Part 17

That there might be a sufficient supply of able men to succeed in the room of the _Judges_ dying, there sate[550] three benches of others beneath, whom they called[551] _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.

[550] _Moses Kotsen. ibid._

[551] _‎‏תלמידי חכמים‏‎ Discipuli sapientum._

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 verse_[553] 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_.

[552] _Petr. Galatin. lib. 4. cap. 5._

[553] _‎‏הרי את סמוך ויש לך רשות לדון אפילו דיני קנסות‏‎ Maimon. in Sanhedrin, c. 4._

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._

[554] _Targum Jonath. Num. 9. 8._

[555] _‎‏ובאלין ובאלין אמר משת לא שמעית‏‎ Jonath._

[556] _Targum. Hierosol. Num. 9. 8._

_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._

[557] _Drus. præteri. Matth. 27._

_Fourthly_, The place of execution was _without the gates_, the malefactors were had thither by _two Executioners_, termed by the _Rabbines_[558] ‎‏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.

[558] _Moses Kotsen. in Sanhedrim. It. Talmud. it. Maccoth. cap. 3. in Mischna._

[559] _‎‏ספוקל טריא‏‎ Uziel. & Targum Hierosol. Gen. 37. 36._

_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.

[560] _Moses Kotsen. in loco superius citato._

_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._

[561] _‎‏קורט לבונה בכוס של יין‏‎ Corat. lebona becorschel iaijn Maimon. in Sanhedrin cap. 13. It. Moses Kotsen. in Sanhedrim._

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_.

[562] _Casaub. exercit. p. 654. ex Maimonid._

CHAP. VII.

_Their capital punishments._

The _Jews_ of old had only _four sorts of death_[563] 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_.

[563] _Paraphrast. Cald. Ruth. 1. 17. Mikkotsi. fol. 188. col. 3._

[564] _‎‏סקילה‏‎ Sekila, Lapidatio._

[565] _‎‏שריפה‏‎ Sheripha, combustio._

[566] _‎‏הרג‏‎ Hereg. decollatio._

[567] _‎‏חנק‏‎ Chenek. Suffocatio._

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.

[568] _‎‏כל מיתה האמורה בתורה סתם חנק היא‏‎ Omnis mors quæ absolutè in lege usurpatur, strangulatio est. R. Solom. Exod. 21. 16._

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_ say[569] 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_.

[569] _Moses Kotsen. in Sanhedrim._

_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._

[570] _Moses Kotsen. fol. 188. col. 4._

Hence the opinion of _R. Akiba_[571] 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.

[571] _Paul. Fagius. Deut. 17. 7._

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._

[572] _Moses Kotsen. loco superius citato._

The _manner of burning_ was _two fold_. Some they burnt with wood and faggots; this was termed[573] 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.

[573] _Rab. Levi. Levit. 20._

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.

[574] _Moses Kotsen. in Sanhedrim._

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_.

[575] _Moses Kotsen. ibid._

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 _Drusius_[576] 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. And[577] _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_.

[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._

_Restitution._ This was commanded when goods were _unjustly gotten_, or _wrongfully detained_, _Exod. 22._ it was threefold.[579]

[579] _Tho. Aquin. secunda secundæ q. 62._

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._

[580] _David Kimchi._

Among the _Jews_ he ought to be sold that was not of sufficient worth to make restitution, _Exod. 22. 3._ And _Augustine_[581] saith of Christians, _That he which doth not make restitution according to his ability, never repented_. And, _Non remittetur peccatum, nisi restituatur ablatum_.

[581] _Aug. Epist. 54._

_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_ understand[582] _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.

[582] _Oculum pro oculo, id est, pretium oculi. Targum Jonath. Deut. 19. 21. It. R. Solomon. ibid._

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 _Romans_[584] 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?

[583] _Vid. Munster. Exod. 21._

[584] _A. Gellius lib. 11. cap. 1._

_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 mouths_[587] 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 talk[588] 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 made[589] 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.

[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._