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§ 252. The SMALLEST PUNishment. 311
§ 252. THE SMALLEST PUNISHMENT.
Excision from the people, of which we shall speak more particularly by and by, was the punishment, that was consequent on a deliberate transgression of the Ceremonial Law. If transgressions
of the Ceremonial Law, (or indeed, of certain Natural Laws, sanc
tioned by a civil penalty,) were committed, without deliberate premeditation, through errour, precipitancy, or ignorance, the offender could avoid the punishment of excision, if he chose, by voluntarily offering a sacrifice, Num. 15:27–31. In this way transgressors were invited to return, to render satisfaction to the person injured, and to pursue in future a less erroneous course. But it ought to be remarked, that, in offering a sacrifice, the offender merely avoided the penalty of the Civil Law ; the merely taking this step could not of itself reconcile him to God, and do away the evil he had committed in the sight of Omniscience, Heb. 9: 13, 14. Expiatory sacrifices of this kind could be offered only for transgressions of a particular character, viz. those, which are called in Hebrew nister, ninter, nson sins, and those, which are denominated nings. Eps, trespasses.
It is worthy to be observed, that a sin-offering is expressed in Hebrew by the same words, viz. rston, &c. which mean the sin itself, and it is the same in the other case, viz. boss, &c. a trespass, Dys, a trespass-offering.
Both the sin and trespass offerings are expressly defined, (Lev. 4, 5 ch.) but the exact distinction between the transgressions, to which they have reference, is very obscure. From an examination, however, of the statements in the Chapters just referred to, it would seem, that sins, according to the technical application of the term in the Ceremonial Law, are violations of prohibitory statutes, i. e. doing something, which the Law commands not to do. Trespasses, on the other hand, are violations of imperative statutes, i. e. neglecting to do those things, which are commanded. Consult the large German edition of this Work, P. III. § 101.
The guilty person incurred the expense of the victim. He confessed to his confusion and shame the sin or trespass over the head of the animal, and, if he had unjustly taken another's proper
312 § 253. Fines AND INDEMNifications.
ty, and had not previously made a restoration of it, he not only restored it, but added in the restoration a fifth part, Lev. 6: 1– 5. Num. 5: 5, 10. In case the person, to whom restitution was to be made, was not living, it was made to his heirs; if this could not be done, it was made to the high priest, as the minister of Jehovah. The fact that restitution, which, under the Old Dispensations, was so frequently mentioned, and so strenuously insisted on, is not inculcated in the New Testament, is owing to the circumstance, that it was considered a duty so generally known, and so freely admitted, as to require no further mention, Eph. 4; 28.
§ 253. FINEs AND INDEMNIFICATIons. uży.
In some instances, the amount of a fine, or of an indemnification, that was to be made, was determined by the person, who had been injured. In other instances, it was fixed by the estimation of the judge, and, in others, was defined by the Law. For instance, (1.) The indemnification, which is termed wo: ongo, and win: jio, the ransom of one's life, i. e. the payment, which might be made by a person, who had injured another, as a commutation for those corporal punishments, to which, in consequence of the law of retaliation,(jus talionis,) he had exposed himself, was left to be determined by the mere pleasure of the person, who had been injured, Exod.21: 30. (2.) The amount to be paid, in order to secure a commutation of the punishment, that was enacted by law, against the owner of a bull, which, although the owner had been previously admonished of the bull’s character for pushing, had killed a free person, was left to be determined by the avenger of blood. This is the only instance, in which a commutation of the punishment was allowable, where death was the penalty of the crime, Exod. 21:28–31. (3.) If two men, in contending with each other, injured a wo. man with child, so that she came to a premature birth, a fine was to be paid, according to the estimation of the husband and the judge. (4.) If a servant were slain by a cross ox, when known to be such by the owner, the owner was obliged to pay thirty shekels, Exod. 21:32. comp. Deut. 22:19.
§ 254. Punish MENT of THEFT. 313
None of these fines were paid to the state, but all of them to the person, who had been injured.
§ 254. Punishment of Thert.
The restitution, that was required to be made, in case of theft, was double of the amount taken, Exod. 22: 3, 6, 8. If a sheep, however, were stolen and had already been slain or sold, so that it was evident, that the thief had no design to make restitution, a fourfold; and, if this were the case in respect to an ox, a five-fold restitution was to be made. The reason of this distinction was, that sheep, being kept in the desert, were more exposed, than other animals, to be stolen ; and oxen, being so indispensably necessary in an agricultural community, could not be taken from their owners in this way, without great injury, and peculiar aggravation, Exod. 22: 1. In case the thief, aga, was unable to make the restitution demanded by the law, he was sold with his wife and children into servitude, Exod. 22: 2. 2 Kgs. 4: 1. compare Gen. 43:19. 44; 17. In the days of the Kings, the fine for theft seems to have been increased, Prov. 6:30, 31. Capital punishment was decreed only against a thief, who had taken any thing, that was accursed, any thing, to which the epithet Byr, was applicable, Josh. 7:25; for what David asserts, in second Samuel 12:5, in respect to the person, who took away the lamb, viz. that he was worthy of death, means merely, that he was guilty, since he immediately adds, “He shall restore four-fold.” It appears from this parable, however, to which we allude, that both thieving, and taking away violently by force came under the same law, and were followed by the same punishment. Whoever slew a thief, that was attempting to break open a house at night, let it be what hour it might before sunrise, was left unpunished; since he did not know, but the thief might have a design upon his life, and he was unable also to notice his appearance, and thereby bring him to justice at a subsequent period, Exod. 22: 1.
Corporal punishments may be limited to one kind, viz. the infliction of blows with a rod or scourging, Lev. 19:20. Deut. 22. 18. 26: 2,3. The dignity or high standing of the person, who had rendered himself liable to this punishment, could not excuse him from its being inflicted. Stripes, the rod, &c. cccur very frequently for punishment of any kind, Prov. 10: 13, 17:26. Jer. 37: 15–20. Ps. 89: 32.
Scourging is very frequently practised at the present day in the East, as it was anciently; with this difference, however, that the stripes were formerly inflicted on the back, but now on the soles of the feet.
The instrument, commonly used to inflict the punishment, was a rod. Scorpions, Booz, i. e. thongs set with sharp iron points or nails, called by the Romans HoRRIBILIA, were applied, as a means of torturing, only by those, who had no relentings of heart; especially by cruel masters, in the punishment of their slaves, 1 Kgs. 12; 11. The application of such an instrument in punishing was not sanctioned by the laws of Moses.
The person, who was convicted of a crime, and was sentenced to scourging, was extended upon the ground, and the blows, not exceeding forty, were applied upon his back, in the presence of the judge, Deut. 25: 2, 3.
The more recent Jews, from their great fear, lest, from any circumstance, the stripes might exceed the number prescribed, fixed it at thirty nine instead of forty, which were inflicted in their synagogues, Matt. 10: 17. They employed for the purpose, according to the Talmudists, (Maccoth. 3. 10,) a whip, which had three lashes, so as to inflict a triple wound with one blow. Thirteen blows, therefore, made out the thirty nine stripes, 2 Cor. 11; 24. That extreme and cruel scourging, known among the Romans, in which there was no limitation of the number of the blows, is not to be confounded with that of which we are speaking. According to the Porcian Law, such a scourging could not be inflicted on a person, who was a Roman citizen. Consult Cicero pro Rabirio, ad famil. X. 32, in Verrem.V. 53, and Acts 16: 22, 25–30, 87.
§ 256. on RETALIATION. 315
NoTE. Extinction of the sight, only, was not practised among the Hebrews, as a punishment. Nor was it in truth thus practised among other nations, except in cases, where the persons, whose eyes were put out, would otherwise have been in a condition to have engaged in plots against the existing government. lt was from the fear of this, that the eyes of rebellious kings were put out, Jer. 52; 11. 2 Kgs. 26:7. In Persia so late as the seventeenth century, a silver style of that kind, which was used in painting the eyebrows, was heated red-hot, and thrust into the eye of the son of a king, for the purpose of destroying the sight, or at least destroying it so far, as to take away the power of distinctly discerning objects.
§ 256. ON RETALIATION.
If a man, in a personal conflict with another, smote him to such a degree, as to cause confinement to his bed, he was bound to make him indemnification, Exod. 21:18, 19. When, in such a contest, injury was intentionally done to a particular member of the body, or life was taken away; life was rendered for life, eye for eye, tooth for tooth, burning for burning, wound for wound, stripe for stripe, hand for hand, foot for foot, Exod. 21: 23–25. Lev. 24: 19–22. A false witness, likewise, according to the law of retaliation, (Jus Talionts,) was to be punished with the same punishment, which was decreed against the crime, in reference to which he had falsely testified, Deut. 19:16–21.
In the time of Christ, the Jus TALIONis, (Matt. 5:38–40,) was confounded with moral principles, i.e. [it was taught, that the law of Moses, which was merely civil or penal, rendered it perfectly justifiable, in a moral point of view, for a person to inflict on another the same injury, whatever it might be, which he himself had received.] The persons, who expounded the law to this effect, do not appear to have recollected [its true character, as a civil or penal law, which originated from the circumstances of the times, and seem not to have remembered, that the literal retaliation could not take place, until after the decision of a judge on a suit, brought by the person injured, and then was never to exceed the original injury. Furthermore, it was by no means necessary, that this retaliation should take place at all, since the