The harmony of natural and positive divine laws

CHAP. VI. The third Precept.

Of Spilling Blood or Homicide.

THat this Precept also was contain'd in the Moral Discipline of the Ol•• Egyptians, is evident from the precedent Apology of the Overseer of the Obsequie•• in Sacred use among them, in which he•• in the name of the defuntct, makes thi•• profession, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉▪ Of other men I have kill'd none. And to 〈◊〉〈◊〉 Noachid belongs that of Gen. 9. 5. I wi••••

require your blood of your lives. Which is to be understood of incruent or bloodless Ho∣micide also of what kind soever. Some in∣terpret it of Suicide or Self-murder. Whoso sheddeth mans blood, by man shall his blood be shed: not by judgment pronounced in Court, but by Natural Right of Talion, or like for like. And this Interdict is renewed in the Decalogue, Thou shalt do no Murder; and elsewhere more than once in the Mosaic body of the Law.

Philo the Jew (de Leg. special. Praecept. 6. & 7.) saith, the Exposing of Infants is a∣mong many Nations, by reason of their native inhumanity, a vulgar impeity. To the Hebrews it was expresly forbidden, ei∣ther to extingusih a Foetus in the Womb, or to expose Children. And Tacitus could say, (Hist. lib. 5.) Augendae multitudini consu∣litur. Nam & necare quenquam ex gnatis ne∣fas. Egyptians also, if we believe the Re∣cords of Diodorus the Sicilian, the best of Antiquaries, (lib. 1. p. 51.) were obliged to nourish all their Infants, for increase of Mankind, which highly conduceth to the Felicity of their Countrey.

Voluntary or wilful Murder was, ex fo∣••ensi sententiâ, to be punish'd by the Sword: but Philo Iudaeus (de Leg. special. p. 617.) saith, the Murderer was to be suspended or

hanged upon a Gibbet. He that killeth any Man, saith Moses (Levit. 24. 21.) shall be put to Death. Ye shall have one manner of Law, as well for the Stran∣ger (or Proselyte, of Iustice, not of the House) as for one born in your own Coun∣try. For so the Masters understand this Text: And as for the punishment of this sort of Homicide; they have some diffe∣rences betwixt the Gentiles living within the Territories of the Israelites, and the Natives and Proselytes ritely circumcised. Again Moses saith (Numb. 35. 21.) the Revenger of blood shall slay the Murderer, when he meeteth him [without any place of Refuge.] Now the Right of the Revenger of blood, in the Territories of the Is∣raelites, belonged no less to the Gentiles and Proselytes of the House, than to the Hebrews themselves, but whether it ob∣tained among the Noachides before the Law, or among the Egyptians, is uncertain: but that Name seems to derive it self, not so much from the Mosaic Constitution, as from a Custom more Ancient. However, most cer∣tain it is, that the Revenger of Blood was the next Heir of the Slain.

Homicide by chance, or error, had right of Sanctuary. Of which Right, or Cities of Refuge, the Sacred Law hath ordain'd

many things (Numb. 35.) and the Ma∣sters deliver many necessary to the Inter∣pretation of the Law. To a Gentile, the Priviledge of Sanctuary did not appertain; he was Obnoxious to the Revenger of blood: nor to a Proselyte of the House, in the casual slaughter of one Circumcised; but he enjoy'd the Right of Asyle, when he had by chance slain another of his own kind or quality; as Mr, Selden hath curi∣ously collected (de Iur. Nat. & Gent. l. 4. ••. 2.) Who in the next Chapter proceeds to the Interpretation of divers other Nice∣ties concerning this Precept, from the Com∣mentraries of the Iewish Masters of greatest estimation and authority.

Thou shalt not stand against the blood of thy Neighbour, saith Moses (Levit. 19. 16.) that is, thou shalt not stand Idle, when danger of Death is imminent over one of thy own Kind, Stock or Nation; but shalt help to deliver him. The force of an Aggressor with purpose to kill, also of a Buggerer, of an Adulterer, of an In∣testuous Person, was to be hinder'd, tho' with loss of life, that they might not com∣mit sin. And such Wicked Force was also ••o be punish'd by Private Force; if it could ••e done, by blows (not Mortal) or by ••utting off a Member; if not, rather than

fail, even by killing. If an Israelite shall have delivered an Israelite, or his goods, into the Power of a Gentile, whether by fraud or by force: it was Lawful either to slay him, or to give him up into the power of a Gentile, that he might not betray or deliver up others in like manner. To kill an Israelite a Prevaricator (i. e. a Wor∣shipper of Idols, or a Sinner in Contempt of the Divine Majesty) as also an Epicure∣an (i. e. an Apostate denying the Holy Law and the Prophesies) it was Lawful to any other Israelite to kill him, either in Publick with the Sword, or by Strata∣gem. For by his Prevarication and Aposta∣cy, he is depriv'd of the Title and Privi∣ledge of a Neighbour, i. e. he hath ceased to be an Israelite. By fraud to Circum∣vent a Gentile an Idolater, to his destructi∣on, was not Lawful: and yet notwithstanding the Law doth not command to deliver him from imminent death, seeing he is not a Neighbour.

Other kinds of Homicide there were, permitted to private men. A Thief in the Night breaking into a House Inhabited, might be impunely slain. Which is also in the Platonick Laws, and in those of the twelve Tables. In Child-birth, it was Lawful, for the Mothers preservation, to

extinguish the Foetus in her Womb: but not vice versâ. For Worshipping the Calf, three Thousand were slain, not Twenty-three Thousand as the Vulgar. From the notorious Example of Phinehas the Son of Eleazar (Numb. 25. 11.) was deriv'd Ius Zelotarum, the Right of Zelots, by which it was lawful for private Men led by Pious Zeal, whensoever an Israelite, openly and before at least ten Israelites, violated the Sanctity of the Divine Majesty, Temple, or Nation, to punish the wickedness in the same moment by beating, wounding, and even by slaying the Offender persevering in his sin. By this receiv'd Right of Zelots, Mattathias (Macchab. lib. 1. cap. 2. v. 24.) kill'd a Iew going to sacrifice after the Grecian rite: and our Lord Iesus Christ himself, as a private Person, by whipping drove out Money-Changers and Buyers and Sellers Violating the Sanctity of the Tem∣ple, without reprehension; because they had prophanely made the House of Prayer a Den of Thieves: and his Disciples refer'd this fact of their Lord to Zeal of thy House. Under pretext of the same Right, the Iews in their Assembly ran upon our Lord Himself as guilty of Blasphemy, and smote him on the Face with their hands: and a Servant of the High Priest struck him pre∣sently,

because he seem'd, by an irreverent answer, to have violated the Sanctity of the High Priest. In fine, under the same pretext, St. Stephen was stoned to death, and a Conspiracy undertaken against St. Paul; and at length in the Iewish War sprang up from the same root a power of horrid Villanies and dire Mischiefs.

From this Universal Interdict of Homi∣cide, what we read of Abraham's readiness to immolate his Son Isaac, seems very much to derogate: and some there are, who think it to have been lawful to the Hebrews, from the Sacred Law de Anathemate, of a thing vowed or devoted, by vo∣luntary Consecration, to devote to death their Sons and Servants whom they had in their power; and they affirm, that Iephtha offer'd up his devoted Daugh∣ter in Sacrifice. Yea Iosephus (Antiq. l. 5. c. 9.) professeth himself to be of this opini∣on: but hath been clearly convicted of Error therein by his Rival in the search of the Iewish Antiquities, our incomparable Selden; who (de Iur. Nat. & Gent. lib. 4. cap. 11.) from Rabbi Kimchi's commenta∣ries, and the very words of the Sacred Text, concludes most rationally, that Iephtha, in accomplishment of his Vow,

built a house for his Daughter in a solitary place, and brought her into it; where she remain'd during life secluded from the Sons of Men, and from all secular affairs; and it was a Statute in Israel, that the Daugh∣ters of Israel should yearly visit her, to condole her perpetual Virginity. The Fa∣ther indeed is said to have deplored the cru∣elty of his Vow, and rent his Garments for sorrow: but not because he thought him∣self thereby bound to immolate her, but because he had cut off all hope of Issue from her. So that she seems to have been rather the first Nun in the World, not an Exam∣ple of a Right granted, by the Law de Anathemate, to the Iews of consecrating or devoting their Children to death. For Humane slaughter was by no Right of the Hebrews permitted, unless in case of legi∣timate punishment, and of just War: and then too the very Act of Killing was in it self reputed so hateful and impure, that it required solemn lustration of the Actor, by virtue of this Command (Numb. 31. 19.) Whoever hath kill'd any Man [Malefactor justly condemned, or Enemy in War] and whoever hath touch'd a dead body, let him be purified, as well ye as your captives.

Notes

• Arti. 1. Homicide prohibited to the Egyptians and other Gentiles, by Law Natural: and after to the Isra∣elites, by the Mosaic.
• 2. Exposing of Infants, and procu∣ring of A∣bortion al∣so Inter∣dicted.
• 3. Punish∣ment of wilful Mur∣der in the Common∣wealth of the He∣brews.
• 4. Right of Asyle, in casual Ho∣micide.
• 5. How far an Aggressor was to be resisted by a by-stan∣der, in de∣fence of the assaul∣ted.
• 6. Homicide, in what ca∣ses permit∣ed, and whence a∣rose the Right of Zealots.
• 7. That the Law de A∣nathemate gave the Hebrews no right to devote their children or servants to death: and therefore that the Daughter of Iephtha was made, not a vi∣ctim, but a Nun.