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particularly that of scourging". But not the least part of this power could be delegated. How then came the Jewish magistrates by this power? it must be by some special law. If by the constitution of the prince, where is it mentioned that any such law. was made in their favour? If we have no account of any law whereby power was given them to execute these lesser punishments, why may it not as well be supposed that the power granted them was to put their own laws in execution ? which, I think, I shall make appear was the real state of the case. This argument therefore, if it proves any thing, proves too much. If it be a proof that the Jews were deprived of the power of inflicting death on criminals because the presidents were sent into the province with this power, and could delegate it to no other, the same reason must also prove that they were deprived of the exercise of all punishments whatsoever upon criminals, even that of scourging. For nothing is more certain than that the presidents were invested with the power of punishing every crime, small as well as great, and that they could impart no share of this power to any other. Although, therefore, the Jewish magistrates should have been possessed of all civil jurisdiction in as full an extent as was delegated to the legatus proconsulis, or was lodged with the prætor at Rome, they could punish no criminal matters whatever, nor order
§. 2. I. 8. et 9. ff. de Off. Proc. I. 10, 11, 12. ff. de Off. Præs. 1. 6. §. 2. 1. 7. et 8. pr. ff. de Pænis.
ff. de Pænis. • Merum imperium, quod lege datur, non posse transire. L. §. 1. ff. de Off. ejus cui mandat. est Jurisd. Nec enim potest quis gladii potestatein sibi datam, vel cujus alterius coercitionis ad alium transferre. L. 6. pr. ff. de Of. Proc. 1. 70. ff. de Reg. Juris,
a person a whipping upon any occasion, unless a slave, or an infamous and needy wretch, in the particular case where an action lay for an injury d. But if there be any truth in the first argument we have considered, the Jewish magistrates had not even imperium mixtum, or the power of judging civil affairs, in its full extent. For there it is supposed they were in the same condition with the municipal magistrates, who had not that imperium which is usually joined with jurisdictione; that moderate coercion, without which there is no effectual jurisdiction f; and so could not compel persons by punishments to comply with their decrees 8. It is true, the municipal magistrate had the power of correcting a slave moderately h; but how it can be from hence proved that the Jewish magistrates had the power of scourging those who were free is very difficult to be seen. I have already shewn that the municipia and provinces were so unlike, so distinct, that there is no arguing from the one to the other: but had they been never so near akin, nay, were we sure that the same laws reached both, the utmost power that was granted to the municipal magistrate was to correct a slave, and that only in a moderate degree. Now if the same law obliged the Jews, it is most certain they could exercise the
d Vid. §. 10, 11. Instit. de Susp. Tutor. 1. 17. g. 4, 5, 1 ff. de Injuriis, et Fam. lib. e L. 1. fin. ff. de Off. ejus cui mand. est Jurisd. 'L. 5. §. 1. ff. eod.
& L. un. pr. ff. Si quis jus dicenti non obtemp. 1. 26. ff. ad municip. I. 32. ff. de Injuriis. How far the municipal magistrates were enabled to support their jurisdiction may be seen in Voet. in Pand. tit. de Jurisd. 8. 43. et Vinnius de Jurisd. c. 7.
h L. 12. ff. de Jurisd.
scourge upon none but slaves. This therefore demonstrates the very contrary to that which it is brought to prove. But, adds the author of this argument, the punishment of scourging was, by the custom of the Jews, inflicted on freemen, and was esteemed a moderate punishment, designed for the amendment of the transgressor. Therefore, without all doubt, this power of chastising persons of their own nation with scourges and clubs was left to themi; that is, in other words, without all doubt the Jews were governed by their own laws, and not by the Roman law. Thus is this gentleman insensibly led, by his own way of reasoning, to give up his cause.
I am fully persuaded that the law referred to, i. e. 1. 12. ff. de Jurisd. was not extant at the time Judæa was made a province. It is well known, that at that time the life of a slave was had in small account among the Romans; so that every master might kill his slave as he pleased, with impunity k; and slaves were put upon a level with cattle! The præfectus vigilum, an officer appointed by Augustus to command the night-guard, had not the power to inflict death on a freeman m; yet we read that he
· P. 38.
i Huber. Dissert. 1. J.
k §. 1. Instit. de his qui sui vel alieni juris, l. 1. §. 1. ff. eod. Seneca de Benefic. I. 3. C. 23. Nec indignata est ab his se vitam accepisse, in quos vitæ necisque potestatem habuisset. Vid. de Clementia, l. 1. C. 18. Ter. And. act. 1. scen. 2. Plaut. Asinar. act. 3.
| Ut igitur apparet, servis exæquat quadrupedes, quæ pecudum numero sunt. L. 2. §. 2. ff. ad Leg. Aquil. 1. 38. §. 2, 3. ff. ad Ædilit. Edict.
m L. 1, 2, 3. ff. de Off. Præf. Vigil. et Voet. Com. cod.
put a slave to death". By the Petronian law, which was made in the time of the emperor Nero', masters were forbid to deliver up their servants to fight with the beasts, unless the cause was first heard, and the servant condemned thereto by the judgeP. Adrian is the first emperor we read of in the Roman law 9 who was touched with humanity towards servants. He banished Umbricia, a Roman matron, for five years, because she treated her maids most cruelly for the slightest faults". And Spartian says he forbad that slaves should be killed by their masters, and commanded that they should be condemned by the judges, if they had done any thing worthy of deaths. Afterwards Antoninus Pius subjected those who killed their slaves to the penalties of the law against murdert; and if, upon complaint, it was at any time found that servants were inhumanly and barbarously dealt by, ordered that they should be sold to other masters". From the consideration of these several facts, I think it is not at all likely that
* L. 15. ff. de condictione causa data, &c. • Anno urb. cond. 813. anno Christi 61. Vid. Gothof. in loc. p L. 11. ff. ad Leg. Cornel. de Sicariis.
9 We read, indeed, in Suetonius, that the emperor Claudius decreed, that those servants who were exposed on the island of Æsculapius for cure (for it seems many sick servants were sent thither by their masters, with an intention to take no further care of them) should be free; and if they recover
vered, should not return into the dominion of their masters. And if any master chose ratber to kill his servant than expose him, he should be deemed guilty of murder. In Vit. Claud. c. 25. n. 5. p. 686.
'L. 2. fin. ff. de his qui alieni vel sui Juris.
s Servos a dominis occidi vetuit, eosque jussit damnari per judices, si digni essent. Vid. Schulting. Jurisprud. Vet. p. 29. n. 8.
i §. 2. Instit. de his qui alien. vel sui Juris, l. 1. §. 2. ff. eod. u L. 2. ff. eod.
a law, which is so gentle towards slaves as not to permit any more than a moderate correction of them by the municipal magistrates, should be of so high a date as the reign of Augustus. Most probably it was made in or after the time of Adrian.
SECT. III. An answer to the principal argument taken from the New
Testament. I PROCEED now to the second sort of arguments used to prove that the Jews were deprived of the power of inflicting death on criminals; and they are taken from certain passages of the New Testament. The first, and most plausible of all, is that saying of the Jews to Pilate, It is not lawful for us to put any man to deathx. This is represented as an ample acknowledgment of the Jews themselves, that they had not at this time the power of inflicting death on criminals y.
Should I to this oppose the saying of Tertullus the. orator concerning Paul, Whom we took, and would have judged according to our law. But the chief captain Lysias came upon us, and with great violence took him out of our hands 2; or should I reply to it in the same manner as some have done to this saying of Tertullus, “ It is not easy to say “ what we are to understand by these words a. “ Indeed I think there is but little regard to be had “ to what Tertullus says b;” though at the same time it is very observable that the high priest and
* John xviii. 31.
y Huber. Dissert. l. 1. c. 3. p. 14, 15. Lardner's Credib. vol. 1. c. 2. p. 83.
2 Acts xxiv. 6, 7. a Lardner's Cred. vol. 1. p. 129. b Ibid. p. 131. Vid. Huber. Diss. I. 1. c. 5. p. 24, 25.