Deuteronomy 25:2,3 - Coke's Commentary on the Holy Bible

Ver. 2, 3. The judge shall cause him to lie down, &c.— To prevent severity in judgment upon persons found guilty of misdemeanors, Moses here not only enjoins the number of stripes to be inflicted, but takes care that it shall be done before the face of the judge himself. The criminal lay down in open court, either upon the ground, or before a low pillar, to which his hands were tied, and, being stripped to his waist, the executioner stood behind him, and scourged him on the back with thongs made of ox's hide: the stripes were not to exceed forty; on which account they were generally confined to thirty-nine. Thus St. Paul says of himself, Of the Jews, five times received I forty stripes save one. 2 Corinthians 11:24. The sacred writer adds, lest if he should exceed—thy brother should seem vile unto thee; i.e. lest the judges, by exceeding the bounds of humanity, and that compassion which is due to a brother, a partaker of human nature in common with themselves, might be accustomed to think despicably of their poor brethren, and set their lives at nought. The Vulgate renders it, ne foede laceratus abeat; lest your brother go away vilely mangled. There were no laws more mild than the Mosaic in this particular. The Athenian laws condemned criminals to fifty stripes; and, among the Romans, they were frequently lashed to death. How far the inflicting such a number of stripes, as unhappily is done, in some cases, among us, can be justified upon any principles of that merciful religion which we profess, may well deserve a very serious consideration. Respecting this punishment of the scourge, we refer to the Dissertation of Calmet, prefixed to his Commentary on Deuteronomy.