaking of the first category of judicial laws in his lectures on Divine law, published under the title, Vindiciae Legis, tells us:

“And thus for the Judiciall Laws, because they were given to them [the Jews] as a politick body, that polity ceasing, which was the principall, the accessory falls with it;”[11]

“Now it may be easily proved, that the Ceremoniall, and Judiciall Laws they are abrogated by express repeal.”[12]

It is demonstrated below that Burgess was referring only to first category laws. The alternative is an unbelievable volte-face on Burgess’ part.[13]

There is at least one occasion where William Gouge, who despite making a clear distinction between the law categories, wrote of the first category simply as judicial: 

“Thereof there were three kinds [of laws]: 1. Moral… 2. The ceremonial… 3. Judicial, which was the rule of policy for the polity of the Jews.”[14]

The context shows that Gouge is excluding from the judicial, laws of moral or common equity, such as laws against blasphemy or Sabbath breaking. He includes these laws with the moral law. 

As previously explained, laws of the second category were regarded very differently from those of the first. Ames wrote:

“Those Lawes therefore which are usually reckoned among the Judiciall, and yet in their nature beare no singular respect to the condition of the Jewes more than any other people. Those are all of the Morall and Natural Law,[15] which are common to all Nations.[16]

Second category laws were often spoken of as appendices to the moral law. Ames beautifully describes the relation between these judicial appendices and the Decalogue:

“For God would have his Law guarded with such kind of injunctions as with bounds to keepe men off from more heynous sinnes. Now as the bounds and wall which defended the house was reckon’d as one with the house, so these appendixes to the commandements make but one Decalogue.”[17]

Theonomy’s opponents sometimes quote Anthony Burgess as a representative Westminster divine who strongly advocated the complete abrogation of the judicial law. Nothing could be further from the truth. In a sermon delivered on September 5, 1644 he said:

“There are such [punishments] as are immediately commanded by the Law of God, or are evidenced by the Law of Nature. And here though it be seriously disputed among Divines,[18] Whether a Magistrate may remit that punishment, which by God’s Law is prescribed: yet that opinion seems safest, which doth wholly deny it:”

He continues by providing a solid reason for that opinion:

“Because that if the Magistrate should release the punishment which God hath commanded, he should then remittere de alieno, release another’s right, which is God’s: and that is altogether unlawful.”[19]

Burgess is speaking of punishments prescribed by God’s law. He undoubtedly sees these penalties as still in force―except in the case of first category laws, as we saw in our earlier extracts from Vindicae Legis. Furthermore, it would be tantamount to stealing the rights of God if the biblical penalties were not enforced.

Like Burgess, Paul Bayne (or Baynes) who succeeded Perkins at St. Andrews, Cambridge also tells us in his commentary on Ephesians that the Old Testament penalties are still in force. Speaking of capital offenses he wrote: “Now these are not to be altered in the general, though the kind of death may be changed.”[20] [21]

Because the second category was essentially moral, William Gouge stressed its common equity and therefore universal application:

“There were other branches of the judicial law which rested upon common equity and were means of keeping the moral law: as putting to death idolaters and such as enticed others thereunto; and witches, and wilful murderers, and other notorious malefactors. So likewise laws against incest and incestuous marriages; laws of reverencing and obeying superiors and governors; and of dealing justly in borrowing, restoring, buying, selling, and all manner of contracts, Exod. xxii. 20; Deut. xiii. 9; Exod. xx. 18; Num. xxxv. 30; Lev. xx. 11, &c., xix. 32, 35… 2.”[22]

Gouge also says of the universal, moral nature of second category laws, “God’s laws are the rule of righteousness; from them all laws take their equities.”[23] As such they apply to civil magistrates everywhere. It is their duty to recognize that, “Their rule must be God’s law, and they ought to command nothing but what is according to that law.”[24]

Westminster divine Francis Cheynell, citing Piscator on Exodus, emphasizes that the second category laws were perpetual and did not expire:

“All divine lawes which concern the punishment of Morall transgressions, are of perpetuall obligation and therefore still remaine in force according to their substance and generall equity, abstracted from speciall circumstances, Typicall Accessories, and the old formes of Mosaicall Politie, For 1. These divine Lawes are not expired in their own nature. 2. They are not repealed by God. 3. The authority of the Law-giver is the same under both administrations, old and new… 4. The matter of the Lawes is Morall… 5. The reason of these divine Lawes is immutable… 6. These divine Lawes are Independent on the will of Man…”[25]

Cawdrey and Palmer provide a hermeneutical criterion to discern which judicial laws were moral in nature:

“Every Law of God though but Positive, which is Substantially-profitable for all men in all Ages to be obliged unto is Moral, that is, Universal and Perpetual, unless a clear and certain repeal of it can be showed in Scripture.”[26]

According to Palmer and Cawdrey’s criterion, unless a judicial law had a “clear and certain repeal” it was to be regarded as moral, universal and perpetual. By definition such a law was not subject to expiry.

Thomas Edwards tells us that these laws of common equity, often referred to as judicial, were, strictly speaking, not judicial:

“Customes used among them [the Jews] that were observed universally among all Nations, or by divers Nations (though not of all) strictly speaking were not Judicial Lawes…”[27]

“these lawes of punishing Idolaters, false Prophets, &c. were not properly judicial Lawes, nor abrogated by Christs coming…”[28]

(posts in this series: part 1, part 2, part 3, part 4)

read entire series on PDF   

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     [1] Herbert Palmer was appointed an assessor to the prolocutor of the Assembly following the death of John White, with the duty of taking the prolocutor’s chair during times of occasional absence.

     [2] “relatives to” i.e. related to, connected with.

     [3] As extracted from: Daniel Cawdrey and Herbert Palmer, Sabbatum Redivivum: or the Christian Sabbath vindicated (1645): Chris Coldwell, “The Westminster Assembly & the Judicial Law: I. Chronology,” The Confessional Presbyterian, 5 (2009): 28.

     [4] William Ames, Conscience with the Power and Cases Thereof (1639; reprint, Puritan Reprints, 2010), 109. The first edition is understood to be that of 1631 (in Latin).

     [5] “that polity” i.e. the Jewish people considered as an organized society, a body politic.

     [6] William Gouge, A Commentary on the whole Epistle to the Hebrews, 3 vols. (Edinburgh: James Nichol, 1866/67), 2: 123. Gouge continues: “Many branches… appertained to the Jewish priesthood; as, the particular laws about the cities of refuge... Num. xxxv. 25. And laws about lepers… Lev. xiv. 3. And sundry other cases which the priest was to judge of, Deut. xvii. 9. So also… distinguishing tribes. Num. xxxvi. 7; of reserving inheritances to special tribes and families, of selling them to the next of kin, Ruth iv. 4; of raising seed to a brother that died without issue. Gen. xxxviii. 8, 9… the year of jubilee, Lev. xxv. 13, &c.”

     [7] Thomas Edwards, The Casting Down of the last and strongest hold of Satan, or, a Treatise against Toleration and pretended Liberty of Conscience (London: Printed by T. R. and F. M. for George Calvert, 1647), 51.

     [8] Ibid., 65.

     [9] Ibid., 71.

     [10] In the last two citations, Edwards is writing against those who miscategorize the law.

     [11] Anthony Burgess, Vindiciae Legis: or, A Vindication of the Morall Law and the Covenants, From the Errours of Papists, Arminians, Socinians and more especially Antinomians. In XXX Lectures, preached at Laurence-Jury, London. The second Edition corrected and augmented (London: James Young for Thomas Underhill, 1647), 168.

     [12] Ibid., 211.

     [13] Any theory of a drastic change in Burgess’ opinion on the judicial law, must posit that the change took place in the period between September 5, 1644 and June 11, 1646. This is because: Vindiciae Legis, as just cited, is prefaced by a letter dated June 11, 1646 from the “President and Fellowes of Sion Colledge London” requesting publication of Burgess’ lectures which make up the book; September 5, 1644 is the date when he delivered the sermon quoted below.

     [14] Gouge, 2:347.

     [15] Readers may be justifiably concerned about the occasional reference by the divines to “natural law” and human reason. Ames goes a long way to allaying such concerns. He writes: “But ever since, the corruption of our nature, such is the blindnesse of our understanding, the perversnesse of our will and disorder of our affections, that there are only some Reliques of that Law remaining in our hearts like to some dimme aged picture, and therefore by the voyce and power of God it ought to bee renewed as with a fresh pencill. Therefore is there no where to be found any true right practicall reason, pure and complete in all parts, but in the written Law of God, Psalme 119. 66.” (Ames, Conscience, 108.) Cartwright also speaks of “mans reason” as “shrewdly wounded.” (Cartwright, Second Replie, 97.) According to Rutherford: “The Law of reason in Morals… is nothing but the Morall Law and will of God, contained fully in the Scriptures of the Old and New Testament; and therefore it is not to be divided from the Scriptures…” Samuel Rutherford, The Divine Right of Church Government and Excommunication (London: Printed by John Field for Christopher Meredith, 1646), 75.

     [16] Ames, Conscience, 109.

     [17] Ibid., 194, 195.

     [18] He cannot mean his fellow Westminster divines held such a view. In the very next sentence he contrasts divines who would remit punishments with “ our Divines ” which “do justly condemn those Sanctuaries and Refuges in holy places, (as they call them) for wilful murder…”

Writing at the time of the Assembly, Thomas Edwards distinguishes two separate groups of divines. The first group is composed of “them that hold the judicial lawes totally abrogated.” The second is “the generality of Orthodox Divines.” (Edwards, 82.)

     [19] As extracted from a sermon given in London, 1644, by Anthony Burgess, Judgements removed, where judgement is executed. (Coldwell, 16.)

     [20] Paul Bayne, An Entire Commentary upon the Whole Epistle of St Paul to the Ephesians (Edinburgh: James Nichol, 1866), 162. Interestingly, Bayne divides the judicial law into three parts; one of them corresponds to our second category. The first category he divides into two parts, one guards the ceremonial law, and the other is “tempered to state, persons, &c.”

     [21] Sinclair Ferguson quotes a passage beginning a few sentences later where Bayne allows for

mitigation and extenuation. He falsely implies that modern theonomists do not allow for mitigating or extenuating circumstances (an obvious case is when David ate the shewbread, Matt. 12:3,4). Sinclair Ferguson, “An Assembly of Theonomists?” Theonomy: A Reformed Critique, ed. William S. Barker and W. Robert Godfrey (Grand Rapids: Academie Books, 1990), 333.

     [22] Gouge, 2:123.

     [23] Ibid., 2: 348. Gouge previously cites a passage and verses from the judicial law: Lev. 20: 1, etc., 24:

23, Num. 15: 36, Deut. 13: 5, 11, as the basis for this and other statements.

     [24] Ibid., 2: 107. Gouge is speaking of law which is contained in “particular commandments which here and there are to be found in God’s word.” Clearly, he does not limit law with perpetual moral content to the Decalogue.

     [25] Francis Cheynell, The Divine Triunity of the Father, Son and Holy Spirit (London: Printed by T.K. and E.M. for Samuel Gellibrand, 1650), 473, 474.

     [26] Coldwell, 29.

     [27] Edwards, 51.

     [28] Ibid., 77.