Commentary on Genesis and Exodus, Theological treatise · Chapter 22 · Questions · Question 2
QUEST. II. Why five oxen are restored for one, and for a stollen sheepe but foure.
HE shall restore five oxen for an oxe. 1. R. Salomon thinketh, that the cause of this difference, why an oxe stealer restoreth five, a sheepe stealer but foure, i…, because he that stealeth a sheepe taketh more paines in carrying it upon his shoulder, than he that driveth an oxe before him. Contra. This is a frivolous reason: 1. It is untrue which he supposeth: for it is more labour to drive unruly oxen, than simple and quiet sheepe. 2. And what if a theefe steale many sheepe? he cannot th…n carry them all upon his shoulder. 3. Seeing to steale (whether with labour or without) is a grievous sinne before God, …thing ought to be remitted for any labour that is bestowed in a sinfull act. 4. If the more labour in st…aling doth mitigate the theft, then it should be a lesse theft to breake open an house, and steale treasure, than to take a thing out of the yard: but the Law following determineth otherwise, that a theefe breaking by night into an house might be killed. 2. The ordinary Gloss… giveth this reason; because an oxe affoordeth five commodities, it serveth for sacrifice, for tillage, for food, for milke, and the skin also is serviceable for divers uses: but the sheepe is profitable only for foure of these, for all but the second. Contra. 1. But seeing an oxe is not onelyonly profitable for these five ends, but for twenty more, by this reason, twenty oxen should be paid for one. 2. Likewise other things, as gold and silver, are employed for divers uses, more than foure or five: so then in the theft of these things also, more than foure or five-fold should be restored, Tostat. qu. 2. 3. The Interlinearie Glosse draweth it to a spirituall sense, by five, understanding the five senses, and by foure, the foure humours of the body, all which must be afflicted by penance. But it is not use in Civill and positive Lawes to leave the literall sense, and follow a mysticall. 4. Lyranus taketh this to be the cause, (whom Thomas followeth) Quia bov…s difficiliùs custodiunt…r, qua… …ves: For that oxen are more easily stollen than sheepe, because they are more hardly kept: and therefore the more easie theft is more severely punished. But this is not alwayes so: for sometime it is an easier matter to steale many sheepe, than one oxe, and more easily may they be conveyed away, and hid out of the way. 5. But Cajetane hath here a conceit by himselfe, urging the signification of the word sheh, which he saith properly signifieth a lambe: to pay foure sheepe for one lambe, he taketh to be a greater proportion and punishment, than to pay five oxen for one: because they were more pro…e and ready to steale sheepe than oxen. Contra. 1. But the word sheh, as Oleaster sheweth, signifieth not only a lambe, but in generall all the smaller cattell, as well sheepe and goats, as lamb… and …. 2. And beside the facility, easinesse and readinesse of theft, other things are to be respected: as the worth and price of the thing stollen, and the boldnesse and impudency of the theefe.
6. Wherefore these reasons rather may be yeelded: 1. Quia frequ…ntius furt… subtra…ebantur … ▪ It might be that it was a more frequent and usuall thing to steale oxen among the Hebrewes than sheepes and therefore God would restraine the more usuall theft by the greater punishment, Tostat. 2. In h…c dominium majus, & …adacia major; In this theft of oxen the losse was greater to the owner, (when his exe was stollen) and the boldnesse of the theefe greater. … esse: Such a theefe as should steale oxen had need be bold and cunning▪ because such a theft cannot so easily be hid as of sheepe. 3. Ab. Ezra also giveth this reason: because when a sheepe is stollen, the owner loseth but his sheepe: but in the other theft, … ▪ he loseth his oxe, and the labour of his oxe: this reason also is approved by Oleaster, …, Gallas…. But Tostatus taketh this exception: that i… the losse of the oxeus labour …e accounted here in the restitution of five-fold, why should it not be respected as well, when the thing stollen is found with the theefe, in which …ase he was to pay but two-fold, qu. 2. The answer here is ready, because where the oxe is found, though th…e …e an intermission of his labour, yet there is hope of restitution againe: so is there not here, the oxe being killed or sold.
7. Iosephus thinketh, that this Law extendeth it selfe also to other cattell in the fields, as to goats as well as sheepe, though they be not here …. But concerning the asse or horse, because they are not so easily stollen being kept in the house, Tostatus thinketh that the Law of two-fold restitution tooke place, as in the stealing of houshold stuffe, and other moveable goods. But it is more like, recording to the rule observed before in other Lawes, that by one kinde the rest are understood: and these two, the oxe and sheepe, are given …n …ssistance as the most usuall and common beasts: unto which all other great and small cattell should be reduced, as afterward vers. 4. direct mention is made of the asse.