Commentary on Genesis and Exodus, Theological treatise · Chapter 22 · Questions · Question 13 – Question 25
QUEST. XIII. How this Law of committing things to trust differeth from the former.
Vers. 10. IF a man deliver unto his neighbour to keepe, &c. This Law is divers from the former: for there the keeper is not chargeable, if the thing given to keeping be stollen, but here he is to make it good, vers. 12. 1. Some make the reason of this difference to be this: Hoc de deposito vivo intelligendum est: This must be understood of a living thing, as an oxe or sheepe committed to one to keepe: the other Law speaketh of dead things, as money or stuffe: for the chiefe substance of the Israelites consisted of cattell: which therefore the Law intendeth should not be diminished or empaired, but made good to the owner. But concerning other goods, no such restitution was to be made, Gallas. Lippom. Contra. They are herein deceived, for the former generall Law maketh mention of oxen, asses, sheepe, and generally of whatsoever is lost, wherein any fraud may be committed. 2. Cajetane and Simlerus give this reason: because the other Law speaketh expresly of things stollen out of the keepers or depositories house, which the owner made choice of for the sure keeping of his goods: and therefore if they be stollen, it is upon his owne perill, because he made no better choice of the place. Now living creatures are not committed to the safe keeping of the place, but to the keepers diligence and care, so that if they be stollen, it is through his default and negligence. To the same purpose also Calvine. But this reason giveth not satisfaction, because in the other Law, vers. 9. mention is made also of oxen, asses, sheepe, and other living creatures. 3. This then is the difference, that the former Law speaketh of things committed freely to ones trust, without any consideration or reward, but here of such things which a man is waged or hired to keepe: and therefore in this case he is to make good that which was stollen, and not in the other: Cujus ratio est, quia pro custodia habet mercedem: The reason is, because he had a reward for his keeping, Lyran. Tostat. And this appeareth yet more evidently by Iakobs practice, Genes. 31.39. Laban required it of his hand, whether it were stollen by night or by day; because he waged with Iakob to keepe his sheepe, Iun. Gallasius objecteth against this example; that Iakob there had boasted in vaine, quod solus ista damna pertulisset, that he alone had borne these losses, if it had beene an ordinary thing so to doe. Contra. Iakob in that place to purge himselfe of all suspition of fraud or negligence, alleageth two things; one, that whatsoever was torne, he brought it not to Laban, as the manner was, but made it good himselfe: and herein Iakob did more than he was bound to doe: the other is concerning Labans strictnesse, that required of him that which was stollen, wherein Laban did according to the common use; but yet his hard dealing appeared in exacting of his sonne in Law, as of a stranger.
QUEST. XIV. How the case of theft differeth from other casualties in matters of trust.
Vers. 10. IF it dye, or be hurt, or taken away by enemies, &c. 1. In these cases the keeper was not to make restitution, as if it were stollen: the reason is, because these casualties could not by humane diligence or foresight be prevented, as the other might, Simler. So Thomas: Depositivum poterat perdi dupliciter, Thom. 1.2. qu. 105. art. 2. ad. 3.ex causa inevitabili, &c. The thing committed to ones trust might be lost two wayes, either by a cause inevitable, which could not be shunned or prevented: and the same either naturall, as by disease and death; or externall, as if it were taken of the enemy, or devoured of wild beasts: or the cause might be evitabilis, such as might be prevented, as in stealing. 2. But such casualty and death is here understood, as is not procured by the deceit and craft of the keeper: as if he defrauded the beast of his meat, or overwrought it, or if it became lame and broken by his smiting and abusing of it: for in these cases the keeper is to make good the losse: yea though he had nothing at all for the keeping, he was to make recompence, if any kinde of way he had put his hand to his neighbours good, vers. 8. much more now, seeing he was waged for the keeping: and so here he is to take his oath, that he hath not put his hand to his neighbours good, that is, that none of these casualties did befall by his default. 3. And by these particular accidents, which cannot be prevented, other like unexpected and inevitable chances are understood.The keeper in trust is not to answer for casualties. Casus fortuitus non imputatur depositorio: A case falling out by chance bindeth not the depositorie, or keeper in trust, though he have somewhat for the keeping: as if the house be burned, where he laid up anothers goods, or the ship suffer wracke wherein such goods were embarked: unlesse one of these three, culpa, pactum, mora interciderit; the keepers fault, some compact, or delay come betweene: for if the casualty fall out by the keepers default or negligence, or he have covenanted to make good what losse soever, or keepe the goods longer in his hand than the owner agreed with him to keepe them; in all these cases the keeper is bound to make satisfaction what chance soever happeneth, Tostat. quaest. 7.
QUEST. XV. Whether it were reasonable, that the matter should be put upon the parties oath.
Vers. 11. AN oath of the Lord, &c. 1. This kinde of probation, to put a man to purge himselfe upon his oath, was used when no other witnesses could be produced, as it is added in the former verse, and no man saw it, that is, alius à custode, none beside the keeper, Oleaster: so that where other proofe might be had, a man at the first should not be put upon his owne purgation, Tostat. 2. Neither need it seeme strange, that the controversie should be decided by the keepers oath: for no man will commit a thing to another in trust, unlesse he were first well perswaded of his honesty: Suo ergo praejudicio testatus est, eum esse virum bonum: He therefore testified by his fore-judgement of him in trusting him, that he is a good man, Calvin: and therefore it is no wrong unto him, to have the matter tried by his oath, whom he trusted. 3. Here wee see the lawfull use of an oath, to be an end of all controversie and strife, as the Apostle sheweth, Heb. 6. when no other proofe can be had, Tostat. 4. And it is called the oath of Iehovah, because they only are to sweare by the name of God, Genevens.
QUEST. XVI. What was to be done if the thing kept in trust were devoured of some wild beast.
Vers. 13. IF it be torne in peeces, he shall bring it in record. 1. One way to testifie, that it was torne of wild beasts, was to bring a part of the prey, recovered out of the ravenous beasts mouth, as shepheards sometime used to doe, Amos 3.11. Iun. This sense is expressed by the Chalde, He shall bring that which is torne for a testimony; and the Septuagint, He shall bring it to his gate, that is, shew it to the owner: And therefore Iacob herein approved his faithfull service to Laban, that used not this liberty, to bring that unto him which was torne, but made it good himselfe, Gen. 31.29. Tostat. 2. Another way to prove it to have beene torne with beasts, was to bring proofe by witnesses, that saw the ravenous beast to carry away the prey: for this sentence hath relation to the former clause, vers. 10. If no man saw it: If then he can bring any that saw it done, though he could shew no part, it sufficed, Lyran. Tostat. 3. And a third way to prove it, where the other two faile, was by his owne oath, as may be gathered, vers. 11. If no man did see it, … oath of the Lord shall be betweene them, &c. Lyran.
QUEST. XVII. Of the Law of borrowing and lending: when the thing lent is to be made good, when not.
Vers. 14. IF a man borrow ought of his neighbour. 1. Here the third case is put of lending and borrowing… the two former cases were of committing any thing to one to keepe, either without a reward, vers. 7, 8. or for some consideration, vers. 10, 11. Lyran. 2. In the Law of lending and borrowing, more is required than in the other: for then the borrower receiveth a benefit, and therefore tenetur de levissima culpa, he is tied to make it good upon the least fault, Tostat. But when any thing is committed to ones trust, the owner receiveth a benefit, and not the keeper. 3. This Law seemeth chiefly to be meant of such things as have life, which are lent, because it followeth, if it be hurt, or dye: and of such other dead things, as may be used without the corruption or consumption of them, as garments, houshold-stuffe, and such like: but all things which belong to meat and drinke, are corrupted and changed in the use, as wine, bread, flesh, and cannot be restored againe in the same substance: the lending of these things is called …, the possession whereof is transferred to the borrower: the lending of the other is called co…dat…, when not the possession, but the use only of the thing is granted to another, of which kinde this Law must be understood, Tostat. qu. 8. 4. Now this case is put, that if the lender be present when his oxe … asse, or other beast decayeth, the borrower shall not make it good: for both he is an eye witnesse, that his beast was not abused by the user, and therefore decayed not by his default, Tostat. As also, praesent rei sua providere potuit, being present, he might have prevented the danger himselfe, if it were to be helped, Gallas. But if the owner be not by, the borrower shall make restitution; because carelesse men commonly use but hardly such things as they borrow in the absence of the owner, and therefore this Law meeteth with their unhonest dealing herein. 5. Beside, other cases are supplied by humane Lawes, when the borrower is not bound to make good the thing borrowed, as the Civill law is, Commodatorius non tenetur decas… fertuito, nisi se adstrinxerit, The borrower is not bound where a chance happeneth,Cod. lib. 4. tit. 23. leg. 1. Diocleti…. unlesse he have bound himselfe. Unto which may be added, or unlesse it be by his owne default, or he keepe the thing borrowed longer than the time appointed, Tostat. quaest. 8. For the Law is, that if a man borrow a certaine thing for a time, to use for some purpose, though the worke be not finished, for the which he borrowed it, at that time which is set, it must notwithstanding be restored: commodatum ad tempus, &c. a thing lent for a time, as to make a woollen web for a yeere: Finito anno, licèt non completo lanificio, restituitur: Cod. lib. 4. tit. 23. leg. 1.The yeere being ended, though the worke be not finished, it must be restored. And as the borrower is tied to his time, so is the lender: if he lend any thing, for a certaine time, which the borrower useth for some businesse, the lender cannot require it before that time expired, because the borrower might thereby greatly be hindered in his businesse, Tostat.
QUEST. XVIII. Why such a strait Law is made for the borrower.
NOw though it might seeme hard, that the borrower was bound to make good the thing borrowed, though not lost by his default, yet it pleased the Lord thus to ordaine, that they might be as carefull to keepe their neighbours things as their owne, that they might be the readier one to lend unto another for their necessity: this facility and readinesse to lend is by divers Lawes enjoyned. 1. That they should be willing to lend, though the seventh yeere of remission approched, Deut. 15.9. 2. That they should take no pawne of their brother, for that which he borrowed, of such things as he lived by: as the upper and nether milstone, Deut. 24.6. And if they did, to restore it presently: As it followeth here, vers. 26. if they tooke a mans rayment to pledge, they should restore it before the sunne set. 3. They were commanded, not to be too greedy in exacting that which was borrowed: as they were not to goe into the house to fetch it, but to stand, and aske it at the doore, Deut. 24.11, 12. 4. If the yeere of remission came before the borrower were able to repay that which he had borrowed, they were … … mit all, Deut. 15.2. Probabile enim erat… … illi qui commedè reddere posseut, aute septimum annum redderent, &c. For it was probable, that they which could conveniently restore the thing borrowed, would doe it before the seventh yeere, and not of purpose defraud the creditor and lender. See Thomas. For this cause therefore that they might be more willing to lend one unto another,1.2. q. 105. art. 2. ad. 4. this Law requireth an exact care in the borrower, to preserve that which is lent, and to restore it: And so the Ci…ill law also is: Nemo commodatum retineat sub praetextu debiti, Cod. lib. 4. tit. 23. d. 4.&c. That no man should keepe backe the thing lent, pretending debt.
QUEST. XIX. Why the hirer is not to make good the thing hired, as when it is borrowed.
Vers. 15. IF it be an hired thing, &c. 1. Some make this all one Law with the former, and take it to be a reason given, why the borrower is not to make good that which is lost in the presence of the owner, because it came, that is, was hired for his money: So Simler. Vatab. Lippom. Oleaster. 2. But I rather consent herein to Lyranus, Tostatus, Gallasius, Iunius, that make this a divers Law from the former: that speaketh of lending freely, this of hiring and letting out for money: and therefore he that hireth a thing for his money, minus tenetur de custodia animalis, is lesse bound than the borrower, to the safe keeping of the thing so hired, Lyran. And the reason is, because, locatio sit ad utilitatem locatoris, the letting out for money is for the profit of him that letteth, Tostat. So Cajetane expoundeth well, Abs que distinctione prasentiae vel absentiae Domini non tenebitur conductor ad solvendum animal casu confractum, &c. Here without any distinction of the presence or absence of the master, the hirer is not bound to make good the beast which is by chance hurt or dead, because it came for his hire. 3. Yet in this case also, tenebit…r de dolo, vel lata culpa, the hirer shall be bound, if he used deceit or were in a manifest fault; otherwise not, as, si fecisset animal illud nimis laborare, if he caused the beast which was borrowed to be over laboured, Lyran. But in the case of borrowing he is bound not only to make restitution where any thing is lost by his fraud and wilfull default, sed tenetur de levissima culpa, but for every small fault, oversight or negligence, is he bound to make satisfaction, Tostat. qu. 8.
QUEST. XX. Whether the fornicator by this Law be sufficiently punished.
Vers. 16. IF a man entise a maid not betr…thed, &c. 1. This Law enjoyning only unto the fornicator marriage with the virgin corrupted, if her father consent, may seeme to be too easie and gentle. But here it must be considered, that in these civill Lawes the punishment is not alwayes answerable to the sin: for even the sinne of fornication is one of those which without Gods mercy excludeth out of the kingdome of heaven: but the intendment of this Law is, to bridle such inordinate lusts, and to restraine them, that they still increase not, Simler. 2. And beside, it must be considered, multa pro ruditate populit…lerare, that many things in that Common-wealth were tolerated, because of the rudenesse of the people, Gallas. 3. Although the offender by this meanes doe satisfie the politicke Law, in marrying the virgin by him corrupted, yet, coram Deo, &c. in the presence of God he is not cleared from this offence, in making amends by marriage, and giving her a dowry, Osiander. But repentance beside is necessary for the expiation of this sinne. 4. The speciall scope of this Law is to provide for the virgin thus abused, that shee being made by this meanes unapt for any marriage with another, should be taken to be his wife that had done her this wrong. 5. The like Law there was among the Athenians, that he which defiled a maid should take her to be his wife. But among the Romans, there was a more severe Law: that he which had committed fornication, if he were of good sort, should be punished in the losse of halfe his goods: if of base condition, he should be banished, Simler. 6. This Law is onelyonly concerning virgins not betrothed: for to lye with them which were espoused to another, was death by Moses Law, Deut. 22.23.
QUEST. XXI. Why the women committing fornication be not as well punished by the Law.
AGaine, this Law may seeme to be defective, as in laying so easie a punishment upon the man, so imposing none at all upon the woman. 1. But the reasons thereof may be these: the woman might be entised and deceived upon hope of marriage: and it was sufficient punishment unto her, the losse of her virginity: and beside, being under her fathers power, and so having nothing of her owne, shee could not be charged to pay any summe of money, as the man is, Simler. 2. Yet the high Priests daughter, if shee played the whore in her fathers house, was to be burned, because shee had dishonoured her fathers house: Levit. 21.9. therefore she is to be excepted out of this Law, Tostat. quaest. 9. 3. The word patah, here used, signifieth to decline, or turne: so that whether he entise the maid, blanditiis, vel mendaciis, by faire promises, or by lying words: whether he promised her marriage or not, he is bound by this Law to take her to wife, Oleaster. 4. And as this Law is meant for the one party of virgins not betrothed, so is it intended on the other part, that he must be a single man that is by this Law enjoyned to marry her, Iun. If he were married, it seemeth he was rather to endow her, than marry her; because the father would not willingly consent to give his daughter to one that was married already. 5. The word shacab, signifieth to lye, or sleepe: non est peccatum dormire cum puella, it is no sinne (saith Tostatus) only to sleepe with a maid, if no other thing be committed: though he follow the Latine text, reading, and sleepe with her: it is better therefore to read, lie with her, Iun. Vatab.
QUEST. XXII. What kinde of dowry this Law speaketh of.
HE shall endow her. There is difference betweene Dos, the dowry, and donati… propter nuptias, the marriage gift or joynture: this is not meant of the joynture which the man should make his wife, but of the dowry which the father used to give in marriage with his daughter, as may appeare by these reasons: 1. The endowing of the wife is inflicted h…re as a punishment: the man for his fault is enjoyned to doe that which otherwise he was not bound to doe: but the husband alwayes bestowed upon his wife a marriage gift: therefore this Law meaneth, he shall beare also her dowry, which his wife should bring with her, or her friends give with her. 2. If it were understood of the joynture or marriage gift, it had beene superfluous to say, he shall endow her, and take her to wife: for in taking her to wife, the husband was of ordinary course to bestow on her a marriage gift or joynture. 3. If he have her not to wife, her father not consenting, yet he was to pay her dowry, vers. 17. that is, not a joynture, or marriage gift, but that portion which her friends used to give with her, Tostat. qu. 9.
QUEST. XXIII. How this Law differeth from that, Deut. 22.29.
SOme make this Law all one with that, Deut. 22.29. where the man which defiled a maid, is enjoyned to pay 50. sicles to her father, which R. Salomon thinketh to be the certaine dowry of a virgin: and so they say, that there is duplex dos, una qua datur uxori, alia quae datur patri; a double dowry, one which is given unto the wife, the other unto her father, Lyran. Simler. Gallas. Lippom. But these two appeare to be divers Lawes: 1. This case is put when a man entiseth a maid, and she consenteth and is willing therewith: but there the Law speaketh of the violent taking of a maid, Iun. Tostat. 2. There the summe of 50. sicles is paid to the father for the wrong done unto his daughter, it is not given in the name of a dowry: for there could not be any certaine rate or summe of money appointed for every maids dowry: some might give 1000. sicles with their daughter, others not thirty: therefore that summe of 50. sicles is not prescribed here; but it is said in generall, He shall pay money according to the dowry of virgins, that is, according to their state and condition, as dowries used to be given with virgins and maids of like parentage, calling and birth, for a poore maid had not so great a dowry as one of noble stocke and high degree. 3. The maid by violence first defiled, and then taken to wife, by that Law could never be put away, Deut. 22.30. but no such thing is mentioned here: he that taketh a maid to wife, whom with her owne consent he before defiled, might according to the generall liberty then permitted, Deut. 24.1. if there seemed unto him cause, after put her away: and the reason of this difference may be this: he that taketh a wife willingly, will not put her away without cause; but he that taketh her against his minde, never loved her, and so upon every occasion would be ready to send her away, whether there were cause or not, if he were not by Law restrained of his liberty, Tostat. qu. 10.
QUEST. XXIV. What was to be done if the fornicatour were not sufficient to pay the dowrie.
HE shall endow her, &c. But what if the man, which had committed this wrong to a maid, were not able to endow her, the question is, what course was then to be taken: 1. If he were a free man, and an Hebrew, he was to be sold as in the case of theft, vers. 3. and to serve so many yeeres, as might raise this stocke or dowry for the maid: but longer than for six yeeres he could not be sold, for all Hebrewes were to be set free in the seventh. 2. If he were a free Gentile, he might be sold for his life, or for so many yeeres as sufficed to make up the dowry. 3. If he were an Hebrew servant, if his master refused to pay so much money as might serve for the dowry, then he was to deliver up his servant to be sold over for so many yeeres as might recompence the dowry, before the yeere of remission came: and if the yeeres which remained were not sufficient, he might be sold over againe. 4. If he were a stranger or Gentile being a servant, then he might be set over to serve his whole life, Tostat. quaest. 12.
QUEST. XXV. What if the fornicatour refused to take the maid to wife.
BUt yet further it will be enquired, what if the maids father would consent, and yet the party will neither take her, nor endow her? 1. By the Civill lawes, if he be a noble person, he should be banished that had defloured a virgin; if of base condition, he should be whipped:Institut. de public. judit. § secundo. Extra de adulter. in capit. perve…i… ▪ and if they ravished a maid against her will, in that case they were to suffer death. By the Canon lawes, if one refused to marry her whom he had defiled, he was to be throughly whipped, and excommunicate, and enjoyned penance till he had fully satisfied. 2. And though this be omitted in Moses Law, yet so much may be inferred and collected by the letter of the Law, that as he was necessarily to endow her (for the future of the Indicative moode, semper inducit dispositionem necessariam, doth alwayes imply a necessary disposition) so he was of necessity to marry her: like as in another case of forcing a maid, he was to be compelled to take her to wife, and never to put her away, Deut. 22.30. Tostat. quaest. 11.