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225 Asa-Worship Assault and Battery

THE JEWISH ENCYCLOPEDIA

225

the form of compensation to the person wronged, not of punishment in the .name of the state;' and this principle is found throughout the Talmudic jurisprudence. Many nations of antiquity and the Germanic tribes as late as the earlier Middle Ages allowed even the guilt of the slayer to be atoned by the payment of " wergild " that is, man-money to the heirs of the slain but here the Mosaic law calls a halt with its stern command, " Ye shall take no ransom for the life of a manslayer " (Num. xxxv. 31, R. V.). The passages of Scripture from which the law of Assault and Battery is derived are Ex. xxi. 18, 19

takes

—

—



and 22-25; Lev. xxiv. 19, 20; Deut. According rectly), and xxv. 11, 12.

xix. 21 (indi-

to the literal

these passages teach the law of retaliation eye for eye, ofRetalia- tooth for tooth, as the redress for tion. mutilation or, technically speaking, mayhem; bruise for bruise, stripe for stripe, etc., as the redress for the infliction of pain; and cutting off the offender's hand as the punishment for disgracing another by violent means. It interpretation,

The Law



" as he giveth a blemish be given upon him." The interpretation of " eye for eye " being thus established to the satisfaction of the rabbis, there is no reason

literally translated reads,

upon man,

so shall

it

for them to doubt money for the pain

that " bruise for bruise "

means and does not mean the However, the position is

suffered,

infliction of like pain.

strengthened by the passage in Deut. xxii. 28, 29, where he who forcibly seizes a damsel not betrothed

and els,

lies with her, is mulcted in the sum of fifty shekbecause (tahat asher) "he hath humbled her."

The

separate elements of liability are

Damage Proper

(Nezek): The Mishnah says the damage is appraised by ascertaining how much the person injured would have been worth as a slave in the market before the infliction of the injury and how much he is worth after it the difference represents the damage. But if the result Damage, of the injury has been to render its victim deaf, he is considered worth Appraised, nothing whatever, and the damage is accordingly equal to the whole of

How

seems that the Sadducees, when in power, conformably to their love for the letter of the law in all matAt least the ters, followed these passages literally. Mcgillat Ta'anit (ch. iv.) ascribes this practise to the "Boethus men," with whom the Sadducees are

his

often identified; and the varied efforts of many sages to give good Scriptural grounds for their own theory (B. K. 83b) indicate that there were some who The dissented from the Pharisaic interpretation. liability for bodily violence is stated in the Mishnah

one as strong or as delicate as the injured to take to submit to the pain, or rather (b) how much would he be willing to pay The former measure, though to forego the pain? named in the Mishnah, is in the Gemara deemed inadmissible; for many people would not take all the money in the world and willingly submit to the pain the latter measure is held to be more reasonable. Where the pain is incident to a mutilation, the judges should say " Suppose the wounded man to have been sentenced to have his hand cut off, how much would he be willing to pay to have it taken off under the influence of a drug [an anesthetic], rather than have it rudely hacked off; and this

K.

viii. 1) as follows: that injures his neighbor is liable to him on five' grounds (1) damage; (2) pain; (3) stoppage of work; (4) cost of cure and (5) shame. Five In dealing with this proposition the Grounds of Gemara (B. K. 83S et seq.) first discusses Liability, why the literal rule of eye for eye

(B.

He





must yield to the more humane law of compensation in money. Referring to the passage in Lev. xxiv. 17 et seq., where the smiting of a man is treated along with the smiting of an animal, it is argued that, as payment is made for the latter, so payment should be made for the former, except which the man is killed, inasLawgiver says (Num. xxxv. 31), "Ye shall take no ransom for the life of a manslayer " which shows that for the murderer there is no ransom or satisfaction, but that there is a ransom for him

former value.

Pain, " as when he has singed him with a spit or spike, even on his finger-nail, where no mark is left. Here the question arises, should the judges ask themselves (a) how much money would " such a man " that

man

is,

—be willing





amount would K.

serve to represent the

damage

"

(B.

85a).

Stoppage of Work injured

man

The Mishnah allows to the wages only as a "watcher of cucumsuch wages as he can earn in his dis:

his

in the special case in

bers "—that

much

abled condition—" because he has already been paid for the value of his eye or the value of his hand " the action might be brought at once when the injury was done, and the judges would estimate the loss of time beforehand. This estimate should be paid in full, though the injured man should recover sooner

as the

that takes anything less than life, as, for instance, the principal limbs, which, when removed, never grow again. Again, if a blind man put out the eyes of a man possessing sight, what can be done to the offender in the way of retaliation ? Nevertheless the Law says, " Ye shall have one manner of law " (Lev. xxiv. 22); hence redress must be adjudged in money against all alike. Further, stress is laid on the term " tahat " (for, in place of) which is applied to animals, as, "he shall surely pay ox for ox" (Ex. xxi. " eye for [in place of] 36), and again in the phrase eye " (ib. 24) still greater stress is laid on the verb

used in Ex. xxi. 22, "natan" (to give), which where nothing but a money reward can be meant, and is again used in the rule in Lev. xxiv. 20, which is

II.— 15

is,



than was expected (B. K.

An example

is

put,

85b).

where violence may bring

about stoppage of work alone, without mutilation or pain or need for cure it is in the case of unlawful imprisonment (ib.). Cost of Cure: As the Scripture says, he "shall " cause him to be thoroughly healed (Ex. xxi. 19),

the inference is that the guilty party shall pay for He may not offer his the services of a physician. services, no matter what his skill may be nor can he avoid the outlay of money by finding a physician that will do the healing work free of charge. Should ulcers arise in consequence of a wound, the

own