Commentary on Genesis and Exodus, Theological treatise · Chapter 21 · Questions · Question 57 – Question 58
QUEST. LVII. Whether this law extendeth it selfe to infants which miscarie, being not yet perfectly formed.
NOw it being agreed that this law as well comprehendeth the infant that perisheth, as the woman that beareth it: yet there remaineth a question, whether if the childe in the wombe bee yet imperfect, and so not endued with sense and life, that in this case, though the woman die not, but onelyonly lose her birth, he that did the hurt is to suffer death. 1. Some hold the affirmative, that if any child whatsoever by this meanes miscarrie, the offender is subject to this law: … prop…qua est effectui▪ The i…fant being now formed is so neere unto the effect, th… is, the life, that who causeth the same to miscarrie, may be said to have killed a man, Gallas. And therefore by the Civill law, he that of purpose procured the birth to miscarrie, if he were a meane person, was condemned to the metall mines; if a noble person, to banishment. Cicero also in his oration pro Cluenti…, reporteth of one Milesia a woman, who being hired of the heires in reversion, to destroy the infant that shee went with, had a capitall puishment therefore inflicted upon her: Ex Simlero. But these lawes were made against such as did of purpose seeke to destroy infants in the wombe, and cause abortion of them: here the cause is divers where the fruit of the wombe miscarrieth by some chance. 2. Therefore this penaltie was onelyonly by the law inflicted, when as the infant perished, that was endued with life. So Augustine thinketh, using this reason: Nondum potest dici anima viva in eo corpore, quod sensu caret, &c. The living soule cannot be said to be yet in that bodie which wanteth sense: qu. 80. in Exod. And thus the Septuagint interpret: If the infant came forth, foreign, not yet formed, &c. which forming of the infant beginneth fortie dayes after the conception, as Procopius. Cajetane giveth this reason, why in such a case, when the birth commeth forth imperfect, the sentence of death is not inflicted: quia homo in potentia non est homo: because a man onelyonly in possibilitie is not a man: & quia tunc non occiditur homo, non est homicidium: and because then a man is not killed, it is no manslaughter, Tostat. And the word jeladim, sons, signifieth as much, that the law meaneth formed and perfect infants: Simler. And it is put in the plurall, because a woman may have more infants than one in her wombe at once: for otherwise why should one give life for life, or soule for soule, seeing such imperfect births are not yet endued with life & soule? As Augustine saith: In Adam exemplum datum est, &c. An evident example is given in Adam, quia jam formatum corpus accipit animam: that the bodie when it is now fashioned receiveth the soule, and not before: For after Adams bodie was made, the Lord breathed into him the breath of life. So August. lib. quaest. vet. & nov. Testam. qu. 23. as he is alleaged, Caus. 32. qu. 2. cap. 9.
QUEST. LVIII. Why the action is given unto the husband.
Vers. 22. ACcording as the womans husband shall appoint him, &c. 1. Because the injurie is done unto the man, in that his issue is cut off, and because hee is the head of the woman, the law referreth the prosecution of this wrong unto the husband, Tostat. 2. But the taxation of the mulct is so referred to the man, as yet if he should exceed a just proportion, the Judges in their discretion are to moderate it, Gallas. 3. Tostatus thinketh that these were not the ordinarie Judges of the Hebrewes, sed arbitri constituti ex voluntate partis utrius que , but arbitrators chosen by the will and consent of both parties, quest. 24. But that part of the law which followeth, Thou shalt render life for life, which is spoken to the Judge, to whom the sword was committed, sheweth, that this authoritie also of setting the pecuniarie punishment is referred to the civill Magistrate.