9. In the preceding instance we had no need to dwell on the meaning and force of the Law of Moses; but to do so in the present instance will not be useless. There are three passages of the Law, to which our Lord might refer: let us set them fairly before us. "If men

[ocr errors]

"strive, and hurt a woman with child, so that her fruit "depart from her, and yet no mischief follow; he shall "be surely punished, according as the woman's hus"band will lay upon him; and he shall pay as the judges "determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for "hand, foot for foot, burning for burning, wound for "wound, stripe for stripe". Exod. xxi. 22, 25. Here though two or more persons are mentioned as striving, or fighting, yet one is distinguished as a culprit, to be tried and punished. We cannot but suppose that the purpose of the trial must be, to determine the evil which the pregnant woman suffered, and the degree of malice, or culpable negligence, which occasioned her sufferings. If "no mischief follow", means probably, if no farther evil attends the attack than is necessarily implied in the nature of the case: then the Judges, with the Husband, are to impose a fine, at their discretion. But if, besides being so terrified as to bring forth prematurely, the woman receives any particular personal hurt, the man who attacked her might be condemned to suffer the same. And, as we must understand the man to be convicted of a malicious intention, or of a total subjection to his furious passion, this punishment cannot be considered as unreasonably severe. The man who strikes a pregnant woman, must be brutally savage; cruel, and cowardly; he injures two human beings at once, and those incapable of making any defence, or resistance.

10. Let us take next the case concerning the false witness. "If a false witness rise up against any man "to testify against him that which is wrong"; "Then "shall ye do unto him as he had thought to have done «C unto his brother". "And thine eye shall not pity; "but life shall go for life, eye for eye, tooth for tooth, "hand for hand, foot for foot". Deut. xix. see from ver. 16 to the end. Here again the crime punished by

retaliation is of no ordinary heinousness. What murder can imply more determined villainy than one by false accusation? how abandoned must that man be, who can pursue a design of taking away the life of an innocent person, in spite of compunction and remorse, through all the forms of judicial evidence!—And what is true of murder is applicable to maiming, in any way, by means of false testimony. Can it be called any cruelty to deprive a man, in a course of justice, and on virtuous principles, intended for the public safety, of any bodily power, of which he had deprived, or endeavoured to deprive, another, in a manner the most iniquitous violating not only personal rights, but all obligations ro justice, humanity, and veracity? acting with a most persevering barbarity, in spite of the most affecting solemnities, the sanction of oaths, and, most probably, the calmness of solitude?

11. We may now look at the third passage, to which Christ might refer in the words before us.

[ocr errors]


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 to him again”. Lev. xxiv. 19, 20. There being only three passages of this sort in the Mosaic Law, and the two former relating to crimes uncommonly flagitious, I feel a prejudice that this third must do the same. Yet the idea of causing a blemish in a man does not immediately excite the same horror with that of striking and wounding a pregnant woman; or with that of deliberately killing or maiming by the hands of a public executioner. It must, however, be considered, that any one accused of causing a blemish must undergo a trial; and that the judges must determine how far the attack was malicious. If we put the case that your neighbour did, from a motive purely malevolent, destroy the natural use of any part of your body; of any of your limbs, or organs of sensation, so as to disfigure you, and leave a mark of deformity for life, there could not surely be any ground of just complaint, were he to lose the same faculty, as a punishment. Your bodily powers are as valuable to you as

his are to him; and by such a law, an offender might be brought to imagine, when he attacked you in any part, that he was in effect attacking himself; which might make him do as he would be done by, better than many arguments.

Had the case admitted of restitution, it is probable that he must have restored manifold; partly for compensation to you, and partly as criminal punishment. According to the sentence pronounced by David; "As "the Lord liveth, the man that hath done this thing "shall surely die: and he shall restore the lamb four"ford, because he did this thing, and because he had no pity". If, in the case of causing a blemish, the punishment of retaliation was suitable to the worst possible sorts of attack, that is sufficient to justify the Law of Moses, in that particular. In the Law of England, a civilized and Christian Country, malicious maiming or disfiguring is punished with death. (Blackstone, Book iv. Chap. 15.)


12. In the book of Genesis it is declared to Noah, "Whoso sheddeth man's blood, by man shall his blood be shed". Gen: ix. 6. Which may either be meant as a foundation of criminal Law, or as a rule of God's providence. Whatever be its true meaning, it relates to all mankind. But the Law of Moses also makes

murder a capital crime. "He that killeth any man "shall surely be put to death". Our Lord, however, in the passage which we are considering, does not refer to these declarations: he does not suppose murder to be committed.

13. Retaliation has this good quality, that it suits our feelings of equity; it suits, if I may so express myself, the symmetry of our imaginations concerning retribution and whatever, in penal laws, is the cause of their being submitted to, peaceably and quietly, as fair and equitable, by the convict, and by spectators in ge neral, is an excellence. Not that I would be understood to be recommending the Law of retaliation as a general Law for all ages, countries, cases: several things are against such a recommendation: the topics would

not suit a religious discourse; the law might suit one age or country and not another; in any age it might require many modifications from the discretion of Judges: I am inclined to think it had such modifications under the ancient Jews: Nay, I am of opinion, that it never could properly be called a general law, even under the Mosaic Government. The remarks which I have made, are intended only as introductory to a view of our Saviour's reference to retaliation in his Sermon on the Mount.

14. We have lately said, that the particular errors which our Lord obviated, in his Sermon on the Mount, when not expressed, are to be collected from the nature of the case, and from what he opposed to them. According to this, we should first consider to what errors the Jews were liable, in applying the Laws of retaliation, from the nature of the case.

They might err in supposing, that retaliation could be applied to all crimes: Whereas it seems to me, that it could never be applied rightly to any crimes but those three which have been specified. It is expressly provided, that if a master beats out a tooth of his servant, no retaliation shall take place; there shall not be tooth for tooth; the only penalty shall be the manumission of the slave, or servant. Exod. xxi. 27. Interpretation of penal statutes is strict at all times; but I would submit to the attentive reader of the Mosaic Law, or of any other law, whether a particular punishment being annexed expressly to a single crime does not imply, that the same punishment is not to be annexed to any other crime? Suppose it were ordered, in any code of criminal laws, that a person should be burnt at the stake for a particular species of murder, would not that Law, of itself, ordain, that no person should be burnt at the stake for any other species of murder? If, indeed, a certain punishment is expressly annexed to more particular crimes than one, all those crimes must incur that punishment but no others.

Again, the Jews might err in supposing, that, because three crimes had the punishment of retaliation annexed,


those three might always be punished by retaliation; but I apprehend this is not according to the true meaning of penal laws. The punishment specified is always the greatest punishment; and therefore for the worst cases; but it would be iniquity to inflict the greatest punishment on all acts coming under the same criminal denomination.

The Jews might also pervert the law by holding themselves under a necessity of punishing by retaliation: such an opinion would be erroneous; because a power of acting may be given when there is no obligation to act: and a penal law is intended to give a power of punishing, but not to impose an obligation to punish. I do not say that every judge can pass what sentence he thinks proper on the guilty, or acquit them at pleasure; but human affairs and the variety of circumstances which may attend a crime, do require, that a power of remitting punishment should be lodged somewhere; and there can be no obligation to punish, which shall make this power of remission entirely void.

15. So far we have spoken of the ways in which those in authority might err with respect to the Law of retaliation; but our Lord might also have regard to errors and perversions of private individuals.

It is an error into which private men might fall, to conceive, that a penal law is intended as a ground for their conduct in private life. And religious veneration for any law might increase this error, and tend to confirm men in it. We should think it absurd, if, because our Law annexes the punishment of suspension to forgery, any merchant was to strangle his agent when he believed him guilty of that crime; to what purpose serve courts of judicature, we should say, and laws of evidence, if private men are to be judges, accusers, witnesses, and executioners? Yet there is some appearance as if the Jews had, in their private capacity, inflicted something of the nature of retaliation.

Jews in private life would abuse the Law still more if they made it general; and applied it to all crimes.

« VorigeDoorgaan »