Chap. VIII Punishments Not Capital
The lesser punishments, not capital, in use among the Hebrews, are chiefly four. 1. Imprisonment, 2. Restitution, 3. Talio, 4. Scourging.
Imprisonment. Under this are comprehended the Prison, Stocks, Pillory, Chains, Fetters, and the like: all which sorts of punishment, seeing they differ very little or nothing at all from those which are now in common use with us, they need no explication.
The keepers of the Prison, if they let any committed unto them escape, were liable to the same punishment which should have been inflicted on the party escaped. This is gatherable from that, 1 Kings 20. 39. Keep this man, if by any means he be missing, then shall thy life be for his life.
Concerning that Liberia Custodia, which Drusius576 proveth to have been in use among the Romans, I much doubt whether any such custome were in use among the Hebrews. That some kind of prisoners at Rome did go abroad with a lesser kind of fetters in the day time to their work, and so return at night to their prison, hath elsewhere been observed by me. And577 Eadem catena & custodiam & militem copulabat, The same chain tyed both the prisoner and the keeper. Observe the unusual significations of these two words, Custodia a prisoner, and Miles a keeper. So that Drusius delivered Seneca his meaning, but not his words, when he repeats them thus: Eadem catena tam reum quam militem tenet. Observe further, that the prisoner was tyed by his right arm, and the keeper by the left, because the right arm is the stronger, and therefore justly remaineth free rather to the keeper, than to the prisoners. Hence is that,578 Tu forte leviorem in sinistra putas catenam; because the keeper tyed himself unto the same chain, not in way of punishment, but voluntarily for the safer keeping of the prisoner.
Restitution. This was commanded when goods were unjustly gotten, or wrongfully detained, Exod. 22. it was threefold.579
Restitution is threefold.
Secundum idem, in identitie, when the very same thing is restored which is wrongfully gotten.
Secundum æquale, when there is so much for so much in quantity restored, the goods unjustly gotten being sold or lost.
Secundum possibile, when restitution is made according to that which a man hath, not being able to satisfie the whole.
Restitution in identitie, was, and is principally required. Whence it is, that if the theft, whether Ox or Sheep, were found alive upon a man, he restored but double, Exod. 22. 4. but if they were killed or sold, then five Oxen were restored for an Ox, and four sheep for a sheep, Exod. 21. 1. The Jews were so precise in this kind, that if they had built an house with a beam or piece of Timber unjustly gotten, they would pull down the house, and restore the same beam or piece to the owner.580 From this the Prophet Habakkuk doth not much dissent: The stone shall cry out of the wall, and the beam out of the timber shall answer it, Habak. 2. 11.
Among the Jews he ought to be sold that was not of sufficient worth to make restitution, Exod. 22. 3. And Augustine581 saith of Christians, That he which doth not make restitution according to his ability, never repented. And, Non remittetur peccatum, nisi restituatur ablatum.
Talio. This was a punishment in the same kind, an eye for an eye, and a tooth for a tooth, hand for hand, and foot for foot, Deut. 19. 21.
Talio is twofold.
Talio identitatis, or Pythagorica, which was according to the letter of the Law, when the offender was punisht with the loss of an eye, for putting out another eye, &c.
Talio similitudinis, or analogica, which was when the price of an eye, or some proportionable mulct is paid for an eye put out, or any other member spoiled.
The Hebrews understand582 Talio similitudinis, that the price of a maim should be paid; not Talio identitatis, not that the offender should be punisht with the like maim; because to punish like for like in identitie, is in some cases impossible, as if a blind man put out anothers eye, or one toothless strike out anothers tooth.
In case of bodily maims therefore, the Hebrew Doctors say,583 that the party offending was bound to a five fold satisfaction: first, for the hurt in the loss of the member. Secondly, for the damage, in loss of his labour. Thirdly, for his pain or grief arising from the wound. Fourthly, for the charge in curing it. Fifthly, for the blemish or deformity thereby occasioned. Munster rendreth those five thus: Damnum, læsio, dolor, medicina, confusio. The Romans584 likewise had a Talio in their Law, but they also gave liberty to the offender to make choice, whether he would by way of commutation pay a proportionable mulct, or in identitie suffer the like maim in his body?
Scourging. This was two fold; either Virgis, with rods; or flagellis, with scourging. This latter was more grievous than the former, as appeareth by that Ironical speech;585 Porcia lex virgas ab omnium civium corpore amovit, hic misericors flagella retulit. Both were in use among the Romans, but only the latter among the Hebrews. This beating or scourging was commanded, Deut. 25. 2, 3. where the number of stripes was limited, which the Judge might not exceed. Forty stripes shall he cause him to have, and not past. The Jews in many things laboured to seem holy above the Law. For example, where the Lord commanded a Sabbath to be sanctified, they added their Sabbatulum, that is, they began their Sabbath about an hour sooner, and ended about an hour later than the law required: where the Lord forbade them to eat or drink things sacrificed to Idols, they prohibited all drinking with Heathens,586 because it is doubtful whether it were offered to Idols or no. The Lord commanded them in the time of the Passover to put away leaven out of their Houses, they would not take the name into their mouths587 all the time of that Feast. The Lord commanded them to abstain from eating Swines flesh; they would not so much as name it, but in their common talk588 would call a Sow דבר אחר Dabar Acher, Another thing. In like manner the Lord commanded chief Malefactors which deserved beating, to be punisht with forty stripes; they in their greatest corrections would give but thirty nine. Of the Jews five times received I forty stripes save one, 2 Cor. 11. 24. For this purpose the scourge consisted of three thongs, so that at each blow he received three stripes; and in their greatest corrections were given thirteen blows, that is, forty stripes save one. Whether these thongs were made589 the one of a Bulls hide, the other of an Asses hide, or all three of a Calves,590 the matter is not material, both opinions have their Authors.
The manner of correcting such, was thus. The malefactor had both his hands tyed to a post, one cubit and half high, so that his body bowed upon it. The Judge shall cause him to bow down, Deut. 25. 2. This post or stake on which the Malefactor leaned in time of whipping, was termed עמוד Gnammud, Columna, a Pillar. His cloaths were plucked off from him downward unto the thighs, and this was done591 either by renting or tearing of them. The Governours rent Paul and Silas their cloaths, and commanded them to be beaten with rods, Acts 16. 22.
That the Beadle should inflict a number of stripes proportionable unto the transgression, this correction was performed in the sight of the Judge. The Judge shall cause him to be beaten before his face, Deut. 25. 2. The chief Judge of the three, during the time of the correction, did either read or recite Deut. 28. 58, 59.592 If thou wilt not keep, and do all the words of this law, &c. Then the Lord will make thy plagues wonderful, &c. The second Judge he numbred the stripes, and the third he bade the Beadle smite. The chief Judge concluded all, saying, Yet he being merciful forgave their iniquity, &c. Psal. 78. 38.
Sometimes in notorious offences, to augment the pains, they tyed certain huccle-bones or plummets of lead, or sharp thorns to the end of the thongs, and such scourges the Greeks termed593 ἀστραγαλωτὰς μάστιγας Flagra taxillata in the Scripture they are termed594 Scorpions. My father hath chastised you with rods, but I will correct you with Scorpions, 1 King. 12. 12.
Notes
576 Drus. præter. 2 Tim. 1. 18.
577 Senec. Epist. 5. Non in lib. de tranquil. c. 10. quemadmodum citato à Drusio.
578 Sen. de tranquil. cap. 10.
579 Tho. Aquin. secunda secundæ q. 62.
580 David Kimchi.
581 Aug. Epist. 54.
582 Oculum pro oculo, id est, pretium oculi. Targum Jonath. Deut. 19. 21. It. R. Solomon. ibid.
583 Vid. Munster. Exod. 21.
584 A. Gellius lib. 11. cap. 1.
585 Cic. pro Rabirio.
586 Thisbites in נסך
587 Thisbites in דבר
588 Elias Thisbit. ibid.
589 Talmud. lib. Maccoth. cap. 3. in Mischna.
590 Baalturim. vid. Drus. 2 Cor. 10. 24.
591 Talmud, ibid.
592 Talmud. ibid.
593 Eustathius. Item. Athenæus lib. 4.
594 Tholosan. synt. jur. univers. l. 31.