A TREATISE OF MUTILATION & DEMEMBRATION, (by way of APPENDIX to Sir George Mackenzies Criminals:) Divided in­to Two Parts.
PART I. Wherein the Nature of the Crimes or Delicts of Muti­lation and Demembration is Considered, Together with the Method of Pursuing and Defending therein.

THe design of this Appendix is,1 to treat of Mutilation and De­membration omitted by the learned Author of the foregoing Book. And if the worthy Gentleman had liv'd to favour his Countrey with a second Edition; it's likely he would have enlarged upon the whole Titles of his Book; and saved me the pains of this Addition, by writing on it to better purpose.

This Subject is handled in the Title of Injuries, 2 by P. Aerodius. rer. judicat. lib. 6. tit. 5. cap. 20. Matthaeus decrim. tit. 4. cap. 2. Carpz. prax. crim. p. 2. qu. 99. N. 25. Wesenbecius & Zoes. ad tit. ff. de injur. and by many others; and even by the Text it self. § 7. inst de injur. And it cannot be de­nyed, but to cut off, mutilat, or disable a necessary Member of the Body, is one of the greatest Injuries that can be done to it; for not only doth it de­form the Body, but renders it unfit for Action; and in many places makes the injured person incapable of the Office of the Priesthood, as we shall shew, N. 20. infra: So that these Crimes or Delicts are very properly handled in the Title of Injuries. Yet others, as Covarruv. relict. de Homicid. Farin. prax. crim. 4: 119. tit. 4. insp. 4. and Zoes ad tit. ext. de homicid. treat of them, in the Title of Homicide or Murder, as our Author very properly calls it; and these Reasons may serve to justifie them. First, Because the sixth Command, Thou shalt not kill, Exod. 20.13. prohibites these Injuries as De­grees of Homicide, and for this cause the political Sanctions added cap. 21. to explain and defend that Command, first of all declare the several cases of Ho­micide from vers. 12. to vers. 24. and then the cases of Mutilation and De­membration, v. 24. and 25. making this proportion betwixt the Punishments, that as Life must go for Life, so Eye for Eye; Tooth for Tooth, Hand for Hand, Foot for Foot. Secondly, These Crimes, because of their Similitude and Relation to one another, have many common Rules for judging them, which seems to be the Reason why they are coujoyned in our ancient Laws and Acts of Parliament; as cap. 11. stat. Rob. 2. And Act 28. Par. 3. Ja. 4. and Act 118. Par. 7. Ja. 5. But, this Controversie being of no moment, the Reader may append this small Treatise either to the Title of Murder or of In­juries, as he pleases.

I have divided this little Tractat in two Parts; In the first,3 I consider the Nature of these Crimes or Delicts, together with the Method of pursuing and defending in them. In the second, I consider their Pains and Punishments. The Matter of the first Part is, medico-juridical; and, for this cause the Phy­sicians and Lawyers have been mutually assisting to each other. And the cases resolved by them, are called, Quaestiones medico-legales. This Subject is use­ful to be known; and the wickedness and vindictive Nature of Mankind, has made the knowledge thereof necessary. As its useful so its difficult, and is ac­knowledged to be so, by For tunatus Fidelis, a learned Physician, who having writen a Book in Octavo, de Relationibus Medicorum, in which (for clearing the eases wherein Judges are in use to call for the Advice of Physicians) he lib. 2. tit. 5. de Mutilatione, introduces his Discourse with these words: Hand parva difficultas quibusiam medicis interdum offertur, si quando a judice de mu­tilis est referendum; si io enim mulios esse que cum scientiarum titulo se vendi­tent, quid tamen ipsa sit mutilatio plunè ignorant. And the Dissiculty appears in the different Sentiments about it. The second Part is Theologico juridical, and hath many thorny Questions in it, especially about the pain of Retalia­tion, which hath perplexed both Divines and Lawyers, and yet few have written on these two Delicts, as Delicts deserving punishment. It's true the Canouists have considered them as they are the Causes of Canonical irregulari­ty; and many of the Civilians also have considered them as to that end; but they say little of them as they are punishable Crimes, which has induced me to [Page 6]make this small Essay, hoping it may encourage others to do better; and if they discover any Mistakes, as perhaps they may, they'll do me a favour to cor­rect them.

For understanding the different Expressions of the DD.4 it's necessary to premit, that the words Mutilation and Demembration, are variously taken by Divines and Lawyers, as also by Physicians (whom Lawyers use to consult in such Matters.) By Mutilation we commonly understand the Cessation and Privation of the Office, and distinct Operation of a Member, albeit no Particle of it be cut off: And by Demembration, we understand the cutting off of a Member, and in this sense we find these words used in the Journal Books. But Fortunat. Fidel. dict. lib. 2. sect. 5. cap. 1. makes use of the word Debile, to signifie that which we call a mutilated Member, and of the words mutilum, mutilatum, curtum, decurtatum, descissum vel detruncatum; and of the Greek word Colobon, as Synonymous words, to signifie a Member wanting an extreme part; and cites the words of Aristotle 5. Metaph. cap. 27. Mutila sunt, non cujusve particulae privatione, nam si carnem aut splenem tollas, non propterea mutilus remanebit, sed si extremitatem, at (que) hanc non omnem, sed quae, totâ ablatâ, generationem non habet. By which it appears that the Nature of Mutilation, according to Aristotle, consists in a Want or Defect of the extreme parts of the Body which cannot be repaired. And so Galen de diff. Morborum, cited by him, defines Mutilum to be, cui pars aliqua corporis est pracisa; and affirms, that Mutilation may be of Eye, Ear, Nostrils, and of any fleshly part; as of the Tongue when the half of it is cut off. And again, dict. sect. cap. 2. he cites Galen. 1. de diff. puls. 11. describing mutilatos ac decurtatos pulsus, to be, quibus de priore magnitudine aliquid deest. And in that same place Fortunat. Fidel. says, non quamcun (que) substantiae jacturum mutilum constituere, nam si quis à proximo ortu, aut sine manu prodicrit, aut aure, aut parte aliqua similiter fuerit destitutus, non mutilum illum sed mancum propriè nuncupabo. And so he con­founds Mutilation and Demembration, and also makes them to be Acts of Violence. In like manner, Barbosa, de off. & potestat. Episc. aleg. 42. N. 10. by mutilated Members understands these, quae aliquo modo praecisa & ob­truncata sunt. And the Gloss and Panormitan in C. de accus. in verb. De­bilitatus affirm mutilum dici, cui membrum aliquod abscissum; & mancum dici illum, cui membrum debile factum. And this sense of the Words is ap­proved by Covarruv. dict. relict. 3. de Homicid. Num. 8. in fin. Calvin in Lexic. following Spigelius, by the word Mutilatus, seems likewise to understand one who is demembred, because he explains the word Mutilatus by the words corpore diminutus, Mutilati, says he, i. e. corpore diminuti. And so the word is taken in Gloss. ad §. 3. tit. 53. lib. 2. Feudor. This is what Mu­tilation signifies according to the DD. above cited, and in the same sense is always taken by Farin. fragm. crim. part 2. Argument. de irregularitate quam quis contrahit propter membri mutilationem. Num. 581. & seqq.

I find the word Mutilation in King Roberts said Statute; 5 and in my Opini­on, it's there taken for Demembration; for it's there said, If any man mutilats another, or wounds or hurts him be forethought fellony, and the Party grieved pursue him before a Judge, such Form and Order of Process shall be led against him, as is ordained against a Man-slayer. Now either the word Mutilation must signifie Demembration, or it will follow, that Demembration is not in the Statute; and that Mutilation which is less than Demembration, is puni­shable as Homicide: For the following words of the Statute, ordain the Mutilator to be tryed by an Assyze, and if he be convicted, his Life to be redeemable; which shews that his Life, for committing that Crime, is in the Kings Will. And therefore for correcting this Mistake, the Act 28. Parl. 3. Ja. 4. conjoyns Slaughter and Demembration, without mention of Mutila­tion. In our later Custom of Speaking, and in all the Journal Books extant, [Page 7] Mutilation signifies only the taking away the use of a Member, the Member still remaining with the Body: and so is a less Crime than Demembration, which (according to the notation of the word) signifies Obtruncation, or a separating a Member from the Body; and some DD. do so understand and distinguish them.

It's further to be remarked, that Mutilation and Demembration, 6 properly taken, are Names of Crimes, or if you please of Delicts, and so they are to be understood in these Laws and Acts of Parliament; and therefore it is, that in Act 6. Par. 16. Ja. 6. the Crime of Mutilation is expressed by that word in the Narrative of the Act; whereas the word Amputation is made use of in the Statutory Part, to express the Punishment of cutting off a Hand; and in like manner the words abscindere & amputare, are made use of to that end, in l. 3. & Auth. seq. c. de serv. fugit. & novel 134. cap. 18. And hence the DD. calls this punishment poena amputationis. Carpz. prax. Criminal. p. 1. qu. 4. N. 43, 45, 48. This is the most ordinary way of expressing it; Yet I find mention of poena mutilationis membri, in Cabal resolut. crim. cent. 3. cas. 36. N. 25. I ob­serve also, that Paulus in l. 10. ff. quitest. fac. pos. making mention of one who lost his Hand by accident, makes use of the words qui manus amisit, and says not qui Dutilatus vel Demembratus. And such a one is rather called Mancus than Mutilatus.

Mutilation then, as it's the name of a Delict, may be described to be,7 A voluntary Act of privat Violence, by which one hurts a Member of anothers Body, to that degree, that the Member ceaseth to be useful. And this is commonly done by cutting the Nerves and Sinews by which the Member is moved. Demembrati­on, is a further degree of this Violence, by which a Member is cut off and se­parated from the Body. And Debilitation is betwixt the two, and signifies with us, the weakning of a Member without taking away it's total use. I say with us, for Cabal. Cent. 3. resol. cas. 236. N. 23. defines Debilitation to be Impeditio principalis, & proprii officii ipsis membri, which upon the Matter, is all one with Mutilation; and all others do the like, who confound the words Mutilation and Demembration, to signifie the same thing.

I call Mutilation and Demembration [Voluntary Acts,] 8 to distinguish them from the like deeds done in Defence. And hence we divide these Crimes as our Author does Homicide, into Voluntary, Necessary, Casual and Culpable; or more largely, as Carpz. p: 1. qu. 1. N. 13. to whom I refer: Or with Zoes. ad tit. ext. de Homicid. N. 2. we may reduce all to these four Heads, viz. Volun­tary; and that is either unlawful: As when one intentionally designs to mutilat or dismember another without just cause; or Lawful, and that again is either Necessary and Defensive, when a Man does these Deeds in his own Defence. Or Punitive; such as is inflicted by Authority of the Magistrat. Or Casual, which falls out meerly by Chance: As if a Man defending himself, should ac­cidentally hurt a By-stander. Or Culpable, which although it be not designed, yet it is not meerly by Chance.

We say [An Act of privat Violence] to distinguish it from Acts of puni­tive Justice.9 As when punishment of Amputation of a Hand is inflicted by Au­thority, which is also an Act of Violence, in that sense, in which a Man is said to dy a violent Death who dies by the hand of the publick Executioner. Such Punishments we read of, frequently in the Journal Books, to be inflicted up­on notorious Robbers and Malefactors, as 6. Feb. 1618, in the case of James Douglass. and 25. March 1667. in the case of Patrick Roy Mackgregor (and his Accomplices) whose Sentence was to have their right Hands first cut off, and then to be hanged.

We say [Hurts a Member] and not [wounds it] First, 10 to shew that Mutilation and Demembration may be committed without a Sword or such like Weapon. And therefore the Justices sustained Mutilation of a Leg, committed by breaking thereof in Wrestling. 6. June 1627. Leslie against [Page 8] Harvie. and 11. March 1631. Crawfurd against Scot; in both which Deci­sions, this Alledgiance (viz. that the Leg was not broken aliquo telo, but in wrestling, in which the Pursuer might have been the Breaker of his own Leg) was propon'd and repell'd, in respect of the Libel, bearing that the Pannel broke the Pursuers Leg in the wrestling, by violently throwing him on the Ground. And very justly, for even Homicide is sustained by the Law of God, Exod. 21.18, 19, 20. tho' it was committed by a Stone or a Stroke, with the Fist, or beating with a Rod. Of this manner of killing see at length Carpz. p. 1. q. 3. N. 19 & seqq. where he sets down the several cases, and it were easie to adduce many Decisions to this purpose. Secondly, By the word (Hurting) we distinguish Mutilation from De­membration, which is committed by Amputation of the Member.

By the word (Member) we destinguish both Mutilation and Demembrati­on from Homicide, 11 which according to Harprecht: §. Item. 7. inst. de pub. is violenta vitae hominis ademptio; or as Farin. dict. q. 119. inspect. 1. N. 3. in fin. it is, animati corporis p [...]remptio. And if it happen (as often it doth) that the Wounding or Amputation of the Member, be the Cause of Death, then he who gave the the Hurt or Wound, is punishable as a Man-slayer; and not as a Mutilator or Demembrator. l. 15. ff. de Sicar. (there says Ʋlpian) nihil interest, occidat quis, an causam mortis praebeat.

The last Words of the Description of Mutilation [to that Degree, 12 that the Member ceaseth to be useful i. e. cannot perform its wonted Operations Cartz. dict. prax. crim. p. 2. q. 99. N. 25.) hold forth. 1. That Mutilation and Demembration are commonly committed on useful Members. 2. That every Wounding or Disabling of a Member, infers not the Crime and Pain of Mu­tilation, though there be much effusion of Blood. Abbas in c. 1. qui clerici vel voventes. N. 8. Navar: ibid. N. 223. Suarez. de censuris dist. 44. sect. 2. N. 6. But the Member must cease to be useful; and yet wounding, per se makes a Delict, punishable by the Judge Ordinary, that's to say the Sheriff, to whom the Justices are in use frequently to remit it. 3. That tho' the Member may, by the Strok it receives, lose its use for a time, yet if it recover its use, the Action of Mutilation ceaseth; and by the practice of the Justice Court, Year and Day is allowed to expect Recovery; within which time, Action for Mutila­tion cannot be sustained: as we shall shew when we come to the Defences.

And this brings us to a main point,13 which is, to know what is meant by a Member of the Body, to infer the Crimes and Pains of Mutilation and De­membration. This I say is a main point, because the first Defence that uses to be proponed against a Libel of Mutilation or Demembration; as for Ex­ample of a Finger, is, that digitus non est membrum, whereof see a large Debate Num. 52. & seqq. infra. And to prove this, the Pannel or Defender appeals to the Testimonies of Lawyers and Physicians; wherefore it is fit we should inquireinto their Opinions concerning the Definition of a Member.

Membrum, 14 or Member, (which comes from the word metior metiris, to Divide, Cabal. resolut. cent. 3. cas. 236. N. 2.) is variously distinguished. First, Some are called Principal Members, which operat by themselves; such as the Tongue, in speaking; and others, subservient, as the Teeth and Lips, which assist the Tongue in forming of Words.

Again,15 some are called Members in a proper and strict Sense; others, in a large and abusive Sense. The last of these includes all the organical and similar Parts; That is to say, the Flesh, Nerves and Veins; which are of the same Contexture throughout the whole Body, and in this improper Sense, a Mem­ber is defined to be, A solid continued part of the Body, begotten of Commixti­on of Humours, thickned and formed by the Strength of Nature, Arist: lib. 1. de hist. Animal. cap. 1. Galen. lib. 1. de usu partium. cap. 1. Fortunat. Fidel. de relat. mediic. lib. 2. sect. 6. cap. 1. & 2. Zacchias quaest. medico-legal. lib. 5. tit. [Page 9]3. qu. 1. N. 5.6. & 7. where he cites Avicenna the Author of the Definition. But in the strict and proper Sense, a Member is defined to be a Particle, or part of the Body, not circumscribed on all sides, nor joyned every way to the Body, nor to another Member of the Body. And this agrees to all the extream parts of the Body, and makes them to be proper Members. And so Fortunat. Fidel. de­fines it, dict. cap. 1. And he takes it from Aristotle and Galen. and Covarruv. follows it, Init. relect. 1. de homicid. N. 8. But they both and Zacch. dict. loc. give this as the more common and received Definition, viz That it is a part of the Body, performing a proper and perfect Action and Operation, which no o­ther Member can perform, and which ceaseth to be performed, if that Member cease to be. And this Definition is embraced by Suarez. de censuris. disp. 44: sect. 2: N: 6. who in equivalent words defines it to be, that part of the Body Quae est quasi integrum instrumentum proximum alicujus actionis; and sayes, that this the Summists hold for a Rule, herein following Panormitan, Barto­lus, Baldus and others, who, sayes he, put this Sense upon it in their Disputa­tions anent the sense of this Statute punishing Mutilation. And the same is embraced by Cabal: Num: 4. & seq: where he compares the Body of Man to the Structure of a House: and the proper Members, of the Body to the Hall, Chambers and Kitchen, which have distinct uses in the House; and the improper Members to the Stones of the House, which are of the same Contexture throughout all the House, but have no distinct use in it. And for this he cites Bartolus and Baldus, and many others upon di­vers Texts; but chiefly in l: 2. ff: de publ. judic. & l. si fugitivi. c. de servis fugit. Caballus dict. cas: N: 115. makes another Division of Members, viz: in instrumentalia & formalia, & ex his alia majora alia minora. de quibus late tra­dunt DD: in l. 2.: ff. de publ: jvd. Baldus in l: 3: l: de accusat: & in l. data opera C. iis qui accus. pos. and others cited by him.

And again the said Fortunat. Fidel: dict. cap. 2. inprin. describes the Action of the Member; for Example of the Hand,16 to be it's motion towards the object; and it's Ʋse to be the apprehending of the Object. So that now it's easie to resolve what it is to mutilate a proper Member. viz. nothing else but to make it uncapable of moving to, and apprehending of the Object.

But then some object and say, that if it be necessary to the Essence of Muti­lation, 17 that the Member be so totally disabled, that it's for no more use to the Body; it's all one upon the matter to Mutilat and Demember, and so Mu­tilation and Demembration, which we define as distinct Crimes, are confounded. This Objection is moved by Suarez. dict. disp. 44: § 2. N: 5. where he distingui­shes and defines these two Crimes, as we do, from the Authority of Panormi­tan in Clement. Ʋnic. de homicid. and yet answers to the Objection; that suppose the Fault were equal, yet the Effect is not simply the same, which is sufficient for not extending the punishment. Next, he says, the Damnage in both is not equal, because the Deformity is not equal. Moreover a wi­thered Hand has still the name of a Hand, and of a Member so long as it's affixed to the Body; as we shall shew when we come to speak of the Hand in particular.

The next thing, that falls in my way,18 is to speak of each particular part of the Body separatly, and to shew which of them falls under the Definition of a proper Member, and which not: And because we have much Light from the Canonists in this Point (who describe the Nature of Members; and of Mutilation and Demembration committed upon them, in order to clear the Nature of Canonical Regularity and Irregularity) I crave leave to digress a little upon this Subject, and to shew how it's concerned with the Crimes of Mutilation and Demembration.

To be irregular then,19 in a canonical Sense, is to be entered in one of the Religious Orders of the Roman Church, and to be subject to the Rules of the Order, whence is the Denomination of Regular; and Irregularity is to be under a Canonical Impediment, that hinders to enter into the Order, or to remain in it, if entered. Covarru. init. relect. de Homicid. N: 1. And the Denomination of Canonical comes from the Word Canon, (which also sig­nifies regular) because the first Institution of this regularity in the Christian Church, is from the Canons of the Church. Covarruv. N. 2. ibid.

Among the Causes of Irregularity,20 introduced by these Canons, to exclude a Man from holy Orders; this is one; that a man is vitiated or defective in his Body. This was first established among the Jews, Levit. 21. It came from them to the Heathen Nations, among whom we find it. Plin: lib: 7: nat: hist. cap: 28. Seneca lib. 4. declam. 2. particularly, it was among the Romans, Dionys: lib: 2: Romanarum antiquitatum. And among the Persians, Alex. ab Alex. lib. 6. dierum genial. cap: 14. and came last into the Roman Church by the Canons of Gelasius and Honorius Bishops of Rome. Dist: 53. c. 1. & 2. The words of the last are, Poenitentes vel inscii literarum, aut aliqua mem­brorum damna perpessi, ad sacros ordines aspirare non audeant. which has it's Declarations and Restrictions in the other C C. of that Distinction; and in the Titles of the Decretals; de regularibus & transeunt. ad Relig. & de Corp: vitiat. ordinand: vel non. All explained by Parnormitan. Covarruv. dict. re­lect: de homicid. Zoes. de homicid: Farin. fragm. part 2. N. 401. & seqq. Sua­rez: dict: disp: 44: sect. 2.

This Defect of the Body as it was sometimes by Nature,21 and by accident; so oftimes it fell out by the Crimes of Mutilation and Demembration: And the Committer became irregular, by doing the fact; Clem. unic. de homicid. except in the Cases there excepted; As also the Patient, if either it did render him incapable to discharge his duty; or left a Cicatrice in his Face, or other visible Deformity. Covarruv. dict relect: part: 3. N. 8. where­by many persons, sufficiently qualified to bear Office in the Church, were made incapable of bearing it: which occasioned some of the Canonists, and Ci­vilians followingthem, to contract the Number of proper Members of the Body, into a lesser compass than probably they would have done, if it had not been to restrict the Number of the Cases of Irregularitie.

From this Digression, 22 I draw this useful Rule to our purpose. That in all the cases wherein the Canonists conclude the Committer of Mutilation and De­membration to become thereby Irregular, we may conclude him by the same facts, to be lyable to the punishments injoyned by our Laws for the same Crimes: tho' we can­not on the other part agreewith them in all the cases wherein they think Mutila­tion is not committed; because where there is any doubt concerning the Nature of a Member, if it be properly a Member or not, in order to punishment, much is left to the Arbitriment of the Criminal Judge. as Paulus Zacch: does frequent­ly acknowledge, dict: tit: 3. qu. 3: N: 7: in fin. & qu: 4: N: 27: & 31. and qu. 5: N. 28. in fin. So that the Judge may go further in finding Mutilation and Demembration, than the Canonists do.

And now I come to inquire into the Nature of each Member in particular; 23 And in the first place, it's granted by all Lawyers and Physicians, that the Eye is a Member of the Body in the most proper and strict sense: Because it per­forms the Action of Seeing, which no other Member of the Body can perform, and which Action ceases to be performed, when the Eye ceases to be.

Demembration may be committed on the Eye two Wayes. First, 24 Forma­liter, by pulling out the Eyes; and this is so atrocious a Crime, that it de­serves the severest punishment, both for the Design, and because this Member is most useful in foreseing the Dangers of the Body, and directing it in all it's other Actions and Operations; as also because, by it's being put out, the Bo­dy is deprived of all it's lawful pleasures, and especially of the Benefit of Read­ing, which instructs the Soul. The punishment of this Crime, demonstrats the great­ness of it Leo Novel. sua 92 commands the Eye of him who pulls out one Eye to be likewise pulled out; and if he have pulled out both Eyes, to lose but one, not that he thereby intended to favour the Delinquent, but the Party injured; for, as he there saith, the Man who was made blind, had no advantage by the Delinquents being made blind, therefore he restricted the punishment to one Eye, and instead of the other, he commanded that the Delinquent should aliment the Man whom he had made blind. To this Quintilian doth agree, declamat 297. qui excaecuerit aliquem aut talionem praebeat, aut excaecati dux sit. This was in case the Delinquent was Rich, but if he were Poor, he was to lose both his Eyes. But Joannes Dubravius, Bishop of Ʋlm. lib. 12. hist. Bohem. cited by Camerarius. meditat. hist. cap. 99. Reports, that the Empe­ror Charles the fourth, sitting in Judgement, caused a Sentence to be pro­nounced against Zachora a Nobleman of the Empire, to lose both his Eyes, for pulling out both the Eyes of a Priest without any Provocation, save on­ly that he did reprove him for Errors, not considering that he was his Pa­tron. The Crime indeed was atrocious, and therefore the Defences propon­ed by Zachora, viz. That he did it in-passion, was penitent, and had ingenu­ously confessed the Crime, and was willing to pay any Ransome the Judges should decern; were all repelled and no regaird had therero.

Secondly, Demembration may be committed by so wounding the Eye,25 that the Substance of it withers and decays. Farin. fragm. p. 2. N. 596. This he calls mutilari substantialiter, vel demembrari, & corpus oculo privari. And this seems to have been the case of the Pursuit before the Justices, 18. June 1642. at the instance of Andrew Alexander and his Father against David Young, eldest Son to Young of Kirkton, for putting out his left Eye with a hard Clay Bullet from a Pluff, & thereby demembring him of that Eye which was his only Eye, the other being lost by the small Pox. No Decision followed on it, because the Parents transacted for their Children, in respect they were but young Boys at the School, and the Crime was considered as done, exlascivia & non ex dolo.

The Eye is mutilated either by a total Abolition of the Action of Seeing,26 which is when no sight remaineth; or by a Diminution of the Sight to that Degree, that there remains no sufficiency to direct a man to walk in the way without help, and which among other Causes may be occasioned by a Wound in the Forehead above the Eye-brows transverswise, which makes the Flesh to press down-ward upon the Eye, and to obstruct it's opening. vid. Fortunat. Fidel. lib. 2. derelat. medic. cap. 4. And also it may be occasioned by a Stroke on the Head, which makes a Defluction to fall on the Eye, producing (as it often times comes to pass) a Cataract on the Eye, or a thin Skin, which we commonly call a Slough or Striffen, or Film: And therefore the Justices 8. July. 1643. found a Libel at Logies instance against Howison Portioner of Cramond, bearing, that the Pannel had mutilated his Eyes to that Degree, by such a Stroke on the Head, relevant to infer the Crime and punishment of Mutilation.

But a Depravation of the Action of Seeing, (which is when the Object appears double, or otherwise than it should) does not infer Mutilation: 27 tho' [Page 12]it be a Delict, or Crme punishable in suo genere. Caballus dicto casu [...] 236. N. 123. calls it Detuirpation, & says that debilitatio membri [meaning Mutila­tio] being nothing else but impeditio principalis & proprii officii ipsius membri it followes, that oculus non dicitur debilitatus, si quis videt ut prius, licet propter ictum, oculus sit deturpatus aliqualiter.

Secondly,28 The Tongue is acknowledged by all to be a Member in the pro­per Sense, because it performs the distinct operation of Speaking, and besides it contributes to Deglutition and Mastication. Bartolus, & alii D D. in l. ff. de pub. j [...]d. col. ult. N. 13. & l. Si cui lingua ff. de Aedil. edict. Cabal. dict. cas. 236. N. 9. where he mocks Capola, for denying it to be a Member, on no better reason, but that it performed all these Actions.

Demembration is committed,29 if the Tongue be cut out by the Root; which may be done without danger of Life. And there can be no more speaking, un­less it be by a Miracle, like that which the Emperour Justinian in l. 1. in prin. c. de off. praefect. praetor. Afric. testifies of the venerable Confessors whom he saw in Africk. Qui abscissis radicitùs linguis, poenassuas miserabiliter loquebantur, related their case after their Tongues were cut out by the Roots at the com­mand of Honoricus King of the Vandals.

Mutilation is committed on the Tongue,30 by cutting a part of it, whereby it is rendered incapable to speak, at least to be understood. And yet a person with a mutilated Tongue, or who has any impediment in his speech, may be sanus as to exclude an Action of Redhibition. per l. 10. §. ult. ff. de Aedil. edict. where Ʋlpian says that Balbus, Blaesus, Atypus is (que) qui tardius loquitur, varus & varius, sani sunt; But if it be true that the Tongue being a fleshly part, will grow again, and speak as well as formerly (which Zacch. in dict. tit. 3. qu. 5. N. 28. testifies to be from Art and Experience) then Mutilation is not committed by cutting off the tip of the Tongue, at least some time must be allowed to expect Recovery.

Thirdly the D D. deny the Lipps to be Members of the Body in a proper sense, 31 because they perform not a distinct Operation; but only concur as in­struments with the Tongue in formeing of Words. Arist 2. de part. animal. 16. Zacch. dict. tit. 3. qu. 4. N. 30. Fortunat. Fidel. §. 6. cap. 2. and a­mong the Lawyers Covarruv. dict. init. relect. de Homicid. part. 1. N. 8. Farin. Fragm. part. 2. N. 587. And therefore according to them Mutilation or De­membration cannot be inferred from hurting or prescinding the Lipps; but they grant they are Injuries in suo genere, because they take away an usefull part of the Body for helping of Speech, and that the want thereof creates a seen Defor­mity, by exposing the inward part of the Mouth to publick view, and so by the Canon Law makes the Patient, canonically irregular, tho' not the Agent; be­cause he did not prescind a Member Covaeruv. Relect. de Homicid. quaest. 3 init. N. 8. This is one of the Cases remitted to thee Arbitriment of the Judge Zacch. dict. tit. 3. qu. 4. N. 31.

Fourthly the D D. conclude the Teeth to be no Members of the Body in a proper sense, 32 Farin. fragm. part 2. N. 585. because, says he, they make not up the Integral or Consistence of the intire Body, but do only belong to the Beauty and Ornament of it; As also that they performe no proper Action, but only assist the Tongue, as the Lipps do, in forming of Words, So Cabal. Cas. 236. N. 12. & seqq. and the D D. cited by him Covarruv. init. Relect. part 3. de Homicid. N. 8. Further they adduce the words of Paulus in l. 7. ff. de Aedil [...] edict. Cui Dens abest non est morbosus, magna enim pars hominum a­liquo dente caret, neque ideo morbosi sunt, praesertim cum sine dentibus nascimur, nec ideo minus sani sumus donec dentes habeamus, alioquin nullus senex sanus esset. And to these Lawyers, the Physicians agree, viz. Fortunat. fidel. dict. lib. [Page 13]2. de relat, §. 6. cap. 2. Zacch, dict. tit. 3. qu. 5: N: 19. Who says, that the want of Teeth may be made up by Art, if they be not all excussed; mean­ing that the Artificial Teeth may be tyed to those that remain, and they conclude that seing Mutilation and Demembration can only be committed upon proper Members, they cannot be committed by excussing of the Teeth.

But not withstanding, there is much to be said for the affirmative. For,33 1. Zacchias seems to grant, that if no natural Teeth remain but all be excussed, then there is a clear Demembration. 2. As the Teeth concur with the Tongue in forming of Words, so they performe a special Action in grinding or chew­ing the Meat for the Stomach, whence they are called Grinders: And the de­cay of them reckoned among the Forerunners of Death, Ecclesiast. 12.3.3. They are ranked by Moses with the Eye, Hand and Foot in the Law of Retaliation, Exod. 21 24. and its yeilded by all that Eye, Hand and Foot, are Members in the proper sense. 4. They concur in Mastication.

And to the Arguments for the Negative, I answer; first,34 That the Gloss on the said Words of Paulus l. 11. ff. de Aedil. edict. acknowledges the Reason of the Law to be bad; and if it were good, it would likewise prove, that a hand is no proper Member; because some are born without a hand, and may live and be served without it. 2. It is of no import that the want of a few Teeth may be supplyed by Art, for so may the want of a Hand or Foot; and a man can go upon stumps, where both Legs are wanting.

Fifthly, the Nose is a Member in the proper sense; for this we have; 35 first the Authority of Naturaliss and Physicians as Arist. lib. 1: de part. animal. Hip­pocrat: lib. 1. de diaeta. Vales. controv. lib. 2. contr: 26: And among the Lawyers, Farin. in append. deimmunit: Eccles, Cap: 6: N: 249: & in Fragm: p: 2: N. 587. where he defines a proper Member by its quality of exerciseing a distinct Operation: and for examples condescends on Hands for grasping; Feet for walking; Eyes for seeing; Ears for hearing; and Nose for smel­ling: So that according to him, the Note is as properly a Member as any of the others named; and hence he concludes, that he who Mutilats or De­members the Nose, or any of these other Members, becomes thereby irregu­lar, (which could not be by prescinding or Mutilating an improper Member, for this he denyes, N. 585. ibid.) and consequently by so doing he incurs the Crime and Pains of Mutilation or Demembration: For to be guilty of the Crime in order to punishment and to become irregular, are equipollent in the Canon Law as we said before Num. 22. And for the same cause, Zacch: dict: qu: 4. N. 3. & 5. concludes in the general; Naso mutilato, ea om­nia locum habent, quae in caeteris mutilatis membris habere diximus. And again, in eum qui nares abscidit, non modo pari ratione, ut in eum, qui aliud quod­cunque membrum abscidit, sed majori severitate animadvertitur non ob id tantum, quod haec pars unica in nostro corpore sit, & nequaquaem duplicata, ut Oculus, Manus, Pes, Auris, Labium, sed quia realiter majus multo dedecus affert abseissio Nasi, quàm alterius cujus­eunque partis, etiam ipsius manus. And cites Paris a put: dere milit: lib: 8: cap: Quando unus eff: ocul. alter & alter abscid: nas. Videtur ergo quaecunque leges de membris, de corum (que) mutilatione sanciverunt, rectè ad nasum etiam sunt transferen­da. These are the words of Zacchias, which are only applicable to corporal and not to canonical Punishments.

That the Nose is a Member in the proper sense, is also evident,36 because it only, and no other Member, exerces the Function of smelling: For this, we have common Experience; every one offering an Odoriferous thing to the Nose.

Its objected, that the Argument drawn from smelling doth not conclude; 37 because many men who have expanded Nostrils want the sense of smelling; [Page 14] ex: gr: when a Defluction of Salt and thickened Humors falls upon the Lungs, Mouth and Nosestrils from the Ventricles of the Braine, by the Nerves of Smelling; This distemper (which the Physicians call Coryza) will obstruct the sense of Smelling, (even when the Nosestrils remain patent) as sometimes a worse Disease doth, where it occasions os cribrosum. To which it is answered, that accidental Distempers do not change the nature of Mem­bers, for a Hand or Foot, may lose their proper use by a palsie or other accident and yet we cannot from hence infer that they are not proper Members.

But suppose that it were granted that the Nose is not the proper Instrument of smelling,38 yet it is still a Member in the proper sense, because these who de­ny it to be the proper Instrument of smelling, (viz. Fortunat. sidel: lib. 2. de re­lat. medic. §. 2: cap: 1. And Paris a puteo; ubi supra, N. 2. And Galen. in lib: de instrum. odor.) Yet do grant that it hath divers other distinct Operations; As that it's the Tubulus or conduit, by which the Mucus descends from the Brain; And is the chief Instrument of Respiration; As also of Sounds: So that where the Nose is wanting, the sound of Words is not distinct: By which Concessi­on, the Nose must yet be a proper Member, according to those who deny it to be the proper Instrument of Smelling; because it exerces the other three Fun­ctions. As Taliacotius proves chirurg. nov. lib. 1. cap. 6.

Sixthly,39 there is greater difficulty to determine whither the Ear be a proper member or not; to clear the Question, know that the Ear is defined by Arist. l. 1. de hist. animal. to be that part of the Head which is fabricated for hearing. We must distinguish here betwixt the internal Ear called Auris, and the Exter­nal called Auricula, which is the Cartilaginous Substance guarding and defend­ing the Auris from Danger, and with us is commonly called the LUGG, yet tho' the Words Auris and Auricula be so distinguish'd, they are promiscuous­ly used in speaking, and nothing is more frequent among the D D. than abscin­dere Aurem; & quod, Auris sit ornamentum corporis. Zacch: quaest medico-leg. lib. 10. Consil: 35: N. 2. That the Auris is a proper member, is acknowledged by all, because it is the sole Instrument of Hearing, and therefore if any deed be done to prejudge the Auris, so as to deprive it of the Faculty of Hearing, it in­fers the Crime of Mutilation; nevertheless it is contraverted whether the Auriculae or external Ear be a proper Member.

These among the Physicians who deny the Auricula to be a proper Member, 40 are Fortunat: fidel: §: 6. cap. 2. Zacch: quaest: medico-legal qu: 4. N. 26. & seqq. & consilio 35. where he says that being consulted in the case of a Clergie man who had lost the upper part of his Auricula or external Ear, by a Wound in Rixâ; whether he thereby became irregular and incapable of Promoti­on, as one who wanted a Part of a proper Member? He resolved (N. 13.) that the Auricula was no proper Member, nor reckoned among proper Members by any man, and that therefore the Cano­nists with much justice had declared, that the Abscission of the Ear infer'd not irregularitie. With those, several Lawyers do agree, as Covar. init: part: 3. Relect. de homicid. N. 8. vers. incip. primum. where he expresly affirms, that when the Auricula is cut off, a Member is not cut off; because, the Auris is properly the Member, and the Auricula or Cartilaginous Substance, is rather for Ornament and Safeguard to the Auris, than for use to the Body; and for this he cites Baldus in l. serv. fugit. ad sin. Farinacius is of the same Opinion, in dict. fragm. part. 2. N. 590. where he cites Covar. Navar. and divers others; distinguishing betwixt Auris and Auricula, and these Doctors urge for them­selves the words of Ʋlpian in l. idem offilius 10. ff. de Aedil. edict.

But for the affirmative there are others of no less Authority; 41 First, among the Physicians, Galen in lib. de instrum. odoris, and among the Lawyers the Gloss in c. singula. verb. Oculus 89. distinct. And Majol. cited by Farin. in fragm. [Page 15]part. 2. N. 591. affirming that if the Law of irregularity had been in S. Peters time (as it is a humane Constitution of a latter date) he had been declared irregular (and consequently a Demembrator) for cutting off of Malchus his Ear, unless he had been excused for defending his Master. In the same opi­nion is Speculator in tit. de dispensat §. juxta. Num. 8. Likewise Suarez. de Censuris disput. 44. sect. 2. N. 9. asserts that the Auricula or outward Ear is a Member in the proper Sense, and rejects the Opinion of Covarruv. upon this Reason, that the Auricula Co-operats with, and contributes much to the Organ of Hearing, and from thence concludes, that the Amputation thereof infers Irregularity, and that not upon the account of Deformity, occasioned by the want of the Auricula, (that being obscured by the Hair) but because of Demem­bration, in respect that Deformity without Demembration (which he expresses by the Word Mutilation) makes not irregularity.

As Suarez. believes the Crime of Demembration to be committed by Am­putation of the Auricula, 42 in regard of its contributing to the Organ of Hear­ing; so P. Zacch. in dict. qu. 4. N. 24.27.28. though he denyes the Ear to be a proper Member, yet he confesses it contributes much to the Organ of Hear­ing, and that a sound, without it, is like the Noise of the running of Water, and therefore allowes the Lawyers to count the Auricula among the proper mem­bers in order to infer the Crimes and Pains of Amputation. in quo casu (inquit) bene dicitur aurem esse membrum, quia abscindens aurem eisdem pae­nis subjicitur, quibus subjicitur abscindens membrum. Ʋnde etiam in Auris abscissione habet locum id, quod in abscissione membri quodd immunitatem eccle­siasticam, quâ abscindentes membra in ecclesia non gaudent, and concludes his Discourse N. 31. by remitting all to be determined by the Lawyers. Now, all this must be understood of the outward Ear or Auricula, because the Auris or inward Ear cannot be abscinded.

But then a Question remains to be answered,43 whether or not the Amputati­on of a part of the Auricula be sufficient to infer the Crime of Demembration? and the same may be urged as to the Amputation of a part of any other Mem­ber. Suarez: dict. disput. 44. Sect. 2. N. 8. in med. says, that its sufficient for Mutilation [meaning Demembration] that there be either integra abscissio, vel gravis diminutio alicujus principalis membri, and he there speaks of the Auricu­la (for there could be no Abscission of the Auris, either in whole or in part). Zacch. dict. consil. 35. N. 8. & 9. maintains the contrary, and especially as to the Ear, where he says that the abscission of a part, and chiefly of the Superior part, which the Physicians call Dinna or Helix, infers not Demembration be­cause it wrongs not the sense of Hearing. We have a Decision 22. June 1610. Guthrie against Rynd where the Justices refused to sustain Demembration infer­red from cutting off a part of the LUGG or Ear, and remitted the Cause to be tryed, as a common Ryot before the Sheriff of the Shire as the Judge Ordinarie.

Seventhly,44 The Chin is by all acknowledged to be no Member in the proper sense, because it performes no distinct Operation, and is only useful for de­coring and adorning the Body. Farin. dict. fragm. crim. part. 2. N. 565. where he cites Majol; and (following the Canon Law) concludes that the Am­putation of the Chin infers not irregularity against the Committer, and conse­quently no Crime of Demembration according to them: But every one grants, that to cut of the Chin is a Ryot, or Delict, severely punishable; be­cause it creats a Deformity in the Face, and makes the Patient (though not the Agent) irregular.

Eighthly,45 The Beard is no Member; Nevertheless to cut off, or to pluck out the Hairs of ones Beard without his Consent, even albeit no Blood fol­low is an Injury, according to Oinot. cited by Zacchias Quaest. medico-leg. lib. 5. tit. 3. q. 5. N. 14. And there is good Reason why it should be punished; because the Ancients expressed their sadness by permitting the Beard to grow. l. item quod labionem 15. §. generaliter 27. ver. Haec autem fere ff. de injuriis. Divers Authors are cited by Cujacius, lib. 6. observ. 5. to prove this Custome and therefore l. 39. dict. tit. it was not permitted to any man vestem sordidam Rëi nomine, in publico habere, capillumve summittere, nisi ita conjunctus erat af­finitate, ut invitus, in Reum testimonium dicere cogi non possit. Further, to cut ones Beard was a mark of indignity; and therefore David resented it, when it was done to his Ambassadours by Hanun, King of the Ammonites [...] Sam. 10.4.5. where its said that Davids Messengers were ashamed. But albeit the Beard be no Member, yet, this cutting it off, is punishable poena inci­dentis membrum, according to Baldus, in l. Reos. C. de accusat. N. 6. & from this Baldus concludes the Beard to be a Member in the proper Sense, but others in the general Sense only as the extremities of the Nails of the Fingers are Members which we dayly cut off. Guazzin. de defensione Reorum. def. 33. Cap. 6. N. 5.

Ninethly,46 The Papes, or Duggs of a Woman, are Members in the proper sense; for their producing Milk and giving Suck is a distinct Operation; And therefore he who prescinds them becomes by the Canon Law, irregular, and consequently a Demembrator, according to our former Rule. N. 22. of argu­ing from irregularity to Demembration against the Committer of the Crime. of this Opinion are Farin. dict. fragm. crim. part. 2. N. 593. Baldus, in l. data opera. N. 75. C. qui accus: non poss. Suarez. disp. 44. sect. 2. num. 9. fin. vers. solet dubitari, with divers others cited by Farinacius.

Tenthly,47 It may be controverted, if the Spondyls be proper Members, or not. They are called in Greek [...] in Latine Vertebrae; because by their help, the Body turns. They are in Number 29. whereof 7. in the Neck; 12 in the Back; 5. in the Loins; and 5. in osse sacro; as the Anatomists reck­on. Vid. Castelli [...]exic. ad Verbum, Spondylus. The Reason of the Doubt is, that none of the above-mentioned Authors have counted them among the proper Members: And yet on the other part they performe a distinct Operation, be­cause by them, several places of the Body are turned. By our practique they have been found to be proper Members; for the Justices 7 Nov. 1621. found a Lybel of Mutilation, alledged to be committed by Marion Paton upon Willi­amson her Apprentise, by dislocating the Spondyls of his Back, relevant to infer the Crime and pain of Mutilation, and remitted the Lybel to the knowledge of an Inquest; but no Decision followed, because she proved that the Pursuer recovered. Now if from hence you will not allow the Spondyls to answer to the precise and exact Definition of Members in a proper sense, then you must grant, that the Justices sometimes make use of the Power which they have, according to the Concessions of Zacchias dict. quaest: medico-legal. dict. lib. 5. qu. 4. N. 27. and 31. where he says, that Lawyers are not tyed to the precise Definition which Physicians give of a Member.

Eleventhly,48 Castratio virilium is one of the most atrocious Demembrations; and when a man does it to himself, he is sui homicida. C. 4: dist: 55. And so punishable with Death and Confiscation of Goods, l. 4. §: 2 ad leg: Cornel: de sicar: And its equivalent if one suffered himself willingly to be castrated by an­other; dict: § Farin. fragm. crim. part. 2. N. 584. and the D D. cited by him. Haec castratio sit, vel praecisione virilium, vel faciendo Spadones, thlibias, thlasios; dict. §. 2, As to all the Species and Punishments of this Crime, vid. novel. 142. de his qui Eunuchos faciunt. & novel. leonis 60. See also Covar: init. prim. par. relect. de homicid. N. 6. where he adduces many Texts and Reasons to prove [Page 17]that it was unlawfull for any man seipsum eastrare praetextu Religionis, vel volenter id pati ab aliis sibi sieri. And therefore Eusebius is justly reprov­able for defending Origin upon that account. The common Reason is; that nemo membrorum suorum est Dominus. l. 13. ad legem Aquiliam. whether this Crime may be punished poena talionis will occur to be spoke of afterwards, upon the Question, how far the Law of Retaliation is yet in Force.

Twelvthly, I come now to speak of the Hand, which in a large Sense is ta­ken for the whole Arme, but more particularly for that qui cubito annectitur; 49 and 1. includes, the Carpus or Wrest, or first part of the Palm of the Hand; or that part of the Arme, which is betwixt the lowermost part of the Cubit and the Hand, and consists of eight small Bones, with which the Cubit is joyned to the Hand: 2. It includes the Metacarpus or Metacarpium, or back of the Hand, made of four oblong little Bones, which expand the Palm of the Hand, called postbrachialia. 3. it includes the Digiti or Fingers joyned to the Metacarpus; the outmost Bounds whereof are called Metachon­dyli. It is called a Member. Novel. 134. cap. 13.

We need not insist to prove that the Hand thus composed is a Member in the proper sense, and that it has a distinct Operation,50 this is not only confessed by all, but to the end that Amputation of the Hand may be the more abhor'd and severely punished, the Doctors of Law and Medicine have condescended on it's several Uses. viz. By the Hand one defendes himself from the Cruelty of Man and Beast; by it he rules and commands Beasts to be subject to him, even such as are of the wildest Nature; it serves to many uses for his Body; and is useful to the very Beasts that serve him; and being stretched foreward it supplies the want of the Eyes, by preventing of several Dangers; and by signs, it many times supplies the want of the Tongue. These are collected out of Coel. Rodig. lib. 4. lect. antiq. Cap. 3. Galen. lib. 1. de usu partium cap. 3. & lib. 11. Arist. 4. de part. anim. Cap. 10. Cicer. lib. 2. de nat. Deor. Fortunat. Fidel. lib. 2. relat. med. §. 4. Cap. 1. Therefore the Justices have always found Demembration to be incurred by the cutting off of the Hand, and Mutilation by the hurting thereof to that Degree that it became useless. 5. May 1605. Skirven against Forrester, for mutilating him of the Hand. 26. Nov. 1613. John Hunter Taylor against Menzies of Castlehill, who came in the Kings Will, and was fyn'd in 100. lib. Scots. and 30. July 1614. Donaldson against Lorimer. And 10. July 1635. Thomson and her Spouse against Gillespie, Thomson and others. The like 24. July 1635. Fletcher of Benshaw against Ramsay, Lindsay and Lord Spyney, for Mutilating him of the Left-hand. I should not need to cite Decisions in so clear a Matter, were it not the Custome.

Thirteenthly, There is as little Doubt, that the Leg is a proper Member, and that it has its distinct use profitable to the Body,51 and which can be best jud­ged by such as want it. We have the following Decisions. viz. 6. June 1627. Lesly against Harvie for Mutilating his left Leg. 20. July 16 [...]7. Pa­terson against Wordie for Mutelating his right Leg. And in the foresaid case, 3. Novem. 1621. Williamson against Paton for shortning one of his Legs by wounding thereof. and the like was pursued 28. July 1647. Forbes of Lesly against the Laird of Pitfoddels for mutilating one of his Legs by the Shot of a Pistol; in which poena talionis was lybelled, but it came to no Decision: As also 11. March 1631. above-cited, Crawfurd against Scot; where the Justi­ces sustained Mutilation for Scots breaking of Crawfurds Leg in Wrestling, and remitted it to the knowledge of an Assise, whereby he was convicted and fin­ed in 250. Merks. The like 19. March 1690. Relict and Children of Fenton against Montgomery for breaking of Fentons Leg; where the Lords Commissio­ners of Justiciary found the Lybel, as founded upon Presumptions, relevant [Page 18]to infer an Arbitraty punishment, and fyned him in 2500. Merks. This case is as plain as that of the Hand, and therefore Decisions are only cited for Custome.

Fourteenthly,52 The greatest Difficulty is about the Fingers and Toes, whether they are Members perse, or only parts of the Hands and Feet. The D D. are divided in their Opinions; most of them are for the Negative, but some are for the Affirmative. Others distinguish betwixt the cutting off or Mu­tilating the whole, and a part only.

For the Negative simply,53 viz. That the Fingers are no Members, we have these Lawyers Bartolus ad l. 14. ff. de statu. & in l. 2. de pub. jud. N. 13. Where he says expresly digitus non est membrum, sed pars Membri, and if there were a Sta­tute ordaining Amputation of a Member to be punished lege talionis, it would not be extended to the Amputation of a Finger. And Baldus in dict. leg: says, digitus non est membrum sed pars officialis membri, and that, aliud est divide­re rem in membra, & aliud in frusta, & sic amputans digitum non dicitur amputare membrum; and again, Digitus est tantum membrum in diminutivo, non membrum proprie & principaliter, quia non est al quota pars corporis sed ali­quanta particula respectuqualitatis, and compares it to a Tree of the Roof and a stone in the Wall of a House, which are but parts of the Roof and Wall, and not Members of the House. And with these agree Decius in l. si fugitivi C. de servis fugit N. 26. Julius Clarus. Farin. frag. crim. part. 2. N. 587. Pannormitan. in Cap. Cum illorum. 32. de sent. excommunic. As also Covarr. part. 3. relect. in clement. Sifuriosus de Homicid. N. 8. vers. incip. tertio. Where he cites not only Bartol. & Bald. but Felin. Anton. R. Chassa­naeus and others. With them likewise agree Cabal. dict. cent. 3. resol. 236. N. 11.110. and 118. Where besides these above cited, he cites Coepol. An­gel. Castr. August. &c. But although Caballus dict: cas. 236. has affir­med that digitus non est membrum, yet in eod. cas. N. 109.110.111. & seqq. he is forced to grant that if the hand be debilitated [meaning Mutilated] by Percussion of a Finger, one, two or three, that then percussor tenetur de mem­bro debilitato; and says, he has often seen it so decided, and that he him­self hath frequently decided so. Among the Physicians we find the above-cited Zacch. dict. lib. 5. tit. 3. qu. 7. N. 12. and the foresaid Fortunat. fi­del. derelat. med. lib 2. §. 5. Cap. 2. also for the Negative.

Suarez. dict disp. 44. de cens. Sect. 2. N. 6. to establish a Rule for judging irregularity,54 seems to agree with the former D D. for there he says Cui altera manus deest dicitur simpliciter mutilatus. Whereas, in cap. 2. de clerico agrot. pres­byter, cui media palma manus cum duobus digitis abscissa fuerat, non dicitur trun­catus membro, sed accepisse membri debilitatem & deformitatem; ergo proprie membrum Jolum est tota manus.

But one the other side,55 there want not learned men, who affirme the Fin­ger to be a Member, as Cajetan. 2.2. qu. 65. art. 1. and Sot. lib. 5. de justitia q. 2 a. 1. & to prove it say, that it is not necessary to the Essence of a Member, in order to Mutilation [meaning Demembration], and irregularity, that it ex­erce a distinct Office and Action; but it's sufficient that it co-operat with a principal Member, and be assistant to it in its proper Actions; and subsume, that a Finger, although it cannot operat by it self without concourse of the Hand, yet often it has something proper to it in the Action of the Hand, as in playing on a musical Instrument, in Writing, and the like; And if it were otherwise, then one Man should not be irregular, by cutting off anothers Finger, which is false, because by so doing, he much diminishes the in­tegrity of the Body; And Cajetan. further says, that every organical Part which makes up the integral Body, is a Member in Order to Mutilation; and Fingers are such organical parts. Moreover, he says, all that is said of Mem­bers [Page 19]agree very well with parts of principal Members; and that there is no repugnancy between being a Member and the part of a Member, [meaning in order to Demembration.] And that the Gloss. in C. cum illorum; 32. de sent. ex­com. verb. Mutilationem membri; insinuats the same, saying in the like case, we must not distinguish between a Member and a Member.

Suarez. dict. disp N. 8. having related the Opinions of Cajetan. and Soto, 56 steps in as a Reconciler, and approves their Opinion, in so far as concerns irre­gularity, and says, that the Physical Question, viz. what is a Member? and the Juridical, what is to be understood by a Member in poenal Laws? do not at all concern the Case of Irregularity, which contents it selfe with a simple Muti­lation, though it be not the Mutilation of a Member in the proper sense accord­ing to the forecited Clementine, and then affirms Mutilation [meaning Demem­bration] simply taken, is committed, when a principal Member is remarkably diminished, albeit not totally prescinded according to the Notion and Propriety of the Latine Word: and if at any time the Canons make mention of a Member; they always intimate that any Diminution is sufficient: and for this cites, Cap. de cleric. pugnant. in duel. Ibi vel Membrorum diminutio. And Felin. in cap. cum illo [...]um de sentent. excom. N. 3. Further the same Suarez. N. 9. Ibid. in med. distinguishes, and says that Abscission ofone Finger is not commonly sustained sufficient, which, says he, is true if it be one of the two least Fingers; but if any other Finger be cut off, it is a sufficient Diminution, at least doubtfull

The Reason why I have insisted so long on this Question, An digitus sit Mem­brum? 57 is, because I find it often debated in the criminal Registers upon the Autho­rity of the DD. And now having shown their Opinions; I come to our Decisions on this Point: viz. a Lybel of Demembration was sustained for cutting off the Thumb of the left hand & three Fingers; 3. Nov. 1620. Alanson against Steuart. Mutilation was also sustained when committed on the two foremost or firstand-second Fingers; 15. July 1642. Laurence Cheyne Brother to Wallie against Mouat and Neivings. And for mutilating of three Fingers; 5. Novem. 1618. Dal. glish against Walter Scot. And again a Lybel of Demembration was sustained for Amputation of three Fingers of the left hand; 14. September 1610. Mont­gomery against Henderson. And for the Amputation of two Fingers; 17. Dec. 1623. Boyne against Hately. And for the Amputation of two Fingers of the left Hand, 19. Novem. 1647. Inglis of Craigmakerran against Martine. And for the Amputation of the Thumb of the left hand [...]8. and 27. of June 1605 Broun against Johnstoun. and 12 of January 1642. Tailor against Norie. and 15. July 1642. foresaid, Mr. Patrick Cheyne of Wallie against Mowat and Nev­ings. For Amputation of the Finger next the little Finger commonly called the Ring-Finger or Annularis; 8. March 1605. Fowler against Lermont. For Amputation of the Little-Finger of the Right-Hand, 27. Feb. 1618. by bite­ing it off with his Teeth; Thomson against Miln; which is a greater length than Suarez. allowes, who expresly excepts the Little Finger, and says that the Crime of Demembration is not committed by the Amputation thereof; vid. num 56. supra. In five of these Decisions, viz. Allanson against Steuart, Montgomery against Henderson; Dalgleish against Scot; Inglis against Martin; and Boyne against Hately; The Defence that Digitus non est Membrum was pro­pon'd and repell'd, notwithstanding of the Authority of Bartolus, Baldus, Julius Clarus and others, was urged; and the Reason of the repelling was in respect of dayly Practice: So that there remains no more doubt, with us, on that Question, whether the Finger be a Member in the proper sense, or not.

And certainly,58 the Decisions are very just and reasonable; Because the Hand discharges no Operation but by the Fingers; Further, if the Fingers be se­parated from it, it is of little or no use: And if the Fingers be distinctly con­sidered, it will be found that each of them has it's own use. For, in the Thumb lyes the Strength of the whole Hand, and therefore is called Pollex, quia aeque pollet omnibus digitis; also [...], because it is placed against the o­ther Fingers, as if it were a second Hand; and is sometimes called, parva ma­nus; by it we Write, Paint, &c. and it hath the chief use almost in all Acti­ons: And if the Pollex or Thumb, with the Index or Forefinger, be both cut off, the whole hand is almost lost; for the three Remaining, viz. Medius, annularis & minimus, do rather co-operat with the Pollex and Index, than work by themselves, for of themselves they can do little to purpose, except in playing on Musical Instruments; their several uses, are best known by a mans Imployment; and according to that, the Judge should consider the Punishment: as we shall prove afterwards.

The Consideration of the Ʋse of the Fingers to the Hand, 59 hath mov'd some of the D D. (who deny them to be distinct Members, yet) to acknowledge that Mutilation and Demembration may be committed upon them, but then when the Fingers are prescinded or mutilated, they think it should be said the Hand is demembred or mutilated: and not the Fingers, which, say they, are but Instruments of the Hand co-operating with it; and this seems to be the Meaning of Suarez. dict. disp. sect. 2. N. 9. And are the express words of Fortunat. Fid: lib. 2: relat: med: sect. 5: c: 2. Mutilam par­ticulam (inquit) nuncupare solet Galenus, non quae jam est abscissa, sed quae jam super­est imperfecta. de morb: caus. 8. where he cites Galens own words, nemo am­bigit quod ejus quod superest partis est aegritudo. and so the whole Difficulty is resolved in a Question about a Form of Speaking, whether, when the Fingers are cut off, it be more proper to say the Fingers are demembred, or the Hand is demembred of the Fingers.

It's a wonder why the DD. should make so much work about this Question,60 when as the Laws they found on, give little, or no ground, for their Opinion. For, as to l: 14: ff: de Statu. The Scope of it, according to Corasius, is not to determine what is a Member, and what not, but to regulat Succession ab intestato, and to exclude from that Succession all Monsters and prodigious Births, qui contra formam humani generis converso more procreantur; as when a Woman brought furth a Calf or Monster with two Heads, whereof many were brought forth at that time, among the Romans. As to these Paulus the Author of the Law determines, they should not be numbered among Chil­dren: But if the Birth was not monstrous, sed tantum membrorum humano­rum officia ampliavit; ex. gr. had six Fingers; such a Birth might be numbered among Children, and have the benefit of Succession: And therefore the said Text, as it's explaned, affoords no ground for proving that Digitus non est membrum. And l. 2. ff. de pub. jud. and l. si servi. Cod. de servis fugit. speak not one word of Members. And the truth is, the matter of Canonical irregu­larity occasioned the most part of the Debate.

Having said so much upon the digiti manus, 61 or Fingers, because we find it often debated in the Criminal Registers; it remains now that we speak something of the digiti pedis or Toes; As to which we have no Decisions in these Registers, but yet there is the same Reason to conclude, that the Crimes of Mutilation and Demembration may be inferred, when the like Vi­olence is committed on them, that serves to constitute these Crimes as to the Fingers, because they are also of great use; for if they be cut off, a man can nei­ther stand nor walk, as before, though he may in some measure do both; [Page 21]nor to put his Body in such a Posture, as to be able to defend him­self against the Assaults of his Enemies; nor to make his escape, when like to be overpowered. If only one Toe be cut off the inconveniency is not so great as arises to the Hand, by the loss of a Finger; yet the Foot hath a great loss by the want of the Great-Toe, and the Damnage more than in the loss of any other; and next to that, is the Damnage of the Toe next to it; and so in order, both as to Fingers and Toes; but still the loss of Fingers is e­steemed greater, because they performe moe Actions, and the hand is so noble a Member that when a Member is simply spoke of; the Hand is understood. Zacch. Quest. medico-legal. lib: 5: tit. 3. q. 6. N. 5. and the Authors there cited by him.

And yet if we may give credit to the Authors cited by Zacch. dict. q. 6. N. 9.62 we'l find that some men, born without Hands, have performed the like Actions with the Toes, as the Hand is in use to do. He cites Alex. Benedict. Paree, the famous French Chirurgeon, and divers others; making mention of persons, who Ate, Drank, played at Cards and other Games with their Toes; and of one that Stole, Rob'd, murdered with them, and suffered Death for so doing; and of a Woman that cut Cloath, Span, Sewed, &c. Zacch. says, anno 1624. he saw Petrus Lucernensis who wanting his Armes played on all musical Instruments with his Toes; and a Woman who anno 1627. perfor­med the like Actions. If any desire to please himself with Examples of this Nature, he may peruse Cardan. de subtil. & lib. 12. de variet. cap. 62. as also Schenckii. Hist. memorab. Monstrorum; and Wanely in his wonders of the little world. lib. 1. cap: 10. N. 3. & 6. We only mention these to this end, to show that if such persons should exist among us and be mutilated or Demembred of Feet or Toes, the Crimes would deserve equal punishment as in the case of Hands or Fingers, because the prejudice is equal, except as to Deformity, which is more visible in the hands.

Its questioned among the D D. if Precision of a withred Member infers the Crime and Punishment of Demembration? 63 Suarez: de censur. disp. 44. Sect. 2. N. 11. vers. Respondeo aliud esse. & versu. ideoque si alter postea. And Farin. Fragm. crim. part. 2. N. 597. handle the same point (as to Irre­gularity) and conclude that he that detruncats a withred Member from his Neighbours Body, becomes no more Irregular by so doing, than if he had cut off the Member of a dead man; because the Member wanted Life in the one case as well as the other; but if the Member cut off had been a living (though a weak & wounded) Member, the Detruncator (say they) had become Irregular; but notwithstanding of what they conclude as to Irregularity (the causes whereof they labour to retrench, as I have said) yet such a Detruncation infers the Crime and punishment of Demembration, when the Question is concerning Punish­ment, and not Irregularity, and this is the express Opinion of Caballus, resol. crim. cent. 3. Cas. 232. N: 77. & 78. where he affirmes, that albeit a Mem­ber want life, yet so long as it adheres to the Body, it's still a Member; as a withred Tree is always a Tree, so long as it stands on the Root; but after se­paration it's not called a Tree, but Wood: And for this he cites Angel. Sali­cet. Fulgos. and Coepol. To this add, that if a Malefactor be sentenced to have a Hand cut off indefinitely, it is always understood of his whithred hand, if he have one: per Authent. sed novo jure. C. de serv. fugit. & ibi gloss. 2. in adit. which could not be, if it were no Hand. This is also concluded by the said Cabal. dict. cas. N. 52. Jul. Clarus in pract. §. sin. q: 69. N. 4. Caepol. in dict. Au­thent. N. 24. Carpz. pract. Crim. p. 1. qu. 40. N. 43: and divers others.

The next Question is, if a man may be punished as a Demembrator, who cuts off a Member of a dead mans Body out of a design to disgrace it? Farin: 64 [Page 22] loc. supra cit. N. 559. says it infers no Iraegularity; so says Covarruv. in Clem. si furiosus. p. 2. in prin. N. 1. de homicid. because the Member be­ing dead, is no Member, or, rather, I say, because the separated Member was not cut off a living Body, as in the case immediatly preceeding. Majol. (cited by Farin. N. 600. ibid.) and some others affirme the contrary, because if the person had been alive, the Delinquents malice would have led him to do the same; and voluntas non actus, spectanda est. l. 1. §. 8. ff. de sicar. Yet for all that I think the Crime of Demembration cannot be hence inferr'd seing Homicide could not be inferred by a wound in the Heart, which would have killed him had he been alive. vid: Suarez. de cens. disp. 44. Sect. 2. N 3. ad sin. vers. atqne ita & N. 4. Farin. loco citat. N. 601.

The use of all this Discourse,65 concerning proper and improper Members, is for understanding general Statutes concerning Members, without mentioning whether they are proper or Improper; For Example, if a Law or Statute Ordain, that one who euts off, Mutilats or Debilitats a Member, shall be puni­shed: that will not reach him, who cuts off, Mutilats, or Debilitats an im­proper Member. Cabal. dict. Cent. 3. cas. 236. N. 16.17; unless says he, the con­trary appear from the mind of the Statute, as if it run against him, who cuts off or debilitats ANY Member; in that case, says he, it would compre­hend improper Members; because the Relative ANY, or ALIQƲOD is gene­ral: and for this he cites Bald. Fulgos. Castr. Caepol. Angel. August. And the like is asserted by Bartolus, ad l. non sunt liberi. 14. ff: de Statu. viz. That if there were a Law ordaining him that cutts off a Member; to be punished paenâ talionis; it would not reach him who cuts off an improper Member; and Pannormitan. C. cum illorum. 32. de sent: excommun. followes Bartolus: and it doth not alter the case, whether the punishment appointed by the Statute, be Corporal, or arbitrary: the thing remarkable being only the generality of the Word Member.

All Judges competent in Homicide, 66 are likewise competent in the Crimes of Mutilation and Demembration, and therefore not only are the Justices compe­tent, but likewise Baillies of Regalities, Stewarts of Stewartries, and the Com­missioners of the Borders. But sometimes where the Pursuit was first com­menced before the Justices, they have refused to allow Repledgiation, as in the forecited case, 15. July 1642. Chynie of Wallie against Mouat and Nevings, where the Justices did not allow Sir William Dick Stuart of Orkney (the place where they dwelt) to repledge, but recommended to him to agree the parties, and because he did not agree them, the Justices judged the Cause ut supra. The Justices allowe the Commissioners of the Borders to repledge; and so 11 June 1612. Lord Cranston repledged Rutherford pursued by Weir, for mutilating him of the foremost Finger of his left Hand; and yet the Ju­stices did not admit of that Repledgiation till they had advised with the Privy Council.

Barons of Baronry are not competent Judges of Mutilation and Demembrati­on; 67 and therefore there being a Pursuit moved before the Justices, 10. July 1635. Thomson against Gillespie and others, for mutilating her of her right Hand, when she came to rid them; and they craving to be absolved, because the Laird of Killhead, as Baron Baillie to the Lord Drumlanrig, had judged the Cause; The Justices repelled the same, and remitted the Pannals to the knowledge of an Assize. Neither is the Privy Council Judge to these Crimes, more than to Murder; And hence it followeth, that if he who is guilty should be conveened before the Privy Council, to be punished for that Crime as a Ryot; their Sentence would not hinder the Justices to judge it over a­gain under the head of Mutilation and Demembration. 27. June 1605. John­ston against Brown, and 9. and 11. January 1628. M^cmurran against Hamil­ton; [Page 23]where the case of Johnston against Maxwel of Grubtoun Anno 1605. for assaulting the House of Newbie, was cited; but the Justices only continued the Dyet, because Hamilton the Pannel, was sick.

But though the Privy Council cannot decide cases of Mutilation and De­membration; 68 yet they can precognosce and discharge the Justices to proceed; for this they can do in Homicide which is the greater Crime, and there needs no Proof of this, because it's dayly practised.

There are some Cautions to be observed in forming a Libel of Mutilation; 69 as first, Albeit it be sufficient in the case of Homicide, to libel that the Desunct was killed, ex: gr. on the first day of January 1698. or on one or other of the days of the said Month, or Months of the said year, yet in a Libel of Muti­lation, the Day must be precisely condescended on, or declared at the Bar, which is equivalent. 10 January 1640. Ker against Halyburton; and the al­ternative [upon one or other of the Days of the said Month, or Months of the said Year] will not be sufficient; because the Pursuer cannot insist with­in Year and Day after the committing of the Crime; in respect the Law allows that time, to expect recovery of the Wound; as we shall prove in the first Defence.

Secondly, It will be convenient that in a Libel of Mutilation, ex: gr. of the Eye, the true matter of Fact by which the Sight was taken away be condescen­ded on, and so in the foresaid Action 28. July 1643. Logie against Howison, the Libel bears, that the Eye was mutilated by a Stroke with a Tree on the Head; which brought a Defluction on the Eye, and occasioned a Blindness. If the Libel be so formed, it will the better quadrat with the Probation. and prevent all Cavillation, which may occur by reason of Difference that may happen between the Tenor of the Libel and Probation. I say it will prevent Cavillation; but I say not, that a Libel without this Condescendence will be rejected as irrelevant; for the contrary was found. 19 Nov. 1647, Inglis of Craigmakerren against Martin; where the Justices sound a Libel of Mutilation relevant without such a condescendence, notwithstanding it was urg'd that Mutilation falls no otherwise under the external sense, but by ver­tue of the Incisions or other Hurts from which it's inferred. But there will be greater difficulty in a Libel of Demembration, ex. gr. of a Leg; which was not cut off by the stroke or wound, but was crushed to that Degree, that the Chirurgeon was necessitated to cut it off; for if the true matter of Fact be not libel­led; but, in place thereof, it be said, that the Pannel cut off the Leg; then the Pannel will simply deny the Lybel, and consent it be found relevant, as con­ceived; and then when the Witnesses come to be examined, a Debate will a­rise upon the Interrogatories, for either they must be agreeable to the Lybel, or to the Matter of Fact: If to the Lybel, viz. whither they knew, that the Pannel cut off the Leg? they will depone negative; and if to the Matter of Fact, viz. if the Chirurgeon cut it off, then it will be objected, that the In­terrogatories are disconforme to the Lybel; and ought to be rejected; because the Lybel is found relevant as conceived; bearing that the Pannel cut off the Leg; whereas if the true Matter of Fact had been lybelled, viz. that the Chi­rurgeon cut it off; the Pannel would have alledg'd and prov'd, that the Chirurgeon did it ex malo regimine: Of which Defence he had no use as the Lybel was conceived: and so the Pannel being by the Conception of the Lybel depriv'd of that Defence, the Witnesses can only be examined upon the precise terms of the Lybel. And suppose the Justices do sustain the Interroga­tories as they agree to the matter of Fact, viz. that the Pannel crushed the Leg and the Chirurgeon cut it off, yet it may be after much Altercation, which may be preveen'd by lybelling the true matter of Fact.

Thirdly; It will not be improper in a Lybel of Mutilation, to say, that the Member was not only rendered useless at the time by the Hurt it receav'd, but that it remains still useless, never having recover'd: just as in a Lybel of Reducti­on of a Bond or other deed granted on death bed, its usual to say, that the Defunct dyed of the Sickness and never went to Kirk or Mercat after he granted the Bond; for by this negative (which proves it self) the burden of proving the Contrary, (viz. that the Member did recover its strength) is devolved on the Pannel.

Fourthly, If either Mutilation or Demembration be so secretly committed that no Witness saw it, and the Probation be only by Presumptions, it will be very convenient to condescend upon the Presumptions, in the Lybel, that the Justi­ces may give Interloquitor upon the Relevancie of them, and leave nothing to the Assize but to cognosce upon the Fact of those Presumptions, because it is hard in many cases to judge upon the relevancy of Presumptions. This Cauti­on was practised in the Lybel of Demembration at the instance of the Relict & Children of William Fenton against Montgomery, upon which the Lords Com­missioners of Justiciary gave their Interloquitor, dated 19. March 1690. find­ing the Presumptions relevant to infer an arbitrary Punishment, and remitted the same [id est, the matter of Fact of the Presumptions] to the Knowledge of an Assize, whereas if the Presumptions had not been lybelled, but had been first adduced before the Assize, it's a thousand to one if they had not given a Verdict, finding the Lybel not proved, because it concluded pain of death, on the account that the breaking of Fentons Leg was the cause of his death; which the Chirurgeons would not depone. I find a Libel of Homicid, 12. April. 1637. had been formed after the same manner; at the instance of the Kings Advocat against Memath, for murdering a poor Chapman upon the Hill of Corstorphine where no witnesses were present and no other probation but presumptive.

Fifthly, there are some, both Divines and Lawyers who think it convenient in a Lybel of atrocious Demembration to conclude that the punishment of Retali­ation may be corporaly inflicted on the Pannel, (as was done in the foresaid Pursuit, Forbes of Leslie against Pitfoddels) to this end, that if either the Pannel be solvent, yet unwilling to pay what the Judge shall think fit to mo­difie by way of Assythment: Or if he be vilis persona, or indigent: corpo­ral punishment may be inflicted; In which last case the Lawyers say that Paupertas facit poenam pecuniariam commutari in personalem. Caball. dict. cas. 236. N 43. & 45. and this Cautela doth likeways answer to the design of cap. 11. stat. Rob. 2.

I come now to the Defences; 70 some whereof are Dilatory and serve only to continue or delay the Dyet; others are peremptory which elide the Lybel. Of the first kind are these.

1.71 It's a good Defence against a Lybel of Mutilation that year and day is not elaps'd, since the Time lybelled of committing the Crime, this the Justices will sustain and continue the Dyet till Year and Day elapse, because by our Custom, as aforesaid, so much time is allowed to expect recovery. So they found 17. Decem. 1624. Boyne against Hately and 10. January 1640. Ker against Halyburton and Crawmond. It was also propon'd 9. and 11. January 1628. Mcmurran against Hamilton, and in the above-cited 3. August 1647. Forbes of Lesly against Pitfoddels; but none of these two came to a Decision. The reply to this (if the Day of Committing be condescended on) is; that though the Lybel be raised within year and day, yet it's not insisted on, till year and day be elapsed; or in case a certain day be lybelled with an Alterna­tive [of one other of the days of that Moneth or Moneths of the year] then the Reply is, that suppose count be made from the last day of that year, it will be found to be expired.

This Defence, that year and day is not elapsed,72 takes no place against a Lybel of Demembration; because where a Member is cut off, recovery is not to be expected, as was found, 27. Feb. 1618. Thomson against Miln, for biteing off her Finger.

If the Pursuit be both for Mutilation and Demembration, 73 ex. gra. for mu­tilating two Fingers, and demembring the Hand of other two: the Pursuer may pass from the Mutilation, and insist within year and day for the De­membration; as was found in the foresaid case 17. Decem. 1622. Boyne against Hately, for demembering him of two Fingers and mutilating him of other two.

The second Dilatory Defence is, that the Case is submitted: 74 and the Inter­loquitor in such a Debate is, to continue the Dyet, till the day of the Expira­tion of the Submission; which may be either condescended on, and insert in the Act of Continuation; or the Justices may put the Pannel under Cauti­on to answer on fifteen days warning, in case the Submission take no effect; 14. June 1626. Ord against Forbes; 15. June 1629. Paterson against Wordie; and 20. July 1627. inter eosdem: From these two dilatory, two peremptory Defences follow.

The first peremptory Defence is, that the mutilated Member is perfectly reco­verad; 75 in so far as the Pursuer makes use thereof as he did formerly: and it will be fit to condescend upon the Deeds of Stength, which are the Evidences of Recovery. Ex. gra. against a Lybel of mutilating of the Hand of the Fingers, it was found relevant that the Pursuer had ridden up and down the Countrey, & held the Bridle with that Hand and Fingers; and that he cut up Poultrie and Geese at the Table, as he had been in use to do; 15. Dec. 1630. Barclay against Kennedy in Mayboll, where the Defence being prov'd, the Assize cleans'd the Pannel; and the Justices only fin'd him in an hundred Merks of Expenses for the Cure The like Defence was sustained in the foresaid Pursuit of Mutila­tion. 3. Novem. 1621. Williamson against Marion Paton residenter in Leith, for dislocating the Spondyls of his Back, and mutilating him of his Leg; in which Pursuit the Justices found this Defence relevant to elide the Lybel, that the Pursuer, being a young Boy, had in his usual Recreations with his Com­rauds, run Races on the Links of Leith; as he was in use to do before he was hurt. As also 6. June 1627. Lesly against Harvie, for breaking, at least lame­ing and mutilating him of his left Leg; this Alledgiance was found relevant, that the Pursuer had walked from his House many Miles.

This Defence of Recovery, is only relevant against a Lybel for Mutilation; 76 for, as hath been said, Members once prescinded cannot be recovered; But Gaspar Taliacotius, in his Chirurgia nova de Narium, Aurium, Labiorumque de­fectu, pretends to have discovered a new Art of repairing Noses per incisionem cutis ex humero. And Lanfrancus cited by P. Zacchias quaest. medico-leg. lib. 5. tit. 3. q. 3. N. 3. reports, that some had asserted that a Nose, which once lay prescinded in the owners hand, was thereafter restored to it's place; but he calls it an impudent Falshood. Yet Zacchias dict: q. N. 1. and 4. fol­lowes Taliacotius; and cites Paree, and other famous Chirurgeons asserting the same, and thinks this may be usefull to Lawyers, for discussing cases of De­membration. But seing these learned Physicians do not agree about it, I re­mit the case to be class'd inter ea, quae raro & ex inopinato accidunt; Like the partus quinquagenariae, in l. si major 12. C. de legitim. Haered. and like Sera­pia's Birth of five Children; in l. utrum. 7. ff. de reb. dub. which last, Aristotle judg'd to be as impossible, ut in l. 36. ff: de solut. as Lanfrancus did the restoring of the Nose; and seing, if it exist, we cannot expect express Law to decide anent it, (because Laws are only made for things quae ut plurimum, & non quae raro eveniunt, l. 3.4.5. ff: de legib.) it must be then regulated (when it happens) by paritie of Reason, with cases commonly existing, ac­cording [Page 26]to l: 10: 11: 12.13- ff: eod. And by the same Rule, the Judge may decide in the Amputation of the Toes of persons, formerly mentioned, N. 62. who use them instead of Fingers.

The second peremptory Defence is,77 that the case being submitted, the Arbiters have decerned, and the Pannel is willing to sulfill the Decreet, or has already done it and obtained a Discharge; or that the Parties have transacted and agreed; this I say is relevant; for all Injuries become extinct by Paction or Transaction l. sitibi: 17: §: 1: l: si unus 27: §. pacta 4. D: de pact. l: non solum 11: §: 1: D: de injur: and was so found by the Justices 14: June 1637 Allardice against Forbes for mutilateing him of his left Leg. In all these cases the Justices desert the Dyet, which is the proper terme of the Sentence proceed­ing upon Transactions.

The Justices do oftentimes recommend to the Parties to submit,78 so they did-in the foresaid case 15. July 1642. Cheyne of Wallie and his Brother against Monat and Neivings, where Sir William Dick Stewart of Orkney compearing to repledge, the Justices recommended to him to agree the parties. Sometimes a judicial Submission is made to the Lords themselves, as was done 1. Feb. 1650. by Mclure and Baxters.

Whence observe that the Crime of Mutilation and Demembration are but privata delicta; 79 whereanent Judges are not oblig'd to inquire. dict. §. 4. ff. de pact: whereas publick Crimes cannot be transacted, l. juris gentium 7: & §. paciscar: 14: init. vers. Et in caeteris: ff. eod: and may be inquired in.

A third peremptory Defence is, that the King has remitted the Crime, & ordered an Assythment; 80 & the Pannel has found, or is willing to find Caution to pay the same as shall be modified; or that its already modified & consign'd: which Defence, as its usual against Homicide, so, is expresly sustained to fist the Pursuit of Demembration 17. May 1610. Rob. Keith against Lindsay.

Fourthly,81 Dissimulation (which is a tacit Discharge inferred from a friend­ly converse and Acts of Kindness) is a good peremptory Defence. §. ult. Inst. de injur. l: si tibi. de liber. caus. But it must evidently appear that there is a design to pass from the Pursuit; and therefore in the foresaid case, 12. Ja­nuary 1642. Taylor against Norrie for mutilating of his Thumb; the Justices found that the Pursuers consenting to let the Pannel out of Prison and drink­ing with him, were no such Acts of Dissimulation; but perhaps there were some Specialities in the case: as that they convers'd and drank together for respect to the Company; and the letting out of Prison might be in order to meet for communing about an Agreement. But abstracting from these or the like Circumstances, friendly conversing & drinking together, is astrong Presumpti­on of passing from the Crime, according to Mathaeus; Apud Germanos (says he dict. tit. N. 14.) propinatio poculi validissimum dissimulatae injuriae argumentum est.

Fifthly, 82 res judicata is an uncontroverted Defen ce; the Tryal being be­fore the Justices who are the Judges competent: But (as I said before, N. 67.) neither is the Privy Council nor any Barron-Court Judge competent. Act. 6. Parl. 16. Ja. 6. And therefore their Decreets will not serve for an Absolvitor; but if the Pursuer passes from the Mutilation, and insists for Blood­ing or Wounding only; res judicata before the Privy Council or an inferi­or Court, is sufficient; and if it be the Sheriffs Decreet, and a Reduction of it raised, and a Reply upon the Reduction; the Justices will continue the Process for a time, till the event of the Reduction be known. So they did, 19. Nov. 1649. Inglis of Craigmakerran against Martin.

Sixthly, 83 It's a good Defence that the Privy Council hath precognosced, found the Pannel innocent, and discharged the Justiees to proceed. This is dayly practice and needs no Confirmation; as was said, N. 68. supra.

Sometimes the Council remit to the Justiees to precognosce,84 so they did 30. July 1614. in a Precognition craved by Donaldson against Ronald Lorimer and other three persons, for demembring him of the Left Hand; and the Justices not being able to discover any thing, because the Fact was done in the Night, they remitted it to the Assize, who neither would fyle nor cleanse the Pannels, whereupon the Justices committed Lorimer to Prison, till they should advise with the Council, and then 16. Novemb. that same year, after advi [...]ng with the Council, they pronounced Doom, that Lorimer should find Caution to satisfie Donaldson as the Council had ordained.

Seventhly, The alledgeance of Self-Defence is relevant here, as in Homicide; 85 and therefore as a Man may kill, in defence of his Person, his Wife, or her Honour. l. 1. §. 4. ff. ad l. Cornel. de Sicar. so much more may he mutilat or demember such an Invader: As was sustained 27. June 1605. Brown against Johnston, in which case Brown was mutilated in assaulting Johnstons House in the Night-time, with an Intention to abuse his Wife; and yet had the con­fidence to pursue for the Mutilation; whereas if Johnston had pursued Brown, then certainly Brown had been hanged; for 20. Feb. 1650. William Macrie Soul­dier, was convicted and hanged, for invading Colemans House on the like wicked Design. Also a Man may kill or mutilat in defence of his Goods, Covaruv. de homicid. relect. 3. sect. Ʋnic. N. 6. where he adduces many Texts of Law. As also a Man may Kill or Mutilat a Robber in the recovery of Stolen Goods, when he is flying with them. Act 100. Parl. 11. Jac. 6.

If a Man defend himself against one who is authorized by lawful Autho­rity to apprehend him, that will not be esteemed Self-Defence, 86 nor will he that mutilats in the apprehending be accounted a Mutilator. This was found anent the re-taking of a Souldier, who had run away from his Colours, and being pursued, drew his Sword and resisted, and was mutilated in the Re­sistance. 2. Decemb. 1641. Jarden against Edmonston. And just so will it be in the case of Messengers, in their lawful executing of Captions. See our Au­thor Tit. 11. of Murder. N. 13.

Eighthly, It's a good Defence that the Wound was curable,87 and that the Mu­tilation or Demembration was ex malo regimine. This holds in Homicide, [see our Author, Tit. 11. N. 10. and Farin. de homicid. qu. 127. p. 3.] and much more in lesser Crimes. But if the Chirurgeon was necessitated to cut off the wounded Member, that will not excuse the Crime of Demembration; it being all one to cut off the Member by a Stroke or to necessitat the Chirur­geon to do it; per l. nihil interest 15. ff. de sicar. And so it was found in the foresaid Action 27. Feb. 1618. Thomson against Miln, for biting off her lit­tle Finger. But there may be some diffierence in the forme of lybelling the one or the other; as, N: 69: sect: 2: supra.

Ninthly. If more than one be conveen'd for Mutilation or Demembration, 88 as Actors, Airt and Part, all of them may be insisted against, and it will be no good Defence for any of the Pannels, that there is but one Wound which could only be given by one as principal percussor, who ought to be condescen­ed on, and first discussed. This was expresly propon'd for three Defenders, and repelled, in respect Airt and Part was libelled, 10. July 1635. Bessie Thomson and her Spouse against Gilespie, Thomson and Hill, for mutilating her of her right Hand when she came to rid them, they being all fighting to­gether: all three of them were remitted to the knowledge of an Assize. The like 24. July 1635. Fletcher of Benshaw against Ramsay, Lindsay and the Lord Spinie, in which Action the Lord Spinie compear'd and took the Fact on him and alledged that he was fyned by the Baillie of the Regality of St. Andrews, and yet it was repelled in respect of Airt and Part. And in the foresaid Acti­on 15. July 1642. and 5. August 1642. Cheinie and his Brother against Mowat and the two Neivings for mutilating them: all the three Defenders were [Page 28]convicted and fined in 1000. lib. to the parties, and two hundred pounds to the King: and 3. Novem. 1620 in the foresaid Action Allanson contra Steuart and others for demembring him of a Thumb and three Fingers, and giving him seven bloody wounds; it was alledged for Steuart that one of the De­fenders was fugitive and at the Horn, and had thereby taken the Crime on him; and l. si in rixa percussus 17. ff: de Sicar. was cited, which was also repelled, and he was remitted to the knowledge of an Inquest. The like 6. January 1662. Advocatus contra Bates and others for Slaughter. And yet 10. June 1618. Robertson against Ross for mutilati [...]g him in his right hand, it being alled­ged for Ross the Pannel, that one was at the Horn for that Crime, and fugitive, the Assize cleans'd the Pannel; but the truth is there was no Probation in the case against the Pannel, and a testificat was produced under the hands of fam­ous Gentelmen laying the Guilt on the Fugitive: See our Author, tit. 11. num: 12. speaking of homicidium in rixa, where many are conjunct Actors.

Tenthly, 89 It has been anciently sustained for a Defence as well in Homicide, as in Mutilation and Demembration, that the Party killed or wounded was de­nounced Rebel, or, as we call it, at the Horn at the time for a criminal cause. This was found in the Action Anno 1610. Ker of Ferneherst against Turnbulls and others, and the extract of the Horning was found probative, and Relaxa­tion was sustained by way of reply, to elide the Horning. The same was at length debated from the Civil Law, and D D. 20. Nov. 1618. Meldrum a­gainst Meldrum of Eden, but not decided. And is like the Question among the D D. If it be lawful to kill Bannitus or an outlaw? whereof he who desires to be satisfied may consult Farinacius prax. crim. q: 103: It seems that before the year 1612. a Defence founded on a Denunciation for a civil Cause was a ground of Defence, because by the third Act of the Parliament that year, it's statuted and declared, that for time coming it should not be lawful for any man to kill or mutilate any of the Subjects on the account of their being at the Horn for civil causes, under the pain of being punished as Murdere rs and Mu­tilators, with this Declaration, that the Act should take effect heirafter allan­erlie which implyes that a Defence on an Horning for a civil cause, was good be­fore. Our Author hath fully discussed this Question dict. tit: of murder, N: 19.

But before a Pannel at the Horn (for not finding Caution to compear) taken with Caption and presented to the Bar will be allowed to propone this Defences,90 he must relax. So it was found by the Justices 9. May 1605. Skirven against Forrester, for mutilating him of the Right Hand; where this Alled­gance that Defence was juris naturalis was proponed and repelled: But if there be any Nullities in the Horning, the Pannel may propone them; as was done in the said case.

Eleventhly, 91 If the pain of Retaliation be expresly craved in the Libel (as was in the foresaid case. 28. July 1647. Forbes of Lesly, against Pitfoddels;) the Pannel will be forced to debate how far the Law of Retaliation, given to the Jews, is obligatory upon other Nations; so it was there debated, but not decided. This Point I shall labour to clear hereafter.

Lastly, 92 It's a good Defence, that the Pursuer did mutilat or demember him­self; this (though contrary to the Libel) was found relevant 12. January 1642. Taylor against Norie; for mutilating him of his Thumb: against which the Pannel offered to prove that the Pursuer did mutilat his own Thumb when he was rashly drawing his Sword.

These are the particular Defences, 93 which I find in the Books of Adjournal; to which I may add this General: That whatever Defence is competent against Homicide, is also competent against Mutilation and Demembration; mutatis mutandis.

Now I come in order to speak to the Probation of the Libel and Defences,94 which (in as far as it coincides with Probation in other Crimes) needs not to be spoken to. I shall only mark two things.

First, That as in an Action of Homicide, 95 if the person said to be killed be produced alive at the Barr; as in the case mentioned by Annaeus Robertus rer: jur. lib: 1: c. 4: (and which was once done in a Pursuit at the instance of a Genle­man against his Neighbour, for alledged killing of his Shepherd, recorded in the Journal Books, but their Names escape me) then it would be very super­fluous to prove by Witnesses, that the person said to be killed, is alive, because the Judge and Inquest see him: Even so in a Libel of Demembration, ex. gr. of an Hand, if it appear by ocular inspection that the Pursuer have both his Hands; as in the case of Arsenius said to be murdered, and demembred of a Hand, by Athanasius, and thereafter for vindication of Athanasius, brought in alive having both his Hands. Socrat: eccl: hisi: lib. 1. cap: 21: and Ruffin: l: 1: cap: 17. I say in all or any of these cases, the Judge and Inquest can cognosce the matter by its notoriety; just so if an Hand said to be mutilated, appear by oc­ularinspection, never to have been mutilated, or to be perfectly recovered, the Judge & inquest need no further Evidences. So they did in the cases 28. July. 1627. Pa­terson against Wordie, and 19. Novemb. 1657. Inglis against Martin.

But 2. If there be any doubt in the case; 96 as falls out when the Hand or Fingers are wounded; and no mutilation committed, but only pretended to be committed; the Truth in that case must be discovered: Either by the Oath of Calumny of the Party pretending to be mutilated; or, by Witnesses who saw him express Signs of recovery: as was done, N: 76: supra: Or, by the tryal of skilful Chyrurgions, who must declare their Opinion upon Oath, before the Judge and Inquest; and as this is our dayly Practice, so is it the custom of forraign Courts, as Caballus testifies in di [...]. cent. Resol. 3. cas. 236. N. 113. & seqq. where he cites Angelus iustructing Judges to advise with skilful Physicians and Chirurgions in ambiguous cases, how far the Member ex. gr. the Hand is mutilated or debilitated (for these two are but one and the same with him) by incision of the Thumb or other Fingers, and to record their Opinion or Report, among the Acts of the Process: And as Caballus re­lates this as the Advice of Angelus, so he says that he hath seen this frequently practised by Judges, and that he himself has often practised the same; and particularly that he has seen many Reports of skilful Chirurgeons concerning Debilitation or Mutilation of the Hand by Incision of the Thumb, or by Wounds given in the Fingers of the Hand, and sometimes by Amputation of two Fingers, so that the Hand ceased to exerce it's proper Office, and became almost un­profitable; and in all these cases, the Delinquents were condemned to under­go the punishments imposed by the Laws and Statutes of the Place where the Crime was committed.

The Justices, with us, do never accept of the single Testimonies of Physici­ans and Chirurgeons; but oblige them to depone, or declare upon Oath; 97 notwithstanding they have often contended, that the Oath de fideli admini­stratione, they gave at their Admission was sufficient for all: So it was de­cided; 20. July 1627. Paterson against Wordie; and for the same cause the Justices do reject Testificats subscribed by them, unless bearing upon Soul and Conscience. So they did 7 Novem. 1621. Williamson against Paton; and 15. Decemb. 1630. Barclay against Kennedy in Mayboll, in which last case, the Testificat was subscribed by the Deacon of the Chirurgeons of Edinburgh and other two of the Trade. And the like Objection was made 12. January 1642. against a Testificat produced by Taylor against Norie to prove the Lybel, not­withstanding it was written by the Clerk of the College of Chirurgeons, and subscribed by four of them. And that this is agreeable to the Opinion of the DD. [Page 30]of Law and practice of Forraign Courts (what ever be pretended to the con­trary) will appear by the following Citations of Law and DD, as Crusius de indiciis delictorum. p. 2. C. 20 N. 13. & seqq. Mascard. de prob. vol. 3. conclus. 1175. N. 40. juncto N. 50. Baldus & Salicetus, l. hac edictali. 65 §. his illud 1. de sec. nup. and others cited by Mascardus, dict. N. 50. Farin. vol. deci­sion: crim. decis. 346. N. 5. & N. 6. and Decis. 365. N. 1. and 5. Vid. etiam Carpz. Criminal. p, 1. qu. 21. N. 8. and qu. 20. N. 38. & seqq. and the DD. cited by him: As also Matthaeus de sic: cap: 3: N: 17: likeways Gail: 1: obs: 111. N. 3. all of them asserting and proving that their Oaths should be taken. This was expresly enacted by a Constitution of Charles the fifth Artic. 149. cited by Carpz. dict. N. 38. and decided in Camera impe­riali. Mynsyng. cent. 6 observ. 34. Vid. dict. Crusium, loc. citat. N. 19. and Bald. in l. 20. C. de fid. instrument. And there should be at the least two of them, if they can be had. Matthaeus Ibid.

There are some cases wherein Physicians and Chirurgeons are not obliged to swear. as 1. If they be assumed by the Judge; or 2. if they be chosen by mutual consent of Parties; to declare anent the nature of the Thing; no more than a tutor Testamentar is obliged to find Caution, and the same Rea­son is for both; viz. because they trust their Faith by chosing them. Mascard. dict. conclus. N. 51. Mynsyng. cent. 5. dict. observ. 34. N. 13. and 14. Or, 3. If the Physician or Chirurgeon be appointed by publick Authority, for such business, and sworn at the beginning. Mynsing. dist. N. 14. Carpz. qu. 26. N. 40. And so I understand Matthaeus, saying, it's sufficient they were sworn at their entrie to their Office. dict. N. 17. but withal they should be put in mind of their Oath formerly given.

From hence it followes,98 that the Assizers who are to judge on a Probation wherein so many Difficulties occur, upon the Qualities of Wounds and Chirurgical Terms, should be more than ordinary intelligent: otherwise they who in dubious Cases incline to absolve, may probably free the guilty upon some mistaken point. This fell out in the foresaid case 8. July 1643. Logie against Howison for Mutilation of an Eye: the Pannel was by them cleans'd upon a point that arose from the Probation; viz, that the Pursuer gave ill words, & thereby provoked the Pannel to give the stroke which occasioned the Blindness, and yet this was neither pleaded nor relevant; for the Law does not allow Compensation betwixt verbal and real Injuries. And Advocats who plead these cases, may likeways see how necessar it is for them to study the Quaestiones medico-legales, without which it is not possible for them to under­stand some Texts in Law; l. 12. ff. de Statu. And many other Laws in the Titles ad leg. Aquil. & de Aedil. edict. But we need not give instances, seing the large Volume of Paulus Zacchias frequently above cited, contains hun­dreds of Instances. And Matthaeus, dict: loc. thinks it may be useful also for Judges to understand these things, that they be not easily deceived by the Re­ports of corrupted Chyrurgions; and in order to this, he lays before them the 18 Aphoris: of Hippoc: de vulneribus lethalibus, sect: 6: and the words of Celsus, lib: 5: cap: 26: as a particular case to be understood.

PART II. Of the Punishments of MUTILATION & DEMEMBRATION,

I Have now done with the first Part of this Appendix; 99 and therein I have shown what it is to Mutilat and Detruncat a proper Member of a Mans Body; and how to pursue and defend Actions thereanent. I come next in this second Part to speak of Punishments and Damnages; which are not always the same, but vary, in these as in other Crimes, ac­cording to Circumstances; tot. tit. ff. de poenis. Farin. 11.87. & seqq. dè poenis temperand. The DD. insist chiefly on Retaliation, Amputation of a Hand; and arbitrary punishment; and there is a Fourth, mentioned in an ancient Statute of our Law, viz. cap. 11. stat. Rob. 2. where it's said, that for wilfull and premeditated Mutilation (which is there understood for De­membration) the Delinquents Life shall be in the Kings Will and redeemable.

Retaliation; which is the first of these, is a Punishment of equal Retribu­tion, or the doing to one as he hath done to his Neighbour; 100 instituted by GOD; committed to the Jewish Magistrat for Execution; and thereafter re­ceaved by the Gentile Nations, upon the account of it's natural equity, and executed by the Rule of Geometrical Proportion. All which I shall make ap­pear in several Conclusions. Cardinal Hugo on Exod. 21.23. thus expresses it; Talitur laedendus est justè, qualiter ipse injuste fecerit alii. Poena talionis is not expresly mentioned among the Laws of Justinian; except in §. poena 7. inst. de injur. but we find it in Novel. Leon. 60. & 92. The Reason why it's but once in Justinians Law, is, that when Trebonian composed the Law, Retalia­tion of one Member for another was worn out, and in place thereof actio in­juriarum had succeeded, as in dict. §. Poena. It's oftner in the Canon Law, as in C. Poen. 14. q. 1 and in C. sex differentia, 23. q. 3. and in C. calumniator. 2. q: 3. but it's frequent among the DD. as Jul. Clarus, Farinacius, Cujac. Bart: Bald: and others. And among the Rhetoricians; as Quintil. declam. 297. & 352. Senec: Controvers. 2. lib. 3. & controv. 33. lib. 5. and it's to be found in Symmach. Epist. 59. lib. 1. & Epist. 27. lib. 3. and Sidon. Epist. 3. lib. 5. and the Essence of it consists in the cutting off one Member for another, as appears by the punishment of him who makes an Eunuch: Novel. Justin. 142. Cap. 1. It hath it's name from the Latine word Talis. Voss. in Etymol. which denotes an Equality betwixt the Crime and the Punishment; and for this Cause it's likeways call'd paena similis supplicii; in l. ult. c. de accusat. & l. ult. ff. de calumniat. Poena reciproci. in l. 3. lib. 9. c. Theodos. de exhib. vel trans­mit: reis. And paena paris vindictae; quasi [...], or the suffering of the same thing. It is several times called by Aristotle [...] lib. 5. Ethic. cap. 5. i: e: contrapassum: All these are Names denoting Equality.

The Subject is Juridico-theological; 101 and therefore in handling of it the DD. of Theologie cite Law and Lawyers; and the DD. of Law cite the Sacred Scriptures and Divines, which must be my Method at present; For as in the first part I made use of Physicians to assist the Lawyers; so in this second Part I must call Divines to my Assistance.

And because the Subject is full of Difficulty,102 especially as to the Obligation of the Law of Retaliation under Christianity, I shall labour to clear the Difficul­ties in a few Conclusions, whereby the divine Authority and natural Equity [Page 34]thereof shall be proved in the first place, and yet it shall be shown in the se­cond, that it was not intended to be always executed in the strictest and li­terall Sense, but according to the Rules of Geometrical Proportion and di­stributive Justice.

1.103 All, except Deists who deny the Authority of the Books of Moses and reproach this Law, (as you may see in Nichol's Dialogue with the Deist) acknowledge that the Law of Retaliation, was one of the Laws which Moses received from God, and delivered to his People the Jews. For first God gave this Law to secure the Life of man Gen. 9: 6. in these Words, He that shedeth mans blood, by man shall his blood be shed; and having declared it to take place in all cases of wilful Homicide, Exod. 21.22.23.14.18.19.20.21.22.23. with Certification in the last of these Words, that Life should goe for Life. He thought fit, by a further step of his wise pro­vidence, to forbid Demembration under the like pain. vers. 23. Eye for Eye; Tooth for Tooth; Hand for Hand; Foot for Foot. As also Mutilation and lesser Hurts, v. 25. Burning for Burning; Wound for Wound; Stripe for Stripe: These are the Words of the first Institution of the Pain of Retaliation; which is renewed Levit. 24.19.20: If 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 unto him again. Further, least this should be thought to reach the Percussor only; It's declared Deut, 19.6. and subsequent Verses, to extend also to a false Witness, by whose false Testimony the Life or Member of an innocent man should be taken away. All these places of Scripture serve to illustrat the a­bove mentioned Description of Retaliation; because the very words in the Texts Eye for Eye, Tooth for Tooth, &c. are as so many Examples of the E­quality to be observed in Execution of the Law either Literally; or Analogi­cally, by geometrical Proportion.

This Law was not a business of private revenge,104 and therefore the executing of it was not committed to the Party injured (as some Commentators on Math. 5. vers. 38: 39: &c: charge upon the Sadduces) nullo enim modo servaret ille modum, says Estius in Exod. 21.23. but the Exe­cution was committed to the Magistrat; for Deut. 19: 17. it's expresly said, that both the men between whom the controversie is, shall stand before the Lord, before the Priests, and the Judges which shall be in those Days. And all privat Revenge, yea even private hatred, was expresly forbidden the Jews. Levit. 19.17.18. thou shalt not hate thy Brother in thy heart: thou shalt not avenge nor bear any grudge against the children of thy people, And the Roman Law, tot. tit. C. Ne quis in sua causa; permits no man to judge in his own cause, except supreme Judges.

3.105 This Law of Retaliation, with many others of the Jewish oeconomy, was transmitted to the Gentile Nations, and particularly to the Grecians, (who were the most learned and polite of all others,) but it is not agreed upon, neither as to the manner how, nor the time when, the Grecians recei­ved them. Dan. Huetius, in his Book intituled, Demonstratio Evangelica prop. 4. cap. 8. n. 2. cites Authors, who say, they might have received them from Cadmus and Danaus, who being contemporaries with Moses, were forc'd to fly from their own Country of Aegypt, and sheltered themselves among the Grecians, and taught them those Laws. And he dict. prop. cap. 11. insists at large upon the transmission of these Laws to the Grecians by the Syropheni­cians; but Authors (whom he cites) do not agree about the time. Some think it was when the Syrophenicians fled from the Sword of Joshua, invad­ing [Page 35]their Country; others think, that the Syrophenicians themselves had ne­ver learned these Laws, before Solomon sent many thousands of his People to provide Materials for the building of his Temple, 1 King. 6. But the Gre­cians had the Law of Retaliation long before this time, if credit may be given to the Pythagoreans, who (as Aristotle says, lib. 5. Ethic. cap. 5.) ascrib'd this Law to Rhadamanthus King of Lucia as its Author, in these words, Quod quisque fecit patitur; autorem scelus repetit; suoqu [...] premitur exemplo nocens: I say, it must be older than Solomon if Rhadamanthus enacted it, for Turse­linus in his Epit. Hist. makes him contemporary with Joshua: and according to Huetius, dict. c. 8. N. 12. he was the same with Moses. Calvisius, Helvicus and Nauclerus calculat him to be about the same time. But Diod. Sicul. lib. 12. a­scribes the Law for the Eye, Si quis oculum eruerit, oculum reo pariter erui­to, to Charondas King of the Locrians, surnamed Thurius, (because he gave Laws to the Thurians or Tyrians. Tiraquel. in his Notes on Alex. ab Alex. lib. 6. dier. genial. c. 10.) and then, as to that particular Member, the Law was of a later date. But leaving these Chronological Inquiries, because the Heathen Histories of these times, from which they are taken, are very uncertain; according to the learned Stillingfleet. Orig. Sacr. cap. 1. in fin. It's enough for our design that we find the Law of Retaliation, among the Grecians; and no man will deny this who reads Aristotle dict. l. 5. Eth. cap. 5. Demosth. in Timocr. Diog. Laert. lib. 10. And Huetius dict. prop. 4. C. 11. p. 161. is positive, that the Law of Retaliation, was one of the Laws which descended from the Jews to the Grecians, & transmitted by them to the Romans in the XII. Tables, l. 2. §. 44. ff. de orig. jur. anno Ʋ.C. 300. where­by it is agreed, that it was a Law anciently among the Grecians, and that they honoured it for its equity, by ascribing the general Law, Quod quisque fecit patitur, to Rhadamanthus, and the particular Law, Si quis oculum eruerit, to Charondas; both fam'd for their Equity and Justice, as Virgil. Aeneid. lib. 6. and the Mythologists testify of the first; and Val. Maximus testifies of the last, lib. 2. cap. 5. but by instancing a Heathenish piece of Courage.

Conclus. 4. This Law of Retaliation is founded upon natural Equity; 106 which consists in observing equality between the Crime and Punishment. This I prove by the following Arguments.

Argum. 1. Common censent of all Nations in the receiving a Law,107 is a good Argument for its natural Equity; and all Nations have agreed to re­ceive this Law. This we have already showen, as to the Grecians and Ro­mans, N. 105. supra. As for other Nations, their receiving this Law of Re­taliation, see Dempst. lib. 9. Rosin. in paraleip. p. 940. Cujac. lib. 7. observ. cap. 13. P. Aerodius, rerum judicat. lib. 6. tit. 5. de injur. c. 20. Forner. lib. 3. select. cap. 28. Faber. lib. 3. Semest. cap. 19. and Covaruv. var. Resolut. lib 2. cap. 9. Moreover, the Authors of particular Texts in the Roman Law are positive in this point of natural Equity; as, Ʋlpian. in l. 1. ff. quod quisque juris, who there says, Quis aspernabitur idem jus sibi dici, quod ipse aliis dixit. And the foresaid Joannes Suarez. dict. cap. N. 7. says, that he believes the Praetor introduced the Law of Retaliation against the Magistrat, who contrary to his duty, decerned unjustly; and therefore an anonymus German in his Book intituled, Jus ff. illustratum, inscribes his Notes upon that Title, in these words: De jure talionis sive re­torsionis. See Maranus (Cujacius his Scholar) on the same Title. And S. Cacilius apud A. Gell. lib. 20. c. 1. disputing for the Equity of the Law of Reta­liation in the XII. Tables, against Phavorinus, has these words, Quae, obsecro, ista est acerbitas, si idem fiat in te, quod tute in alios feceris?

Arg. 2. It's natural Equity is asserted by many great Authors,108 as by S. August. lib. 21. de Civit: Dei. Cap. 11. Expostulating with the Gentiles who laboured [Page 36]from the natural Equity of this Law to confute the belief of Eternal punish­ment: as if it had been disproportional to a temporal Sin; not knowing, that the Sin was measured from its being against an Eternal Majesty, Infinite in Ju­stice. Of this Opinion also are, Gratian: in C. paenas 14. qu. 1. & in C. sex dif­ferentiae 23. q. 3. Tertul. lib: de patientia cap. 6. Origines, homil. 10. in Exod: D: Ambros. lib. 1: officior. cap. 48. D. Valerianus in serm. de bono disciplina. S. Isiodorus pelusiota lib. 2. Epist. 133. Abulensis in cap. 24. Levit. all cited by Johannes Suarez de mendosa ad l. Aquil. C. 2. in apparatu N. 6: where he says plane haec de talione lex non solum bono sed aequo convenit; quia in poenae aequalitate versatur, sed nulla esse reperitur, quae magis secundum naturam sit: nitebatur enim naturali hac ratione quae aequiss. ma omnibus visa est; nimirum quod inse patiatur quis (que) quod fecerit alteri. And again N. 8. Igitur cum haec lex naturali ratione suffulta sit. Inde est quod omnes Gentes eâdem lege rege­bantur, & ab omnibus peraeque custodiebatur. And this Answers exactly to the Definition of natural Equity given by Aristotle lib. 5. c. 7. where dividing jus in [...], naturale & legitimum, he calls naturale, quod ubique eandem habet vim, & non quia sic videtur aut non videtur. And legitimum, quod initio quidem liberum est, postquam vero constitutum sit, observari necesse est. This natural Equity is also asserted by learned Divines, Andreas Rivetus ad Exod. 21.24. N. 3.4. And Antonius Walaeus oper: tom. 2. p. 290. col. 2. as also by Soto, tractat de inst. & jur. lib. 5. art. 4. in the case of punishing Ac­cusers; and by Episcopius, inst. l. 3. Sect. 2. c. 12. The same is also maintained by Farin. prax. crim. qu. 16. de accusat. N. 2. and by Vander Muelen: p: 2: qu: 15.

Arg. 3.109 As this is evident by these many Authorities, so it is proved by the following Acts of Gods special providence and vindicative Justice executed, by the Rule of Retaliation, against hainous Offenders, and notorious Malefact­ors; as upon Pharaoh, by drowning him and his Host in the Red-sea, in Retaliation of the Command to drowne the Male-Children of Israel. Exod: 1: 22: In like manner Adonibezeck King of Bezeck who had cut off the Thumbs and great Toes of 70 Canaanitish Kings, had his own Thumbs and great Toes cut off by the Tribe of Judah, Jud: 1: 6, 7. where he acknow­ledges the justice of GOD in this Retaliation, saying, AS I have done, SO GOD hath requited me. And when Samuel hewed Agag the King of the Amalakites in pieces before the LORD, 1 Sam. 15: 33: he said unto him, AS thy Sword hath made Women childless, SO shal thy Mother be made childless among women. These three were Gentile Kings, who could not suffer by the Law of Retaliation as it was a Law of the Jewish oeconomie, but as it was a Law of natural Equity. We have another Example of the execut­ing of this Law by vertue of it's natural equity, even before its Promulgati­on by Moses, viz: upon Josephs Brethren; they had cast him in a Pit, and had no regard to the Intercessions made by him, or for him: Gen: 37: 21, 22, 23, 24: and he again on another occasion (but with a better design) had no re­gard to their Intercessions, but cast them in Prison, Gen. 42.9, 10, 11, 12, 13, 14, 15, 16, 17. and verse 21. they acknowledge the Justice of this Re­taliation, saying to one another; We are verily guilty concerning our brother, in that we saw the anguish of his Soul when he besought us; and we would not hear, therefore is this distress come upon us.

Arg. 4.110 The natural Equity of this Law is prov'd by GOD's threatning to retaliat upon the Enemies of his Church in general, Isa. 33.1. When thou shalt cease to spoil, thou shalt be spoiled; and when thou shalt make an end to deal treacherously, they shal deal treacherously with thee. And against the Chaldeans in particular, Habak. 2.8. Because thou hast spoiled many Nations, all the Nations of the People shal spoil thee. And not only did GOD threaten the Heathen Nations, but even his own People the Jews, Deut. 32.21. yea, [Page 37]even David himself, 2 Sam. 12.9, 10, 11. Sword for sword, defilement for defilement. And Solomon tells us, Prov. 21.13. Whoso stoppeth his ears at the cry of the Poor, he also shal cry himself, but shal not be heard. A Threat­ning worthy to be observed in this time of Scarcity.

Arg. 5. If the Law of Retaliation had not been founded on natural Equity, 111 but had been meerly for the State of the Jews, then it could not be ob­ligatory under the Gospel, but it is obligatory; as appears from Matth. 7.2. With what judgment you judge, ye shall be judged; and with what measure you met, it shall be measured to you again. And Revel. 13.10. He that leadeth into captivity, shall go into captivity; and he that killeth with the sword, must be killed with the sword. And many Nations observe it in parti­cular Cases.

And whereas it is Objected by the Socinians and Anabaptists following them,112 out of design to overturn the Power of the Christian Magistrat, that Christ's own words, Matth. 5.38, 39, 40, 41. do abolish this Law. It's Answered by Rivetus, dict. loc. Exod. and by the judicious Calvin; by Marlorat, Mal­donat and others on our Saviour's words, Matth. 5.38, &c. and by Lorinus in Levit. 24, 19, 20. that all that Christ intended, was to recommend Christian Meekness and Patience, but not to wrong the Power of the Magistrat, which is frequently asserted under the Gospel; as Tit. 3.1. 1 Pet. 2.13. and Rom. 13.1, 2, 3, 4, 5. where we are commanded to be subject to superior Powers, who are a terror, not to good Works, but to the evil: and vers. 4. He bears not the sword in vain, for he is the minister of God, a revenger to execute wrath upon him that doth evil, and therefore we are to be subject, not for servile fear only, but for conscience sake. Farther, Calvin and Rivetus say, that Chrst in­tended to correct an error of the Pharis es, who believed that the execution of the Law of Retaliation was committed to every privat person; but Mal­donat on the Text dissents from this thinking the Pharisees could not be igno­rant of the Prohibition, Levit. 19 17, 18. Thou shalt not hate thy brother in thy heart; and thou shalt not avenge, or bear any grudge against the children of thy people.

Further, to show that this Law was not abrogated under the Gospel,113 GOD by many acts of his special Providence has inflicted the punishment of Reta­liation under the Gospel; as in Herod, who Matth. 2.16 sent forth and slew all the children in Bethl hem, among whom (he that should have succeeded him) was also slain. Vid. M [...]cr b. lib. 2. Saturn. cap. 4. and Spanhem. his disquisition upon it, d b. evang. Vol. 2. dub. 76. As also, the Daughter of Herodias who contrived the beheading of John the Baptist, Matth. 14. was (as she passed a River) beheaded by the Ice, holding her fast by the Neck, whilst her Body danced under the Waters. Niceph. lib 1. histor. cap. 20. And the Jews, who concurred in the wicked crucifying of our blessed Lord, were cru­cified in great numbers dayly at the Siege of Jerusalem, by Titus the Son of Vespasian. Joseph. de Bello Judaico l. 6 cap. 12. And Valens the persecuting Arian Emperour, may be adduced as another Example, who having burnt fourscore Orthodox Christians coming from Constantinople to Nicom di [...] unto him, hum­bly to plead their Cause, was himself at last burnt in a little Couage, where he had hid himself, when flying from the Goths; Socrat. Hist. Eccl. l. 4. c. 3. And some later Examples are recorded by Camerarius in his Historical Meditations cap. 98.

After all which Proofs, the natural Equity of this Law is not to be doubt­ed; so that the Deists, who object this Law as a foolish and unjust Law, to refell the authority of the Books of Moses, may see that the Gentile Nations have honoured this Law, if credit may be given to the best humane Autho­rity; which if the Deists reject, (as often they do, for supporting their Cause) [Page 38]they will not be able to prove who are their Fathers, and so may, after their death, lose the Right of Succession.

Conclus. 5.114 Tho' it be proved that Retaliation is founded on natural equity, and so is immutable, yet nevertheless it will not follow that it must always be executed according to an Arithmetical, Identical or Pythagorical Proportion; that is to say by taking Eye for Eye in a literal sense, which Aristotle says the Pythagoreans maintained; but its sufficient for satisfying the Law of natural equity that the punishment be executed according to a proportion Geometrical, Analogical, or Aristotelical; that is to say, by paying of an equivalent, ac­cording to time, place, person, and other Circumstances attending the commit­ing of the Crime: This I shall prove by several Arguments, viz.

Argum. 1.115 From the practice of the Jews, who may be admitted to clear the sense of a Political Law of their State, because they were the first Receivers of it; and they neither did, nor in all cases of Bodily Injuries could, observe any other but Geometrical Proportion; For, as it appears by the Particulars following,

1.116 In many Cases it was impossible to take Retaliation; as in the Example, Exod. 21.22. of a Woman who by a Hurt given to her by mens striving toge­ther, makes an Abortion, or parts with an inanimat Child; the man could not be punished by a Pythagorical Retaliation, but a Sum of Money succeeded in place of Punishment, by the words of the Text. In like manner, there could not be a Pythagorical Retaliation in Injuries done to the Body by Rapes and Adul­teries; and therefore when Sampsons Father in Law, with concourse of the Philistines, took his Wife from him and gave her to his Companion: Sampson did not take their Wives and bestow them upon others, according to the lite­ral sense of the Law of Retaliation; but he, as a Judge and Ruler in Israel, having power to take Revenge for Injuries done to the Person and Honour of his Wife, compensed them by burning of their Corn, with their Vineyards and Olives, &c. Judg. 15.5. Yet nevertheless, he excuses his taking revenge, in words declaring it to be Retaliation, saying, vers. 11. AS they did into me, SO have I done unto them.

2.117 The Law of Retaliation did not hinder the Jews to transact for the In­juries done to their Persons except Death was the Consequence of the Injury, and this is inferred from Gods prohibiting Transactions simply in the case of Homicide, Numb. 33.31. ye shall take no ransom for the life of a Murderer: So Ainsworth on Exod. 21.25. infers. [Josephus Antiqu. lib. 4. cap. 46. gives the Flection to the Pursuer whither he will have the Fine or the reciprocal Punishment: but Ainsworth, a man well versed in Rabbinical learning, ob­serves no such thing out of Maimonides, whom he adduces to prove their custom of transacting.] And this serves to vindicat the practice of the Justice Court, where such transactions are judicially allowed, as we shew among the De­fences, N. 74.77.78, 79. supra. which prove that these kind of Injuries are but privata delicta, wherein the Publick is not concerned.

3.118 For the same Reason, (viz. That Paction or Transaction was allowed to the Jews, tanquam in delictis privatis) their Judges never did, nor were they obliged to enquire in these Crimes. And this is inferred from Deut. 19.17, 18. where it's said, That both the men between whom the controversie is shall stand before the Lord, before the Priests and the Judges which shall be in these days; and then, but not till then, its said, the Judges shall make diligent inquisition. This is another of Ainsworths Observations; and it agrees with the Civil Law, and our practice mentioned, dict. N. 79. supra.

4.119 If the Party injured did apply to the Judge, and insisted to have the Pain of Retaliation inflicted, yet even in that Case the Judge was not always oblig'd [Page 39]to inflict it according to the words of the Law, but was to enquire into the circumstances of time, persons, place, age of the Delinquent, as also his strength to undergo the Punishment, without the loss of his Life; for a sick­ly man, by the loss of his Hand, might lose his Life; likewise, the taking away the Eye of a Monoculus, or the Hand of a Delinquent, who had but one, would be harder to him, than what he had done to one having two Eyes or two Hands; the Judge was also to consider, whether he was pursuing or de­fending when the Crime was committed; and according to these and other Cir­cumstances he was to punish or not punish, & to highten or lessen the Punish­ment as he should think fit, ex. gr. though the Rule of Retaliation foresaid in Hurts, be only simple Retaliation; Stripe for Stripe, yet the single smiting of Fa­ther or Mother was punished with Death, Exod. 21.15. And on the other Hand; if a Master smite out the Eye or Tooth of his Man-servant or Maid-servant, the Master was not punished with pulling out of his Eye or Tooth, but the Servant obtain'd his Liberty, as a thing more profitable for him, Exod. 21.26, 27. Also, if a Magistrat do smite a Beggar, it's not to be punished as a Beggar's smiting a Magistrat with Amputation of a Hand, or some greater Punishment; [As to which Cases, read Cajetan and Willet their Commen­taries on Exod. 21.24, 25, 26.] All which being considered, it could not be easie to fix upon a Case wherein simple Retaliation could be exactly inflicted by the Jewish Magistrats in a literal sense. All this agreeth to the Practice of other Nations, and if we were not here restricted to speak of Personal Injuries done to the Body, we could give many instances in the Jewish Law, wherein Pythagorical Retaliation was not observed, particularly in Theft, Exod. 21.1, 5. where the Thief was to restore, somerimes the double, some­times four-fold, and sometimes five-fold.

5. When the Pursuer and Defender among the Jews were persons of equal Quality, and otherwise equally Circumstantiated,120 and the case it self plain and free from aggravating Circumstances; (which is the only difficult Case, and seems to be the very Case that Josephus speaks of, as is mentioned N. 117. supra.) Even then, if the Pursuer insisted for Corporal Punishment, according to the letter of the Law; the Judge had Power to determine a Pecunial Recompence, which the Party injured was obliged to accept of; and the Delinquent who pay'd it was thereby freed from the Corporal Punish­ment. This Pecuniary Mulct was modified on five accounts, according to Rabbi Cana cited by Paulus Voet. §. 7. inst. de injur. of whose Do­ctrine he sets down a short abstract. As also according to Rabbi Moses Mai­monides in his Treatife of Hurts, whereof Ainsworth in his Commentary on Levit. 24.19, 20, 21. sets down a larger abstract. The Damnage (says he) was modified: 1. For the lost Member. 2. For the lost Labour. 3. For the Pain and Trouble which the injured Party suffered by the Wound. 4. For the Expenses of the Cure. 5. For the mark of Ignominy and Deformation; where also he shews to what Sum the quantity of each Mulct extended; but neither Voet. nor Ainsworth speak of Corporal Punishment in their Ab­stracts. These things are written by the Rabbies, who best understood the cu­stom of their own Nation, and had no interest to pervert the truth in matters of that concern. And this may serve for a sufficient proof to justify the com­mon Opinion, viz. that GOD did not intend the Law of Retaliation should be literally executed; and that the Rabbies thought this manner of execution, inconsistent with the Rules of distributive Justice, & that the observ­ing the Rules of distributive Justice, satisfied the natural Equity of the Law. Ne (says Vander Muelen dict. qu. 15. vers. sin.) scuticî dignum horribili fla­gello sectetur; aut securis meritum scuticâ solvere cedamus: And therefore [Page 40] Pool, and other Divines on Exod. 21.24. conclude, that this Law of Reta­liation was only Minatory. But of this we shall have occasion to say more hereafter, when we come to our last Argument, taken from the Opinion of Divines in this Case. Mean time, we may take notice, that Rabbi Moses Mai­monides in his Treatise of Hurts, cap. 1. sect. 3, 4. (as he is cited by Ainsworth on Exod. 21.25.) ascribes the Opinion of literal and strict Retaliation, to the Sadducees, who affecting a strictness in execution of Laws, did therefore superciliously assume the magnisick Title of TZADDIKIM, or JƲST MEN. Hospin. de Orig. Monachat. lib. 1. cap. 4. as if they (forsooth) were the on­ly just and righteous men of their Nation: And they have not wanted Suc­cessors in Ambition, in almost every Age, who being guilty of gross Opi­nions (as the Sadducees were,) by Denying the Immortality of th [...] Soul, and the Existence of Spirits, &c. have endeavoured to support their Reputation by their assuming some proud Title or another.

6.121 If the Pursuit was against a false Witnes, (who by his false Testimony had taken away the life of an innocent man) as Deut. 19. then the Punishment was certainly inflicted according to the precise letter of the Law, because he was guilty of Homicide; but then the doubt yet remains, as to the loss of a Mem­ber, whether or not the false Witnes was to suffer Retaliation in a literal sense, and the ground of the doubt is from the words of the Text, verses 19, & 20. which command, that it should be done unto him as he thought to have done un­to his brother: and that upon a Moral Reason, that evil might be removed from the people, and these which remain'd might hear and fear, and commit no more such evil: which refers to a custom the Jews had of publishing their Criminal Sen­tences in every City; Further, it's there said to the Judge, verse 21. Thine eye shall not pi [...]y, but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot; and yet even in this Case, Paulus Fagius on the same Text of Deut. 19. says, Haec lex talionis, autore Rabbi Kana ut à Becah cita­tur, nunquam observatur, nam praeter scripturam ex traditione ait constari quod non oculus pro oculo sed aestimatio pecuniaria reddatur. And Ainsworth on Exod. 21.25. cites Maimonides his Treatise of Hurts, Chap. 1. Sect. 3, 4. to prove that the words thine eye shall not pity, relate only to the Case where Satisfaction was not made at the sight of the Judge; but yet if the life was taken away by the Testimony of the false Witnes, then his life behoved to go, and he could expect no mercy, because he was like the man who lay in wait to kill his neigh­bour, and came presumptuously upon him to slay him with guile: and concerning such a man, GOD's express command is, Thou shalt take him from mine Altar, that he may die, Exod. 21.14. And this may serve for proving the first Ar­gument, taken from the Practice of the Jews.

Arg. 2.122 The second Argument to prove that the Law of GOD did not require Retaliation in a literal sense, arises from comparing that Law with the Laws and Writings of the Grecians and Romans on that Subject.

1. I begin with their Law of Retaliation, as it is in the seventh of the XII. Tables, tit. de injur. cap. 4. l. 2, 4, 5. and the last words of the sixth Law, with the Paraphrase of Jacobus Gothofredus thereon, who collected these Laws from Aul. Gellius, and other Roman Authors, and this should bear the greater weight, in that the Grecians who are said to receive them from the Jews, and the Romans who received them from the Grecians, had no interest to corrupt or alter this Law, or to distort it to a wrong sense, nor were tempted with the blind Zeal that misled them in Religious Worship. And so we have just rea­son to believe, that this Law, as it is in the XII Tables, is worded according to the true meaning of the Law of GOD, from which it was taken, as we said N. 105. supra, and may serve to illustrate the same.

Follow the words of the Text, with the foresaid Paraphrase, and the Scriptures in the Margin which correspond therewith.

Now let us compare these Laws as Paraphrased, one by one, with what we have said N. 115. & seqq. concerning the Doctrine of the Jewish Rabbies, and we shal find an exact agreement betwixt the Rabbies and these Laws. For,

• 1. As the Rabbies acknowledge N. 117. supra, that the Jews might Transact; 123 so the same is evident from the said l. 4. de poena talionis, and these words thereof, NI CUM EO PAICIT, or as the Gloss has it, pacisci velit, that ei­ther a Transaction actually made by the Delinquent, or his being willing to Transact, as the Paraphrase has it, was sufficient to liberat him from the Corporal Punishment of the Law.
• 2. It appears from l. 2. de injur. leviorib. such as depalmation or smiting on the Mouth; that this was not recompens'd by depalmation, 124 but by payment of a Pecunial Sum, viz. xxv. asses. And this is that Law which Phavorinus apud A. Gell. loc. citat. objects to S. Caecilius, telling him how the insolent and wicked Lucius Veracius (or as other read Neracius) baffled the Law, tak­ing advantage from the smalness of the Penalty, to smite every man he met with on the Mouth, and thereafter to cause his Salve that followed him with a Bagg of Money, to pay down the Ransom.
• 3. It appears by l. 5. de osse fuso vel dentibus excussis that the Law of GOD.125 Tooth for Tooth, was not followed in the Literal and Pythagorical Sense, nor [Page 42]could the Judge decern it in that Sense, because the Law limits him ad paenam CCC. assium; if the Party injured was a free man, and to the half it, if he were a Slave, and this difference shows, that the difference of persons was ob­served.
• 4.126 And last of all, as the false Witnes was punished by the Law Deut. 19. with Death, if by his false Testimony he had taken away the life of a man; so by the last of the Laws of these Tables, he was throwen over a Rock with­out Mercy. And even the later Law of the Romans, (although it has in many things derogated from the Law of the XII. Tables, according to Ʋlpian. l. 1. ff. ad C. Aquil.) yet it contains the Law of Retaliation against a false Witnes, Qui falsum testimonium dolo malo dixerit quo quis publico judicio rei capitalis damnaretur, l. 1. §. 2. ff. de Sicar. which upon the same Reason was against false Accusers, both by the Civil Law, in l. fin. C. de accusat. authen. sed novo jure. C. de adult. and by the Canon Law, in Caus. 2. q. 3. c. 2, & 3. the words are, Caluminator si in accusatione defecerit, talionem recipiat, qui non probaverit quod objecit poenam quam intulerit ipse patiatur; though Clarus lib. 5. §. fin. q. 81. proves, that this (as to Accusers) is abolished, Ferd. Vasq. l. 2. controvers. cap. 18. N. 6. wishes that the Pain of Retaliation might be punctually exacted from both Witnesses and Accusers, that Pleas might have an end. So that in this point of punishing a false Witnes, the Jewish Law was not more strict than the Roman Law is.

2.127 As the words of the foresaid Law [SI MEMBRƲM RƲPSIT NI CƲM EO PAICIT TALIO ESTO] according to Gothofreds Paraphrase, did admit of a Ransom, in place of strict Retaliation, when the Delinquent was wil­ling to pay the same; so the Greek and Latine Authors, who liv'd at the time when this Law was in vigour, understood it in the same sense, as appears by the Reasonings of Aristotle, (a famous Professor of Philosophy in Athens, the chief Seat of the Grecian Learning,) against the Pythagoreans, Arist. lib. 5. Ethic. cap. 5. renewed by Phavorinus a Roman Philosopher, against S. Caeci­lius a Lawyer, vid. Aul. Gell. lib. 20. cap. 1. and summ'd up by Matthaeus, dict. tit. de injur. N. 2. from which we argue thus,

First,128 It must be granted (without considering the strength of their Argu­ments) that if they believ'd that strict Retaliation was impracticable in the matter of Bruises and Wounds, then the Law could not in their Opinion re­quire a strict Retaliation in these Delicts, but this they believ'd; as is clear from the first Argument of Phavorinus, in these words, If (says he, imitating Aristotle) a man, through chance or inadvertency, mutilat or maim a member of another mans Body, it will be impossible for the party lesed to take a casual or inadvertent Retaliation; yea, though the Injury be done designedly; it will be difficult (if not impossible) to make a Wound so equal to another, as it shall nei­ther be deeper nor broader, and the Judge will not be able to observe such precise measures as shall equally ballance and not exceed the Injury given. Moreover, if both parties should haply be in the wrong, and multiply Injuries to one another, and those of a different nature; it would be an unaccountable cruelty to raise a Suit for obtaining all these things to be done by way of Satisfaction and Retalia­tion, for so, infinite Reciprocations and Retaliations would follow to both parties.

To these Arguments S. Caecilius makes answer (my dear Phavorinus says he) although one Member cannot be broken or bruised to the exact dimensions of the wound and bruise of another, 129 yet Retaliation should not therefore seem unjust; for why? we should not require the same measure or nice ballancing, of the stroke upon the same Member, with respect to all circumstances and accidents, for that cannot be done; but we should rather consider the intention of the Percussors [Page 43] mind, and if he acted of design, or by sudden passion; and seing the Law permits Transaction to be made, and a Ransom to be payed, if in that case the Percussor will not redeem the Punishment, by payment of the Ransom, the Decemviri, Au­thors of the Law, allowed Retaliation to be exacted, whether the Delinquency was done by design, or by inadvertency; for what Cruelty, I pray you, can there be, if the same be done to you which you did to another, especially when you were allowed to transact and pay a Ransom, and no necessity lay upon you to undergo Retaliation, unless you your self had choos'd the same? And now, can any of the Edicts emitted by the Praetors, concerning the estimating of Injuries, be more just or approvable? Also, I would not have you ignorant, that the Judge necessarly behoved to reduce this Retaliation to an Estimat. For if the Delinquent, refu­sed to undergo the Retaliation ordered by the Judge, then the Judge condemned him to pay a Sum of Money, as the Estimat of the Plea. Whereby if the Delinquent conceiv'd that the terms of Agreement, & the Punishment of Retaliation were both too hard; the Severity of the Law was taken off by the payment of a Pecuniary Mulct.

And now seing Phavorinus, 130 whom S. Caecilius honours with the Title of one vers'd in the Learning of the Academicks, thinks it was impossible to exe­cute this Law by Identical or Pythagorical proportion: and that S. Caecilius himself yields to an Analogical proportion, as agreeable to the Law and Cu­stom of the Romans; how can we think that this Law had any footing in the strict Sense, among the Romans, whose mind these Disputants their Country­men, are presum'd to have understood? But

2. As the Dispute betwixt these two Romans, 131 shews what was the Opinion of that People at that time, even so the Arguments which Aristotle urg'd long before against Pythagorical Retaliation, shew that the learned Athenians (from whom the Romans receiv'd that Law) had always understood, & maintain'd it, according to the Rules of Distributive Justice, or Analogical Proportion. ‘Di­stributive Justice, says he, requires of Judges that they seriously consider the Circumstances of Fact, the Persons by whom and against whom the Crimes are committed. For if a Peasant should beat a Magistrat, or a Child his Fa­ther, or a Slave his Patron, certainly the Crime would deserve greater Pu­nishment than if committed by the Magistrat against the Peasant, the Parent against the Child, or by the Patron against his Slave: and yet according to the Law of Pythagorical Retaliation, he must be equally punished who offers a Blow to a Prince, and to a Begger: And a Slave offering Violence to his Patron, and a Patron injuring his Slave, must suffer the same degree of Punishment; which to every man seems absurd: And on the same ground, if ye smite out the Eye of a Monoculus, you shall lose but one Eye by way of Punishment, whereas if the Monoculus smite out your Eye, he must be made Blind, tho' he made not you Blind: and if you having two hands, smite off the single Hand of your Neighbour, and thereby make him inca­pable to serve himself in the necessities of Nature, yet you shall lose but one Hand, and be still capable to serve your self with the other. Again, Distri­butive Justice, as it considers the person, so it diligently ponders Time and Place, and one and the same Crime, is not equally atrocious at all Times, and in all Places, as the Stoicks fancied, but increaseth and diminisheth ac­cording to the Time and Place of committing. Whereas if Pythagorical Re­taliation hold good, then he who Wounds his Neighbour in presence of the Judge, and he who Wounds him in an obscure Vault, and he who Wounds him in a Church, or Palace of the Prince, and he who Wounds him in a Ta­vern or a Brothel house; must suffer alike Punishment. Moreover, if strict Retaliation take place, then if Claudius Pompeius commit Adultery with Caesars Queen, Caesar may retaliat by committing Adultery with the Wife of [Page 44] Claudius, which is contrary to the rules of Morality; and if Caesar steal 1000 weight of Gold from the Thesaury of the People, they may retaliat by robbing the Coffers of Caesar; and if Albinus reproach Modius, Modius may in Retaliation revile Albinus, which were to be guilty of a sinful sort of Retaliation, and may take place according to Pythagorean Doctrine, not only in Adultery, Theft, and Reviling; but in Witchcraft, Sacriledge, In­cest, violation of Sepulchres, Calumniation, Prevarication, supposititious Births, and all manner of Villanies; whereas all these Inconveniencies may be shun'd,’ by observing the rules of Distributive Justice.

And now having given an account of these Debates,132 to prove matter of Fact, to wit, that the Grecians and Romans did believe and practise the Law of Retaliation, in an analogical sense, at the times when these Debates were managed; I shall now subjoyn some Considerations for preferring the Autho­rity of Aristotle, before that of Pythagoras and his followers: As, First, The Question was about the sense of a political Law; which Aristotle is to be pre­sum'd to have understood better than Pythagoras, because he learn'd the know­ledge of Law from Plato his Master, who wrote de legibus; and Menochius prooem. de Arbitrar. N. 3. calls him the learnedst of Plato's Disciples. 2. Ari­stotle being a Professor of Philosphy, and a constant Residenter at Athens, and having written well on the Politicks, its presum'd he understood the Laws & Customs of Athens, better than Pythagoras did who resided long among the Aegyptians with Amasis their King. 3. Its probable that Pythagoras learn'd the first Principles of strict Retaliation from the Aegyptians, where he also learn'd the foolish Opinions of the Metempsychosis or Transmigration of the Souls of Men into Beasts and Plants, and the idolatrous Doctrine of worshipping the Sun and Moon. 4. Pythagoras seems to have had little Authority among the Grecians, because he was mocked by divers of them. Timon in his Silli re­proaches him for his Magical Arts, and hunting after the Praise of Men, without merit. Xenophanes Gratinus derides him in his Pythagorazusa, and Alexis in his Tarentines, for his ridiculous Conclusions and scholastick Toys; and could there be a more ridiculous Fancy, than his adoring of Beans to that Degree of Superstition, that he choos'd rather to be kill'd than make his escape, by trampling on them when pursu'd: more of his Follies may be found in his Life written by Diog. Laertius. 5. His absurd Doctrine of Communication of Goods, needed strict Retaliation to defend it against the Janglings which such a Doctrine would produce; and his affecting the Name of a strict Justiciar, might be another cause to defend strict Retaliation. Lastly, the learned Rive­tus, Wallaeus, Matthaeus, and many other Divines and Lawyers, prefer the Ar­guments of Aristotle and S. Caecilius, before these of Pythagoras and Phavorinus.

It's true indeed,133 that Bodinus lib. 6. de repub. cap. ult. takes a way of his own, and censures both Aristotle and Phavorinus, as if they had mistaken the meaning of Pythagoras; and for this Bodinus himself is as severely censured by Matthaeus dict. c. 4. N. 3. in fin. But, for all this, he acknowledges that strict Retaliation was never practised in the Cities of the Jews, and cites Mai­monides, and the words of Rabbi Kana to prove it.

The only thing which seems to gravel Bodinus, 134 (and which, as Matthaeus ob­serves, is neither cleared by Aristotle nor Phavorinus) is whether strict Reta­liation was in use where the Offender and Offended were in equal Circumstan­ces; as for example, a Peasant demembring a Peasant in a privat place, &c. but this is no difficulty, and Aristotles Arguments drawn from Circumstances, are still pungent against identical Retaliation, upon this ground, that if the Law had required it in cases of equal Circumstances, it would have distinguished betwixt a simple and circumstantiated Case, and would not have determined [Page 45]the same Punishment in the general, which could be neither just nor possible in all cases.

We cannot deny but some of the Oriental Nations,135 and particularly the Locrians did exact strict Retaliation for the Eye, and we have a remarkable Case in Diod. Siculus lib. 12, which happened to be pleaded upon the Law of Charondas. Si quis cui oculum eruerit, oculum reo pariter cruito. A Moncculus had his Eye smitten out, the Delinquent had one of his Eyes taken out by way of Recompense, but the Monoculus thinking that Punishment not sufficient, brought the Case before the Assembly of the People, and demanded the other Eye also; the Delinquent alledged, that he had satisfied the Law by the loss of one of his Eyes; the Plaintiff replyed that the Delinquent ought to be made blind since he had made him blind, and because the Law did not ordain it, he crav'd the Law might be rescinded, and another made more strict: and, ac­cording to the Custom of the Place, came with a Rope about his Neck ready to undergo the punishment of being hanged therewith, in case his Desire should be rejected, and so far prevail'd that the former Law was corrected. This ac­count is also given by Plato. But though all this be true, yet it proves not a general practice of strict Retaliation in all cases; for, if that had been, then the Law would not have run singly as to the Eye, but in general Terms. Moreover, the Prohibition (which Aerodius mentions) holds forth, that the Law was made with a singular respect to the Eye, for its excellency and use­fulness to the Body beyond other Members; and for this cause 'twas that Ju­stinian reckons the percussion of the Eye among atrocious Injuries §. 9. Inst. de injur. and Charondas did no more than Christians, who condemn strict Re­taliation, have done: we have a proof in the words of St. Augustine Epist. 159. ad Marcellin. (cited by Gratian Caus. 23. q. 5. C. circumcelliones. 2.) where he relates that he himself interceded with Marcellinus, that the Dona­lists, who were arraigned before him to be punish'd for whipping a Catho­lick Priest, and putting out one of his Eyes, and cutting off one of his Fin­gers, might not be punish'd by strict Retaliation: and thence it seems that strict Retaliation, for such atrocious Facts, was in use in his time. The same is prov'd by Novel: 92. of Leo the Emperour: and by the Decision of Charles the fourth against Zachora; cited N. 24. supra, and by Novel 142: of Justini­an ordaining Castration to be punish'd with Castration.

And this may suffice for our second Argument taken from comparing the Law of GOD, with the Laws and Writings of the Grecians and Remans, on the Subject of strict Retaliation; to prove the Conclusion formerly laid down, that although Retaliation in the general be founded on natural Equity, yet its still to be understood as admitting of satisfaction by analogical and geometrical proportion.

Argument 3. To prove the same Conclusion,136 shall be taken from the Authority of Divines and Lawyers. I begin with Grotins, because eminent in the knowledge of the Jewish and Christian Theology, and the political Laws of both: this learn'd Author lib. 2. de jure B. & P. Cap. 20. N. 1. having acknowledged the natural Equity of the Law of Retaliation in these words; Among these things which natural Instinct tells us are lawful and not unjust, this is one; ut malum qui facit, malum ferat, that he that doth evil should suffer evil: which Philosophers do reckon as the most ancient and most perfect rule of Justice, or as one of the Laws of Rhadamanthus, yea so ancient and indubitable, that Pla­to was so bold as to say, that neither the Gods nor Good-men durst never say otherwise, but that he that doth wrong deserves to suffer for it. He after all this, N. 10. speaking of the same Law of Retaliation, and how far Christs words Matth. 5.44. you have heard it said an Eye for an Eye, &c. make an alte­ration [Page 46]of it; and having also insisted upon some passages concerning it, taken from St. Augustine on Psal. 108. and Tertullian, he thus concludes: By this of Tertullian we may see that its not only unlawful for a Christian to exact this Law of Retaliation, but that it was not tolerated among the Hebrews, as a thing simply and in it self commendable; but only for the prevention of a greater Evil. Thus also doth S. Chrysostome on Ephes. 4.13. expound that Law of Re­taliation, Therefore doth Christ urge that Law of Moses an Eye for an Eye, and a Tooth for a Tooth, ut illius manus cohibeat, non ut tuas excitet contra, to restrain him that offers the wrong, not to provoke thee to revenge who sufferest it; not only to preserve thine Eye, but to keep his also safe. And again, The most learned among the Hebrews did not apprehend it in that lati­tude; for they respected not so much the words of the Law, as the Reason of it, and the intent of the Lawgiver. And at some distance says, For even the Jews themselves (as Josephus tells us) besides the Costs and Charges of the hurt done, whereof we have a distinct Law Exod. 21.19. did usually buy off their Talio with a Sum of Money. The like they did at Rome, as Favorinus in Gellius te­stifies. In these last words he makes the Parallel betwixt the practice of the Jews and Romans; and we have shown that the Romans did never exact strict Retaliation, unless in atrocious Cases. St. Aug. l. 19. c. 25. contra Faust. Ma­nich. calls the Law of Retaliation, non fomes sed limes furoris, to shew that it was not design'd for exacting strict Retaliation, but to restrain the Jews from privat Revenge, by which they were in use to redress themselves before the Law was made. And Grot. dic. c. 20. §. 8. in sin. relating to the after Custom, says, The Hebrew Law permitted the Kinsman of him that was murthered, to kill the Murtherer with his own Hand, in case he overtook him without the Cities of Refuge. And it is well observed by the Hebrew Doctors, that a Kins­man might exact the Law of Retaliation with his own hand for the person killed; but for himself, if any violence was offered him either by Wounds, Mutilation, or otherwise, he was to make his Appeal to the Judges; because it is a very difficult thing to moderat our Passions, when they are excited by our own personal Grief.

Goodwyn, famous also for his Knowledge in the Jewish and Roman Antiqui­ties: in his Moses and Aaron lib. 5. cap. 8.137 says, that the Hebews understood not talionem identitatis, vel Pythagoricam, but similitudinis, vel analogicam, which was when the price of an Eye or some proportionable Mulct was payed; & that it's impossible to punish one Maime with another: And for this he cites Targum Jonath. on Deut. 19.21. And R. Sol. ibid. Further he cites Munster on Exod. 21. affirming that the Hebrew Doctors say, that the Party offending was bound to a five-fold Satisfaction. 1. For the Hurt in the loss of the Members. 2. For the Damnage in loss of his Labour. 3. For his Pain or Grief arising from the Wound. 4. For the Charge in curing of it. 5. For the Blemish or Deformi­ty thereby occasioned, [and this agrees with what was formerly cited out of Maimonides by Ainsworth, N. 120. s [...]p [...]a.] And says, that Munster render­eth these Five thus; Damnum, Sessio, Dolor, Medicina, Confusio.

And the Testimony of the Jews hath the more weight in that they were most tenacious of their political Laws,138 & strict in the literal observing of them, parti­cularly of that Deut. 21.2. concerning one found slain in the field, as Ainsworth out of Maimonides in his Treatise of Murder, cap. 9. sect. 4.9, 10. & Selden de Syned. lib. 3. c. 7. relate; And surely they would have been as strict in the execution of the Law of Retaliation, had they not certainly known that an analogical executing thereof was sufficient & that it was made magis ad terrorem quam damnationem, and to hinder the Party injured from taking Revenge. Isiod. Pelusiot. lib: 4. Epist: 96. cited by Rivetus on Exod: 21: 24: speaking of Eye for Eye, says, quod lege hac cautum est, nec est crudele ne (que) immane; sed siquidem is sensus qui prima fronte accipiatur justitia plenum est; si vero interior sensus expendatur etiam humanitate refertum est, nam ut eum qui alteri quid inique fa­cere [Page 47]meditatur, compescat metu similis perpessionis, & ita improbitatem reprimat, ideo (que) hoc sure merito (que) ita sancivit. The end and design of their Law being, non ut libidini populi indulgeretur, sed ut qui ad injuriam inferendam proni e­rant, talionis metu, coercerentur. As Rivet expresseth it on Exod. 21.24, 25.139

Further Godwyn says from A. Gellius. lib. 20. c. 1. that the Romans likewise had a Talio in their Law, but they also gave liberty to the Offender, to make choice whether he would, by way of Commutation pay a proportionable Mulct, or in identity suffer the like Maime in his Body. And here we may ob­serve that he takes the Testimony of S. Caecilius, as a proof of the custom of the Romans, as the other DD. who cite that Dispute, do.

Paulus Fagius on Deut. 19. sayes, Haec lex talionis autore Rabbi Kanan, 140 ut a Bachi citatur, nunquam est observata. Nam praeter scripturam, ex traditione ait constare, quod non oculus pro oculo, sed aestimatio pecuniaria r [...]ddatur alio­quin enim legi non satisfieret, quae ait, qvem admodum dedit maculam in homi­nem, sic detur in authorem, Levit. 14. jam patet, Exod 21. quod de interesse & sumptu in medicos facto, satisfacere laeso, qui damnum dedit, tenetur. Quod si authori oculus pro oculo effoderetur, quis illi satisfaceret? Est & alius tenerioris Constitutionis quàm qui laesus est, qui ex equali vulnere similiter mortem [...]bierit. Propterea fieri non potest, ut per omnia vulnus & laesio aqualis autori infligatur.

The Reader may also peruse these Divines following,141 viz. Episiop. inst. l. 3. sect. 2. and Pool in his Critiques following him: as also Pools annotat. on Exod. 21.24. See also Simlerus, Willet, Cajetan, a Lapide, Chytraeus and Rive­tus, on Exod 21.24. Lorinus (most amply) in Levit. 25.19.20. Maldo­nat in Math. 5.38, 39. Ant. Wallaeus, oper [...]tom. 2. p 290. Col. 2. all absolutely condemning Pythagorical Retaliation. And if we turn over all the Divines, whether Ancient or Modern, Reformed or Romanist, in their Commentaries and other Writings, we'l find all, few or none excepted, agreeing to an ana­logical Retaliation, and affirming that the exacting of strict and literal Reta­liation, was never intended by the Law of Moses. And the most that some Di­vines grant, is that identical Retaliation may be crav'd in a Libel, thereby to force the Delinquent to a Transaction.

To conclude this Argument taken from the Authority of Divines:142 As the Sad­duces, did patronise identical Retaliation, among the Jews, & were none of the soundest of their Sects; even so the Manichees were it's Patrons under Christia­nity, (as may be seen by S. Augustine in his Disputes contra Faustum. l. 9. c. 25. and Adimanthum Manichaos; and by Isiod Pelusiot. Epist. l. 2. Epist. 133.) of whom it hath no Reason to glory, for these Manichees were the most wicked of all Hereticks in the Church, and are classed by Theodosius the Emperor, l. 5. c. de Haeret. in the Rere of a black Tribe of the worst of them, with this Stig­ma; Manichaei qui ad imam us (que) scelerum nequitiam pervenerunt, and for that cause he commanded them to be banished out of all Cities, and some to be pu­nished with death.

As strict Retaliation is condemned by the Divines,143 so also by the generality of Lawyers: Viz. Hottoman, Vulteius, Harprecht, Bachovius, Vinnius, P. Voet; and several others: in their Commentars on these Words of §. 7. inst. de injur. poena autem injuriarum ex l. XII. Tab. propter membrum quidem ruptum talio erat; all of them agreeing to the Sense put upon the Law by S. Caecilius, and to Aristotles Ar­guments against Pythagoras. To these add Mynsinger on that Text, who says expresly, that that learned Disput betwixt Phavorinus & S. Caecilius, hath brought much light to this matter, because it shews that the Delinquent was lying under no necessity to undergo strict Retaliation, in that he had the power to redeem; And Gudelinus de jure Noviss. lib. 5. l. Cap. 15. n. 14. asserts that the Law was im­practicable, if taken in a strict Sense; being convinced by the Arguments [Page 48]of S. Caecilius and Aristotle. The like is to be observed from Jacobus Go­thofredus, in font. jur. civil. lib. 2. cap. 7. quo commendatio legis XII. Tabb. continetur; Where having cited Cicero, Tacitus, Livius, Crassus, Diod. Siculus; Dionys. Halicarnassaeus, to prove the Equity of the Laws of the XII. tabb. he sets down the whole Dispute betwixt Phavorinus and S. Caecilius, to shew that he embraces the Law of Retaliation no otherwise than as S. Cacilius expounds it, and for that Cause his Paraphrase on these words, Ni cum eo pa [...]it, is vel pacisci velit, as we have formerly noted.

And whereas some of these Lawyers, in the places above-cited, say that in the case of Demembration, the Punishment was Membrum pro Membro, they are still to be understood as the like words in the Law of GOD, and the XII. Tab. that is to say Redeemable, upon a ransom to be modified by the Judge, where the Profer of the Delinquent was too low, or the Demands of the in­jured Party too high; like the case Exod. 21.22.

And all these D D. Divines and Lawyers who have cited that famous Con­ference betwixt Phavorinus and S. Caecilius, 144 and founded their Opinion on it, have done so with no less Reason to prove the Custom of the Romans, than they founded on the Testimony of Aristotle to prove the Custom of the Gre­cians. For 1. The Controversy betwixt these Colloquutors was concerning the sense of the Law of the XII Tables, which Phavorinus (though eminent for Learning) had mistaken and charg'd with Obscurity; and S. Caecilius was well vers'd in the Knowledge of them, as you may see by his Answer to Pha­vorinus, in these words Obscuritates legum non assignari deb [...]re culpae scriben­tium, sed inscitiae assequentium. 2. S. Caecilius was generally vers'd in the Knowledge of Law; as you may see by the Characters he receives from di­vers persons; A Gellius relating that Conference, has these words; in disci­plina juris atque legibus Pop. Romani noscendis, interpretandisque scientia, usu, auctoritateque [...]ll [...]stris fuit. Justinian calls him juris antiqui conditor. l. 1. prin. c. de communiservum manumit. Papinian and Ʋlpian approve his Wri­tings; in l. Titio centum 71. ff. d [...]condit. et demonst. l. prospexit. 12. §. 6. qui et a quibus manum. l. si postulaverit 28. §. si liber 5. ff. ad leg. in l. adulter. See Bertrandus in his Life. Lastly, A. Gellius himself who records the Con­ference, was a learned man and contemporary with these Colloquutors, and convers'd with them about the year of Christ 143, which was the year in which A. Gellius wrote, as you may see in the Account of his Life written by the Author of the Notes on him in usum Delphini; And in his third Note on that Conference, where he rectifies an Error of Chronology that had crept in to the Text, making that Conserence to be many years thereafter.

So that by all that is above-said,145 it appears that the Law of Retaliation was never executed in a Pythago [...]ical or Arithmetical Proportion among either Jews, Grecians or Romans, but according to the geometrical and analogical Proportion; with respect to Circumstances that accompanied the Crime and that the payment of a Ransom for Damnages was always admitted: Except the Obstinacy of the Delinquent had given occasion to the contrary; or that there had been a special Law upon a special occasion; or with respect to some particular Member, as the Eye, &c. Which I doubt not, may hap­pen in many Kingdoms, and give occasion to the Variation of Laws. See Caroli du Fresne, glossarium, on the word Talio. And therefore the Libel of Mutilation 28. July 1647. Forbes of Leslie against Menzies of Pitfoddels, cra­ving strict Retaliation for the breaking of a Leg, was ill founded; and no doubt if it had come to a Determination, as it did not, the Iudges would have refused the desire of it, in respect of the Answer made thereto, setting furth that strict Retaliation was not in practise: And indeed, it's more agre­able [Page 49]to Christian Meekness, pressed by our Saviour, Matth. 5.39: To be con­tent with moderat Damages. Concerning which I recommend the Reader to Grotius de jure B. & P. lib. 2. c. 20. N. 10. where he particularly treats of what the Gospel requires in this matter: and N. 36. he proves, that unless there be urgent Causes to exact the Severity of Laws we should incline to mi­tigate Punishments; ‘For herein, says he, consists one part of Clemency, the other consisting in their total Remission.’

I come now to answer some Objections which occur to me.

Obj. 1. If strict Retaliation was not enjoyn'd among the Jews, 146 then there was no place left for the Exhortation to Christian meekness, or to remitting the Punishment of Eye for Eye, Mat. 5.38. I answer, there was still place for the Exhortation, because the Party injured might always insist for the strict Punishment, but the Judge was not obliged to grant it, except when the De­linquent brought it on himself by refusing to pay the Ransom; and even the Ransom it self might be heavy on some, and so require a total Remission or Mitigation by the Rules of Christian meekness, as we have just now said.

Object, 2. Ʋlpian in l. 1. ff. ad leg. Aquil. says, Lex Aquilia OMNI­BƲS LEGIBƲS, quae ante se de damno injuria loquutae sunt, derogavit; sive XII Tabb. sive alia quae fuit. By which word Derogavit, he means the taking away a part from every one of these Laws, while another part remain'd: for so the word Derogare signifies, in opposition to Abrogare, or total Rescinding l. derogatur 120. ff. de verb: signif. Now you'l ask what part could be taken from the Law, si membrum rupsit, ni cum eo paicit, talio esto (which was one of the chief Laws of the XII Tabb. de injuriis) except strict Reta­liation? for analogical Retaliation by paying a Ransom, remained long there­after; as we see in the Answers of S. Caecilius to Phavorinus, who flourished about the year of Christ 143, as we noted before.

I answer, That although Ʋlpian speaks in general,147 of derogating from all the former Laws, yet he meant only of the plurality; and that way of speak­ing is very usual, and must be admitted here, or otherways his words will be false. We have Instances in the Collection of the Laws of the XII Tabb. made by Dionysius Gothofredus, to prove that some of these Laws were not derogated from, but rather strengthened by addition of new Actions; e. g. in Tit. 10. dict fragm. Actio noxalis adversus Dominum ex noxia, sive delicto servi, was propos'd in these words, Si servus furtum faxit noxiamve nocuit; & Ʋlpian repeats it in l. 2. § 1. ff. de noxalib Now the Lex Aquilia introduc'd a new Action ex eadem causa, and yet it was still in the Option of the Party injured, to make use of either the old or new Action at his pleasure, because they were not contrary the one to the other; and therefore the one did not derogat from the other, but it was lawful to pursue the Damnage upon either of them; dict: l. 2. §. 1. ff. de noxal. l Quaecunque 56. ff. de oblig. & actionib. l. familia 5. ff Si familia furt. feciss. § sunt autem 4. Inst. de noxalib. A second Instance is, in Tit. 24. §. 8. of the said Fragments, where there's a Law set down ta­ken from Plin. 17. l. 1. Fuit & Arborum cura legibus, cautumque est XII Tabb. ut qui injuriâ alienas arbores caecidisset, luenat in singulas aeris 25. And there is not a word in the Lex Aquilia any ways derogating from it, or from the Action founded on it; but, on the contrary, there is a Text in l. in duobus. 28. §. Colonus 6. ff. de jure jurand. allowing this Colonus to be pursued, for transgressing that Law; either upon the Law of the XII Tabb. or upon the Lex Aquilia, or upon the Interdict quod vi aut clam; and being pursued to defend himself per exceptionem juris jurand. But still it appears that nothing by these new Actions was derogated from the old; and even so the Lex Aqui­lia makes no Derogation from the Law, Si membrum rupsit; only it grants [Page 50]a new Action to a Freeman, as well as to the Master of a Slave, for Dam­nages done to him by wounding; not Actio directa, (for that is not com­petent in this or in any other case ubi desunt verba legis, nor doth the Law allow it to a free or ingenuous man, but expresly denies it to him, Quia non est dominus membrorum suorum, neque ulla liberi corporis aestimatio est, l. liber homo. 13 ff. ad leg. Aquil.) but Actio utilis to recover the Expense of the Cure, Damnages for the loss of Time, &c. by the same Reason, that it's allowed to a Father to pursue for the Damnages incurr'd, when his Sons Eye is struck out by a Tradesman, to whom he is Apprentice; or by a School-master to whom he is a Scholar, l. 5 §. ult. Vers. Pro­ponitur, et l. 6 & 7. ff. dict. Tit. And it was in the Option of the Pursu­er, in this Case, as well as in the two former Instances of the XII Tabb. to make use of the Actio utilis, ex lege Aquilia; or of the Action that was former­ly competent upon the Law of the Table si membrum rupsit: And we see by the Conference that the first Action was then made use of; or otherways the Objection of Phavorinus, and the Answer given by S. Caecilius concerning the Praetor's modifying the Ransom in place of strict Retaliation, had been to no purpose.

Further,148 it will appear by the following Accompt of time, that the Actions, ex Leg XII. Tabb, & ex leg. Aquil. endured for hundreds of years together; after the date of the Lex Aquilia: And because the date is uncertain, we must make our best Conjectures about it from the Age of those that cite it, and by comparing it with the Conference betwixt Phavorinus and S. Caecilius: Now the Conference having been Anno Chr. 143. or thereby, as we shewed N. 144. supra; and the Lex Aquilia having had a Being in the time of Brutus (who cites & decides a Case by it in l. si Servus 27. §. Si mulier ff. ad leg. Aquil.) which Brutus was coaeval with P. Mutius Scaevola, Father to Q. Mutius Scaevola, as may be seen by the words of Pomponius commending them, as Founders of the Civil Law about the same time; in l. 2. §. 39. ff. de orig. jur. And P. Mutius having been Consul with L. Calphurnius Piso; anno Ʋ. C. 620. as Dion. Gothofredus in fastis consularibus asserts, (which in all probability was about the time he cited the Lex Aquilia, he having not writ­ten till he was of Age;) it follows that the Lex Aquilia had endur'd (from the time of this Consulship to the time of the foresaid Conference) 274 years; supposing the Conference was A. Ch. 143. when A. Gellius wrote it. 'Twill then follow, that during all these 274 years, the Action which arose ex leg. XII Tabb. Si membrum rupsit, endur'd with the Actio utilis introduc'd by the Lex Aquilia. Another Accompt may be made from the time of Q. Mutius Scaevola; (but it will not go so far backward) this Q. Mutius likewise cites the Lex Aquilia, and decides a case by it l. 39. ff. ad leg. Aquil. Now to find out the time wherein Q. Mutius liv'd, we must consider that G. Aquilius was his ordinary Hearer; for so says Pomponius, dict. l. 2. §. §. 41.42. and the time of G. Aquilius must be found out by his conjunction with Cicero, who in topicis calls him his Familiar and Intimat: now Cicero (according to Dion. Gothofredus, in dict. fast.) was Consul with C. Antonius, anno Ʋ. C. 690: And if we should grant with Vulteius and P. Voet. that G. Aquilius was the Author of Lex Aquilia; yea, further, which they do not say, that he made it in the year of Cicero's Consulship (which is evidently false, being cited by Brutus 70 years before) even then, the Interval betwixt this Consulship, and the year of the foresaid Conference, will be 204 years; In all which time both the foresaid Actions continued. And hereby it's evident, that the Law of the XII. Tabb. Si membrum rupsit; was none of these Laws which was derogated from by the Lex Aquilia; but rather is to be excepted from the general words [Page 51]of Ʋlpian; Lex Aquilia omnibus legibus, quae ante se de damno injuria loquu­tae sunt, derogavit; sive XII. Tabb. sive alia quae fuit. And so the Objection, founded on these general words of Ʋlpian is fully answered.

This Calculation which I have insisted on, is not obvious to every person,149 and may be diverting; withal it may furnish Conjecture that M. Aquilius, Grandfather to G. Aquilius was the Author of the Lex Aquilia; because he was before Brutus who cites it, and decides by it. Now M. Aquilius (accor­ding to Suarez ad leg Aquil. apparat. cap. 1. N. 11) having been Consul anno. Ʋ. C. 625. and before that having been Tribunus Plebis; might then have been Author of that Law, which was Plebiscitum; ut in dict. l. 1. ad leg. aquil. though with other plebiscita it has obtained the Name of a Law ex lege Hor­tensia. But Dion. Gothofredus in fast. Consul. makes M. Aquilius to be Consul with C. Marius, A. Ʋ. C. 651. which doth not alter the case of his being Author of the Law; because he might have been Tribunus Plebis, before the time that Jo. Suarez makes him Consul; I say this only furnishes a Conjecture, for I do not presume to be positive, where the learned Noodt. ad dict. l. Aquil. cap. 1. And Jo. Suarez (to whom I am beholden for this Calculation) dict. loc. plead no further certainty, than that one of the Tribe of the Aquilii was the Author. Further, Sua. ez thinks it was made circiter annum Ʋ. C. 621.

Before I enter upon Arbitrary Punishment, 150 (which is the true Punishment of Mutilation and Demembration) I shall according to the Method I propos'd, speak a little to the Question, how far these Crimes may be punished with Am­putation of the Hand which gives the stroke? And this falls naturally in here; because if the Demembration committed be of an Hand, then the Punishment will be Retaliation upon the Matter, though not of Design.

I suppose it will be granted, that,151 albeit we allow not of cutting off the Hand by way of Retaliation, yet, its in the power of the Law-giver to make a Law for punishing certain Crimes, by cutting off the Hand of the De­linquent; There are many instances in the civil Law, as in l. 3. & Auth. seq. c. de serv. fugit. A Slave deserting and running over to the Barbarians, is punished in that manner. [where you may observe that the Amputation of the Foot (which was the delinquent Member) contained in dict. l. 3. is changed by the Authentick into the cutting off of the Hand] as also in Novel. 17. cap. 8. the punishment of Amputation of the Hand, is appointed for the Exacters of Tribute, who express not in their Books, the Quantities receiv'd; the same was the punishment of Writers of Heretical Books, Novel. 42. c. 1. §. 2. in fin. and of the Writers of false Instruments, Gloss in dict. Authent. & Arg. dict. cap. 8. These two last were the proper Crimes of the Hand, which made the punishment the more agreeable: But withal it deserves our Obser­vation, that this punishment was to be inflicted with much tenderness and pre­vious Consideration; and never to have place against both hands, dict. Auth. nor against the useful hand, if the Delinquent had a withered Hand. Novel. 134. cap. 13. Cabal. Cent. 3. resol. cas. 136. N, 52. & seqq. The Reason which moved Ju­stinian to this tenderness, may be taken from the Novel. 134. cap. quia vero to be this: That a Man mutilated of both hands could not serve himself to the necessities of Life, and therefore Amputation of both hands was ne­ver to be inflicted, but when Death was conjoyned as the Merit of the Crime.

The like Punishment is among the later Laws of Saxony and other Nati­ons.152 Carpz. prax, crim. p. 1. qu. 40. N. 40. & seqq. & p. 3. qu. 229. N. 24. but it is always conjoyned (says he) with Relegation; to prevent Quarrels and other Inconveniencies which might follow upon Peoples shunning the Converse of the Delinquent, as bearing a publick Mark of Infamy on his Bo­dy. dict. qu. 40.45. & dict. qu. 129. N. 34. It's frequently used in Aggra­vation [Page 52]and Augmentation of the punishment of Death, as he relates, dict. qu. 128. N. 55. &. seq.

But to leave this uncontroverted Point,153 and to come to the present Question, viz. If Amputation of the hand be a punishment appointed for Mutilation and Demembration? we have an Argument for the Affirmative in Gloss ad lib. 2. feud. tit. 53. de pace tenenda §. homicidium. There its said (by the Emperour Frederick, the first of that Name, according to Eguin. Baro,) Homicidium quo (que) & Membrorum deminutio, vel aliud quodlibet delictum, lega­liter vindicetur. Upon which words [Membrorum deminutio] the Gloss in marg. states a Question, Membri amputatio qua poena puniatur? And answers, forte manus delinquentis amputabitur, cum pro solo vulnere manus ei amputare­tur, si pacem violaverit, and cites for this, § 3. of another Constitution of the same Emperour de pace tenenda. tit 47. dict. lib. feud. The words whereof are Si quis alium, intra pacis edictum, vulneraverit, nisi, quod in duello & vitam suam defendendo hoc fecerit, probaverit; manus ei amputaretur.

The Argument of the Gloss may be form'd in this manner:154 If Amputa­tion of the hand be inflicted for single Vulneration, then much more, for De­membration, but the first holds good and therefore the second. The Conse­quence of the Proposition may be inforced from the Opinion of Suarez. de censuris disp. 44. sect. 2. N. 4. where he lays down for a Rule, ‘That a Law though containing rigour may be extended from Mutilation to Homi­cide, not by reason of Similitude in the cases, or by an Argument drawn from the lesser Crime to the greater, but by an Argument drawn from a part to the whole including that part; and subsumes that Homicide includes Mu­tilation as a part of it formaliter vel eminenter;’ and just so Demembration or Mutilation includes wounding; and therefore the punishment of single wound­ing may by consequence be extended to be the punishment of Mutilation or De­membration; But the Argument, as its form'd, will only conclude in the case where simple wounding, is punishable, poenâ amputationis manus, by Frede­ricks Constitution; and that is only when the wounding is accompanied cum violatione pacis publicae; to which Gail, (treating of this and other Constitu­tions of that nature, lib. 1. de pace publica, cap. 7.) & Carpz. dict. qu. 40. N. 1.2. 3, 4. following him, require three Conditions, viz. 1. That there be publick Force, and greater than one can resist 2. That the wounding be with Arms; by which Gail. dict. cap. N. 3. understands every hurtful Weapon or Instrument; as Sword, Spear, Batton or Stones. 3. That there be dolus verus, and a formed and deliberated Design to hurt. And t'will be easily granted, that simple wounding in these Circumstances may be punished with amputation of the Hand, which holds in other Circumstantiated Cases, ex gr. ratione loci, with respect to the place where it's committed. And this is clear from Carpz. dict. qu. 40. N. 30, 31, 34, 35, 36, and 37. where he shews that by the Laws and Practise of Saxony, all manner of Hurting, Wounding, or Invad­ing; being committed in the Camp, Castle, or Palace of a Prince; or upon a publick way, by one lying in wait, is punishable poenâ amputationis manus. And Baker in his Chronicle of England ad annum 1541. shews the same to be the practise of that Kingdom where the Crime is committed within the Verge of the Kings Court. In like manner by the Laws of many Places of Italy, a Wound given in the Face, leaving a Cicatrice, is punishable by loss of the Hand Cabal. dict. cas. 134. N. 1. And N. 31. he relates a Decision, to this pur­pose, of the Magna Curia Vicaria, against Dominicus Feretta who had woun­ded a young Boy in the Face; But I remember no Law or Decision ordain­ing simple wounding to be punished with amputation of the Hand, out of these circumstantiated Cases: neither is there any thing like it to be found [Page 53]in the Law and Practice of this Kingdom; nor in any other case in our Law, except what I mentioned, N. 9. supra, where persons adjudged to Death for atrocious Crimes, were sentenced to have a Hand cut off, in ag­gravation of the Punishment, (as in several other Cases mentioned by Carpz. dict. p. 3. q. 128. N. 55. 56. 57. et seqq.) which was inflicted sometimes im­mediatly before Death, or immediatly thereafter, as the Crime deserv'd.

I find indeed several Acts of Parliament, (viz. Act 18. Parl. 1. Act 88.155 Parl. 6. Act 248. Parl. 15. Act 6. Parl. 16. Ja. 6.) ‘forbidding the using of cer­tain offensive Weapons therein mentioned, under the pain of cutting off the Right hand; and the first of them proceeds upon a Narrative, that many of the Subjects had been murdered and slain; who, if they had not been assault­ed with such Weapons,’ might have been able to have defended them selves; but the last of these Acts, contains a provision, ‘That if the Action be pursued before the Secret Council, the Delinquent shall not incur the Corporal Punishment, but shall be punished by Imprisonment, Escheat of Goods, or by Fyning, without prejudice of the Execution of the former Acts against such as shall be pursued before the Kings Justices,’ Which was inserted as a Cautela for preventing the inflicting of the corporal Punishment, because it leaves it in the option of the King and his Council to pursue before them­selves and accordingly all such Pursuits have been brought before them, & not before the Justices, that so a pecunial Mulct might be inflicted instead of corpo­ral punishment; because the Council doth not inflict Poenam sanguinis; that being proper to the King's Justices: By which it's evident that Amputation of the hand has been inserted in these Acts, ad terrorem only. We have indeed an Ancient Statute in cap. 2. Statut. Wilhelm. which ordains him who draws Bloud in the Kings Court to have his Hand cut off; But by the later Law, to wit, Act. 173. Parl. 13. Ja. 6. ‘He who strikes or hurts any person within the Inner Gate of the Kings Palace where His Majesty has his Residence for the time, Incurrs the Pain of Treason.’

If any man shall here object and say,156 may we not according to Suarez his Form of Reasoning, argue, that seing carrying of unlawful Weapons is pu­nishable by our Law with the loss of the Right hand, though no Mutilation or Demembration follow on it; should not then Demembration be pu­nished with the loss of the Hand, because its a greater Crime than single carrying of Arms? I answer, that Suarez his Argument as its fram'd, excludes the Consequence, because it is argumentum a parte ad totum, and not from les­ser Crimes to greater, or by reason of any Similitude betwixt them. And this may serve for Poena amputationis manûs.

I come now in the third place to speak of Arbitrary Punishment, 157 which suc­ceeded in the place of Retaliation, as appears by the following Words of Ju­stinian §. 7. Inst. de Injur. Poena autem injuriarum ex lege XII Tabularum propter Membrum quidem ruptum talio erat: propter os vero fractum nummariae poenae erant constitutae, quasi in magna veterum paupertate. Sed postea Praetores permit­tebant ipsis, qui injuriam passi sunt, eam aestimare: ut judex vel tanti [reum] condemnet, quanti injuriam passus aestimaverit, vel minoris, prout ei visum fuerit. Sed Poena quidem injuriae quae ex lege XII Tabularum introducta est, in desuetudinem abiit: quam autem Praetores introduxerunt (quae etiam honorariae appellaetur) in judiciis frequentatur: nam secundum gradum dignitatis, vitaeque honestatem, crescit aut minuitur aestimatio injuriae, qui gradus condemnationis & in servili persona non immerito servatur: ut aliud in scrvo actore, aliud in medii actus homine, aliud in vilissimo vel compedito jus aestimationis constitu­atur. Which Text holds forth, that not only poena talionis propter membrum ruptum; but also the poenae nummariae 25 assium for common Injuries and [Page 54]those other Mulcts pro osse fracto & dentibus excussis, were gone in desuetude: and there remain'd no other Branch of the Law of Retaliation contain'd in the XII Tables, except what related to the Punishment of false Witnesses. The Text gives this Reason for abolishing the poenae nummariae, that they were en­acted in maxima veterum paupertate; and though there be some Commenta­tors who deny that the Romans were scarce of Money at the time; yet Hot­toman proves it from Plin. lib. 19. c. 3. and A. Gel. lib. 11. c. 1. in which last we may read that the Romans pay'd all their Mulcts in Sheep and Oxen; and the Commentator in usum Delphini on that place N. 5. and on the poenae 25 assium in A. Gel. lib. 20. c. 1. n. 7. computes the 25 asses, respondere Gal­licis assibus circiter novem; and therefore there was reason to abrogat those fix­ed Penalties which the insolent L. Neracius had contemn'd; as is mention'd be­fore; and in their stead to introduce Arbitrary Punishments. But the Text doth not condescend on the cause why Talio, propter membrum ruptum, was a­bolished, and Arbitrary Punishment introduc'd in place of it, which had been Arbitrary before; for the very Ransom (whereof S. Caecilius makes mention in his Defence of that Law, in the Analogical sense of it) was modified by the Praetor, arbitrarie; to make the Analogical proportion betwixt the Ran­som and the Delict; but that which I take to have been the Reason why the talio propter membrum ruptum is said to have gone in desuetude, as well as the poenae nummariae; and Arbitrary punishment to have come equally in the room of both, is that the words in the Law Talio Esto were often detorted, by the Party injur'd, to a Pythagorical sense when he was malicious, or when the Quantity of the Ransom did not please him. Wherefore it might be thought convenient in progress of time, to suffer that Law to go altogether in desue­tude, and to give Redress to the Parties injur'd, by another Remedy; and probably it was by the actio utilis arising ex leg. Aquilia, which, having at first been introduc'd as an additional Remedy; and having for many years so continued without Derogation from these Laws of the Tables, might there­after become the sole Remedy, and so continue till the actio injuriarum suc­ceeded.

We see now by the words of Tribonian, 158 that the Lex Talionis of the XII Tabb. was in desuetude, when the Institutions were published, which was A. Ch. 533. that being the precise Date of their Preface: and the words Lex Ta­lionis are not to be found again in all the Text; but he doth not condescend at what time it went in desuetude and Arbitrary punishment succeeded; but Tribonian being the first that makes mention of its being in desuetude, its pre­sum'd that the Change had been but a small time before, which being sup­pos'd, it follows that Analogical Retaliation had endured among the Romans 982 years or thereabout, these being the just years of the Interval betwixt the coming of the XII Tables to them A. Ʋ. C. 302. before Christ 449. and the foresaid year of Christ 533. in the which the Institutions were Published. And as the Conference betwixt Phavorinus and S. Caecilius (A. Ʋ. C. 894. A. Ch. 143) wherein S. Caecilius maintains Analogical Retaliation, proves the Exi­stence of it, from the introducing of the Law till that year, quia probatis ex­tremis probatur medium: Even so the Existence of it downwards, to a little before the Publishing of the Institutions, is to be presum'd, because no Alte­ration is prov'd, till Tribonian makes mention of it in this Text, saying, that it was gone in desuetude; and Arbitrary punishment had succeeded; meaning that some new Law, or Practice, had worn out these old Laws in whole, and had introduc'd Arbitrary Punishment for all the Degrees of the Crime; whereas by the old Law, only the quota of the Ransom propter membrum ruptum was left to the Arbitriment of the Judge; the Pecuniary punishments foresaid being sta­ted and determined.

It being thus made appear that Arbitrary Punishment came in place of poena talionis; it follows that Mutilation and Demembration, 159 are now punishable poenâ injuriarum arbitraria as other Injuries committed by privat Violence; for which the Law had stated no particular Punishment. Clar. §. final. Q. 83. N. 4. Damhaud. prax. Crim. C. 102. N. 9. [where he gives many Instan­ces of privat Violence, and describes them in general to be such as are com­mitted sine armi.] to which our Law and Practice agrees. Mackenzie Inst. lib. 4. tit. 4. where he particularly makes mention of Mutilation, among Arbitrary Crimes. And in his Crim. tract. [...]art. 2. tit. 31. he acknowledges the Crime of Demembration to be punishable by inflicting a Mulct, in as far as in the form of a Doom or Sentence he inserts the Quota: and in all the Criminal Registers we have no other but Arbitrary punishment, for Mutilation and Demembration.

And in regaird the Nature of this Arbitrary Punishment is not commonly un­derstood,160 and the very Name of it is ready to give Offence to some who may apprehend that an Arbitrary Judge may do what he pleases; and that neither of our learned Countrey men, Skeen or Mackenzie, have insisted on it; I shall therefore crave Liberty to describe the Power of an Arbitrary Judge; and the nature of Arbitrary punishment; for the Benefit of those who do not well understand it.

Arbitrary Punishment answers to Arbitrary Crimes. All Crimes are divided in Ordinary, (called Legitima, 161 because the Law hath determined the Nature both of Crime and Punishment) such as I aesemajesty, Homicide, and other ca­pital Crimes; and Extraordinary, or Arbitrary; in which the Law hath de­termined neither, but has left both, to the Arbitriment of the Judge; as in the [...]e of Forstallers or Dardanarii, whom Ʋlpian l. 6. ff. de extraord. Crim. de­scribes in these words, Qui fructus suos aequis pr [...]tiis vendere nollent, dum minores uberes proventus expectant. This I name with respect to this present year of dearth and [...]c [...]rcity, and because it is the greatest of that kind, Solomon having told us Prov. 11.26. He that witholdeth Corn, the People shall curse him: but Blessings shall be upon the head of him that selleth it. A further Description of this may be seen in our Author, p. 1. tit. 23. Other Crimes of this nature are set down d. tit. ff. de extr. crim. And by Struvius and others on that Title.

Anciently all Crimes and Punishments were determined by the Law; 162 and therefore when a Criminal was condemned, the Sentence made mention of the Crime be was found guilty of, but not of the Punishment: The Law sup­pos'd the Punishment would be known, as soon as the Nature of the Crime was declar'd; l. si praeses 32. ff. de Poenis. l. Accusatorum 1. §. 4. ff. ad S. C. Tur­pil: But as Matters of Fact are more numerous than could be foreseen or com­prehended in Laws. l. 10. & 12. ff dell. being almost infinit, as every one knows: Even so Punishments proper to these Matters of Fact, must be as numerous; and therefore the Lawgiver behov'd to give Arbitrary Power to to the Judge for de­termining in those Emergencies, by the Rules of Equity and to heighten or di­minish the Punishment, as the Circumstances of the Fact require: And this is call'd Arbitrary punishment.

All these, to wit, the ancient and modern Custom,163 and the nature of this Pu­nishment are breifly held forth by Ʋlpian in l 13. ff. de poenis, Hodie (says he, implying a former Custom and a Change) licere ei, qui extra ordinem de Crimine cognoscit, quam vult sententiam ferre, vel graviorem vel leviorem, ita tamen ut in utroque moderationem non excedat. And because the Judge, in so doing, supplies Defects in the Law, and yet does it by the Rules of Law and Equity: he is therefore called Legis Auxilium. Eguin. Baro de divid. et individ. cap. 4. N. 4.

From what we have said its evident,164 how justly Punishment in general (as it includes Ordinary, and Extraordinary or Arbitrary) is defin'd by an ano­nymous German in his Book, entituled Jus Pandectarum Illustratum, tit. de poenis, to be; ‘a just Coercition or Restraining of certain Delicts or Crimes, according to their Measure and Merit, impos'd by Authority of Law, or its competent Judges, upon guilty persons condemned by a previous Sentence, to be inflicted, after the time allowed, by the Sentence, is elaps'd, and that for the utility of Government, and common Tranquillity of the People.’ Now ordinary punishment, is nothing but that Species which the Law, or Custom having force of Law imposeth, and hence is called Le­gal. Arbitrary is that which being imposed by no Law, Statute or Custom, is to be ordained by the Judge according to his Arbitriment; and is sometimes more, sometimes less according to Circumstances, Beckman medul. Justin. ff. de paenis thes 6. 7. 8. and this is what Justinian says, dict. §. 7. inst. de injur. in these words, secundum gradum dignitatis, vitaeque honestatem, crescit aut minuitur aestimatio injuriae; And conform to this Skeen in his treatise of Crimes and Judges in Criminal Causes, tit. 1. cap. 2. says, ‘Crimes are puni­shed by a lawful Pain specially set down and prescribed by the Law, or the pain thereof is Arbitrary. Lawful Pains are Capital or Pecunial, or neither Capital nor Pecunial, but of another kind and sort. Arbitrary Crimes are, which have no certain prescribed pain; but are punished by the Kings will & Mercy.’ Where observe, Skeen sets down the word Mercy for the words plea­sure or Arbitriment, to hold forth that the King and his Judges should in Ar­bitrary Crimes incline rather to Mercy than Rigour, if the Cause will allow it.

For further clearing of the Nature of this Arbitrary Power; 165 the Gloss. in l. fidei commissa 11 §. quamquam 7. ad verb. Arbitrium, de legat. 3. and Me­nochius following it, lib. 1. de Arbitrar. qu. 6 n. 1. distinguish Arbitrium, in Plenum, & Regulatum; that is to say, absolute and limited. Plenum ar­bitrium (full or absolute power) is that, whereby one acts according to his Appetite, and as he pleases. A Judge exerciseing such a Power, is called Bel­lua, & non Judex; a furious Beast and not a Judge; Menoch. Proaem. dict. lib. N. 5. Regulatum, is that whereby one acts according to the dictats of Reason and Equity, and with due Moderation. And this is the Power, wherey a Judge cognosces Arbitrariè; and Ʋlpian both expresses the Power and its Li­mitation; in dict. l. 13. to wit the Power, in these words Qui extra ordinem de crimine cognoscit, quam vult sententiam ferre, graviorem vel leviorem; and its Limitation, in these words, ita tamen ut in utroque moderationem non exce­dat.

Any man may use absolute Power in the Disposal of his Goods,166 & after what maner he pleases; that being the effect of Dominion which carries with it jus u­tendi, vel abutendi, except there be a restraint put on him for publick Good. Also, if a Legacy be left to be disposed of at the pleasure of the Heir, or with Condition, Si volueris, he may deliver or withhold it; but its not so when the Legacy is conferred in Arbitrium Haeredis, or in words importing Arbitrium; this is evident by the words of Ʋlpian in dict. §. 7. Quanquam autem (inquit) fidei commissum non debetur, Si volueris: tamen si ita scriptum fuerit, si fueris arbitratus, si putaveris, si utile tibi fuerit visum, vel videbitur: debebitur: non enim plenum arbitrium voluntatis Haeredi dedit, sed quasi bono viro commissum relictum. This Law shews a clear difference betwixt the conferring a thing in voluntatem & arbitrium.

An Arbitrary Judge is the same with the prudent and wise Judge that Cicero,167 in orat. pro Ant. Cluentio speaks of, Sapientis Judicis est meminisse se hominem: cogitare sibi tantum, a populo esse permissum; quantum [Page 57]commissum, sit & creditum, [and its never to be thought that power is given to a Judge to do unjustly] & non solum sibi potestatem datam; verum etiam fi­dem habitam meminisse: posse, quem oderit absolvere: quem non oderit condem­nare, & semper non quod ipse velit, sed quid Lex & Religio cogat, cogitare; a­nima dvertere, qua legereus citetur, de quo reo cognoscat, quae res in quaestione ver­setur. cum haec sunt videnda, tum vero illud est hominis magni atque Sapientis cum illam, judicandi causa, tabellam sumpserit: non se putare esse solum: neque sibi quodcunque concupierit, licere: sed habere in consilio legem, Religionem, E­quitatem, Fidem: Libidinem, Odium, Invidiam, Metum, Cupiditatesque om­nes amovere, maximeque existimare conscientiam mentis suae quam a Deo acce­pimus: quae â nobis divelli non potest, quae si optimorum consiliorum & factorum testis in omni vita nobis erit: sine ullo metu, & summa cum honestate vivemus. And the same with Ʋlpian's vir bonus, whom Alexander Neapolitanus (or Alex. ab Alex. as he is commonly called) Dier. genial. lib 6. cap. 1. in fin. defines. Quaestioni autem (inquit) diu res fuit quid virum bonum, quid civilem & politicum deceat. Viro enim bono hoc datur ut ubique sanctus, ubique castus, pius & integer sit: cujus ne erratum quidem minimum fuerit, ne dicam vitium. Qui nullo malo perterritus, nullâ calamitate victus fortunae cedat, nihil expetat, nihil dicat, nihil faciat in vitâ, nisi summâ cum laude & dignitate, in nullâ re delin­quat, nullius reipoeniteat, servetque foedera humani generis ita inviolata in magnis minimisque rebus, ut ne minima quidem labe conscientiâ detineatur. Ci­vilem vero dixere hominem, qui legem judiciorumque metuens, quantum moribus legibusque tributum est, id tanto temperamento agit. ut quoad fieri possit, nihil per­peram, aut inconsulto admissurus sit: qui suâ providentia, Religione, fide quantum­que ratione provideri potuit, Reipublicae & Civium saluti consulat, legibus pareat, patriam tueatur, &c. Here we have the Qualities of an Arbitrary Judge, and if he be endued with such Qualities, his Arbitrary Power will not be terrifying; but the Author adds Quem (scil. virum bonum & civilem) nos magis fingimus quàm invenimus. Yet every one should endeavour to be such, and to deserve such Characters.

By what's said in these Characters, it appears in the general,168 that an Arbi­trary Judge can do nothing that's unjust to gratify or please any person whatso­ever of whatever Degree or Quality. Now let us more particularly consider from Texts of Law. 1. What he cannot do. 2. What he can and should do.

1. He cannot,169 without just Cause, augment or diminish a Punishment which the Law has already determined. l. si quis reum 4. ff. de custod. reor. Farin. qu. 17. de delict & paenis. n. 5.6, & seqq. and a general statute to Punish will not derogat from a special. l. sancio 14. ff. de paenis. Nor in general can he alter any thing determined by Law; except upon circumstances where the Law allows an alteration; A case is look'd upon as determined, where either there is an express Law, or consequences drawn from Law by parity of Rea­son. l. 11.12. e. 13. ff. de ligib. or by custome; for that hath the force of a Law, l. 32. ff. de ll. to regulat Punishments. Farin. dict. q. 17. n. 18. and if he cannot alter a Punishment, but by permission of Law, he can far less con­demn the innocent, or absolve the guilty. l. decurionum. 12. §. 1. in sin. cod. de poenis, for both are abomination to the Lord, Prov. 17.15.

2. He cannot totaly remit a Punishment to gratify the People. l. adbestias 13,170 ff. de paen. especially after sentence is pronunced. l. penam 15. c. eod. & in many cases it's not safe, for them to remit, who have power to do it: because its the Interest of the Publick that Crimes be Punished; that so wicked men may be Reclaimed. l. si poena 20. ff. de poenis & ibi Gothofrid, lit. E. l. si operis 14. C. eod. and tranquillity be preserved. Wesenb. n. 9. ff. d. tit. oderunt peccare [Page 58]boni virtutis honore, mali vero formidine poenae. It's a saying of St. Bernard. lib. 2. de considerat: Impunitas incuriae soboles, insolentiae mater, Rad x impu­dentiae, transgressionum nutrix. And questionless Cicero was in the right disput­ing against Calenus: His words (Philippic 8.) are Ego nolo quemquam civem com­mittere, ut morte multandus sit: tu, etiamsi commiserit, conservandum putas. In corpore si quid reliquo corpori noceat, nri ac secari patimur: ut membrorum aliquod potius quam totum corpus intereat. Sic in Reipubl corpore, ut totum salvum sit, quicquid est pestiferum amputetur: dura vox, multa illa duri r, salvi sint improbi, scelerati, impii: deleantur innocentes honesti, boni, tota Respubl. ca. ‘I would have no Citizen (says Cicero) desire to dy, but thou (Calenus) wouldest have none to dy though he deserv'd it. It is but Reason that as in the body natural we cut off an arm to save the whole, so in the Body poli­tick we do the same that nothing remaine alive that will make the other dy. It's a hard sentence, it's true, but this is an harder; let the wicked be safe, and let the innocent, the good, the just men, the whole Common-wealth be destroyed.’ This is only applyed when punishment is absolutly necessary.

3.171 He cannot extend Punishment beyond merit, It would be a hard thing to amerciat a man in a vast Sum of Money for a pecadillo or small trifle; or even for a delinquency, which does not really deserve such a Punishment. And by the same Rule it would infer partiality to punish a great fault in a rich Man, by the only exacting of a Crown; But equality must be observed be­twixt the Fault and the Punishment. l. 16. ff. de paenis, farin. de delict & paenis. qu. 17. n. 9. yea, he cannot Punish any man more severely than the Law will allow; though he should receive a command from the Prince. He must in this case, delay sentence till he acquaint his Prince, and in the mean time cause the delinquent to be sufficiently guarded and secured. l. si vindicand. 20. cod. de paenis.

4.172 He cannot Punish one man for the fault of another, even albeit the inno­cent be nearly related to the guilty Person by blood, affinity or friendship. l. si 20. l. Crimen 26. ff. de paenis. l. sancimus 22. cod. eod, yea though the innocent person should offer his life for the guilty. Quia nemo est Dominus membrorum suorum. l. liber homo. 23. ff. ad leg. Aquil. This agrees with the Law of Moses, Deut. 24.26. and to natural Reason; for punishment being an Act of Revenge, it must be inflicted upon the delinquent himself, seing no man can be alieni criminis successor; ut in d. l. 26. For as Seneca says lib. 2. de ira cap. 24. nihil iniquius quam aliquem, haeredem paterni odii fieri. But yet we must here except the Crime of Treason concerning which see our Author. Crim. part 1. Tit. n. 22. supra. we must also except the Laws which impose pecuniary mulcts to be payed by Parents for their Children, and Ma­sters for their Servants. Act 69. Parl. 6. Ja. 4 with other Acts and Laws of the same nature, vid. Farin. qu. 24. N. 154. & 189. Clar. §. fin. qu. 86. n. 5. where he says it's the common opinion; but there must be a statute for it, and the delict must be prov'd, and the Punishment cannot exceed the Childs legitime. n. 7.8. & 9. ibid. See Matheus lib. ff. 48. tit. 18. cap. 4. N. 2.

5.173 He should not delay the Execution of a Sentence beyond the ordinary time. Carpz. pract. crim. p. 3. q. 137. N. 2. & seqq. except in weighty Causes mentioned by him. N. 11. & seqq. lest he thereby give occasion to contri­vances for the Delinquents liberation l. cum reus 18. cod. de poenis.

It's questioned among the DD. whether Arbitrary Punishment can reach ad poenam sanguinis, 174 and some are for the affirmative, others for the negative. see Maranta disp. 3 Gomez. de injur. C. 6. N. 8. and many others cited by Farin. tit. de delict. & poenis qn. 17. N. 34. & seqq. where he sets down many cases in which it may be or not be: but all agree in this that death can ne­ver [Page 59]be inflicted, unless the atrocitie of the Crime deserve it; farin. d. qu. 17. N. 35. And so Fachin. contravers. lib. 9. C. 45. understands l. saccularii 7. l. sunt quaedam 9 ff. de extraord. Crim. l. 1. & 2. C. de his qui latron. occult. l. julia 17 §. hodie 3. ff. ad leg. jul. Repetun. and thereby thinks he reconciles the contrary opinions: because Arbitrium is restricted in l. 1. ff. de fur. balne. l. 1. expilatores. ff. de eff [...]act. on this Reason, that the Quality of the Crime required it should be Restricted: But we need not much insist to debate the Question, because our Author Crim. tract. P. 2. tit. N. 4. Expresly concludes by Ar­guments drawn from Acts of Parliament, that no mans life can be ever taken, without express Law; there he also cites Chasenaeus, Socinus and a Decision of Pappon. I remit to the place where you may read his Arguments.

If it be here asked whether Arbitrary Punishment can be extended to the Amputation of an Hand or any other Member? I answer,175 that several of the DD. cited by Mattheus Crim. ad lib. 48. N. 12. think it may; however I have not observed any such thing in our practice.

These are things which an Arbitrary Judge may not do; 176 the things he may do fall under two heads; First, he may determine a Punishment for extraor­dinary Crimes; Secondly, he may highten or lessen the Punishment of Or­dinary Crimes, where the Circumstances of Fact approv'd by Law require it; factien [...]m quaestio in Arbitrio judicantis ect: poenae vero persequntio non ejus vo­luntati mandatur, sed legis auctoritati reservatur, says Papinian in l. acc satio­nem 1. §. fin. ff. ad SC. Turpil. l. Ordine 15. ff. ad munic. And there is a most pertinent Text, in l. & si severior 3. & ibi gloss. & Salycet C. ex quib. cau. infam. irrog where Salycet answers the contrary Objections. See many other Texts and Authors to this purpose cited by Farin. d. q. 17. N. 7. who gives the Reason N. 8. (which we mentioned before,) to wit, that seing Crimes are committed with different Circumstances and Qualities, whereby they are sometimes to be excus'd, and at other times to be esteem'd more odious and atrocious; C. Sicut dignum. 6. in pr. de Homicid. l. si adulterium 38. §. imperator 8. ff: de adult. l. Gracchus 4. C. ad l. jul. de eod. and that all these Circumstances and Qualities could not be express'd in the Law, though some be, l. aut facta. 16. §. 1. cum 2. seqq. ff. de poenis; therefore this power and fa­culty of Augmenting or diminishing Punishments according to Contingencies of Fact, behov'd to be left to the Arbitriment of the Judge d. l. aut facta. l. quid ergo 13. §. poena gravior 7. ff. de his qui not. infam. where his power of augmenting of Pecuniary Mulcts, and chainging those Mulcts into Relegation, is expressed.

There is the like necessity for Arbitrary Power in some civil Cases; 177 as in that stated by Veneleius, l. continuus 137. §. cum ita 2. de verb. oblig. viz. a per­son at Rome promises to pay a Sum of Money at Ephesus, in Asia, and makes no mention of the day of payment: now the Rule in such indefinit Ob­ligations is in quibus dies non ponitur, praesenti die debetur. l. in omnibus 14. de Reg. Jur. but Veneleius resolves better, that the time of payment be rather re­mitted to the Arbitriment of the Judge ‘who is to allow such a competent time as a diligent man might travel in to Ephesus, neither obliging him to travel Night and Day without regaird to tempestuous Weather, neither yet allowing him to Loyter in such a manner as he might be thought worthy of Reproof, but so orders the matter with respect to his Age, Sex, Health, as he may have time to go to the place appointed; that is to say, such a time as others in his Condition are wont to perform the Journey in, and with this Provision, that if he by double di­ligence or by the happy occasion of a Ship shall arive at Ephesus sooner than o­thers by an ordinary Journey use to do, he shall instantly be obliged to pay quia in eo quod tempore atque facto finitum est, nullus est conjecturae locus.’ These [Page 60]are the words of the Text, and none can be more clear to prove the necessity of such a regulated Arbitrary power we have described.

And yet for all this,178 it cannot be said the Judge is more favourable than the Law, or that he contraveens the Law, or departs from it; but rather that he is Legis auxilium as we said before, and a Preserver of the Law, because so the Law wills and disposes, not only by many particular Texts, but also by that general Rule, Quod poena est commensuranda delicto, de qua in l. sancimus 22. C. de poenis. And Farin. from all this lays it down for a general Rule, N. 10. d. qu. that the Law has given the Judge a power, to aug­ment, diminish, or change Punishments, according to the Qualities or Circum­stances of the Delinquency. All this is fully proved, and the contrary Argu­ments solved by Carpz. d. pract. crim. p. 3. qu. 142. N. 22. who is so far from denying this Power to Judges, that he thinks all Punishments of what­soever Crimes, to be now in the Arbitriment of the Judge according to Cir­cumstances; and proves it. N. seqq. And this is agreeable to the words of Aristotle lib. 5. ethic. C. 5. Judex debet esse clementior lege scripta, quando ejusdem legis & justitiae ratio ita fert & patitur. And holds, even albeit the Judge who is obliged to swear to the Observation of the Laws. l. rem non no­vam 14. C. de judiciis. has actually sworn to observe them, Rom. in rubr. ff. de Arbitr. col. 5. ver. Item quia quamvis juraverit & Consil. 429. cited by Farin. d. q. N. 17. And the Reasons are, that the Law it self gives this Arbitrary Power to a Judge, to exercise it as the Circumstances require; And in every Oath the Authority of Law and Equity is presumed to be excepted. Arg. l. fin. ff. qui satisd. cog. and an Oath takes not away common Law and Equity, l. si ex falsis 42. C. de transact. & l. fin. C. de non num. pec. And a Judge never incurrs Perjury for receding from the words of the Laws upon just grounds, because he has power to recede in that case. Arg. l. si hominem 30. ff. mandati. Farin. d. qu. 17. N. 17.

But as the Law has given this power to a Judge to augment and diminish punishment in ordinarie,179 and to determine punishment in extraordinary Crimes, yet 1. Its not every Judge or Magistrat that has this power, but those of the highest degree; And inferior Magistrats must consult the Prince, special­ly after a Sentence is pronounced; DD. in d. §. poena gravior. Vivius in lib. Commun. opin. in verb. Judex ubicunq. Covarruv. Variar. Resolut. lib. 2. cap. 9. N. 8. Tyraquel. tract. de poenis, in praefat. N. 22. Jul. Clarus in pract. cr. [...]. §. fin. quaest. 58. versic. ulterius quaero. N. 10. 2 The Judge or Magistrat must in his Sentence express the Causes why he recedes from the ordinary punishment of Law; but some think it's sufficient that the Sentence bear in general, that he did it for Causes moving him thereto. Clarus loc. cit. Vasquez. ontrav. illust. C. 14. N. 5. and this is according to the present practise of the Imperial Chamber, Gail. de pac. pub. C. 9. N. 2 [...]. 3. Then, he cannot proceed in contempt of the Law, but in all his proceedings, must have regaird thereto. Gail & Vasq. lo­cis cit. Mynsing. cent. 2. observ. 50. & 54. and to the circumstances of the case; but if in dubio he mistake the case and alter the Punishment without just cause, the Law presumes for him that he acted ex justa causa; this is also ac­cording to the practice of the Imperial Chamber, Gail. d. Obs. N. 26. where he cites Felin. Rom. & Bart. asserting it to be the practice else where.

The DD. condescend on many Circumstances for imposing or altering of punishments; 180 but let us first consider those Seven; Causa, Persona, Locus, Tempus, Qualitas, Quantitas, Eventus, mentioned by Claudius Saturninus in d. l. aut facta. 16. ff. de poenis.

1.181 As to the Cause. The D D. have written largely on it: but to be brief, the Judge is to consider with Marcianus in l. perspiciendum. 11. §. delinqui­tur [Page 61]2: ff: de poen. If the Delinquent acted ex proposito, vel impetu, vel casu, he gives this Example of the first, when one comes with a Company to perpe­trat the Fact; of the second, when he falls a fighting in Drunkenness; of the third, when at Hunting he kills a Man by a Dart thrown at a wild Beast; to these add a fourth, to wit, culpâ, or Negligence. I only name them; for all of them are described by our Author tit: Murder; and certainly they make a great Alteration as to Punishment, even in the cases of Killing, Mutilation and Demembration, Farin: de Homicid: qu: 119: N: 7.2. The Judge should consider if the Crime be consummated or attempted only; the last is not to be so severely punish'd as the first, as is clear by the case of an Arbitrary Crime stated l: 1: in p [...]in: §: ult: de extraord. Crim. l: qui autem 3: ff: de his qui not: infam. l: volgaris 21: §: qui furti ff: de furtis. Except in Treason l: quisquis 5: c: ad leg: Jul: Majest. Paricide l: 1: in fin; ad leg: Pomp: de Paricid. et Arg: l: 6. eod. Attempting to kill an Infant l: si quis: 8: C: ad leg: Corn: de sicar: for in this there is more Cruelty, than in attempting to kill a man. Farin: de Ho­micid: qu: 119: N: 22. And a Wifes attempting or declaring her Intention to kill her Husband; et è contra, l: si forte mulier: 9: C: ad leg: Cornel: de si­car. and this may be the Reason, that they live in a conjunct Society, and under mutual Trust. There be some other atrocious Crimes wherein conatus is to be punished, as if the Crime were consummated, vid: Farin: de Homicid: qu: 124. N: 1: & seqq. But in cases not so atrocious, Conatus is never equal'd to Con­summation. 3. The Judge should consider if the Delinquent acted of his own accord, or by command of another; in the first case he is to be punish'd, and all the Laws above cited prove it. In the second case if the Crime was com­mitted by a Servant at the Command of his Lord; or by a Pupil at the Com­mand of his Tutor or Curator, and be not Atrocious the Punishment may be remitted, l. ad ca. 157. in prin. ff: de diver: Reg: jur. the like when one acts by command of a Judge, l: non videntur. 167. eod. The like in a Souldi­er obeying his Officer whom he was oblig'd to obey; as in the case 2. Dec. 1641: part 1: N: 86: supra, Jaredin against Edmonston; in which Mutilation committed on a Deserter by one who was oblig'd to apprehend him was ex­culed. The like generally holds in all cases, where one is oblig'd to obey, l: is damnum: 169: ff: de Reg: jur. And though the Crime be Atrocious, the Command of a Superior where there was no Obligation to obey, mitigats the Punishment. l: Servus: 20: ff: de oblig: et act: l: Servus 8: Cap: ad leg: Jul: de vi publ: l: si Servus: 2: C: de sepulch: viol: l: qui cum uno. 4. §. qui silium. 11. ff: de re milit. but does not liberat, and this agrees with Carpe: pract: Crim: p: 1: qu: 4: N: 7: 8. where he cites not only Texts of Law, but a Decision of the Supreme Court of Saxony: and with our Practique, for March 1671. it was found after a most contentious Debate, that two Boys, the youngest whereof was not twelve years of Age, should pass to the Knowledge of an Inquest for assisting in the Company of 15 Armed men sent by their Father to demolish an House in the time of a Storm, whereof the Pursuer was in Pos­session. These things I have the more insisted on, because they frequently oc­cur as Excuses and Extenuations in Processes of Mutilation and Demembration.

2. The person (whether considered as Agent or Patient) makes a great Al­teration in Punishment, d: l: aut facta 16 §. Persona. 3: ff: de poen. 182 Each may be considered under four Heads, Sex, Age, State, Quality. 1. As to the Sex; the Law deals more mildly with Women than with Men, on the ac­count of their Infirmity both of Body and Mind, l: si adulterium 38: §: 7. & 8: ff: ad leg: Jul: de adult: l: quisquis 5. §: ad filias 3: C: ad leg: Jul: Majest. l: Sacrilegii 6. ff: ad leg: Jul: peculat. And when they are the persons injur'd, the Law punishes the Delinquent with the greater severity, because they are the less able to defend themselves; And therefore albeit Deformity in a man [Page 62]occasion'd by Wounding or Mutilation doth not augment the Punishment. Farin. de Homicid: insp: 4: q: 119: N: 118. yet the contrary is true when a Virgin is thereby deform'd, because in that case she needs greater Tocher or Portion. Farin: loc: cit: de delict: Cap: 6: Rubric: de injur: N: 12. vers. addi tamen. Farin: d: quaest. N: 119. 2. As to the Age; Albeit Minority does not procure Impunity, if the Delinquent be such as for Age may be doli Capax, l. impunitas 7: C: de poenis. Mackenzie p. 1: tit: 1: N: 5. yet Minority exte­nuats Mackenzie loc: cit: because of the imbecillity of Judgment, l: si ex causa 9: §. nunc videndum. 2: l: auxilium 37: §: 1: ff: de minorib. vid: Carpz: pract: crim: p. 3. q: 143. upon the Question how far Minority excuses or mitigats the Crime. And generally in omnibus poenalibus judiciis & aetati & impru­dentiae succurritur. l: 108: ff: de Rec: jur: Tyraquel: de poen: temper: Cas: 7: Me­noch: de Arbitr: Cas. 329. and therefore if a Minor should mntilat or wound his Neighbour, his Non-age would mitigat but not excuse the Mutilation, se­ing it doth not excuse him in Homicide; but if one mutilats, wounds, or de­members a Minor, the Punishment may be augmented according as he is ca­pable or less capable to defend himself. In like manner, regard is to be had to old and decrepit Persons when they commit the Injury, l: 3: ff: de termin: mot. or receive it, l. si quis in gravi 3: §: ignoscatur. 7: ff: de S. C. Sil [...]n. Ty­raquel: d. tract. de poen. Cas. 8: Menoch. cas. cit. The Reason is they become weak in Judgment, like Children. Carpz. pract. crim: p. 3. quaest. 144.3. The state and condition of the person makes an Alteration in Punishments; especially if they be corporal and ignominious. Slaves were more severely punished, than free Men, for the same Crime, l: 1:10: & l: 16: §: persona ff: de poenis: l. capitalium. 28: §: non omnes. 2. eod. and Infamous more than Fa­mous. d: l: 28: §: ult. 4. As to the Quality; It's certain that if any man demember, mutilat or any ways Invade a Magistrat, Parent, or Person of Ho­nour, he commits a greater Injury, and is more severely to be punish'd than if he had Invaded his Equal or an abject person, d. l: 16: §: 3: ff: de poen: l. ult: ff: eod: d: § §: 7: & 9: inst. de injur. But if a Magistrat or Person of Honour should commit these or the like Crimes against a person of lower Degree, he should not incurr the same corporal Punishment. This we see in the Instance of the Decuriones who could not be condemned to the Mines, nor to be hang'd or burnt alive, l. moris. 9. §. istae f [...]re sunt poenae. 11. ff. de poen. And the Em­perour Hadrian would not allow them to be punished capitally unless for Pa­ricide. l: Divus 15: ff eod. and their Children had the same priviledge d: §: 11. Neither could any person of Repute be punish'd with Fustigation, d. l. 28. §. 2. nor be sent to the Mines, §. 5. neither were Nobles to be punish'd by hang­ing, Tyraquel: de nobilib: Cap. 20. N: 104. & 106. Covarr. Resol. lib. 20. cap: 9: de poenis crim: eorumque modo. N. 34. & seqq. nor to undergo ignominious Punishments, Fulgos. Consil. 167. But to compense this, the pecuniary Punish­ment of a Nobleman went much higher, because of his Riches, Covarr. dict. loc.

3.183 The Place where the Crime is committed, makes the same Act to be Theft or Sacrilege, and to be punished with Death, or a less punishment, d. l. 26. §. 4. ff. de poen. He that Mutilats or Wounds another in the Church, Theatre, Mercat-place, or in the presence of a Magistrat, is more Criminal than if he had done it in a privat place, d. §. 9. inst. de injur. And for the same cause, ‘its Treason to Strike, Hurt or Slay any person in the Parlia­ment-house during the holding of the Parliament, or within the King's Inner-Chamber, or Chamber of Presence, the King for the time being with­in his Palace; or where the Lords of Session sit for Administration of Ju­stice, at the time they are sitting, or within the Kings Privy Council House, the time of the Council sitting there; or in presence of his Majesty, where ever His Highness shall happen to be for the time. Act 175. Parl. 13. Ja. 6.’ Which Act also in other particulars makes the circumstances of Place, [Page 63]to augment or diminish punishment. See also what we said concerning Am­putation of the Hand, with respect to the Circumstance of Place. N. 154. supra.

4.184 Time makes a difference betwixt a Diurnal and a nocturnal Thief. d. l. 16. §. 4. ff. de poen. The first is punishable paenâ ordinariâ, the last paenâ ex­traordinariâ, l. 1. & 2. ff. de furib. balnear. and betwixt breakers of Prison in the night and in the day-time. l. 2. ff. de effractor. In like manner, a Delin­quent who reiterats a Crime, is more severely punished than if he had been but once guilty. l. 3. C. de Episc. audient. l. Capitalium 28. §. solent quidam. 3.8. Grassatores 10. & §. famosis. 15. ff. de paenis. In this last Paragraph, Fa­mous, or common Robbers are ordained to be hanged in the places where they most frequently transgressed, that others by beholding their punishments, might be deterred from committing the like Crimes, and the Friends and near Relations of these whom they had murdered or robbed, might be thereby comforted; In the above-cited case, 15. July 1642. Chynes against Mowat and Nevings, their Fynes, or pecuniary Mulcts were made greater than ordi­nary, because the Pannels had been guilty of the like Crimes before, as the De­cision bears. Under this circumstance of Time, the DD. bring in long Impri­sonment, taking off the Punishment of Banishment, in regaird that Squalor Car­ceris, which deprives a Man of the use of Light and free Air, is of it self a pu­nishment, l. omnes. 23. C. de poenis. and likewise Banishment taking off the Infamv which accompanies a Crime deserving a pecuniary Mulct, in regaird that Relegation is more severe than the other. l. quid ergo, 13. §. poena gravior, ff. de his. qui not. infam. But Carpz. makes diutina in carceribus detentio, to be a Circumstance by it self, p. 3. qu. 149.

5. Quality of the Fact, 185 (of the person we nave spoken already) distin­guishes atrocious from lesser Crimes. d. §. atrox. 9. inst. de injur. manifest Theft from not manifest; Expilators from Theives; Tumults from contrived and designed Invasions; Petulancie from Violence, d. l. 16. §. 5. ff. de poen. common Theft from peculat, which is a stealing or concealing of publick Money. l. 4. & 10. ff. ad leg. jul. peculat. & sacr. and from Sacriledge. l. 6. eod. which is a stealing of things dedicated to pious uses, and punishable with Death. l. 9. eod. And Demembration of an Eye from Demembration of a Finger, because the Eye is a more necessary Member than the other, and the Injury done to it should augment the punishment.

6. Quantity distinguishes Furtum ab Abigeo. d. l: 16: §: 7.186 It being a great­er Crime to take away a whole Herd of Swine, which is Abi [...]eum; than to take away one of them, which is Furtum: And it's a greater Crime to give many Wounds, than to give but one; and to Demember, than to Multilat; and therefore the Punishment should be the greater.

7. Event encreases Crime and Punishment, d: l: 16: §: 8.187 It was a greater Crime to burn the Corns in Africa, which serv'd the Miners, than in some o­ther Countries, because the want of Food obstructed the Work, and the great Profit that arose from it. And it's a less Crime to strike off the Hand of a sin­gle man wanting a Trade, and Family, than of an excellent Artificer, who by his Handy-work maintains and enriches himself, his Wife and Children: and the Delinquent ought to be the more severely punish'd, and to pay greater Damnages in the last case, than in the other.

Damnages are due by the Rules of natural Equity and Reason; 188 and Fa­rin: insp: 4: q: 114: N: 93: cites Marsil. to prove it, and also expostulating with Criminal Judges who content themselves to condemn the Man-slayer to die for the Crime; but decern no Damnages to be pay'd to the persons injur'd. Further Farin. says, that where ever a Criminal Action arises ex Delicto, there also arises Actio in factum adinteresse. l: qui nomine 25: & l. Hodie 32. §: 1: ff: ad leg: Cornel. de fals. and that the Fisk should not carry away all the Goods [Page 64]of the condemned Person, by vertue of the Confiscation, to the prejudice of the damnified Persons and their Heirs; and cites Decis: Lucen: 62: N: 30.

But then the main Question will be,189 how far the payment of Damnages should extend? To clear this the DD. distinguish them in Intrinsick and Ex­trinsick. Intrinsick, respect the Reward of Physicians and the Expense of the Cure: Extrinsick, respect the value of the lost Work, which the killed muti­lated or demembered Person might have gain'd, if the Crime had not been com­mitted. Both these Damnages ought to be pay'd, l: qua actione 7: in prin: in those words quod minus ex operis, ff: ad leg: Aquil: which Law speaks expresly de vulnerante. There is another excellent Text in l: ex hâc lege 3: ff: si qua­drup: pauper: in these words, et operarum amissarum quasque amissurus quis es­set: and another Text in l: fin: ff: de his qui effud: vel dejec: in these words, praeterea operarum quibus caruit vel cariturus est. Many other Texts are cited by Farin: d: insp: q: 114. N: 95: & 96. where he expresly states the case of Trades­men, and concludes, that if a Nobleman who liv'd upon his Revenues, and not accustomed to work, be kill'd, nothing is due upon the account of Work­manship, or other extrinsick Damnages, and that the same holds, when a man is killed or wounded that had no Trade. And further N. N. 115, 116, 117. he persists to prove the Obligation of Damnages for lest Work and cessant Gain, even in the cases of Debilitation, Mutilation, and prescinding of Members.

This Obligation to pay Damnages is founded upon a Divine Law, Exod. 20.18,190 19. If men strive together, and one smite another with a stone or with his fist, and he die not but keepeth his bed: if he rise again, then shall he that smote him be quit: only he shall pay for the loss of his time; and shall cause him to be throughly healed. Here is a Warrant both for Extrinsick and Intrinsick Dam­nages; and we shew before how far the Jews decerned Damnages by vertue of this Text.

The Modification of Damnages is to be made at the Arbitriment of the Judge,191 Menoch: de Arbitr: l b: 2: cas: 122: N: 3 (and in N. 1. he cites the foresaid Text in Exodus as its Foundation): In modifying, the Quality of the per­sons is to be considered, and an Oath in litem may be taken after Taxing, Fa­rin: d: insp: 4: N: 113. if the Crime was committed ex dolo, and not other­wise. N: 114: ibid. Also the Judge may make use of skillful men to enquire into these Damnages, ibid: where he cites Salycet and others; and the number of the injur'd persons Family is to be considered, not only as it consisted of Parents, Wife, Children and Servants, whom he was obliged to maintain: But also of Strangers who had their Entertainment by him, and could not o­therwise maintain themselves, Farin: d: insp: 4. qu: 119. N: 105: 106. Fur­ther, he thinks the Delinquent ought to pay all Damnages which these in So­ciety with him sustained by the Breach of that Society, N: 106: ibid: where he cites several Texts, and D D. ament the matter of Arbitrary Punishment and Damnages. If any one desires to be further satisfied, he may consult the Au­thors above cited, and particularly Farin: and Tyraquel: locis cit. Ant. Mat­thaeus ad lib: 48: ff: tit: 18: cap: 4. And Carpz: d. p: 3. q: 149. where he adds other five Circumstances for mitigating Punishment. 1. A promise of Miti­gation, to draw forth a Confession. 2. A spontaneous Confession. 3. Long Imprisonment. 4. The Intercession of a young Maid to obtain the Delin­quent in Marriage. 5. The skillfulness of the Delinquent in some useful and eminent Art.

Having drawn out this Discourse to a greater length than I intended,192 I shall conclude with a few Considerations taken from the Law and Practique of this Kingdom. We shew before that Mutilation and Demembration are by the dayly Practice punish'd Arbitrariè by the Lords Commissioners of the Justicia­ry; who are in use to decern a Sum of Money to be payed by the Pannel or [Page 65]Delinquent to the Party injur'd, for all he can ask or crave, either for Dam­nages or Punishment, except the Delinquency be very atrocious, and then they also Imprison or banish the Delinquent: likewise, they modify a Fine to be pay'd to the King, (especially if the Crime be Demembration) and the Delin­quent finds Caution to satisfy the Damnages and Fynes decern'd, or to go to Prison till he pay: He is also Burthened to procure a Remission, and for that effect the Pursuer is decern'd to give him a Letter of Slains. These things be­ing dayly practised need no Confirmation, but if any one desires to see Proofs he may read the following Decisions, 8: March 1685. where [...]ermont is fin'd in 300 Merks to be pay'd to Fowlis, for demembrating him of the Ring-Finger of his left Hand, and his Goods Escheated to the King. 19. Feb. 1608. where Duncan found guilty of mutilating Davidson Meal-maker, of two Fingers of his left Hand, is decerned to pay the Expense of the Cure, and remitted to Prison till he satisfie, and to obtain a Letter of Slayns. 11. March 1631. Scot found guilty of breaking Crawfords Leg, is decerned to pay 250 Merks to him, he granting a Letter of Slayns. And 15. Decemb. 1630. Kennedy in Maybole is decerned to pay 100 Merks to Barclay for the Cure of his Arm which he had mutilat. And 15. July 1672. Mowat and Neivings pursued by Cheyne of Val­ley and his Brother, for Mutilation and Demembration, were decerned to pay a thousand Pounds to the Pursuers, and a Fyne to the King; and to procure a Remission, as the Privy Council had recommended; as may be seen in the Crimi­nal Registers, 29. July 1642. and 25. August following. But Damnages are ne­ver decerned, unless the Party injur'd pursue for them; and all this is founded on an old Statute, Cap: 11: Stat: 2: Rob: 2. which likewise prescribes a corporal Punishment, and the method of Pursuing; the words are ‘If any man mutilats another, or Wounds or Beats him by forethought Fellony, and the Party griev'd pursues him before a Judge by Suit or Com­plaint, such Form and Order of Process shall be deduced and led against the Trespasser, as is ordained against a Man-slayer, until he compear at a pe­emptory day, and then he shall pass to the knowledge of an Assize; and if he be convict by the Assize, he shall Redeem his Life from the Judge or Major, and by the Consideration of the Judge he shall satisfie the Party les'd; And if he be not pursu'd by the Party les'd, he shall be Indicted for that Deed, and thole an Assize, at the Justice Air, without delay or excuse, & be­ing convict, shall Redeem his Lise and Assyth the Party.’ The Foundation of the Action for Damnages lies in these words, which appoint the Party les'd to be satisfy'd by the Consideration of the Judge, when the Party les'd is Pursuer, and to be Assythed if the Delinquent be Indicted.

But the great Difficulty lyes in these words of the Statute,193 which ordains the Delinquent who mutilats or wounds another by forethought Fellony, to be pursued by the same manner of Proces as a Man-slayer is pursued, and if he be convict to redeem his Life: which leads me to the last Punishment of Mutilation and Demembration I promised to speak to, viz. If it be Capital? For the Words HE SHALL REDEEM HIS LIFE, imply, that the Judge if he find cause, may inflict Capital Punishment, if the Crime be committed by forethought Fellony, which is the case of the Statute. The Grounds of this Difficulty, be­side the words of the Statute, are 1. That Skeen, who in the Latine Copy of the old Statutes has writen learn'd Notes on them, passes this Statute without any Observation, which holds further that it appeared difficult to him, or other­wise, that it plainly decreed that capital Punishment might be inflicted in the case of the Statute. 2. There are divers later Laws, viz. Act 28. Parl. 3. Ja. 4. Act 118. Parl. 7. Ja. 5. Act 76. Parl. 6. and Act 3. Parl. 21. Ja. 6. which rank the Crimes of Mutilation and Demembration with Homicide and other [Page 66] Capital Crimes, and ordain them to be pursu'd by the same form and manner of Process; which are the very words of King Roberts Statute. And none of these Statutes are rescinded by any posterior Law. 3. If Trespassers were not ly­able to the pain of Death, but only to pecuniary Mulcts, they would not need Remissions, and yet by the above-cited Decisions it appears, that the Judges after they had decerned Damages to the Party injur'd, and Fines to the King, they decerned them to procure Remissions, and the Plaintiffe to con­sent thereto, by granting a Letter of Slaines. Moreover, upon the 17. of May 1610. Keith, pursued by Lindsay for Demembration, produced a Re­mission which he had obtained before the Pursuit, burdening him to assyth the Party, which shews that an Assythment is not sufficient to free the Party of further punishment. Lastly, There's a Letter from the King to the Privy Council recorded in the Journal Books, 14. Sept. 1608. recommending that Henderson for demembrating Montgomery of three Fingers of his left Hand might be banished, because it was not usual in this Nation to inflict the pain of Death for the Crime of Demembration. These words do imply that there was a Law for that Punishment, but it was gone in Desuetude: And these grounds of Doubt are considerable. But to me it seems that the Statute of King Robert was made only ad terrorem and to force a Ransome from the De­linquent, because it runs not in the Stile of a peremptory and positive Statute, but in words importing that the Life was in the Kings Will, and was to be redeemed by a Ransome at the Discretion of the Judge, and so it comes to the Sense which S. Caecilius in his Conference with Phavorinus puts on the Law of Retaliation in the XII Tables; And it would have been very hard, after all Nations have rejected strict Retaliation to have punished Demembration with Death, unless the Crime were accompanied with such atrocious Cir­cumstances, as might justly augment the punishment. We read in Strabo lib. 15. that some Indians did both inflict Retaliation and Death; but Grotius dejure B. &. P. lib. 2. cap 20. proves by many Testimonies that Christians, though they may justly demand Punishment, yet should incline to the meek­est part. And the Law gives it for a Rule in paenalibus. l. factum. 155. §. 2. ff. de Reg. jur. unless the Crime be very atrocious, and then Severity is neces­sary. l. perspiciendum 11. in prin. ff. de paenis.