Editor’s Note: This is part 6 in our Lyceum Disputation series considering the nature and validity of theonomy. Stay tuned for further installments. As with all our work, the London Lyceum publishes a range of viewpoints to encourage thinking.
Introduction
Theonomists repeatedly attempt to appropriate Puritanism, the New England variety in particular. It offers them both an historical pedigree and geographical proximity. Thereby is provided a distinctly American hook, so to speak, by which theonomy can pretend to be native, rather than foreign, to the Protestant tradition in its American expression.
The question, then, is whether the Puritans, as they actually were, were theonomists. It’s that simple. For the purposes of this essay, theonomy can be boiled down to one fundamental conviction. Theonomy is a Biblicist and, therefore, positivist enterprise that insists that the Old Testament Mosaic civil or judicial law is perennially valid and universally binding. By extension, that legal code—no more and no less—provides the only legitimate blueprint for the legal landscape of a just society. To restate the question, did the Puritans harken to that view both in theory and practice? In brief, theonomy is a decidedly modern aberration. Puritans would not have recognized it. (The practical lesson embedded in that conclusion is that theonomists that seek to claim the mantle of the Puritans are not reliable historians.)
The Mission
Joe Boot’s book, The Mission of God, serves as a recent example of a theonomist attempting to accost Puritanism. “The choice is theonomy (God’s law) or autonomy (man’s self-law), and autonomy leads inexorably to either anarchy or totalitarianism,” writes Boot.[1] He attributes his theonomic commitment to the “aim of Puritan thought.” He dubs theonomists the “most consistent modern heirs,” of the Puritans.[2] Predictably, then, Boot calls his program, “New Puritanism,” and situates R. J. Rushdoony as “the most important representative” of this party because he self-consciously “aimed to resurrect the vision of Calvin and the Puritans,”[3] or what Boot later refers to as “a Puritan, theonomic missiology.”[4] (Later, we will turn to Greg Bahnsen and discover the same position insofar as he considers the Puritans, from East Anglia to Massachusetts, exponents of a theonomic vision.) Boot’s book is sweeping and laden with problems, but we will limit ourselves to consideration of Boot’s mission to rope in the Puritans for his cause.
At the outset, we must say that, normatively speaking, theonomists suffer from the lack of a taxonomy of law: not simply a division of the Mosaic law into moral, civil, and ceremonial, which they affirm, but the classic categorization of eternal, natural, and human law. This problem will not be adjudicated here, or at least not directly.[5] Regarding historical considerations, Ian Clary has ably addressed another shortcoming of theonomist literature, viz., the treatment of Puritanism generally.[6] This too will not be replicated in this essay.
Rather, we will take aim at theonomist treatment of New England Puritanism—related but distinct, if only geographically, from English Puritanism—in particular. First, by considering the prevalence and use of natural law theory in the period by our subjects. By theonomist lights, this should position New England Puritans as enemies of theonomy by way of violating the radical antithesis, thereby exposing themselves as proponents of “autonomy” over “theonomy.” Second, we will briefly examine and exposit a text from seventeenth century New England often cited by theonomists as proof positive of their thesis. At bare minimum we will complicate the issue for them; more ambitiously, the theonomist claim to the text will be proven erroneous.
Those “Autonomous” Puritans
“The main rival to biblical law in Christian thought has been variations of natural law theory,” writes Boot. He attributes the development of this theory to Aquinas via Aristotle and juxtaposes it with the alleged “biblical law” Puritan spirit.[7] It is Rushdoony and the theonomists, he claims, that embody the “Puritan thesis” which was also, apparently, reflected by Cornelius Van Til.[8]
In Boot’s world, then, Puritanism and the natural law tradition are antithetical, a wildly ahistorical claim. The paradigm of autonomy v. theonomy governs the inquiry more than any historical data understood on its own terms and by its own context. This approach enables theonomists to adopt the Puritan moniker according to a post hoc construction of a Puritan spirit or disposition, an historically suspect aspiration and method.
Again, Ian Clary has addressed this problematic claim. Similarly, but regarding natural theology generally, Wallace Marshall’s Puritanism and Natural Theology (2016) convincingly argues that Puritans on both sides of the Atlantic “saw supernatural revelation as building on a foundation of natural revelation—natural revelation being conceived not merely as innate knowledge of God human beings have by virtue of being created in his image, but also in the sense of conclusions derived from reason, contemplation of human existence, and consideration of the works of nature.”[9] In other words, the light of nature was prepatory unto reception of the higher truths of divine revelation not accessible by, but congruent with, right reason. In A Discourse Proving that the Christian Religion is the only True Religion (1702), Increase Mather (1639-1723) argued that “except men give Credit to the principles of natural religion, they will never believe the Principles of revealed Religion.” This applied to the laws dictated by the light of nature too—both as to source and effect.[10]
We can briefly corroborate Clary’s critique with an eye toward New England in particular. Natural law flourished in the new world in the seventeenth century as much as it did in the old world. This fact hampers the theonomist affinity for the Puritans because, as stated, it situates the latter in the camp of the sworn epistemological enemies of the former. By implication of Boot’s (and Bahnsen’s) framing of the issue under review, if the Puritans were proponents of the western tradition of natural law theory, then they cannot be theonomists.
Nature’s Law and Nature’s God
The natural place to begin in considering the relationship between natural law and the New England Puritans is with William Ames (1576-1633), the greatest New Englander who never set foot on American soil. From Rotterdam, Ames cheered on the errand into the wilderness and thought of joining it himself, but he died before he could actualize that desire—his children emigrated to Massachusetts shortly after his death. More importantly, the influence of Ames on the theological formation of the colonists cannot be overstated. His Medulla Theologica (1641) served as a primary theological textbook at Harvard for decades and, therefore, remains a key source recognized by all historians for understanding New England theology and piety. In the Medulla, Ames reveals himself a traditionalist (and Thomist) on the natural law.[11] Therein he describes the synteresis (or synderesis), a Thomistic term with no settled definition, as the “storehouse” of the natural law written on the heart by which the conscience judges thought and action.[12] As an intellectual habit, the contents of the storehouse cannot be extinguished.
But it is in Conscience with the power and cases thereof (1639), which was also devoured by Puritans of the new world, that Ames demonstrates his fealty to the natural law tradition more fully. In Conscience he also takes up the synteresis idea and considers its interaction with the conscience. In the process of that inquiry, Ames defines natural law as “practical principles known by nature and partly of conclusions deduced from those principles.” It is “the same which usually is called eternal law… But is called eternal in relation to God… [and] natural as it is engrafted and imprinted in the nature of man by the God of nature.” (This is simply another way of articulating Aquinas’s definition of natural law as participation in the eternal law).
Ames’s definition and approach was taught to generations of Puritan clergymen and magistrates who came through Harvard. But Ames was not the only source of instruction on this front. Important to recognize also is the intense influence of classical sources on the period, especially on matters of politics.[13] These sources were appreciated for their perennial wisdom. The comment of Charles Chauncy (1592-1672), onetime president of Harvard and lecturer in Greek at Trinity College, Cambridge prior thereto, in 1655 suffices to illustrate the Puritan love of classical learning, viz., because it was a source of natural light:
All truth, whosoever it be that speaks it, comes from the God of Truth. Who can deny but that there are found many excellent and divine morall truths in Plato, Aristotle, Plutarch, Seneca, etc.; and to condemn all pel-mel will be an hard censure… If one abolishes all the learning that the heathen men have uttered out of the light of nature, it will be a great oversight.
In one well-known episode, Winthrop chastised Nathaniel Ward for saturating a sermon with too many classical references; Ward ably defended himself against the charge apparently to the Governor’s satisfaction per his own recording of the incident in his journal.
We would be remiss if we made no mention of the numerous and repeated references to natural law in sermons and popular pamphlets, the chief media of the colony, though it would be tedious to catalogue them. Consider as representative Samuel Willard (1640-1707) and his famous Character of a Good Ruler (1694) election sermon wherein he charged all magistrates to exercise power “in Conformity to the Law of God, and the Light of Nature.”[14] Or think also of John Wise (1652-1725) and his two famous treatises on church polity Churches Quarrel Espoused (1710) and A Vindication of the Government of New-England Churches (1717). Both feature references to the natural law and/or light of nature. The latter offers a uniquely thorough treatment of the same. Indeed, the entire purpose of Wise’s “Second Demonstration” in the Vindication was to prove the validity of the Congregational Way from “Law of Nature” or “the Light of Reason as a Law and Rule of Right.” Amidst an array of eclectic sources—Samuel Pufendorf (1632-1694), Henry Booth (1652-1694), John Owen (1616-1683), Boethius, and Plutarch, among others, are all given pride of place—Wise made sure to quote the Jus Divinum Regiminis Ecclesiastici (1647) which declared that “That which is evident by, and consonant to the Light of Nature, or Natural Reason, is to be accounted, Jure Divino, in matters of Religion.”[15]
No “Bible Commonwealth”
But how did the Puritans handle the judicial/civil law of Moses in light of this affirmation of natural law? A common false narrative peddled by others besides Boot and Bahnsen is that New England was a “Bible commonwealth.” Better historians like George Haskins have sufficiently put that to bed.[16] “The notion that the colonists’ ideas of law were the primitive ones of ancient Israel or of a rude frontier is belied by their own statements, particularly in Winthrop’s writings and in the Epistle prefaced to the Code of 1648.”[17] For Winthrop’s part, he,
Pointed to the absence of scripturally prescribed penalties for many crimes as evidence that the Lord, who had laid down precise penalties for many offenses, ‘could have doone the like in others, if he had so pleased,’ therefore clearly intended that magistrates, as God’s regents on earth, should exercise their ‘guifts,’ as the situation might require, in dealing with the offenses for which the Bible prescribed no penalty.[18]
Haskins rightly surmises that the leaders of the colony “recognized that the precepts of Scripture could not, and indeed should not, provide a complete guide for the adjustment of the varied interests which continually pressed for recognition and accommodation.”[19]
Instead, a highly developed and competent legal system developed, derived chiefly from English common law forms, categories, and procedures.[20] Men like Winthrop and Ward, as trained barristers, were conditioned in their approach to law by the English legal culture of the time. The works of St. Germain and Fortescue and, then more recently, Coke’s cases, colored their jurisprudential posture.[21] Those sources and the others read by apprentices of law were saturated with natural law references. Those who spent years under the tutelage of these works were not likely to discard their lessons.[22]
We see in Winthrop’s 1644 treatise on arbitrary government a reflection of this reasoning, complete with an extended quote from the Summa.[23] Indeed, Norman Fiering has felt comfortable declaring the Angelic Doctor the key source necessary for understanding the New England philosophical and ethical outlook.[24] We see in the introductory epistle to the 1647 Laws and Liberties of Massachusetts that he marries the word of God and the “light of nature in civil nations” (i.e., ius commune or ius gentium) as equal sources of “deductions and rules” from which law should be formed, and so long as said ordinances be promulgated by proper authorities and for the common good—a standard suspiciously similar to Aquinas’ classic definition of law.
We can also comment more generally on the intellectual and educational milieu of the time within the Protestant republic of letters, from which the colonists were not insulated, vis a vis treatment of Mosaic law. I know of no relevant text on the question of the law of Moses which disagrees with what Johannes Wollebius (1586–1629) says in his Abridgment of Christian divinitie (1650),[25] which eventually replaced Ames’s Medulla as a standard textbook at Harvard College in the seventeenth and eighteenth centuries.
Wollebius remarks that “The Law of God given by Moses, differs not really, but in some respect from the Law of nature planted in Adam, the remainders of which are as yet to be found among the Gentiles.” In a footnote to this sentence, Wollebius adds, “Therefore, all men are bound to obey the moral Law; not because it was given by Moses, for so the Jews were only tied to it, but as it is the Law of nature.”[26] Many other such treatment of the Mosaic law could be mustered in support, but David VanDrunen and Miles Smith IV have already sufficiently performed that task in their symposium contributions. Yet, we will briefly return to Ames to corroborate the claim. In Conscience, Ames says:
That Judicial Law which was given by Moses to the Israelites as proper only to them, was a most exact determination and accommodation of the law of nature unto them, according to the particular condition of that people. To the Israelites therefore in respect of the use, it was of like nature with other good civil laws among other nations; but in respect of authority, which from God, the immediate giver, it received, it was of much more perfection than any. This law belongeth not to Christians under the title of a law especially obliging them, but only by way of doctrine, inasmuch as in its general nature, or in its due proportion to it, it doth always exhibit unto us the best determination of the law of nature.
Theonomic Abstractions
The Puritan embrace of natural law in New England does not necessarily demolish the theonomic case. The above notwithstanding, perhaps, they still established a society based on “Biblical law” in practice if not in theory. Maybe their legal code was none other than a transcription of the law of Moses. Disproving the latter demonstrates the silliness of the former.
Again, and argued already, law in Massachusetts Bay and her sister colonies was never, at any point, the Mosaic civil code plopped down on New England soil as the sole, sufficient legal code to govern Puritan society. To illustrate the point further, we will follow Bahnsen and focus on one illustrative example, that of An Abstract of the Laws of New-England (1641) usually attributed to John Cotton (1585-1652).
Cotton’s Abstract
A mistake made by Bahnsen and many others is to consider the document attributed to Cotton too authoritative or too representative. Doubtless, Cotton enjoyed outsized influence in the colony. Per usual, however, the influence of Cotton’s record of New England laws is more complicated. A brief recounting of that story is not a mere historian’s exercise. It sheds light on the nature of law in New England and thereby contributes to our central question.
Most of the law of Massachusetts in the first decade of the colony was comprised of orders and rulings of the magistrates—more or less filling the role of justices of the peace—and the Court of Assistants. For various reasons that will not detain us here, by 1634, the deputies of the General Court began asserting its legislative function more forcefully. As the caselaw record grew the need for a distillation of “fundamental law” to act as an interpretive touchstone and guide, and to limit judicial discretion, grew. At the same time, concern over the broad discretion of magistrates also increased. As John Winthrop (1587-1649) wrote in 1635, the deputies and their constituencies were worried about the dangers that could emerge from a “want of positive laws.” In response, “a body of grounds of laws, in resemblance to a Magna Charta, which, being allowed by some of the ministers, and the general court, should be received for fundamental laws.”[27] This enthusiasm materialized in the appointment of a series of committees to draft “fundamentals.” The drafts were to be both agreeable to the word of God and, per the charter, not repugnant to the laws of England.
Fundamental Law
What was intended by “fundamental law” is difficult to determine with much exactitude. The term has an ancient pedigree within the common law and predates even that system.[28] As John Eusden has pointed out, even seventeenth century jurists as learned as Edward Coke (1552-1634) could not define it.[29]
The idea of a law ‘fundamental’ to governing authority was a common motif in the Middle Ages and found expression in the ancient idea of the ‘supremacy of law… Yet it was in Stuart England for the first time that fundamental law began to fill the air. It entered freely and masterfully into common law courts, the halls of Parliament, the chambers of the king, and even the pulpits. So strident were the cries of fundamental law that any definite sense of the term is hard to grasp.[30]
Nevertheless, invocation of “fundamental law” skyrocketed in the period. Eusden discerns several uses; one of which is most applicable to the context and use of the Bay colony.
Their use was not that of the absolute monarchist nor of the Levellers and radical republicans.[31] Rather, the impetus for the General Court’s call for drafts was animated by the same understanding of fundamental law as that of most common lawyers of the time. This understanding—that of Coke, John Selden (1584-1654), and Bulstrode Whitelocke (1605-1675), and others—was appreciative of all the constituent parts of English law. Fundamental law was a composite of many sources including, perhaps especially, custom as an expression of reason proven by longevity of use. Good law was both old and practicable, and thereby exhibited reasonableness unto the common good.[32]
Custom was then affirmed and solidified by judicial acts yielding a rule, or so the theory went. Statutes too—at least those promulgated not unilaterally by Whitehall but by the king-in-parliament—were part of the fundamental law apparatus, as well as other products of parliament and the monarch, most notably, Magna Charta (1215), and later documents like the Bill of Rights (1689).
Under this theory, then, even such an illustrious document like Magna Charta was nothing but the inscripturation, if you will, of common custom and tried-and-true distribution of labor between governing authorities within the realm. In many ways, then, it was analogous to the inscripturation of the natural law in the Decalogue. Generally speaking, the common law was nothing more than “natural law applied to English life” anyway.[33] Or as Michael Dalton (1564-1644) put it in his The Country Justice (1618), which was on the library shelves of many New Englanders throughout the seventeenth and eighteenth centuries:[34]
The Common Laws of this Realm of England, receiving principally their Grounds from the Laws of God and Nature; (which Law of Nature, as it pertaineth to Man, is also called the Law of Reason) and being, for their Antiquity, those whereby this Realm was governed many hundred Years before the [Norman] Conquest; the Equity and Excellency whereof is such, as there is no human Law so apt and profitable for the Peaceable and prosperous Government of this Kingdom.[35]
That the General Court operated from this understanding of fundamental law is evidenced by their urging of each township to submit a record of its customs and laws. This crowdsourcing effort, however much Nathaniel Ward resented it, suggests magistrates conditioned by a common law jurisdiction, the land of Henry de Bracton, St. Germain, Richard Hooker, and Sir John Davies. Already then, by the call of the Massachusetts General Court in 1634/5, we can see that what was requested was not theonomic proposals—copies of Mosaic judicial/civil law. This was not a positivist project.[36]
Rather, it was a thoroughly common law project was undertaken albeit, perhaps, within distinctly Puritan confines. The common law character of the Abstract itself is evident from the chapters on burgesses which features exactly zero Scripture citations in the margins.
Given their political situation—not least of which the legal fiction doggedly clung to throughout the first two-thirds of the century that the colonists of the Bay had not separated from the English monarch nor the English church—the first guardrail of this effort was the laws of England (i.e., the common law), per the charter of 1629 which directed the colony to “make, ordeine, and establishe all manner of wholesome and reasonable orders, lawes, statutes, and ordinances, direccions, and instruccions not contraries to the lawes of this our realme England.”
Given their theological commitments, the second guardrail was Scripture. In both cases, the laws of the colony did not need to be identical to or synonymous with either guardrail but rather agreeable to each. In other words, not contradictory.
Further, Scripture was a sound guide for establishing positive law not because the Old Testament Mosaic law established universal dictates, but because said law reflected the natural law and featured an example of how the natural law could be prudently applied in context.[37] As Ralph Clover rightly says:
[The] ministers and magistrates [of Massachusetts] subscribed to a belief not merely that the moral principles of the Decalogue and the New Testament embodied the law of nature, but that a large proportion of the specific rules of Mosaic law as also exemplary of the natural law. This was so by virtue of their evident or demonstrable conformity to right reason.[38]
In other words, it was not because a particular law was inscribed in the Old Testament that it possessed authority but rather that the same conformed to right reason that they could be, at least in part, applicable in different contexts controlling for prudence. The overarching standard was that all laws either be of God directly or “mediately,”[39] with the latter comprising the vast majority of positive law and the former providing the background baseline for further contextualization and application. (Remember too that the natural law was the law of God.)
And so, when the General Court requested drafts for the “fundamental laws” of the colony it was a plea for a diverse recollection of something amorphous but nevertheless alive and essential to any common law jurisdiction. That the Puritans understood themselves to be a common law jurisdiction is evident from various episodes in the early history of the colony. One such is when Winthrop’s authority was challenged by Thomas Dudley (1576-1653), the deputy governor at the time. The latter argued that if Winthrop’s charge was derived from the charter alone, then he had no more authority than any of the other board members or shareholders (i.e., assistants) since the “governor” in the charter text was afforded no especial powers except to call meetings. Winthrop shrewdly answered that the term “governor” within the charter, being textually ambiguous, imported all the typical powers and duties attached to the title in the common law. Winthrop got the better of the argument if not Dudley’s temper.[40]
Liberties over Abstracts
Returning to the committees of the General Court, the first drafting committee, composed of only four magistrates, produced no draft, presumably due to disagreements between Winthrop and Thomas Dudley (1576-1653). The second committee added the new governor, Henry Vane (1589-1655), and three clergymen, including Cotton. In 1636, Cotton submitted, per Winthrop, “a model of Moses his judicials.” It is not certain that this draft was identical to the document we have, How far Moses Judicialls bind Massachusetts, though most historians assume as much. In any case, Cotton’s draft was never incorporated into the laws of the colony though, as George Haskins notes, it did exert some lasting influence. By this Haskins means the Abstract.[41] Again, that the Abstract is basically a copy of the Judicialls is usually taken for granted, but the case cannot be definitively made.[42]
More to the point, claims that the Abstract—even if it is not identical to the Judicialls—was based only or entirely on the Bible are easily refuted.
The instruction of the General Court was that proposals be “agreeable to the word of God.” Scriptural citations in such a proposal would be expected, then. This hardly indicates a theonomic tenor in Cotton’s draft. Either way, Cotton’s submission was rejected. Haskins speculates that it was “not sufficiently comprehensive.”[43] Whatever the reason, Cotton’s did not satisfy.
Soon a third committee was appointed and a call for all locales to submit to the Court drafts of their customs and laws was issued as mentioned above. How many were actually submitted is unknown. By 1639, Ward’s draft was in hand, at which time a fourth committee—again, its members were only magistrates and laymen—reviewed it. The point being that neither Cotton nor Ward, a lawyer turned preacher, were included. Yet, Ward’s model eventually edged out the others. It was circulated to the towns for notice and comment, a process to which the ever-aristocratic Ward apparently took exception.
The final product, then, incorporated the results of that common consideration of the freemen (i.e., property-owning church members) in the townships combined with final review of the Court and Winthrop himself. What emerged was the Body of Liberties (1641), and we cannot know what elements were original to Ward and which were later amendments. It was a product of Massachusetts, not Ward alone, though Winthrop and others credited him often with the primary contribution in dictating the “rites, freedomes, Immunities, Authorities and privileges, both Civill and Ecclesiastical.”
As Haskins rightly discerns, unlike the Abstract, “The Body of Liberties was less a code of existing laws than it was a compilation of constitutional provisions.”[44] In 1647/48 the Court published a new, definitive version of its laws, entitled, The Lawes and Liberties of Massachusetts. The Laws and Liberties were enacted, in part, because the Body of Liberties still afforded magistrates too much discretion.[45]
Yet, this new version did not pretend to be exhaustive either. Both versions sketched broad confines of colonial relations between powers and estates whilst memorializing capital crimes and the like. The Massachusetts legal code as it existed and operated extended well beyond the fundamental law reflected in the 1641 and 1647 documents.
Cotton’s Judicialls
Ever since Bahnsen republished John Cotton’s Abstract of Laws in an appendix to his Theonomy in Christian Ethics (1977), Cotton has been a regular source for theonomists—not so much Cotton himself, really, but rather his Abstract.
Cotton’s first draft, “How far Moses Judicialls bind Massachusetts,” has already been mentioned but not examined. Caveats pertaining to authorship aside, the text of the Judicialls is certainly pertinent to the question at hand. It considers whether the laws of Moses— “the Lawes giuen to Jewes in script”—were given to the Jews and no other people or whether all Christian people should adopt and establish the same laws and penalties verbatim. That is, whether said laws ceased with that polity, as the Westminster Confession later taught. Stylistically, the Judicialls is a record of a discussion on the subject between interlocutors, a Mr. Phillips and a Mr. Cotton with a brief note from a Mr. Sims.
What of its content? The text is brief, spanning only about four pages, and Cotton’s central point is simple: the “Naturall Judicials” bind perpetually according to their universal moral equity. Theonomists typically only lift from the text Cotton’s quote that “the more any Law smells of man the more unprofitable.” But extracted from its context the quote is wrongly employed. Cotton makes clear the basis for the equitable longevity of Moses’ law, in part by alluding to Romans 2:14–15 and calling it a special blessing of the Old Testament church that both the means as well as the ends were exemplified in their law whereas the Gentiles possess by nature only the ends.[46] Cotton has much use for the inscripturated law, to be sure, but the theoretical basis for said use is decidedly non-positivist.
Though, as mentioned already, the relationship between the Judicialls and the Abstract is not clear, let us assume an intended and real correspondence so that we may progress to consideration of the Abstract itself, and problems with its theonomic reception.[47] Already, if the two documents coincide, a fair reading of the Abstract is problematic for theonomists.
Aspinwall and Cotton
Let us now get really historically nitpicky, if the reader will indulge it. Bahnsen colors his reading of Cotton—assuming it is, in fact, Cotton he is reading—with the comments of William Aspinwall (1605-1662) in his preface to the 1655 edition of the Abstract. This is problematic for several reasons. Again, identifying these reasons is not mere historian’s play, but relevant to our overarching claim, viz., that the Puritans are misunderstood, in a self-serving and sloppy fashion, by theonomists.[48]
Bahnsen introduces the Abstract by quoting Aspinwall at length. The key line is, “The Abstract may serve for this use principally… to shew the complete sufficiency of the word of God alone, to direct his people in judgment of all causes, both civil and criminal.”[49] This realization, said Aspinwall, was necessary for all nations to “submit to the government of Christ.”[50]
In other words, per Aspinwall, the Abstract represents a theonomic blueprint for all Christian nations. Several historical problems present themselves here insofar as Bahnsen endeavors to employ Aspinwall as a reliable exponent of the tenor and purpose of the Abstract. Aspinwall’s biography calls Bahnsen’s confidence in him into question. Indeed, Aspinwall’s preface is an important artifact but not for the reasons Bahnsen thinks. It says more about Aspinwall than Cotton (or New England).
By 1655, Aspinwall was an ostensibly rehabilitated antinomian. He had immigrated to New England with Winthrop’s fleet but, in short order, accompanied the Hutchinson and Williams exodus to Rhode Island before being readmitted to the Bay upon repudiating his dissenting views. But, again, for unknown reasons, he ran afoul Massachusetts leadership and ended up back in England where he joined up with another fringe group, the Fifth Monarchists.[51]
His most famous work was his 1653 Brief Description of the Fifth Monarchy which reveals a vested interest in asserting Scripture alone as a competent and exhaustive legal code, and Christ as the only legitimate magistrate in heaven and on earth. An eschatological necessity drove this commitment so close to the year 1666, which Fifth Monarchists took to be the time of Armageddon. Aspinwall and his comrades needed to “crush and breake” all obstacles to Christ’s rule (i.e., earthly monarchy), “ere the way can be prepared for erecting his kingdome.” Then, and only then, would “All burdens and tyrannical exactions […] be removed.”
In general, Fifth Monarchists were hostile to any rule, any king but king Jesus, and their aversion to aristocracy and hierarchy manifested in a prophetic, biblical literalism with an eschatological import. Accordingly, Aspinwall’s approach should be received with severe skepticism. His political aspirations informed his reading, and this was not the first time that Cotton had been accosted for a divergent cause. The antinomians had made the same move in Massachusetts when they tried to rope in Cotton’s teachings for cover against the prosecution of Thomas Shepherd (1605-1649). Cotton eventually disowned them; he remained whilst they were forced to emigrate. Aspinwall’s reading of Cotton’s Abstract may have been earnest, but it could just have easily been disingenuous, especially when, by the Fifth Monarchist calendar, there would have been only eleven years to go before the return of Christ. No time to lose! As with theonomists today, the New England errand was often enlisted for causes foreign to them back in the old country, enlistment that was hard to check in a timely manner due to the distance.
Scripture Alone?
So much for Aspinwall the man. What of his interpretation, which Bahnsen adopts, of Cotton? Is it really a purist sola scriptura legal code?
We can phrase the question this way: is it odd—by which I mean, indicative of theonomic tendencies—that the Abstract features Scripture citations for the majority of the entries, especially most of the criminal code embedded therein? (We’ve already noted that many of the Abstract entries have no accompanying scriptural proofs, a fact that Bahnsen summarily dismisses by simply assuming scriptural referents were implied throughout. When Cotton deviates from scriptural dictates, Bahnsen more or less asserts a, “nobody’s perfect,” apology.[52]) In other words, does the citation of Scripture preclude other sources as instructive or influential on the same claims? Or does it demonstrate singular reliance? Is it indicative of a theonomic biblicism?
We cannot get into the mind of the author—especially when we are not certain who he was—but we can dip our toe into the milieu in which it was drafted and make an educated guess based on what was normative and common at the time within Reformed Orthodoxy. Further, we can remind ourselves again that the Abstract never was accepted as the legal code for the colony.
David Sytsma has highlighted the plethora of scriptural citations in Matthew Hale’s (1609-1676) On the Law of Nature.[53] This should not surprise us. For the seventeenth century Protestant, the distinction between modes of revelation was not so distinct on an epistemological level as it is to us today. There were limits, to be sure, to what each mode could deliver, as Aquinas had acknowledged. But in terms of authority, the two shared a common authorship, referents, and subjects and, therefore, authority, insofar as they overlapped. That being said the republication of the natural law in Scripture was necessitated by the fall, as Aquinas had also reasoned. Therefore, a citation to scriptural proof texts did not necessarily indicate the basis for authority (in a positivist sense) as to its mode but of the idea itself.
What scriptural citations indicate within an intellectual milieu conditioned by, and adherent to, the natural law tradition is a particular approach to discerning the basic, first order principles of the natural law as well as their secondary conclusions.
One approach was exemplified by Johannes Althusius (1557–1638) which John Witte, Jr. aptly describes as a sort of collation of abiding principles in legal (ius communes), philosophical, and theological sources—the testimony of equitable laws and the time-tested teaching of the church—measured or checked against biblical law, viz., the Decalogue.[54] Sytsma points out that the approach of Hugo Grotius (1583–1645) differed from Althusius by relying more on a priori reasoning confirmed by a posteriori effects and attestation amongst the nations (consensus gentium).[55] In turn, John Selden combatted the method of Grotius almost wholesale by limiting his appeal to Jewish tradition.[56]
Though the approach of the Puritans in view here aligns more closely with Althusius, this is not to dismiss the method of Grotius as heterodox. Hale followed a more Grotian model and yet included heavy citations to Scripture throughout his work on natural law. And even for Althusius, the use of sources of revelation and truth is more fluid and cumulative than theonomists would be comfortable with.
All that to say, citation of Holy Writ was not indicative of positivist Biblicism (a necessary precondition for theonomy), but nor did it necessarily signal a particular approach to natural law. Scripture, in the seventeenth century, saturated all of life and speech. Hale himself declared in Taylor’s Case (1676) that Christianity was part of the common law.
But whatever one’s approach to natural law and the science of jurisprudence,[57] scriptural references represented an appeal to the equity of the principle claimed, that is, the natural law, with Scripture serving as a reliable instantiation of the same—whether on the front end or the back end of the inquiry.
This method is apparent in the Abstract at various points. For example, in the chapter on inheritance, Cotton writes that “Inheritances are to descend naturally to the next of kinne, according to the Law of Nature, delivered by God.”[58] The Scripture referenced in this paragraph is Numbers 17:7–11 wherein Aaron’s staff sprouts buds, blossoms, and then almonds after being placed in the tabernacle, designating Aaron’s succession. Likewise, the next paragraph instructs that “If a man have more Sonnes than one, then a double portion to be assigned, and bequeathed to the eldest Son, according to the Law of Nature, unlesse his own demerit do deprive him of his Birth right.”[59] Deuteronomy 21:17 is invoked as support, as is 1 Chronicles 5:1, but the natural law is referenced as the root source of the principle, and the citation of both sources is clearly not in tension for the author.
Conclusion
Theonomists have often been slippery in their terminology when claiming the New England Puritans for their camp. Sometimes theonomy just means a God-centered life. Other times it seems to represent people who think the Bible is instructive for socio-political order. Still other times theonomy seems to simply stand for Reformed Protestantism. The Puritans of the Bay, Saybrook, Connecticut, and New Haven colonies were all of those things. What they were not is theonomists proper. That is, they did not inhabit a Bible commonwealth. Their statutes and governmental structure did not strictly adhere to Moses’ model. In other words, the central, distinctive theonomic conviction was not championed by our Puritan forebears. Much more digital ink could be spilled on this topic; it will suffice at this juncture that we have met, and refuted, several of the historic claims on the Puritans—regarding both practice, thought, and texts—head on and to drone on no further.[60]
[1] Boot, The Mission of God: A Manifesto of Hope for Society, 262.
[2] Boot, Mission, 27.
[3] Boot, Mission, 28-29.
[4] Boot, Mission, 271.
[5] Cline, “What Theonomy Gets Wrong About the Law,” Mere Orthodoxy (May 11, 2021), https://mereorthodoxy.com/theonomy-gets-wrong-law/.
[6] Ian Clary, “Puritans and Theonomy, Reconsidered,” Mere Orthodoxy (Jan. 26, 2022), https://mereorthodoxy.com/puritans-and-theonomy-reconsidered/.
[7] Boot, Mission, 262-263, 267-268.
[8] Boot, Mission, 48, 268, 272.
[9] Marshall, Puritanism and Natural Theology (Eugene: Pickwick, 2016), 13.
[10] See Timon Cline, “Law’s Preparation,” Modern Reformation (Feb. 28, 2022), https://modernreformation.org/resource-library/web-exclusive-articles/laws-preparation/.
[11] See Lee W. Gibbs, “The Puritan Natural Law Theory of William Ames,” Harvard Theological Review 64 (1971), 37-57.
[12] See generally Robert A. Greene, “Instinct of Nature: Natural Law, Synderesis, and the Moral Sense,” Journal of the History of Ideas 58:2 (1997), 173-198.
[13] See e.g., Helen L. Hull, “Lowe and lay ministers of the peace: The Proliferation of Officeholding Manuals in Early Modern England,” The Renaissance Papers, ed. Christopher Cobb (Rochester: Camden House, 2009), 37-54. Richard M. Gummere, The American Colonial Mind and the Classical Tradition (Harvard University Press, 1963), 1-19, 37-54. See also Perry Miller, The New England Mind: The Seventeenth Century (Harvard University Press, 1954), 89-108.
[14] Willard, The Character of a Good Ruler… (1694), 7.
[15] Wise, Vindication, 32.
[16] Oddly enough, Bahnsen indicates familiarity with Haskins, though not full understanding of him, clearly. Bahnsen, Theonomy in Christian Ethics, 530 n 9.
[17] Haskins, Law and Authority, 118.
[18] Haskins, Law and Authority, 117 (quoting Winthrop).
[19] Haskins, Law and Authority, 116.
[20] See also Haskins, “Codification of the Law in Colonial Massachusetts: A Study in Comparative Law,” 30 Indiana Law Journal 1 (1954).
[21] See Wilfrid Prest, “Legal Education of the Gentry at the Inns of Court, 1560-1640,” Past & Present 38 (Dec., 1967), 20-39.
[22] Contra Boot, they did not labor “under the English Common Law to free people to serve God,” but rather embraced their English ways enthusiastically. Boot, Mission, 57. C.f. Haskins, Law and Authority, 163-188.
[23] Winthrop, Arbitrary Government Described and the government of the Massachusetts Vindicated from that Aspersion (1644).
[24] Fiering, Moral Philosophy at Seventeenth-Century Harvard: A Discipline in Transition (Chapel Hill: University of North Carolina Press, 1981).
[25] The Abridgment is the English version of his Compendium Theologiae Christianae (1629), translated by Alexander Ross (1591-1654). “Abridgment” refers to its being a sort of summary of the Syntagma Theologiae Christianae (1609) of Amandus Polanus (1561-1610).
[26] Wollebius, The abridgment of Christian divinitie : so exactly and methodically compiled, that it leads us, as it were by the hand to the reading of the Holy Scriptures … (London, 1650), 90. Strangely, Boot quotes Herman Witsius (1636-1708) at length to much the same effect, viz., that “the Decalogue contains the sum of the law of nature,” all the while decrying the natural law tradition. Boot, Mission, 57.
[27] Haskins, Law and Authority, 124 (quoting Winthrop).
[28] See generally Edward S. Corwin, The Higher Law Background of American Constitutional Law (Cornell University Press, 1928); Richard H. Helmholz, “Fundamental Rights in Medieval Law,” Fulton Lectures, University of Chicago (2001), available at https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=1006&context=fulton_lectures.
[29] Eusden, Puritans, Lawyers, and Politics, 45.
[30] John Eusden, Puritans, Lawyers, and Politics in Early Seventeenth-Century England (New Haven: Yale University Press, 1958), 44-45.
[31] Eusden, Puritans, Lawyers, and Politics, 47.
[32] See generally Eugene Heath, “Sir John Davies on Custom and the Common Law,” Review of Politics 82:3 (Summer 2020), 438-458. See also Ralph Clover, “The Rule of Law in Colonial Massachusetts,” 108 U. Penn. L. Rev. 1001, 1003-1004; 1013-1018 (1960). See also Paul Samuel Reinsch, “English Common Law in the Early American Colonies” (Ph.D. diss., University of Wisconsin, 1899).
[33] Alan Cromartie, “The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England,” Past & Present 163 (May 1999), 76-120, 86.
[34] Edgar J. McManus, Law and Liberty in Early New England: Criminal Justice and Due Process, 1620-1692 (University of Massachusetts Press, 2009), 12.
[35] Dalton, The Country Justice: Containing the Practice, Duty and Power of The Justices of the Peace… (London: [1618] 1746), 1.
[36] See generally Jonathan Gienapp, “Written Constitutionalism, Past and Present,” 39 Law & History Review 321, 324 (2021) (expounding the “non-positivist dimensions” of eighteenth century jurisprudence which must be accounted for in order to understand conceptions of “fundamental law, of which constitutions… were a central part.”).
[37] The implicit message of Westminster Confession of Faith 19.3-19.4.
[38] Clover, “Rule of Law,” 1014 (emphasis added).
[39] The Book of the General Lauues and Libertyes Concerning the Inhabitants of the Massachusetts (1648) (introductory epistle).
[40] Edmund S. Morgan, The Puritan Dilemma: The Story of John Winthrop (New York: Pearson Longman, 3rd ed., 2007), 98.
[41] Haskins, Law and Authority, 125.
[42] Ford, John Cotton’s Moses His Judicialls and Abstract of the Laws of New England, 11.
[43] Haskins, Law and Authority, 126.
[44] Haskins, Law and Authority, 129.
[45] Haskins, Law and Authority, 131.
[46] “[F]or God shew us the means as well as the end; as give every man his due [there] is the end & generall rule but [what] is my due; that woord sets down as sone [sic] to the Elder brother; & if severall wayes to on end [there] is [the] liberty in script.” Ford, Cotton’s Moses His Judicialls, 15.
[47] Worthington Chauncey Ford, John Cotton’s Moses His Judicialls and Abstract of the Laws of New England, 11.
[48] Bahnsen is not alone in this mistake of overreading Cotton through the erroneous instructions of Aspinwall. Ralph Clover commits the same error, albeit to lesser effect, in his otherwise singularly superb, learned article on Puritan legal thought. See Clover, “Rule of Law,” 1015-1016.
[49] Bahnsen, Theonomy, 533 (quoting Aspinwall’s preface) (emphasis added).
[50] Bahnsen, Theonomy, 533.
[51] See generally Champlin Burrage, “The Fifth Monarchist Insurrections,” English Historical Review 25 (1910), 722-747. Christopher Hill, The World Turned Upside Down: Radical Ideas During the English Revolution (London: Penguin, 1991), 97 (noting the congruence of the Leveller and Fifth Monarchist programs).
[52] For instance, Chapter I.2 does not cite scripture and merely reiterates the governmental organization of the Charter of 1629. Chapter II on free burgesses has no accompanying scripture proofs; neither does Chapter III (“of the protection and provision of the Countrey”). The citations for Chapter IV, covering inheritance, is sparse and largely tracks with common law standards. Treason is punishable by death with no scriptural backing in Chapter VII.12, as is the reviling of magistrates (Chapter VII.14), and so on. Ward’s Body of Liberties only cites scripture in the 94th chapter.
[53] Sytsma, “Sir Matthew Hale and Natural Law in the Seventeenth Century.”
[54] Witte, Jr., “A Demonstrative Theory of Natural Law: Johannes Althusius and the Rise of Calvinist Jurisprudence,” in Johannes Althusius, On Law and Power, trans. Jeffrey J. Veenstra (Grand Rapids: CLP Academic, 2013), xlix-lxxiii.
[55] Sytsma, “Sir Matthew Hale and Natural Law,” xxxvi. See also Michael Bertram Crowe, “Eccentric Seventeenth-Century Witness to the Natural Law: John Selden (1584-1654),” Natural Law Forum, Paper No. 129 (1967), 184-195; Harold Berman and John Witte, Jr., “The Integrative Christian Jurisprudence of John Selden,” in R.H. Helmholz and Mark Hill, eds., Great Christian Jurists in English History (Cambridge University Press, 2017), 139-61; J.P. Sommerville, “John Selden, the Law of Nature, and the Origins of Government,” The Historical Journal 27:2 (June 1984), 437-447.
[56] Sytsma, “Sir Matthew Hale and Natural Law,” xxxvi.
[57] See generally Rafael de Arízaga, “Jurisprudence as a Subaltern Science,” Ius & Iustitium (Sept. 7, 2020), https://iusetiustitium.com/jurisprudence-as-a-subaltern-science/.
[58] Abstract, IV.5.
[59] Abstract, IV.6.
[60] “Mercy signifies grief for another’s distress.” Thomas Aquinas, Summa Theologiae, II-II, Q. 30. A. 3. “For the Lord your God is a merciful God.” Deuteronomy 4:31. “Be merciful, even as your Father is merciful.” Luke 6:36.
