Moses and Aaron

Et potis es nigrum, vitio præfigere Theta.

Τ was a token of absolution; Α, of ampliation. Others signified condemnation, by giving a black stone; and absolution by giving a white stone.

Mos erat antiquis, niveis atrisque lapillis,Hos damnare reos, illos absolvere culpa.Ovid. Metamorph. 15.

To this there seemeth to be allusion, Rev. 2. 17. To him who overcometh I will give a white stone; that is, I will absolve and acquit him in the day of judgement.

Note these three phrases, ἀναστῆναι είς κρίσιν, To rise up to judgment; ἀναστῆναι ἐν κρίσει, To rise up in judgment; ἐξελθεῖν καταδεδικασμένος, To depart guilty. The first is applied to the Judge in the execution of Justice, When God rose up to Judge, Psalm 76. 10. that is, to execute judgement. The second is applied to the party prevailing in judgment. The men of Nineveh shall rise up in judgement with this generation, Mat. 12. 41. that is, shall be justified before this generation. The last is applied to the party condemned, Psal. 109. 7. Let him depart guilty or wicked: the ungodly shall not stand in judgment, Psal. 1. The like phrases were in use among the Romans, Stare in Senatu, to prevail in the Senate; Causa cadere, to be cast in ones suit. But these phrases among the Romans I think to have been taken out of their Fence-Schools, where the set posture of the body, by which a man prepareth himself to fight and grapple with his enemy, is termed Status, or Gradus, as cedere de Statu, to give back; Gradum vel statum servare, to keep one’s standing: and from thence have those elegancies been translated into places of Judgment.

CHAP. IV.

The number of their Civil Courts

Their Civil Courts were two, ‎‏סנהדרים גדולה‏‎ Sanhedrim gedola, the great Consistory, or Supreme Senate, ‎‏סנהדרים קטנה‏‎ Sanhedrim Ketanna, the lesser and inferiour Court. Thus I find them divided generally by the Rabbins: And although the latter was subdivided, as will after appear; yet in old time there were onely two first branches: which division our Saviour Christ seemeth to have followed, calling the lesser Court κρίσιν, by the name of Judgement: the greater συνέδριον, by the name of a Counsel. Whosoever is angry with his brother unadvisedly, shall be culpable of Judgement. Whosoever saith unto his brother Raca, shall be worthy to be punished by the Counsel: Whosoever shall say Fool, shall be worthy to be punished with the fire of Gehenna, Mat. 5. 22. In which words, as there is a gradation of sin, 1. Anger, a passion of the mind. 2. Raca,537 scornful, or slighting speech, as Tut, Tush, &c. 3. Fool, reproachful and opprobrious names: so likewise there is a gradation of punishment. 1. Judgement, a lesser Court. 2. Councel, the greater Court. 3. The fire of Gehenna: Now Gehenna was a Valley, terrible for two sorts of fires in it: First, for that wherein men burnt their children unto Moloch.538 Secondly, for another fire there continually burning, to consume the dead carcasses, and filth of Jerusalem; partly for the terribleness of the first, and partly for the contemptibleness of the place by reason of the second fire, it was a type of hell fire it self. We may resolve that text thus, anger deserved the punishments of the lesser Court; Raca, the punishments of the greater: and Fool deserved punishments beyond all Courts, even the fire of Gehenna.

The greater Court, by way of excellency, was called the Sanhedrim, which word came from the Greek, συνέδριον, a place of Judgement: It was also called ‎‏בית דין‏‎ Beth din, the house of Judgment.539 It was distinguished from the other Courts; first, in respect of the number of the Judges, which were seventy one, according to the command of God to Moses at their first institution, Numb. 11. 16. Gather unto me seventy men of the Elders of Israel, whom thou knowest that they are the Elders of the people, the Governours over them, and bring them unto the Tabernacle of the Congregation, and let them stand there with thee. From the latter words of this Text, it is observed, that there were seventy besides Moses; and therefore after his decease they alwaies chose one chief Judge in his room, not reckoning him among the seventy; they called him Nasi, the Prince or chief over the seventy. These seventy are thought540 to be chosen six out of every Tribe, save the Tribe of Levi, out of which only four were chosen. Others think541 the manner of their choice was thus; six of every Tribe had their names written in little scrolls of paper: in seventy of these scrolls was written ‎‏זקן‏‎ Zaken, Senex, an Elder, in the two other ‎‏חלק‏‎ Cheleck, pars, A part; these scrolls they put into a pitcher or urn, and those that pluck’d out a scroll wherein Elder was written, were counted amongst the number of the Judges; those that pluck’d out the other scrolls, in which a Part was written, they were rejected, Numb. 11. 26. The senior of these seventy was called ‎‏אב בית דין‏‎ Ab beth din, the Father of the Judgment Hall. The whole Set542 or Bench of Judges, sate in manner of an half circle, the Nasi sitting in the midst above the rest, the other sitting round about beneath, in such manner that the Father of the Judgement Hall sate next to the Nasi on the right hand. The lesser Consistory was subdivided into two sorts, one consisted of twenty three Aldermen, and two such Consistories there were in Jerusalem, the one at the door of the Court before the Temple, the other at the door of the Mountain of the Temple: yea, in every City throughout Israel where there were sixscore housholders, such a Consistory was erected: the other sort of lesser Courts consisted only of a Triumvirate, three Aldermen; and this was erected in the lesser Cities, which had not the number of sixscore housholders.

The second difference543 between the greater Consistory and the lesser, was in respect of the place. The seventy sate only at Jerusalem, within the Court of the Temple, in a certain house called ‎‏לשכת הגזית‏‎ Lischath hegazith, the paved Chamber, because of the curious cut stones wherewith it was paved: by the Greeks it was called λιθόστρωτον, the Pavement. Pilate sat down in the Judgement Seat, in a place called the Pavement, John 19. 13. The other Consistory sate all in the gates of the Cities. Now because the gates of the City are the strength thereof, and in their gates their Judges sate: Hence is that, Mat. 16. 18. The gates of Hell shall not overcome it, that is, neither the strength nor policy of Satan.

Lastly, they differed in respect of their Power and Authority: the Consistory of seventy received appeals from the other inferiour Courts,544 from that there was no appeal: Again, the Consistory of three sate not on life and death, but onely on petty matters, as whipping, pecuniary controversies, and such like; the other of twenty three sate on life and death, but with a restrained power; they had not authority to judge an whole tribe, the High-priest, false Prophets, and other such weighty matters: this belonged only to the seventy in Jerusalem:545 Hence is that, O Jerusalem, Jerusalem, which killest the Prophets, Luk. 3. 34. The means how they tryed the false Prophet was thus; they observed the judgements which he threatned, and the good which he prophesied to a place: if the judgements took not effect, this did not argue him a false Prophet, because God was merciful, as in the case of Hezekiah, and the people might repent, as the Ninivites did: but if he prophesied good, and that came not to pass, they judged him a false Prophet. The ground of this tryal they make the words of Jeremiah the Prophet, which prophesied of peace when the word of the Lord shall come to pass, then shall the Prophet be known that the Lord hath truly sent him, Jer. 28. 9.

The Colledge or company of these seventy, exercised judgment, not only under the Kings and Judges,546 but their authority continued in times of vacancies, when there was neither Judge nor King to rule Israel, and it continued until547 Herod put them down, and destroyed them, to secure himself of the Kingdome.

Here some may object, that there were no such Courts, or their liberty much infringed in Samuels time: for he went from year to year in circuit to Bethel, and Gilgal, and Mizpeh, and judged Israel in all those places, 1 Sam. 7. 16. To which, I take it, we may say, that as the Emperours of Rome had power to ride Circuits, and keep Assises, which was done without any infringement of the liberties of their Senate: So the Kings and Judges in Israel had the like power, and yet the authority of their Courts stood firm. This kind of judging by keeping Assises, the Romans termed βουλὴν κυρίαν, the other βουλὴν σύγκλητον.

CHAP. V.

Properties required in Judges, and the manner of their election

The Law of God required these properties in Judges: 1. Wisdom. 2. Understanding. 3. Integrity. 4. Courage. Deut. 1. 13. Others are reckoned, Exod. 18. 21. namely, 5. The fear of God. 6. Love of Truth. 7. Hating of coveteousness: to these may be added the eighth, namely, having no respect of persons, Deut. 1. 17. These two last especially, the Heathens required in their Judges: whence the Thebans548 painted Justice without hands, and without eyes, to intimate that Judges should receive no gifts, nor be swayed with sight of persons.

The Jews549 added many more. 1. That they should be free from all blemish of body. 2. That they should be skilled in the seventy Languages, to the intent that they might not need an Interpreter in the hearing of Causes. 3. That they should not be far stricken in years; which likewise was required by the Romans in their Judges, as appeareth by that common adage, Sexagenarius de ponte. 4. That they should be no Eunuchs, because such commonly were cruel. 5. That they should be Fathers of children, which they thought was a special motive to mercy. 6. That they should be skilful in Magick, without the knowledge of which, they were not able to judge of Magicians.

That there might be a sufficient supply of able men to succeed in the room of the Judges dying, there sate550 three benches of others beneath, whom they called551 Talmidi Chacamim, Scholars of the wise men: out of these they made their Election, and two of these always accompanied the condemned person to the place of execution.

Their Inauguration of Judges was two fold: At first, by imposition of hands upon the head of the party, after the example of Moses laying hands on Joshua: this imposition of hands was not held lawful,552 except it were in the presence of five or three Judges at the least. Afterwards, it was by saying a certain verse553 Lo, thou art associated, and power is given thee to judge of penalties. Hence is that saying of Galatinus out of the Talmud, Institutio Judicum, aut manu fiebat, aut nomine tantum.

Observe here, that Samuc, which I render associated, doth not alwayes signifie a man licensed to the discharge of some publik office by the imposition of hands; for here it is applied to those who were not admitted by imposition of hands. Now the reason why these words Semica, and Semicuth, are generally by all Expositors, Jews and Christians, translated the imposition of hands, is, because this solemn kind of licensing, termed Semica, or Semicuth, was in old time used only towards two sorts of men in their admission, towards Rabbies and towards Judges; which kind of permission, because it was not performed towards either of them without this ceremony of imposing hands: hence these two words have been translated the imposition of hands; whereas properly they signifie nothing else, but an association, an approximation, or conjoyning of one into the same corporation or company, of which he that doth associate and give admission is a member.

CHAP. VI.

Ceremonies common in all capital Judgments

In their greater punishments, which deprived of life, some ceremonies were common to them all.

First, The Judges were to use deliberation in all causes, but especially in matters capital. There were four causes, saith Jonathan in his Targum,554 that came before Moses ( he mentioneth none in particular, but what they were, we shall presently learn out of other records.) Two of these were not weighty; in these he hastened: Two more material, concerning life and death; in these he delayed.555 Cæterum tam de his quam de illis dicebat, Non audivi; Of both the lighter and weightier causes, Moses said I have not heard, to wit, from the Lord: to shew, that a deliberation and consultation as it were with God, ought to be in all judgements, before sentence be pronounced. These four causes are named in other Records:556 The two lightest are, 1. The matter of uncleanness debarring the people from the Passover, Num. 9. 9. Secondly, the case of Zelophehads daughters, Num. 36. 10. The 2 weightier are, 1. The cause of the blasphemer, Lev. 24. 13. Secondly, The case of him that gathered Sticks on the Sabbath, Numb. 15. 35. In all these judgments there is, The Lord spake unto Moses. And in the first, which was counted among the lighter causes (because it was not on life and death) even there doth Moses in a solemn manner bespeak the people to stand still, Et ego audiam, And I will hear what the Lord will command. Notwithstanding, wilful delays in Justice maketh the Judge unrighteous. In that unrighteous Judge, from whom the Widow wrested sentence by importunity; we read not of any other fault in him, but delay, Luke 18. 6.

Secondly, The party accused was placed on some high place, from whence he might be seen and heard of all the people: Set Naboth, in capite populi, on high among the people, 1 Kings 21. 9.

Thirdly,557 The Judges and the Witnesses did (when sentence was pronounced) put their hands upon the condemned persons head, and said; Sanguis tuus super caput tuum, Thy blood be upon thine own head: unto this the people had reference, saying, His blood be on us, and on our children, Mat. 27. 25.

Fourthly, The place of execution was without the gates, the malefactors were had thither by two Executioners, termed by the Rabbines558 ‎‏חזני הכנסת‏‎ Chazani hacceneseth, Spectators of the Congregation, which is a periphrasis of those whom S. Mark calleth σπεκουλάτωρες, Mark 6. 27. which word, though it be used by the Greeks and Chaldee Paraphrasts,559 yet it is a meer Latine, derived à speculando; because in the Court the Executioners were only Spectators, to behold and attend what the Judges would command them.

Fifthly, When the malefactor was led to execution, a publick cryer went before,560 saying, Such a one is going to be punisht with such a death, because he hath committed such, or such an offence, at such a time, in such a place; and these N. N. are witnesses thereof: If any therefore knoweth any thing which may do him good, let him come and make it known. For this purpose one was appointed to stand at the door of the Consistory, with an handkerchief or linnen cloth in his hand, that if any person should come for his defence, he at the door swinged about his handkerchief, upon the sight whereof, another standing in readiness a pretty distance off with an horse, hastened and called back the condemned person: yea, if the Malefactor had any further plea for his own purgation, he might come back four or five times, except he spake vainly; for the discerning whereof, two of those whom they termed Scholars of the wise men, were sent with him to observe his speech on the way.

Sixthly, He was exhorted to confess, that he might have his portion in the world to come: Thus Joshua exhorted Achan, Josh. 7. 19. My son, give I pray thee glory unto the Lord God of Israel, and make confession unto him: unto whom Achan answered, vers. 20. Indeed I have sinned against the Lord God of Israel, and thus have I done.

Seventhly, In the time of execution, they gave the Malefactor Granum thuris in calice vini, A grain of Frankincense in a cup of Wine:561 this they did give to cause a giddiness in the condemned persons head, that thereby he might be less sensible of the pain. St. Mark calleth this cup ἐσμυρνισμένον οἶνον, Wine mingled with Myrrhe, Mark 15. 23. This was done after the manner of the Jews, but the Souldiers in mockery mingled Vinegar and Gall with it, Mat. 27. 34. As likewise they gave him a second cup in derision, when they took a spunge, and filled it with Vinegar, and put it on a reed, Matth. 27. 48. S. Mark in the first cup mentioneth the custome of the Jews, which in it self had some shew of compassion; for the ground of this custom was taken from that, Prov. 31. 6. Give strong drink unto him that is ready to perish. S. Matthew mentioneth onely their wicked mixture, contrary to the receiv’d custom; so that one Evangelist must expound the other. This first cup was so usually given before execution, that the word Calix a cup, is sometimes in the Scripture put for death it self. Father, if it may be, let this cup pass from me.

Lastly,562 The Tree whereon a man was hanged, and the Stone wherewith he was stoned, and the Sword wherewith he was beheaded, and the Napkin wherewith he was strangled, they were all buried, that there might be no evil memorial of such a one, to say: This is the Tree, this is the Sword, this is the Stone, this is the Napkin, whereon, or wherewith, such an one was executed.

CHAP. VII.

Their capital punishments

The Jews of old had only four sorts of death563 in use among them. 1. Lapidatio,564 stoning. 2. Combustio,565 burning. 3. Decollatio,566 beheading. 4. Suffocatio,567 strangling. Of these, stoning was counted the most grievous, burning worse than beheading, beheading worse than strangling, and strangling was the easiest of all.

They have a rule,568 that wheresoever the Scripture saith of an offender, Morte plectetur, he shall be punish’d with death, not expressing the kind of death, there it ought to be interpreted of Strangling. For example, the Law saith of the Adulterer, Lev. 20. 19. Morte plectatur, let him be punished with death: because the kind of death is not here mentioned, they interpret it strangling. The reason of this rule is, because strangling was the easiest death of the four; and where the Law determineth not the punishment, there they say, Ampliandi favores, The favourablest exposition is to be given.

The rule is not generally true; for in former times Adultery was punish’d with stoning. I will judge thee after the manner of them that are Harlots, saith the Lord, Ezek. 16. 38. And in the fortieth verse the judgment is named, They shall stone thee with stones: likewise the Scribes and Pharisees said unto Christ, Moses in the Law commanded us, that such should be stoned, John 8.

Before we treat in particular of these four punishments it may be questioned, Whether the Jews had any power to judge of life and death, at that time when they crucified our blessed Saviour? The Jews said to Pilate, Is it not lawful for us to put any man to death; Joh. 18. 31. Latter Jews say569 that all power of capital punishments was taken from them forty years before the destruction of the second Temple, and of this opinion are many Divines.

Answer. First, the Jews speech unto Pilate, that it was not lawful for them to put any man to death, cannot be understood, as if they should have said, we have no power to put any man to death; for admit, that power in criminals were, in the general, taken from them, yet in this particular power was permitted them at that time from Pilate, Take ye him, and judge him according to your Law, Joh. 18. 31. Neither can it be said, that their Law could not condemn him, if he had been a transgressor thereof; or that they had not out of their law to object against him: for they say, They had a law, and by their law he ought to die, John 19. 7. It was not then want of Power, but the holiness of that time, made them say it was unlawful. For they held it unlawful upon their days of preparation to sit on life and death, as hath been shewn in the Chapter of translating Feasts. And Friday, on which our Saviour was condemned, was the preparation of their Sabbath.

Secondly, in the questions, whether power of judging capital crimes were taken from them by the Romans? We are to distinguish between crimes. Some crimes were transgressions of the Romans law, as theft, murder, robberies, &c. power of judging in these was taken from them: other crimes were transgressions only against the law of Moses, as blasphemy, and the like: in these, power of judging seemeth to have remained with them. When Paul was brought by the Jews before Gallio, Gallio said unto them, if it were a matter of wrong or wicked lewdness, O ye Jews, reason would, that I should bear with you: but if it be a question of words, and names of your law, look ye to it, Acts 18. 14.

In handling these four punishments: First observe the offenders, whom the Jews make liable to each punishment, and then the manner of the punishment.

The persons to be stoned were eighteen.570 1. He that lieth with his own mother, 2. Or with his fathers wife, 3. Or with his daughter-in-law, 4. Or with a betrothed maid, 4. Or with the male, 6. Or with the beast. 7. The woman that lieth down to a beast. 8. The blasphemer. 9. He that worshippeth an Idol. 10. He that offereth of his seed to Moloch. 11. He that hath a familiar spirit. 12. The Wizard. 13. The private enticer to Idolatry. 14. The publique withdrawer to Idolatry. 15. The Witch. 16. The prophaner of the Sabbath. 17. He that curseth his Father or his Mother. 18. The Rebellious Son. The manner of stoning was thus: The offender was led to a place without the gates, two cubits high, his hands being bound: from hence one of the Witnesses tumbled him by a stroke upon the loins; if that killed him not, the Witnesses lifted up a stone, being the weight of two men, which chiefly the other Witnesse cast upon him; if that killed him not, all Israel threw stones upon him. The hands of the Witnesses shall be first upon him to put him to death, and afterwards the hands of all the people, Deut. 17. 7.