Commentary on Genesis and Exodus

QUEST. I. Of the necessity of the Judicial laws.

Vers. 1. THese are the judgments, &c. 1. After the Moral law followeth the Judicials: for the Civil law issueth out of the Moral law, which is the fountain and foundation of all other Laws. And as the Moral law is principally grounded upon the Law of Nature: so in the next place, the Civil law also floweth from the same fountain, as it may appear by the general use thereof: seeing no common-wealth can stand without Civil and Judicial constitutions, Borrh. 2. And Moses having propounded the Laws which bind in conscience, so now he setteth forth the Penall laws, whereby the obstinacy of men might be restrained: for if a man were left to himself: Nemo est qui non suo arbitrio m • lit vivore, there is none that had not rather live as he list himself, Galas. 3. Therefore because it might fall out, that all would not be obedient to the Moral precepts, necessarium suit praescribere, &c. it was necessary to prescribe what punishment every transgressor of the Law should be subject unto, Rupertus.

QUEST. II. The difference of the Moral, Judicial, and Ceremonial laws.

THe judgments. 1. The Judicial laws, Ceremonial and Moral, are thus distinguished: some precepts have vim obligandi ex ipso dictamine rationis, power to bind by the very inducement of natural reason, though there were no other Law to enforce them, such are the moral precepts: some Laws do not absolutely bind by the instinct and persuasion of natural reason: sed ex institution divina vel humana, but by a divine and human institution: which, if they concern such things as appertain unto God, are ceremonials: if they respect the ordering of men, and directing of human affairs, they are Judicial laws: two things then are required in Judicial laws, that they concern ordinationem humanam, the ordering and directing of men, and that they do bind, non ex sola ration, sed ex institution, not by reason only, but by the institution, Thom. 1.2. qu. 104. art. 1. in Cor. 2. Now there are four sorts of Judicial laws, one of the Prince toward the subjects, another of the Citizens among themselves, the third of the Citizens toward strangers, and the fourth concerning domestical duties, as of the fathers, masters, husbands, toward their children, servants, wives, Thomas.

QUEST. III. How the Ceremonials are abolished.

FUrther, concerning the validity of the Ceremonial law: 1. The Ceremonies were of two sorts, either such as were merely figurative, signifying such things as were to be performed in Christ, as Circumcision, and the pascal Lamb, which are in no respect to be observed: for this were in a manner to deny Christ to be come: if the figures should still remain in use, then the body is yet to be expected. 2. There was another sort of ceremonies, which do not directly concern the signification of Christ to come; but only shown, munditiam populi illius & sanitatem, the cleanliness and health of that people, as to abstain from swine's flesh: which if one should now observe, as it was commanded in the Law, he sinneth; but if for some other end, as for his health, or such like, he offendeth not, Tostatus quaest. 1. 3. Some ceremonies were partly figurative of things to come, and significative of some spiritual thing: partly they had some other politick end and use, which not in respect of the figure and type, but in some other regard, may upon a new institution be observed under the Gospel: as the show-bread or face-bread, as it was a figure of Christ, is now no more used: but yet bread by Christ's institution is still retained in the Eucharist, as representative of the body of Christ. So they under the Law used washing with water, to signify the inward cleansing: and now also in the New Testament, upon a new ordinance, it is used as the outward element in Baptism. So the observation of the Sabbath, the paying of tithes, Churches garments, Church-music, and the like were partly ceremonial, partly moral, belonging to the service of God, to the maintenance of Ministers, to external decency and comeliness: in which respect, though the ceremonial use be ceased, they may be retained still, all things being done without offense, and to edification, according to the Apostles rule. 4. But here I cannot let pass untouched an unsound assertion of Lyranus, to whom consenteth Lippoman: that thurificatio, quae de ceremonialibus erat, in nova lege remanet: that censing and offering of incense, being one of the ceremonials of the old Law, yet remaineth in the new, because it signified nothing to come, but only shown the devotion of the people in the worship of God, which is greater in the New Testament than in the old. Contra. 1. The offering of incense was a necessary appertinance to the external sacrifices of the Law, it did continually wait and attend upon them: and as the sacrifices did prefigure the holy sacrifice of atonement, and passion of our blessed Savior upon the cross: so the incense did betoken the sweet savor of that sacrifice, and the acceptance thereof with Gold: as Saint Paul showeth, that Christ hath given himself for us an offering and a sacrifice, of a sweet smelling savor unto God, Ephes. 5.2. Beside, the oblation of incense did shadow forth the mediation of Christ, in offering up the prayers of the Saints, as Revel. 8.3. Much odors were given to the Angel that had the golden censer, to offer with the prayers of the Saints: and hereunto alludeth the Prophet David, when he saith, Let my prayer be directed in thy sight, as incense, Psal. 141.2. It is evident then, that the incense of the old Law was figurative, and significative of things to come. 2. And true it is, that the inward and spiritual devotion is more and greater in the New Testament, than it was in the old, but not the external: for they had more outward ceremonies and rites prescribed, as signs of their devotion, than are now required under the Gospel: for now they that worship God, must worship him in spirit and truth, John. 4.24.

QUEST. IV. How far the Judicials are now to be retained.

FUrther, concerning the Judicials of Moses : 1. They do much differ in respect of their observation from the Ceremonials: for these are so abrogated, as that now to observe the figures and types of the Old Testament, were great impiety: for all such things were observed then, vel exprese, vel tacit sub protestatione Messiae futuri, &c. either expressly or closely under protestation of the Messiah to come: now therefore to observe them, were to protest, Christum nondum venisse, that Christ were not yet come. But it is not so with the Judicials, for they being conclusions and rules of justice grounded upon the Law of nature, and first given for the conservation of the peace, and politic state of that Common-wealth, and not prescribed for any signification, or prefiguring of things to come; they may now be so far forth observed, as they are found fitting and agreeable unto the state and condition of the people: Sic fere Tostat. Lippom. 2. Two ways is a precept said to be figurale, figurative • one way, when it is principally instituted to figure somewhat, such were the ceremonial precepts: another, ex consequenti, by a certain consequent; and so are the Judicials after a sort figurative, because they belonged unto that people, cujus status erat figuralis, whose state was figurative: Sic Thom. Lippom. To be figurative in this sense, letteth not, but that the Judicials may be retained now, seeing they were not appointed or ordained to prefigure anything, as the Ceremonials were. 3. But here two strange positions come to be examined: the one is of Lippoman: That to observe the Judicials, tanquam ex lege veteri obligatoria, esset mortiferum, as binding by force of the old Law, were a deadly sin. Tostatus also saith: We receive the judicial precepts given of God, tanquam dicta sapientis viri, &c. as the sayings of some wise man, not as of a lawgiver binding us to the observation thereof: like as the Romans borrowed their Laws of the wise Grecians, Tostat. qu. 1. Contra. 1. The old Law in the constituting of the Judicials was grounded upon the Law of equity: which rule of equity it is no sin to follow now: therefore it is no sin to follow the rules of the old law, as they are grounded upon equity and justice: nay therein to depart from them, were rather transgression. 2. S. James saith, chap. 4.12. There is one Lawgiver, which is able to save and destroy: therefore to whom doth it rather belong to give direction, for what offenses man's life is to be saved, and other punishment to be afflicted, and for what his life is to be taken away, than unto that perfect and sovereign Lawgiver, who is the author and giver of life, and at whose will and pleasure only man's life is taken away? To say therefore that the Judicials appointed by God, are to be observed now only as the sayings of a wise man, not as of a Lawgiver, is both to derogate from God's authority, who is the only sufficient Lawgiver, and from the sufficiency of his law (which is more perfect than any human constitutions whatsoever) in making these Judicials but equal unto the sayings of other wise men. But this question hath been already handled at large before, in the general questions in chap. 1. Exod.

QUEST. V. Why these Laws are called judgments.

THese are the judgments. 1. He saith not, Dei judicia, sed absolute • judicia, the judgments of God, but absolutely judgments: for he which observed these, was not yet just before God, though he were before men, Lippoman. 2. This word judgment in the singular signifieth not, as judgments in the plural: for judgment in the singular for the most part signifieth condemnation: but in the plural it signifieth, tam re • vindictam, quàm innocentis defensionem ; as well the revenge and punishment of the guilty, as the defense of the innocent, Rupertus. 3. This word judgment is taken three ways: first it signifieth the act of the judgment and understanding, which determineth what is meet and convenient to be done: and so it is as the fountain and beginning whence good Laws proceed: Lex enim per judicium facta est ; for the Law is made out of judgment. Secondly, it is taken pro ipsa exhibitione justitiae, for the very exhibiting and administration of justice, which is the execution of the Laws. Thirdly, it is taken pro lege, secundùm quam judicandum est, for the Law it self, according to the which judgment is given: and in this signification is the word used here, Tostat. qu. 3.

QUEST. VI. How Moses propounded these Laws, by speaking or by writing.

Vers. 1. WHich thou shalt set before them, or propound unto them. 1. Augustine saith: Notanda est hic locutio, &c. The manner of speech is here to be observed: this is said to Moses, Thou shalt propound, &c. but the rest that followeth, If thou shalt buy, &c. verse. 2. is spoken to the people, as unto Moses: Locut. 91. in Exod. 2. These Laws Ab. Ezra saith might be propounded two ways unto the people, either by pronouncing them, or by writing of them. But it is evident, chap. 24.3. that first Moses told all these Laws by word of mouth, before he writ them: and he had first the people's consent unto them: for they were no Laws, till the people had received them, and submitted themselves unto them. And therefore as soon as Moses had propounded them, the people answered with one voice, All the things which the Lord hath said, will we do, chap. 24.3. Tostat. qu. 3.

QUEST. VII. Why the Israelites were called Hebrews.

Vers. 2. IF thou buy an Hebrew servant, &c. This was a peculiar name to the Israelites to be called Hebrews: 1. which name is not derived of Abraham, as some think: for the name Hebrew, beginneth with the letter 〈 in non-Latin alphabet 〉 ain: the name of Abraham with 〈 in non-Latin alphabet 〉 aleph: and beside, there were other nations that came of Abraham, as the Edomites, Ishmaelites, Amalekites, Midianites, which should also by that reason have been called Hebrews. 2. Neither is this name derived of the signification thereof, which signifieth to pass over: that therefore they should be so called, because sometime they dwelt beyond the river in Mesopotamia, and came over the river: for Lot came over as well as Abraham, and yet his posterity, the Moabites, and Ammonites, were not called Hebrews. 3. Therefore they are so called of Heber, not only because they were of him descended: for other nations which came of Ioktan the second son of Heber, descended of him, yet were not called Hebrews: neither was this name given them, in respect of the holiness and true worship of God, which Heber professed: for in that sense they might rather have been called by Abraham's name, who is famous in Scripture for his faith and obedience: but the reason of this name is, because the Hebrew language, which was peculiar and proper to the Israelites, was preserved in the family of Heber, when the tongues were divided at the destruction of Babel: and so although many other nations did spring out of Hebers family, yet it was so disposed by God's providence, that the true worship of God, together with the Hebrew tongue, should be preserved only among the righteous seed. It is no other like, but that in Abraham's house Ishmael as well as Isaac • and in Isaac's house, Esau as well as Jacob spake Hebrew while they lived together: but afterward, when Ishmael and Esau were departed from their fathers house, they spake the tongue and language of those nations, to whom they joined themselves, Tostat. qu. 4.

QUEST. VIII. How the Hebrews became servants.

AN Hebrew servant. 1. The Israelites had two kinds of servants: some were of other nations; as most of the servants which the Romans had were such: and these servants they might keep a longer time than for six years: their servitude was perpetual, and hereditary both of themselves and their children: the other kind of servants was of their own nation, for whose benefit this Law is made, Tostat. Oleaster. 2. Some think that this Law is made concerning such servants being Hebrews, which were bought of the Gentiles: but R. Solomon thinketh better, that it is a general Law concerning all servants that were Hebrews, howsoever they came to be servants, Ex Lyrano. 3. The Hebrews became servants by these ways: 1. If any man did steal, and had not wherewithal to make satisfaction, he was to be sold by the Judges, and so the theft to be made good, Exod. 22.3. 2. If any did sell himself through poverty, Deut. 15.12. or a man sell his son or daughter, chap. 21.7. or when any were taken to be servants and bondmen for debt: as 2 King. 4.2. Simler. 3. Or when any having a servant, and being decayed, had no longer any use or service for him, he might sell him over unto another, Lyranus. 4. There might be also a fourth occasion of servitude; namely, when in the civil wars, which were among the Israelites, as when the kingdom was divided after Solomon's days, they did take any Hebrews captives, or prisoners, they afterwards became their servants, Simler.

QUEST. IX. The difference between Hebrew servants and strangers.

NOw the condition of an Hebrew servant was more tolerable than of other servants, which were of strange nations, in these two respects: 1. Their service was not so hard, nor so cruel, Levite. 25.43. Thou shalt not rule over him cruelly. And before, verse. 39. Thou shalt not compel him to serve as a bond servant, but as an hired servant, and as a sojourner he shall be with thee: that is, his service should be easy and gentle, and their entertainment good, as when one is hired: yet herein the condition of such servants differed from an hireling: the servant was bound generally, during his service, to do any work which his master enjoined him: but the hireling was only to do that work, for the which he was hired: the hireling was free, and at his own disposition, he could not be set over to another; but so might the servant be sold over during the time of his service, being not his own man, but to be disposed of at the will of his master, Tostat. quaest. 5. 2. The Hebrew servants differed from others in the time of their service, which was not to exceed six years: whereas the bondage and servitude of strangers was perpetual, Simler. Such as they were commanded by the Law to have, Levite. 25.44. Thy bond servant, and thy bondmaid, which thou shalt have, shall be of the Heathen which are around about you: as were the 〈…〉 , upon whom was laid the curse of perpetual bondage or servitude, Gen. 9.25. Cursed be Canaan, 〈…〉 of servants shall he be to his brethren.

QUEST. X. Of three kinds of liberty, and how servitude is agreeable to the Law of Nature.

BUt here it will further be demanded, whether servitude be agreeable to the Law of nature, and how it cometh to pass, that the Lord suffered the Israelites being a free people, to be servants one unto another. For the deciding of this doubt, there is a threefold kind of liberty to be considered, a natural liberty, civil, and spiritual. 1. The natural liberty I call that, wherein Adam was created, being subdued to no bondage, neither spiritual of sin, nor corporal in any outward subjection to any creature: but as he had a freedom of will, and was made Lord of his affections within, that he needed not to have sinned, unless he would himself: so he had the dominion of the creatures given unto him. This original liberty of nature considered, servitude and bondage was brought in as a punishment of sin, and so is not simply, and of it self agreeable to the Law of nature. 2. But now since Adams fall, there is another kind of civil liberty, and civil servitude opposite unto it. Civil liberty is defined to be a natural faculty, for every man to do as himself liketh: nisi si quis aut 〈◊〉 aut jure prohibetur, unless one be hin ••• d by force or in right; for that is no true liberty for a man against right, to do what him li • teth: ser • itude contrariwise de •• eth unto a man power, vivend • 〈…〉 ; to live as he would, according unto nature. Now this servitude simply accordeth not with nature, as the Apostle saith, If yet thou mayest be free, use it rather, 1 Cor. 7.21. showing that everyone by nature desireth liberty and freedom. But after a sort this servitude is agreeable to nature, not simply, or of it self, but as other punishments are said to be natural, as tending to the maintenance of society among men which is properly natural. And if it be objected, why since all men are fallen in Adam, and so brought into subjection, why all likewise become not servants: the answer is, that two things must be considered in this our corrupt state: the one is the Law of corruption, brought in by sin, the other the goodness of God: that although all men are subject by sin to the same bondage and corruption, yet the goodness of God qualifieth that slavish condition of nature, as that some do enjoy an outward liberty and freedom: like as in the inward faculties of the soul, the Lord giveth unto some more light of understanding, dexterity of wit, profoundnesse of judgment, and other natural gifts, than unto others. 3. The spiritual liberty is wrought in us by grace in Christ, which is from the subjection of sin, and malediction of the Law; that our conscience is no more terrified with slavish fear, but we are at peace with God: and beside, by this spiritual liberty, the faithful have restored unto them the dominion over all creatures: that though not in external possession, yet in a spiritual right, all things are theirs, whether the world, life, death, things present or things to come, 1 Cor. 3.22. and all things work to the best, to those that love God, Rom. • . So these may very well stand together, external servitude, and spiritual freedom: it is possible for one to be a freeman to God, and yet a servant in the world, and another to be a bondman to sin, and yet free in the world: for there are divers objects of these two kinds of liberty and bondage; the outward freedom respecteth this life and state, the free use of riches, and pleasures of this life: the spiritual and internal freedom hath set before it the salvation of the soul, the favor of God, and life eternal. Christian religion then overthroweth not the diversity of degrees among men: But as Christ, though he were by his spiritual right, free from all taxes and impositions, yet lest he should offend, paid poll money, Matth. 17. so Christians, though they are made free by faith in the Son, yet for the maintenance of peace and love, and avoiding of offense, in disturbing the temporal State, they are bound as well as others, to be subject unto the powers of this world: Et potestatibus 〈◊〉 nos subjici in eo homine qui elementis, ex quibus constat, subditus est: In respect of that man of ours which is subject to the elements whereof it consisteth, Borrh.

QUEST. XI. How these six years are to be accounted.

Vers. 2. HE shall serve thee six years, in the seventh he shall, &c. Some do expound this De publico & generali anno septimo, of the public and general seventh year, some of the private, as every man's service began, Lippoman. But that it is to be understood of the public year of intermission, it may be made plain by these reasons: 1. Because, whereas every seventh year was appointed a year of intermission, to forbear tilling of the ground, or exacting of debts, Levite. 25. Deut. 15. if every man should make a year of remission of servants in his own house, and not observe the general and solemn year of intermission, this would have brought in and bred a great confusion▪ Tostat. 2. This also appeareth by the analogy of the great year of remission, which was in the fiftieth year: for there the buying of possessions or servants was no • to be counted from the time of such buying, but from the year of Jubile, for as many years or few remained of the Jubile, so was the price to be valued, Levi • . 25. Tostatus, 〈◊〉 , Lyranus. 3. And beside seeing in the seventh year, there was a 〈…〉 : for if a man might exact ser • ice of his servant, and not 〈…〉 more base than their substance, which is not to be 〈…〉 then the meaning is, not that every 〈◊〉 of the Hebrews 〈…〉 ; for it might so full 〈◊〉 that he should serve but one, if he were bought immediately before the year of Jubile, but that he should not at any time serve above six years, Tostat.

QUEST. XII. The reasons why they ought to set their servants free.

HE shall go out free for nothing. 1. That is, he shall pay nothing for his liberty, because he is made free by the Law: nor yet for anything else. As if the servant had lien sick any time of the years of his service, and his master had been at cost in healing of him; his master in this case was to expect no recompense, because his servant was as his possession, even as the ox or asse, purchased for his profit, and therefore his master was to stand to the loss of it, Tostat. qu. 6. 2. And the reasons why this favor was to be shown unto the Hebrews being servants, were these: 1. The Lord saith, For they are my servants, which I brought out of the land of Egypt, Levite. 25.42. that is, he doth not only put them in mind of that general benefit, of their deliverance out of the bondage and servitude of Egypt, the remembrance whereof ought to make them kind and merciful to their servants the Hebrews, which were partaken of the same common deliverance: But the Lord likewise pleadeth his right and interest in them, saying, They are my servants: so that although the Lord did somewhat depart from his own right, in suffering of them to serve six years, in regard of their necessity, yet if they should hold them in perpetual servitude, they should usurp upon the Lord's right, seeing they were his servants.

2. Another reason is taken from the manner and condition of their service, Deut. 15.18. He hath served six years, which is the double worth of an hired servant: which is so said, either because the service of six years is double to the time of hired servants, who used to covenant from three years to three years, Vatab. Or rather because their works were more laborious than were the hired servants, Iun. For he was to do his work, for the which he was hired, and no more: but the other, when he had done in his business in the field, came home, and ministered to his master first, before he did ea • himself, Luk. 17.10. And they only served not their master by day, but by night they kept their flocks in the field, as is evident in the example of Jacob, Gen. 31.40. Simler. 3. A third reason is taken from a promise of blessing: The Lord thy God shall bless thee in all that thou doest, Deut. 15.18. Simler.

3. Though this Law concerning the freedom of servants, did specially concern the policy of the Jews, and so belongeth not unto us, for now servants are not bought and sold among Christian • in the Roman Empire, but only hired, Osiander. Yet the equity of this Law doth bind us, that all they which have others in subjection under them, should use their authority moderately and in mercy, Galas. 4. The word here used, ch • pshi, interpreted free, signifieth also solitary, because servants were not solitary, or alone by themselves in the house, but attended on their masters: they which were free, were solitary and by themselves, giving no attendance upon any, Oleaster.

QUEST. XIII. Why the space of six years is limited for their service.

BUt concerning the limiting of the space of six years for service, and the appointing of the seventh for liberty, what might be the reason thereof, thus it is diversely scanned. 1. Some do thus moralize it: by six years, they understand the perfection of the active life, because in six days the Lord made the world; he that will come unto contemplation, must first approve himself in action, Lyr • n. 2. Isid • re maketh this application, in sex atatibus hujus s • culi servientes, &c. when we have served the six ages of this world, in the seventh, which is the eternal Sabbath, we shall be free. 3. But I prefer rather Rupertus conjecture, that this privilege of going out free in the seventh year, and serving six, was proper to the Hebrews: Quia videlicet pater • orum Jacob sex annis pro gregibus Laban servivit, &c. Because Jacob their father served six years for Laban's flocks, and went out free in the seventh, choosing rather to sojourn with his fathers, Abraham and Isaac, than to serve among his kindred for more profit: therefore, Haec ingenuit as patris illam posteris apud Dominum thesaurizavit: This ingenuous mind of their father did treasure up this privilege before the Lord, for his posterity, that none should be compelled to serve above six years: Rupert. lib. 3. in Exod. cap. 35. 4. But the best reason of all is, because as the Lord had from the beginning given them a Sabbath of days, which was the seventh day of rest: so also he gave them a Sabbath of years, that every seventh year the land should rest, and servants should rest from their labors, and debtors from their creditors: and they had also a Sabbath of seven times seven years prescribed, that when they had counted seven times seven years, then the fiftieth year should be the great year of remission, the year of Jubile, which was a lively figure of that acceptable time of general remission, at the coming of the Messiah.

QUEST. XIV. How the servant is said to come in with his body, and to go out with his body.

Vers. 3. IF he came himself alone. 1. Some read, If he came with his garment, he shall go out with his garment, Jerome. Lyranus. But the word is guph, which signifieth a body, not gaph, a wing of a garment: the true reading therefore is, If he came with his body, that is, alone without either the body of his wife or children, Oleaster. And so read both the Chaldee and Septuagint, If he entered alone, he shall go out alone. 2. But this case is excepted, that if he in the time of service should marry a free woman, and not a maid servant given him by his master, in this case the free woman should not lose her freedom, but should go out with her husband, Tostat. qu. 7. 3. And beside, as if he brought a wife with him, he went out with his wife, so by the like reason, if he had children before, they should be free likewise, Iun. Nay if he should g • t children during his service, by a wife married before his service, those children also should • oe out with him, and not remain with his master: partus sequitur 〈◊〉 , the child followeth the condition of the mother, Tostat. quaest. 6. 4. And of the former reading, If he come in with his body, rather than, with his garment, these two reasons are given: 1. Because it is not like that the same garment with the which he entered could continue six years, Pallican. 2. And the servant was not to be sent out with his garment alone, but with a liberal reward of sh • epe, corn and wine, Deut. 15.14. Simler. 3. Beside, the next clause confirmeth this reading: but If he were married, &c. so to come in alone, is to come without a wife or children, Iun.

QUEST. XV. What manner of wife the master was to give to his servant.

Vers. 4. IF his master have given him a wife. 1. Some indifferently understand any maid servant, whether a stranger, or an Hebrewesse, and that such wife and her children shall be her masters, till the time of servitude come out, Genevens. But the master had no power to give an Hebrewesse maid to his servant to wife, but he must either take her himself, or give her to his son, verse. 7, 8. Piscat. Tostat. It is understood therefore of such maid servants as were of other nations, Osiana. 2. But it seemeth, that the master could not give a Canaanitish woman to his servant to wife, for they are forbidden to contract marriages with them, Deut. 7.4. Tostat. quaest. 7. Neither had the master power to give any free woman to his servant: for the master was to give only his own, but a free woman was none of his possession, Tostat. 5. This must be understood, if the servant will take a wife, for otherwise, he was not to be compelled: for if there were not a free consent, it is held to be no marriage, and the Master could no more compel the servant to lie with a maid against his will, to get children for his masters profit, than to force his maid to play the whore for her masters advantage. It must be therefore presupposed, if the servant be willing to take a wife, as in some cases he might, either to mend his poor estate, or because he cannot live chastely all the time of his service, Tostat. quaest. 7.

QUEST. XVI. Whether such separation between the servant and his wife were lawful.

Vers. 4. THe wife and children shall be her masters, &c. 1. Some think that this was another cause of divorce and separation, sine libello repud • i, without a bill of divorcement: Cajeta •• : and do infer hereupon, that matrimonium in veteri lege non erat ratum, sicut nunc ; that matrimony was not so sure then as it is now, when it is impossible, if it be lawfully made, to be dissolved, Tostat. Contra. 1. This cannot be said to be any kind of divorce, because the marriage is not held to be lawful with aliens. 2. And marriage was then as firm by the first institution, Gen. 2. as now, saving that much was permitted them by Moses Law for the hardness of their heart, Matth. 19. 3. And marriage now may be dissolved for fornication, as our blessed Savior showeth, Matth. 19. therefore it is untrue, that it is impossible now for lawful matrimony to be dissolved. 2. Some excuse this kind of separation: because the word is not absolutely given unto the servant, but only permitted for a time, while he is in service: and that she was given but upon condition, that the children which should be borne should be his masters: Pelican. Lippoman. But it seemeth rather, by the words of the text, that the master in this case giveth his maid absolutely, without condition, to be wife unto his servant. 3. Some make this to be the reason of this separation: Ne injuria Domino inferretur: Lest wrong might be done unto the master, if for showing this favor to his servant, he should lose his maid, Gallas. But this doth not fully satisfy, that matrimony, if it were lawful, should be dissolved for the masters advantage. 4. Wherefore the best answer is, that such marriages with strange women was not pleasing unto God, neither was it lawful marriage: and therefore such separation was not unlawful: and by this means God would have the Hebrews terrified from matching with heathen women, Junius: as in Ezra his time the Israelites did put away their strange wives, having had, some of them, children by them, Ezra. 10.44.

QUEST. XVII. Why the servant was brought before the Judges, and what door he was set to.

Vers. 6. THen his master shall bring him to the Judges, and set him to the door, &c. 1. The servant refusing his liberty, either for the love of his wife and children, or else loving his own case, because he is well with his master, was to be brought before the Judges (called God's, because they are in God's place) both, caevendae frandis causa, to prevent all fraud and deceit, that masters at their own will should not prolong the time of their service: Simler. and that this being done publicly, others might be afraid of the like ignominy: Gallas. and to the end that the servant should make public profession, that he continued in his service willingly, Piscator. 2. By the door is not here understood the door of the Tabernacle, as Gregor. for the Tabernacle was not yet made, and the Judges did not use to sit there: nor the gate of the City, as Borrh. Genevens. for, not d • lath, but shaghar, signifieth the door of the City: Piscator. But he was brought to the door of his masters house, Deut. 15.17. where his ear was bored thorough by the appointment of the Judges, Iun. Cajetan.

Vers. 6. His master shall bore his ear thorough. 1. Some think this was done to set his ear to the post of the door to bore it thorough, in remembrance of the striking of the door posts with blood at the first institution of the Passover in Egypt: ex Tostat. qu. 8. But there is no sense for this. 2. Some do moralize it; that by boring the ear is signified, that one should not do good works for to hear the praise and commendation of men. But this is as far fetched as the other. 3. Tostatus thinketh the reason was: Debebat puniri in aure male audiente, &c. He was to be punished in his ill hearing ear, that the mulct may be proportionable to the fault, because he listened no better to his liberty, quaest. 8. 4. But generally the boring of the ear was a note of ignominy, and conspicuous: ut si non horrerent servit • tem, horrerent saltem ignominiam publicam: that if they were not afraid of servitude, at the least they should be afraid of such reproach and ignominy, Cajetan. And therefore he is brought to the door, ut multos habeas inspectores & testes, that he may have many witnesses and beholders: Rupertus. And in particular his ear is bored, not his face or forehead marked, as the Romans used to brand their fugitive servants: because they were a free people, God would not have such ignominious marks set upon them: Marbach. 2. And, Per •• ris terebrationem perpetuam sub domin • obedie • tiam, &c. By the boring of the ear he signifieth his perpetual obedience under his master: and by applying him to the door, is meant, that the servant should not go out at the door without his masters leave: Theodoret. 3. Fiebat perforatio tanquam detenti • servi ad do •• um illam: This boring and fastening of the ear to the door, signified the detention of the servant in that house, Cajetan. 4. And hereby is insinuated, perforata auris aeorum, quise Deo serv •• 〈…〉 the boring or opening of their ear, who do addict themselves to God's service, Borrh. as David saith, Psal. 40.6. Mine ears hast thou opened, or prepared.

QUEST. XVIII. Of the divers kinds of punishments used among the Israelites.

Vers. 6. HE shall serve him. There were six kinds of punishments used among the Israelites: 1. The first and greatest was the taking away of the life, which was in great offenses, as of murder, adultery, idolatry. 2. Then there was poena talionis, the punishment of equality or retalion, as when eye went for eye, tooth for tooth, verse. 24. and of this kind was the whipping of the body, Deut. 25.2. 3. There was poena damni, the punishment of loss and damage, as in theft they were to make restitution out of their own goods, Exod. 23.1. 4. There was poena ignominiae, the punishment of ignominy and shame: as his shoe was drawn off, and his face spit upon, that would not take his brothers wife, to raise up seed to his brother, Deut. 25. Tostat. qu. 8. Thom. and in this case the servants ear was bored thorough. 5. Poena servitutis, the punishment of servitude: which was inflicted in two cases, when as either a man not being able to make restitution, was sold for his theft, chap. 22.3. or, when the servant refused his freedom. 6. Unto this may be added, exile and the restraint of liberty; which the Law did not inflict in general, that any should be banished altogether out of the land, lest it might cause them to fall to idolatry: as David complaineth, 1 Sam. 26.19. They have cast me out this day from abiding in the inheritance of the Lord, saying, Go serve other gods. Yet there was aliquod particular exilium, a particular kind of exile, as when he that had killed a man, and not willfully or of hatred, was confined unto one of the Cities of refuge, Thom. 2.2. qu. 105. art. 2. ad. 10.

QUEST. XIX. What is meant here by Ever.

FOr ever. 1. Jerome observeth that this word 〈 in non-Latin alphabet 〉 gholam with vau, signifieth eternity, but without vau, as it is here, it is taken for the fiftieth year which was the Jubile: Jerome in Galata • , chap. 1. But this observation doth not always hold. Augustine saith, that is called here aeternum, forever, cujus temporis sinis non est, of which time there is no end: Locut. 91. Oleaster saith it signifieth tempus occultum, an hid time: for in that sense also the word is taken. Theodoret, that it signifieth tempus definitum, determinatum, a definite and determinate time: as the time of a man's life. But it is here rather taken for the year of Jubile, whether it were nearer or further off: for then all servants whatsoever were redeemed: Sic Lippom. Lyranus. Tostat. as Levite. 25.39. Iun.

QUEST. XX. When the servant was to go out free in the seventh year, when in the fiftieth year.

BUt there may seem to be some repugnancy between this Law, Exod. 21.2. of the servants going out free in the 7. year, and that Levite. 25.29. He shall serve thee unto the year of Jubilee. 1. The places are thus reconciled, that here he speaketh of the freedom of such servants in the seventh year which accept of their freedom: but there of such, which refuse to be made free, who shall serve forever, that is, to the year of Jubile. 2. Other cases likewise are put, when servants go not out free in the seventh year: as if either they be not Hebrews, for then they have no benefit by this Law, which is made for the privilege of Hebrews being servants. 3. Likewise if an Hebrew were sold not to an Hebrew, but to a stranger, he was not to be set free in the seventh year, but might be redeemed by any of his kindred, an estimation being made of the price, according to the nearness or farnesse of the year of Jubile, 〈◊〉 ▪ 25. Simler.

QUEST. XXI. Certain cases put when the year of Jubilee came before the year of remission.

ALso other cases may be put: 1. What if a man sell himself to serve five years before the year of Jubile, and in the mean time his master give him a wife, and he hath children by her, whether that he shall go out with his wife and children in the year of Jubile? The answer is, that he shall: for then in the year of remission he should go out alone without wife and children: yet the Jubile being a general remission of all kind of bonds and contracts, then he, his wife, children, and all, shall be set free. 2. Likewise, if the year of Jubile come before the year of remission, he that refusing to go out free, for love unto his wife and children, was to have his ear bored, shall not now have his ear bored: for that was but a sign of his perpetual service till the year of Jubile: which year being now come, he is released of the bond of servitude, and so freed also from his boring▪ which was a sign thereof, Tostat. quaest. 9.

QUEST. XXII. Whether it were lawful among the Israelites for the parents to sell their children.

Vers. 7. IF a man sell his daughter, &c. 1. It is not like, that simply it was lawful for the father to sell either son or daughter, as Gallasius thinketh, seeing that even the Heathen Emperors Dioclesian and Maximinian, provided by Law, that parents should not sell their children: therefore this was not properly a selling of them: Non datur pretium, ut serviat, sed principaliter ut ducatur: The price was not given that she should serve, but principally that she might be married, Tostat. qu. 9. 2. And this must be understood of maids not yet come to years, as R. Solomon thinketh, under twelve year old: both because afterward they were not in their fathers power, Borrh. as also, for that there was no danger to their chaste virginity, being sold before they were marriageable: but after there was, Tostat. quaest. 9. 3. There was difference between the selling of a maid by her father, for then she was to be handled otherwise than common servants: and when she sold her self: for in this case she was not to be free till the seventh year, as it was with other servants, Deut. 15.12. 4. Tostatus seemeth to be of opinion, that no women, whether virgins or widows (for wives were under their husbands power) could sell themselves, because they put their chastity in hazard when they were so sold into service, Tostat qu. 9. But this seemeth to be contrary to the letter of the Law, Deut. 15.12. any Hebrewesse might sell her self, as well as an Hebrew.

QUEST. XXIII. In what sense it is said, She shall not go out as other servants.

Vers. 7. SHe shall not go out at other men servants, &c. 1. Historia scholastica maketh this the sense: that she shall be dismissed by a bill of divorcement, and not go out as other maids, but as other free women were dismissed if her master had espoused her to himself, or his son: if not, she should go forth as other maids, that is, sine mercede, without any reward. Contra. 1. But in case that her master had taken her to wife, now she was free, and no longer as a servant: this Law then should have been impertinent, in speaking of her going out of service, but not as other servants. 2. And the latter part of this exposition doth contradict the text, inferring that she shall go out as other servants, whereas the Law saith otherwise, She shall not, &c.

2. Tostatus giveth this interpretation: By other maid servants he understandeth such maids as were of other nations, which were two ways set free, either being redeemed by money, or else if the master perished the eye or tooth of his maid, she should be set free for her eye or tooth, Exod. 21.26. But the case of Hebrew maids was divers, they should be set free without money: and if their eye or tooth were hurt, their master should pay eye for eye, tooth for tooth, verse. 24. as if the hurt had been done to other free men, or free women. Contra. 1. But it is evident, that this Law meaneth not by other servants those only of other nations, but such as were spoken of before, namely Hebrew servants, Iun. 2. And beside, it is not fit to run for the exposition of this difference to other places: this Law it self showeth afterward, wherein this privilege beyond other servants consisteth.

3. Augustine thus understandeth it: she shall not go out as other maids, for remunerabit eam, he shall reward her: so also Vatablus, because other servants did go out, nudi & sieve mercede, naked and without any reward. But Augustine here following the vulgar Latin, readeth ancillae, maids, whereas it is in the original, as other men servants. So also Rupertus : this is prescribed according to the president of their father Jacob, Qui non passus est illam, sicut ancillam, si • e dote exire: Which would not suffer his wife as a maid servant to go forth without a dowry. But this is not all.

3. Procopius referreth it to that which followeth, verse. 8. He shall not have power to sell her to • strange people. But it was not lawful to sell any other Hebrew servant to a strange people: therefore this had been no such privilege.

4. The most thus understand it: Vult potestatem habere redimendi se ante sexennium ; He would have them to have power to redeem themselves before the six years expired: which it was not lawful for other servants to do. So Lyranus. Marbach. Osiander. Borrhaius with others: this was part of the privilege, but not all.

5. But this privilege is more general, and containeth divers branches, as afterward followeth: for he was either to espouse her to himself, or to his son▪ or suffer her to be redeemed of her friends: if none of these, he was to provide her of three things, food, raiment, and dwelling, or else to let her go out free i in all these respects it is said, She shall not go out as other servants did, I • n. in Analys.

QUEST. XXIV. Whether it must be read betrothed or bethrothed not.

Vers. 8. IF she ple • se not her master, so that he betrotheth her not. There are divers interpretations made of this verse: 1. The Latin readeth, If she please not her master, cui tradita fuit, to whom she was delivered, that is, upon hope of marriage: so also Tostat. Borrh. Lyranus. But in the original there is the negative particle 〈 in non-Latin alphabet 〉 , lo: and therefore it cannot be read affirmatively. 2. Some think that the negative 〈 in non-Latin alphabet 〉 , lo, not, is here taken for 〈 in non-Latin alphabet 〉 , lo, to him: and that in fifteen places beside in the Old Testament, the adverb is taken for the pronoun, whereof this is one; and so they read thus: If she displease her master, who hath betrothed her to himself: So read the Chaldee and Septuag▪ so also Lippom. But beside that it is a forcing of the words, to take 〈 in non-Latin alphabet 〉 , for 〈 in non-Latin alphabet 〉 , the adverb for the pronoun: it is not like, that after a man had espoused unto him a wife, another should have liberty to redeem her. 3. Therefore the true reading is: So that he do not betroth her to himself: Vatabl. Iun. or, suffer her to be redeemed, that is, of her friends: yet he shall have no power to sell her to a strange people.

QUEST. XXV. How she was to be redeemed.

Vers. 8. OR cause her to be redeemed. 1. Tostatus giveth this sense, De • alteri qui cam emat: He shall give unto another money to redeem her, and so take her to his wife, qu. 9. But this is not like, that having paid for her before to have her service, he should give money again to be rid of her. 2. Vatablu • thus expoundeth, remittet illi pecuniam servitutis, &c. he shall release unto her the money, or price of her service, as though she had been redeemed with money. So also Oleaster. But this were an improper speech, He shall cause her to be redeemed, that is, let her go out free: the one seemeth to be contrary to the other: for they which went out free, needed not to be redeemed. 3. Wherefore the meaning is, he shall suffer her to be redeemed either by her self, Oleaster ; by her father, Osiander. or some of the next of kindred, Iun. or by him that intendeth to have her to his wife, Marbach. And she must be redeemed at a reasonable price, the years of her service which she hath served being considered: as if she were sold to serve six years for six pound, three of those years being past, she was to be redeemed at any time, before she had served the whole six years, for three pound, half the money, Lyranus. Galas.

QUEST. XXVI. Why it was not lawful to sell their maids to strangers.

Vers. 8. HE shall have no power to sell her to a strange people, &c. 1. Cajetan understandeth here, homini Hebra • alterius populi, she should not be sold over to an Hebrew of another people or place: because the Hebrew maids were not to be carried from City to City. But Oleaster giveth a good reason against this sense: Populus alterius urbis non videtur alius populus ab Israeli ; The people of another City seemed not to be another people from Israel. 2. Therefore the meaning is, that she should not be sold over to any other strange people of the Gentiles, for these reasons: 1. Because injury was done unto God, when as those whom he had chosen for his peculiar people, and were properly his servants, should become slaves to Idolaters, and so the name of God among the Heathen should be blasphemed. 2. There was wrong also offered unto the maid, which should be so sold: bo • h because her bondage should be perpetual, and not for a time, as it was among the Hebrews: beside, her chastity was like to be endangered among the Gentiles; and her self in great hazard to be corrupted in religion, and seduced to Idolatry, Tostat. quaest. 10. 3. And as it was not lawful to sell her unto any strange nation, so neither to any of the strange people which sojourned among the Israelites: because both such kind of service was more hard, and beside it continued longer: for like as the strangers which were servants to the Hebrews, were in harder case than the Hebrews servants, Levite. 25.46. for they were the Israelites possession and inheritance forever, and were not set free, neither in the seventh year of remission, nor in the year of Jubile: So the Hebrew servants, which served strangers, were in worse condition than those which served Hebrews: for an Hebrew serving an Hebrew, was set free in the seventh year; but if he served a stranger, he could not have his liberty till the year of Jubile, unless he were redeemed with money, Levite. 25.55. Tostatus. 4. The meaning then of the Law is this, that if the master did neither marry his maid himself, not his son, he should suffer her to be redeemed; but in no wise was he to sell her to any strange people, Marbach. Which is therefore especially forbidden, because the Gentiles buying servants for a perpetuity, would give more for them than the Hebrews would, whom they were to serve but six years: therefore it was needful that the covetousness of the Israelites should herein be restrained, Tostat. qu. 9.

QUEST. XXVII. What the meaning is of these words, He hath despised her.

SEeing he hath deceived her, or dealt perfidiously with her. 1. The Latin following the Septuagint readeth, Because he hath despised her, that is, deflowered her: so also Augustine expoundeth: humiliavit eam concumbendo cum ca, he hath humbled her in lying with her: quaest. 78. in Exod. and the Chaldee in the same sense reads, cum dominatus fuerit ejus, having ruled over her: so also Lippoman. Gal • s. But this sense cannot be admitted: for to what purpose should the maid be redeemed by her friends, if her master had deflowered her? it had been wrong enough to rob her of her virginity: and in this case the master should rather have paid money, to recompense the loss of her virginity, than to take money to redeem her: therefore Cajetan here well understandeth, that puella est incognita à Domino, the maid spoken of here is supposed not to have been known of her master. 2. Oleaster findeth out a new signification of the word; bagad, he would have to signify, to deal covertly, or to cover: whereof a garment is called beged, of covering the body, and so he expoundeth thus, quia oper • it eam, id est, maritum egit, because he hath covered her, that is, played the part of an husband toward her: for the use was for men to spread their garment over them, whom they intended to marry, as Booz did to Ruth, chap. 3. But beside this is an unwonted and insolent signification of the word bagad, which betokeneth properly, to deceive, beguile, deal fraudulently: this sense cannot be received, for the reason before alleged. 3. Osiander referreth this fraudulent dealing, to the not providing of things necessary for her, which afterward is prescribed, and so shifteth her off. Junius understandeth it of his selling of her to strangers, wherein he transgresseth against the Law. But it is better expounded of the masters deceiving of the maids hope, accipiebat eam sub spe ut faceret eam uxorem, he took her with hope to make her his wife, which he not performing, therein deceiveth her, Tostat. quast. 10. and B • rrhaius, Piscator.

QUEST. XXVIII. What kind of betrothing is here understood.

Vers. 9. IF he have betro • hed her to his son, he shall deal with her, &c. 1. The first case was put, if a man bought a maid servant, with intent to make her his own wife: now, here it is shown what is to be done, in case he take her for his son, Tostat. 2. Some understand this betrothing, of a promise only of marriage, not of any actual contract: as if the father should say, I will this maid to be my sons wife: and so notwithstanding such espousals, he might cast her off, and afterward take another, though he had deflowered her, Tostat. So also Oleaster pressing another sense of the word jaghad, which signifieth to appoint a time, will have it here to signify, the appointing of a time of espousals. But it seemeth, that such espousals are here spoken of, whereby the maid became his wife, because he was to endow her, as other virgins being free, had their dowry given them, chap. 22.16. 2. Cajetan picketh out another sense, that he shall give her her dowry, if she displease, and he purpose to send her away, because he hath taken away from her her virginity. But this is contrary to the text: for she is now espoused to his son, therefore she displeaseth not; neither is there here mention made of casting her out, but of endowing her, and making her the sons wife. 3. The meaning then is, ut ingenia puella nuptui detur, she shall be given in marriage, as if she were a free woman: her dowry being appointed her, and all other necessary things, Iun. And in this case he shall use her no otherwise, than if he had bestowed in marriage his own daughter, Osiander.

QUEST. XXIX. Whether it were lawful to take another wife to the former:

Vers. 10. IF he take him another. 1. Some understand if he take him another wife beside this, quamvi • 〈◊〉 uxor ei superinducatur, although another wife be brought in over and above, Gallas. Tostat. But if this first were now become the sons wife, she should be free by her marriage, and therefore that clause following should be superfluous, verse. 11. she shall go out free. And it is not like that the Law would allow the wife without any further solemnity to be dismissed: therefore all this is yet to be understood of her that was a servant, and not a wife. 2. Cajetan saith, Si acceperit aliam concubinam: If he take him another concubine, and keep this still. But the Law alloweth not any man to take a maid to be his concubine, as Lyranus noteth, though therein Tostatus find fault with him: for Deut. 23.17. it is said, There shall not be a whore of the daughters of Israel. Tostatus answereth, that this is to be understood of common harlots, not of concubines. But, if it had been lawful for one to keep a concubine, and then to turn her off, and so she become another's concubine, she was by this means little better than common. 3. Therefore the meaning is, if the father or the son (not the son only, as Vatab. ) take another wife, and not this, he shall provide sufficiently for her, Iun. If he refuse to espouse this unto his son▪ but take another, then he shall do as followeth: Osiander. 4. Some think further, that this is understood de ancill • • bjecta, of a maid rejected and cast out, Lyranus. Some, that he shall thus provide for her a certain time after she is married to another: Osiander. But it is evident, that this maid, to whom these things are to be performed, is to cohabit still in the house: ne ut cum abjecta exterave ancilla agito: he shall not dealt with her as with an abject or foreign maid, Iun.

QUEST. XXX. Of the true reading and meaning of the 10. verse.

Vers. 10. HE shall not diminish her food, her raymint and dwelling. Two of these words are diversely read: 1. The first word sheerah, some read expens •• , expenses, that is, necessaria ad vitam, necessary things for her life, that is, meat and drink: Tostat. Lyranus. Some read nuptias, shall provide a marriage for her, Latin. and so reads Augustine. But the word sheerah signifieth neither of these. Oleaster will have it here to signify, the remainder or residue▪ because the second wife or concubine had the relics or remainder of the principal wife. So shear is taken, 1 Sam. 16.11. There remaineth yet a little one: but there the word is (shear) here it is sheerah: therefore it is better translated, meat, food, or flesh▪ Iun. Vatab. Lippoman. Cajetan, following the Chaldee: so also read Montanus, Paguine, Osiander. 2. The other word, gonah, is more doubtful. Some read, pretium pud • e • tiae, he shall not diminish the price of her chastity: Latin. Scilicet ablata, that is, taken away from her: Gloss. interlinear. Lyranus. But the word gho • ah, signifieth no such thing. Some read horam, her time or hour: which some interpret, tempus nubendi, time of marriage: some the time of her service, He shall not diminish her wages for her service: Ex Lippoman • . Some, debitum conjugale, understand and it of the marriage debt: jus conjugale, the right of marriage, Cajetan: Vatab. Concubit • m, this lying with her, Chaldee: so also Augustine: Actum matrimonialem: The matrimonial act he shall not defraud her of: for they which had many wives, did not give unto everyone of them their time: as may appear in the story of 〈◊〉 and L • ah, who purchased of her sister to I • dge with her husband, for her sons Mandrakes, Genes. 30. But beside, that this were apparently to allow the use of concubines, which nowhere the Law of Moses doth, the word ghonah is not found in any such sense. But it rather signifieth cohabitation, or dwelling: for the word maghon, which cometh of the same root ghoa, is taken for an habitation or dwelling: so read Iun. Oleast. Montan •• . The meaning then is, that he shall allow her her food, raiment, and cohabitation or dwelling, because he hath dec • i • ed her of the hope and expectation of marriage. So the Septuagint read 〈 in non-Latin alphabet 〉 , by the which word Augustine understandeth 〈◊〉 ubi n • m ▪ lying with her: but it rather signifieth conversation: that is, he shall suffer her still to cohabite and converse in the house, not as his wife, or concubine, but now as a free maid, and no longer a servant.

QUEST. XXXI. What those three things are mentioned in the text.

Vers. 11. IF he do not these three, &c. 1. Some expound these three things to be these, if the master that bought the maid, will not take her for his wife, nor give her to wife to his son, nor yet retain her as his concubine: Ex Lyranus • . But this cannot be, for these reasons: 1. Because it would follow, that it was by the Law allowed to take a maid to be ones concubine, which was apparently a sin, and a transgression of the seventh Commandment, Thou shalt not commit adultery. 2. The sense and sentence should remain imperfect, it being not determined what should be done, if he refused to give her food, raiment, and dwelling: if this clause should be referred not to the three things spoken of immediately before, but to those other there given in instance, Tostat. quaest. 12. 2. Augustine supposeth these to be the three, if he neither marry her himself, nor his son, neither have deflowered her, then she shall go out free, quast. 78. in Exod. But there is no mention made at all before of deflowering her, but of 〈◊〉 her; therefore this cannot be any of the three. 3. The most do make these the three things: if he neither take her to wife for himself, nor for his son, nor yet suffer her to be redeemed. So Mac • ach, Borrh. Lyranus. Genevens. But this exposition cannot stand: 1. Because these three things mentioned, must be all performed, otherwise he must let her go out free: but these three were divers cases, and are propounded disjunctively; either the father to marry her, or the son, or to suffer her to go out free. 2. In this sense the text should imply a contradiction: for if these several cases before propounded, be these three things, whereof one is this, that if the father do not marry her himself, he shall suffer her to be redeemed, that is, for money: but here it is said, she shall go out free, paying nothing: so she should go out for money, and go out without money.

4. Wherefore the fittest sense is, and most agreeable, to refer this clause to the three things going next before: he shall not diminish her food, apparel and dwelling: Sic Tostat. Iun. Cajetan.

QUEST. XXXII. Whether maid servants were set free in the seventh year, and not sometime before, sometime after.

Vers. 11. SHe shall go out free paying no money. 1. She should be set at liberty, not only in the seventh year of remission, but before, si appareant in ea signa pubertatis, if the signs of her womanhood appeared, Lyranus. And the reason is, that if she stayed still in servitude, being apt for marriage, and neither her master, nor his son take her to wife, she might be in danger to be deflowered, or else lose the time of her marriage, passing over her virginity in service, Tostat. So that such maids might be made free before the year of freedom came. 2. But if the seventh year of redemption returned before the maid came to years of marriage, which the Hebrews do appoint at twelve, then could not the master yet show his liking or disliking of her: and therefore such young maidens were not made free, no not in the seventh year: for all this Law is grounded upon this supposition, If she please not her master, that is, if he purpose not to espouse her to himself, or to his son: but this pleasing or displeasing could not appear until the maid were ripe and fit for marriage: therefore in this case they expected rather the accomplishment of her ripe age, than the approaching of the seventh year, Tostat. qu. 13.

QUEST. XXXIII. The summary sense of this Law, concerning maid servants.

NOw concerning the meaning of this Law in general: 1. Cajetan thus resolveth the whole Law: this maid servant, that is sold by her father unto her master, is either incognita à Domini, unknown of her master, or known: if the first, then may he sell her, but not to any strange people: if she be known, and afterward displease, either her master casteth her off, and then he must give her a dowry, as if she were his daughter: or he purposeth to retain her still, as his concubine, then he shall provide for her, meat, cloth, and dwelling.

Contra. 1. There is no liberty given to the master to sell his maid servant to whom he will: but he must suffer her to be redeemed, which was to be done by the next of the kin. 2. When he had espoused 〈◊〉 to his son, it is not like that he would then cast her out of the house, and send her away with a dowry, but retain her still. 3. And if it should be lawful for him to keep her still as his concubine, then the Law should allow the use of concubines, which is nowhere to be found.

2. Tostatus and Lippoman agree with Cajetan in the first case of suffering the maid to be redeemed, admitting, that her master had not known her: and in the two other, of giving her to his son, and of taking another unto her: but herein they differ, that Cajetan in the second case of espousing her to his son, presupposeth an ejection and casting out of the maid espoused, and so endowing her, the other think she is retained still. Their error then is, in supposing that this maid is known of her master, because she must so liberally be provided for. But the reason thereof is, because she was sold upon hope of marriage: which hope because she is frustrate of, this provision must be made by way of recompense. But this maid is not like to have been abused: for then it had not been enough to let her go out free, but he should endow her also according to the Law, chap, 23.16.

3. Oleaster thus resolveth this text: This maid either her master had company with, or had not: if the first, either she displeased afterward, and then he was to redeem her, that is, to set her free: or she pleased, then the father either took her to wife, and so he was to use her as his wife; on his son, then he should use her as his daughter: or if he took another wife, he was to provide all necessary things for her. Now if her master had not known her, she was to serve him to the year of Jubile, unless she before redeemed her self.

Contra. Oleaster faileth here in these points: 1. He taketh redeeming for setting her free without money: whereas redemption of a servant was not without money. 2. If he had defiled her, he was not only to set her free, but to endow her, as before is shown. 3. If • he maid was to serve him to the year of Jubile, the maid servants should have less privilege than the Hebrew men servants, that were to serve but six years, whereas this Law intendeth them greater favor.

4. This then is the sum of the Law: A man buyeth a maid servant an Hebrewesse, he was either to suffer her friends to redeem her, or to marry her himself, or give her to his son: if none of these, he was either to keep her still, providing all things necessary for her: or to let her go out free for nothing, Iun.

QUEST. XXXIV. Of the end, scope and intent of this Law.

NOw concerning the end of this Law, it is to be considered: 1. That the father, which should either of any unnatural affection, or compelled by necessity sell his daughter, might by this means be punished, by losing all his right and interest in his daughter, who did now, being sold out of her fathers power, in familiam Domini transire, pass and was as incorporate into her masters family, Iun. And so the father should be as it were bridled hereby from selling of his daughter. 2. Beside, this Law imposing such hard conditions upon the master, in such liberal sort to provide for his servant so bought, thereby also provideth, ut aut non emerentur ancillae, that either maids should not be bought at all, though their fathers were so hard hearted to sell them, aut meliore conditione servirent, or they should serve with better condition, otherwise than as common servants, Osiander. Marbach. And so this Law taketh order, ut nunquam capite vacent, that maids should never be without an head, Iun. And so taketh care for them, as the weaker sex. 3. Further, in that the master was permitted to take his maid to his wife, though he had another before, 〈 in non-Latin alphabet 〉 , temporis licitum erat, that was lawful by the sufferance and toleration of those times, Pelarg. 4. Again, though it were simply unlawful for the parents to sell their children: sed ne progrediatur impietat ad intolerabilem iniquitatem, &c. but lest such impiety should proceed to intolerable iniquity and injury, this Law provideth for such as were oppressed, pro tanto, sed non in totum, though not wholly and totally, yet to keep them within some measure, Lippom. 5. But this Law was much more equal than that Law of the ancient Romans in the 12. Tables, which permitted fathers to sell their sons, not once, but again, and the third time, only he was excepted, which had married a wife with his fathers consent; which was afterward forbidden, C. de lib. & posth. or then that Law of Constantine, that one might sell his son for extreme need and poverty, though the son might afterward redeem himself: for the condition of children so sold was more tolerable among the Hebrews, their service being but for a time, Simler. This Law also is more reasonable than that constitution of Justinian, tit. 6. de manumission. that unless the maid servant were married within six months, ab hero non dimittebatur, she was not at all to be dismissed from her master, Pelarg.

QUEST. XXXV. What kind of smiting is here meant.

Vers. 12. HE that smiteth a man that he die. 1. Here percussio accipitur pro occisione, smiting is taken for killing, Lyranus. For if a man were smitten, and died not of it, there was another punishment than by death, verse. 19. Tostat. 2. Quamvis aliquo post tempore meriatur, &c. Although he die not presently, but some while after, that is so smitten, he shall suffer death for it, Galas. 3. The words are general: He that smiteth a man, whether he were an Hebrew or no Hebrew, his enemy or friend, ex re percussa intquitas percutientis manifestatur, the iniquity of the smiter appeareth by the thing that is smitten, Cajetan. 4. The Latin reads, he that smiteth a man, volens occidere, having a purpose to kill him, shall die. But two exceptions are taken to this reading: for if a man did smite one, non animo occidendi, sed animo percutiendi, not with a mind to kill him, but to smite him only, he should die for it, Cajetan. And again, if a man intended to kill, and did not, he was not to die for it: for although before God he be a murderer, that intendeth it in his heart: yet the Law of Moses doth not punish the intent only of murder, but the effect, Simler.

QUEST. XXXVI. Why the murderer was to die the death.

SHall die the death, &c. 1. That is, shall surely die, for this doubling of the word, importat majorem certitudinem, importeth greater certainty, Tostat. The Interlinearie gloss expoundeth, Morte spirituali, vel corporali, Death spiritual, or bodily: but I prefer the other sense. 2. This Law is set down in general, that whosoever smiteth, so that death follow, five intendat occidero sive non, whether he purposed to kill or not, should die for it: but afterward follow certain exceptions from this Law Oleaster. This then is a general Law, that he which killeth should be killed again, Lippom. 3. And this Law is grounded even upon the Law of nature: for like as it is agreeable to nature, Vt putridum membrum abscindatur, ut reliqua conserventur, that a rotten member should be cut off, that the rest be preserved, so a murderer is to be killed, ne plures occidentur, lest more should be killed, Lippom. This Law is given unto Noah, Genes. 9. when the world was restored and here it is but repeated and renewed, Pelarg. 4. The Laws of other nations herein consent with Moses : the Athenians did severely punish murder, expelling the murderer from the Temples of the gods, and from all society, and colloquy of men, till he had his judgment, Galas. And by the Law Cornelia among the Romans, he which had killed another with sword, or poison, or by false testimony lost his head, if he were of the better sort; if of meaner condition, he was hanged on the cross, or cast unto wild beasts, Simler. 5. And the reason of this severity was, because murderers deface the image of God in man, and they lay violent hands to take away his temporal life, for whom Christ died, to give him eternal, Marbach. 6. But it must be understood, that the murderer was to die by the hand of the Magistrate, it was not lawful for everyone to kill him, Iun. For the murder was first to be tried out by witnesses, which could not be done, but before the Judge, Simler.

QUEST. XXXVII. In what sense the Lord is said to offer a man into ones hand.

Vers. 13. IF a man hath not laid wait, but God hath offered, &c. Neither can a man take away the life of another, though he do willingly attempt it, unless God deliver him into his hands: yet this is the difference; that where a man intendeth not to kill, and yet killeth, illic tantùm Deus fecit, there God only did it: Hîc autem Deus, & homo propter voluntatem facientis, sed non fecit Deus, ut homo ; Here man and God do it, because of the will of him that did it, though God otherwise doth it than man. So Augustine quaest. 79. in Exod. 2. So God is said to offer or (as the Hebrew phrase is) to cause him to run upon his hand, when it is done, nolente & imprudente homine: man not willing nor minding it, Iun. And so this act seemeth to be casual, or accidental unto man; which are so called, non quia nullam causau • habent, not because they have no cause, for that is impossible, that anything should be done without a cause: but because, causarum confluentium ord • nobis est incognitus: the order of causes concurring, is unknown unto us, Tostat. 3. Although the cause appear not to us, why the Lord suffered him, that is so offered to ones hand, to be slain, yet we are not to doubt, but that it is most just: Ex causa occulta permisit interfici, &c. God suffered him to be slain upon some hid cause, Lyranus. occulta aequitate, by an hid equity: justo judicio paravit illum occidendum, he ordained him to be slain in his just judgment, Cajetan. Vel pro sceleribus, vel ad emendationem & purgationem malorum quae egerat; Either for his wickedness, or for the amendment, or purging of the evils which he had done, Tostat. quaest. 15. 4. Rupertus here giveth instance, how after this manner Saul was twice delivered into David's hand, in the cave, and when he took the spear and water pot from him: and further saith, that permissu legis poterat illum occidere, by the suffrance of the Law he might have killed him, and gone afterward to some of the Cities of refuge. But there is great difference between this offering of a man into ones hand, here spoken of, and that oblation of David's enemy unto his hand: for Moses speaketh here of such an unlooked for event, whereby one is slain: that opportunity offered to David was to try his patience, not to give him any warrant to kill: and if David had taken that opportunity to slay Saul, and had therein followed the carnal counsel of his servants, he had sinned in laying his hands upon the Lord's anointed: for if David's heart smote him for taking away a piece of Saul's garment, how would it have tormented him, if he had taken away his life? Neither were the Cities of refuge appointed for willful murders, such as this should have been, seeing that there was enmity before between Saul and David.

QUEST. XXXVIII. What places of refuge were appointed.

I Will appoint him a place to fly unto, &c. 1. This place during the sojourning of the Israelites in the desert, was the Tabernacle, as appeareth in the next verse, where mention is made of the Altar: but after they came into the land of Canaan, there were six Cities of refuge appointed, three beyond Jordan, and three of this side, Iun. 2. But yet it seemeth, that the Tabernacle afterward, and the Temple was still a place of refuge, as appeareth by Joab, who fled into the Temple, and took hold of the horns of the Altar, which notwithstanding could not privilege him.

QUEST. XXXIX. Why the Lord appointed places for such to fly unto.

NOw the reasons why the Lord appointed Cities of refuge, were these: 1. Lest that the innocent party might be slain by the friends of him whom he had killed, before his cause was heard; therefore he was appointed to fly to one of the Cities, that the manner of the slaughter might be there considered of by the Judges, Simler. 2. And to this end it was so appointed, that he might stay there to the death of the high Priest, Iun. who was a type of our blessed Savior, by whose precious death we are all set free. 3. And this was done, ut mentem corum hac ration medeatur, &c. to heal and allay the mind and fury of those which otherwise would delight in murder, Theodoret. For by his absence, and in continuance of time, the rage of those that sought his life would be qualified: and therefore God provideth, that they should not be still provoked by the continual fight of him. 4. And further, by this, that he which killeth one unwittingly, is appointed to fly, it is shown, quod reus poenae efficitur, that yet he is guilty of some punishment, Theodoret. So that involuntary killing was punished with a kind of banishment among the Israelites, Simler. So likewise among the Athenians such kind of manslaughter was censured, 〈 in non-Latin alphabet 〉 , with one years exile, Galas. And so among the Israelites, he that escaped unto one of the Cities of refuge, was not to go out of the limits and bounds of the City: if he did, it was lawful for the kinsmen of the man that was slain, to kill him, Simler.

QUEST. XL. What is to be counted willful murder.

Vers. 14. BVt if a man come praesumptuously, &c. 1. The word 〈◊〉 , signifieth to deal arrogantly, insolently, to be lift up with swelling pride: as Psal. 124.5. it is applied unto the swelling waves of the sea, Oleaster: and two things must concur in willful murder; it must be done wittingly and willingly: Hic non solum in •• ntio occidendi, sed mentis utra{que} pars; intellectus & voluntas describitur ; Here not only the intention of killing, but either part of the mind is understood, the understanding in doing it with guile, and the will in presuming, Cajetan. 2. Cajetan thinketh further that this is a divers law from the first general prohibition of killing, verse. 12. for here the law speaketh of killing a neighbor, or companion, there of any man; there no word is expressed of the intention, as here. Contra. 1. By neighbor, any man whosoever is understood. 2. And express mention is made here of the will and intention, because it is an explanation of the former law, Simler. 3. Junius thinketh, that not he only which killeth, sed qui conatus est occidere, but went about to kill, is comprehended in this law, as Deut. 19.19. Ye shall do unto him, as he had thought to do unto his brother. Contra. 1. It seemeth by the general law, verse. 12. that this constitution is only for murder committed, and not intended only: for such smiting the law speaketh of, whereupon death followeth. 2. That law given in instance, Deut. 19. is touching false witnesses, whose false testimony breaketh out into action, into false witness bearing: so that there is not an intention only: for the false witness by his false testimony acteth as much as in him lieth, to take away the life of his brother: that place therefore is impertinent to this purpose. I approve here rather the judgment of Cajetan: Nec describuntur haec intus in animo, sed prodeuntia extra in actiones: Neither are these things described only in the mind, but proceeding without into action.

QUEST. XLI. Of the difference between voluntary, and involuntarie murder, and the divers kinds of each.

HEre then there is a manifest distinction of involuntarie and voluntary murder or killing grounded upon the law of Moses· 1. Involuntarie killing is of two sorts: there are 〈 in non-Latin alphabet 〉 , chances, unlooked for and sudden events: as when one shooteth an arrow, and killeth one unawares: as Peleus killed his son being in hunting with him. There are beside these 〈 in non-Latin alphabet 〉 , errors and oversights: as the father beateth his child, purposing only to chastise him, and he dieth of that beating: a Physician ministereth physic to his patient, intending to cure him, and do him good, and he dieth of it, Borrh. 2. There are likewise two kinds of voluntary, or willful murder: ex proposito, of purpose, & ex impetu animi, in heat or rage. These kind of murders are called 〈 in non-Latin alphabet 〉 , iniquities: one may be slain ex proposito, purposely, either per insidias, by lying in wait, when one watcheth for the life of a man, and taketh him at advantage, as Joab killed Abner, and afterward Amasa, they suspecting no such thing: so Ishmael killed Gedoliah, Ierem. 41. Or else per industriam, when one of set purpose picketh quarrels, and seeketh occasions to provoke a man, that he may kill him: both these kinds are touched here, Tostat. quaest. 16. Then one may be killed in heat and rage, when there was no purpose before, as Alexander the Great killed Clitus, Pelarg. This kind, though not so grievous as the other, yet is a kind of voluntary killing. So there is extant a constitution of Hadrian the Emperor against him, qui per lasciviam causam mortis praebuisset, which was the cause of another's death through wantonness and riot, though there were no enmity before, that such an one should be banished five years, Simler

QUEST. XLII. Why the willful murderer was to be taken from the Altar.

Vers. 14. THou shalt take him from mine Altar. 1. This may be understood either of the Altar of incense, which was in the holy place, or of the Altar of burnt offering rather, which was without the Tabernacle in the Court, for thither everyone might easily flee, that had committed any such offense: but to the Ark no escape could be made, because there was no entrance thither. 2. R. Solomon saith, that this is meant even of the Priest that sacrificed at the Altar who after he had finished his service at the Altar, might be taken thence and judged by the law, as other malefactors and murderers. Which collection of his may be received, saving that it is not like they would suffer a murderous Priest to minister at the Altar. 3. But that other conceit of R. Solomon, whom Lyranus followeth, hath no good ground: that he that had killed an Hebrew willfully, might be taken from the Altar, as Joab was: but if he had only killed a Gentile, as a Moabite or Ammonite, though of set purpose, he was not to be taken thence, but was privileged by the Altar. But the contrary appeareth, that this law forbiddeth all voluntary and willful murder, whether of Hebrew or Gentile: for it was more to kill a Gentile being free, then a Gentile that was a servant or bondman: but the master was to die for it, if he beat his servant to death, so that he died under his hand, verse. 20. which law must be understood of strangers and aliens that were servants, not of Hebrews, for they were not to deal so cruelly with them, Levite. 25.38. Iun. much more therefore were they to die, if they of purpose killed any free stranger, Tostat. 4. If therefore the willful murder as well of strangers as Hebrews be here forbidden, then both for the one murder, and for the other, might they be taken even from the Altar. 5. And the reason thereof was this, because they which did flee to God's Altar, eum tanquam patronum & judicem innocentiae suae implorabani: did sue unto God, as the patron and Judge of their innocence: & therefore they therein abusing God's name, were to be expelled thence, Gallas.

QUEST. XLIII. What manner of smiting of parents is forbidden.

Vers. 15. HE that smiteth his father and mother, &c. 1. The very smiting of the father or mother deserveth death, although they die not of such smiting: Cajetan. Iun. as may appear verse. 12. where is directly expressed concerning the smiting of another, if he die, then the smiter shall be put to death, Piscator. 2. R. Solomon understandeth, that this is not meant of every smiting: but when upon the smiting • he effusion of blood followeth, or some scar or wound is caused. But the very smiting of either of the parents showeth the malice and disobedience of the child, for the which he is worthy to die: as Deut. 21.18. the son for his stubbornness and disobedience was to be stoned to death. Indeed for every blow or smiting the child was not to die, if it were done unwittingly, or unawares: but if it were done of purpose, he deserved death. 3. And the reason is, because of the authority of the parents, which is the next unto God, Simler. Deo & parentibus non possumus reddere aequalia, &c. We can never make amends unto God and our parents, Cajetan. As also they seem not to be worthy of life, which are injurious to those, by whom they received their life, Gallas.

QUEST. XLIV. Of the grievous sin of paricide.

THough there be no express mention here of those that kill their parents, yet it followeth necessarily, that if it be a sin worthy of death to smite them, much more to kill them. 1. This even among the Heathen was counted so heinous a sin, that they thought none so wicked, that would commit paricide, and therefore Solon that wise law-maker among the Athenians, maketh no mention of paricide, nor yet the Romans had any law against such: until the 642. year from the building of the City, which was the 100. year before the nativity of Christ, one Publicius Malcolus, with the help of his servants, killed his mother: against whom the City decreed this punishment, that he should be put into a sack, together with a Cock, an Ape, a Viper, and a Dog, and so cast into the water: Tostat. quaest. 17. The Egyptians caused such first to be beaten with thorns, and then to be burnt with thorns. The Macedonians did stone them to death: Pelarg. Plato lib. 9. de legibus, would have such grievously punished unto death, and then to be left unburied. 2. It is a like sin to kill the father, as to do it to the mother: yet the father is set before, as the more honorable person: and fewer examples are extant of those that have killed their fathers, than of the other. Oedipus is said unwittingly to have killed his father Laius King of Thebes, taking him for his enemy: But Orestes killed his mother Clite • nestra Agamemnons wife wittingly: so did Alcmeon his mother, being charged so to do by his father Amphiaraus, being slain in the Thebane war, to the which his wife persuaded him to go: and therefore being deadly wounded, he commanded his son to kill her. Ninia likewise the son of Ninus killed his mother Semiramis, after he had carnally known her. Such beastly examples of paricide Heathen histories afford, who not knowing God, were without natural affection, and disobedient to parents, which were the sins of the Heathen, Rom. 1.30. Some write, that Judas killed his father, and married his mother: Tostat. qu. 17. But it is not like, that if Judas had so apparently shown his wickedness before, that our blessed Savior would have chosen him to be one of his Apostles.

QUEST. XLV. The law of man-stealing expounded.

Vers. 16. HE that stealeth a man, and selleth him, or it be found with him, &c. 1. Some understand, if it be found with the buyer, that is, the man that is stolen be found sold over and delivered to the buyer, Oleaster. But then there should be a repetition of the same thing: for as much was said before, and selleth him: there cannot be a seller without a buyer. 2. Some do thus expound, if it be found, that is, proved by him that he hath stolen a man: So Lyranus. Tostat. Vatab Simler. and the Latin text expresseth the same sense, convictus noxae, if he be convicted of the offense. But this clause had been superfluous: for this must be understood in all laws, that the offense must be sufficiently proved before it be censured. Again in this sense the law should be imperfect, not determining what should become of him that had stolen a man only and not sold him: some say, restitution should be made by the like, he should give two men for one, or give the price of two men. But this is nowhere to be found: restitution indeed was to be made in the theft of other things, Exod. 22.1. but there was not the like reason for men. 3. Therefore the meaning is this, that if one steal a man, whether he have sold him and delivered him over, or if he be found with him, as yet unsold, in both cases he should suffer death, for his malice appeared evidently in the stealing only, that he intended to sell him over: Iun. Gallas. Osiander. So also Lippom. he was to be put to death, if the theft were yet found with him, propter crudelissimum institutum, for his cruel enterprise: how much more, si desperata fuerit venditi redemptio, if being sold he were past redemption? 4. By the ancient Roman laws, such men-stealers were condemned to the metal mines: by a latter law of Constantine, they were to be cast unto the wild beasts, Simler.

QUEST. XLVI. The reason why man-stealing was punished by death.

THe reasons why this kind of theft in stealing of men was so severely punished with death, were these: 1. Because man was created according to God's image, therefore in respect of the excellency and preeminence of the thing that was stolen, the punishment ought to be the greater. 2. Because by this means he that was sold lost his liberty, which is as precious as life it self: and to bring a man into servitude, quid aliud, quàm sexcentis eum mortibus objicere? what was it else, than to expose him to an hundred deaths? Gallas. 3. And beside, they could not steal men, and sell them to the Israelites, but it would be known, and therefore it is like, that after they had stolen them, they sold them over to the Gentiles: and so they were in danger, that were so sold over, to be corrupted in religion, and seduced to idolatry, and so drawn away from the service of God, and by this means be brought into bondage both in soul and body: Simler. The Interlinearie Gloss therefore thus expoundeth, diabolo obnoxium f • cerit, hath sold him, that is, brought him into the devils service. 4. Of this sin were Joseph's brethren guilty, in selling him over to the idolatrous Egyptians, who therein had a vain persuasion, that they were not guilty of his blood, because they spared his life: but in selling him over to be a slave, and that to an idolatrous people, as much as in them lay, eum e medio sustulerunt, they took him away as out of the world, Gallasius.

QUEST. XLVII. What kind of cursing of parents is here understood.

Vers. 17. HE that curseth his father or mother, &c. 1. There are two kinds of cursing; one, assumpto Dei nomine, when God's name is taken in vain withal: another, is without, Borrhaius. Lippoman thinketh, that this is understood of the first kind. But seeing the blaspheming of the name of God deserved death of it self, Levite. 24. and this law doth properly punish the cursing and blaspheming of the parents; it seemeth generally to be intended against all kind of cursing, and wi • hing evil unto the parents. 2. And it seemeth to be understood of an use and custom of cursing, not of every railing word, which sometime should be uttered by the child in rage and heat: for every such word to inflict death upon the child, would be thought too hard: sed ill, qui assuefactus est maledicere patri & maetri, &c. but he that is accustomed to curse his father and mother, and that for small matters, deserveth death: Tostat. as that law against disobedient children, Deut. 21.18. is made against those that are incorrigible, and are confirmed in their disobedience and stubbornness. So also Cajetan. As he that smiteth them, is worthy of death, so he that curseth: nisi imperfectio actus excuset, puta si non deliberato, aut leve verbum, &c. unless the imperfection of the act excuse, or he speak a light word of railing, &c. 3. And as cursing to the face of the parents is judged worthy of death: so also public backbiting and detracting: Publice enim detrahens perinde est, ac si palam detraheret: For he that openly backbiteth his parents, is as if he did it to their face: but it is otherwise in private backbiting and speaking evil of them: for detractor reveretur eum, cui detrahit, &c. the privy detractor doth fear and reverence him▪ whom he speaketh evil of: but he that curseth to the face, is impudent and shameless, &c.

QUEST. XLVIII. What manner of strife the law meaneth.

Vers. 18. WHen men strive together. 1. As contention is in words, so rixa, strife, properly is in deeds: cum ex rixa invicem se percutiunt, when striving they fall to blows, Thom. 2. The case is put of men: but if either a woman should strike a man, and wound him, or one woman should hurt another, they are subject to the same law: Tostat. qu. 19. 3. And this law must be understood of those which strive and fight one with another, each offending the other, not when one defendeth himself: one cannot offend another without mortal and grievous sin, but one may defend himself without sin: and yet notwithstanding he may sin, sometime more, sometime less in defending himself: if he only seek in his own defense, to repel the wrong that is offered, it is no sin: si cum animo vindictae & odii, &c. If with a mind of revenge and hatred he defend himself, he sinneth, either less, when he findeth his anger kindled, and his patience violated; or more, when he bindeth himself wholly to be revenged: Sic Thom. 2.2. qu. 41. art. 1. 4. By smiting with stone or fist, is understood all kind of assaulting one either afar off, with stone, arrow, dart, or such like; or near hand, as with sword, staff in the hand: Simler. or all kind of hurting, either with weapon, or instrument, or without, Tostat. 5. And the law meaneth such hurting, where no member was perished: for in that case, they were to give eye for eye, hand for hand, foot for foot, verse. 24. Simler.

QUEST. XLIX. What punishment the smiter had, if he which were smitten died.

Vers. 19. IF he rise again, &c. then shall he that smote him go quit. 1. That is, he shall be freed from the sentence of death, though he be not innocent before God, nor yet altogether free from all civil punishment: for in this case he is to allow his charges for his resting, and to pay for his healing. 2. But here the doubt is, what punishment he should have, that in striving so smote his brother, that he died of it. Cajetan thinketh, that in this case he should fly unto one of the Cities of refuge: Quia non ex intention, sed ex repentina rixa percussio facta est ; Because the blow or stroke was given not of purpose, but occasioned by a sudden brawl, &c. But if it had been so, as if death had followed upon such smiting, the smiter should go free, so neither, death not following, but some other hurt, that he is constrained to keep his bed, should he have been taxed so much as with the charges: if the taking away of the life in this case had not been punishable, much less any less hurt being not mortal. 3. Therefore I prefer here the judgment of Tostatus, that if he which was thus smitten in a fray or brawl, died, he that smote him was to die, whether he were Hebrew, that was so killed, or stranger, whether bond or free: for it was not lawful for them to kill a Gentile or stranger sojourning among them: and if a free man killed a free man, or a servant a free man, he was to die without all question: and if a free man killed another's servant, he was to die also: for if a master killed his own servant outright, he was punished by death, verse. 20. much more if he killed another's servant, Tostat. quast. 19. And that in this case, they which in strife killed one another, deserved to die, it is evident both by the general law before verse. 12. He that smiteth a man that he die, shall die the death: and by a necessary consequence here, If he rise again, that is smitten, and walk, he that smote him, shall go quit, that is, from the punishment of death: it followeth then, if he do not rise again, but die, that he shall not go quit.

QUEST. L. What should become of the smiter, if the other died after he walked upon his staff.

Vers. 19. ANd walk without upon his staff. But what if he die after he hath risen and walked upon his staff? 1. R. Solomon thinketh that the smiter was to be apprehended, and kept till he that was smitten were perfectly recovered: and if he did not, the other was to die: and by walking upon the staff, he saith is meant, the perfect recovery of his health, as Ezech. 4. the staff of bread is taken for the virtue and fullness of bread, by a metaphor. But though such metaphorical speeches are usual in the Prophets, yet in the setting down of laws, words must be taken in their literal sense, Tostat. 2. Therefore because the law saith, If he walk without or abroad upon his staff, the other shall go quit: the meaning is, though he lie down upon his bed again and afterward die, yet the other shall go qui • : and the reason is, because after he sitteth up and walketh, and seemeth to be past the danger, and falleth down again, Magis probable est, quod mortuus est • x negligentia, &c. It is more probable, that he died by his own negligence and carelessness in keeping of himself, or by some other occasion, than of the smiting, Lyranus. 3. But if he did not rise at all from his bed, and being risen, walked but a little about the house upon his staff, and come not abroad, and afterward died, then the other should not go quit, Tostat. qu. 20.

QUEST. LI. Of the equetie of this law, in bearing of the charges.

Vers. 19 HE shall bear his charges for his resting, and pay for his healing, &c. 1. That is, he shall pay all manner of charges, which he was put unto about his healing, as to the Physicians, and for the physic and medicines which he used, and for his diet, which upon this occasion was extraordinary, and so more chargeable, Tostat. qu. 22. Likewise he was to bear the charges of the ministers and keepers, that attended upon him during the time of his lying, Simler. 2. The intendment of this law is, that full recompense and satisfaction should be made for any damage or loss which happened unto another: and yet so, as that such recompense being made, the Lord would have one to forgive another, that charity should not be violated, nor any grudge or purpose of revenge remain, Oleaster. 3. This law was more equal & indifferent, than that law of the Romans contained in the 12. tables, that if any man did beat and batter another, he should pay 25. asses, that is, so many three farthings: which mulct being too easy, one Lucius Neratius, in a bravery used of purpose • o beat and buffet those with his fists whom he met, and caused his man presently to pay him the penalty of the law: whereupon the Pretors of Rome devised to impose a greater mulct and punishment for such assaults and batteries, G • ll. lib. 20. ex Calvin. Marbach.

QUEST. LII. Who should bear the charges▪ if a servant had done the hurt.

HE shall bear his charges. But what if one servant had beaten another, or a servant had smitten a free man, that he kept his • ed upon it? 1. In this case either the master of the servant was to bear the charges, or else he was to deliver his servant, and he was to serve or to be sold to make it good, if he had not of his own to make satisfaction; as the like order was taken for theft, Exod. 21.3. 2. But here is a further doubt; what if the servant that did the hurt were an Hebrew, who could not be sold over for more than six years, and it might so fall out, that there remained but one year until the seventh, being the year of remission, came, and so his service for so short a time could not make sufficient recompense? The answer is, that in this case the servant might be sold to serve six years more after the year of remission; as in the case of theft, if he had not wherewithal of his own to make satisfaction: but for longer than six years he could not be sold, nor more than once. But if the servant were a Gentile, he might be absolutely sold over, to serve a longer time. 3. Now if the charge would not come to the value or worth of six years service, in this case the servant was to serve no longer, than till his service would make sufficient amends: as if a man's service for six years were esteemed at six pounds, and the charges of healing arise to three, then the servant was to be sold over only to serve three years, which would countervail the charge, Tostat. quaest. 23.

QUEST. LIII. What servants this law meaneth, and what kind of chastisement is forbidden.

Vers. 20. IF a man smite his servant with a rod, &c. 1. This law is concerning such servants as were no Hebrews, for them they were not to use so hardly and cruelly, Levite. 25.38. neither could the Hebrew servant be said to be their money: for he was not absolutely sold, but only for a time, Tostat. 2. This case is propounded, if the master smite with a rod, or any other thing which is not likely to kill: but if he smite him with a sword, or casting of a stone, or such like, if the servant die, whether under the masters hand, or afterward, the master shall be surely punished, that is, shall die for it, because in smiting his servant with a deadly weapon, it appeareth that he intended to kill him, Simler. Tostat. quaest. 23. 3. And in case it be evident, that the servant die of that beating within a day or two, the master was likewise to be punished for it: but if, as the Hebrew phrase is, he stand a day or two after, that is, be whole and sound, that he may go about his business: Simler. Nam stare taunt • ndem valet, ac vigere omnibus integris membris ; For to stand is all one, as to be perfect and sound in all the parts and members; Calvin. then the master was free. So also expoundeth Procopius, Vbi ex vulnere vel verbere convaluerit servus, &c. Where the servant recovereth of the stripe or wound, though he afterward die, the master is held to be innocent: Likewise Thomas Aquin. Si • asio certa esset, lex poenam adhibuit, &c. If the hurt be certain and evident, the law appointeth a punishment for a maim, the loss of his service, verse. 26. for the death of the servant, the punishment of manslaughter: but where the hurt is uncertain, the law inflicteth no mulct: incertum enim erat, • trum ex percussione mortuus, &c. For it is uncertain, whether he died of the beating. 4. This law for servants was more equal than that cruel custom of the Romans, that give unto masters power over their servants life: as in Augustine's time, Vedius Polli • used to cast his servants that offended into the fish ponds; but afterward this cruel custom was mitigated: for Antoninus made a law, that he which killed his servant without cause, should die for it, as if he had slain another's servant, Galas. And Adrianus the Emperor banished one Vmbra a matron for five years, for handling her maids cruelly. Ex Simler. 5. But whereas this law giveth liberty to the master to beat his servants, though it were extremely, so that death followed not, we must consider, that this law requireth not an absolute perfection: Sed Deus se accommodavi • ad 〈◊〉 populi, &c. But God applieth himself to the rudeness of the people, tolerating many things among them for the hardness of their hearts, Galas.

QUEST. LIV. The meaning of this clause, For he is his money.

FOr he is his money. 1. That is, bought with his money: he seemeth to have punished himself sufficiently in the loss of his servant, Iun. 2. But if this reason were 〈…〉 way the 〈◊〉 to be punished, though his servant died under his hand, for he 〈◊〉 i • his money▪ 3. For answer to this objection, a servant is to be considered two ways, as he is a man, and as he is made apt and fit • o labor▪ the servant oweth not to his master his life, but his labor: therefore if the master take away the life of the servant directly, as if he die with beating under his hand, the master is to be punished for it, for as he loseth a servant, so the politic state is deprived of a man, and herein he doth wrong to the Commonwealth. But if the master indirectly procure his servants death▪ as in overcharging him with labor, in denying him competent food, in immode •• te correcting him, now the master is not guilty of his servants death: for now pu • i •• at eum tanquam possessionem suam, ut e •• en •• ret: he did punish him, as his possession and servant, to amend and correct him, not as a man: therefore the reason holdeth in this indirect kind of killing, He is his money, &c. and not in the other, Tostat. quaest. 23.

QUEST. LV. Whether this law mean the voluntary or involuntarie hurt done to a woman with child.

Vers. 22. ALso if men strive, and hurt a woman with child. 1. Some Hebrews think that this case here put, is of involuntarie hurts and killing: as a man striving against his will hurteth a woman with child, and she dieth; for this the man was not to die, in their opinion, but to redeem his life with a piece of money. Contra. But where any slaughter is committed altogether against ones will; as if a man shoot an arrow, and kill a woman with child, or she be behind him, and he knew it not, and he hurteth her with his heel that she die, in this case the man deserved no punishment at all, no not so much as a pecuniary mulct to be inflicted, which yet is appointed by this law, where death followeth not: therefore this law meaneth not any such act, which is altogether involuntarie, Tostat. quaest. 24. 2. Neither is this law to be understood of murder altogether voluntary: as if a man of purpose should smite a woman with child, and she die: for this was provided for before, what punishment should be laid upon him that committed willful murder. 3. This law therefore is made concerning such violent acts as were of a mixed kind, partly voluntary, partly involuntarie: as if a man striving with one, and seeing a woman with child within the danger, cared not whether she was hurt or no, Tostat. Or if striving with a man, he thrust him upon a woman with child, Galas. Or a woman coming to rescue her husband, receiveth hurt by the other that striveth, Lyranus. In this case, if death followed in the woman with child, the 〈…〉 to die fo • it. 4. And the reasons are these: 1. Because adfuit laedendi animu • , he that so striveth had a mind and intent to hurt, Simler. Consilii ratio habenda est, his counsel and intention must be considered, which was to assault the life of another, and by this occasion he killeth one whom he intended not to hurt▪ Junius. Piscator. 2. Again, Vxor una car • est cum vi • o, quem intend •• p • r • utere ; The wife is one flesh with her husband, whom he intended to smite, Lyranus. 3. And beside, instance is given of a woman with child, who neither could shift for her self, and a double danger is brought both upon her & her child which she went with: therefore in this case the law provideth, that such oversights should be severely punished, Tostat. q. 25.

QUEST. LVI. Whether the death of the infant be punished, as well as of the mother.

Vers. 22. ANd death follow not, &c. 1. Some think that this is to be understood only of the death of the woman, and not of the child, Osiander. That if the child died, and not the woman, he was only to pay a piece of money, not to lose his life for it: and their reason is, because he deserved not so great a punishment, that killed an infant in the womb, as he that did stay a perfect man, Oleaster ; who findeth fault with Cajetan, for understanding the law indifferently of the woman and her child. 2. But Cajetan • opinion is to be preferred: for like as it is a more heinous thing to kill a man in his own house, than in the way, so is it a prodigious thing to suffocate an infant in the mothers womb, qui nondum est in lucem editus, which is not yet brought forth into the light of this world, Calvin. And again; Foetus quamvis in utero inclusus, homo est ; The infant, though yet enclosed in the womb, is a man, Simler. And the child in the womb is yet a part of the person of the woman▪ so that if there be corruptio •• tius per • o • a▪ aut partis, a destruction of the whole person, or of a part, Iun. he that so hurteth a woman with child, in her own person, or her child's, is subject to this law.

QUEST. LVII. Whether this law extendeth it self to infants which miscarry, being not yet perfectly formed.

NOw it being agreed that this law as well comprehendeth the infant that perisheth, as the woman that beareth it: yet there remaineth a question, whether if the child in the womb be yet imperfect, and so not endued with sense and life, that in this case, though the woman die not, but only lose her birth, he that did the hurt is to suffer death. 1. Some hold the affirmative, that if any child whatsoever by this means miscarry, the offender is subject to this law: 〈…〉 prop •• qua est effectui▪ The i • fant being now formed is so near unto the effect, th •• is, the life, that who causeth the same to miscarry, may be said to have killed a man, Gallas. And therefore by the Civil law, he that of purpose procured the birth to miscarry, if he were a mean person, was condemned to the metal mines; if a noble person, to banishment.