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A56633 A commentary upon the second book of Moses, called Exodus by the Right Reverend Father in God, Symon, Lord Bishop of Ely. Patrick, Simon, 1626-1707. 1697 (1697) Wing P775; ESTC R21660 441,938 734

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if it were formed than Life was to be given for Life So that this whole Law is to be understood of an Abortion and according to the condition of the Abortive not the Life or Death of the Mother so the Punishment was to be inflicted And thus Philo takes it and hath a large Discourse upon it See Selden L. IV. de Jure N. G. c. 1. p. 464. and Constantin L'Empereur in Bava kama p. 200 c. Ver. 24 25. Eye for eye tooth for tooth c. These and all the rest that follow to the end of the 25th Verse the Hebrews understand to signifie Pecuniary Mulcts as may be seen in their Comments upon this place And Maimonides gives three Reasons for it which L'Empereur takes notice of and indeavours to confute in his Annotations upon Bava kama p. 187 c. 198 c. But after all there seems to be a great deal of reason at least in many Cases to admit of a Compensation As in that mentioned by Diodorus Siculus L. XII where the one-eyed Man complained of this Law which was among the Heathen as too rigid for if he lost the other Eye he should suffer more than the Man whom he injured who had still one Eye left Upon such Considerations Phavorinus argues against this Law which was one of the XII Tables as not possible to be justly executed according to the very Letter of it For the same Member of the Body is far more valuable to one Man than it is to another For instance the right Hand of a Scribe or a Painter cannot be so well spared as the right Hand of a Singer And therefore the Law of the XII Tables concerning Taliones Like for Like was with this Exception Ni cum eo pacit That is if he who had put out a Man's Eye or taken away the use of any other Member would not come to an Agreement de talione redimenda to make him Satisfaction and redeem the Punishment he was to suffer in the very same kind So Sex Caecilius expounds it in Aulus Gellius L. XX. c. 1. Ver. 26. If a man smite the eye of his servant or the eye of his maid c. It is but reason that this should extend to all Servants though of another Nation not meerly to those who were Jews And so Maimonides seems to allow when he saith This is a Precept of Piety and Mercy to poor Wretches who should not be any longer afflicted with Servitude when they have lost a Member of their Body More Nevoch P. III. c. 41. And therefore the common Resolution of their Doctors is very cruel That Gentile Servants whom they call Canaanites who were not Circumcised should not have the benefit of this Law For they thus distinguish Servants of another Nation Some were Circumcised and Baptized others still remained Gentiles or were only Proselytes of the Gate The former kind might be set free three ways by being Redeemed by a Price paid by themselves or any Friend by Manumition and by virtue of this Law upon the Loss of any Member For though only an Eye and a Tooth be here mentioned yet herein are included all the rest of the principal Members of the Body which being mutilated cannot be repaired which they reckon to be Four and twenty in all If they did not dismiss such a Servant thus maimed the Court of Judgment upon an Appeal to it compelled them to give him his Liberty with a Certificate of it But the second sort of Gentile Servants could be made free only be the two first ways having no benesit according to this Doctrine by this third way here mentioned See Selden L. VI. de Jure N. G. c. 8. But Heathens themselves were more merciful than these Doctors for the Civil Laws as L'Empereur observes upon Bava kama cap. 8. sect 3. made better provision for Slaves when they were hardly used Ver. 27. And if he smite out his man-servants tooth c. The loss of a Tooth was not so great as that of an Eye yet to prevent Cruelty God ordained a Master should lose the Service of his Slave for so small a loss as this Ver. 28. If an Ox gore a man or a woman that they die then the Ox shall be surely stoned This was not a Punishment to the Ox as the Sadducees saith Maimonides cavil against us but to his Owner who was admonished hereby to look better after his Cattle For which reason also the Ox was not to be eaten More Nevoch P. III. c. 40. And his flesh shall not be caten Because God would have the Owner intirely lose all benefit by it as Maimonides interprets it And so Josephus L. IV. Arctaeol c. 8. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. It was not permitted to be so much as profitable to him for his Nourishment And the Hebrew Doctors say that if a Man eat so much as the Bigness of an Olive of this Flesh he was to be Scourged By this means both he and others were admonished to be more careful and cautious And God also declared how heinous the Crime of Murder is the Punishment of which in some sort reached even unto Beasts which were therefore also stoned when they had killed a Man that no more might be in danger of their Lives by them Some think its Flesh therefore could not be eaten because being stoned it was a Carcase whose Blood was in it But Maimonides answers to this in his Treatise of forbidden Meats that the Scope of the Law is that as soon as the Sentence for its being stoned was pronounced it became unclean Nay if a Man to prevent this Sentence killed it after a legal manner no Man might eat a Bit of it And when it was stoned the Flesh was neither sold nor given to the Gentiles nor to the Dogs c. as Bochart obobserves L. II. Hierozoic P. I. c. 40. The same Maimonides in his Treatise of Pecuniary Mulcts rightly extends this Law to other Creatures whether Beasts or Birds that any Man kept as L'Empereur observes upon Bava kama cap. 4. sect 5. And Plato I observe hath the very same Law that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. if an Ox or any other Animal kill a Man except it were in the Publick Combats the Officers called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that were set over their Fields were to kill it and throw it out of their Territories 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. IX de Legibus p. 873. But the owner shall be quit The loss of his Ox was all his Punishment And if the Ox did not kill the Man but only wounded him in that case the Owner was obliged to make him such a Compensation as the Judges thought equal and to take care the like hapned not again Ver. 29. But if the Ox were wont to push in time past and it hath been testified to him c. In the former case the Owner was only punished with the loss of his Ox it being the first