Commentary on Genesis and Exodus, Theological treatise · Chapter 21 · Questions · Question 33 – Question 44
QUEST. XXXIII. The summary sense of this Law, concerning maid servants.
NOw concerning the meaning of this Law in generall: 1. Cajetane thus resolveth the whole Law: this maid servant, that is sold by her father unto her master, is either incognita à Domini, unknowne of her master, or knowne: if the first, then may he sell her, but not to any strange people: if she be knowne, and afterward displease, either her master casteth her off, and then he must give her a dowry, as if she were his daughter: or he purposeth to reteine her still, as his concubine, then hee shall provide for her, meat, cloth, and dwelling.
Contra. 1. There is no liberty given to the master to sell his maid servant to whom he will: but he must suffer her to be redeemed, which was to be done by the next of the kin. 2. When he had espoused … to his sonne, it is not like that he would then cast her out of the house, and send her away with a dowry, but reteine her still. 3. And if it should be lawfull for him to keepe her still as his concubine, then the Law should allow the use of concubines, which is no where to be found.
2. Tostatus and Lippoman agree with Cajetane in the first case of suffering the maid to be redeemed, admitting, that her master had not knowne her: and in the two other, of giving her to his sonne, and of taking another unto her: but herein they differ, that Cajetane in the second case of espousing her to his sonne, presupposeth an ejection and casting out of the maid espoused, and so endowing her, the other thinke she is reteined still. Their errour then is, in supposing that this maid is knowne of her master, because she must so liberally be provided for. But the reason thereof is, because shee was sold upon hope of marriage: which hope because shee is frustrate of, this provision must be made by way of recompense. But this maid is not like to have beene abused: for then it had not beene enough to let her goe out free, but he should endow her also according to the Law, chap, 23.16.
3. Oleaster thus resolveth this text: This maid either her master had company with, or had not: if the first, either she displeased afterward, and then he was to redeeme her, that is, to set her free: or shee pleased, then the father either tooke her to wife, and so he was to use her as his wife; on his sonne, then hee should use her as his daughter: or if he tooke another wife, he was to provide all necessary things for her. Now if her master had not knowne her, she was to serve him to the yeere of Jubile, unlesse shee before redeemed her selfe.
Contra. Oleaster faileth here in these points: 1. Hee taketh redeeming for setting her free without money: whereas redemption of a servant was not without money. 2. If he had defiled her, he was not only to set her free, but to endow her, as before is shewed. 3. If …he maid was to serve him to the yeere of Jubile, the maid servants should have lesse privilege than the Hebrew men servants, that were to serve but six yeeres, whereas this Law intendeth them greater favour.
4. This then is the summe of the Law: A man buyeth a maid servant an Hebrewesse, he was either to suffer her friends to redeeme her, or to marry her himselfe, or give her to his sonne: if none of these, he was either to keepe her still, providing all things necessary for her: or to let her goe out free for nothing, Iun.
QUEST. XXXIV. Of the end, scope and intent of this Law.
NOw concerning the end of this Law, it is to be considered: 1. That the father, which should either of any unnaturall affection, or compelled by necessity sell his daughter, might by this meanes be punished, by losing all his right and interest in his daughter, who did now, being sold out of her fathers power, in familiam Domini transire, passe and was as incorporate into her masters family, Iun. And so the father should be as it were bridled hereby from selling of his daughter. 2. Beside, this Law imposing such hard conditions upon the master, in such liberall sort to provide for his servant so bought, thereby also provideth, ut aut non emerentur ancillae, that either maids should not be bought at all, though their fathers were so hard hearted to sell them, aut meliore conditione servirent, or they should serve with better condition, otherwise than as common servants, Osiand. Marbach. And so this Law taketh order, ut nunquam capite vacent, that maids should never be without an head, Iun. And so taketh care for them, as the weaker sex. 3. Further, in that the master was permitted to take his maid to his wife, though he had another before, foreign, temporis licitum erat, that was lawfull by the sufferance and toleration of those times, Pelarg. 4. Againe, though it were simply unlawfull for the parents to sell their children: sed ne progrediatur impietat ad intolerabilem iniquitatem, &c. but lest such impiety should proceed to intolerable iniquity and injury, this Law provideth for such as were oppressed, pro tanto, sed non in totum, though not wholly and totally, yet to keepe them within some measure, Lippom. 5. But this Law was much more equall than that Law of the ancient Romans in the 12. Tables, which permitted fathers to sell their sonnes, not once, but againe, and the third time, only he was excepted, which had married a wife with his fathers consent; which was afterward forbidden, C. de lib. & posth. or then that Law of Constantine, that one might sell his sonne for extreme need and poverty, though the sonne might afterward redeeme himselfe: for the condition of children so sold was more tolerable among the Hebrewes, their service being but for a time, Simler. This Law also is more reasonable than that constitution of Iustinian, tit. 6. de manumission. that unlesse the maid servant were married within six moneths, ab hero non dimittebatur, shee was not at all to be dismissed from her master, Pelarg.
QUEST. XXXV. What kinde of smiting is here meant.
Vers. 12. HE that smiteth a man that hee dye. 1. Here percussio accipitur pro occisione, smiting is taken for killing, Lyran. For if a man were smitten, and died not of it, there was another punishment than by death, vers. 19. Tostat. 2. Quamvis aliquo pòst tempore meriatur, &c. Although he dye not presently, but some while after, that is so smitten, he shall suffer death for it, Galas. 3. The words are generall: He that smiteth a man, whether he were an Hebrew or no Hebrew, his enemy or friend, ex re percussa intquitas percutientis manifestatur, the iniquity of the smiter appeareth by the thing that is smitten, Cajetan. 4. The Latine reads, he that smiteth a man, volens occidere, having a purpose to kill him, shall dye. But two exceptions are taken to this reading: for if a man did smite one, non animo occidendi, sed animo percutiendi, not with a minde to kill him, but to smite him only, he should dye for it, Cajetane. And againe, if a man intended to kill, and did not, he was not to dye for it: for although before God he be a murtherer, that intendeth it in his heart: yet the Law of Moses doth not punish the intent only of murther, but the effect, Simler.
QUEST. XXXVI. Why the murtherer was to dye the death.
SHall dye the death, &c. 1. That is, shall surely dye, for this doubling of the word, importat majorem certitudinem, importeth greater certainty, Tostat. The Interlinearie glosse expoundeth, Morte spirituali, vel corporali, Death spirituall, or bodily: but I preferre the other sense. 2. This Law is set downe in generall, that whosoever smiteth, so that death follow, five intendat occidero sive non, whether he purposed to kill or not, should dye for it: but afterward follow certaine exceptions from this Law Oleaster. This then is a generall Law, that he which killeth should be killed againe, Lippom. 3. And this Law is grounded even upon the Law of nature: for like as it is agreeable to nature, Vt putridum membrum abscindatur, ut reliqua conserventur, that a rotten member should be cut off, that the rest be preserved, so a murtherer is to be killed, ne plures occidentur, lest more should be killed, Lippom. This Law is given unto Noah, Genes. 9. when the world was restored and here it is but repeated and renued, Pelarg. 4. The Lawes of other nations herein consent with Moses: the Athenians did severely punish murther, expelling the murtherer from the Temples of the gods, and from all society, and colloquy of men, till he had his judgement, Galas. And by the Law Cornelia among the Romans, he which had killed another with sword, or poison, or by false testimony lost his head, if he were of the better sort; if of meaner condition, he was hanged on the crosse, or cast unto wild beasts, Simler. 5. And the reason of this severity was, because murtherers deface the image of God in man, and they lay violent hands to take away his temporall life, for whom Christ died, to give him eternall, Marbach. 6. But it must be understood, that the murtherer was to dye by the hand of the Magistrate, it was not lawfull for every one to kill him, Iun. For the murther was first to be tried out by witnesses, which could not be done, but before the Judge, Simler.
QUEST. XXXVII. In what sense the Lord is said to offer a man into ones hand.
Vers. 13. IF a man hath not laid wait, but God hath offred, &c. Neither can a man take away the life of another, though he doe willingly attempt it, unlesse God deliver him into his hands: yet this is the difference; that where a man intendeth not to kill, and yet killeth, illic tantùm Deus fecit, there God only did it: Hîc autem Deus, & homo propter voluntatem facientis, sed non fecit Deus, ut homo; Here man and God doe it, because of the will of him that did it, though God otherwise doth it than man. So Augustine quaest. 79. in Exod. 2. So God is said to offer or (as the Hebrew phrase is) to cause him to run upon his hand, when it is done, nolente & imprudente homine: man not willing nor minding it, Iun. And so this act seemeth to be casuall, or accidentall unto man; which are so called, non quia nullam causau… habent, not because they have no cause, for that is impossible, that any thing should be done without a cause: but because, causarum confluentium ord… nobis est incognitus: the order of causes concurring, is unknowne unto us, Tostat. 3. Although the cause appeare not to us, why the Lord suffred him, that is so offred to ones hand, to be slaine, yet we are not to doubt, but that it is most just: Ex causa occulta permisit interfici, &c. God suffred him to be slaine upon some hid cause, Lyran. occulta aequitate, by an hid equity: justo judicio paravit illum occidendum, he ordained him to be slaine in his just judgement, Cajetan. Vel pro sceleribus, vel ad emendationem & purgationem malorum quae egerat; Either for his wickednesse, or for the amendment, or purging of the evils which he had done, Tostat. quaest. 15. 4. Rupertus here giveth instance, how after this manner Saul was twice delivered into Davids hand, in the cave, and when he tooke the speare and water pot from him: and further saith, that permissu legis poterat illum occidere, by the suffrance of the Law he might have killed him, and gone afterward to some of the Cities of refuge. But there is great difference betweene this offring of a man into ones hand, here spoken of, and that oblation of Davids enemy unto his hand: for Moses speaketh here of such an unlooked for event, whereby one is slaine: that opportunity offred to David was to trie his patience, not to give him any warrant to kill: and if David had taken that opportunity to slay Saul, and had therein followed the carnall counsell of his servants, he had sinned in laying his hands upon the Lords anointed: for if Davids heart smote him for taking away a peece of Sauls garment, how would it have tormented him, if he had taken away his life? Neither were the Cities of refuge appointed for wilfull murthers, such as this should have beene, seeing that there was enmity before betweene Saul and David.
QUEST. XXXVIII. What places of refuge were appointed.
I Will appoint him a place to flie unto, &c. 1. This place during the sojourning of the Israelites in the desert, was the Tabernacle, as appeareth in the next verse, where mention is made of the Altar: but after they came into the land of Canaan, there were six Cities of refuge appointed, three beyond Jordan, and three of this side, Iun. 2. But yet it seemeth, that the Tabernacle afterward, and the Temple was still a place of refuge, as appeareth by Ioab, who fled into the Temple, and tooke hold of the hornes of the Altar, which notwithstanding could not privilege him.
QUEST. XXXIX. Why the Lord appointed places for such to flie unto.
NOw the reasons why the Lord appointed Cities of refuge, were these: 1. Lest that the innocent party might be slaine by the friends of him whom he had killed, before his cause was heard; therefore he was appointed to flie to one of the Cities, that the manner of the slaughter might be there considered of by the Judges, Simler. 2. And to this end it was so appointed, that he might stay there to the death of the high Priest, Iun. who was a type of our blessed Saviour, by whose precious death we are all set free. 3. And this was done, ut mentem corum hac ratione medeatur, &c. to heale and allay the minde and fury of those which otherwise would delight in murther, Theodoret. For by his absence, and in continuance of time, the rage of those that sought his life would be qualified: and therefore God provideth, that they should not be still provoked by the continuall fight of him. 4. And further, by this, that hee which killeth one unwittingly, is appointed to flie, it is shewed, quòd reus poenae efficitur, that yet he is guilty of some punishment, Theodoret. So that involuntary killing was punished with a kinde of banishment among the Israelites, Simler. So likewise among the Athenians such kinde of manslaughter was censured, foreign, with one yeeres exile, Galas. And so among the Israelites, he that escaped unto one of the Cities of refuge, was not to goe out of the limits and bounds of the City: if he did, it was lawfull for the kinsmen of the man that was slaine, to kill him, Simler.
QUEST. XL. What is to be counted wilfull murther.
Vers. 14. BVt if a man come praesumptuously, &c. 1. The word …, signifieth to deale arrogantly, insolently, to be lift up with swelling pride: as Psal. 124.5. it is applied unto the swelling waves of the sea, Oleaster: and two things must concurre in wilfull murther; it must be done wittingly and willingly: Hic non solum in…ntio occidendi, sed mentis utra que pars; intellectus & voluntas describitur; Here not only the intention of killing, but either part of the minde is understood, the understanding in doing it with guile, and the will in presuming, Cajetane. 2. Cajetane thinketh further that this is a divers law from the first generall prohibition of killing, vers. 12. for here the law speaketh of killing a neighbour, or companion, there of any man; there no word is expressed of the intention, as here. Contra. 1. By neighbour, any man whosoever is understood. 2. And expresse mention is made here of the will and intention, because it is an explanation of the former law, Simler. 3. Iunius thinketh, that not he onelyonly which killeth, sed qui conatus est occidere, but went about to kill, is comprehended in this law, as Deut. 19.19. Ye shall doe unto him, as he had thought to doe unto his brother. Contra. 1. It seemeth by the generall law, vers. 12. that this constitution is onelyonly for murther committed, and not intended onelyonly: for such smiting the law speaketh of, whereupon death followeth. 2. That law given in instance, Deut. 19. is touching false witnesses, whose false testimonie breaketh out into action, into false witnesse bearing: so that there is not an intention onelyonly: for the false witnesse by his false testimonie acteth as much as in him lieth, to take away the life of his brother: that place therefore is impertinent to this purpose. I approve here rather the judgement of Cajetane: Nec describuntur haec intus in animo, sed prodeuntia extra in actiones: Neither are these things described onelyonly in the minde, but proceeding without into action.
QUEST. XLI. Of the difference betweene voluntarie, and involuntarie murther, and the divers kinds of each.
HEre then there is a manifest distinction of involuntarie and voluntarie murther or killing grounded upon the law of Moses· 1. Involuntarie killing is of two sorts: there are foreign, chances, unlooked for and sudden events: as when one shooteth an arrow, and killeth one unawares: as Peleus killed his sonne being in hunting with him. There are beside these foreign, errors and oversights: as the father beateth his childe, purposing onelyonly to chastise him, and hee dieth of that beating: a Physition ministreth physick to his patient, intending to cure him, and doe him good, and he dieth of it, Borrh. 2. There are likewise two kinds of voluntarie, or wilfull murther: ex proposito, of purpose, & ex impetu animi, in heat or rage. These kinde of murthers are called foreign, iniquities: one may be slaine ex proposito, purposely, either per insidias, by lying in wait, when one watcheth for the life of a man, and taketh him at advantage, as Ioab killed Abner, and afterward Amasa, they suspecting no such thing: so Ismael killed Gedoliah, Ierem. 41. Or els per industriam, when one of set purpose picketh quarrels, and seeketh occasions to provoke a man, that he may kill him: both these kinds are touched here, Tostat. quaest. 16. Then one may bee killed in heat and rage, when there was no purpose before, as Alexander the Great killed Clitus, Pelarg. This kinde, though not so grievous as the other, yet is a kinde of voluntarie killing. So there is extant a constitution of Hadrian the Emperour against him, qui per lasciviam causam mortis praebuisset, which was the cause of anothers death through wantonnesse and riot, though there were no enmitie before, that such an one should be banished five yeeres, Simler
QUEST. XLII. Why the wilfull murtherer was to be taken from the Altar.
Vers. 14. THou shalt take him from mine Altar. 1. This may bee understood either of the Altar of incense, which was in the holy place, or of the Altar of burnt offring rather, which was without the Tabernacle in the Court, for thither every one might easily flee, that had committed any such offence: but to the Arke no escape could be made, because there was no entrance thither. 2. R. Salomon saith, that this is meant even of the Priest that sacrificed at the Altar who after he had finished his service at the Altar, might be taken thence and judged by the law, as other malefactors and murtherers. Which collection of his may be received, saving that it is not like they would suffer a murtherous Priest to minister at the Altar. 3. But that other conceit of R. Salomon, whom Lyranus followeth, hath no good ground: that he that had killed an Hebrew wilfully, might be taken from the Altar, as Ioab was: but if he had onelyonly killed a Gentile, as a Moabite or Ammonite, though of set purpose, he was not to be taken thence, but was privileged by the Altar. But the contrarie appeareth, that this law forbiddeth all voluntarie and wilfull murther, whether of Hebrew or Gentile: for it was more to kill a Gentile being free, then a Gentile that was a servant or bondman: but the master was to die for it, if he beat his servant to death, so that he died under his hand, vers. 20. which law must be understood of strangers and aliens that were servants, not of Hebrewes, for they were not to deale so cruelly with them, Levit. 25.38. Iun. much more therefore were they to die, if they of purpose killed any free stranger, Tostat. 4. If therefore the wilfull murther as well of strangers as Hebrewes be here forbidden, then both for the one murther, and for the other, might they be taken even from the Altar. 5. And the reason thereof was this, because they which did flee to Gods Altar, eum tanquam patronum & judicem innocentiae suae implorabani: did sue unto God, as the patron and Judge of their innocency: & therefore they therein abusing Gods name, were to be expelled thence, Gallas.
QUEST. XLIII. What manner of smiting of parents is forbidden.
Vers. 15. HE that smiteth his father and mother, &c. 1. The very smiting of the father or mother deserveth death, although they die not of such smiting: Cajetan. Iun. as may appeare vers. 12. where is directly expressed concerning the smiting of another, if hee die, then the smiter shall bee put to death, Piscator. 2. R. Salomon understandeth, that this is not meant of every smiting: but when upon the smiting …he effusion of bloud followeth, or some scarre or wound is caused. But the very smiting of either of the parents sheweth the malice and disobedience of the childe, for the which he is worthie to die: as Deut. 21.18. the sonne for his stubbornnesse and disobedience was to be stoned to death. Indeed for every blow or smiting the childe was not to die, if it were done unwittingly, or unawares: but if it were done of purpose, he deserved death. 3. And the reason is, because of the authoritie of the parents, which is the next unto God, Simler. Deo & parentibus non possumus reddere aequalia, &c. Wee can never make amends unto God and our parents, Cajetan. As also they seeme not to be worthie of life, which are injurious to those, by whom they received their life, Gallas.
QUEST. XLIV. Of the grievous sinne of paricide.
THough there be no expresse mention here of those that kill their parents, yet it followeth necessarily, that if it be a sinne worthie of death to smite them, much more to kill them. 1. This even among the Heathen was counted so hainous a sinne, that they thought none so wicked, that would commit paricide, and therefore Solon that wise law-maker among the Athenians, maketh no mention of paricide, nor yet the Romans had any law against such: untill the 642. yeare from the building of the Citie, which was the 100. yeare before the nativitie of Christ, one Publicius Malcolus, with the helpe of his servants, killed his mother: against whom the Citie decreed this punishment, that he should be put into a sacke, together with a Cocke, an Ape, a Viper, and a Dogge, and so cast into the water: Tostat. quaest. 17. The Egyptians caused such first to be beaten with thornes, and then to be burnt with thornes. The Macedonians did stone them to death: Pelarg. Plato lib. 9. de legibus, would have such grievously punished unto death, and then to be left unburied. 2. It is a like sinne to kill the father, as to doe it to the mother: yet the father is set before, as the more honourable person: and fewer examples are extant of those that have killed their fathers, than of the other. Oedipus is said unwittingly to have killed his father Laius King of Thebes, taking him for his enemie: But Orestes killed his mother Clite…nestra Agamemnons wife wittingly: so did Alcmeon his mother, being charged so to doe by his father Amphiaraus, being slaine in the Thebane warre, to the which his wife perswaded him to goe: and therefore being deadly wounded, he commanded his sonne to kill her. Ninia likewise the sonne of Ninus killed his mother Semiramis, after he had carnally knowne her. Such beastly examples of paricide Heathen histories afford, who not knowing God, were without naturall affection, and disobedient to parents, which were the sinnes of the Heathen, Rom. 1.30. Some write, that Iudas killed his father, and married his mother: Tostat. qu. 17. But it is not like, that if Iudas had so apparently shewed his wickednesse before, that our blessed Saviour would have chosen him to be one of his Apostles.