Commentary on Genesis and Exodus, Theological treatise · Chapter 21 · Questions · Question 59 – Question 67
QUEST. LIX. Whether the law of retalion be literally to be understood.
Vers. 24. EYe for eye, tooth for tooth, &c. 1. Some doe thinke that this law of retalion is not to be understood according to the letter, but an estimation was to be made by money: so R. Salomon, to whom consenteth Tostatus upon these reasons: 1. Because in some of these kinds, as if a foot should bee taken from him that perished his neighbours foot, it might so fall out, that together with the foot hee should lose his life, and so there should be more than a retalion. 2. And againe in the former law, vers. 18. where one upon anothers smiting lieth downe on his bed, but riseth againe, the other was onelyonly to beare his charges, there the law of repercussion and retalion tooke no place: and so is it to be understood here. 3. Favorinu… thus reasoned against this law of retalion, as Aulus Gellius bringeth him in, lib. 20. cap. 1. that it was impossible to be kept: for if the like should be inflicted for the like, as one wound for another, they must take heed that the like wound in every respect should be made, neither longer nor deeper: if it were, then a new retalion should bee offered unto the other that prosecuted the action, and so there should be no end.
Contra. 1. The like may bee objected concerning the cutting off of other members, as of the eares and hands, which are inflicted by the lawes of divers countries: for divers times death followeth in the amputation of such parts, and yet the law intendeth not death. He then may thanke himselfe, that deserved such mangling of his members: neither is the severitie of the law to give way because of some inconvenience which is feared. And yet further thus much may bee added, that where in such tetalion, death was like to follow, where death was not intended, that in this case much was left to the discretion of the Judge, that compensation might bee made in another kinde, as by pecuniarie satisfaction. 2. The other instance is not to the purpose: for the law speaketh of such hurting, when as there is no losse of any member: for in that case they are referred to this law: but when the body was otherwise hurt and bruised, without any corruption of the parts and members, then the smiter in that case was to beare his charges that rested and lay upon his bed by his meanes. 3. The other objection is frivolous: for it was not in the private mans hand that was wounded, to make what wound he thought good againe, but it was in the Judges power to order it.
2. Therefore the more probable opinion is, that this law is literally to be understood: that he which had spoiled his neighbours eye, hand, foot, should suffer the like himselfe, as may appeare by these reasons: 1. Because the first clause here set downe, vers. 23. Thou shalt pay life for life, is literally intended: not that he should pay mony for his life, but he should lose his life indeed. 2. Our blessed Saviour so expoundeth this law, Matth. 5.38. Yee have heard it hath beene said, an eye for an eye, &c. which libertie being given unto the Magistrate onelyonly, every private man did arrogate to himselfe, to seeke revenge as he thought good: and therefore our blessed Saviour correcteth that error: But I say unto you, resist not evill, &c. Now, if this retalion and recompence had beene made in money, and not in inflicting the like hurt, they had not resisted evill or sought revenge. 3. Other forren lawes also borrowed this law of retalion from Moses: as among the Romanes, in their twelve tables, this law is extant: Si membrum ruperit, nisi cum eo pacit, talio esto, &c. If he have broken a member, unlesse he agree with him, let there be a retalion.
3. Yet this law is so literally to be understood, as that it was lawfull notwithstanding to turne the like punishment into a pecuniarie mulct. Iosephus thinketh it was in his choice that was hurt, whether hee would be satisfied in money, or have the like punishment inflicted. So also B…rrhaius. But it is not like, that it was left wholly to his choice, but that it rested in the Judges discretion: as before in another case the womans husband was to set the summe, but the Judges were to moderate it, vers. 22.
4. Therefore it is like that it was in the Judges power to award either the like penaltie, or a compensation in money: as afterward vers. 29.30. If a mans oxe used to gore, chanced to kill any, the owner was to die, or pay a ransome of money. And the reasons of this commutation are these: The difficultie in the strict law of retalion, that it could hardly alwayes be observed according to the letter: as if hee were weake and sickly, that was to lose a member, he was like to lose his life also with it: and if a poore man had lost an arme, it was more profitable for him to have amends made him in money, than to have anothers hand cut off: and if the Judge should upon every ones humorous desire have taken away from one an arme or a legge, this would have nourished revenge. It is like then upon these reasons, that the Judges as they saw cause, did make a change and commutation of this penaltie with money, as the Pretors did among the Romanes.
5. Yet although it were in the Judges power to make a commutation of the like punishment with a pecuniarie mulct, the law of retalion notwithstanding is set downe: 1. Both for more certaintie, because one rule could not serve for all pecuniarie taxations, which might be aggravated, or diminished in the discretion of the Judge, according to the divers circumstances. 2. As also, if a mulct of money had beene set, then the mutilation of the members being not warranted, by the letter of the law could not have beene inflicted. 3. As also, this severitie in the amputation or cutting off the like part doth imprint a greater terror than if any summe of money, though never so great, had beene imposed, Simler.
QUEST. LX. Whether the law of retalion were just and equall.
BUt against the law of retalion it will be thus objected. 1. That sometime there may be great inequalitie in the persons, and then such equall and like requitall is not just: as if a subject should smite a Magistrate and wound him, it is not sufficient for the other to be wounded againe. And in the law of retalion there is no respect whether one did the hurt voluntarily or involuntarily, but onelyonly ut tantum reddatur pro tanto, that so much be rendred for so much: but it is not just, that if one did hurt another against his will, that the like hurt of purpose should be done to him againe, Tostat.
2. But these objections may easily bee removed. For first this law of retalion must be understood with two reservations, that it is given de nocumentis personalibus, concerning hurt done unto mens persons: but it is otherwise in nocumentis rerum, in the damage of ones things or substance: for in that case, not like is to be rendred for like, but at the least double for one, sometime more, chap. 22.4. The other exception is, that these personall wrongs are understood to be personarum non qualificatarum, of persons not qualified, but of common and ordinarie persons, as is evident by the former law, vers. 15. that he which did smite his father and mother, should not be smitten againe, but was to die for it: Cajetan. Secondly, this law of retalion must necessarily bee expounded of voluntarie and wilfull hurts: for if hee that killed a man against his will, was not to bee killed againe, vers. 13. so neither was hee which had done any hurt unwittingly to his neighbour in any of his parts or members, to receive the like againe.
3. This law then, whatsoever can be objected to the contrarie, was most equall, those times considered. 1. Lex talionis permissa est duro populo, &c. This law of retalion was permitted unto that hard people: Sed charitas fidelium mitigatrix est hujus legis; The charitie of the faithfull and beleevers doth mitigate the severitie of this law, which teacheth them not to seeke revenge, Lippoman. 2 And Augustine further sheweth the reason of this law, that it was made to moderate the unreasonable desire of men in seeking revenge: Nonne videmus homines leviter laesos moliri caedem, &c. for doe we not see men being but a little hurt, to goe about to kill, to thirst for bloud? &c. therefore this law, An eye for an eye, &c. non …omes, sed limes furoris est, &c. is not the kindler, but the limiter of rage and revenge, Lib. 12. contr. Faust. cap. 25.
4. But whereas our blessed Saviour, Matth. 5.39. having repeated this law, addeth, But I say unto you, resist not evill, &c. he doth not abrogate this law, but onelyonly freeth it from the corrupt interpretations of the Jewes, who hereby tooke unto themselves great libertie in following and fostering private revenge: Our blessed Saviour therefore sheweth, that privat men should not seeke to revenge their owne wrongs, no… arrogate unto themselves that power which belongeth to the Magistrate: who if hee did not right their wrongs, they ought with patience rather to beare them, than to bee Judges and revengers in their owne case, Marbach.
QUEST. LXI. Of the servants freedome for the losse of an eye or tooth.
Vers. 26. IF a man smite his servant, &c. 1. This law is to bee understood of such servants as were not Hebrewes, as may appeare v…s. 20. for they were not to use the Hebrew servants so cruelly, Levit. 25.38. Tostatus thinketh, that if an Hebrew servant received a maime, hee was not onelyonly to bee set at libertie for his maime, but also some other recompence was to be made beside, because hee was to goe out free simply in the seventh yeere. But I rather herein subscribe to Lyranus, that in this case the former law of retalion was to take place, if an Hebrew servant lost either an eye or tooth at his masters hand. So also Iunius.
2. If either one servant did maime another, or a free man anothers servant, Tostatus thinketh that in this case the smiter was to buy out his service that was maimed; and if he were not able, then hee was to serve in his place: and this generall rule hee giveth, that a quocunque servus percutiatur, debet effici liber, of whomsoever the servant was smitten, hee was to bee made free. His reason is, because another had not more privilege than the servants master: if then he was to bee set at libertie, if his master smote him, and maimed him, much more if another did it. Contra. This law onelyonly containeth an exception concerning the master: in all other, the former law was to stand in force, an eye for an eye, &c. which was no privilege for the stranger, more than for the master, but a greater punishment: the master is privileged and exempted from the law of retalion: for if the master should have lost a limme or member for his servant, there would never have beene any agreement or accord betweene them afterward: Marbach. And therefore the law provideth that which was lesse grievous to the master, and more beneficiall for the servant, that he should have his freedome for his maime, Simler. Privandi enim sunt dominatu tanquam indigni: For they were to bee deprived of their mastership and government, as unworthy, that could use it no more moderatly, Gallas.
3. There are foure kinds of smiting: 1. When death followed, whereof the law is set downe before, vers. 20. 2. If any limme were perished. 3. If a wound were made, and bloud followed. 4. When no skin was broken, but onelyonly the blewnesse of the stripe seene: for these two last there was no punishment appointed for the master, but onelyonly for the two first, the one is provided for before, vers. 20. the second here, Tostat.
4. By these two parts of the eye and tooth here expressed, all other parts which might be in like manner blemished are signified, Simler. Lyranus out of R. Salomon nameth these parts, for the which, if they were perished, the servant was to goe out free: the ten fingers, the ten toes, the eares, eyes, nose, and secret parts. And why not also the hands and armes, feet and legges, as before in part is set downe in the law of retalion? vers. 24.
5. Procopius and Rabanus doe make this mysticall sense of this law: by the eye they understand the minde, by the tooth, discretionem per quam subtiliter sententias Scripturarum comminuit, the discerning, whereby one divideth the sentences of Scripture: if any doe corrupt the judgement of his servant in matters of religion, he must leave such a master, and go where he may be better taught. But where the literall meaning is plaine, such mysticall applications are superfluous.
QUEST. LXII. What manner of smiting and goaring of a beast is here understood.
Vers. 28. IF an oxe goare, &c. 1. One kinde is put for all: à parte totum intelligendum est: One kinde of beast is named for the rest: what beast soever is hurtfull unto man, must thus bee served: Augustin. qu. 8. in Exod. So also Lyranus. And this is agreeable to that law, Gen. 9▪ 5. At the hand of every beast will I require your bloud, Gallas. But the oxe is specially mentioned, because the Hebrewes were most given to keeping of cattell: their horse were for the most part brought out of Egypt, Simler. 2. It is understood to be such a goring and wounding, as that death followed upon it: for otherwise though one were sore wounded with the push of an oxe, if he died not, the oxe was not in this case to be stoned, Tostat. 3. But that other conceit of Tostatus in this place is not so good: secus est, si calce petierit &c. It is otherwise, if the oxe strike with his heele, not with his horne: in this case the oxe is not to die, because it was his fault that stood within the reach of the oxes heele, whereas he pursueth after men to gore them with his horne: for what saith he then to the horse heele, if any were stricken to death therewith? was not the horse to be killed by the equitie of this law? as Lippoman expoundeth it as well de equo calcitroso, of a striking horse, as of a pushing oxe. If this law provideth for the stroke of the horse heele, why not for the oxe heele also? And this is yet more evident, Gen. 9.5. that the Lord will require mans bloud at the hand of every beast: the heele is as well the oxe hand as his horne. By what meanes soever then a beast killeth a man, this law was to take place.
QUEST. LXIII. Why the oxe that goared was commanded to be stoned to death.
Vers. 28. THe oxe shall be stoned to death, &c. 1. Though a bruit beast cannot sinne, and therefore this punishment is not inflicted for any sinne committed by the beast, yet it is in joyned, ad horrorem facti, for the horror of the fact: Tostat. 2. Quia esset horribilis ad videndum, &c. Because the sight of such a bloodie beast would be horrible and grievous to men, Lyran. 3. And it might be feared lest such a dangerous beast, if he should live, should kill others also, Simler. 4. This was also provided for the masters advantage, who was bound to make good all losses which should fall out afterward by his beast, which used to push, Tostat. 5. And by this law men are given to understand that if bruit beasts are not spared, much lesse shall they goe unpunished, if they shed mans bloud, Gallas. 6. The equitie also of this law herein appeareth: that sicut creati sunt boves in hominum gratiam, &c. That as oxen were created for mans sake, so they should serve for the use of man, whether by their life or death, Calvin. 6. Agreeable to this law of Moses (as grounded upon the law of nature) were the like constitutions among the Heathen: as Solon made a law in Athens, that if a dogge had bitten a man, hee should be tied in an halter and delivered to him that was hurt. So among the Romanes in their 12. tables it was decreed, that if a beast had done any hurt, Dominus aut litis astimationem solvito, aut eam noxa dedito: The owner should either pay a… was awarded, or deliver up his beast to punishment. Draco also was the author of this law in Athens, that not onelyonly men, but beasts, yea things without life, that had beene the meanes of any mans death, should be banished out of the countrie, and cast out: whereupon the image of Theogenes among the Thrasians falling upon one and killing him, was adjudged to be cast into the Sea, Simler.
QUEST. LXIV. Why the flesh of the oxe was not to be eaten.
ANd his flesh shall not bee eaten. 1. It was neither lawfull for them to eat the flesh themselves, nor yet to sell it to the Gentiles, as they might doe other things, that died alone, Deut. 1….21. Iun. But the flesh should be cast away, as a cursed and abominable thing. 2. Not so much because being stoned to death, it was as a thing suffocated, and so they should have eaten it with the bloud, Simler. Osiander. But tanquam aliquid maledictum, &c. as a thing accursed, they were to abhorre the flesh of such a bloudie beast… so that although the owner should slay this murtherous oxe before it were stoned, it was not law…ull to eat the flesh thereof, Tostat. quaest. 30. 3. And this was tum propter horrorem fact… ▪ both for the horror of the fact: tum quia per hoc damnificabat… Dominus bovis, and by this meanes also the owner of the oxe was damnified, the flesh thereof being unprofitable for any thing, that he might be more …autel… afterward, and take better heed to his cattell, Lyranus. 4. The Hebrewes add… further, that the very skin of the oxe was not to be used to any purpose, but the whole to be cast away as a thing abominable, Tostat. quaest. 28.
QUEST. LXV. In what case the owner is to die, when his oxe goared any to death.
Vers 29. IF the oxe were wont to push, &c. Another case is put, when the oxe chanceth to doe any hurt with the masters knowledge, where divers conditions are required: 1. That the oxe used to push before: the words are in the originall, yesterday, and ye… yesterday: a definite time is put for an indefinite: it is no… enough if he had once goared before, but he must have one it twice at the least▪ as R. Salomon, Lyran. He must have beene knowne in former time to have beene used to push. 2. This also must have beene notified and signified also to the owner: for it may be, that the oxe had used formerly to push, and the owner knew it not, Simler. Or if he knew it, he might denie it, unlesse he had beene admonished by others to take care of his beast, Tostat. quaest. 28. 3. He or she must be free, and not a servant, whom the oxe used to push, goareth to death: for concerning the goaring of servants, there followeth another law afterward, vers. 32. If the oxe goared a man or woman, a sonne or daughter, that is, though they were never so little, it was all one, Lyran. Some thinke it is understood of the owners owne sonne and daughter, Calvin. Oleaster. But the next law as touching the goaring of servants, sheweth that it is rather meant of his neighbours sonne or daughter, Hugo de S. Victor. But it is rather understood in generall, de quo vi… capite libero, of every free bodie, great or small, man or woman, Iun. 4. In this case the owner, being warned before of his oxe, is to die for it, because he did not keepe him in, knowing him to be a harmefull beast: Quia videtur illud, quasi immittere aliorum cervicibus: because he seemed of purpose to let him loose to doe mischiefe, Simler.
QUEST. LXVI. When the owner might redeeme his left with money.
Vers. 30. IF there be set to him a summe of money. 1. R. Salomon thinketh, that in this case the next of kin to the partie slaine, were to take a peece of money of the owner of the oxe, and they could not refuse, but might be compelled to take it: and so he taketh here, si, if, for, quia, because. Contra But the very letter of the law is against this exposition: for it is expresly said, The oxe shall be stoned, and the owner shall die also. But if the owner might at his libertie redeeme his life with money, then he should never be put to death, and so that clause of the law should be superfluous, Tostat. quaest. 29. 2. Neither yet is Tostatus opinion here to be received: Quando que posuit in electione cognatorum, &c. That the law doth put it in the choice of the kinsmen of the slaine, when they would demand the owner to die, and when they thought good to set him a summe of money: and so hee maketh this a different case from that, vers. 22. where the Judges were to set the summe of money, because it was no capitall offence: but here he is to pay whatsoever is required by the adversarie part, without any moderation, or limitation of the Judges, because the offence being capitall, cannot be valued or esteemed by any certaine summe of money, Tostat. quast. 28. Contra. But this is not like, that this was left to the choice of the adversaries: for either they might set such an unreasonable summe, which the owner was not able to pay: or else might use partialitie, that in the very like case some owner should die, when another should escape with his life: and so the law should not be equall and indifferent to all. 3. Some thinke that it was in the Judges discretion, to change the sentence of death into a pecuniary mulct: concedit l…x quòd possit Iudex decernere, &c. The law alloweth the Judge to determine, &c. Cajetan. Lippoman thinketh that the adversaries were to make the demand, praevia tamen non iniqui Iudici… moderatione, &c. yet by the moderation of an indifferent Judge going before. But if it were altogether arbitrarie in the Judge, when a man should die in this case, when not, to what end saith the law, The owner shall die also? In that case then there propounded he was certainly to die, which sentence by the Judge could not be dispensed with. 4. Therefore I thinke rather with Iunius, that in this mitigation of the former sentence of death, a divers case is put from the former: that if the owner of the oxe, non satis scivit, did not sufficiently know it, vel non satis cavit, or did not take heed enough, thinking he had sufficiently provided for his beast: that in this case he might be excused: Si simplick as vel incogitanti… hominem excusa…t, if the mans simplicitie or forgetfulnesse did excuse him, &c. so that he were not found to be wilfully negligent and carelesse, the Judge might set him at a summe of money, Calvin.
QUEST. LXVII. What servants this law meaneth, Hebrewes or strangers.
Vers. 32. IF the oxe goare a servant or maid. 1. Some thinke this is generally meant of all servants among the Hebrewes, where lesse respect is had unto servants than unto free men, Vt cura libertatis major vigeret in populo Dei, &c. That there should be more care had of libertie among the people of God, that they come not through their owne default into servitude and bondage, Lippoman. 2. But it is rather understood of such servants as were Gentiles and strangers, and not Hebrewes, as may appeare by the former lawes, vers. 20.26. which are onelyonly referred unto that kinde of servants, Iun. For in all kinde of percussions and wrongs offred to the bodie, or life, the Hebrew servants had the same privilege which free men had. Againe Tostatus addeth this reason, because if he were an Hebrew servant that was killed, the money should not be given to his master, but so much onelyonly as his service remaining might be valued at, the rest was to goe rather to his children or kindred: as put the case that his service were esteemed at foure sicles yearly, and there remained but one yeare of his service, before the seventh yeare came, then his master was to have but foure sicles of the thirtie sicles: But because the Gentile servants were their masters perpetuall possession, the whole summe which the servant was valued at, that perished, belonged unto them, Tostat. quaest. 3.