Talio is twofold.
Talio identitatis, or Pythagorica, which was according to the letter of the Law, when the offender was punisht with the loss of an eye, for putting out another eye, &c.
Talio similitudinis, or analogica, which was when the price of an eye, or some proportionable mulct is paid for an eye put out, or any other member spoiled.
The Hebrews understand[582] Talio similitudinis, that the price of a maim should be paid; not Talio identitatis, not that the offender should be punisht with the like maim; because to punish like for like in identitie, is in some cases impossible, as if a blind man put out anothers eye, or one toothless strike out anothers tooth.
[582] Oculum pro oculo, id est, pretium oculi. Targum Jonath. Deut. 19. 21. It. R. Solomon. ibid.
In case of bodily maims therefore, the Hebrew Doctors say,[583] that the party offending was bound to a five fold satisfaction: first, for the hurt in the loss of the member. Secondly, for the damage, in loss of his labour. Thirdly, for his pain or grief arising from the wound. Fourthly, for the charge in curing it. Fifthly, for the blemish or deformity thereby occasioned. Munster rendreth those five thus: Damnum, læsio, dolor, medicina, confusio. The Romans[584] 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 identitie suffer the like maim in his body?
[583] Vid. Munster. Exod. 21.
[584] A. Gellius lib. 11. cap. 1.
Scourging. This was two fold; either Virgis, with rods; or flagellis, with scourging. This latter was more grievous than the former, as appeareth by that Ironical speech;[585] Porcia lex virgas ab omnium civium corpore amovit, hic misericors flagella retulit. Both were in use among the Romans, but only the latter among the Hebrews. This beating or scourging was commanded, Deut. 25. 2, 3. where the number of stripes was limited, which the Judge might not exceed. Forty stripes shall he cause him to have, and not past. The Jews in many things laboured to seem holy above the Law. For example, where the Lord commanded a Sabbath to be sanctified, they added their Sabbatulum, that is, they began their Sabbath about an hour sooner, and ended about an hour later than the law required: where the Lord forbade them to eat or drink things sacrificed to Idols, they prohibited all drinking with Heathens,[586] because it is doubtful whether it were offered to Idols or no. The Lord commanded them in the time of the Passover to put away leaven out of their Houses, they would not take the name into their mouths[587] all the time of that Feast. The Lord commanded them to abstain from eating Swines flesh; they would not so much as name it, but in their common talk[588] would call a Sow דבר אחר Dabar Acher, Another thing. In like manner the Lord commanded chief Malefactors which deserved beating, to be punisht with forty stripes; they in their greatest corrections would give but thirty nine. Of the Jews five times received I forty stripes save one, 2 Cor. 11. 24. For this purpose the scourge consisted of three thongs, so that at each blow he received three stripes; and in their greatest corrections were given thirteen blows, that is, forty stripes save one. Whether these thongs were made[589] the one of a Bulls hide, the other of an Asses hide, or all three of a Calves,[590] the matter is not material, both opinions have their Authors.