be oblig'd to express the Causes of his receding from ordinary Punishment how far the Law presumes for the Justice of the Judge in ambiguo 180 The Circumstances for hightning or lessening Punishments are chiefly seven Causa persona locus tempus Qualitas Quantitas Eventus 181 1. Divers Considerations anent the Cause viz. 1. If the Delinquent acted ex proposito or not 2. If the Crime be consummated or attempted only 3. If the Delinquent acted of his own accord or by command of another What the Judge ought to do in each Case 182 2. As to the Person whether Agent or Patient it makes a great alteration in Punishment Each should be considered as to Sex Age State and Quality or Dignity 183 3. Place of Committing augments or diminishes the nature of the Punishment prov'd by Instances 184 4. Time varies the Punishment which is also prov'd 185 5. The Quality of the Fact makes the Crime more or less atrocious and varies the Punishment 186 6. Quantity distinguishes furtum ab abigeo 187 7. Event encreases punishment and Damnages as when the hand of a skilful Artificer is struck off 188 Damnages are due by the Rules of natural Equity proved by the Authority of Farin and Marsil 189 How far Delinquents are lyable for Damnages intrinsick or extrinsick and both these Damnages described 190 Obligation to pay Damnages founded on Exod. 28.19 191 Damnages to be modified at the arbitriment of the Judge and by what means he should inform himself Other five Circumstances for mitigating Punishments 192 Of the Practice of Scotland anent punishing Mutilation and Demembration and decerning of Damnages The words of Cap. 11. Stat. Rob. 2. which are the foundation of all set down 193 If there be any Warrant from the words of the Statute to punish Mutilation and Demembration capitally debated pro contra and resolved Negative I Have now done with the first Part of this Appendix and therein I have shown what it is to Mutilat and Detruncat a proper Member of a Mans Body and how to pursue and defend Actions thereanent I come next in this second Part to speak of Punishments and Damnages which are not always the same but vary in these as in other Crimes according to Circumstances tot tit ff de poenis Farin 11.87 seqq dè poenis temperand The DD. insist chiefly on Retaliation Amputation of a Hand and arbitrary punishment and there is a Fourth mentioned in an ancient Statute of our Law viz. cap. 11. stat Rob. 2. where it 's said that for wilfull and premeditated Mutilation which is there understood for Demembration the Delinquents Life shall be in the Kings Will and redeemable Retaliation which is the first of these is a Punishment of equal Retribution or the doing to one as he hath done to his Neighbour instituted by GOD committed to the Jewish Magistrat for Execution and thereafter receaved by the Gentile Nations upon the account of it's natural equity and executed by the Rule of Geometrical Proportion All which I shall make appear in several Conclusions Cardinal Hugo on Exod. 21.23 thus expresses it Talitur laedendus est justè qualiter ipse injuste fecerit alii Poena talionis is not expresly mentioned among the Laws of Justinian except in § poena 7. inst de injur but we find it in Novel Leon. 60. 92. The Reason why it 's but once in Justinians Law is that when Trebonian composed the Law Retaliation of one Member for another was worn out and in place thereof actio injuriarum had succeeded as in dict § Poena It 's oftner in the Canon Law as in C. Poen 14. q. 1 and in C. sex differentia 23. q. 3. and in C. calumniator 2. q 3. but it 's frequent among the DD. as Jul. Clarus Farinacius Cujac Bart Bald and others And among the Rhetoricians as Quintil. declam 297. 352. Senec Controvers 2. lib. 3. controv 33. lib. 5. and it 's to be found in Symmach Epist 59. lib. 1. Epist 27. lib. 3. and Sidon Epist. 3. lib. 5. and the Essence of it consists in the cutting off one Member for another as appears by the punishment of him who makes an Eunuch Novel Justin. 142. Cap. 1. It hath it's name from the Latine word Talis Voss in Etymol which denotes an Equality betwixt the Crime and the Punishment and for this Cause it 's likeways call'd paena similis supplicii in l. ult c. de accusat l. ult ff de calumniat Poena reciproci in l. 3. lib. 9. c. Theodos de exhib vel transmit reis And paena paris vindictae quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the suffering of the same thing It is several times called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 5. Ethic. cap. 5. i e contrapassum All these are Names denoting Equality The Subject is Juridico-theological and therefore in handling of it the DD. of Theologie cite Law and Lawyers and the DD. of Law cite the Sacred Scriptures and Divines which must be my Method at present For as in the first part I made use of Physicians to assist the Lawyers so in this second Part I must call Divines to my Assistance And because the Subject is full of Difficulty especially as to the Obligation of the Law of Retaliation under Christianity I shall labour to clear the Difficulties in a few Conclusions whereby the divine Authority and natural Equity thereof shall be proved in the first place and yet it shall be shown in the second that it was not intended to be always executed in the strictest and literall Sense but according to the Rules of Geometrical Proportion and distributive Justice 1. All except Deists who deny the Authority of the Books of Moses and reproach this Law as you may see in Nichol's Dialogue with the Deist acknowledge that the Law of Retaliation was one of the Laws which Moses received from God and delivered to his People the Jews For first God gave this Law to secure the Life of man Gen. 9 6. in these Words He that shedeth mans blood by man shall his blood be shed and having declared it to take place in all cases of wilful Homicide Exod. 21.22.23.14.18.19.20.21.22.23 with Certification in the last of these Words that Life should goe for Life He thought fit by a further step of his wise providence to forbid Demembration under the like pain vers 23. Eye for Eye Tooth for Tooth Hand for Hand Foot for Foot As also Mutilation and lesser Hurts v. 25. Burning for Burning Wound for Wound Stripe for Stripe These are the Words of the first Institution of the Pain of Retaliation which is renewed Levit. 24.19.20 If a man cause a Blemish in his Neighbour as he hath done so shall it be done to him Breach for Breach Eye for Eye Tooth for Tooth As he hath caused a Blemish in a man so shall it be done unto him again Further least this should be thought to reach the Percussor only
A TREATISE OF MUTILATION and DEMEMBRATION Divided in two PARTS In the first whereof the Name and Nature of these Crimes and of Proper and Improper Members of the Body are unfolded The Doctrine of Canonical Regularity and Irregularity from which that Distinction in order to Crimes descends explained Also the Method of pursuing and defending in these Crimes the Competency of the Judge the Order of Probation together with the Procedure of the Inquest is set down In the second PART The Punishments of these Crimes are handled Retaliation which is the first of them distinguished and the Practice of that Species thereof called Pythagorical or Arithmetical refuted from the Opinion of Divines and Lawyers and even from the Opinion of the Rabbies The other Species called Aristotelical Analogical or Geometrical reconciled to natural Equity and to the Law of GOD. The Punishment of Amputation of a Hand though in many Cases practised yet rejected from being the ordinary Punishment of these Crimes Arbitrary Punishments asserted in place of both and a well regulated Arbitrary Power prov'd to be usefull and necessary to Judges for augmenting and diminishing Punishments in these and in other Crimes according to Circumstances attending the committing of them And in both Parts the Civil Law and the Law and Customes of this and other Nations are compared By Sir ALEXANDER SETON of PITMEDDEN Knight Baronet c. By way of Appendix to the fore-going Book writen by the Learned Sir GEORGE MACKENZIE of Rosehaugh EDINBVRGH Printed by the Heirs and Successors of Andrew Anderson Printer to the King 's most Excellent Majesty For Mr. Andrew Symson and are to be Sold by him in the Cowgate near the Foot of the Horse-wynd Anno DOM. 1699. ERRATA The Letter N. relates to the Number in the Margin and the Letter L. to the Line of the Number Num. 1. Line 4. f likely r. like N. 4. l. 23. f. jacturum r. jecturam N. 6. l. pen. f. Dutilatus 1. Mutilatus N. 7. l. 9. f. ipsis r ipsius N. 19. l. 1. f. irregular r regular N. 20. l. 6. to Dionys. add Halic N. 24. l. 15. f. excaecuerit r. excaecaverit l. 17. f. lib. 12. r. lib. 22. l. 18. after Hist. add Cent. 1. N. 37. l. 5. f. occasions r. affects N. 67. l. 7. after Assize add But this must be upon some Speciality and probably because many difficulties occur in the Decision N. 71 l 12. f of one other r. one or another N. 100. l 6. f. Hugo r. Ugo l. 7. f. talitur r. taliter N. 105. l 18. f Lucia r. Lycia N. 125. l 4 dele it N. 167 l 25 f legem r legum N 170 l. 7 f honore r amâ—re As for any other literal Errors or Mistakes in the punctation the candid Reader is desired to excuse and amend them To the Reader WHen I gave the first of the following Sheets to Mr. Andrew Symson that he might publish them 't was my Desire that my Name should be conceal'd to the end that the Reader being lest to his Conjectures about the Author might ascribe them to a person of greater Learning whose Reputation in the World might add more Lustre to the Work than my obscure Name could do But the Publisher by some mistaken Apprehension having prefix'd my Name has thereby oblig'd me to premit the following Account beyond what the Introduction contains which was all the Preface I at first design'd The occasion of my Writing was this Mr. Symson Minister of the Gospel having in the year 1689. retir'd to this City of Edinburgh resolv'd according to the Apostles advice 1 Thes 4.11 to be quiet and to do his own business and to work with his own hand that so 2 Thes 3.8 he might not be chargeable to any but 2 Thes 3.12 eat his own bread and Ephes 4.28 have to give to him that needeth And in prosecution of this virtuous Resolution having taken himself to the Trade he well understood of publishing and selling of Books desir'd from me and his other good Friends to give him such Encouragement as might fall in our way Some of the Honourable Society of Advocats Mr. Symsons Patrons and Be nefactors having advis'd him to publish a second Edition of the Laws and Customs of Scotland in Matters Criminal written by the Learned Sir George Mackenzie of Rosehaugh and he being desirous that this second Edition might go out with some Addition I was prevail'd with though unfit for the Undertaking to write the following Appendix and the Subject being lest to my own choice I pitched upon the Crimes of Mutilation and Demembration as these on which least had been written and yet afforded variety of Matter both profitable and pleasant whereof I hope the Reader will be convinced after he has perused these following Papers For Methods sake I have divided this little Work in two Parts In the first whereof containing Matter Medico-legal I have spoken of the Names and Nature of these Crimes and shewen they can only be committed on proper Members of the Body and from thence I have taken occasion to describe both proper and improper Members and to show how far the distinction betwixt them arose from the Doctrine of Canonical Regularity and Irregularity I have likewise set down some general Directions for forming a Lybel with the most remarkable Defences and some Observations anent the Competency of the Judge the Method of Probation the Inquests their Procedure intermixing now and then with Citations of Law some pertinent Passages of History to divert the Reader In the second Part I have considered the Punishments of those Crimes and have handled Retaliation which is the first of them as a matter Historico-theologico-juridical and refuted the Species thereof called Pythagorical or Arithmetical and reconcil'd the other Species called Aristotelical Analogical or Geometrical to Natural Equity and to the Law of GOD. And that for clearing a Debate in the Books of Adjournal about strict Retaliation I have also discoursed of the Punishment of Amputation of a Hand and rejected it from being the ordinary punishment of those Crimes and have asserted Arbitrary punishment to be the Ordinary and described Arbitrary punishment in the General and showen how far a well regulated Arbitrary Power is useful and necessary in Judges for satisfaction of some who are scandalized at the very Name of every thing call'd Arbitrary and last of all I have endeavoured to clear the Sense of the ancient Statute of King Robert the Second which declares the Liâ—e of the Mutilator to be in the Kings Will. All which is more particularly held forth in the Summaries preâ—ixt to each Part which according to the Method of Farinacius contain au Abridgment of the Heads they relate to In the performance of this Task I have adduced the Testimonies of Physicians Divines and other Authors as the Subject of each of these Parts required and have compar'd them with the Citations of Civil Law and D D. and Decisions in the
Books of Adjournal and have dispos'd them in such a Method as makes the Work altogether new and yet no part of the Criminal Law needed more to be known because the Crimes I treat of have frequently occurr'd and must occur so long as the Wickedness of Man prompts him to Revenge These things being premitted concerning the Occasion and the Matter of the Appendix I crave leave by way of Apology to represent first That when I enter'd upon this Task I design'd to comprehend all I had to say in six or seven Sheets but one Thought following upon another swell'd them to the Number they now appear in Next during all the time I was employed about these Sheets I met with frequent Interruptions from a long and tedious Sute of Law sufficiently known to be just on my part where through I was obliged to give in every Sheet as it was finished to the Press before I had time to digest another to satisfy the Importunity of the Printers who frequently called for them and this did so hasten and drive me that I was forced to take Hours from my Sleep to Revise and Correct the Sheets This Precipitation occasion'd some Literal Mistakes and if even Errors in Matter should appear as I hope they will not I may be allowed to excuse my self in these words of the Judicious Noodt Probabil lib. 1. c. 1. N. 1. quod nimia acceleratio saepe efficit ut Animus dum pluribus intenditur variet atque ad alia aberret quam sibi dicenda faciendave proposuerat providing I do frankly acknowledge the Errors how soon they shall be discovered and this I not only promise to do but also will think it my Honour after the Example of the famous Papinian who though he was dignified in Law with the splended Titles of Disertissimus l. fin C. de instit substit prudentissimus l. 14. C. de praed min. acutissimus merito ante alios excellens l. 30. C. de fidei comm hemo excelsi ingenii § sed quia 7. inst defidei comm Haered and last of all with the Title of Maximus Papinianus Novel 4. c. 6. vers sed hoc yet thought it no Derogation to yield to the Arguments of Sabinus and to become his Convert sed in contrarium says he after stating his own Opinion me vocat Sabini sententia l. 6. §. 1. ff de serv export and by so saying to proclaim the Victory on Sabinus his side and in another case Justinian cites him changing his Thoughts approves the 2d before the first l. 22. §. 3. C. de furt et serv cor and justly for Reason should not be ruled by the Will but have the command over it this being that noble Victory of a man over himself commended by Plato calling it pulcherrimum victoriae genus A TREATISE OF MUTILATION and DEMEMBRATION PART I. WHEREIN the Name and Nature of these Crimes and of Proper and Improper Members of the Body are unfolded The Doctrine of Canonical Regularity and Irregularity from which that Distinction in order to Crimes descends explained Also the Method of pursuing and defending in these Crimes the Competency of the Judge the Order of Probation together with the Procedure of the Inquest is set down As also the Civil Law and the Law and Customs of this and other Nations are compared By Sir ALEXANDER SETON of PITMEDDEN Knight Baronet c. By way of Appendix to the fore-going Book written by the Learned Sir GEORGE MACKENZIE of Rosehaugh 1699 EDINBVRGH Printed by the Heirs and Successors of Andrew Anderson Printer to the King 's most Excellent MAJESTY For Mr. Andrew Symson and are to be Sold by him in the Cowgate near the Foot of the Horse-wynd Anno DOM. 1699. A TREATISE OF MUTILATION DEMEMBRATION by way of APPENDIX to Sir George Mackenzies Criminals Divided into Two Parts PART I. Wherein the Nature of the Crimes or Delicts of Mutilation and Demembration is Considered Together with the Method of Pursuing and Defending therein Summaries 1 Introduction Shewing the Design of this APPENDIX 2 Mutilation and Demembration by some are treated of among Injuries and not improperly by others in the Title of Murder with the Reasons why 3 This Tractat is divided into two Parts The first Part treats of the nature of these Crimes or Delicts together with the method of Pursuing and Defending therein The second Part treats of their Punishments 4 The several Acceptations of the Words Mutilation and Demembration and of their Synonymous Words Mutilum Mutilatum Curtum Decurtum Descissum Detruncatum 5 How the Word Mutilation is to be understood in Cap. 11. Stat. Rob. 2. and in our later Custom of Speaking 6 Mutilation and Demembration are Names of Crimes and one who wants a Hand or other Members on other occasions is not properly call'd Mutitilatus or Demembratus sed Mancus 7 Mutilation and Demembration described and diftinguished from Debilitation which is the weakning of a Member without taking away it 's total use 8 Mutilation like Homicide distinguished into Voluntary Necessary Casual and Culpable 9 Mutilation and Demembration are call'd Acts of Privat Violence to distinguish them from Acts of Punitive Justice 10 Mutilation why described by the Word Hurting and not Wounding 11 Mutilation and Demembration being committed on Members are thereby distinguished from Homicide 12 The last Words of the Description of Mutilation to that Degree that the Member ceaseth to be useful hold forth 1. That the hurt Member must be useful 2. That it lose its usâ— 3. That it be irrecoverably lost 13 This leads us to enquire what is a Member because it 's in some cases alledg'd that the hurt part of the Body is no Member 14 Members divided in principal and subservient and both described 15 And in proper and improper and both described 16 The action and use of a proper Member described 17 Though Mutilation be described by it's rendering a Member useless yet it is not thâ—râ—ly conâ—â—â—â—ded with Demembration 18 The Canonists in their Discourses of Canonical Regularity and Irregularity give light to the understanding of the nature of proper improper Members 19 Canonical Regularity and Irregularity described 20 Some Defects in the Body are Causes of Canonical Irregularity in the Româ—n Church as had been formerly under the Levitical Law from whence that Custom seems to have descended to the Heathen Nations and last of all come in to the Church of Rome 21 Dâ—â—â—câ— of the Body more either natural or accidental and among other Accâ—dâ—nâ—â— more occasioned by the Crimes of Mutilation and Demembration which 〈…〉 rendâ—â—d the Agent and sometimes the Patient and sometimes both 〈…〉 22 A Rule taken from the Doctrine of the Canonists anent irregularity whereby to know when Mutilation and Demembration is committed in order to â—â—fer Punishment 23 Of Members in particular where First It 's prov'd that the Eye is a preper Member 24 A man may be demembred of his Eyes two ways First Formaliter
see how necessar it is for them to study the Quaestiones medico-legales without which it is not possible for them to understand some Texts in Law l. 12. ff de Statu And many other Laws in the Titles ad leg Aquil. de Aedil edict But we need not give instances seing the large Volume of Paulus Zacchias frequently above cited contains hundreds of Instances And Matthaeus dict loc thinks it may be useful also for Judges to understand these things that they be not easily deceived by the Reports of corrupted Chyrurgions and in order to this he lays before them the 18 Aphoris of Hippoc de vulneribus lethalibus sect 6 and the words of Celsus lib 5 cap 26 as a particular case to be understood A TREATISE OF MUTILATION and DEMEMBRATION PART II. WHEREIN the Punishments of these Crimes are handled Retaliation which is the first of them distinguished and the Practice of that Species thereof called Pythagorical or Arithmerical refuted from the Opinion of Divines and Lawyers and even from the Opinion of the Rabbies The other Species called Aristotelical Analogical or Geometrical reconciled to natural Equity and to the Law of GOD. The Punishment of Amputation of a Hand though in many Cases practised yet rejected from being the ordinary Punishment of these Crimes Arbitrary Punishments asserted in place of both and a well regulated Arbitrary Power prov'd to be usefull and necessary to Judges for augmenting and diminishing Punishments in these and in other Crimes according to Circumstances attending the committing of them And the Civil Law and the Law and Customes of this and other Nations are compared By Sir ALEXANDER SETON of PITMEDDEN Knight Baronet c. By way of Appendix to the fore going Book writen by the Learned Sir GEORGE MACKENZIE of Rosehaugh ARRIUS MENANDER L. 5. ff de re Militari Non omnes Desertores similiter puniendi sunt sed habetur ordinis stipendiorum ratio gradus militiae vel loci muneris deserti ante actae vitae sed numerus si solus vel cum altero vel cum pluribus deseruit aliâ—dve quid crimen desertioni adjunxerit Item temporis quo in desertione fuerit eorum quae post gesta fuerint Sed si fuerit ultro reversus non cum necessitudine non erit ejusdem sortis EDINBVRGH Printed by the Heirs and Successors of Andrew Anderson Printer to the King 's most Excellent Majesty For Mr. Andrew Symson and are to be Sold by him in the Cowgate near the Foot of the Horse-wynd Anno DOM. 1699. PART II. Of the Punishments of MUTILATION DEMEMBRATION Summaries 99 The DD. insist chiefly on three Punishments Retaliation Amputation of a Hand and Arbitrary Punishment And the Law of this Kingdom Cap. 11. Stat. Rob. 2. declares the Life to be in the Kings Will and redeemable which may be reckoned as a fourth 100 Retaliation described and its various Names 101 The Subject is Juridico-theological equally handled by Divines and Lawyers 102 The Nature of Retaliation held forth in some Conclusions 103 Concl. 1. Retaliation instituted by God in his Law and delivered by Moses to the Jews 104 Concl. 2. The execution of the Law of Retaliation committed to the Magistrats and not left to privat Revenge 105 Concl. 3. The Law of Retaliation was transmitted from the Jews to the Grecions but how or in what time is uncertain some ascribing the Law to Rhadamanthus who was Moses in Mythologie according to Huetius others to Charondas King of the Locrians The words of their Laws set down 106 Concl. 4. That Retaliation is founded on natural Equity which consists in observing Equality between the Crime and Punishment proved by five Arguments 107 Arg. 1. Taken from the consent of Nations and Laws 108 Arg. 2. Taken from the Testimony of Fathers Modern Divines and Lawyers asserting its natural Equity 109 Arg. 3. Taken from various instances of providence inflicting Retaliation 110 Arg. 4. Taken from Gods threatning Retaliation against the Enemies of his Church in general and the Chaldeans in particular and also against his own people 111 Arg. 5. Taken from the threatnings of Retaliation under the Gospel which shews that the Law was not peculiar to the Jewish oeconomie 112. The Objections of Socinians and Anabaptists devised to overturn the power of Christian Magistrats answered and the Authority of the Christian Magistrat asserted 113. A farther proof by Instances of Providence under the Gospel that the Law of Retaliation was not abrogated under the Gospel with a Reflection against the Deists denying the Validity of humane Testimony 114 Concl. 5. Although Retaliation be founded on natural Equity and so is immutable yet it doth not follow that it must be always executed according to pythagorical or Arithmetical proportion but that Analogical or Geometrical proportion as Circumstances require is sufficient And this proved by several Arguments 115 Arg. 1. Taken from the Practice of the Jews in several particulars 116 1. In many cases it was either naturally or morally impossible to execut strict Retaliation 117. 2. It was lawful for the Jews to transact anent the punishment of Retaliation Josephus his Opinion disprov'd And the Practice of the Justice-Court anent Transactions justified 118 3. And for the same Reason the Jewish Magistrat was not obliged to enquire into these Crimes when the Parties did not desire it 119 4. If the Party injured did apply to the Magistrat and insisted to have the pain of strict Retaliation inflicted yet then in that case the Judge was not obliged to inflict punishment according to the words of the Law but he enquired into Circumstances and varied the punishment accordingly All this is prov'd by many instances particularly where the Qualitie of Parties was unequal 120 5. When Quality and Circumstances were equal which seems to be the only difficult Case even then the Jewish Magistrat did admit of a Ransome and pecuniary Mulct for punishment which was done on five accounts condescended on by the Rabbies The Law of Retaliation concluded to be minatory with a Rebuke to the Sadducees and their Successors 121 6. A false Witnes occasioning Death to another was punished with strict Retaliation but if by his Testimoney he occasioned only Demembration the difficulty is greater 122 Arg. 2. Taken from the Agreement of the Laws of the XII Tabb as paraphrased by Jacobus Gothofredus with the practice of the Jews and Doctrine of the Rabbies in several Instances 123 Inst 1. The Law of the XII Tabb allowed Transactions as well as the Jewish Practice 124 Inst 2. Depalmation by the Law of the XII Tabb was punished by a pecuniary Mulct and not by strict Retaliation And this was the Jewish Practice 125 Inst 3. The Law of the XII Tabb de osse fuso vel dentibus excussis appoints pecuniary Punishment and the same was augmented or diminished according to the Quality of the Delinquent which was also the Jewish practice 126 Inst 4. In the Agreement betwixt
It 's declared Deut 19.6 and subsequent Verses to extend also to a false Witness by whose false Testimony the Life or Member of an innocent man should be taken away All these places of Scripture serve to illustrat the above mentioned Description of Retaliation because the very words in the Texts Eye for Eye Tooth for Tooth c. are as so many Examples of the Equality to be observed in Execution of the Law either Literally or Analogically by geometrical Proportion This Law was not a business of private revenge and therefore the executing of it was not committed to the Party injured as some Commentators on Math. 5. vers 38 39 c charge upon the Sadduces nullo enim modo servaret ille modum says Estius in Exod. 21.23 but the Execution was committed to the Magistrat for Deut. 19 17. it's expresly said that both the men between whom the controversie is shall stand before the Lord before the Priests and the Judges which shall be in those Days And all privat Revenge yea even private hatred was expresly forbidden the Jews Levit. 19.17.18 thou shalt not hate thy Brother in thy heart thou shalt not avenge nor bear any grudge against the children of thy people And the Roman Law tot tit C. Ne quis in sua causa permits no man to judge in his own cause except supreme Judges 3. This Law of Retaliation with many others of the Jewish oeconomy was transmitted to the Gentile Nations and particularly to the Grecians who were the most learned and polite of all others but it is not agreed upon neither as to the manner how nor the time when the Grecians received them Dan. Huetius in his Book intituled Demonstratio Evangelica prop. 4. cap. 8. n. 2. cites Authors who say they might have received them from Cadmus and Danaus who being contemporaries with Moses were forc'd to fly from their own Country of Aegypt and sheltered themselves among the Grecians and taught them those Laws And he dict prop. cap. 11. insists at large upon the transmission of these Laws to the Grecians by the Syrophenicians but Authors whom he cites do not agree about the time Some think it was when the Syrophenicians fled from the Sword of Joshua invading their Country others think that the Syrophenicians themselves had never learned these Laws before Solomon sent many thousands of his People to provide Materials for the building of his Temple 1 King 6. But the Grecians had the Law of Retaliation long before this time if credit may be given to the Pythagoreans who as Aristotle says lib. 5. Ethic. cap. 5. ascrib'd this Law to Rhadamanthus King of Lucia as its Author in these words Quod quisque fecit patitur autorem scelus repetit suoqu◠premitur exemplo nocens I say it must be older than Solomon if Rhadamanthus enacted it for Turselinus in his Epit. Hist makes him contemporary with Joshua and according to Huetius dict c. 8. N. 12. he was the same with Moses Calvisius Helvicus and Nauclerus calculat him to be about the same time But Diod. Sicul. lib. 12. ascribes the Law for the Eye Si quis oculum eruerit oculum reo pariter eruito to Charondas King of the Locrians surnamed Thurius because he gave Laws to the Thurians or Tyrians Tiraquel in his Notes on Alex. ab Alex. lib. 6. dier genial c. 10. and then as to that particular Member the Law was of a later date But leaving these Chronological Inquiries because the Heathen Histories of these times from which they are taken are very uncertain according to the learned Stillingfleet Orig. Sacr. cap. 1. in fin It 's enough for our design that we find the Law of Retaliation among the Grecians and no man will deny this who reads Aristotle dict l. 5. Eth. cap. 5. Demosth in Timocr Diog. Laert. lib. 10. And Huetius dict prop. 4. C. 11. p. 161. is positive that the Law of Retaliation was one of the Laws which descended from the Jews to the Grecians transmitted by them to the Romans in the XII Tables l. 2. § 44. ff de orig jur anno V.C. 300. whereby it is agreed that it was a Law anciently among the Grecians and that they honoured it for its equity by ascribing the general Law Quod quisque fecit patitur to Rhadamanthus and the particular Law Si quis oculum eruerit to Charondas both fam'd for their Equity and Justice as Virgil. Aeneid lib. 6. and the Mythologists testify of the first and Val. Maximus testifies of the last lib. 2. cap. 5. but by instancing a Heathenish piece of Courage Conclus 4. This Law of Retaliation is founded upon natural Equity which consists in observing equality between the Crime and Punishment This I prove by the following Arguments Argum. 1. Common censent of all Nations in the receiving a Law is a good Argument for its natural Equity and all Nations have agreed to receive this Law This we have already showen as to the Grecians and Romans N. 105. supra As for other Nations their receiving this Law of Retaliation see Dempst lib. 9. Rosin in paraleip p. 940. Cujac lib. 7. observ cap. 13. P. Aerodius rerum judicat lib. 6. tit 5. de injur c. 20. Forner lib. 3. select cap. 28. Faber lib. 3. Semest cap. 19. and Covaruv var. Resolut lib 2. cap. 9. Moreover the Authors of particular Texts in the Roman Law are positive in this point of natural Equity as Vlpian in l. 1. ff quod quisque juris who there says Quis aspernabitur idem jus sibi dici quod ipse aliis dixit And the foresaid Joannes Suarez dict cap. N. 7. says that he believes the Praetor introduced the Law of Retaliation against the Magistrat who contrary to his duty decerned unjustly and therefore an anonymus German in his Book intituled Jus ff illustratum inscribes his Notes upon that Title in these words De jure talionis sive retorsionis See Maranus Cujacius his Scholar on the same Title And S. Cacilius apud A. Gell. lib. 20. c. 1. disputing for the Equity of the Law of Retaliation in the XII Tables against Phavorinus has these words Quae obsecro ista est acerbitas si idem fiat in te quod tute in alios feceris Arg. 2. It 's natural Equity is asserted by many great Authors as by S. August lib. 21. de Civit Dei Cap. 11. Expostulating with the Gentiles who laboured from the natural Equity of this Law to confute the belief of Eternal punishment as if it had been disproportional to a temporal Sin not knowing that the Sin was measured from its being against an Eternal Majesty Infinite in Justice Of this Opinion also are Gratian in C. paenas 14. qu. 1. in C. sex differentiae 23. q. 3. Tertul. lib de patientia cap. 6. Origines homil 10. in Exod D Ambros lib. 1 officior cap. 48. D. Valerianus in serm de bono disciplina S. Isiodorus pelusiota lib. 2. Epist 133. Abulensis in
Judaico l. 6 cap. 12. And Valens the persecuting Arian Emperour may be adduced as another Example who having burnt fourscore Orthodox Christians coming from Constantinople to Nicom diâ— unto him humbly to plead their Cause was himself at last burnt in a little Couage where he had hid himself when flying from the Goths Socrat. Hist. Eccl. l. 4. c. 3. And some later Examples are recorded by Camerarius in his Historical Meditations cap. 98. After all which Proofs the natural Equity of this Law is not to be doubted so that the Deists who object this Law as a foolish and unjust Law to refell the authority of the Books of Moses may see that the Gentile Nations have honoured this Law if credit may be given to the best humane Authority which if the Deists reject as often they do for supporting their Cause they will not be able to prove who are their Fathers and so may after their death lose the Right of Succession Conclus 5. Tho' it be proved that Retaliation is founded on natural equity and so is immutable yet nevertheless it will not follow that it must always be executed according to an Arithmetical Identical or Pythagorical Proportion that is to say by taking Eye for Eye in a literal sense which Aristotle says the Pythagoreans maintained but its sufficient for satisfying the Law of natural equity that the punishment be executed according to a proportion Geometrical Analogical or Aristotelical that is to say by paying of an equivalent according to time place person and other Circumstances attending the commiting of the Crime This I shall prove by several Arguments viz. Argum. 1. From the practice of the Jews who may be admitted to clear the sense of a Political Law of their State because they were the first Receivers of it and they neither did nor in all cases of Bodily Injuries could observe any other but Geometrical Proportion For as it appears by the Particulars following 1. In many Cases it was impossible to take Retaliation as in the Example Exod. 21.22 of a Woman who by a Hurt given to her by mens striving together makes an Abortion or parts with an inanimat Child the man could not be punished by a Pythagorical Retaliation but a Sum of Money succeeded in place of Punishment by the words of the Text. In like manner there could not be a Pythagorical Retaliation in Injuries done to the Body by Rapes and Adulteries and therefore when Sampsons Father in Law with concourse of the Philistines took his Wife from him and gave her to his Companion Sampson did not take their Wives and bestow them upon others according to the literal sense of the Law of Retaliation but he as a Judge and Ruler in Israel having power to take Revenge for Injuries done to the Person and Honour of his Wife compensed them by burning of their Corn with their Vineyards and Olives c. Judg. 15.5 Yet nevertheless he excuses his taking revenge in words declaring it to be Retaliation saying vers 11. AS they did into me SO have I done unto them 2. The Law of Retaliation did not hinder the Jews to transact for the Injuries done to their Persons except Death was the Consequence of the Injury and this is inferred from Gods prohibiting Transactions simply in the case of Homicide Numb 33.31 ye shall take no ransom for the life of a Murderer So Ainsworth on Exod. 21.25 infers Josephus Antiqu. lib. 4. cap. 46. gives the Flection to the Pursuer whither he will have the Fine or the reciprocal Punishment but Ainsworth a man well versed in Rabbinical learning observes no such thing out of Maimonides whom he adduces to prove their custom of transacting And this serves to vindicat the practice of the Justice Court where such transactions are judicially allowed as we shew among the Defences N. 74.77.78 79. supra which prove that these kind of Injuries are but privata delicta wherein the Publick is not concerned 3. For the same Reason viz. That Paction or Transaction was allowed to the Jews tanquam in delictis privatis their Judges never did nor were they obliged to enquire in these Crimes And this is inferred from Deut. 19.17 18. where it 's said That both the men between whom the controversie is shall stand before the Lord before the Priests and the Judges which shall be in these days and then but not till then it s said the Judges shall make diligent inquisition This is another of Ainsworths Observations and it agrees with the Civil Law and our practice mentioned dict N. 79. supra 4. If the Party injured did apply to the Judge and insisted to have the Pain of Retaliation inflicted yet even in that Case the Judge was not always oblig'd to inflict it according to the words of the Law but was to enquire into the circumstances of time persons place age of the Delinquent as also his strength to undergo the Punishment without the loss of his Life for a sickly man by the loss of his Hand might lose his Life likewise the taking away the Eye of a Monoculus or the Hand of a Delinquent who had but one would be harder to him than what he had done to one having two Eyes or two Hands the Judge was also to consider whether he was pursuing or defending when the Crime was committed and according to these and other Circumstances he was to punish or not punish to highten or lessen the Punishment as he should think fit ex gr though the Rule of Retaliation foresaid in Hurts be only simple Retaliation Stripe for Stripe yet the single smiting of Father or Mother was punished with Death Exod. 21.15 And on the other Hand if a Master smite out the Eye or Tooth of his Man-servant or Maid-servant the Master was not punished with pulling out of his Eye or Tooth but the Servant obtain'd his Liberty as a thing more profitable for him Exod. 21.26 27. Also if a Magistrat do smite a Beggar it 's not to be punished as a Beggar 's smiting a Magistrat with Amputation of a Hand or some greater Punishment As to which Cases read Cajetan and Willet their Commentaries on Exod. 21.24 25 26. All which being considered it could not be easie to fix upon a Case wherein simple Retaliation could be exactly inflicted by the Jewish Magistrats in a literal sense All this agreeth to the Practice of other Nations and if we were not here restricted to speak of Personal Injuries done to the Body we could give many instances in the Jewish Law wherein Pythagorical Retaliation was not observed particularly in Theft Exod. 21.1 5. where the Thief was to restore somerimes the double sometimes four-fold and sometimes five-fold 5. When the Pursuer and Defender among the Jews were persons of equal Quality and otherwise equally Circumstantiated and the case it self plain and free from aggravating Circumstances which is the only difficult Case and seems to be the very Case that Josephus speaks of