Commentary on Genesis and Exodus, Theological treatise · Chapter 21 · Questions · Question 45 – Question 56
QUEST. XLV. The law of man-stealing expounded.
Vers. 16. HE that stealeth a man, and selleth him, or it be found with him, &c. 1. Some understand, if it be found with the buyer, that is, the man that is stollen be found sold over and delivered to the buyer, Oleaster. But then there should be a repetition of the same thing: for as much was said before, and selleth him: there cannot be a seller without a buyer. 2. Some doe thus expound, if it be found, that is, proved by him that he hath stolen a man: So Lyran. Tostat. Vatab Simler. and the Latine text expresseth the same sense, convictus noxae, if he be convicted of the offence. But this clause had beene superfluous: for this must be understood in all lawes, that the offence must be sufficiently proved before it be censured. Againe in this sense the law should be imperfect, not determining what should become of him that had stolen a man onelyonly and not sold him: some say, restitution should be made by the like, he should give two men for one, or give the price of two men. But this is no where to be found: restitution indeed was to be made in the theft of other things, Exod. 22.1. but there was not the like reason for men. 3. Therefore the meaning is this, that if one steale a man, whether he have sold him and delivered him over, or if he be found with him, as yet unsold, in both cases he should suffer death, for his malice appeared evidently in the stealing onelyonly, that he intended to sell him over: Iun. Gallas. Osiand. So also Lippom. he was to be put to death, if the theft were yet found with him, propter crudelissimum institutum, for his cruell enterprise: how much more, si desperata fuerit venditi redemptio, if being sold he were past redemption? 4. By the ancient Romane lawes, such men-stealers were condemned to the metal mines: by a latter law of Constantine, they were to be cast unto the wilde beasts, Simler.
QUEST. XLVI. The reason why man-stealing was punished by death.
THe reasons why this kinde of theft in stealing of men was so severely punished with death, were these: 1. Because man was created according to Gods image, therefore in respect of the excellencie and preeminence of the thing that was stolen, the punishment ought to be the greater. 2. Because by this meanes he that was sold lost his libertie, which is as precious as life it selfe: and to bring a man into servitude, quid aliud, quàm sexcentis eum mortibus objicere? what was it else, than to expose him to an hundred deaths? Gallas. 3. And beside, they could not steale men, and sell them to the Israelites, but it would bee knowne, and therefore it is like, that after they had stolen them, they sold them over to the Gentiles: and so they were in danger, that were so sold over, to be corrupted in religion, and seduced to idolatrie, and so drawne away from the service of God, and by this meanes be brought into bondage both in soule and bodie: Simler. The Interlinearie Glosse therefore thus expoundeth, diabolo obnoxium f…cerit, hath sold him, that is, brought him into the devils service. 4. Of this sinne were Iosephs brethren guiltie, in selling him over to the idolatrous Egyptians, who therein had a vaine perswasion, that they were not guiltie of his bloud, because they spared his life: but in selling him over to bee a slave, and that to an idolatrous people, as much as in them lay, eum è medio sustulerunt, they tooke him away as out of the world, Gallasius.
QUEST. XLVII. What kinde of cursing of parents is here understood.
Vers. 17. HE that curseth his father or mother, &c. 1. There are two kinds of cursing; one, assumpto Dei nomine, when Gods name is taken in vaine withall: another, is without, Borrhaius. Lippoman thinketh, that this is understood of the first kinde. But seeing the blaspheming of the name of God deserved death of it selfe, Levit. 24. and this law doth properly punish the cursing and blaspheming of the parents; it seemeth generally to be intended against all kinde of cursing, and wi…hing evill unto the parents. 2. And it seemeth to be understood of an use and custome of cursing, not of every railing word, which sometime should bee uttered by the childe in rage and heat: for every such word to inflict death upon the childe, would be thought too hard: sed ille, qui assuefactus est maledicere patri & maetri, &c. but he that is accustomed to curse his father and mother, and that for small matters, deserveth death: Tostat. as that law against disobedient children, Deut. 21.18. is made against those that are incorrigible, and are confirmed in their disobedience and stubbornnesse. So also Cajetane. As he that smiteth them, is worthie of death, so he that curseth: nisi imperfectio actus excuset, puta si non deliberato, aut leve verbum, &c. unlesse the imperfection of the act excuse, or he speake a light word of railing, &c. 3. And as cursing to the face of the parents is judged worthie of death: so also publike backbiting and detracting: Publice enim detrahens perinde est, ac si palam detraheret: For he that openly backbiteth his parents, is as if he did it to their face: but it is otherwise in private backbiting and speaking evill of them: for detractor reveretur eum, cui detrahit, &c. the privie detractor doth feare and reverence him▪ whom he speaketh evill of: but he that curseth to the face, is impudent and shamelesse, &c.
QUEST. XLVIII. What manner of strife the law meaneth.
Vers. 18. WHen men strive together. 1. As contention is in words, so rixa, strife, properly is in deeds: cum ex rixa invicem se percutiunt, when striving they fall to blowes, Thom. 2. The case is put of men: but if either a woman should strike a man, and wound him, or one woman should hurt another, they are subject to the same law: Tostat. qu. 19. 3. And this law must be understood of those which strive and fight one with another, each offending the other, not when one defendeth himselfe: one cannot offend another without mortall and grievous sinne, but one may defend himselfe without sinne: and yet notwithstanding he may sinne, sometime more, sometime lesse in defending himselfe: if he onelyonly seeke in his owne defence, to repell the wrong that is offered, it is no sinne: si cum animo vindictae & odii, &c. If with a minde of revenge and hatred he defend himselfe, he sinneth, either lesse, when he findeth his anger kindled, and his patience violated; or more, when he bindeth himselfe wholly to bee revenged: Sic Thom. 2.2. qu. 41. art. 1. 4. By smiting with stone or fist, is understood all kinde of assaulting one either afarre off, with stone, arrow, dart, or such like; or neere hand, as with sword, staffe in the hand: Simler. or all kinde of hurting, either with weapon, or instrument, or without, Tostat. 5. And the law meaneth such hurting, where no member was perished: for in that case, they were to give eye for eye, hand for hand, foot for foot, vers. 24. Simler.
QUEST. XLIX. What punishment the smiter had, if he which were smitten died.
Vers. 19. IF he rise againe, &c. then shall he that smote him goe quit. 1. That is, he shall be freed from the sentence of death, though he be not innocent before God, nor yet altogether free from all civill punishment: for in this case he is to allow his charges for his resting, and to pay for his healing. 2. But here the doubt is, what punishment he should have, that in striving so smote his brother, that he died of it. Cajetane thinketh, that in this case he should flie unto one of the Cities of refuge: Quia non ex intentione, sed ex repentina rixa percussio facta est; Because the blow or stroke was given not of purpose, but occasioned by a sudden brawle, &c. But if it had beene so, as if death had followed upon such smiting, the smiter should goe free, so neither, death not following, but some other hurt, that he is constrained to keepe his bed, should he have beene taxed so much as with the charges: if the taking away of the life in this case had not beene punishable, much lesse any lesse hurt being not mortall. 3. Therefore I preferre here the judgement of Tostatus, that if he which was thus smitten in a fray or brawle, died, he that smote him was to die, whether hee were Hebrew, that was so killed, or stranger, whether bond or free: for it was not lawfull for them to kill a Gentile or stranger sojourning among them: and if a free man killed a free man, or a servant a free man, he was to die without all question: and if a free man killed anothers servant, hee was to die also: for if a master killed his owne servant outright, he was punished by death, vers. 20. much more if he killed anothers servant, Tostat. quast. 19. And that in this case, they which in strife killed one another, deserved to die, it is evident both by the generall law before vers. 12. He that smiteth a man that he die, shall die the death: and by a necessarie consequence here, If he rise againe, that is smitten, and walke, he that smote him, shall goe quit, that is, from the punishment of death: it followeth then, if he doe not rise againe, but die, that he shall not goe quit.
QUEST. L. What should become of the smiter, if the other died after he walked upon his staffe.
Vers. 19. ANd walke without upon his staffe. But what if he die after he hath risen and walked upon his staffe? 1. R. Salomon thinketh that the smiter was to bee apprehended, and kept till he that was smitten were perfectly recovered: and if he did not, the other was to die: and by walking upon the staffe, he saith is meant, the perfect recovery of his health, as Ezech. 4. the staffe of bread is taken for the vertue and fulnesse of bread, by a metaphor. But though such metaphoricall speeches are usuall in the Prophets, yet in the setting downe of lawes, words must be taken in their literall sense, Tostat. 2. Therefore because the law saith, If he walke without or abroad upon his staffe, the other shall goe quit: the meaning is, though he lie downe upon his bed againe and afterward die, yet the other shall goe qui…: and the reason is, because after hee sitteth up and walketh, and seemeth to be past the danger, and falleth downe againe, Magis probabile est, quod mortuus est …x negligentia, &c. It is more probable, that he died by his owne negligence and carelesnesse in keeping of himselfe, or by some other occasion, than of the smiting, Lyran. 3. But if he did not rise at all from his bed, and being risen, walked but a little about the house upon his staffe, and come not abroad, and afterward died, then the other should not goe quit, Tostat. qu. 20.
QUEST. LI. Of the equetie of this law, in bearing of the charges.
Vers. 19 HE shall beare his charges for his resting, and pay for his healing, &c. 1. That is, he shall pay all manner of charges, which he was put unto about his healing, as to the Physitians, and for the physicke and medicines which he used, and for his diet, which upon this occasion was extraordinary, and so more chargeable, Tostat. qu. 22. Likewise he was to beare the charges of the ministers and keepers, that attended upon him during the time of his lying, Simler. 2. The intendment of this law is, that full recompence and satisfaction should be made for any dammage or losse which happened unto another: and yet so, as that such recompence being made, the Lord would have one to forgive another, that charitie should not be violated, nor any grudge or purpose of revenge remaine, Oleaster. 3. This law was more equall & indifferent, than that law of the Romans contained in the 12. tables, that if any man did beat and batter another, he should pay 25. asses, that is, so many three farthings: which mulct being too easie, one Lucius Neratius, in a bravery used of purpose …o beat and buffet those with his fists whom he met, and caused his man presently to pay him the penaltie of the law: whereupon the Pretors of Rome devised to impose a greater mulct and punishment for such assaults and batteries, G…ll. lib. 20. ex Calvin. Marbach.
QUEST. LII. Who should beare the charges▪ if a servant had done the hurt.
HE shall beare his charges. But what if one servant had beaten another, or a servant had smitten a free man, that hee kept his …ed upon it? 1. In this case either the master of the servant was to beare the charges, or else he was to deliver his servant, and he was to serve or to be sold to make it good, if hee had not of his owne to make satisfaction; as the like order was taken for theft, Exod. 21.3. 2. But here is a further doubt; what if the servant that did the hurt were an Hebrew, who could not be sold over for more than six yeares, and it might so fall out, that there remained but one yeare untill the seventh, being the yeare of remission, came, and so his service for so short a time could not make sufficient recompence? The answer is, that in this case the servant might be sold to serve six yeares more after the yeare of remission; as in the case of theft, if hee had not wherewithall of his owne to make satisfaction: but for longer than six yeares he could not be sold, nor more than once. But if the servant were a Gentile, he might be absolutely sold over, to serve a longer time. 3. Now if the charge would not come to the value or worth of six yeares service, in this case the servant was to serve no longer, than till his service would make sufficient amends: as if a mans service for six yeares were esteemed at six pounds, and the charges of healing arise to three, then the servant was to bee sold over onelyonly to serve three yeares, which would countervaile the charge, Tostat. quaest. 23.
QUEST. LIII. What servants this law meaneth, and what kinde of chastisement is forbidden.
Vers. 20. IF a man smite his servant with a rod, &c. 1. This law is concerning such servants as were no Hebrewes, for them they were not to use so hardly and cruelly, Levit. 25.38. neither could the Hebrew servant be said to be their money: for hee was not absolutely sold, but onelyonly for a time, Tostat. 2. This case is propounded, if the master smite with a rod, or any other thing which is not likely to kill: but if he smite him with a sword, or casting of a stone, or such like, if the servant die, whether under the masters hand, or afterward, the master shall be surely punished, that is, shall die for it, because in smiting his servant with a deadly weapon, it appeareth that he intended to kill him, Simler. Tostat. quaest. 23. 3. And in case it be evident, that the servant die of that beating within a day or two, the master was likewise to be punished for it: but if, as the Hebrew phrase is, hee stand a day or two after, that is, be whole and sound, that he may goe about his businesse: Simler. Nam stare tant…ndem valet, ac vigere omnibus integris membris; For to stand is all one, as to be perfect and sound in all the parts and members; Calvin. then the master was free. So also expoundeth Procopius, Vbi ex vulnere vel verbere convaluerit servus, &c. Where the servant recovereth of the stripe or wound, though he afterward die, the master is held to be innocent: Likewise Thomas Aquin. Si …asio certa esset, lex poenam adhibuit, &c. If the hurt be certaine and evident, the law appointeth a punishment for a maime, the losse of his service, vers. 26. for the death of the servant, the punishment of manslaughter: but where the hurt is uncertaine, the law inflicteth no mulct: incertum enim erat, …trum ex percussione mortuus, &c. For it is uncertaine, whether he died of the beating. 4. This law for servants was more equall than that cruell custome of the Romanes, that give unto masters power over their servants life: as in Augustins time, Vedius Polli… used to cast his servants that offended into the fish ponds; but afterward this cruell custome was mitigated: for Antoninus made a law, that hee which killed his servant without cause, should die for it, as if he had slaine anothers servant, Galas. And Adrianus the Emperour banished one Vmbra a matron for five yeares, for handling her maids cruelly. Ex Simler. 5. But whereas this law giveth libertie to the master to beat his servants, though it were extremely, so that death followed not, wee must consider, that this law requireth not an absolute perfection: Sed Deus se accommodavi… ad … populi, &c. But God applieth himselfe to the rudenesse of the people, tolerating many things among them for the hardnesse of their hearts, Galas.
QUEST. LIV. The meaning of this clause, For he is his money.
FOr he is his money. 1. That is, bought with his money: hee seemeth to have punished himselfe sufficiently in the losse of his servant, Iun. 2. But if this reason were … way the … to be punished, though his servant died under his hand, for hee … i… his money▪ 3. For answer to this objection, a servant is to be considered two wayes, as he is a man, and as he is made apt and fit …o labour▪ the servant oweth not to his master his life, but his labour: therefore if the master take away the life of the servant directly, as if he die with beating under his hand, the master is to be punished for it, for as hee loseth a servant, so the politike state is deprived of a man, and herein hee doth wrong to the Commonwealth. But if the master indirectly procure his servants death▪ as in overcharging him with labour, in denying him competent food, in immode…te correcting him, now the master is not guiltie of his servants death: for now pu…i…at eum tanquam possessionem suam, ut e…en…ret: he did punish him, as his possession and servant, to amend and correct him, not as a man: therefore the reason holdeth in this indirect kinde of killing, He is his money, &c. and not in the other, Tostat. quaest. 23.
QUEST. LV. Whether this law meane the voluntarie or involuntarie hurt done to a woman with childe.
Vers. 22. ALso if men strive, and hurt a woman with childe. 1. Some Hebrewes thinke that this case here put, is of involuntarie hurts and killing: as a man striving against his will hurteth a woman with childe, and shee dieth; for this the man was not to die, in their opinion, but to redeeme his life with a peece of money. Contra. But where any slaughter is committed altogether against ones will; as if a man shoot an arrow, and kill a woman with child, or shee be behind him, and he knew it not, and hee hurteth her with his heele that she die, in this case the man deserved no punishment at all, no not so much as a pecuniary mulct to be inflicted, which yet is appointed by this law, where death followeth not: therefore this law meaneth not any such act, which is altogether involuntarie, Tostat. quaest. 24. 2. Neither is this law to be understood of murther altogether voluntarie: as if a man of purpose should smite a woman with child, and shee die: for this was provided for before, what punishment should be laid upon him that committed wilfull murther. 3. This law therefore is made concerning such violent acts as were of a mixt kinde, partly voluntarie, partly involuntarie: as if a man striving with one, and seeing a woman with child within the danger, cared not whether shee was hurt or no, Tostat. Or if striving with a man, he thrust him upon a woman with child, Galas. Or a woman comming to rescue her husband, receiveth hurt by the other that striveth, Lyran. In this case, if death followed in the woman with child, the … to die fo… it. 4. And the reasons are these: 1. Because adfuit laedendi animu…, he that so striveth had a minde and intent to hurt, Simler. Consilii ratio habenda est, his counsell and intention must be considered, which was to assault the life of another, and by this occasion he killeth one whom he intended not to hurt▪ Iunius. Piscator. 2. Againe, Vxor una car… est cum vi…o, quem intende… p…r…utere; The wife is one flesh with her husband, whom he intended to smite, Lyran. 3. And beside, instance is given of a woman with child, who neither could shift for her selfe, and a double danger is brought both upon her & her child which she went with: therefore in this case the law provideth, that such oversights should be severely punished, Tostat. q. 25.
QUEST. LVI. Whether the death of the infant be punished, as well as of the mother.
Vers. 22. ANd death follow not, &c. 1. Some thinke that this is to be understood onelyonly of the death of the woman, and not of the child, Osiander. That if the child died, and not the woman, he was onelyonly to pay a peece of money, not to lose his life for it: and their reason is, because he deserved not so great a punishment, that killed an infant in the wombe, as he that did stay a perfect man, Oleaster; who findeth fault with Cajetane, for understanding the law indifferently of the woman and her child. 2. But Cajetan… opinion is to be preferred: for like as it is a more heinous thing to kill a man in his owne house, than in the way, so is it a prodigious thing to suffocate an infant in the mothers wombe, qui nondum est in lucem editus, which is not yet brought forth into the light of this world, Calvin. And againe; Foetus quamvis in utero inclusus, homo est; The infant, though yet inclosed in the wombe, is a man, Simler. And the child in the wombe is yet a part of the person of the woman▪ so that if there be corruptio…tius per…o…a▪ aut partis, a destruction of the whole person, or of a part, Iun. he that so hurteth a woman with child, in her owne person, or her childs, is subject to this law.