_lesser_, was in respect of the place. The _seventy_ sate only at
_Jerusalem_, within the _Court of the Temple_, in a certain house
called לשכת הגזית _Lischath hegazith_, _the paved Chamber_, because of
the curious cut stones wherewith it was _paved_: by the _Greeks_ it was
called λιθόστρωτον, the _Pavement_. _Pilate_ sat down in the Judgement
Seat, in a place called the _Pavement_, _John 19. 13._ The other
Consistory sate all in the _gates of the Cities_. Now because the gates
of the City are the strength thereof, and in their gates their Judges
sate: Hence is that, _Mat. 16. 18._ _The gates of Hell_ shall not
overcome it, that is, neither the _strength_ nor _policy_ of _Satan_.
[543] _Moses Kotsen. ibid._
_Lastly_, they differed in respect of their _Power_ and _Authority_:
the _Consistory of seventy_ received _appeals_ from the other
_inferiour Courts_,[544] from that there was no appeal: Again, the
_Consistory of three_ sate not on life and death, but onely on petty
matters, as whipping, pecuniary controversies, and such like; the other
of twenty three sate on life and death, but with a restrained power;
they had not authority to judge an _whole tribe, the High-priest, false
Prophets_, and other such weighty matters: this belonged only to the
_seventy in Jerusalem_:[545] Hence is that, _O Jerusalem, Jerusalem,
which killest the Prophets_, _Luk. 3. 34._ The means how they tryed
the false _Prophet_ was thus; they observed the judgements which he
threatned, and the _good_ which he prophesied to a place: if the
judgements took not effect, this did not argue him a _false Prophet_,
because God was merciful, as in the case of _Hezekiah_, and the people
might repent, as the _Ninivites_ did: but if he prophesied _good_, and
that came not to pass, they judged him a _false Prophet_. The ground
of this tryal they make the words of _Jeremiah the Prophet, which
prophesied of peace when the word of the Lord shall come to pass, then
shall the Prophet be known that the Lord hath truly sent him_, _Jer.
28. 9._
[544] _Deut. 17. 8._
[545] _Cunæus de rep. Hebr. p. 109._
The _Colledge_ or company of these seventy, exercised judgment, not
only under the _Kings_ and _Judges_,[546] but their authority continued
in times of vacancies, when there was neither _Judge_ nor _King_ to
rule _Israel_, and it continued until[547] _Herod_ put them down, and
destroyed them, to secure himself of the Kingdome.
[546] _P. Galat. l. 4. cap. 5._
[547] _Joseph. Antiq. l. 14. c. 17._
Here some may object, that there were no such _Courts_, or their
liberty much infringed in _Samuels time_: for he went from year to year
in circuit to _Bethel_, and _Gilgal_, and _Mizpeh_, _and judged Israel
in all those places_, _1 Sam. 7. 16._ To which, I take it, we may say,
that as the _Emperours_ of _Rome_ had power to ride Circuits, and keep
Assises, which was done without any infringement of the liberties of
their _Senate_: So the _Kings_ and _Judges_ in _Israel_ had the like
power, and yet the authority of their Courts stood firm. This kind of
judging by keeping Assises, the _Romans_ termed βουλὴν κυρίαν, the
other βουλὴν σύγκλητον.
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
_Thebans_[548] painted _Justice without hands, and without eyes_, to
intimate that Judges should receive no gifts, nor be swayed with sight
of persons.
[548] _Plut. de Iside._
The _Jews_[549] 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._
[549] _Moses Kotsen. in Sanhedrim._
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._