Adultery and the CFW 24.5

[GillespieWestminster]

Hello, I am studying the thinking of Westminster theologians about the punishment for adultery, first of all I want to remind you that I subscribe to CFW 1646 (received by Scotland in 1647). In that sense, note this quote:

Marriage once lawfully contracted, may not be dissolved at man’s pleasure, as our master Christ Jesus does witness, unless adultery is committed; which, being sufficiently proven in presence of the civil magistrate, the innocent (if they so require) ought to be pronounced free, and the offender ought to suffer the death as God has commanded. If the civil sword foolishly spares the life of the offender, yet the church may not be negligent in their office, which is to excommunicate the wicked, and to repute them as dead members, and to pronounce the innocent party to be at freedom, be they never so honourable before the world. If the life is spared (as it ought not to be) to the offenders, and if the fruits of repentance of long time appear in them, and if they earnestly desire to be reconciled with the church, we judge that they may be received to participation of the sacraments, and of the other benefits of the church (for we would not that the church should hold those excommunicate whom God absolved, that is, the penitent).” (The First Book of Discipline, 1560)

Samuel Rutherford:

“The English Divines do well observe,That adultery is a capitall crime to be punished by the Iudge, Gen. 38.24. Levit. 20. 10. Deut. 22. 22”. (Samuel Rutherford, A free disputation against pretended liberty of conscience tending to resolve doubts moved by Mr. John Goodwin, John Baptist, Dr. Jer. Taylor, the Belgick Arminians, Socinians, and other authors contending for lawlesse liberty, or licentious toleration of sects and heresies, p.313)

George Gillespie:

“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) [...] Yea, those that most cry out against proofs from examples of the Old Testament, are as ready as others to borrow proofs from thence, when they think to serve their turn thereby, which Aretius (Probl. Theol., loc. 56) instanceth in the Anabaptists, who would not admit proofs from examples of the Old Testament, yet many of them justified the Boors’ bloody war, by the example of the Israelites’ rising against Pharaoh. .” (George Gillespie, Miscellaneous Questions, Ch. 13)

An extra quote:

“[An objection answered]: It may be objected, that the Law of our Saviour Christ touching divorcement for Adultery, Mat. 5. 32. had been to no purpose, if the Adulterer ought of necessity to be put to death.

[Answer 1]: First, he that urgeth this may be justly charged with a mistake in bringing in our Saviour Christ there as a maker of Lawes under the Gospell, whereas he made none in those places, but expounded the Law of God, which he had made from the beginning; the other refusals made by the Jewes of their wives, were never any Lawes but Permissions only: and therefore in their abolishment there was no Law of God abrogated.

[Answer 2]: Secondly, it was necessary to use that exposition, notwith standing that the punishment of the Law by death remained;* for besides that the Jewes being under the Government of the Romanes had those civil punishments by death suspended upon the pleasure of their Officers, who were often corrupted: our Saviour Christ fore-seeing all things did fore-see what loosenesse would follow in this behalf, and therefore as the office of a good Teacher required, he instructed the conscience, and taught that albeit the Magistrate faile in the execution of the Law, yet that the former yoke being brother∣ken, men were at their liberty to enter into a new contract of Marriage with other; whereby he met with the corrupt opinion of those which dreame that the knot of Marriage is not cut asunder by Adultery during the life of the parties married.

[...]

As for Mr. Beza, it is known that he proveth that Hereticks ought by the Law of God to be put to death, whereby it appears that he believes those Judicialls which give sentence of
death against the crimes here set down to be still in as full force as ever they were. Unto which I could add Peter Martir, who hath a long dispute of the necessary observation of this Law against Adulterers, and as I have shewed there is none of these crimes but even the Law of nature will teach us, that they ought to receive the reward af death.” (Cartwright, Thomas. 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)

The expression “if the offending party were dead” (CFW 24.5), seems to me to encompass two things:

1) The ideal was punishment by death for the adulterer;
2) In case the civil magistrate fails in punishment, then he is to be regarded as dead and the innocent party to remarry.

Given the validity of the Principle of Establishment and the existence of a Christian Magistrate, is this an interpretation consistent with the Westminster Assembly? I appreciate new quotes and developments, where I live I don't have access to the Minutes of the Assembly to check if there was any debate on this, so I would appreciate it if anyone knows if they discussed this more explicitly.

 

[Romans678]

Good morning! Posting this for additional resource. God bless.


Of Marriage and Divorce, Section 5: Adultery or fornication committed after a contract, being detected before marriage, gives just occasion to the innocent party to dissolve that contract. In the case of adultery after marriage, it is lawful for the innocent party to sue out a divorce and, after the divorce, to marry another, as if the offending party were dead. —Chapter 24, Westminster Confession of Faith

Of Marriage and Divorce, Section 6: Although the corruption of man be such as is apt to study arguments unduly to put asunder those whom God has joined together in marriage: yet, nothing but adultery, or such wilful desertion as can no way be remedied by the Church, or civil magistrate, is cause sufficient of dissolving the bond of marriage: wherein, a public and orderly course of proceeding is to be observed; and the persons concerned in it not left to their own wills, and discretion, in their own case. —Chapter 24, Westminster Confession of Faith



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[iainduguid]

Hello, I am studying the thinking of Westminster theologians about the punishment for adultery, first of all I want to remind you that I subscribe to CFW 1646 (received by Scotland in 1647). In that sense, note this quote:


Samuel Rutherford:


George Gillespie:


An extra quote:



The expression “if the offending party were dead” (CFW 24.5), seems to me to encompass two things:

1) The ideal was punishment by death for the adulterer;
2) In case the civil magistrate fails in punishment, then he is to be regarded as dead and the innocent party to remarry.

Given the validity of the Principle of Establishment and the existence of a Christian Magistrate, is this an interpretation consistent with the Westminster Assembly? I appreciate new quotes and developments, where I live I don't have access to the Minutes of the Assembly to check if there was any debate on this, so I would appreciate it if anyone knows if they discussed this more explicitly.

The two questions are distinct and should not be confused. I don't think the Westminster Confession speaks directly to the first issue. The phrase "as if he were dead" does not imply that the offending party should be dead, simply that the divorced person has the same right of remarriage after divorce as a widow or widower. So point 2) is a valid inference, though the first clause is unnecessary.

With regard to what the divines would have believed about whether the appropriate sanction for adultery is the death penalty, that's probably more complex, and not really my area of expertise. However, the fact that adultery was made an offense punishable by death in Scotland in 1563 (shortly after the framing of the Scots Confession you cited above) and in England by the Commonwealth parliament in 1650 (before being repealed on the return of the monarchy in 1662), suggests that some (perhaps a majority) might well have been in favor. (Remember that Scotland and England have quite separate legal systems to this day, and there was probably more Reformed influence in the former than the latter).

However, it seems to me that the fact that divorce is specifically permitted in the case of adultery complicates the question. If the expected normal punishment for adultery was death, there would be no need for divorce in the case of adultery: the offending party would indeed be dead, and so there would be no need to treat them "as if dead". This suggests what I think is likely the case throughout history. Even if laws sanctioning adultery with execution were on the books, the offense was frequently treated with a lesser sanction. John 8 suggests that this outcome is, in at least one case, sanctioned by our Lord. So perhaps we shouldn't speak of the death penalty as the "ideal" sanction, as if it were the fitting sanction for every case, so much as the maximum sanction, that could be fitting in some cases. The same is likely true for other Biblical offenses that have the death penalty attached; it is a maximum sanction that can be applied, not a universal sanction. Biblical jurisprudence relied a lot more on the wisdom of the judge than contemporary western legal systems, after all.