Posted by Krista J. Kesselring, 6 July 2020.
Facing the prospect of executions resuming for federal prisoners in the U.S., one might well reflect on past debates about the use of the death penalty. In other times and places, which heinous crimes, exactly, called for death and on what warrant?
Since learning that in 1608 the Swedes adopted the Ten Commandments wholesale into their criminal law, I’ve been curious about the place of these commandments and the broader Mosaic code in English efforts to reform their own laws in the sixteenth and seventeenth centuries, in the midst of religious reformation and political revolution. Anyone studying the history of marriage, divorce, and adultery in post-Reformation England (as I am now) encounters invocations of the laws of Moses with calls that adulterers be punished with death. When working on the histories of pardons and of homicide for earlier projects, I came across several seventeenth-century authors who fretted or thundered that ‘blood calls for blood’, expressing their fears that some acts of mercy or the division between murder and manslaughter—and the typically lighter punishment of the latter—violated the laws of God as given to Moses in ways that created a ‘blood guilt’ for the nation that would call forth divine wrath. In England, such calls for Mosaic law for all killers had little traction; they did not halt the development of manslaughter verdicts. But why not, and in what other ways, if any, did calls to return to the laws of Moses impinge upon early modern English legal culture?
The subject warrants focused work—something I hope to encourage a student to do in the near future or to return to myself eventually. In the meantime, though, I’ll offer a few preliminary observations in this post. Comparative history is always good for thinking, for highlighting points of divergence and paths not taken. One interesting difference between the Swedes and the English—or the Scots, for that matter, who proved a bit more receptive to Mosaic law than their southern neighbours—was that the Swedish adoption of the Ten Commandments as part of their criminal law in 1608 came from on high, as an ‘absolutist’ assertion of royal power by a king who welcomed the ability to threaten death for more offences. In the British kingdoms, in contrast, agitation to adopt more of the Mosaic code typically came from radicals and reformers on the fringes.
The core text of the Mosaic law, the Ten Commandments, certainly figured centrally into evangelical reformers’ insistence upon foregrounding the Scriptures in all things. Jonathan Willis has recently examined how the Ten Commandments became in Reformation England ‘the single most visible and important scriptural text’—visible in part through the Decalogue boards that proliferated in churches throughout the realm.
As Willis and others have noted, the morality of the Ten Commandments pervaded discussions of sin and crime in the Reformation era. But what of the commandments’ influence on the laws of the land themselves? Here it matters that Protestants retained the traditional theological division of Mosaic law into three threads—the moral, the ceremonial, and the judicial. They continued to argue that the first remained in force as part of the very law of nature but that Christ’s incarnation and sacrifice had abrogated the second. On the third, however, disagreements ensued. Luther and Calvin both maintained that the judicial laws of Moses had no place in their own day, but others were not so sure.
The key doctrinal formularies of the English Reformation all stated that the judicial laws of the Old Testament need not apply in the present. Archbishop Cranmer’s Forty Two Articles (1552) laid the path, with Article 19 noting that ‘the Law, which was given from God by Moses, although it binds not Christian men concerning the ceremonies and rites of the same, neither is it required that the civil precepts and order of it should of necessity be received in any commonwealth, no man, be he never so perfect a Christian, is exempt and loose from the obedience of those commandments which are called moral’. The revised formulary of the Thirty Nine Articles (1563) said much the same in Article 7: the law given from God to Moses continued to bind Christians in its moral commandments but not in its ceremonial requirements, and its civil precepts need not be enforced in any commonwealth.
Such language, of course, left a lot of room for people to argue that even if Mosaic law need not apply, perhaps it should nonetheless. And some reformers continued to dissent and to argue that ‘the judicial laws of Moses are binding upon Christian princes, and they ought not in the slightest degree to depart from them’—as Edwin Sandys reported in a letter in 1573. In the same year, John Whitgift, future archbishop of Canterbury, responded to assertions by the puritan Thomas Cartwright that all laws contrary to those of Moses must be rescinded and that death must be required of blasphemers, adulterers, and murderers (amongst others). According to Cartwright, to punish any of these offences with anything less than death was to violate God’s commands. Interestingly, Whitgift argued that it was precisely in regard to adultery that we learn that Christ’s coming abrogated the judicial code of Moses: Christ had allowed a man to divorce an unfaithful partner, which would be needless if a woman taken in adultery was still to be stoned to death, he observed. More generally he insisted that laws could vary ‘according to the condition of time, place, and nation’. If the English were to take Cartwright’s proposals seriously, ‘all things must be transformed; lawyers must cast away their huge volumes and multitude of cases and content themselves with the books of Moses’. In a sermon preached before Queen Elizabeth, also in 1573, Whitgift complained that ‘it is now disputed at every table whether the magistrate be of necessity bound to the judicials of Moses, so that he may not punish otherwise than it is there prescribed, nor pardon any offence that is there punished’. Such claims were ‘absurd’, he said, and contrary to both Scripture and the opinion of all learned men. To insist upon the law of Moses over those of the prince was also, he argued, a ‘seditious opinion’, one that threatened ‘the overthrow of all, or at least of the best commonwealths that are now in Christendom’. 
The Reformation certainly had some effects on England’s criminal law—the movement from church courts to secular courts and criminalization of such offences as sodomy and witchcraft in the 1500s come to mind. After many failed attempts to have adultery made a capital offence it joined the list in 1650, in the midst of the ‘puritan revolution’, and remained a hanging crime at least in theory for the decade thereafter. Some evangelical authors criticized such sources of mitigation as benefit of clergy and sanctuary as specifically ‘popish’ innovations, corruptions introduced over time by the papacy that ought now to be amended; sanctuary did disappear (though felled more so by the closure of the monasteries than from a direct hit) but, conversely, benefit of clergy’s use continued and expanded. Protestant reformers of the sort who wanted to see the adoption of Mosaic law had more luck in the colonies than in England itself—one thinks of John Cotton’s 1636 ‘draught of laws agreeable to the word of God’, intended for the Massachusetts Bay colony and soon known as ‘Moses His Judicials’, not formally adopted but influential nonetheless (and that seems even now to retain a certain cachet amongst advocates of theonomy in the contemporary U.S.) But in England, even the Westminster Assembly of the revolutionary years continued to hesitate, observing that the judicial laws of Moses no longer applied any further ‘than the general equity thereof may require’.
While the English clearly never imported Mosaic law in anything like the manner of the Swedes, the influence they allotted it in the enactment and enforcement of criminal law—including for offences now often treated separately as matters of morality alone—warrants further exploration. The political aspects of the discussions are certainly interesting, with repeated suggestions that advocacy of Mosaic judicial law was itself criminal in being seditious. Also of interest are notions of ‘blood guilt’ and their potential influence in the prosecutions of everyday killers, be they deemed guilty of murder or of manslaughter. More generally, of course, developing a more nuanced understanding of the varied ways in which ‘religion’ shaped criminal laws and punishments past may allow better-informed discussions of laws and punishments and their purposes in the present—especially in places where blood is still sometimes thought to call for blood.
Images: Pictures of the Decalogue boards are © Simon Knott (simonknott.co.uk) and are used with his kind permission.
 Addressed briefly in Kesselring, Making Murder Public: Homicide in Early Modern England (Oxford: Oxford University Press, 2019), 93, 141-3.
 The subject has had some attention, from various angles: see, e.g., P.D. Avis, ‘Moses and the Magistrate: A Study in the Rise of Protestant Legalism’, Journal of Ecclesiastical History 26 (1975), 149-72; Wilfrid R. Prest, ‘The Art of Law and the Law of God: Sir Henry Finch (1558-1625)’, in Puritans and Revolutionaries, ed. Donald Pennington and Keith Thomas (Oxford: Clarendon Press, 1978), 94-117; Keith Thomas, ‘The Puritans and Adultery: The Act of 1650 Reconsidered’, in Puritans and Revolutionaries, ed. Donald Pennington and Keith Thomas (Oxford: Clarendon Press, 1978), 257-83; and Richard J. Ross, ‘Distinguishing Eternal from Transient Law: Natural Law and the Judicial Laws of Moses,” Past and Present 217 (2012), 79-115.
 For the Swedish case, see Heikki Pihlajamäki, ‘Executor Divinarum et Suarum Legum: Criminal Law and the Lutheran Reformation’, in The Lutheran Reformation and the Law, ed. Virpi Makinen (Leiden: Brill, 2006), 171-204, esp. at 190-1, citing amongst others work by Jan Eric Almquist and Heikki Ylikangas. Tyge Krogh’s work focuses on Danish history, not Swedish, but offers a particularly fascinating exploration of how post-Reformation confessional differences influenced different criminal laws and touches on the varied influence of Mosaic law in other Scandinavian jurisdictions: A Lutheran Plague: Murdering to Die in the Eighteenth Century (Leiden: Brill, 2012).
For Scotland, see, e.g., Chloë Kennedy, ‘Criminal Law and Religion in Post-Reformation Scotland’, Edinburgh Law Review 16.2 (2012), 178-197 and Brian Levack, ‘The Prosecution of Sexual Crimes in Early Eighteenth-Century Scotland’, Scottish Historical Review 89 (2010), 172-93.
 Jonathan Willis, The Reformation of the Decalogue: Religious Identity and the Ten Commandments in England, c. 1485-1625 (Cambridge: Cambridge University Press, 2017), quote at 3.
 Zurich Letters, I, 294, cited in Avis, 149.
 The Works of John Whitgift, ed. John Ayre, 3 vols (Cambridge: Parker Society, 1851), I. 272, 277; III. 576.
 On sanctuary, see Shannon McSheffrey, Seeking Sanctuary: Crime, Mercy and Politics in England, 1400-1550 (Oxford: Oxford University Press, 2017).
 John Cotton, An Abstract or the Lawes of New England as They Are Now Established (London, 1641); Theodore Bozeman, To Live Ancient Lives: The Primitivist Dimension in Puritanism (Chapel Hill: UNC Press, 1988), 169-92; Shira Wolosky, ‘Biblical Republicanism: John Cotton’s “Moses His Judicials” and American Hebraism’, Hebraic Political Studies 4 (2009), 104-27.
 Westminster Confession (1646), Section 19.4.
[…] where witchcraft and sodomy were criminalised in the 1500s, such a wholesale incorporation of Mosaic Law was rejected as going too far. A lot happened in the next 400 years, but we all know that the […]