_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._
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 done[591] 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._
[591] _Talmud, ibid._
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._
[592] _Talmud. ibid._
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 termed[593] ἀστραγαλωτὰς
μάστιγας _Flagra taxillata_ in the Scripture they are termed[594]
_Scorpions_. My father hath chastised you with _rods_, but I will
correct you with _Scorpions_, _1 King. 12. 12._
[593] _Eustathius. Item. Athenæus lib. 4._
[594] _Tholosan. synt. jur. univers. l. 31._
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.
[595] _Hieron. in Jerem. c. 31._
_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 thought[596] to have been _Crux Christi_, _the Cross
on which our Saviour Christ suffered_.
[596] _Lipsius de cruce lib. 10. cap. 10._
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. _Artemidorus_[597] is clear in this,
Προσδεθεὶς κίονι, πολλὰς ἔλαβε πληγὰς, that is, being tyed to the
_Piller_, he received many stripes. _Plautus[598] is thought to have
alluded_ to the same.
_------Abducite hunc_
_Intro, atque adstringite ad columnam fortiter._
[597] _Joseph. excid. lib. 5. cap. 32. Philo contra Flaccum.
It. Liv. lib. 1._
[598] _Plaut. Bacch._
The ancient _Fathers_[599] 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._
[599] _Prudentius; Hieron. Beda vid. Lip. de cruce, lib. 2. cap. 4._
_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._
[600] _Plutarch. de sera num. vind._
_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
some[602] it is called _Elegium_. Thus Pilate _wrote in Hebrew, Greek,
and Latine, Jesus of Nazareth, the King of the Jews_.
[601] _Euseb. Eccl. hist. lib. 5. cap. 1. It. Suet. Domit. cap. 10._
[602] _Tertul. Apol. cap. 2. Sueton. in Calig._
_Fourthly_,[603] They _pluckt off their cloaths_ from such as were to
be crucified. Thus _Christ suffered naked_.
[603] _Artemidor. l. 2. c. 58._
_Serra dissectio_, _A sawing one in sunder_. They sawed them from the
head downward. The _Romans_[604] 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._
[604] _Sueton. in Calig. cap. 27._
_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. Some[605] understand by _Beasts_, _Demetrius_, and others
that opposed him at _Ephesus_, others[606] 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.
[605] _Theophylact. Anselm._
[606] _Chrysostom. Ambros. & alii._
[607] _Tertullian. Apol. cap. 40._
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.
[608] _Ἐπὶ τοῦ τροχοῦ γ’ ἕλκοιτο μαστιγούμενος, Aristoph. in
Iren. De eadem pœna loquuntur Demosth. 3. in Aphob. & Suidas._
Καταποντισμὸς, _Drowning in the Sea_. This was in use among many
Nations, but the manner differed. The _Romans_[609] 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 _Grecians_[610] 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_.
[609] _Senec. lib. 5. controv. 4. Juvenal Satyr 8. Modestus,
Digest. l. 48. ad legem Pomp. de parric. vid. Cæl. Rhod. l. 11.
c. 21._
[610] _Athenæus l. 14._
[611] _Hier. Mat. 18. 6._
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 some[612] 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 thence[613] 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_.
[612] _Magius in lib. de Equuleo, vid. Drus. præter. l. 8._
[613] _Scholiastes Aristophanis τύμπανα scribit esse ξύλα οἷς
τύπτονται ἐν τοῖς δικαστηρίοις οἱ τιμωρούμενοι in Pluto p. 50._
_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 _Plutarch_[615] 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 _Hebrews_[616] 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.
[614] _Junius. Jer. 29. 26._
[615] _Plutarch. in Artaxerxe._
[616] _כלי מסגר לידים Instrumentum constringens manus. D.
Kimch. Jer. 29. 26._
THE SIXTH BOOK
OF _MISCELLANEOUS RITES_.
CHAP. I.
_Of Circumcision._
Their _Sacraments_ were two. First, the _Passover_ of which there hath
been a set Chapter. Secondly, _Circumcision_, of which now.
_Circumcision_, was a cutting off the foreskin, as a sign and seal of
_Gods_ Covenant made with the People of the _Jews_. It is called a
_sign_ by _God_ in its first institution, _Gen. 17._ and a _seal_ by
the _Apostle_, _Rom. 4. 11._ Yea, it is called a _sign_ and a seal, by
a _Doctor_ of the _Jews_,[617] more ancient than their _Talmud_.
[617] _Zohar. Gen. 17._
It was used (though not as a _Sacrament_) by many other Nations:[618]
by the inhabitants of _Colchis_, the _Æthiopians_, the _Trogloditæ_,
and the _Egyptians_.
[618] _Alex. ab Alex. lib. 2. cap. 25. Herodo. l. 2. Diodor.
Sicul. l. 2. c. 1. It. l. 4. c. 3._
In a figurative sense, alluding unto this _Sacramental Rite_, we read
of three other sorts of _Circumcision_ in the _Scripture_; so that in
all there are four mentioned. 1. _This of the flesh._ 2. _Another of
the heart._ 3. _A third of the lips._ 4. And a _fourth of the ears_.
We are to consider it in its proper acception, and here to observe:
First, the _time when_ it was administred. Secondly, the _manner how_.
Thirdly, the _penalty in case it was omitted_.
The _time_ was the _eighth day_; yea, the _eighth day_ was so precisely
observed, that if it fell on the _Sabbath_, yet they _circumcised the
~Child~_; whence rose that saying among them, _Circumcisio pellit
Sabbatum_ _Circumcision driveth away the Sabbath_; or, the _Sabbath_
giveth place to _Circumcision_. And with this accordeth that of our
Saviour, _Ye on the Sabbath day circumcise a man_, _John 7. 22._ The
_Jews_ superstitiously conceiting that each creatures perfection
depended upon the sanctification of one _Sabbath_ day at least, say
that _God_ did therefore enjoyn the _eighth day_, that one _Sabbath_
might first pass over each male, before he should be partaker of this
Sacrament. But more probably we may say, that the reasons why God would
not suffer them to anticipate the _eighth day_, were first to shew,
that _God_ in the matter of Salvation, neither was, nor is _simply tyed
to Sacraments_; for then there had been no less cruelty in _forbidding
Circumcision until the eighth day_, than there was love in _permitting
it upon the eighth_. Secondly, because in this time of the _Mosaical
Pedagogie_, there was a kind of _legal uncleanness_, in which the
creatures were thought to be, as remaining in their blood, for the
first _seven daies_ after their birth, _Levit. 22. 27._ _It. 12. 2, 3._
Notwithstanding, _God_ thought it not convenient to defer it longer
than eight daies, for the comfort of the Parents, which they received
by a mature and seasonable initiation of their children.
The manner how Circumcision was administred, I find thus recorded:
Some of those that were present held a vessel full of dust,[619] into
which they did cast the foreskin being cut off. Again, they prepared
in the room, a certain _void chair for Elias_;[620] which was done,
partly in honour of him, for which respect also, as often as they fell
on any difficult place in Scripture they would say[621] _Veniet Elias,
& omnia enodabit_; _We know that Elias will come, and he will tell us
all things_: But chiefly it was done, because they thought _Elias_ to
be present there in spirit, whose bodily coming they did, and do daily
expect. These ceremonies are meerly _Jewish_, practised by the latter
_Jews_, but utterly unknown in our _Saviour Christ_ his time, and,
as it appeareth by the _Samaritan woman_ her speech, that proverbial
saying applyed now to _Elias_, was of old applyed to _Christ_, _John 4.
25._ _Thirdly_, he which supplyed the place of the _Witness_, or as we
phrase it, of the _Godfather_,[622] held the Child in his arms whiles
it was _Circumcised_: this _Godfather_ they called _Baal Berith_, and
_Sandack_; that is, the _Master of the Covenant_. Uriah _the Priest_,
and _Zachariah_ the son of _Jeberechia_, are thought[623] to have been
_Godfathers_ at the Circumcision of _Maher-shalal-hash-baz_, _Esay. 8.
2._ and from them the custome of having _Godfathers_ in _Baptisme_, to
have taken its original. _Fourthly_, the Parents named the Child, and
in _Zacharies_ time, it seemeth that in the naming of the Infant, they
had respect to some name of his Ancestors. _They said unto her, there
is none of thy kindred that is named with this name_, _Luk. 1. 61._
Other Nations had their set daies also after the birth, for the naming
of their Children. The _Romans_[624] gave names to their male-children
on the ninth day, to the female on the eighth. The _Athenians_[625]
gave names on the tenth. Others[626] on the seventh. These daies
_Tertullian_[627] called _Nominalia_. The _Grecians_ besides the tenth
day on which they named the Child, they observed also the _fifth_,[628]
on which day the Midwives took the Child, and ran about a fire made
for that purpose, using that Ceremony as a purification of themselves
and the Child: on this day the Neighbours also sent in _gifts_, or
_small tokens_, _Munera natalitia_;[629] from which custom that amongst
_Christians_, of the _Godfathers_ sending gifts to the baptized Infant,
is thought to have flown. But to return again to the Rites of the
_Jews_. After the Child had been _circumcised_, the Father said:[630]
_Blessed be our Lord God, who hath sanctified us with his precepts, and
hath commanded us, that we should cause this child to enter into the
Covenant of Abraham_. After this, the whole Church or company present
replyed in this manner,[631] _As thou hast made him to enter into the
Covenant, so make him also to enter into the Law, into Matrimony, and
into good works_.
[619] _Paul. Fag. Deut. 10._
[620] _Christoph. Cast. in Malac. c. 3._
[621] _Mercerus in abreviaturis. היקו_
[622] _נוהגין לקרא למי שמחזיק בן חברו למולו סנדק והלועזים
קורין לו בעל ברית Elias Thisb. in סנדק_
[623] _Jun. & Trem. Es. 8. 2._
[624] _Plutarch. prob. 102. Macrob. Sat. l. 1. c. 16._
[625] _Cœl. Rhodig. l. 22. cap. 12._
[626] _Arist. hist. anim. lib. 7. c. 12._
[627] _Tertul. de Idol. cap. 16._
[628] _Scholiast. Aristoph. in Lusistrat. p. 886. It. Suidas in
ἀμφιδρόμα._
[629] _Stukius de conviv. l. 1. c. 16._
[630] _ברוך אתה יהוה אלהינו מלך אשר העולם אשר קדשנו במצותיו
וצונו לכניסו בבריתו של אברהם אבינו Moses Kotsen. in tractat.
circumcis. fol. 115._
[631] _כשם שהכנסתו לברית כן תכניסהו לתורה ולחופה ולמעשים טובים
Moses Kotsen. ibid._
The _penalty_ for the omission of _Circumcision_ running in this
form; _That soul shall be cut off from his people_, _Gen. 17. 14._ I
understand the _penalty_ to be pronounced against such an omission;
which proceeded either from _contempt_ or _wilful neglect_. In this
case the question is, what is meant by this phrase, _His soul shall be
cut off from the people_. Secondly, _who ought thus to be punisht?_
whether the child, or the _parents_, and such who _supply the place
of parents_? For the first, besides _Gods_ secret action in punishing
such Delinquents, methinks there is a rule of direction for the Church,
how to proceed against such in her Discipline: If any understand here,
by _cutting off such a mans soul from his people_, the sentence of
_excommunication_, or _casting him out of the Synagogue_, I shall not
oppose it; though I rather incline to those, who understand hereby a
_bodily death_ inflicted upon such an offender, in which sense the
phrase is taken, _Exod. 31. 14._ _Whosoever doth any work on the
Sabbath, that soul shall be cut off from among his people_. And it is
very remarkable, that when _Moses_ his child was _uncircumcised, the
Lord sought to kill Moses_: which as it intimated the punishment of
this fault to be a _bodily death_ so it clearly evinceth, that not the
_child_ till he cometh to years of discretion, but the _parents_ were
liable to punishment. The opinion of the _Rabbines_ concerning this
latter point is thus delivered:[632] _If the Father circumcise him not,
then the Judges are commanded to circumcise him: and if it be unknown
to the Judges, and they circumcise him not, when he is waxen great,
he is bound to circumcise himself, and every day that passeth over
him, after he is waxen great, and, he circumciseth not himself, lo he
breaketh the Commandment._
[632] _Moses Kots. tract. circumcis. fol. 114. col. 4._
Here it may be demanded, how it is possible for a man, after once he
hath been marked with the sign of _Circumcision_, to blot out that
character and become _uncircumcised_? for thus some _Jews_, for fear
of _Antiochus_, made themselves uncircumcised, _1 Mac. 1. 16._ Others
for shame, after they were gained to the knowledge of Christ, and to
entertainment of the _Christian faith, uncircumcised themselves_, _1
Cor. 7. 18._ The answer is,[633] that this was done by _drawing up
the foreskin_ with a Chirurgion his instrument; and unto this the
_Apostle_ in the fore quoted place alludeth, μὴ ἐπισπάσθω, _Ne attrahat
præputium_. This wicked invention is ascribed unto _Esau_, as the first
_Author_ and practiser thereof.
[633] _Epiphan. lib. de mens. & pond. p. 415. It. Celsus l. 7.
c. 25._
CHAP. II.
_Of their first fruits and their firstlings, or first-born._