Commentary on Exodus, Commentary · Chapter 21
CHAP. XXI.
Verſe 1. NOW theſe are the Judgments thou ſhalt ſet before them.] By Judgments are meant ſuch Political Laws which God thought fit to give for the determination of Differences among the People; and that they might be juſtly and peaceably governed. Which, though they were not ſpoken with ſuch Pomp and Majeſty as the X. Commandments were, (and much leſs were the Ceremonial Precepts delivered with ſuch ſolemnity) yet the Iſraelites believed that they came from the ſame Authority, though ſpoken to Moſes in the Mount privately, and not in the audience of all the People; as appears by their ſubmiſſion to theſe, no leſs than to the other Laws. And there was great reaſon for it; it being their own deſire not to hear God's voice any more; but to be inſtructed by Moſes what God required, and they promiſed to obey it, XX. 19.
Ver. 2. If thou buy an Hebrew Servant, &c.] Or a Slave. Some Perſons ſold themſelves by reaſon of Poverty: of which ſort the Hebrews underſtand that Law XXV Lev. 39. Others were ſold by the Court of Judgment; which was in caſe of a Theft they had committed; for which, not being able to make Satisfaction unto him that had received the Damage, they were condemned to be his Servants. Of theſe they interpret this place, and XV Deut. 12. But this Sale, they ſay, did not extend to both Sexes; for a Woman was not to be ſold for Theft.
In the ſeventh year he ſhall go out free for nothing.] If the Damage was ſo great, that his ſix years Service had not ſatisfied for it, yet he was not to be kept longer. And his Servitude alſo might end ſooner, by Manumiſſion, or Redemption, or the Death of his Maſter, if he were a Gentile or a Proſelyte. Nay, if he were an Hebrew, his Death put an end to it, in caſe he left no Son. And his Maſter alſo was bound to maintain his Wife and Children (if he had any) all this time, giving them Food, Raiment, and a Dwelling, though they were not to be his Servants. See Mr. Selden L. VI. de Jure N. & G. c. 7.
It is remarkable, that he ſets this Law in the firſt place, becauſe Mercy, next to Piety, is the moſt excellent Vertue: and God would have his People, ſaith R. Levi Barzelonita, adorned with, and full of the nobleſt qualities, which are Benignity and Mercy.
This Year of Releaſe alſo being a Sacred Year; the whole Land being Holy to the LORD, ſo that no Man might challenge any Right or Propriety in it, to ſow his Field, or reap that which grew of it ſelf, &c. it was Sacriledge for any Maſter to keep a Servant from his Freedom, when the Year came, which was the LORD's Releaſe, as we read expreſly XXV Lev. and XV Deut. Whence it was, that becauſe the Jews were ſo prophane, as to break this Law, and not give their Servants liberty, (as we read in the XXXIVth of Jeremiah) God puniſhed them with a Captivity of LXX. years, in which the Land lay waſte, till it had fulfilled the Years of Reſt which they would not obſerve; as Mr. Mede hath truly noted, Diſcourſe XXVI. latter end.
Ver. 3. If he come in by himſelf, &c.] That is, a ſingle Man, without a Wife; ſo he was to depart. But if he was a married Man when he was ſold; as the Maſter was not to let his Wife and Children want Food, and Raiment, and Habitation, while he continued his Slave; ſo when he was free, he was not to meddle with them, or detain them from their Father and Husband, XXV Lev. 41.
Ver. 4. If his Maſter have given him a Wife.] Unto ſuch a Servant as this, who was ſold by the Court of Judgment, his Maſter might give a Gentile-Maid to Wife, (and no other Hebrew but ſuch as he, might marry a Gentile) that he might beget Children of her, who were to be the Maſters Servants or Slaves for ever. The Hebrew Doctors ſay the Maſter could not do this, unleſs ſuch a Servant had a lawful Wife and Children before of his own, who were not to be kept from him; but he might beget Children for himſelf, as well as for his Maſter; who could not impoſe upon him more than one Maid-ſervant, to be his Wife. He that ſold himſelf alſo, was not ſubject to this Law. But as his Maſter could not impoſe a Wife of this ſort upon him; ſo neither was he bound, when the Servant went free, to beſtow any Gift upon him: which was due only to him, that was ſold by the Court for Theft, (XV Deut. 12.) to whom the ancient Jews ſay he was to give thirty ſhekels.
And ſhe have born him Sons or Daughters.] During his Service.
The Wife and Children ſhall be his Maſters, &c.] For the Wife was a Slave as well as himſelf, when he married her. And ſhe was given to Wife, meerly that he might beget Slaves of her. Who therefore continued with the Maſter, as well as their Mother, when the Man had his Liberty: for they were not ſo much his, as his Maſters Goods; who had ſuch a power over them, that he might Circumciſe them, as he did his own Children, without their conſent. See Selden L. VI. de Jure N. & G. c. 7. and de Ʋxore Hebr. L. I. c. 6. p. 39.
Ver. 5. And if the Servant ſhall plainly ſay.] In the Hebrew the words are, ſaying, ſhall ſay; i.e. Stand in it (as we ſpeak) and ſtedfaſtly reſolve, by ſaying it, not in a fit, but conſtantly.
I love my Maſter, my Wife and my Children, &c.] If his love to ſuch a Wife and Children, who were not properly his own, was greater than his Love to Liberty; which made him ſtill deſire their Company, and chooſe to ſtay with his Maſter, who had been ſo good to him.
Ver. 6. His Maſter ſhall bring him to the Judges.] That it might appear he was not fraudulently or forcibly detained againſt the Law, but with his own conſent, or rather at his deſire.
He ſhall alſo bring him to the door, or the door-poſt.] After the Caſe had been heard, and the Judges had given Sentence.
And his Maſter ſhall bore his ear through with an awl.] In token that he was now affixed to his Houſe, and might not ſo much as ſtep over the Threſhold without his leave, but be obedient to his will for ever. This is to be underſtood only of one that was ſold by the Court; not of him that ſold himſelf. And though the Hebrews take this to have been a mark of Infamy, ſet upon a Man who choſe Servitude before Liberty; yet it being choſen out of love to his Maſter, I cannot think that they intended by this Act to diſgrace him. But look upon it only as a ſolemn Addiction of him to his Maſter's Service; which was done, it is likely, in the preſence of the Judges. This Cuſtom of boring the Ears of Slaves, laſted a long time after this in Syria and Arabia, as Bochartus ſhows out of Juvenal Sat. 1. and Petronius L. III, Hierozoic. c. 6. p. 1.
He ſhall ſerve him for ever.] Till the Year of Jubilee, or till his Maſter died, (for his Son was not to detain him, when his Father was dead) unleſs he would releaſe him, or he was redeemed.
Ver. 7. And if a man ſell his daughter, to be a maidſervant.] Beſides the two former ſorts of Perſons ſold to be Servants, there was a third here mentioned, which is thus expounded by the Hebrews: That ſhe was to be a Virgin, under Age; that is, leſs then XII. years old and a day. For if ſhe was more than that, it was not lawful for him to ſell her: and when ſhe came to be of Age, it put an end to her Servitude, as well as the Year of Jubilee did, or Redemption, or the Death of her Maſter. Beſides, her Father might not ſell her, unleſs he were reduced to extream Poverty. If he did, without ſuch neceſſity, he was forced by the Court of Judgment to Redeem her. And ſhe was not to be ſold neither, unleſs there were ſome hope, her Maſter or his Son might take her to Wife.
She ſhall not go out as the men-ſervants do.] There were other, and better Conditions for her, than for the Servant mentioned v. 3, 4. particularly, her Maſter could not marry her to any Body, but to himſelf or his Son.
Ver. 8. If ſhe pleaſe not her Maſter, who hath betrothed her to himſelf.] This ſhows ſhe was ſold to him, upon the preſumption he would take her for his Wife; and there was ſuch a previous agreement about this, that there needed no other Eſpouſals: But if, after this, he changed his mind, and did not like her enough to make her his Wiſe; then God ordains as follows,
Then ſhall he let her be redeemed.] She was to ſerve her Maſter ſix years, if ſhe was ſold for ſo long; unleſs ſhe was redeemed (which her Maſter is here required not to refuſe) or manumitted; or ſet free by the Year of Jubilee; or by the Death of her Maſter; or (which was peculiar in this caſe) the ſigns of her being ripe for Marriage appeared. See Selden in the place before mentioned.
To ſell her to a ſtrange Nation he ſhall have no power.] No Man had power to ſell an Hebrew Servant to one of another Nation: And therefore by a ſtrange People (as the word is here in the Hebrew) muſt be meant an Iſraelite of another family, that was not of her Kindred, nor had any right of Redemption.
Seeing he hath dealt deceitfully with her.] Fruſtrated her hope of marrying her.
Ver. 9. If he hath betrothed her to his Son.] Which was expected from him, if he did not think fit to marry her himſelf, he ſhall deal with her after the manner of daughters. If the word he relate to the Father, the meaning is, he ſhall give her a Portion, as if ſhe were his own Daughter. If it relate to the Son, the meaning is, he ſhall treat her like a Wife.
Ver. 10. If he take him another wife, her food, &c.] If after the Son had married her, he took another Wife beſides, he was ſtill to perform to this, all thoſe things that belong to a Wife, viz. give her Food, and Raiment, and at certain times (which were determined by Law in ſome Countries) cohabit with her as her Husband. From this place, the Hebrews have made a general Rule, that theſe three things are owing to all Wives from their Husbands, viz. Alimony, Clothes, and the Conjugal Duty. For howſoever the Vulgar Latin underſtand the laſt word, the Hebrews generally take it, for that which St. Paul calls due Benevolence, 1 Cor. VII. 3. See Selden de Ʋxor. Hebr. L. III. c. 4. Now what was accounted Alimony, and ſufficient for Clothes, he ſhows cap. 5. and what belongs to the other cap. 6. The Hebrew word Gonata, which we tranſlate duty of marriage, properly relates to the ſtated and determined time, wherein every thing is to be done; and therefore here ſignifies the uſe of marriage certo tempore & modo, as Bochart hath well expounded it, L. II. Canaan, c. 11. Many indeed will have it derived from foreign, from which comes foreign, an habitation; as if it ſignified here the cohabitation of a Man with his Wife. But Aben-Ezra rather refers it to foreign, from whence come foreign time: whence Gonat ſignifies the ſet and appointed time wherein every thing is done. And ſo the Chaldee uſe the word goneta, for the term preſcribed to every thing (as the ſame Author obſerves) that it may be done in due time and manner.
Theodorick Hackſpan thinks Moſes here ſpeaks of the Father; to whom all the precedent and ſubſequent acts belong, and not to the Son.
Ver. 11. And if he do not theſe three to her.] i. e. Neither marry her to himſelf, nor to his Son, nor ſuffer to be redeemed,
Then ſhe ſhall go out free without money.] When ſhe came of Age, and was ripe for Marriage, ſhe was to be ſet free, and pay nothing for her freedom: Nay, on the contrary, he was to give her ſomething, as appears from XV Deut. 12, 13, 17. What the ſigns of Puberty were, Mr. Selden ſhows Lib. de Succeſſionibus, c. 9.
Ver. 12. He that ſmiteth a man, ſo that he die.] That is, commit wilful Murder, as we now ſpeak,
Shall ſurely be put to death.] Whereſoever we find this word Maveth (death) abſolutely, without any addition, it always ſignifies ſtrangling. They are the words of R. Levi Barzelonita. But the Jewiſh Doctors will not have this Law extend unto Proſelytes of the Gate, much leſs to Gentiles; whom, if any Iſraelite killed, he was not to ſuffer death for it. See Mr. Selden L. IV. de Jure N. & G. c. 1. But Plato in his Book of Laws, L. IX. p. 872. hath determined more juſtly than theſe Rabbies, that in the Caſe of Murder, the ſame Laws ſhould be for Strangers and for Citizens.
Ver. 13. And if a man lie not in wait.] Do not deſign to kill another.
But God deliver him into his hand.] But he happens, as we ſpeak, to kill a Man, by that action which aimed at another end. This the Scripture expreſſes more religiouſly, by acknowledging God in every thing that falls out, who permits ſuch things as are mentioned XIX Deut. 5. whereby a Man is killed, without the intention of him, who was about ſuch actions.
Then I will appoint him a place, whether he ſhall flee.] He may flee to one of the Places, which I will appoint for his Security. Which place, the Jews ſay, was the Camp of the Levites, while they continued in the Wilderneſs: but when they came to Canaan, there were Cities appointed for this purpoſe, as we read XXXV Numb. 11, 12. XIX Deut. 2, 3, &c. And there being ſeveral kinds of involuntary killing Men, the Hebrews make theſe foreign, or Places of Refuge, to belong only to one of them, for the reſt did not need them, as Mr. Selden ſhows L. IV. de Jure N. & G. c. 2. An Officer of Juſtice was not bound to flee, if he chanced in the Execution of his Office to kill a Man that reſiſted him. Nor a Maſter, if he killed his Scholar, or a Father his Son, when he gave him Correction.
Ver. 14. But if a man come preſumptuouſly.] The Vulgar Latin rightly tranſlates it induſtriouſly, or with deſign to kill him; for it is oppoſed to ignorance. The Hebrew word alſo carries in it a ſignification of boiling anger; which doth not alter the Caſe: For if a Man in the height of his Rage, reſolved to kill another, and laid wait for him to execute his Deſign, it was juſtly judged to be wilful Murder, and puniſhed with Death. Which was far more equal than Plato's Law, That ſuch a Man ſhould only be baniſhed for three years; as he, that on a ſudden, killed a Man in his Anger, only for two, L. IX. de Legibus, p. 867.
Ʋpon his Neighbour.] The Hebrew Doctors by Neighbour underſtand only an Iſraelite, or a Proſelyte of Juſtice: As for others, they were not put to death, if an Iſraelite killed one of them. Which was not the intent of this Law; whereby God would have all Men that lived among them, ſafe and ſecure from being murdered.
To ſlay him with guile.] By which it appeared the Act was deſigned and deliberate. For two things are denoted by this word with guile; firſt fore-thought, and then delay, as Iſaac Karo obſerves; See L'Empereur in Bava kama, cap. 3. ſect. 6.
Thou ſhalt take him.] If it be inquired who ſhould take him, it ſeems to be determined XIX Deut. 12. where the Elders of the City were to fetch away a wilful Murderer from the City of Refuge. In after times the King ordered it, as Moſes did while he lived, 1 Kings I. ult. II. 29. By which places it appears, That if a Man refuſed to come from the Altar (being judged upon proof to be a wilful Murderer, or other high Offender) he might be there killed, as Georg. Ritterhuſius ſhows L. de Jure Aſylorum, c. 8. where he obſerves out of Plutarch in his Laconioa, that Ageſilaus declared publickly at the Altar of Pallas, where he ſacrificed an Ox, that he thought it lawful to kill one that treacherouſly aſſaulted him, even at the Altar. And thus the practice was among Chriſtians (as he there ſhows) when their Temples became Sanctuaries to Malefactors.
From my Altar.] This was an Aſylum, as well as the Cities of Refuge; but under many Limitations, both with reſpect to the part of the Altar, and to the Perſons that fled thither, and to the Crime they had committed; as Mr. Selden ſhows in the place abovementioned, p. 475.
That he may die.] Though he was the High Prieſt, and in the Act of Sacrifice, he was to be taken away without delay, if he had committed wilful Murder: If it was involuntary, then he was to be taken from thence, and carried to the City of Refuge: For God would not have a Pious place (as Conradus Pellicanus gloſſes) be a Protection to Impiety. See Mr. Selden L. III. de Synedr. c. 8. p. 100.
Maimonides his Obſervation is pertinent enough upon this occaſion; That the Mercy which is ſhown to wicked Men, is no better than Tyranny and Cruelty to the rest of God's Creatures: and therefore though ſuch Perſons ſought to God for his Patronage, by betaking themſelves to that which was dedicated to his Name, he would not afford them any protection; but commanded them to be delivered up to Juſtice, More Nevoch. P. III. c. 39.
Ver. 15. And he that ſmiteth his Father or Mother.] So as to wound them, and to make the Blood come; or to leave a mark of the ſtroke, by making the fleſh black and blue, as we ſpeak, Selden L. II. de Synedr. c. 13. p. 556.
Shall be ſurely put to death.] Strangled (ſay the Hebrews, ſee v. 12.) by the Sentence of the Judge, there being competent Witneſſes of the Fact, as in other Caſes. The giving them ſaucy words, or making mows at them, which ſignified Contempt, was puniſhed alſo with Whipping. There was no need to ſay any thing of killing them: for all wilful Murder was puniſhed with Death. And Solon, it is commonly noted, made no Law about this; becauſe it was not to be ſuppoſed any Man would be ſo wicked. Nor was this Crime known among the Perſians, as Herodotus ſaith in his days. Nor do we find any mention of it in the Law of the XII. Tables. But in after times there were moſt ſevere Puniſhments enacted againſt Parricide, which are deſcribed at large by Modestinus. And Diodorus Siculus tells us of the like among the Egpytians. See Hen. Stephanus in his Fontes & Rivi Juris Civilis, p. 18. Plato would have him that killed either Father or Mother, Brethren or Children, not only to be put to Death, but to be diſgraced after his Execution, by throwing his dead Body naked into a common place without the City, where all the Magiſtrates, in the Name of the People, ſhould every one of them throw a Stone at his head, and then carrying him out of the Coaſts, leave him without Burial, L. IX. de Legibus, p. 873.
Ver. 16. He that ſtealeth a Man.] By a Man the Hebrews underſtand an Iſraelite; whether he was a Freeman, or but a Servant; as Mr. Selden obſerves, L. VI. de Jure N. & G. c. 2.
And ſelleth him.] No Iſraelite would buy him, and therefore ſuch Plagiaries ſold him to Men of other Nations Which made the Crime to be puniſhed with Death; becauſe it was a cruel thing, not only to take away his Liberty, but make him a Slave to Strangers.
Or if he be found in his hand.] Though he had not actually ſold him; yet his intention was ſufficiently known by his ſtealing him.
Shall be ſurely put to death.] I obſerved above v. 12. they interpret this Phraſe every where, to ſignifie ſtrangling. If it be ſaid any where his blood ſhall be upon him, it ſignifies ſtoning. Maimonides makes this the reaſon why ſuch a Man was condemned to die, becauſe it might well be thought he intended to kill him, whom he violently carried away, (at leaſt, as I underſtand it, if he could not find means to ſell him) More Nevoch. P. III. c. 41.
Ver. 17. And he that curſeth his Father, or his Mother, &c.] The Hebrews take this Law to concern thoſe who curſed their dead Parents, no leſs than thoſe who curſed them, when they were alive; but not without Praemonition, and Witneſſes, as in other Capital Crimes: And not unleſs they curſed their Parents, by ſome proper Name of God, as Mr. Selden obſerves out of the Jewiſh Doctors, L. II. de Synedr. c. 13. This, and the other Law v. 15. enacted Death as the Puniſhment of ſuch Crimes, becauſe they were a ſign (ſaith Maimonides, More Nevoch. P. III. c. 41.) of a deſperate Malice, and audacious Wickedneſs; being a ſubverſion of that Domeſtick Order, which is the prime part of good Government. See XX Lev. 9. And thus far the Athenians went in this matter, that by their Law a Son was diſinherited, who reproached his Father. And if the Father did not proſecute ſuch a Son, he himſelf became infamous. So Sopater ad Hermogenem; foreign. By the ſame Law alſo, if he ſtruck his Father, both his hands were to be cut off; as we read in Heraclides Ponticus in Allegor. Homen. and in Quimillian Declam. CCCLXXII. Qui patrem pulſaverit, manus ei incidantur. And by another Law he was to be ſtoned to death, as the Author of Problemata Rhetor. tells us: foreign, and that without any formal Proceſs againſt him, foreign.
Ver. 18. And if men ſtrive together.] Fall out and quarrel.
And one ſmite another.] So that from words they proceed to blows.
With a Stone, &c.] Men uſually in their anger take up any thing that is next at hand, to throw at him againſt whom they are inraged; or finding nothing, ſmite them with their fiſts.
And he die not, but keepeth his bed.] Sometimes the blow falls in ſuch a place, that ſudden Death follows: or ſuch a Wound or Bruiſe is given, as confines a Man to his Bed.
Ver. 19. If he riſe again and walk abroad, &c.] If a Man recovered ſo far, as to get up, and walk abroad, after the ſtroke, it was preſumed (though he died not long after) it was by his negligence, or ſomething elſe, not of the Blow he received. And upon the hearing of the Cauſe, the Judges were to acquit the Man that gave the blow; i. e. he was not to die for it.
Only.] The Hebrew particle Rak ſignifies but or truly. as well as only: and here expreſſes, that the Man who gave the blow ſhould not eſcape all puniſhment, but ſuffer ſomething for the hurt he had done. Yet if we take it to ſignifie only, the ſenſe is not much altered; for the meaning is (as Conſtant. L'Empereur obſerves in Bava kama, cap. 8. ſect. 1.) by this word, to exclude Death, but not other Puniſhment in his Purſe.
He ſhall pay for the loſs of his time, &c.] The Jews ſay in Bava kama, cap. 8. ſect. 1. that ſatisfaction was to be given him for the loſs he had ſuſtained in five things: for the hurt in his Body; the loſs of his Time; the Pain he had indured; the Charge of Phyſician or Chyrurgeon; and the Diſgrace: all which they there indeavour to prove out of the Scripture. Two of them are plainly here. The firſt of which the Doctors upon the Miſna conſider with great Nicety, as L'Empereur obſerves upon the fore-named Treatiſe; ſome Men being able to earn more by their Labours than others; and the diſability the ſtroke brought upon them, being more or leſs, of a larger or ſhorter continuance; with reſpect to all which, a proportionable Compenſation was made to them.
And ſhall cauſe him to be throughly healed.] Here they alſo diſtinguiſh between the Cure of the Wound, Bruiſe, or Swelling cauſed by the ſtroke; and of any other breaking out that he chanced to have at the ſame time. He was bound to pay for the Cure of the former, but not of the latter. And if after a Man was cured, he fell ill again, he that ſtruck him was not bound to take care of his Cure.
The ſame Proviſion is made in the Civil Law, as L'Empereur notes, which perfectly agrees with this Conſtitution of Moſes—Judex computat mercedes medicis praeſtitas, caeteráque impendia, quae in curatione facta ſunt: Praeterea operas quibus caruit, aut cariturus est ob id, quod inutilis factus eſt.
According to Plato's Laws, he that wounded another in his Anger, if the Wound was curable, was to pay foreign, double to the Damage the wounded Man ſuſtained thereby. If it was incurable, he was to pay fourfold: and ſo he was to do likewiſe if it were curable, but left a remarkable Scar. If the Wound was given involuntarily, he was to pay only ſimple Damages. foreign: For no Law-giver is able to govern Chance, L. IX. de Leg. p. 878, 879.
Ver. 20. If a man ſmite his ſervant, &c.] A Slave; who was not an Iſraelite, but a Gentile:
He ſhall ſurely be puniſhed.] With Death, ſay the Hebrew Doctors (in Selden L. IV. de Jure N. & G. c. 1. p. 463.) if the Servant died while he was beating him: For that is meant by dying under his hand. But it ſeems more likely to me, that he was to be puniſhed for his Cruelty, as the Judge, who examined the Fact, thought meet. for his ſmiting with a Rod, not with a Sword, was a ſign he intended only to correct him, not to kill him. And beſides, no Man could be thought to be willing to loſe his own Goods, as ſuch Servants were.
Ver. 21. Notwithſtanding, if he continue a day or two.] A day and a night, as the Hebrew Doctors interpret it.
He ſhall not be puniſhed.] Becauſe it might be preſumed he did not die of thoſe ſtrokes.
He is his money.] His Death was a loſs to his Maſter; who therefore might well be judged not to have any intention to kill him; and was ſufficiently puniſhed by loſing the benefit of his Service.
Ver. 22. If men ſtrive, and hurt a woman with child.] Who interpoſed between the contending Parties; or came perhaps to help her Husband.
So that her fruit depart from her.] She Miſcarry.
And yet no miſchief follow.] She do not die, as the Hebrew Doctors expound it. See Selden L. IV. de Jure N. & G. c. 1. p. 461.
He ſhall be ſurely puniſhed, according as the womans husband will lay upon him.] Her Husband may require a Compenſation, both for the loſs of his Child, and the hurt or grief of his Wife. Yet he was not to be Judge in his own Caſe; but it was to be brought before the Publique Judges, as it here follows.
And he ſhall pay as the Judges determine.] Who conſidered in their Decree what Damage was done; which was eſtimated by the hurt his Wife received in her Body; and by the leſſening of her price, if ſhe were a Slave, and might be ſold. Unto which ſeveral other Mulcts were added, to be given to the Woman her ſelf, as Mr. Selden obſerves in the place above-named.
Ver. 23. And if any miſchief follow.] If the Woman did die.
Thou ſhalt give life for life.] In the Interpretation of this, ſaith Jarchi, our Maſters differ. For ſome by Life underſtand that which is properly ſo called, or the Perſon himſelf: ſo that it ſhould ſignifie, being put to death: But others underſtand by it, a pecuniary Mulct; that ſo much Money ſhould be paid to the Heirs, as the Perſon killed might have been ſold for. The LXX. carry it to quite another ſenſe; which is, that if a Woman Miſcarry, and the Child was foreign, not yet formed and faſhioned, that the Man who occaſioned the Miſcarriage was to pay a Fine. But if it were formed, than Life was to be given for Life. So that this whole Law is to be underſtood of an Abortion; and according to the condition of the Abortive (not the Life or Death of the Mother) ſo the Puniſhment was to be inflicted. And thus Philo takes it, and hath a large Diſcourſe upon it. See Selden L. IV. de Jure N. & G. c. 1. p. 464. and Conſtantin. L'Empereur in Bava kama, p. 200, &c.
Ver. 24, 25. Eye for eye, tooth for tooth, &c.] Theſe, and all the reſt that follow to the end of the 25th Verſe, the Hebrews underſtand to ſignifie Pecuniary Mulcts; as may be ſeen in their Comments upon this place. And Maimonides gives three Reaſons for it, which L'Empereur takes notice of, and indeavours to confute in his Annotations upon Bava kama, p. 187, &c. 198, &c. But after all, there ſeems to be a great deal of reaſon, at leaſt in many Caſes, to admit of a Compenſation. As in that mentioned by Diodorus Siculus, L. XII. where the one-eyed Man complained of this Law (which was among the Heathen) as too rigid; for if he loſt the other Eye, he ſhould ſuffer more than the Man whom he injured, who had ſtill one Eye left. Upon ſuch Conſiderations Phavorinus argues againſt this Law, which was one of the XII. Tables, as not poſſible to be juſtly executed, according to the very Letter of it. For the ſame Member of the Body, is far more valuable to one Man, than it is to another. For inſtance; the right Hand of a Scribe, or a Painter, cannot be ſo well ſpared as the right Hand of a Singer. And therefore, the Law of the XII. Tables, concerning Taliones (Like for Like) was with this Exception, Ni cum eo pacit. That is, if he who had put out a Man's Eye, or taken away the uſe of any other Member, would not come to an Agreement, de talione redimenda, to make him Satisfaction, and redeem the Puniſhment, he was to ſuffer in the very ſame kind. So Sex. Caecilius expounds it in Aulus Gellius, L. XX. c. 1.
Ver. 26. If a man ſmite the eye of his ſervant, or the eye of his maid, &c.] It is but reaſon that this ſhould extend to all Servants, though of another Nation, not meerly to thoſe who were Jews. And ſo Maimonides ſeems to allow, when he ſaith, This is a Precept of Piety and Mercy to poor Wretches, who ſhould not be any longer afflicted with Servitude, when they have lost a Member of their Body. More Nevoch. P. III. c. 41. And therefore the common Reſolution of their Doctors, is very cruel, That Gentile Servants (whom they call Canaanites) who were not Circumciſed, ſhould not have the benefit of this Law. For they thus diſtinguiſh Servants of another Nation. Some were Circumciſed and Baptized; others ſtill remained Gentiles, or were only Proſelytes of the Gate. The former kind might be ſet free three ways; by being Redeemed by a Price paid by themſelves, or any Friend; by Manumition; and by virtue of this Law, upon the Loſs of any Member. For though only an Eye and a Tooth be here mentioned, yet herein are included all the reſt of the principal Members of the Body, which being mutilated, cannot be repaired; which they reckon to be Four and twenty in all. If they did not diſmiſs ſuch a Servant thus maimed, the Court of Judgment, upon an Appeal to it, compelled them to give him his Liberty, with a Certificate of it. But the ſecond ſort of Gentile Servants could be made free only be the two firſt ways, having no beneſit (according to this Doctrine) by this third way here mentioned. See Selden L. VI. de Jure N. & G. c. 8. But Heathens themſelves were more merciful than theſe Doctors; for the Civil Laws (as L'Empereur obſerves upon Bava kama, cap. 8. ſect. 3.) made better proviſion for Slaves when they were hardly uſed.
Ver. 27. And if he ſmite out his man-ſervants tooth, &c.] The loſs of a Tooth was not ſo great as that of an Eye: yet to prevent Cruelty, God ordained a Maſter ſhould loſe the Service of his Slave, for ſo ſmall a loſs as this.
Ver. 28. If an Ox gore a man, or a woman, that they die, then the Ox ſhall be ſurely ſtoned.] This was not a Puniſhment to the Ox, as the Sadducees, ſaith Maimonides, cavil againſt us; but to his Owner: who was admoniſhed hereby, to look better after his Cattle: For which reaſon alſo, the Ox was not to be eaten, More Nevoch. P. III. c. 40.
And his fleſh ſhall not be caten.] Becauſe God would have the Owner intirely loſe all benefit by it, as Maimonides interprets it. And ſo Joſephus, L. IV. Arctaeol. c. 8. foreign, &c. It was not permitted to be ſo much as profitable to him for his Nouriſhment. And the Hebrew Doctors ſay, that if a Man eat ſo much as the Bigneſs of an Olive of this Fleſh, he was to be Scourged. By this means both he and others were admoniſhed to be more careful and cautious: And God alſo declared how heinous the Crime of Murder is; the Puniſhment of which, in ſome ſort, reached even unto Beaſts: which were therefore alſo ſtoned, when they had killed a Man, that no more might be in danger of their Lives by them. Some think its Fleſh therefore could not be eaten, becauſe, being ſtoned, it was a Carcaſe whoſe Blood was in it. But Maimonides anſwers to this (in his Treatiſe of forbidden Meats) that the Scope of the Law is, that as ſoon as the Sentence for its being ſtoned was pronounced, it became unclean. Nay, if a Man, to prevent this Sentence, killed it after a legal manner, no Man might eat a Bit of it. And when it was ſtoned, the Fleſh was neither ſold, nor given to the Gentiles, nor to the Dogs, &c. as Bochart obobſerves, L. II. Hierozoic. P. I. c. 40.
The ſame Maimonides in his Treatiſe of Pecuniary Mulcts, rightly extends this Law to other Creatures, whether Beaſts or Birds, that any Man kept; as L'Empereur obſerves upon Bava kama, cap. 4. ſect. 5. And Plato, I obſerve, hath the very ſame Law, that foreign, &c. if an Ox, or any other Animal, kill a Man (except it were in the Publick Combats) the Officers called foreign, that were ſet over their Fields, were to kill it, and throw it out of their Territories, foreign, L. IX. de Legibus, p. 873.
But the owner ſhall be quit.] The loſs of his Ox was all his Puniſhment. And if the Ox did not kill the Man, but only wounded him, in that caſe the Owner was obliged to make him ſuch a Compenſation as the Judges thought equal, and to take care the like hapned not again.
Ver. 29. But if the Ox were wont to puſh in time paſt, and it hath been teſtified to him, &c.] In the former caſe, the Owner was only puniſhed with the loſs of his Ox; it being the firſt time that it had been known to puſh. But if the Ox had formerly been known to be ſo unruly, and he had been told of it, and yet did not take care to prevent further miſchief, then he, as well as the Ox, were to be put to death. The Jewiſh Doctors indeed have ſoftned this by divers Exceptions: As first, they ſay it was to be proved that the Ox had puſhed upon three ſeveral days: for though it appeared he puſhed a great many times in one day, it would not make the Man liable. And ſecondly, it was to be teſtified not only to the Owner, but before the Magiſtrate, that he had puſhed ſo often. And laſtly, they interpret the laſt words of this Verſe, (the Owner alſo ſhall be put to death) of Puniſhment by the Hand of Heaven: that is, they leave him to God. See Bochart in his Hierozoic. P. I. L. II. c. 40. But though Abarbinel propound this as the opinion of their Wiſe men, yet he was ſenſible of its abſurdity. For he confeſſes that God doth decree the Sentence of Death ſhould be executed upon the Owner of the Ox: only he thinks that he remits ſomething of the ſtrictneſs of it in the next Verſe. And there are three Caſes here mentioned relating to this matter: One in the foregoing Verſe, where the Ox is ordered to be ſtoned. Another in this, where the Owner is alſo made liable to be put to death: And a third in the next Verſe, where a Pecuniary Mulct is only ſet upon him.
Ver. 30. If there be laid upon him a ſum of money, then he ſhall give it for the ranſome of his life.] By this it appears there might be a Caſe, wherein the Owner of the Ox ſhould not be put to death, but only be fined, though the Ox had been wont to puſh, and he was told of it. And the Interpretation of this, and the foregoing Law, which is given by Conſtantine L'Empereur is not unreaſonable upon Bava kama, c. 4. ſect. 5.) Either the knowledge which the owner had of the ill Conditions of his Ox was certain or uncertain; and his careleſneſs in preventing the Miſchief he was wont to do was greater or leſſer; and the Friends of him that was killed preſſed the ſtricteſt Juſtice, or were content to remit it. In the former caſes (if the knowledge was certain, the careleſneſs very groſs, and the Friends were ſtrict in the Proſecution) he was puniſhed with death: but if otherwiſe, he was puniſhed only by ſetting a Fine upon him. Certain it is, that the foregoing Law might prove too rigorous in many caſes (as if the Ox puſhed, being provoked; or broke looſe when he was tied up; or was let go by the negligence of a Servant, &c.) and therefore God permitted the Judges to accept of a Ranſom, as they ſaw cauſe, which was to be paid according as the Sanhedrim thought meet. So Jonathan.
Whatſoever is laid upon him.] He was to ſubmit to the Fine, whatſoever it was: and it was given to the Heirs of him that was killed. If a Man's Wife was killed, the Jews ſay, it was given to the Heirs of her Father's Family, and not to her Husband.
Ver. 31. Whether he have gored a ſon, or have gored a daughter, &c.] Becauſe what was ſaid v. 29. of killing a Man or a Woman, might have been reſtrained to the Father or Mother of a Family, whoſe loſs was greateſt, and their lives moſt precious: therefore the ſame Law is here extended to the Children: yet both Jonathan and Onkelos conſine it to the Children of Iſraelites; as if all Mankind beſides were nothing worth. See Bochartus in the place above-mentioned.
Ver. 32. If an Ox ſhall puſh a man-ſervant or a maid-ſervant, &c.] Whether the Servant was of greater or leſſer value, ſaith Maimonides, the Puniſhment was, the payment of thirty ſhekels (and the loſs of the Ox) half the price of a Free-man, who was eſtimated, he ſaith, at ſixty ſhekels, More Nevoch. P. III. c. 40. He adds in another place (in his Treatiſe of Pecuniary Mulcts) that the Owner was not bound to pay this Ranſom, unleſs the Ox killed the Man out of his own Ground. For if he was killed within in the Owners Ground, the Ox indeed was ſtoned, but no Ranſom was paid. Divers other caſes he mentions in that Book, as L'Empereur obſerves upon Bava kama, p. 85. where he takes notice that Solon himſelf wrote foreign, a Law concerning the miſchief done by Cattle, as Plutarch relates in his Life.
Ver. 33. And if a man ſhall open a pit, &c.] In the Street, or publick High-way, as Jonathan rightly interprets it. For if he opened or digged a Pit in his own Ground, he was not concerned in this Law, though another Man's Beaſt fell into it.
And not cover it.] If he did cover it conveniently; though in time the Cover grew rotten, and a Beaſt fell into it, he was not bound to make it good, as Maimonides reſolves the Caſe.
Ver. 34. The owner of the pit ſhall make it good, &c.] There were ſo many Caſes aroſe upon this Law, that it is not eaſie to number them. Maimonides hath amaſſed together abundance belonging to this matter, with wonderful accuracy, as Bochartus obſerves; who hath tranſcribed a great many of them, in his Hierozoic. P. I. L. 2. c. 40. p. 391, &c.
Ver. 35. If one mans Ox hurt anothers that he die.] Which equally belongs to all other Cattle, as Maimonides obſerves; for the Law mentions an Ox only for example ſake.
They ſhall ſell the live Ox and divide the money, &c.] Though the Ox that was killed, was worth as much more as the other; yet ſatisfaction was to be made only out of the live Ox, which did the miſchief, as the ſame Maimonides obſerves, who hath ſeveral Caſes upon this Law, as may be ſeen in the fore-named Book of Bochart's, p. 393. But it might ſo happen, that the Ox which was killed was of little value, and the live Ox worth many pound: in which caſe it ſeems ſo unreaſonable, the Man whoſe loſs was ſmall, ſhould be a great gainer by the Sale of the Ox which did the miſchief, that the Jewiſh Lawyers reſolve the meaning of this Law is, the Man whoſe Ox was killed, ſhould receive half the Damage he had ſuſtained; as L'Empereur obſerves upon Bava kama, cap. 1. ſect. 4.
Ver. 36. Or if it be known that the Ox hath uſed to puſh, &c.] There is a great difference between what is done caſually, and what is done conſtantly. The former Verſe ſpeaks of the hurt done by a Beaſt that was not wont to puſh; and this, of the hurt done by one that was notoriouſly miſchievous: And accordingly greater Damages were given in this latter caſe, than in the former. And by this general Rule the Jews regulated all other Caſes: making thoſe Miſchiefs, that were done. by Beaſts which were wont to hurt, or were of a hurtful Nature, to be puniſhed above as much more, than the Miſchief done by a Creature that was not wont to hurt, or with a part of his Body, which uſes not to hurt. See L'Empereur in Bava kama, cap. 2. ſect. 1.