Explication of the Judicial Laws of Moses, Part 1 · Chapter 37
CHAPTER XXXVII. De Lege Talionis, Of the Law of Retaliation.
EXOD. 21. 24. Eye for eye, tooth for tooth, hand for hand, foote for foote.
THe Lawyers when they interpret this Law, theyTalio Analogica. Identitatis. ſay, that there is talio analogica & talio jdentitatis; and they ſay, that talio identitatis ſhould be obſerved, if the cauſe be alike, and the perſons, and the manner of doing. Example; a private man beateth out his neighbours eye in ſpite and malice, therefore his eye ſhould be pulled out againe; but talio ſimilitudinis is then to be obſerved: when the fact varieth in many circumſtances, as who did it, to whom he did it, &c. then talio analogica ſhould be obſerved, but not identitatis: example; if a ſonne ſhould beat his father, he ſhould not be beaten againe, but he ſhould die the death; here they obſerue not medium rei, but medium perſonae. ExampleMedium Rei. Perſonae. the ſecond, in that Parable of Nathan to David, when the rich man came and tooke the poore mans ſheepe, 1 Sam. 12. 3. Here medium rei was not to be obſerved, but medium perſonae, becauſe he was a rich man. So in commutatiue Iuſtice we obſerue medium rei, but in diſtributiue Iuſtice we obſerue medium perſonae.
Againe, they diſtinguiſh betwixt Radamantheum jus, The ſtrict ſenſe of the Law of Retaliation.the ſtrict ſenſe of the Law, and foreign or foreign, or reciproca paena. The ſtrict ſenſe of the Law is, when literally they will hauehave eye for eye, and tooth for tooth; the milder ſenſe of the Law, is, when they will hauehave ſome other ſatisfaction for the wrong done: the Iewes generally follow this ſenſe of the Law, if a man did beat out his neighbours eye, or his tooth; they followed not this Rhadamantheum ius, or the ſtrict ſenſe ofThe milder ſenſe of the Law of Retaliation. the Law, that he ſhould pay one of his owne eyes, or one of his owne teeth for it, but that he ſhould ſatisfie the man whom he had wronged, by paying ſo much money to him; for in theſe caſes that were not deadly, they held that they might make recompence and ſatiſfaction by money: and they giuegive this inſtance out of the Law; if an Oxe were wont to puſh with his horne, and it hath beene teſtified to his owner, and he hath not kept him in, but that he hath killed a man or a woman, then the Oxe ſhall be ſtoned to death, and his owner ſhall be put to death, or if there be a ſumme of money laid upon him, then he ſhall giuegive for the ranſome of his life whatſoever is laid upon him, Exod. 21. 30. 31. Here he might redeeme his life with a ranſome, becauſe he was not the direct killer, if he ſatisfied the parties by giving a ſum of money. So they held that they might ſatisfie for ſuch tranſgreſſions which were not capitall, by paying of money. And the law of the twelue Tables amongſt the Romans ſaith, Si unum perfoderit unius jactura multari, The Roman Law of Retaliation.ſi utrum que unius tantùm ut ſceleris ſui notam geſtare poſsit; & quoniam funeſta & impia manus amputari ei debet, pro manu ablata, beſsis patrimonij ſui irrogatur, id que in ſolatium vitae ejus cui oculi ſunt effoſsi, auferto. If he had put out both the mans eyes, they would take but one of his eyes, and cut the hand from him for the other eye, and then they mitigated that part of the puniſhment, and they made him pay the fourth part of his ſubſtance to relieue the man whoſe eyes he had put out.
The Heathen ſay, that Ceres the goddeſſe of Corne, Simile. cut off the ſhoulder of Pelops, Ceres could not ſet in a ſhoulder of fleſh and bone againe, therefore the gods tooke the next beſt courſe, and they ordained her to put in a ſhoulder of Ivorie to Pelops: ſo he that had beaten out an eye or a tooth of a man, he could not put it in againe; therefore they thought it good that he ſhould put in a ſhoulder of Ivorie, that is, with his goods to maintaine him whom he had hurt.