Explication of the Judicial Laws of Moses, Part 1 · Chapter 36 – Chapter 37
CHAPTER XXXVI. Of their Whipping.
DEVT. 35. 3. Fortie ſtripes may be given him, and not exceede.
THere were ſundry ſorts of puniſhments amongſtDivers ſorts of puniſhments. the Iewes; firſt, damnum, ſecondly, vincula, thirdly, verbera, fourthly, talio, fiftly, ignominia, ſixtly, ſervitus, ſeventhly, mors. But they never uſed to baniſh any, becauſe they would not put them where there was a ſtrange Religion profeſſed.
When they whipt their malefactors; firſt they had a reſpect to the offence committed; and ſecondly, to the perſon who was to be whipt; and thirdly, to the whip.
Firſt, they had a reſpect to the offence; in ſimplici delicto, They had a reſpect both to the perſon and to the offence in whipping.they might not exceede fortie ſtripes, but they might diminiſh the number of the ſtripes, if the perſon offending had beene of a weake body; Secondly, for a double offence they might not exceed fortie, but they were to giuegive him the full fortie all at once; if a man had committed theft, and with all had added perjurie, this was a double offence, and for this he got the rigour, full fortie.
If he had a ſtrong body, and committed a double offence▪ then he got the full fortie all at one time; ſecondly, if he had a ſtrong body and committed a ſimple offence, then he got not the full number; thirdly, if he had had a weake body & committed a double offence, then he got the full number, but at two ſeverall times; but if he had beene of a weake body, and committed a ſimple offēce, then the number of the ſtripes was much diminiſhed.
Againe, they conſidered how many ſtripes the offender might beare, and the number of the ſtripes which the whip gaue: Example, the offender is able to beare twentie ſtripes, and they adjudge him to hauehave twentie ſtripes; now they giuegive him but ſixe blowes, for if they had given him ſeven blowes, they ſhould hauehave exceeded the number preſcribed, for the whip wherewith they whipped them had three thongs, and if they perceived that he grew faint and weake, when they were beating him, they diminiſhed ſome of the number; if they ordained that he ſhould hauehave twelue ſtripes, and obſerved in the meane time that he fainted not, yet they exceeded not that number twelue, which they had ordained to giuegive him at the firſt.
When they whipped Paul, 2 Cor. 11. 24. and gaue him thirtie-nine ſtripes at three ſeverall times; firſt, it ſeemes that he hath beene of a ſtrong body; ſecondly, it was for three ſeverall offences (as they thought) that theyThe offender was not whipt thrice for one fault. beat him; for if the offender had thrice committed the ſelfe ſame fault, then he was no more beaten, but he was ſhut up within a narrow wall, wherein he might neither ſit nor ſtand, and there he was fed Pane afflictionis & aquâ preſſurae; example, if he had eaten the fat twice, Levit. 3. 17. he was but beaten twice; but if he had eaten the third time of it, then he was ſhut up in a cloſe priſon, or ſuch a priſon in which Ahab commanded Micheas to be put, 1 King. 22. 27.
The offender was bowed downe when he was beaten, Deut. 25. 2. he neither ſat nor ſtood, and he who whipt him, ſtood upon a ſtone, and he let out or in the whip, by drawing up or downe the knot upon it; for when the knot was drawne up, then the thongs ſpread farther and gaue a ſhrewder blow; and when the knot was drawne downe, then the thongs were contracted, and they gaue the leſſer blow; when he ſtood behinde him, then he whipt him upon the breaſt and belly, and he gaue him three blowes at a time; and when he ſtood before him, he laſhed him upon the ſhoulders, and gaue him ſixe blowes, three upon every ſhoulder.
There ſtood three Iudges by when he was whipt,Three Iudges ſtood by when they were whipt. the firſt repeated theſe words of the Law to him, Deut. 28. 58. If thou obey not all theſe things, then the Lord ſhall multiply thy plagues: the ſecond Iudge numbered the ſtripes; and the third Iudge ſaid to the whipper, Lay on, ſheliſhi omer lachozen hacce, Dicit ei qui portat flagellum, foreign Maymone Hal: Sanht: cap. 16.percute.
He who was beaten, was not diſgraced by this beating, for whipping amongſt them was but as a civillWhipping was not a diſgrace amongſt the Iewes. mulct, or fyne, not a diſgrace as it is amongſt us, and therefore the Lord ſaid, Deut. 25. 3. That thy brother ſhould not ſeeme vile in thine eyes. When they whipt any of their brethren, they did it not in ſcorne or deriſion, but in compaſſion, they looked upon him, and received him after the puniſhmēt, as their brother againe: and as he who looked upon Cato Vticenſis ſeeing him drunke, turned away his eyes and ſeemed to take no notice of it, being aſhamed that ſuch a graue man ſhould be ſo overtaken; ſo did they behold their brethren with pitie, and were readie to cover their offence, and would not upbraid them afterwards for it.
The ſpirituall uſes which wee are to make of theſe Concluſion. 1 whippings, are firſt, as they fitted the whip to the perſon, if he were weaker or ſtronger, ſo the Lord layeth no more upon us than we are able to beare.
Secondly, as the Iudge ſtood by and numbered the Concluſion. 2 ſtripes; ſo the Lord our God numbereth all the afflictions which befalleth his children.
Thirdly, although they were beaten, yet they were Concluſion. 3 not vile in the eyes of the Iudges, ſo when the Lord correcteth us, he counteth not baſely of us, but eſteemes us as his children.
Fourthly, as they were reckoned ſtill brethren when Concluſion. 4 they were whipped; ſo ſhould we account theſe who are afflicted, and the Lords hand upon them, to be ſtill our brethren.
CHAPTER XXXVII. Whether an Iſraelite that had lien with a bondmaide, that was betrothed, was whipped or not?
LEVIT. 19. 20. And whoſoever lyeth carnally with a woman that is a bond-maide, betrothed to a husband, and not at all redeemed nor freedome given her, ſhee ſhall be ſcourged.
THe Iewes did hold, if an Iſraelite had lien with a bond-woman betrothed, and not redeemed, ſhe was to be beaten, and he was to offer a ſacrifice for his offence; ſhee was to be beaten, becauſe ſhee was not a free-woman, and ſhee had nothing to offer, and although ſhe had, yet ſhe could not offer it, becauſe ſhe was a ſtranger and not converted.
The Seventie tranſlate it foreign, from [Bakar]foreign Vapulatio erit a foreign … Inquirere; but it commeth from [Bakar] Bos, becauſe they were whipt with a thong of oxe-leather, and ſome tranſlate it Nervo bovino.
The reaſon why the Iewes held that the woman ſhould onelyonly be beaten is this, becauſe the word [Tihieh] is inforeign The Iewes held that the woman was beaten and not the man. the feminine gender, and they reade it, ſhe ſhall be beaten and not the man; he committed not adultery, he polluted not another mans wife, nor a free-woman, but a ſtranger, and a ſlaue, therefore he was not to be beaten, but to offer a ſacrifice; but this word [Tihieh] may agree as well with [Bikkoreth] which is in the feminine gender, and not to reade it ipſa erit vapulatio, ſhe ſhall be beaten, but there ſhall be a beating, that is, they ſhall be both beaten, and the man ſo much the rather, becauſe he lay with her who was betrothed to another; and the words following ſeeme to imply ſo much, they ſhall not be put to death; this whipping ſhall be a ſufficient puniſhment for them: the Seventie tranſlate it foreign, but Ionathan in his Paraphraſe following the reſt of the Hebrewes, paraphraſeth it thus, Scrutatio erit in judicio ejus; ut vapulet ipſa rea, & non ipſe.
But the man is bound to bring a Ram for his treſpaſſe Object. offering; if he had beene whipt, why is he commanded to bring an offering?
Becauſe his ſinne was greater than the womans, Anſw. therefore he was both whipt and brought his offering, in cunctis nuditatibus pares ſunt vir & famina; if a freeThe puniſhment of the man & the woman was alike for every uncleanneſſe. man had lien with a free-woman in Iſrael, then he was bound to marry her, or elſe to pay her dowrie; ſecondly, if a free man lay with a bond-maide that was betrothed and not redeemed, then they were both whipt; but neither of them put to death; he died not although the woman was betrothed, becauſe ſhe was not a free-woman; thirdly, if a free man had lien with a free woman betrothed, then they were both to die; fourthly, if a free man had lien with a married woman, then they were both to die, Deut. 25. Fiftly, if a married man had lien with an unmarried woman, they were both to die: laſtly, if both the perſons had beene married, they were both to die; here in cunctis nuditatibus ſunt pares, vir & faemina.
Thoſe who are equall in ſinne, ſhall be equall in puniſhment. Concluſion. 1
The puniſhment did not expiate the ſinne, but the ſacrifice. Concluſion. 2
The whore and the harlot are one fleſh, therefore but one ſacrifice for both. Concluſion. 3