Kitabı oku: «Moses and Aaron», sayfa 13
CHAP. V.
Properties required in Judges, and the manner of their election
The Law of God required these properties in Judges: 1. Wisdom. 2. Understanding. 3. Integrity. 4. Courage. Deut. 1. 13. Others are reckoned, Exod. 18. 21. namely, 5. The fear of God. 6. Love of Truth. 7. Hating of coveteousness: to these may be added the eighth, namely, having no respect of persons, Deut. 1. 17. These two last especially, the Heathens required in their Judges: whence the Thebans548 painted Justice without hands, and without eyes, to intimate that Judges should receive no gifts, nor be swayed with sight of persons.
The Jews549 added many more. 1. That they should be free from all blemish of body. 2. That they should be skilled in the seventy Languages, to the intent that they might not need an Interpreter in the hearing of Causes. 3. That they should not be far stricken in years; which likewise was required by the Romans in their Judges, as appeareth by that common adage, Sexagenarius de ponte. 4. That they should be no Eunuchs, because such commonly were cruel. 5. That they should be Fathers of children, which they thought was a special motive to mercy. 6. That they should be skilful in Magick, without the knowledge of which, they were not able to judge of Magicians.
That there might be a sufficient supply of able men to succeed in the room of the Judges dying, there sate550 three benches of others beneath, whom they called551 Talmidi Chacamim, Scholars of the wise men: out of these they made their Election, and two of these always accompanied the condemned person to the place of execution.
Their Inauguration of Judges was two fold: At first, by imposition of hands upon the head of the party, after the example of Moses laying hands on Joshua: this imposition of hands was not held lawful,552 except it were in the presence of five or three Judges at the least. Afterwards, it was by saying a certain verse553 Lo, thou art associated, and power is given thee to judge of penalties. Hence is that saying of Galatinus out of the Talmud, Institutio Judicum, aut manu fiebat, aut nomine tantum.
Observe here, that Samuc, which I render associated, doth not alwayes signifie a man licensed to the discharge of some publik office by the imposition of hands; for here it is applied to those who were not admitted by imposition of hands. Now the reason why these words Semica, and Semicuth, are generally by all Expositors, Jews and Christians, translated the imposition of hands, is, because this solemn kind of licensing, termed Semica, or Semicuth, was in old time used only towards two sorts of men in their admission, towards Rabbies and towards Judges; which kind of permission, because it was not performed towards either of them without this ceremony of imposing hands: hence these two words have been translated the imposition of hands; whereas properly they signifie nothing else, but an association, an approximation, or conjoyning of one into the same corporation or company, of which he that doth associate and give admission is a member.
CHAP. VI.
Ceremonies common in all capital Judgments
In their greater punishments, which deprived of life, some ceremonies were common to them all.
First, The Judges were to use deliberation in all causes, but especially in matters capital. There were four causes, saith Jonathan in his Targum,554 that came before Moses ( he mentioneth none in particular, but what they were, we shall presently learn out of other records.) Two of these were not weighty; in these he hastened: Two more material, concerning life and death; in these he delayed.555 Cæterum tam de his quam de illis dicebat, Non audivi; Of both the lighter and weightier causes, Moses said I have not heard, to wit, from the Lord: to shew, that a deliberation and consultation as it were with God, ought to be in all judgements, before sentence be pronounced. These four causes are named in other Records:556 The two lightest are, 1. The matter of uncleanness debarring the people from the Passover, Num. 9. 9. Secondly, the case of Zelophehads daughters, Num. 36. 10. The 2 weightier are, 1. The cause of the blasphemer, Lev. 24. 13. Secondly, The case of him that gathered Sticks on the Sabbath, Numb. 15. 35. In all these judgments there is, The Lord spake unto Moses. And in the first, which was counted among the lighter causes (because it was not on life and death) even there doth Moses in a solemn manner bespeak the people to stand still, Et ego audiam, And I will hear what the Lord will command. Notwithstanding, wilful delays in Justice maketh the Judge unrighteous. In that unrighteous Judge, from whom the Widow wrested sentence by importunity; we read not of any other fault in him, but delay, Luke 18. 6.
Secondly, The party accused was placed on some high place, from whence he might be seen and heard of all the people: Set Naboth, in capite populi, on high among the people, 1 Kings 21. 9.
Thirdly,557 The Judges and the Witnesses did (when sentence was pronounced) put their hands upon the condemned persons head, and said; Sanguis tuus super caput tuum, Thy blood be upon thine own head: unto this the people had reference, saying, His blood be on us, and on our children, Mat. 27. 25.
Fourthly, The place of execution was without the gates, the malefactors were had thither by two Executioners, termed by the Rabbines558 חזני הכנסת Chazani hacceneseth, Spectators of the Congregation, which is a periphrasis of those whom S. Mark calleth σπεκουλάτωρες, Mark 6. 27. which word, though it be used by the Greeks and Chaldee Paraphrasts,559 yet it is a meer Latine, derived à speculando; because in the Court the Executioners were only Spectators, to behold and attend what the Judges would command them.
Fifthly, When the malefactor was led to execution, a publick cryer went before,560 saying, Such a one is going to be punisht with such a death, because he hath committed such, or such an offence, at such a time, in such a place; and these N. N. are witnesses thereof: If any therefore knoweth any thing which may do him good, let him come and make it known. For this purpose one was appointed to stand at the door of the Consistory, with an handkerchief or linnen cloth in his hand, that if any person should come for his defence, he at the door swinged about his handkerchief, upon the sight whereof, another standing in readiness a pretty distance off with an horse, hastened and called back the condemned person: yea, if the Malefactor had any further plea for his own purgation, he might come back four or five times, except he spake vainly; for the discerning whereof, two of those whom they termed Scholars of the wise men, were sent with him to observe his speech on the way.
Sixthly, He was exhorted to confess, that he might have his portion in the world to come: Thus Joshua exhorted Achan, Josh. 7. 19. My son, give I pray thee glory unto the Lord God of Israel, and make confession unto him: unto whom Achan answered, vers. 20. Indeed I have sinned against the Lord God of Israel, and thus have I done.
Seventhly, In the time of execution, they gave the Malefactor Granum thuris in calice vini, A grain of Frankincense in a cup of Wine:561 this they did give to cause a giddiness in the condemned persons head, that thereby he might be less sensible of the pain. St. Mark calleth this cup ἐσμυρνισμένον οἶνον, Wine mingled with Myrrhe, Mark 15. 23. This was done after the manner of the Jews, but the Souldiers in mockery mingled Vinegar and Gall with it, Mat. 27. 34. As likewise they gave him a second cup in derision, when they took a spunge, and filled it with Vinegar, and put it on a reed, Matth. 27. 48. S. Mark in the first cup mentioneth the custome of the Jews, which in it self had some shew of compassion; for the ground of this custom was taken from that, Prov. 31. 6. Give strong drink unto him that is ready to perish. S. Matthew mentioneth onely their wicked mixture, contrary to the receiv’d custom; so that one Evangelist must expound the other. This first cup was so usually given before execution, that the word Calix a cup, is sometimes in the Scripture put for death it self. Father, if it may be, let this cup pass from me.
Lastly,562 The Tree whereon a man was hanged, and the Stone wherewith he was stoned, and the Sword wherewith he was beheaded, and the Napkin wherewith he was strangled, they were all buried, that there might be no evil memorial of such a one, to say: This is the Tree, this is the Sword, this is the Stone, this is the Napkin, whereon, or wherewith, such an one was executed.
CHAP. VII.
Their capital punishments
The Jews of old had only four sorts of death563 in use among them. 1. Lapidatio,564 stoning. 2. Combustio,565 burning. 3. Decollatio,566 beheading. 4. Suffocatio,567 strangling. Of these, stoning was counted the most grievous, burning worse than beheading, beheading worse than strangling, and strangling was the easiest of all.
They have a rule,568 that wheresoever the Scripture saith of an offender, Morte plectetur, he shall be punish’d with death, not expressing the kind of death, there it ought to be interpreted of Strangling. For example, the Law saith of the Adulterer, Lev. 20. 19. Morte plectatur, let him be punished with death: because the kind of death is not here mentioned, they interpret it strangling. The reason of this rule is, because strangling was the easiest death of the four; and where the Law determineth not the punishment, there they say, Ampliandi favores, The favourablest exposition is to be given.
The rule is not generally true; for in former times Adultery was punish’d with stoning. I will judge thee after the manner of them that are Harlots, saith the Lord, Ezek. 16. 38. And in the fortieth verse the judgment is named, They shall stone thee with stones: likewise the Scribes and Pharisees said unto Christ, Moses in the Law commanded us, that such should be stoned, John 8.
Before we treat in particular of these four punishments it may be questioned, Whether the Jews had any power to judge of life and death, at that time when they crucified our blessed Saviour? The Jews said to Pilate, Is it not lawful for us to put any man to death; Joh. 18. 31. Latter Jews say569 that all power of capital punishments was taken from them forty years before the destruction of the second Temple, and of this opinion are many Divines.
Answer. First, the Jews speech unto Pilate, that it was not lawful for them to put any man to death, cannot be understood, as if they should have said, we have no power to put any man to death; for admit, that power in criminals were, in the general, taken from them, yet in this particular power was permitted them at that time from Pilate, Take ye him, and judge him according to your Law, Joh. 18. 31. Neither can it be said, that their Law could not condemn him, if he had been a transgressor thereof; or that they had not out of their law to object against him: for they say, They had a law, and by their law he ought to die, John 19. 7. It was not then want of Power, but the holiness of that time, made them say it was unlawful. For they held it unlawful upon their days of preparation to sit on life and death, as hath been shewn in the Chapter of translating Feasts. And Friday, on which our Saviour was condemned, was the preparation of their Sabbath.
Secondly, in the questions, whether power of judging capital crimes were taken from them by the Romans? We are to distinguish between crimes. Some crimes were transgressions of the Romans law, as theft, murder, robberies, &c. power of judging in these was taken from them: other crimes were transgressions only against the law of Moses, as blasphemy, and the like: in these, power of judging seemeth to have remained with them. When Paul was brought by the Jews before Gallio, Gallio said unto them, if it were a matter of wrong or wicked lewdness, O ye Jews, reason would, that I should bear with you: but if it be a question of words, and names of your law, look ye to it, Acts 18. 14.
In handling these four punishments: First observe the offenders, whom the Jews make liable to each punishment, and then the manner of the punishment.
The persons to be stoned were eighteen.570 1. He that lieth with his own mother, 2. Or with his fathers wife, 3. Or with his daughter-in-law, 4. Or with a betrothed maid, 4. Or with the male, 6. Or with the beast. 7. The woman that lieth down to a beast. 8. The blasphemer. 9. He that worshippeth an Idol. 10. He that offereth of his seed to Moloch. 11. He that hath a familiar spirit. 12. The Wizard. 13. The private enticer to Idolatry. 14. The publique withdrawer to Idolatry. 15. The Witch. 16. The prophaner of the Sabbath. 17. He that curseth his Father or his Mother. 18. The Rebellious Son. The manner of stoning was thus: The offender was led to a place without the gates, two cubits high, his hands being bound: from hence one of the Witnesses tumbled him by a stroke upon the loins; if that killed him not, the Witnesses lifted up a stone, being the weight of two men, which chiefly the other Witnesse cast upon him; if that killed him not, all Israel threw stones upon him. The hands of the Witnesses shall be first upon him to put him to death, and afterwards the hands of all the people, Deut. 17. 7.
Hence the opinion of R. Akiba571 is commonly received, that such an Idolater (it holdeth in all others condemned to this death) was reserved until one of the common feasts, at which all the multitude of Israel came to Jerusalem. The party thus executed being quite dead, was afterward for greater ignominy hanged on a tree, till towards the Sun-set, at which time he and the tree were both buried.
Malefactors adjudged to burning were ten:572 1. The Priests daughter which committed whoredome. 2. He which lieth with his own daughter. 3. Or with his daughters daughter. 4. Or with his sons daughter. 5. Or with his wives daughter. 6. Or with her sons daughter. 7. Or with her daughters daughter. 8. Or with his Mother-in-law. 9. Or with the Mother of his Mother-in-law. 10. Or with the Mother of his Father-in-law.
The manner of burning was two fold. Some they burnt with wood and faggots; this was termed573 by them Combustio corporis, the burning of the body: Others they burnt by pouring in scalding hot lead in at their mouths, which descending into their bowels killed them, the bulk of their body remaining whole, and this was termed therefore Combustio animæ, the burning of their soul. This last was most in use, and alone described by most of their Writers.
Malefactors condemned to beheading, were of two sorts,574 1. The Murderer, 2. Those of any City, who were drawn to Idolatry. The manner thereof is at this day in use.
Malefactors strangled, were six,575 1. He that smiteth his father or his mother, 2. He that stealeth a soul of Israel, 3. An Elder which contradicteth the Consistory, 4. A false Prophet, and he that prophesieth in the name of an Idol, 5. He that lieth with another mans wife, 6. He that abuseth the body of the Priests daughter.
The manner of strangling was thus. The malefactor was put in dung up to the loins, a towel being cast about his neck; which two Executioners, one on each side, plucked to and fro until he was dead.
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.
