John Gill Commentary Deuteronomy 25

If there be a controversy between men
Between two or more:

and they come unto judgment ;
into a court of judicature, bring their cause thither:

that [the judges] may judge them ;
who were never less than three; the great sanhedrim at Jerusalem consisted of seventy one, the lesser court was of twenty three, and the least of all three only:

then they shall justify the righteous, and condemn the wicked :
acquit the one, whose cause is good, and condemn the other to punishment, who is guilty of a crime, and as that deserves; which is to do righteous judgment; the contrary to this is an abomination to the Lord, (Proverbs 17:15) .

And it shall be, if the wicked man be worthy to be beaten
There were four kinds of death criminals were put to by the Jews, stoning, strangling, burning, and slaying with the sword; and such crimes not as severe as these were punished with beating or scourging; and who they were that were worthy to be beaten is at large set forth in the Misnic treatise called Maccoth ^F24 , or "stripes", which are too many to be transcribed.

Maimonides says ^F25 , that all negative precepts in the law, for the breach of which men are guilty of cutting off, but not of death by the sanhedrim, are to be beaten. They are in all twenty one, and so all deserving of death by the hand of heaven; and they are eighteen, and all negative precepts of the law broken, for which there is neither cutting off nor death by a court of judicature, for these men are to be beaten, and they are one hundred and sixty eight; and all that are to be beaten are found to be two hundred and seven;

that the judge shall cause him to lie down ;
which seems to be on the floor of the court, since it was to be done immediately, and in the presence of the judge; and the Jews gather ^F26 from this, that he was to be beaten neither standing, nor sitting, but bowed; that is, you shall command or order him to lie down, or to fall upon the ground with his face towards it:

and to be beaten before his face ;
in the presence of the judge, that the sentence might be properly executed, neither exceeded nor diminished; and indeed all the judges were to be present, especially the bench of three; while he was beating, the chief of the judges read the passage in (Deuteronomy 28:58) ; and he that was next to him counted the strokes, and the third at every blow said Smite ^F1 : of the manner of beating or scourging, (See Gill on Matthew 10:17);

according to his fault, by a certain number ;
as his crime and wickedness was more or less heinous, more or fewer stripes were to be laid on him; as ten or twenty, fewer or more, according to the nature of his offence, as Aben Ezra observes, only he might not add above forty; though he says there are some who say that according to his fault the stripes are larger or lesser, but all of them in number forty.

FOOTNOTES:

• F24: Ib. c. 3. sect. 1. 2, 3
• F25: Hilchot Sanhedrin, c. 19. sect. 1.
• F26: Misn. Maccot, c. 3. sect. 13.
• F1: Maimon & Bartenora in ib. sect. 14.

Forty stripes he may give him, and not exceed
And that this number might not be exceeded, it is ordered by the Jewish canons that only thirty nine should be given; for it is asked ^F2, "with how many stripes do they beat him? with forty, save one, as it is said, in number 'forty' that is, in the number which is next to forty;" this they make out by joining the last word of (Deuteronomy 25:2) with the first of this; and that this was an ancient sense of the law, and custom upon it, appears by the execution of it on the Apostle Paul; who was not indulged, but suffered the extremity of it as it was then understood, (See Gill on 2 Corinthians 11:24).

Moreover, that they might not exceed this number, they used to make a scourge of three lashes, so that every strike they fetched with it was reckoned for three stripes, and thirteen of them made thirty nine; wherefore if they added another stroke, it would have exceeded the number of stripes by two:

lest [if] he should exceed, and beat him above these with many
stripes ;
they might diminish them, if a man was weak, and not able to bear them; but they might not exceed them, if a man was as strong as Samson, as Maimonides ^F3 says:

then your brother should seem vile to you ;
as if he was a beast, and not a man, and much less a brother. The Targum of Jonathan is, "lest he be in danger, and your brother be vile;" lest he be in danger of his life, and become vile, as a dead carcass; so the apostle calls dead bodies "vile bodies", (Philippians 3:21); or in danger of being maimed, and becoming lame or deformed, and so be contemptible.

And this punishment of beating with the Jews was not reckoned, according to their writers, reproachful, and as fixing a brand of infamy upon a person; but they were still reckoned brethren, and restored to their former dignities, whatsoever they possessed; so Maimonides ^F4 says, "whoever commits a crime, and is beaten, he returns to his dignity, as it is said, 'lest your brother be vile in your eyes'; when he is beaten, lo, he is your brother; an high priest, that commits a crime, is beaten by three (i.e. a bench of three judges, by their order), as the rest of all the people, and he returns to his grandeur; but the head of the session (or court of judicature), that commits a crime, they beat him, but he does not return to his principality, nor even return to be as one of the rest of the sanhedrim; for they ascend in holiness, but do not descend."

And yet Josephus represents it as a most infamous and scandalous punishment, as one would think indeed it should be; his words are ^F5, speaking of the laws concerning travellers being allowed to gather grapes, and pluck ears of corn as they passed; "he that does contrary to these laws receives forty stripes, save one, with a public scourge; a free man undergoes this most filthy (or disgraceful) punishment, because for the sake of gain he reproaches his dignity."

FOOTNOTES:

• F2: Misn. Maccot, c. 3. sect. 10. Vid. Buxtorf. Synagog. Jud. c. 25. p. 522, 523.
• F3: Hilchot Sanhedrin, c. 17. sect. 1.
• F4: Ibid. sect. 7, 8, 9.
• F5: Antiqu. l. 4. c. 8. sect. 21.

You shall not muzzle the ox when he treads out [the corn].

As oxen are used in ploughing, so likewise in treading or beating out the corn; of the manner of which, (See Gill on 1 Corinthians 9:9); now while it was thus employed, it might not be restrained by any means from eating the corn as it had an opportunity, either by a muzzle put over its mouth, or other ways.

The Gentiles had several ways of restraining their cattle from eating, while they thus made use of them, to which this law is opposed. Maimonides^F6 has collected several of them together, as prohibited by it; as putting a thorn into its mouth, causing a lion to lie down by it, or causing its calf to lie down without, or spreading a skin on the top of the corn, that so it may not eat. Aelianus^F7 relates a very particular way of hindering oxen from eating at such times, used in some countries, which was this; that oxen might not eat of the ears of corn, in a floor where they were trod out, they used to besmear their nostrils with cows' dung, which was so disagreeable to the creature, that it would not taste anything though pressed with famine.

This law is not to be limited to the ox only, or to this peculiar work assigned it; but, as Jarchi says, respects any sort of cattle, and whatsoever work that has food in it, none of them being to be restrained from eating while at work:

and this law was not made for the creatures only, but for men also; and especially for the sake of ministers of the word; who for their strength, labour, and industry, are compared to oxen, and ought to be comfortably supported and maintained on account of their work; for the illustration and confirmation of which this passage is twice produced, (See Gill on 1 Corinthians 9:9); (See Gill on 1 Corinthians 9:10); (See Gill on 1 Timothy 5:17); (See Gill on 1 Timothy 5:18).

FOOTNOTES:

• F6: Hilchot Shecirut, c. 13. sect. 2, 3.
• F7: Hist. Animal. l. 4. c. 25.

If brethren dwell together
Not only in the same country, province, town, or city, but in the same house; those who had been from their youth brought up together in their father's house, and now one of them being married, as the case put supposes, those who were unmarried might live with him, and especially if the father was dead; and so may except those who were abroad, and in foreign countries, or at such a distance that this law could not well be observed by them; though the Targum of Jonathan, and so Jarchi, interpret it of their being united in an inheritance, all by virtue of relation having a claim to their father's inheritance; so that it mattered not where they dwelt, it is the relation that is regarded, and their right of inheritance; and the above Targum describes them as brethren on the father's side, and so Jarchi says excepts his brother on the mother's side; for brethren by the mother's side, in case of inheritance, and the marrying of a brother's wife, were not reckoned brethren, as Maimonides ^F8 observes; who adds, that there is no brotherhood but on the father's side.

Some think that when there were no brethren in a strict and proper sense, the near kinsmen, sometimes called brethren, were to do the office here enjoined, and which they conclude from the case of Boaz and Ruth; but Aben Ezra contradicts this, and says that instance is no proof of it, it respects another affair, not marriage, but redemption; and says that brethren, absolutely and strictly speaking are here meant; which is agreeable to their tradition ^F9.

and one of them die, and have no child :
son, or daughter, son's son, or daughter's son, or daughter's daughter, as Jarchi notes; if there were either of these, children or grandchildren, of either sex, there was no obligation to marry a brother's wife; so, in the case put to Christ, there was no issue, the person was childless, (Matthew 22:24Matthew 22:25) (Luke 20:28) ;

the wife of the dead shall not marry without unto a stranger ;
by whom is meant not a Gentile, or a proselyte of the gate, or of righteousness, but any Israelite whatever, that was not of her husband's family; she might not marry out of the family; that is, she was refused by all, the design of the law being to secure inheritances, and continue them in families to which they belonged:

her husband's brother shall go in unto her, and take her to him to
wife ;
that is, supposing him to be unmarried, and this is indeed supposed in the first clause of the text, by dwelling with his brother; for had he been married, he would have dwelt with his wife and family apart; besides, if this law obliged a married man to marry his brother's wife, polygamy would be required and established by a law of God, which was never otherwise than permitted.

This is to be understood of the eldest brother, as Jarchi, who is in an unmarried state; so it is said in the Misnah ^F11, "the command is upon the eldest to marry his brother's wife; if he will not, they go to all the brethren; if they will not, they return to the eldest; and say to him, upon thee is the commandment, either allow the shoe to be plucked off, or marry;" and such a course we find was taken among the Jews in our Lord's time, (Matthew 22:25Matthew 22:26) ;

and perform the duty of an husband's brother to her ;
cohabit together as man and wife, in order to raise up seed to his brother, and perform all the offices and duties of a husband to a wife;

but the marriage solemnity was not to take place when it was agreed to, until three months or ninety days had passed from the death of the brother, that it might be known whether she was with child or not by her husband, and in such a case this law had no force; so runs the Jewish canon ^F12, "a brother's wife may not pluck off the shoe, nor be married, until three months;" that is, after her husband's death.

FOOTNOTES:

• F8: Hilchot Yebum Vechalitzah, c, 1, sect, 7.
• F9: Misn. Yebamot, c. 4. sect. 5.
• F11: Yebamot, c. 4. sect. 5.
• F12: Ib. sect. 10.