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reason apparently similar to this last, rules announced before, forbidding the sowing of different kinds of seed together, and the wearing of a garment of peculiar fabric, are here repeated;* and another resembling them, is added, against ploughing with a yoke of animals of different species. To give a reasonable indulgence to way-farers on the one hand, and on the other, to prevent its being presumed upon too far, they are permitted to satisfy their hunger in a vineyard, but to carry no fruit away, and to gather with the hand in a field of standing corn, but not to put in a sickle.f The exact limitation of the right in the latter case, is not obvious to us; the words, in this connexion, had probably an idiomatic, or conventional sense, which we have no means to recover. The manner of affixing to the dress the national badge, prescribed in a previous passage, is now indicated with more particularity.Ş
Finally, we have now before us the subject of the Administration of Law, with all the materials, which the original documents afford, for arriving at correct views concerning it.
The original code had contained precepts touching the respect due to public office, and the integrity and caution to be exercised in the execution of that trust; the magistrate being even forbidden to receive a present, lest, discerning and well-intentioned as he might be, it should insensibly bias his judgment.|| In the discourse in Deuteronomy, Moses, directing the institution of a magistracy in the several cities, so that there shall not need to be a delay of justice for any citizen, goes on to man-stealing ;* violence and insult offered to parents;t and neglect to secure a vicious animal if it should take a citizen's life. To this list, some additions are made in the compend in Deuteronomy ; viz. false pretension to the character of a divine messenger;ġ unchastity before marriage, when charged by a husband ; || stubborn and irreclaimable profligacy, when complained of by parents; I and opposition to the decree of the highest judicial authority, ** that being a definite form of
* Deut. xxii. 9, 11; compare Lev. xix. 19; p. 292. .“ Lest the fruit of thy seed .... be defiled” (9); rather, consecrated, i. e. confiscated as the punishment of the offence. † Deut. xxii, 10.
| xxiii. 24, 25. xxii. 12; compare Numb. xv. 38. | Ex. xxii. 28; xxiii. 6-8.
* Ex. xxi. 16.
# Ex. xxi. 15, 17; Lev. xx. 9. Ex. xxi. 28–31. — In this case, unlike the killing of one man by another (Numb. xxxv. 31), a pecuniary composition might be made, and the life of the animal's owner be ransomed. The reason is clear. A man's life never would be safe, if the assassin might secure impunity by a compromise with his nert of kin, who, perhaps, as his heir, might be the very person whom his death would most oblige. In the case of an unconscious animal being the agent, of course there was no such danger to be guarded against, and the owner was punished sufficiently for his neglect, in being compelled to purchase his life on the best terms he could make. If the animal had not been known to be vicious before, he only suffered the loss incident to its being stoned, (so that it might do no further injury,) and to his not being permitted to use its meat. (Ex. xxi. 28.) Again; the killing of a slave by such an animal did not involve its own. er's death. He was amerced (32) in the value of the animal, which was stoned, and in the specific sum of thirty silver shekels, from which, by the way, we learn what was the estimate of the average value of a slave.
§ Deut. xiii. 1-5; xviii. 20.
|| Deut. xxii. 20, 21. — The place of execution, in this instance, was peculiar; “ the door of her father's house.” Probably the design was to make her fate peculiarly afflicting to him, as a punishment for his want of parental fidelity.
| Deut. xxi. 18-21. This law, instead of conferring new parental prerogatives, was probably, in respect to its requisitions of public legal information (19, 20) and of the mother's being associated with the father in taking such an extreme measure, (an arrangement, the importance of which has been before adverted to, p. 472,) a limitation of rights before existing. In a primitive state of society, the pater-familias is all but despotic. According to some authorities, the Roman father had power of life and death over his child, as late as the time of Adrian. The known existence of the rule under our notice would sustain parental authority (so material an object before other authority was consolidated), while parental feelings would scarcely admit of its being ever executed.
** xvii. 12.
rebellion, or treason. In a few cases, a law of this class, before given, is repeated, in order either to define it more exactly,* or give it a greater comprehension,t or make further provision for carrying it into effect.[
* Deut. xxiv. 7; compare Ex. xxi. 16.
† Deut. xxii. 23-27; compare Lev. xix. 20-22. — The rule here referred to in Leviticus, taking no notice of the case of a free woman betrothed, had ordained, that a female slave, under that engagement, guilty of unchastity, should be scourged, and her paramour be held to present a Trespass Offering. The passage in Deuteronomy makes the offence punishable with the death of both parties, and preserves no distinction between bond woman and free, designing probably that it should no longer, in this particular, be sustained.— One cannot say, on the authority of 25-27, that rape was a capital offence among the Jews. On the contrary, as such, as far as the statute-book is concerned, it was a casus omissus, being regulated probably by consuetudinary or common law. (Compare p. 161.) The verses in question treat the crime precisely on the footing of the adultery spoken of immediately before (23, 24); save only the exemption of one of the parties from the punishment, as not participating in the guilt. — The next two verses repeat and extend the law in Ex. xxii. 16, 17, respecting the liabilities of a seducer. It had there been ordained, that he must offer the reparation of marriage, and make the customary marriage-present to the father, whether he consented to the union or not. The sum, to be thus bestowed, is now specified, and the right of divorce in such a case is declared to have been forfeited. I would prefer to make a new clause in the middle of verse 29, and render thus; “ Should she become his wife (which the father might disallow], because he hath humbled her, he may not put her away” &c.— For the mere repetition in verse 30 of the law in Lev. xviii, 8; xx. 11, no special reason is apparent.
| Deut. xvii. 2-5, compare Ex. xxii. 20; xix. 1-13, compare Numb. xxxv. 9-29, “ Thou shalt separate three cities for thee in the midst of thy land” &c. (Deut. xix. 2); that is, on the west side of Jordan ; com
The directions in verse 3, “ Thou shalt prepare thee a way” &c. (that is, there shall be such roads to the cities of refuge, and they shall be so distributed through the country, as to render them easily accessible, to whosoever shall need their protection) with the further command, “If the Lord thy God enlarge thy coast,
and give thee all the land which he hath promised to thy fathers, (compare Gen. xv. 18,)..... then shalt thou add three cities more for thee, besides these three,” (8,9) constitute all the additions here, to the rule in Numbers. It will not escape observation, that the distinctions made in both passages, (Numb. xxxv. 16 - 23, Deut. xix. 4, 5, 11,) are simply between criminal and justifiable homicides. The division of the former class into manVOL. I.
pare iv. 41.
two forms. When a malicious personal injury had been done to a freeman, it was visited upon the offender by the infliction of the same harm, not in the way of private retaliation, but by judicial sentence. This rule had been prescribed in the early legislation, in a reference to the simplest case, that of personal assault;* in the discourse in Deuteronomy, it is carried out into the equally reasonable application to instances in which the injury had been caused by giving false testimony. Probably we are here to recognise a practice descended from earlier times, it being in accordance with a very simple theory of justice; but it is obvious, that nothing could have been more effectual to secure the essence of a republic, - - to maintain equality, and a sense of equality, among the citizens, - than the knowledge, that, in the eye of the Law, the richest and greatest man's life or limb was of the same worth with that of the meanest.
Corporeal punishment was administered in cases besides those, in which the crime, having consisted in the infliction of bodily harm, admitted of being so retaliated. The calumnious husband, in particular, was to be beaten, in addition to the payment of a heavy fine to the head of the family which he had attempted to disgrace. I In instances, where the discretion of the judge dictated this kind of chastisement,ş it was ad
* Ex. xxi. 23-25; Lev. xxiv. 19, 20.
† Deut. xix. 16-21. — It is likely that this demand would be often compromised, the injured person being induced not to give information ; and then, virtually, the wrong-doer would escape by paying a fine according to his means. | xxii. 13-19.
xxv. 1-3. - I have followed in the text the common view of the last clause of verse 3, though some commentators would render, “lest thy brother be too much injured.” That stripes were not an ignominious punishment, might be argued from xxii. 19; since it would be no satisfaction to an injured woman, to be joined, beyond the possibility of divorce, to
ministered in his own presence, that there might be no opportunity for either too great severity or forbearance, according to the caprice or the interest of underlings; and the scourging was never allowed to be excessive (forty stripes being the limitation of the number), “lest,” it is said, “thy brother should seem vile to thee.” What the mere endurance of such chastisement, in any degree, would now be, in relation to self-respect and the point of honor, it appears that its severity was in that less artificial age.
Punishments, virtually of the nature of Fines, were, under the Jewish institutions, of various sorts. We have seen that offerings, particularly the Sin and Trespass Offerings, are properly regarded in this point of view. * Sometimes a fine, being paid to the person injured, was simply an indemnity for a wrong done. Thus a man, wounded in a fray, could recover of the assailant the expenses of his cure, and an equivalent for the loss of his time; a bodily injury, done to a woman or a slave, must be compensated to the husband, or master; and the loss of an animal must be paid for by him, into whose open pit it had fallen, or whose own animal had destroyed it, except, that, in the latter case, if the offending beast had never been known to be dangerous before, it was to be slaughtered, and, with the other, divided between the two owners.f Sometimes the compensation was made in kind, either simply, as when culpable carelessness was chargeable, but noth
a dishonored husband. Apart from this sense of disgrace (a somewhat arbitrary thing), which, leading to the abandonment of sense of character, has properly caused the exclusion of this punishment from some modern codes, it has its obvious advantages. — A peculiar maiming is prescribed in Deut. xxv.
11, 12, as appropriate to the offence committed. * See pp. 247-251.
† Ex. xxi. 19, 22, 33-36. A great bodily harm to a slave was punished by the forfeiture (26, 27) of all future right to his services.