THE FIFTH BOOK OF THEIR CONSISTORIES.

CHAP. I. Their Courts of Judgment, especially their Ecclesiastical Consistory.

There were in Israel distinct Courts, consisting of distinct persons, the one principally for Church-businesses, the other for affairs in the Commonwealth; the one an Ecclesiastical Consistory; the other a Civil Judicatory:[517] Of these, and their several censures, and punishments, it remaineth now to be spoken.

These different Consistories, or Courts of Justice, we find first distinguisht, Deut. 17. 12. He which will not hearken unto the Priest, nor unto the Judge. Where the people of Israel are directed, in what cases, and to what persons they should make their Appeals from inferiour Courts; namely, the Priests, in matters spiritual, or ceremonial, and to the Judges, in matters civil or criminal. These two Courts are more plainly distinguished, 2 Chron. 19. where Jehosaphat, reforming many abuses in Church and Commonwealth, first appointed thorow-out all the fenced Cities of Judah, secular Judges to determine criminal causes, ver. 5. And at Jerusalem he appointed a Spiritual Court, consisting of Levites, Priests, and the chief Fathers of Israel, vers. 8. And in causes spiritual for the Lord, Amariah the High priest was chief: in causes criminal for the King, Zebadiah was chief, ver. 11. Likewise the Prophet Jeremiah is condemned to die by the Consistory of Priests, Jer. 26. 8. But by the Consistory of Princes, or secular Judges sitting in the gate, he was absolved and discharged, vers. 16. Yea, although the tyranny of Antiochus, and the troublesome times insuing had bred such a confusion in matters of Government among the Jews, that an evident distinction can hardly be found in the New-Testament, yet some foot-steps, and imperfect tokens of both Courts are there observable, principally, Matth. 21. 23. It. Matth. 26. 3. The Chief Priests and the Elders, of the people, are named as two distinct Consistories: and each Consistory seemeth to be differenced by its proper name: The secular Consistory termed συνέδριον, A Councel: the spiritual termed συναγωγὴ, a Synagogue. They will deliver you up to the Councels, and they will scourge you in their Synagogues, Matth. 10. 17. Hence that great Assembly of Prophets and holy men called together by Esra, for the reformation of the Church, after their return from Babylon, is called Synagoga magna, A great Synagogue.

The Office of the Ecclesiastical Court, was to put a difference between things holy and unholy, and between clean and unclean, Levit. 10. 10. and to determine Appeals in controversies of difficulty. It was a representative Church. Hence is that Dic Ecclesiæ, Mat. 18. 16. Tell the Church, because unto them belonged the power of Excommunication, the several sorts of which censure follow in the next Chapter.

Only here take notice, that as in the Civil Consistories, consisting of seventy Judges, which was the supreme Court, there were two sate as Chief; namely, one whom they termed Nasi, The Lord Chief Justice; and the other whom they termed Abbeth din, the Father of the Senate: so in the Ecclesiastical Consistory the High-priest and his Sagan, or second High priest sate chief there, 2 King. 23. 4. That the High priest sate in the Sanhedrim necessarily, is an errour;[518] for he was not elected into that Company, except he were a man of extraordinary wisdome. Again, note, that sometimes both Consistories assembled together, as often as the matters to be determined were partly ceremonial, partly civil, partly belonging to the Church, partly to the Commonwealth: which being not noted, causeth the Courts not to be distinguished by many Expositors. This meeting and joyning of both Consistories often appeareth in the Gospel. The chief Priests and Elders meet together.

CHAP. II. Of their Excommunication.

They had three Degrees of Excommunication. The first was called in the N. T. a casting out of the Synagogue, John 9. 22. by the Jews[519] Niddui i. a separation or putting away. It signified[520] a separation from all commerce or society either with man or woman for the distance of four Cubits; also from eating or drinking with any; from the use of the marriage-bed, from shaving, washing, or the like, according to the pleasure of the Judge, and the quality of the offence. It was of force 30 days, yet so that they might be shortened upon repentance. He that was thus excommunicated, had power to be present at divine service, to teach others, and learn of others; he hired servants, and was hired himself, but always on condition of the aforesaid separation. If he remained impenitent, according to the pleasure of the Judge, his punishment was increased, either to the doubling or the tripling of the time, or to the extending of it to their lives end; his male-children were not circumcised; if he died without repentance, then, by the sentence of the Judge, a stone was cast upon his Coffin or Bier, to shew that he was worthy to be stoned. They mourned not for such a one with solemn lamentation, they followed him not unto the grave, nor buried him with common burial.

The second was called in the N. T. a giving one over to Satan, 1 Cor. 5. 5. By the Jews ‎‏חרם‏‎ Cherem. For the better understanding of this word, we must know that it is not used in this sense in the Old Testament; there we shall find it applied to persons, or to things; if to persons, then it signifieth a devotion of them to God by their death, Levit. 27. 29. If to things, then it signifieth a devotion of them unto God, by separating them from ordinary use. Hence it is that Achan is punisht for stealing the devoted thing, Josh. 7. Persons thus devoted, were termed by the Greeks ἀναθέματα; and devoted things, ἀναθήματα.[521] Notwithstanding, in the Apostles time, both Cherem and ἀνάθεμα, signified a second degree of Excommunication, differing from the former. First because it was not done in a private Court, but published in the audience of the whole Church: Secondly, maledictions and curses were added out of the Law of Moses, At the publishing hereof Candles were kindled; and when the curses were ended, they put out the candles, in token that the excommunicate person was deprived of the light of heaven. This kind of excommunication was exercised against the incestuous person, and against Hymenæus,[522] and Alexander.[523]

The third was called in the New Test. by the Syriack name Maranatha, 1 Cor. 16. that is, the Lord cometh; Maran signifieth the Lord, and Atha cometh and this they say was instituted by Enoch, Judg. 11. The Jews called it Schammatha, the Etymology of which word I find to be twofold. Some say[524] it soundeth as much as Maran Atha the Lord cometh. Schem signifieth the Lord, and Atha cometh: others say[525] it soundeth there is death, Schem signifying there and Mitha death. Hence we may render it an excommunication to death. And this is thought[526] to be the reason of that phrase, 1 John 5. 16. There is a sin unto death, i. which deserveth excommunication to death. R. Gersom[527] forbade the breaking open of letters, under the penalty of all three sorts of excommunication. And this was termed Excommunicatio in secreto nominis tetragrammati: see the form thereof in the Chapter of the Sadduces.

In the Greek Church there were[528] four degrees of this censure. 1. Σύστασις. Those were censured with this degree, who were only debarred the Lords Table: as for enterance into the Church, hearing the Word, praying with the Congregations, they enjoyed equal liberty with other Christians, they might stand by and behold others receive the Sacrament, but themselves did not partake thereof, whence they were called Stantes. 2. ὑπόπτωσις, concerning this censure, all that I read of it is thus; that he that is thus censured hath admittance into the Church.[529] But his place must be behind the Pulpit, and he must depart with the Catechumeni, that is such Pagans who were gained to the Christian Faith, but not fully admitted into the Church, because they wanted Baptism, and therefore that they might not pray promiscuously with other Christians, there was a place behind the Quire of the Church in manner of Cloysters, allotted to them, and was from them called Catechumenum:[530] This I take to be the place of this second degree of Excommunication, so that the force of this censure I think to consist in these three things. First, they were barred the Lords Table. Secondly, they might not stand by at the administration of the Lords supper (which was allowed in the first degree) and this appeareth clearly, because the Catechumeni departed always at the celebration of the Communion, for to them principally it was said, Ite missa est. Thirdly, though they might ὑποπεσεῖν fall down on their knees and pray, and were thence called Succumbents, yet this they might not do in the Congregation, but only in that place behind the quire or pulpit, which was allotted to the Catechumeni, and in this also this second degree differeth from the first. The third sort of censure was ἀκρόασις, the party thus censured was permitted to come no further than the Church Porch, where it was lawful for him to hear the Scriptures read, but not to joyn in prayer, not to approach the Lords Table, whence such were termed Audients. The Fourth, and last sort, was πρόκλαυσις, persons under this censure stood quite without the Church, requesting those that entered in, with tears and weeping to petition the Lord for mercy toward them, whence they were called Plorantes.

Seeing it is commonly thought, that Cain was censured by the first degree of Excommunication, called Niddui, and that the last called Schammmatha was of Enochs constitution; both these being of such antiquity, I dare not say that the three degrees of Excommunication were borrowed from the three sorts of uncleanness, which excluded people out of the three Camps, though there was an observable proportion between them.[531] Niddui may be parrallel’d with the exclusion out of the Camp of God alone, which befel those that were defiled by touch of the dead: Cherem may be compared to the exclusion out of the Camp of God, and the Camp of Levi, which befel those that were defiled of an issue. Schammatha may be compared with the exclusion out of all three Camps, the Camp of God, the Camp of Levi, and the Camp of Israel, this befel those that were defiled with leprosie; and from the Jews, it is probable that the Greek and Latine Churches borrowed their degrees of Excommunication.

CHAP. III. Their Civil Consistories, what persons were necessarily present in them.

In many things men might be sinful in respect of Gods Law, though not liable to punishment, in respect of mans; thou shalt not avenge, nor be mindful of wrong, Levit. 19. 18. which the Hebrews explain thus, To avenge, is to deny a good turn to one who formerly denied him. To be mindful of a wrong, is to do a good turn to one who formerly would not do so much for him; but at the doing thereof, to upbraid the other of his unkindness. They illustrate it thus: when Reuben said to Simeon, Lend me thy Hatchet; he answereth, I will not lend him: Afterward Simeon had need to borrow an Hatchet of Reuben, and saith unto him, lend me thy Hatchet: Reuben saith unto him, I will not lend him, thou wouldst not lend me thine: this is ‎‏נקימה‏‎ Nekima, Avengement. Now when Reuben saith to Simeon, Lend me thy Hatchet: he answereth, I will not lend him: afterwards Simeon borroweth a Hatchet of Reuben: Reuben saith, lo, I will lend it thee, I will not deal with thee as thou dealedst with me, this is ‎‏נטירה‏‎ Netira, Mindfulness: both these were sinful, but not liable to mans judgment.

In all civil Courts, five sorts of persons were alwayes present. 1. Judges. 2. Officers. 3. Pleaders. 4. Notaries. 5. Witnesses. In the supreme Court, there was one that was chief over all the other Judges, they called him in Hebrew Nasi, in Greek ἄρχοντα, The Prince. His leave was craved for the tryal of actions. The Witnesses were at least two, Deut. 29. 15. If they were false, they punish’d them with a Talio, the same punishment which he intended against his brother, Deut. 19. 19. The Notaries were two,[532] one stood on the right hand to write the sentence of Absolution, and what was spoken in defence of the party; the other stood on the left hand, to write the sentence of condemnation, and the objections against the party. Drusius[533] thinks that Christ speaking of the last Judgment had reference to this, He shall set the sheep on the right hand, and on the left the goats, Matth. 25. 23. The Officers were in manner of Sheriffs, they were present to execute what the Judges determined; whence they carried up and down their staves and whips,[534] as the Consuls of Rome had Rod and Axes, carried before them for the readier execution of justice. In Hebrew they are called ‎‏שוטרים‏‎ Schoterim, by the Septuagint sometimes γραμματεῖς, in our English translation commonly Officers, and by Saint Luke πράκτορες: for, doubtless there is allusion unto them, Luke 12. 58. When thou goest with thine adversary, (ἄρχοντι) to the Magistrate, as thou art in the way, give diligence that thou maist be delivered from him, lest he hale thee to the Judge, and the Judge deliver thee to the Officer, &c. The Pleader was called ‎‏בעל ריב‏‎ Baal rib, he stood on the right hand of the party cited into the Court, whether he pleaded for or against him. The Lord shall stand on the right hand of the poor, to save him from those that judge his soul, Psa. 109. 31. that is, The Lord shall plead his cause. And Satan stood at the right hand of Joshua, Zach. 3. 1. that is to accuse him, or plead against him. When S. John speaking, If any man sin, we have an Advocate, 1 John 2. 1. he alludeth unto this Baalrib, or Pleader. The Judges, they examined and determin’d matters and after examination, sentence was pronounced by the Judge in this manner: Tu N. justus, Tu. N. reus, Thou Simon art just: Thou Reuben art guilty: at the pronunciation of which the guilty person was dragged to the place of execution. When he shall be judged, let him be condemned, Ps. 109. 7. the Hebrew is, Let him go out wicked.

The manner of sentencing persons, varied in most Countries. The Jews by a simple pronunciation of sentence, both absolved men, and condemned them. The Romans[535] gave sentence by calling in Tables into a certain box or urne prepared for the purpose: if they absolved any, they wrote the letter A in the table, it being the first letter of Absolvo: if they would condemn any, they cast in a table with C written in it, which is the first letter of Condemno: if the matter were hard to determine, they would cast in other tables with N L, signifying Non Liquet. The Græcians[536] in like manner used three letters: Θ was a token of condemnation, which occasioned that of Persius.

Τ was a token of absolution; Α, of ampliation. Others signified condemnation, by giving a black stone; and absolution by giving a white stone.

To this there seemeth to be allusion, Rev. 2. 17. To him who overcometh I will give a white stone; that is, I will absolve and acquit him in the day of judgement.

Note these three phrases, ἀναστῆναι είς κρίσιν, To rise up to judgment; ἀναστῆναι ἐν κρίσει, To rise up in judgment; ἐξελθεῖν καταδεδικασμένος, To depart guilty. The first is applied to the Judge in the execution of Justice, When God rose up to Judge, Psalm 76. 10. that is, to execute judgement. The second is applied to the party prevailing in judgment. The men of Nineveh shall rise up in judgement with this generation, Mat. 12. 41. that is, shall be justified before this generation. The last is applied to the party condemned, Psal. 109. 7. Let him depart guilty or wicked: the ungodly shall not stand in judgment, Psal. 1. The like phrases were in use among the Romans, Stare in Senatu, to prevail in the Senate; Causa cadere, to be cast in ones suit. But these phrases among the Romans I think to have been taken out of their Fence-Schools, where the set posture of the body, by which a man prepareth himself to fight and grapple with his enemy, is termed Status, or Gradus, as cedere de Statu, to give back; Gradum vel statum servare, to keep one’s standing: and from thence have those elegancies been translated into places of Judgment.

CHAP. IV. The number of their Civil Courts.

Their Civil Courts were two, ‎‏סנהדרים גדולה‏‎ Sanhedrim gedola, the great Consistory, or Supreme Senate, ‎‏סנהדרים קטנה‏‎ Sanhedrim Ketanna, the lesser and inferiour Court. Thus I find them divided generally by the Rabbins: And although the latter was subdivided, as will after appear; yet in old time there were onely two first branches: which division our Saviour Christ seemeth to have followed, calling the lesser Court κρίσιν, by the name of Judgement: the greater συνέδριον, by the name of a Counsel. Whosoever is angry with his brother unadvisedly, shall be culpable of Judgement. Whosoever saith unto his brother Raca, shall be worthy to be punished by the Counsel: Whosoever shall say Fool, shall be worthy to be punished with the fire of Gehenna, Mat. 5. 22. In which words, as there is a gradation of sin, 1. Anger, a passion of the mind. 2. Raca,[537] scornful, or slighting speech, as Tut, Tush, &c. 3. Fool, reproachful and opprobrious names: so likewise there is a gradation of punishment. 1. Judgement, a lesser Court. 2. Councel, the greater Court. 3. The fire of Gehenna: Now Gehenna was a Valley, terrible for two sorts of fires in it: First, for that wherein men burnt their children unto Moloch.[538] Secondly, for another fire there continually burning, to consume the dead carcasses, and filth of Jerusalem; partly for the terribleness of the first, and partly for the contemptibleness of the place by reason of the second fire, it was a type of hell fire it self. We may resolve that text thus, anger deserved the punishments of the lesser Court; Raca, the punishments of the greater: and Fool deserved punishments beyond all Courts, even the fire of Gehenna.

The greater Court, by way of excellency, was called the Sanhedrim, which word came from the Greek, συνέδριον, a place of Judgement: It was also called ‎‏בית דין‏‎ Beth din, the house of Judgment.[539] It was distinguished from the other Courts; first, in respect of the number of the Judges, which were seventy one, according to the command of God to Moses at their first institution, Numb. 11. 16. Gather unto me seventy men of the Elders of Israel, whom thou knowest that they are the Elders of the people, the Governours over them, and bring them unto the Tabernacle of the Congregation, and let them stand there with thee. From the latter words of this Text, it is observed, that there were seventy besides Moses; and therefore after his decease they alwaies chose one chief Judge in his room, not reckoning him among the seventy; they called him Nasi, the Prince or chief over the seventy. These seventy are thought[540] to be chosen six out of every Tribe, save the Tribe of Levi, out of which only four were chosen. Others think[541] the manner of their choice was thus; six of every Tribe had their names written in little scrolls of paper: in seventy of these scrolls was written ‎‏זקן‏‎ Zaken, Senex, an Elder, in the two other ‎‏חלק‏‎ Cheleck, pars, A part; these scrolls they put into a pitcher or urn, and those that pluck’d out a scroll wherein Elder was written, were counted amongst the number of the Judges; those that pluck’d out the other scrolls, in which a Part was written, they were rejected, Numb. 11. 26. The senior of these seventy was called ‎‏אב בית דין‏‎ Ab beth din, the Father of the Judgment Hall. The whole Set[542] or Bench of Judges, sate in manner of an half circle, the Nasi sitting in the midst above the rest, the other sitting round about beneath, in such manner that the Father of the Judgement Hall sate next to the Nasi on the right hand. The lesser Consistory was subdivided into two sorts, one consisted of twenty three Aldermen, and two such Consistories there were in Jerusalem, the one at the door of the Court before the Temple, the other at the door of the Mountain of the Temple: yea, in every City throughout Israel where there were sixscore housholders, such a Consistory was erected: the other sort of lesser Courts consisted only of a Triumvirate, three Aldermen; and this was erected in the lesser Cities, which had not the number of sixscore housholders.

The second difference[543] between the greater Consistory and the 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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?

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.

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.

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 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.

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 thought[596] 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. 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.

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.

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 some[602] 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 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.

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.

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 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.

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.

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.