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General Equity Applied to Capital Crimes: An Anthology in Progress

  • Writer: brandon corley
    brandon corley
  • Mar 18, 2023
  • 6 min read

How did the Reformed of the 16-17th centuries understand general equity as it relates to capital crimes? This post seeks to create a list of names to help answer that question. For now, this is just a list of names, but the explicit quotations will be added in when a I have time.


I have tried to keep this list to explicit citations that indicate a certain crime ought necessarily, in ordinary situations and according to the common law, be punished (in ordinary circumstances) specifically by death. Were this list considering people arguing for punishment *up to and including death* via the particular circumstances of the law, this list would be colossal and include most premodern historical figures. Although not every theologian has explicitly mentioned every crime in their writings, there are at least a few who I am near absolutely certain would affirm in nearly every category, those theologians being John Cotton, George Gillespie, Samuel Rutherford, Johannes Piscator, William Gouge, Thomas Cartwright, Theodore Beza, Heinrich Bullinger, and Franciscus Junius. These men also represent those who have written the most out of everyone here on the topic of civil punishments. This does lead me to believe that there was widespread agreement among the Reformed that the following list of punishments ought to be punished capitally, even if specific theologians do not ever explicitly state this. Indeed, in my own research, there are at least two crimes that appear to be near-universally affirmed as necessarily capital by the Reformed, those being murder and adultery (the only exception that I have ever found being Thomas Goodwin to adultery). Although this list is mainly concerned with the Reformed of the 16-17th centuries, I have also decided to include some other sources such as pagans. I believe that Draco and Cicero would support much here, I am however, having a hard time finding specific quotations from them and thus I cannot place them on the list until and if that happens. If anyone wants to see a specific quotation, feel free to ask, and I will provide substantiation. The adultery list is one I have been making for some time, and sadly, I have forgotten where I found many citations. Nevertheless, a quick Google search, "[Name] death penalty adultery" and some digging should turn out results. I can assure you though that I did my best to keep this list as a whole, and that section in particular, as accurate as possible. This is also a good resource for that section, although I refused to use it in the links, as I am searching for direct (English) quotations.


Gross Idolatry:


Blasphemy:


False accusation of capital crime (Deut. 19:18-19):


Murder:


Manstealing:


Adultery:


*as far as I can tell, most of the Reformed and ancient societies count adultery as a crime agaisnt the man. This, I believe, strongly argues for the general equity of such an arrangement and would make the most sense out of things with the woman being under the care of and being the property of her husband as the head of the household, the basic unit of society. For this reason, John Holt calls it the “highest invasion of property.” It also makes good sense of Jesus's divorce sayings insofar as he is going beyond what civily and by the common law counts as "adultery" or "murder" and goes towards the moral heart-attitudes behind these things so that it can be said that married men "commit adultery" in their hearts with unmarried women. Civily and by the common law, sex between a married man and an unmarried/unbethrothed woman would count as fornication, which they usually punished by beatings and/or fines. By the common law, adultery is a crime against the man. If civil laws prosecute sex between a married man and an unmarried woman as “adultery” they are only evidencing their confusion to correctly reason about nature and miss the very reason for heinousness of adultery which makes it worthy of the death penalty in the first place. Such laws are unjust by excess. And even if it were to happen that by increased crimes, the penalty for fornication were for a time increased to death, as I reason may happen by reason of extraordinary circumstances, they ought not to be punished under the name of “adultery” but as “fornication” since it is important to call things as they truly and metaphysically are, and not by the names of other things.


Here is an email I sent to an inquirer to explain this point more clearly:


[Responding to the claim that I think "the natural law ordains capital punishment for illicit intercourse."] First, “illicit intercourse” is broad; I don’t think the natural law ordains capital punishment for all illicit intercourse. For instance, sex between an unmarried and unengaged man and woman.


Second of all, I think it’s important to be clear on what we mean when we say the natural law ordains this or that punishment simpliciter. Here we aren’t taking into account the specific circumstances of the case, which very well might change the outcome, but we are considering the lex talionis of a given crime in itself and how that crime ought to be punished, all else being equal, in ordinary circumstances. Thus, for instance, the just punishment for murder in this sense is death. I talk about this here: https://x.com/brandoncorley99/status/1864043258629992846?s=46 speaking on chapter 6 of Junius’s Mosaic Polity, which is also the most relevant source I can think of at the moment for this question.


Third, the question being established, how do we come to the conclusion that the natural law ordains capital punishment for such crimes as adultery, sodomy, bestiality? In the case of murder, that the death penalty is the (ordinarily) just punishment is more intuitive because the same material action is carried out on the murderer. Certainly however justice does not respond tit-for-tat in a purely material manner, as otherwise the (ordinarily) just punishment for rape would be to rape the rapist. Rather, we take into account the gravity of the offense and the proportion of harm it has caused against the one wronged. It takes into account the degree of the good harmed and the irreversibility of the harm done. Murder is clearly to be punished by death as the good harmed is human life to the maximal possible degree and cannot be remedied. So, take adultery for instance, jurists have called it the highest invasion of property that can be committed against a man. It is a violation of a man’s right over his wife in the natural institution of marriage which is the foundation of the household and thereby the foundation of the entire political society. Thus, it is a form of treason. This I have always considered to be relatively clear on analogy with murder [Thomas Cartwright writes “unlesse men will like Gyants fight against the light of nature, or say, that our Saviour Christ came to abolish that which in all times and with all Nations (not alto∣gether spoiled of the discretion of honesty and dishonesty) was observed, it followeth, that the punishment of Adultery by death, and consequently much more the punishment of incestuous meetings by death, standeth in as full force now as ever it did before the coming of our Saviour Christ.” https://quod.lib.umich.edu/e/eebo/A80850.0001.001/1:3?rgn=div1;view=fulltext]. Sodomy and bestiality, I admit, might initially seem less intuitive since there is no right of marriage being violated there. But punishment takes into account not only how an act harms individuals, but also how it affects civil society as a whole (I believe the legal reasoning used in Commonwealth v Sharpless is applicable here). Although no individual marriage is violated by these acts, they still harm the institution of marriage as such and in an even greater manner than adultery does. Thus, the analogy to treason actually applies all the more in their case, not less. I’m sure I could add more here, but those are my initial thoughts. Hope they are helpful.


Sodomy:


Bestiality:


Incest:


Striking/cursing of parents:


Witchcraft/sorcery:




Some of the best resources on general equity that I have come across can be read here:




It should also be known that Beza (who coined the term "general equity"), Piscator (whose commentary on Exodus stands behind 19.4), Gillespie (a Westminster divine and one of the chief expositors of 19.4), and Junius (who wrote the greatest treatise on the subject of the era) all held that the capital penalties for all moral Mosaic crimes still apply today (put more accurately, whoever civilly by the common law is liable to the death penalty according to the law of Moses, likewise the same person must be considered liable to the death penalty in our time).

 
 
 

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