Commentary on Genesis and Exodus, Theological treatise · Chapter 22 · Questions · Question 3 – Question 12
QUEST. III. Of the divers punishment of theft, and whether it may be capitall.
NOw concerning the punishment of theft: 1. The licentious liberty of the Lacedemonians is much to be misliked, who punished not theft at all, because they thought it was a meanes to traine and exercise their people in the practice of warre, Gallas. for it being a Morall law, Thou shalt not steale, and so grounded upon the Law of nature, it ought not by any contrary custome to be discontinued. 2. Neither is that Law of Sol…, which the Romans also inserted into their twelve Tables, to be altogether approved, a… …ing opposite to Moses Law: for they punished manifest theft with foure-fold, when the theefe was taken in the manner, whereas Moses setteth it but at two-fold: and theft not manifest, when the theefe is not found with the thing that was stollen, they censured with restitution of two-fold: whereas Moses chargeth such offence with foure-fold; because such an one, as hath sold or killed the stollen good, hath added sinne to sinne, having no purpose of restitution, nor there being any possibility thereof. Herein therefore the Law of Moses is more equall than the other. 3. The Law also of Draco is too severe, which punished theft with death: the Scythians did so also, but they had some reason for it, because they had no houses or places of defence for their cattell, so that if theft among them had not beene most severely punished, nothing could have beene safe. 4. Nor yet am I of their opinion, that thinke that lex Mosis non pertinet ad politiam nostram, the Law of Moses doth not at all belong to the policie of Common-wealths now: Lippom. Non sumus alligati ad leges Iudaicas forenses: That we are not bound how to the Jewes Civill lawes (at all): Osiand. but that Magistrates may increase the externall punishment, whether by death or otherwise, as the circumstance of time, quality and condition of the people require. Contra. 1. As we are not strictly tied in every point to Moses Judicials; so yet the equity thereof remaineth still, which chiefly consisteth in this, in the due measuring and weighing of the nature of sinnes, which are thought to be worthy of death. 2. Punishments externall may be increased, which concerned either pecuniary mulcts, or other bodily chastisement, not touching the life: as Moses punished theft with foure-fold, but afterward the sinne increasing, it was set at seven-fold: Prov. 7.31. Pelarg. 3. But whereas mans life is only at Gods disposition, this may be safely affirmed, that no humane Law can take away the life of man for any offence, without either generall or particular warrant and direction from Gods Law, as is more at large before declared, p. 4, 5. 5. And yet I cannot consent to those that thinke no theft at all ought to be punished by death: for even by Moses Law, a violent theft, as in breaking up of an house, was judged worthy of death, it was lawfull to kill such a theefe, vers. 2. Againe, sacrilegious theft was likewise punished in the same manner, as Iakob giveth sentence, that they should not live that had stollen Labans gods, Gen. 31.32. So Achan was put to death for stealing the excommunicate thing, Iosh. 7. Theft committed of wantonnesse, and without merciemercy, David adjudgeth unto death, 2 Sam. 12. vers. 6. Chrysostome thinketh, that David legem est praetergressus, exceeded the Law, in that he commandeth, beside the restitution of foure-fold, the man to be slaine: and he calleth it supereffluentem justitiam, overabounding justice. But the Law of God did beare out David in it: for he which did sinne presumptuously, and with an high hand, that is, of malice and obstinacie, was to dye for it, Numb. 15.30. Such was the sinne of the rich man, whose case there is propounded, which having many sheepe himselfe, tooke away the poore mans sheepe by violence, and had no pity. Further, he that did steale a man, was to dye for it by the Law of Moses, vers. 16. So that it is evident, even by Moses Judiciall lawes, that some kinde of theft deserved death. By the Romane Lawes also, as is extant in their 12. Tables, servants convicted of manifest theft were first beaten, and then cast downe headlong from the rocke. By the Imperiall lawes, a theefe for the first offence was whipped, then if he offended againe, he lost his eares, and the third time he was hanged: in Anithent. ut nulli Iudici, &c. for now such a theefe sinneth of obstinacie and malice, and contempt against the Lawes and Magistrate: and may by the Law of God be worthily put to death: Simler. So likewise such thefts, whereby the publike peace and safety is violated, as in the Campe among souldiers, and robbing by the high way, where ones life is put in danger: All these kindes being more than simple thefts, may receive the sentence of death by Moses Law: and Magistrates herein may with a good conscience execute the rigour of the Law, upon such violent, outragious, impudent, wanton and incorrigible thefts. But they are wisely to consider every circumstance, and the occasion that draweth one to steale, whether he doe it of necessity to releeve his hungry soule, or of an evill custome and obstinate minde, to maintaine his lewd and unthrifty life. In the first case it seemeth to be too sharpe to take away ones life, unlesse he be such an one as will take no warning, but continueth hardened in his sinne. And so for simple and single theft only (except it be in stealing of men) unlesse it be aggravated by other circumstances concurring, … violence, rapine, obstinacie, custome in sinne, and such like, neither the Law of Moses prescribeth punishment of death, nor yet is it practised by our Lawes, which in such cases intend favour, by allowing the privilege of the booke. See before, p. 6.
QUEST. IV. Why the theefe breaking up might be killed.
Vers. 6. IF a theefe be found breaking up, &c. 1. R. Salomon thinketh, that this Law, which alloweth the theefe found breaking up an house to be slaine, is understood not only of theeves that breake in by night, but by day also: and that clause which followeth, When the Sunne riseth upon him, they interpret metaphorically, that if it be evident and manifest as the light, that the theefe came not only to steale, but to kill, that whether by day or night he may be killed. So also the Chalde Interpreter seemeth to follow the same sense: Si oculus testium vidit eum: If the eye of witnesses saw him: that is, if it were evident that he came not only as a theefe, but to assault.
Contra. Though this be true, that a man might defend himselfe even by day against him that assaulted his life; yet this is not the meaning here: the words of the Law are literally, not metaphorically to be understood. 2. The reason of this difference betweene a night theefe and a day theefe, is, because in the night breaking in, it is not knowne, whether he came to steale only, or to murther: but in the day it may easily appeare by his armour and weapons, Tostat. Simler. Beside, in the day he may call for helpe against the theefe, which cannot be so well done in the night, when he is left without all other remedy, but his owne defence, Galas. Marbach. And in the day he may have witnesses of his theft, and so convent him before the Magistrate, Lippom. 3. The Romane Lawes allow not onelyonly to kill a night theefe, but a day theefe also, si se tel… defenderit, if he defend himselfe by a weapon: Moses Law much disagreeth not: for though he that commeth only as a theefe in the day time, is not to be killed, but to make restitution only; yet if he come with weapons, as having a murtherers intent, now he may be repelled by force, even as a night theefe may, not now as a theefe, but as one which commeth to assault and murther, Iunius.
QUEST. V. How it is made lawfull for a private man to kill a theefe.
Vers. 2. ANd be smitten that he dye, no bloud shall be imputed. 1. Cajetanus here observeth, that this Law simply alloweth not to kill the theefe: but if a man smite him in his owne defence, not intending to kill him, that in this case he shall be free: Percussio fuit intenta, mors autem per accidens sequnta, &c. He intended only to smite him, but death followed accidentally upon such smiting: so also Simler. Non probat, ut animo occidendi feriatur, This Law alloweth not, that he should be stricken with a minde to kill him: sed indulget affectui, &c. but it beareth with a mans sudden passion, if in defence of himselfe it so fall out, that he be killed. 2. But this Law seemeth not only to permit one to smite a night theefe, but directly to kill him also, so it be not with a desire to kill him, where he may otherwise escape: but to defend him and his from violence: which he cannot doe, unlesse the theefe be killed, Borrh. 3. For seeing both the Law of nature and other Civill lawes doe allow a man to defend himselfe; now, when the Lawes doe arme a man, they seeme publicam personam imponere, to impose upon him a publike person, so that now he smiteth not as a private man, but by authority of the Law, and in this case he is tanquam minister & vindex Dei, as the minister and revenger of God: so that he doe it not of a lust and raging desire to be revenged, but intending to use a lawfull defence in the safegard of his owne life, Gallas. And the case is here all one, as if a man being set upon by the high way should kill him that maketh the assault upon him, Marbach.
QUEST. VI. After what manner the theefe was to be sold.
Vers. 3. HE should be sold for his theft, &c. 1. So was also the Law among the Romans, that the debter should be given up in bonds unto his creditor. Whereupon Cato was wont to say, Fures privates in nexu & compedibus vivere, publicos in aur… & purpura, &c. That private theeves lived in chaines and fetters, but the publike in gold and purple, &c. But this custome, because it seemed very hard, was abrogated by the Law of Arcadius and Honorius: Gallas. 2. But here it must be considered, whether the theefe were an Hebrew or a stranger: if an Hebrew, how great soever the debt were for his theft, he could be but sold over for six yeeres, for all Hebrew servants were to goe out free the seventh. And as the theft was valued, so should he serve more yeeres or fewer. But if he were a stranger, he might be sold over to serve all his life, if the value of the theft were great: if it were but small, he was but to be sold to serve so many yeeres as might suffice to recompence the theft, Tostat.
QUEST. VII. Why the theefe is only punished double, with whom the thing stollen is found.
Vers. 4. HE shall restore double. 1. That is, one beside that he stole, because that is found in his hand which is stollen, and so restored, Iun. And so must the five oxen be taken which the theefe must make good, five with that which was stollen, Lippom. 2. Now the reasons why when the thing stollen is found, only double must be restored, and five or foure-fold when it was killed or sold, are these: 1. Because he seemeth to be the more cunning theefe, when the thing stollen cannot be found: 2. Adhuc difficilior ratio in investigando, and it is harder to finde out the theft, and therefore he is worthy to be more punished, Simler. 3. Potest haberi aliqua praesumptio, quòd vellet restituare; There is some presumption that he would have restored it, having neither killed nor sold it, Lyran. 4. Truculentior est, & majus damnum intulit, &c. He is more cruell, and bringeth greater losse to the owner that selleth or killeth it, than he that keepeth it.
3. Thomas further giveth these reasons,Thom. 1.2. q. 105. art. 2. ad. why a more grievous punishment is inflicted for some faults more than other: 1. Propter quantitatem peccati, For the greatnesse of the sinne. 2. Propter peccati consuetudinem, &c. For the custome of sinning. 3. Propter multam delectationem, For the more delight in the sinne. 4. Propter facil…atem comm…eindi, &c. For the more easie committing of sinne. All which doe concurre in this case: for both he sinneth more that stealeth, and selleth or killeth: and it seemeth he is more expert and accustomed, and taketh greater delight, and useth more facility in his busines.
QUEST. VIII. How a man is to make recompence of the best of his ground.
Vers. 5. IF a man hurt field or vineyard, &c. he shall recompence of the best, &c. 1. All kinde of hurting another mans ground is here forbidden, as either with trampling of his cattell as he passed by, or feeding, Lyran. And if this hurt be done unwittingly by the straying of the cattell without the owners privity, he is to make it good, how much more if he doe it of purpose, or in craft? Gallas. 2. Some thinke he is to make good the losse by giving ground and all, to make his neighbour amends. But that need not, seeing he trespassed only in hurting the fruits of his neighbours ground: it is sufficient to make satisfaction in that wherein the wrong was done. 3. Neither, if the hurt were done in grasse onelyonly, must the trespasser make recompence with the principall of his fruits, as corne, and such like, as Oleaster: but in the same kinde it is sufficient to make restitution wherein the trespasse was done. 4. Neither is the meaning, that if a man did a little hurt in his neighbours ground, that all the best of his ground should pay for it, but so much for so much, Tostat. qu. 4. 5. There was a Law among the Romans, that the beast, qua panperiem fecerat, which had done any dammage to another, dederetur noxae, should be delivered over, to make good the hurt. But that must be understood, when the beast of it selfe without the masters fault did any hurt: but here it is either the masters wilfulnesse or negligence, that his cattell spoile his neighbours vineyard, Gallas. 6. And as the Law is here concerning vineyards and fields, so it holdeth in the rest, as orchards, gardens, pastures, and the like, Lyran.
QUEST. IX. Of the breaking out of fire, and the dammages thereby.
Vers. 6. IF fire breake out, &c. 1. This is meant of such kindling of fire, when praeter intentionem acce… dentis, &c. when any hurt commeth of it beside the intention of him that kindled it, Lyran. For they which did of purpose set stackes of corne, or houses on fire, were worthy of greater punishment. By the Civill law, vel decapitatur, vel comburitur, vel bestiis subjicitur, he was beheaded, burned, or cast to the beasts, can. poenitent. 40. By the Canon law he was to be excommunicated, Caus. 23. qu. 8. cap. 32. or to want buriall, if restitution were not made, ibid. cap. 33. and he was enjoyned three yeeres penance, can. poenitent. 40. 2. Such breaking out of fire then is here understood, when any made a fire in the field, as husbandmen use to doe in August to burne up the stubble, to make their ground more fruitfull, and some casualty happened, the fire being carried of the winde, or lighting upon some hedge, Tostat. Though no mention be made of the neighbours house and barnes, yet under one kinde the rest are understood, Marbach. 3. If it catch thornes. This Cajetane thinketh to be one of the dammages which must be made good, if it catch the hedge or corne; but it rather sheweth the meanes whereby the fire increaseth, and is dispersed by taking hold first of the hedge, and so finding combustible matter, goeth further. Some understand this to be meant of such thornes, as husbandmen use to set about their corne, to keepe it from cattell, Oleaster. But it is better referred to the hedge where with the fields are sensed, Simler. 4. There are three things named which may receive hurt by the fire: either the corne reaped and gathered into shocks or stacks; or the standing corne not yet cut downe; or the corne that is mowed or reaped, but yet not gathered together, which is meant by the field: which three the Septuagint expresse by these three words, foreign: the corne floore, (where the corne is stacked as in barnes) the eares of corne (standing) and the field: under corne also understand, hay, and trees, and such like, Lippoman. 5. Here then a man is punished for his negligence, because he kept the fire no better: as if he kindle a fire in a windy day, or in a place open to the winde, or neere unto a wood or hedge where there is matter fit for the fire. Otherwise, if he used all diligence and foresight, and there fell out any casualty by any other accident, and not by his default: as if any hairy beast comming by chance do catch the fire, as a cat or dog; it seemeth that in this case he is not bound to make good the losse; for the fire did not breake out now from him, Lyran. Of this kinde was that hurt which was done to the Philistims corne, when Sampson tied firebrands betweene the fox tailes, which running among their corne set it on fire, Tostat. 6. Now this difference may be observed betweene this Law, which enjoyneth full restitution to be made, and the former, where for the feeding of anothers grounds, or otherwise hurting of it by cattell, only satisfaction is to be made out of the best of the others grounds, because where the fire setteth in, the whole is spoiled, but where beasts breake in, that onelyonly is spoiled which they feed or trample upon, and therefore here amends is made only for part, there for the whole, Tostat.
QUEST. X. Why the keeper of things in trust is not to make good that which is lost.
Vers. 7. IF a man deliver his neighbour money or stuffe to keepe, &c. 1. The Law is this: that he which hath received another mans good of meere trust to keepe, if it be lost, not through his fault, as if it be pilfred or stollen away, the keeper in trust is not to make it good: and the reason is, because he receiveth no profit by keeping, but did it of good will, and therefore there is no reason that he should be punished for his kindnesse, Simler. Hereunto agreeable is the Law of Alexander: Periculum depositi casu accidens penes deponentem est: Cod lib. 4. tit. 34. leg. 1.The danger of a thing committed to ones trust, happening by chance, (as by robbery and stealing) resteth in the owner, not in the keeper. 2. If the theefe that stole them be found, he in this case shall pay but double, because the things stollen are not oxen or sheepe, for then the former Law was to take place of restoring five-fold or foure-fold: but money or stuffe, which only were to be restored double: and this was to be payed to the owner, not to the keeper, because he had no right in the thing, neither was to make it good being lost. 3. But here other considerations are supplied by humane Lawes: as whether that thing be onelyonly stollen which was committed to the keeper, and all the keepers things beside were safe: for here some fraud or default of his may be imagined: or whether the keeper did not first offer himselfe to keepe the things delivered to him, or received not somewhat for the keeping, or kept them longer than the time appointed and agreed upon: for in all these cases the keeper is in fault, and was bound to make good the things committed unto him. But these circumstances needed not be inserted into the Law, because the Lord thought not good to encumber his people with such a multitude of Lawes: and the Lord endued the Judges in those dayes with such an understanding heart, that having but the generall principles and rules given them, they could apply and accommodate them to every particular action, Tostat.
QUEST. XI. How the fraud in the keeper of trust was to be found out and punished.
Vers. 8. IF the theefe be not found. Now the rest of this Law sheweth what course is to be taken, if the theft be not apparent: the keeper must be put to his oath: 1. In this case either the keeper himselfe might be the theefe, and deteine the things left with him, and then he was to be put to his oath, whether he had not used any fraud: if he refused to take his oath, he confessed himselfe guilty, and so was charged to restore the double, as followeth in the next verse. But if the owner could prove a fraud in the keeper first by witnesses, then he was not put to his oath: for this was to be done where other proofe failed, Tostatus. 2. Now divers frauds might be committed by the keeper: 1. For he might either deny he had the thing, and so refuse to restore it: and by the Imperiall lawes, he that did so was condemned as infamous. 2. Or he might alleage, that he had it,Cod. lib. 4. tit 34. c. 10. Diocletian. Cod. lib. 4. tit. 34. c. 11. but the owner was indebted unto him in as much: but this would not serve his turne: for depositorius non debet objicere compensationem: the keeper could not object compensation of debt, and so be his owne carver, as Iustinian decreed. 3. The keeper might lend the thing committed unto him to another: ad solutionem nihilominus tenetur: yet by the Law he was bound to make it good. 4. He might also convert it to his owne use,Ibid. leg. 7. and this was adjudged to be plaine theft: deposuum convertens in usus suos, furti tenetur: He that turneth the thing committed to him to his owne use, is guilty of theft. 3. Or the owner might be the theefe,Cod. lib. 4. tit. 34 c. 3. in stealing away that which he had given another to keepe. As C. Marius besieging the City Tolosse in France, received of the Governour of the City an hundred thousand pound weight of gold, which he sent to Ma…lilia to keepe; then he with some other disguising their habit went and tooke it away. If the owner should either be accessary to the theft himselfe, or should accuse his neighbour falsly, he was to pay double unto him by the sentence of the Judge. Or if he produced false witnesses against the keeper in trust, they were to be condemned in the like, because the keeper should have beene forced by their false testimony to pay double: and the Law was, that it should be done to the false witnesses, as they intended to have done to their neighbour, Deut. 19.19. 4. This Law of Moses of committing things to ones trust, was more equall than that among the Pisidians, which Stobaeus maketh mention of, serm. 42. by the which he which defrauded the trust reposed in him, was put to death: and then the contrary custome among the Indians, where no action at all lay against the depositorie, that is, him to whose keeping things were committed in trust, Pelarg.
QUEST. XII. What is to be done with things that are found.
Vers. 9. IN all manner of trespasse, &c. 1. This is a generall Law here inserted, not only of things put to ones keeping, but of other things also howsoever lost, or come to anothers hand, Simler. Lippom. and it differeth from the former Law in these two things; because there mention is made only of dead goods, as of money or stuffe committed to ones charge: this Law also speaketh of living creatures, as oxen, asses, sheepe: that Law concerneth onelyonly things given to keepe: this is beside as touching any thing that is lost, which another challengeth to be his. 2. But where he saith, whom the Iudges condemne, this is understood, whether depositorius convictus, the depository or keeper be convicted, or accusator temerarius, or the accuser be found rash and false: whether the one or the other, he was to pay double unto the party grieved, Iun. 3. And this must be interpreted according to the former Law, that in dead things they were to make recompence onelyonly of two-fold: but in other living creatures of five-fold, or foure-fold, if the thing stollen were killed or sold, otherwise but of two-fold, Tostat. 4. By this Law it is evident, that not only things given in trust to keepe, but also such as are lost and found by another, are to be restored: for this is a kinde of theft before God, not to restore unto the owner that which one findeth: as Augustine well saith; Si quid invenisti & non reddisti, rapuisti: quantum potuesti, fecisti: quia plus non invenisti, ideo non plus rapuisti: If thou hast found any thing, and not restored it, thou hast robbed: as much as thou couldest, thou diddest: because thou foundest no more, thou tookest no more: Deus cor interrogat, non manum, &c. God examineth thy heart, not thine hand, Hom. 50.