Moses and Aaron

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.

CHAP. IX.

Punishments borrowed from other Nations

The punishments borrowed from other Nations are principally six: 1. Crux, The death on the Cross. 2. Serrâ dissectio, the cutting one asunder with a saw. 3. Damnatio ad bestias, The committing one to fight for his life with wild beasts. 4. τροχὸς, the wheel. 5. καταποντισμὸς, Drowning one in the sea. 6. τυμπανισμὸς, Beating one to death with cudgels. The first and the third were meerly Roman punishments; the second was likewise used by the Romans, but whether originally taken from them is doubtful: the fourth and the last were meerly Greek punishments; the fifth was for the substance in use among Hebrews, Greeks and Romans, but in the manner of drowning them, they differed. It will be needful to speak somewhat of all these.

1. Crux. This word is sometimes applied to any tree or stake on which a man is tortured to death, but most properly it is applied to a frame of wood consisting of two pieces of timber compacted cross-wise. The first is termed Crux simplex, the last Crux compacta. This latter is threefold. 1. Decussata. 2. Commissa. 3. Immissa.

Crux decussata. This was made of two equal pieces of timber obliquely crossing one the other in the middle, after the manner of the Roman X, and thence it is called decussata.595 Decussare, est per medium secare. Veluti si duæ regulæ concurrant ad speciem literæ X, quæ figura est crucis. This kind of cross is by the common people termed Crux Andræana, Saint Andrews-cross, because on such an one he is reported to have been crucified.

Crux commissa. This was, when a piece of timber erected, was joyned in the middle to a traverse, of over-thwart top; somewhat shorter than the piece erect, in manner of a Roman T. This is called Crux Antoniana, S. Anthony his Cross, because he is often painted with such a Cross.

Crux immissa. This was when a short traverse somewhat obliquely crossed the stake erect, not quite in the middle, as Crux decussata, nor quite on the top as Crux commissa, but near the top, in this manner †. This is thought596 to have been Crux Christi, the Cross on which our Saviour Christ suffered.

The Ceremonies used by the Romans towards those whom they crucified were these: First, they scourged them, and sometimes tyed them to a Piller in time of scourging. Artemidorus597 is clear in this, Προσδεθεὶς κίονι, πολλὰς ἔλαβε πληγὰς, that is, being tyed to the Piller, he received many stripes. Plautus598 is thought to have alluded to the same.

The ancient Fathers599 report that our Saviour was whipt thus ad columnam: but the Scripture is silent, both touching the place and manner of this whipping, only that he was whipt is testified. He scourged Jesus, and delivered him to be crucified, Mat. 27. 26.

Secondly, They caused them to bear their own Cross,600 Malefici cùm ad supplicium educuntur, quisq; suum effert crucem. Thus Christ bore his own Cross, John 19. 17. To this there is allusion, He that taketh not his Cross, and followeth after me, he is not worthy of me, Mat. 10. 38.

Thirdly,601 That the equity of the proceeding might clearly appear, the cause of the punishment was written in a table, and so carried before the condemned person; or else it was proclamed by a publick Cryer. This cause was termed by the Romans commonly Titulus, by some602 it is called Elegium. Thus Pilate wrote in Hebrew, Greek, and Latine, Jesus of Nazareth, the King of the Jews.

Fourthly,603 They pluckt off their cloaths from such as were to be crucified. Thus Christ suffered naked.

Serra dissectio, A sawing one in sunder. They sawed them from the head downward. The Romans604 they used this kind of punishment, so likewise did the Hebrews. Thus Manasses is thought to have punisht the Prophet Isaiah, and the Apostle to have alluded unto it, They were sawn a-sunder, Heb. 11. 37.

Damnatio ad bestias. Those who were condemned to wild beasts, are properly termed Bestiarii. Whether S. Paul did, according to the letter, fight with beasts at Ephesus, 1 Cor. 15. 32. is much controversed. Some605 understand by Beasts, Demetrius, and others that opposed him at Ephesus, others606 more probably understand the word literally. And this kind of punishment was commonly exercised against Christians in the Primitive Church, insomuch that the Heathens imputing the cause of all publick calamities unto the Christians, would call out,607 Christianos ad Leones! Let the Christians be haled to Lyons: yea, the litteral interpretation of the words, is a stronger argument that Saint Paul believed the Resurrection (which is the scope of the text) than to understand the words of a metaphorical fight, against the enemies of his doctrine.

Τροχὸς, The Wheel: A wise King bringeth the wheel over the wicked, Prov. 20. 26. I take the words to imply no more but this, that as the wheel turneth round, so by the wisdom of a King the mischief intended by wicked men, is brought upon their own head. That hereby should be understood, the grinding of wicked men under a cart-wheel, as the husband brake some sort of grain under the wheel, is the meer conceipt of Expositors on this place; for no Records make mention of any such punishment in use among the Jews. Among the Greeks there was a punishment went under this name:608 it was called τροχὸς, A Wheel, not because a wheel was brought over the wicked, but because they bound fast the offender to the spokes of a wheel, and there scourged him, to inforce a confession.

Καταποντισμὸς, Drowning in the Sea. This was in use among many Nations, but the manner differed. The Romans609 they sewed up a Parricide into a leather budget, sewing up together with him into the same budget, a Serpent, a Cock, and an Ape, and so cast them all into the Sea. The Grecians610 when they judged any to this kind of punishment, they wrapt him up in lead. The Hebrews tyed a milstone about his neck. Thus, in respect of the manner those are to be understood, who say,611 this kind of punishment was peculiar to the Jews.

Τυμπανισμὸς. It is rendred by the general name of torturing, Heb. 11. 35. 2 Mac. 6. 19. But the word signifieth a special kind of torturing, by beating one with cudgels unto death. It hath its denomination from τύμπανον, which signifieth a Drum usually: and hence some612 have parallel’d this torture with that among the Romans termed Equuleus; as if the person thus tortured, were rackt, and stretched out in manner of a drum head: but it signifieth also a drum stick, and thence613 cometh the punishment to be termed Tympanismus, that is, a Tabring, or beating one to death with cudgels, as if it were with drum-sticks. This is evident by Eleazar; he came willingly, ἐπὶ τὸ τύμπανον, to this kind of torment, 2 Macab. 6. 19. and in the thirtieth verse, where he gave up the Ghost, there is mention of his strokes, not of his racking or stretching.

Junius 614 reckoneth another kind of punishment termed by the Hebrews, ‎‏צינק‏‎ Tsinok, which he would have to be a compound word: doubtless his meaning is that it would be compounded of ‎‏צי‏‎ Tsi, Navis, a ship, or boat, and ‎‏ינק‏‎ Janack, Sugere, to suck: for he saith that thereby is meant a certain punishment, termed Navicula sugentis which Plutarch615 describeth in this manner; That the offender should be inclosed between two boates, as in a prison, or, as his phrase is (quasi in vagina) as in a sheath; and, to preserve life in him, milk and honey tempered together was forcibly put into his mouth, whether he would or no. And hence, from this sucking in of milk and honey, this punishment hath been termed Navicula sugentis. But the Hebrews616 say, that Tsinock was nothing else but manacles, or cords, wherewith prisoners hands were tyed. I leave it indifferent to the Reader to follow which interpretation he please.

THE SIXTH BOOK

OF MISCELLANEOUS RITES