Commentary on Genesis and Exodus

QUEST. I. Of the 〈…〉 .

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QUEST. II. Why five oxen are restored for one, and for a stolen sheep but four.

HE shall restore five oxen for an ox. 1. R. Solomon thinketh, that the cause of this difference, why an ox stealer restoreth five, a sheep stealer but four, i • , because he that stealeth a sheep taketh more pains in carrying it upon his shoulder, than he that driveth an ox before him. Contra. This is a frivolous reason: 1. It is untrue which he supposeth: for it is more labor to drive unruly oxen, than simple and quiet sheep. 2. And what if a thief steal many sheep? he cannot th • n carry them all upon his shoulder. 3. Seeing to steal (whether with labor or without) is a grievous sin before God, •• thing ought to be remitted for any labor that is bestowed in a sinful act. 4. If the more labor in st • aling doth mitigate the theft, then it should be a less theft to break open an house, and steal treasure, than to take a thing out of the yard: but the Law following determineth otherwise, that a thief breaking by night into an house might be killed. 2. The ordinary Gloss • giveth this reason; because an ox affordeth five commodities, it serveth for sacrifice, for tillage, for food, for milk, and the skin also is serviceable for divers uses: but the sheep is profitable only for four of these, for all but the second. Contra. 1. But seeing an ox is not only profitable for these five ends, but for twenty more, by this reason, twenty oxen should be paid for one. 2. Likewise other things, as gold and silver, are employed for divers uses, more than four or five: so then in the theft of these things also, more than four or five-fold should be restored, Tostat. qu. 2. 3. The Interlinearie Gloss draweth it to a spiritual sense, by five, understanding the five senses, and by four, the four humors of the body, all which must be afflicted by penance. But it is not use in Civil and positive Laws to leave the literal sense, and follow a mystical. 4. Lyranus taketh this to be the cause, (whom Thomas followeth) Quia bov • s difficiliùs custodiunt • r, qua • • ves: For that oxen are more easily stolen than sheep, because they are more hardly kept: and therefore the more easy theft is more severely punished. But this is not always so: for sometime it is an easier matter to steal many sheep, than one ox, and more easily may they be conveyed away, and hid out of the way. 5. But Cajetan hath here a conceit by himself, urging the signification of the word sheh, which he saith properly signifieth a lamb: to pay four sheep for one lamb, he taketh to be a greater proportion and punishment, than to pay five oxen for one: because they were more pro • e and ready to steal sheep than oxen. Contra. 1. But the word sheh, as Oleaster showeth, signifieth not only a lamb, but in general all the smaller cattle, as well sheep and goats, as lamb • and 〈◊〉 . 2. And beside the facility, easiness and readiness of theft, other things are to be respected: as the worth and price of the thing stolen, and the boldness and impudency of the thief.

6. Wherefore these reasons rather may be yielded: 1. Quia frequ • ntius furt • subtra • ebantur 〈◊〉 ▪ It might be that it was a more frequent and usual thing to steal oxen among the Hebrews than sheep's and therefore God would restrain the more usual theft by the greater punishment, Tostat. 2. In h • c dominium majus, & • adacia major ; In this theft of oxen the loss was greater to the owner, (when his exe was stolen) and the boldness of the thief greater. 〈…〉 esse: Such a thief as should steal oxen had need be bold and cunning▪ because such a theft cannot so easily be hid as of sheep. 3. Ab. Ezra also giveth this reason: because when a sheep is stolen, the owner loseth but his sheep: but in the other theft, 〈…〉 ▪ he loseth his ox, and the labor of his ox: this reason also is approved by Oleaster, 〈◊〉 , Gallas ••• . But Tostatus taketh this exception: that i • the loss of the oxeus labor • e accounted here in the restitution of five-fold, why should it not be respected as well, when the thing stolen is found with the thief, in which • ase he was to pay but twofold, qu. 2. The answer here is ready, because where the ox is found, though th •• e • e an intermission of his labor, yet there is hope of restitution again: so is there not here, the ox being killed or sold.

7. Josephus thinketh, that this Law extendeth it self also to other cattle in the fields, as to goats as well as sheep, though they be not here 〈◊〉 . But concerning the asse or horse, because they are not so easily stolen being kept in the house, Tostatus thinketh that the Law of twofold restitution took place, as in the stealing of household stuff, and other moveable goods. But it is more like, recording to the rule observed before in other Laws, that by one kind the rest are understood: and these two, the ox and sheep, are given • n • ssistance as the most usual and common beasts: unto which all other great and small cattle should be reduced, as afterward verse. 4. direct mention is made of the asse.

QUEST. III. Of the divers punishment of theft, and whether it may be capital.

NOw concerning the punishment of theft: 1. The licentious liberty of the Lacedemonians is much to be misliked, who punished not theft at all, because they thought it was a means to train and exercise their people in the practice of war, Gallas. for it being a Moral law, Thou shalt not steal, and so grounded upon the Law of nature, it ought not by any contrary custom to be discontinued. 2. Neither is that Law of Sol •• , which the Romans also inserted into their twelve Tables, to be altogether approved, a • •• ing opposite to Moses Law: for they punished manifest theft with four-fold, when the thief was taken in the manner, whereas Moses setteth it but at twofold: and theft not manifest, when the thief is not found with the thing that was stolen, they censured with restitution of twofold: whereas Moses chargeth such offense with four-fold; because such an one, as hath sold or killed the stolen good, hath added sin to sin, having no purpose of restitution, nor there being any possibility thereof. Herein therefore the Law of Moses is more equal than the other. 3. The Law also of Draco is too severe, which punished theft with death: the Scythians did so also, but they had some reason for it, because they had no houses or places of defense for their cattle, so that if theft among them had not been most severely punished, nothing could have been safe. 4. Nor yet am I of their opinion, that think that lex Mosis non pertinet ad politiam nostram, the Law of Moses doth not at all belong to the policy of Common-wealths now: Lippom. Non sumus alligati ad leges Iudaicas forenses: That we are not bound how to the Jews Civil laws (at all): Osiander. but that Magistrates may increase the external punishment, whether by death or otherwise, as the circumstance of time, quality and condition of the people require. Contra. 1. As we are not strictly tied in every point to Moses Judicials; so yet the equity thereof remaineth still, which chiefly consisteth in this, in the due measuring and weighing of the nature of sins, which are thought to be worthy of death. 2. Punishments external may be increased, which concerned either pecuniary mulcts, or other bodily chastisement, not touching the life: as Moses punished theft with four-fold, but afterward the sin increasing, it was set at seven-fold: Prov. 7.31. Pelarg. 3. But whereas man's life is only at God's disposition, this may be safely affirmed, that no human Law can take away the life of man for any offense, without either general or particular warrant and direction from God's Law, as is more at large before declared, p. 4, 5. 5. And yet I cannot consent to those that think no theft at all ought to be punished by death: for even by Moses Law, a violent theft, as in breaking up of an house, was judged worthy of death, it was lawful to kill such a thief, verse. 2. Again, sacrilegious theft was likewise punished in the same manner, as Jacob giveth sentence, that they should not live that had stolen Laban's gods, Gen. 31.32. So Achan was put to death for stealing the excommunicate thing, Josh. 7. Theft committed of wantonness, and without mercy, David adjudgeth unto death, 2 Sam. 12. verse. 6. Chrysostom thinketh, that David legem est praetergressus, exceeded the Law, in that he commandeth, beside the restitution of four-fold, the man to be slain: and he calleth it supereffluentem justitiam, overabounding justice. But the Law of God did bear out David in it: for he which did sin presumptuously, and with an high hand, that is, of malice and obstinacy, was to die for it, Numb. 15.30. Such was the sin of the rich man, whose case there is propounded, which having many sheep himself, took away the poor man's sheep by violence, and had no pity. Further, he that did steal a man, was to die for it by the Law of Moses, verse. 16. So that it is evident, even by Moses Judicial laws, that some kind of theft deserved death. By the Roman Laws also, as is extant in their 12. Tables, servants convicted of manifest theft were first beaten, and then cast down headlong from the rock. By the Imperial laws, a thief for the first offense was whipped, then if he offended again, he lost his ears, and the third time he was hanged: in Anithent. ut nulli Iudici, &c. for now such a thief sinneth of obstinacy and malice, and contempt against the Laws and Magistrate: and may by the Law of God be worthily put to death: Simler. So likewise such thefts, whereby the public peace and safety is violated, as in the Campe among soldiers, and robbing by the high way, where ones life is put in danger: All these kinds being more than simple thefts, may receive the sentence of death by Moses Law: and Magistrates herein may with a good conscience execute the rigor of the Law, upon such violent, outrageous, impudent, wanton and incorrigible thefts. But they are wisely to consider every circumstance, and the occasion that draweth one to steal, whether he do it of necessity to relieve his hungry soul, or of an evil custom and obstinate mind, to maintain his lewd and unthrifty life. In the first case it seemeth to be too sharp to take away ones life, unless he be such an one as will take no warning, but continueth hardened in his sin. And so for simple and single theft only (except it be in stealing of men) unless it be aggravated by other circumstances concurring, 〈◊〉 violence, rapine, obstinacy, custom in sin, and such like, neither the Law of Moses prescribeth punishment of death, nor yet is it practiced by our Laws, which in such cases intend favor, by allowing the privilege of the book. See before, p. 6.

QUEST. IV. Why the thief breaking up might be killed.

Vers. 6. IF a thief be found breaking up, &c. 1. R. Solomon thinketh, that this Law, which alloweth the thief found breaking up an house to be slain, is understood not only of thieves that break in by night, but by day also: and that clause which followeth, When the Sun riseth upon him, they interpret metaphorically, that if it be evident and manifest as the light, that the thief came not only to steal, but to kill, that whether by day or night he may be killed. So also the Chaldee Interpreter seemeth to follow the same sense: Si oculus testium vidit eum: If the eye of witnesses saw him: that is, if it were evident that he came not only as a thief, but to assault.

Contra. Though this be true, that a man might defend himself even by day against him that assaulted his life; yet this is not the meaning here: the words of the Law are literally, not metaphorically to be understood. 2. The reason of this difference between a night thief and a day thief, is, because in the night breaking in, it is not known, whether he came to steal only, or to murder: but in the day it may easily appear by his armor and weapons, Tostat. Simler. Beside, in the day he may call for help against the thief, which cannot be so well done in the night, when he is left without all other remedy, but his own defense, Galas. Marbach. And in the day he may have witnesses of his theft, and so convent him before the Magistrate, Lippom. 3. The Roman Laws allow not only to kill a night thief, but a day thief also, si se tell • defenderit, if he defend himself by a weapon: Moses Law much disagreeth not: for though he that cometh only as a thief in the day time, is not to be killed, but to make restitution only; yet if he come with weapons, as having a murderers intent, now he may be repelled by force, even as a night thief may, not now as a thief, but as one which cometh to assault and murder, Junius.

QUEST. V. How it is made lawful for a private man to kill a thief.

Vers. 2. ANd be smitten that he die, no blood shall be imputed. 1. Cajetan here observeth, that this Law simply alloweth not to kill the thief: but if a man smite him in his own defense, not intending to kill him, that in this case he shall be free: Percussio fuit intenta, mors autem per accidens sequnta, &c. He intended only to smite him, but death followed accidentally upon such smiting: so also Simler. Non probat, ut animo occidendi feriatur, This Law alloweth not, that he should be stricken with a mind to kill him: sed indulget affectui, &c. but it beareth with a man's sudden passion, if in defense of himself it so fall out, that he be killed. 2. But this Law seemeth not only to permit one to smite a night thief, but directly to kill him also, so it be not with a desire to kill him, where he may otherwise escape: but to defend him and his from violence: which he cannot do, unless the thief be killed, Borrh. 3. For seeing both the Law of nature and other Civil laws do allow a man to defend himself; now, when the Laws do arm a man, they seem publicam personam imponere, to impose upon him a public person, so that now he smiteth not as a private man, but by authority of the Law, and in this case he is tanquam minister & vindex Dei, as the minister and revenger of God: so that he do it not of a lust and raging desire to be revenged, but intending to use a lawful defense in the safeguard of his own life, Gallas. And the case is here all one, as if a man being set upon by the high way should kill him that maketh the assault upon him, Marbach.

QUEST. VI. After what manner the thief was to be sold.

Vers. 3. HE should be sold for his theft, &c. 1. So was also the Law among the Romans, that the debtor should be given up in bonds unto his creditor. Whereupon Cato was wont to say, Fures privates in nexu & compedibus vivere, publicos in aur • & purpura, &c. That private thieves lived in chains and fetters, but the public in gold and purple, &c. But this custom, because it seemed very hard, was abrogated by the Law of Arcadius and Honorius: Gallas. 2. But here it must be considered, whether the thief were an Hebrew or a stranger: if an Hebrew, how great soever the debt were for his theft, he could be but sold over for six years, for all Hebrew servants were to go out free the seventh. And as the theft was valued, so should he serve more years or fewer. But if he were a stranger, he might be sold over to serve all his life, if the value of the theft were great: if it were but small, he was but to be sold to serve so many years as might suffice to recompense the theft, Tostat.

QUEST. VII. Why the thief is only punished double, with whom the thing stolen is found.

Vers. 4. HE shall restore double. 1. That is, one beside that he stole, because that is found in his hand which is stolen, and so restored, Iun. And so must the five oxen be taken which the thief must make good, five with that which was stolen, Lippom. 2. Now the reasons why when the thing stolen is found, only double must be restored, and five or four-fold when it was killed or sold, are these: 1. Because he seemeth to be the more cunning thief, when the thing stolen cannot be found: 2. Adhuc difficilior ratio in investigando, and it is harder to find out the theft, and therefore he is worthy to be more punished, Simler. 3. Potest haberi aliqua praesumptio, quod vellet restituare ; There is some presumption that he would have restored it, having neither killed nor sold it, Lyranus. 4. Truculentior est, & majus damnum intulit, &c. He is more cruel, and bringeth greater loss to the owner that selleth or killeth it, than he that keepeth it.

3. Thomas further giveth these reasons, why a more grievous punishment is inflicted for some faults more than other: 1. Propter quantitatem peccati, For the greatness of the sin. 2. Propter peccati consuetudinem, &c. For the custom of sinning. 3. Propter multam delectationem, For the more delight in the sin. 4. Propter facile •• atem comm •• eindi, &c. For the more easy committing of sin. All which do concur in this case: for both he sinneth more that stealeth, and selleth or killeth: and it seemeth he is more expert and accustomed, and taketh greater delight, and useth more facility in his business.

QUEST. VIII. How a man is to make recompense of the best of his ground.

Vers. 5. IF a man hurt field or vineyard, &c. he shall recompense of the best, &c. 1. All kind of hurting another man's ground is here forbidden, as either with trampling of his cattle as he passed by, or feeding, Lyranus. And if this hurt be done unwittingly by the straying of the cattle without the owners privity, he is to make it good, how much more if he do it of purpose, or in craft? Gallas. 2. Some think he is to make good the loss by giving ground and all, to make his neighbor amends. But that need not, seeing he trespassed only in hurting the fruits of his neighbors ground: it is sufficient to make satisfaction in that wherein the wrong was done. 3. Neither, if the hurt were done in grass only, must the trespasser make recompense with the principal of his fruits, as corn, and such like, as Oleaster: but in the same kind it is sufficient to make restitution wherein the trespass was done. 4. Neither is the meaning, that if a man did a little hurt in his neighbors ground, that all the best of his ground should pay for it, but so much for so much, Tostat. qu. 4. 5. There was a Law among the Romans, that the beast, qua panperiem fecerat, which had done any damage to another, dederetur noxae, should be delivered over, to make good the hurt. But that must be understood, when the beast of it self without the masters fault did any hurt: but here it is either the masters willfulness or negligence, that his cattle spoil his neighbors vineyard, Gallas. 6. And as the Law is here concerning vineyards and fields, so it holdeth in the rest, as orchards, gardens, pastures, and the like, Lyranus.

QUEST. IX. Of the breaking out of fire, and the damages thereby.

Vers. 6. IF fire break out, &c. 1. This is meant of such kindling of fire, when praeter intentionem acce • dentis, &c. when any hurt cometh of it beside the intention of him that kindled it, Lyranus. For they which did of purpose set stackes of corn, or houses on fire, were worthy of greater punishment. By the Civil law, vel decapitatur, vel comburitur, vel bestiis subjicitur, he was beheaded, burned, or cast to the beasts, can. poenitent. 40. By the Canon law he was to be excommunicated, Caus. 23. qu. 8. cap. 32. or to want burial, if restitution were not made, ibid. cap. 33. and he was enjoined three years penance, can. poenitent. 40. 2. Such breaking out of fire then is here understood, when any made a fire in the field, as husbandmen use to do in August to burn up the stubble, to make their ground more fruitful, and some casualty happened, the fire being carried of the wind, or lighting upon some hedge, Tostat. Though no mention be made of the neighbors house and barns, yet under one kind the rest are understood, Marbach. 3. If it catch thorns. This Cajetan thinketh to be one of the damages which must be made good, if it catch the hedge or corn; but it rather showeth the means whereby the fire increaseth, and is dispersed by taking hold first of the hedge, and so finding combustible matter, goeth further. Some understand this to be meant of such thorns, as husbandmen use to set about their corn, to keep it from cattle, Oleaster. But it is better referred to the hedge where with the fields are sensed, Simler. 4. There are three things named which may receive hurt by the fire: either the corn reaped and gathered into shocks or stacks; or the standing corn not yet cut down; or the corn that is mowed or reaped, but yet not gathered together, which is meant by the field: which three the Septuagint express by these three words, 〈 in non-Latin alphabet 〉 : the corn floor, (where the corn is stacked as in barns) the ears of corn (standing) and the field: under corn also understand, hay, and trees, and such like, Lippoman. 5. Here then a man is punished for his negligence, because he kept the fire no better: as if he kindle a fire in a windy day, or in a place open to the wind, or near unto a wood or hedge where there is matter fit for the fire. Otherwise, if he used all diligence and foresight, and there fell out any casualty by any other accident, and not by his default: as if any hairy beast coming by chance do catch the fire, as a cat or dog; it seemeth that in this case he is not bound to make good the loss; for the fire did not break out now from him, Lyranus. Of this kind was that hurt which was done to the Philistines corn, when Sampson tied firebrands between the fox tails, which running among their corn set it on fire, Tostat. 6. Now this difference may be observed between this Law, which enjoineth full restitution to be made, and the former, where for the feeding of another's grounds, or otherwise hurting of it by cattle, only satisfaction is to be made out of the best of the others grounds, because where the fire setteth in, the whole is spoiled, but where beasts break in, that only is spoiled which they feed or trample upon, and therefore here amends is made only for part, there for the whole, Tostat.

QUEST. X. Why the keeper of things in trust is not to make good that which is lost.

Vers. 7. IF a man deliver his neighbor money or stuff to keep, &c. 1. The Law is this: that he which hath received another man's good of mere trust to keep, if it be lost, not through his fault, as if it be pilfred or stolen away, the keeper in trust is not to make it good: and the reason is, because he receiveth no profit by keeping, but did it of good will, and therefore there is no reason that he should be punished for his kindness, Simler. Hereunto agreeable is the Law of Alexander: Periculum depositi casu accidens penes deponentem est: The danger of a thing committed to ones trust, happening by chance, (as by robbery and stealing) resteth in the owner, not in the keeper. 2. If the thief that stole them be found, he in this case shall pay but double, because the things stolen are not oxen or sheep, for then the former Law was to take place of restoring five-fold or four-fold: but money or stuff, which only were to be restored double: and this was to be paid to the owner, not to the keeper, because he had no right in the thing, neither was to make it good being lost. 3. But here other considerations are supplied by human Laws: as whether that thing be only stolen which was committed to the keeper, and all the keepers things beside were safe: for here some fraud or default of his may be imagined: or whether the keeper did not first offer himself to keep the things delivered to him, or received not somewhat for the keeping, or kept them longer than the time appointed and agreed upon: for in all these cases the keeper is in fault, and was bound to make good the things committed unto him. But these circumstances needed not be inserted into the Law, because the Lord thought not good to encumber his people with such a multitude of Laws: and the Lord endued the Judges in those days with such an understanding heart, that having but the general principles and rules given them, they could apply and accommodate them to every particular action, Tostat.

QUEST. XI. How the fraud in the keeper of trust was to be found out and punished.

Vers. 8. IF the thief be not found. Now the rest of this Law showeth what course is to be taken, if the theft be not apparent: the keeper must be put to his oath: 1. In this case either the keeper himself might be the thief, and detain the things left with him, and then he was to be put to his oath, whether he had not used any fraud: if he refused to take his oath, he confessed himself guilty, and so was charged to restore the double, as followeth in the next verse. But if the owner could prove a fraud in the keeper first by witnesses, then he was not put to his oath: for this was to be done where other proof failed, Tostatus. 2. Now divers frauds might be committed by the keeper: 1. For he might either deny he had the thing, and so refuse to restore it: and by the Imperial laws, he that did so was condemned as infamous. 2. Or he might allege, that he had it, but the owner was indebted unto him in as much: but this would not serve his turn: for depositorius non debet objicere compensationem: the keeper could not object compensation of debt, and so be his own carver, as Justinian decreed. 3. The keeper might lend the thing committed unto him to another: ad solutionem nihilominus tenetur: yet by the Law he was bound to make it good. 4. He might also convert it to his own use, and this was adjudged to be plain theft: deposuum convertens in usus suos, furti tenetur: He that turneth the thing committed to him to his own use, is guilty of theft. 3. Or the owner might be the thief, in stealing away that which he had given another to keep. As C. Marius besieging the City Tolosse in France, received of the Governor of the City an hundred thousand pound weight of gold, which he sent to Ma • lilia to keep; then he with some other disguising their habit went and took it away. If the owner should either be accessory to the theft himself, or should accuse his neighbor falsely, he was to pay double unto him by the sentence of the Judge. Or if he produced false witnesses against the keeper in trust, they were to be condemned in the like, because the keeper should have been forced by their false testimony to pay double: and the Law was, that it should be done to the false witnesses, as they intended to have done to their neighbor, Deut. 19.19. 4. This Law of Moses of committing things to ones trust, was more equal than that among the Pisidians, which Stobaeus maketh mention of, serm. 42. by the which he which defrauded the trust reposed in him, was put to death: and then the contrary custom among the Indians, where no action at all lay against the depositorie, that is, him to whose keeping things were committed in trust, Pelarg.

QUEST. XII. What is to be done with things that are found.

Vers. 9. IN all manner of trespass, &c. 1. This is a general Law here inserted, not only of things put to ones keeping, but of other things also howsoever lost, or come to another's hand, Simler. Lippom. and it differeth from the former Law in these two things; because there mention is made only of dead goods, as of money or stuff committed to ones charge: this Law also speaketh of living creatures, as oxen, asses, sheep: that Law concerneth only things given to keep: this is beside as touching anything that is lost, which another challengeth to be his. 2. But where he saith, whom the Judges condemn, this is understood, whether depositorius convictus, the depository or keeper be convicted, or accusator temerarius, or the accuser be found rash and false: whether the one or the other, he was to pay double unto the party grieved, Iun. 3. And this must be interpreted according to the former Law, that in dead things they were to make recompense only of twofold: but in other living creatures of five-fold, or four-fold, if the thing stolen were killed or sold, otherwise but of twofold, Tostat. 4. By this Law it is evident, that not only things given in trust to keep, but also such as are lost and found by another, are to be restored: for this is a kind of theft before God, not to restore unto the owner that which one findeth: as Augustine well saith; Si quid invenisti & non reddisti, rapuisti: quantum potuesti, fecisti: quia plus non invenisti, ideo non plus rapuisti: If thou hast found anything, and not restored it, thou hast robbed: as much as thou couldest, thou diddest: because thou foundest no more, thou tookest no more: Deus cor interrogat, non manum, &c. God examineth thy heart, not thine hand, Hom. 50.

QUEST. XIII. How this Law of committing things to trust differeth from the former.

Vers. 10. IF a man deliver unto his neighbor to keep, &c. This Law is divers from the former: for there the keeper is not chargeable, if the thing given to keeping be stolen, but here he is to make it good, verse. 12. 1. Some make the reason of this difference to be this: Hoc de deposito vivo intelligendum est: This must be understood of a living thing, as an ox or sheep committed to one to keep: the other Law speaketh of dead things, as money or stuff: for the chief substance of the Israelites consisted of cattle: which therefore the Law intendeth should not be diminished or impaired, but made good to the owner. But concerning other goods, no such restitution was to be made, Gallas. Lippom. Contra. They are herein deceived, for the former general Law maketh mention of oxen, asses, sheep, and generally of whatsoever is lost, wherein any fraud may be committed. 2. Cajetan and Simlerus give this reason: because the other Law speaketh expressly of things stolen out of the keepers or depositories house, which the owner made choice of for the sure keeping of his goods: and therefore if they be stolen, it is upon his own peril, because he made no better choice of the place. Now living creatures are not committed to the safe keeping of the place, but to the keepers diligence and care, so that if they be stolen, it is through his default and negligence. To the same purpose also Calvin. But this reason giveth not satisfaction, because in the other Law, verse. 9. mention is made also of oxen, asses, sheep, and other living creatures. 3. This then is the difference, that the former Law speaketh of things committed freely to ones trust, without any consideration or reward, but here of such things which a man is waged or hired to keep: and therefore in this case he is to make good that which was stolen, and not in the other: Cujus ratio est, quia pro custodia habet mercedem: The reason is, because he had a reward for his keeping, Lyranus. Tostat. And this appeareth yet more evidently by Jacob's practice, Genes. 31.39. Laban required it of his hand, whether it were stolen by night or by day ; because he waged with Jacob to keep his sheep, Iun. Gallasius objecteth against this example; that Jacob there had boasted in vain, quod solus ista damna pertulisset, that he alone had borne these losses, if it had been an ordinary thing so to do. Contra. Jacob in that place to purge himself of all suspicion of fraud or negligence, allegeth two things; one, that whatsoever was torn, he brought it not to Laban, as the manner was, but made it good himself: and herein Jacob did more than he was bound to do: the other is concerning Laban's strictness, that required of him that which was stolen, wherein Laban did according to the common use; but yet his hard dealing appeared in exacting of his son in Law, as of a stranger.

QUEST. XIV. How the case of theft differeth from other casualties in matters of trust.

Vers. 10. IF it die, or be hurt, or taken away by enemies, &c. 1. In these cases the keeper was not to make restitution, as if it were stolen: the reason is, because these casualties could not by human diligence or foresight be prevented, as the other might, Simler. So Thomas: Depositivum poterat perdi dupliciter, ex causa inevitabili, &c. The thing committed to ones trust might be lost two ways, either by a cause inevitable, which could not be shunned or prevented: and the same either natural, as by disease and death; or external, as if it were taken of the enemy, or devoured of wild beasts: or the cause might be evitabilis, such as might be prevented, as in stealing. 2. But such casualty and death is here understood, as is not procured by the deceit and craft of the keeper: as if he defrauded the beast of his meat, or overwrought it, or if it became lame and broken by his smiting and abusing of it: for in these cases the keeper is to make good the loss: yea though he had nothing at all for the keeping, he was to make recompense, if any kind of way he had put his hand to his neighbors good, verse. 8. much more now, seeing he was waged for the keeping: and so here he is to take his oath, that he hath not put his hand to his neighbors good, that is, that none of these casualties did befall by his default. 3. And by these particular accidents, which cannot be prevented, other like unexpected and inevitable chances are understood. Casus fortuitus non imputatur depositorio: A case falling out by chance bindeth not the depositorie, or keeper in trust, though he have somewhat for the keeping: as if the house be burned, where he laid up another's goods, or the ship suffer wrack wherein such goods were embarked: unless one of these three, culpa, pactum, mora interciderit ; the keepers fault, some compact, or delay come between: for if the casualty fall out by the keepers default or negligence, or he have covenanted to make good what loss soever, or keep the goods longer in his hand than the owner agreed with him to keep them; in all these cases the keeper is bound to make satisfaction what chance soever happeneth, Tostat. quaest. 7.

QUEST. XV. Whether it were reasonable, that the matter should be put upon the parties oath.

Vers. 11. AN oath of the Lord, &c. 1. This kind of probation, to put a man to purge himself upon his oath, was used when no other witnesses could be produced, as it is added in the former verse, and no man saw it, that is, alius à custode, none beside the keeper, Oleaster : so that where other proof might be had, a man at the first should not be put upon his own purgation, Tostat. 2. Neither need it seem strange, that the controversy should be decided by the keepers oath: for no man will commit a thing to another in trust, unless he were first well persuaded of his honesty: Suo ergo praejudicio testatus est, eum esse virum bonum: He therefore testified by his fore-judgment of him in trusting him, that he is a good man, Calvin: and therefore it is no wrong unto him, to have the matter tried by his oath, whom he trusted. 3. Here we see the lawful use of an oath, to be an end of all controversy and strife, as the Apostle showeth, Heb. 6. when no other proof can be had, Tostat. 4. And it is called the oath of Jehovah, because they only are to swear by the name of God, Genevens.

QUEST. XVI. What was to be done if the thing kept in trust were devoured of some wild beast.

Vers. 13. IF it be torn in pieces, he shall bring it in record. 1. One way to testify, that it was torn of wild beasts, was to bring a part of the prey, recovered out of the ravenous beasts mouth, as shepherds sometime used to do, Amos 3.11. Iun. This sense is expressed by the Chaldee, He shall bring that which is torn for a testimony ; and the Septuagint, He shall bring it to his gate, that is, show it to the owner: And therefore Jacob herein approved his faithful service to Laban, that used not this liberty, to bring that unto him which was torn, but made it good himself, Gen. 31.29. Tostat. 2. Another way to prove it to have been torn with beasts, was to bring proof by witnesses, that saw the ravenous beast to carry away the prey: for this sentence hath relation to the former clause, verse. 10. If no man saw it: If then he can bring any that saw it done, though he could show no part, it sufficed, Lyranus. Tostat. 3. And a third way to prove it, where the other two fail, was by his own oath, as may be gathered, verse. 11. If no man did see it, 〈◊〉 oath of the Lord shall be between them, &c. Lyranus.

QUEST. XVII. Of the Law of borrowing and lending: when the thing lent is to be made good, when not.

Vers. 14. IF a man borrow ought of his neighbor. 1. Here the third case is put of lending and borrowing • the two former cases were of committing anything to one to keep, either without a reward, verse. 7, 8. or for some consideration, verse. 10, 11. Lyranus. 2. In the Law of lending and borrowing, more is required than in the other: for then the borrower receiveth a benefit, and therefore tenetur de levissima culpa, he is tied to make it good upon the least fault, Tostat. But when anything is committed to ones trust, the owner receiveth a benefit, and not the keeper. 3. This Law seemeth chiefly to be meant of such things as have life, which are lent, because it followeth, if it be hurt, or die: and of such other dead things, as may be used without the corruption or consumption of them, as garments, household-stuff, and such like: but all things which belong to meat and drink, are corrupted and changed in the use, as wine, bread, flesh, and cannot be restored again in the same substance: the lending of these things is called 〈◊〉 , the possession whereof is transferred to the borrower: the lending of the other is called co ••• dat •• , when not the possession, but the use only of the thing is granted to another, of which kind this Law must be understood, Tostat. qu. 8. 4. Now this case is put, that if the lender be present when his ox 〈◊〉 asse, or other beast decayeth, the borrower shall not make it good: for both he is an eye witness, that his beast was not abused by the user, and therefore decayed not by his default, Tostat. As also, present rei sua providere potuit, being present, he might have prevented the danger himself, if it were to be helped, Gallas. But if the owner be not by, the borrower shall make restitution; because careless men commonly use but hardly such things as they borrow in the absence of the owner, and therefore this Law meeteth with their unhonest dealing herein. 5. Beside, other cases are supplied by human Laws, when the borrower is not bound to make good the thing borrowed, as the Civil law is, Commodatorius non tenetur decas • fertuito, nisi se adstrinxerit, The borrower is not bound where a chance happeneth, unless he have bound himself. Unto which may be added, or unless it be by his own default, or he keep the thing borrowed longer than the time appointed, Tostat. quaest. 8. For the Law is, that if a man borrow a certain thing for a time, to use for some purpose, though the work be not finished, for the which he borrowed it, at that time which is set, it must notwithstanding be restored: commodatum ad tempus, &c. a thing lent for a time, as to make a woollen web for a year: Finito anno, licet non completo lanificio, restituitur: The year being ended, though the work be not finished, it must be restored. And as the borrower is tied to his time, so is the lender: if he lend anything, for a certain time, which the borrower useth for some business, the lender cannot require it before that time expired, because the borrower might thereby greatly be hindered in his business, Tostat.

QUEST. XVIII. Why such a strait Law is made for the borrower.

NOw though it might seem hard, that the borrower was bound to make good the thing borrowed, though not lost by his default, yet it pleased the Lord thus to ordain, that they might be as careful to keep their neighbors things as their own, that they might be the readier one to lend unto another for their necessity: this facility and readiness to lend is by divers Laws enjoined. 1. That they should be willing to lend, though the seventh year of remission approached, Deut. 15.9. 2. That they should take no pawn of their brother, for that which he borrowed, of such things as he lived by: as the upper and nether millstone, Deut. 24.6. And if they did, to restore it presently: As it followeth here, verse. 26. if they took a man's raiment to pledge, they should restore it before the sun set. 3. They were commanded, not to be too greedy in exacting that which was borrowed: as they were not to go into the house to fetch it, but to stand, and ask it at the door, Deut. 24.11, 12. 4. If the year of remission came before the borrower were able to repay that which he had borrowed, they were 〈◊〉 •• mit all, Deut. 15.2. Probabile enim erat • 〈◊〉 illi qui commede reddere posseut, aute septimum annum redderent, &c. For it was probable, that they which could conveniently restore the thing borrowed, would do it before the seventh year, and not of purpose defraud the creditor and lender. See Thomas. For this cause therefore that they might be more willing to lend one unto another, this Law requireth an exact care in the borrower, to preserve that which is lent, and to restore it: And so the Ci • ill law also is: Nemo commodatum retineat sub praetextu debiti, &c. That no man should keep back the thing lent, pretending debt.

QUEST. XIX. Why the hirer is not to make good the thing hired, as when it is borrowed.

Vers. 15. IF it be an hired thing, &c. 1. Some make this all one Law with the former, and take it to be a reason given, why the borrower is not to make good that which is lost in the presence of the owner, because it came, that is, was hired for his money: So Simler. Vatab. Lippom. Oleaster. 2. But I rather consent herein to Lyranus, Tostatus, Gallasius, Junius, that make this a divers Law from the former: that speaketh of lending freely, this of hiring and letting out for money: and therefore he that hireth a thing for his money, minus tenetur de custodia animalis, is less bound than the borrower, to the safe keeping of the thing so hired, Lyranus. And the reason is, because, locatio sit ad utilitatem locatoris, the letting out for money is for the profit of him that letteth, Tostat. So Cajetan expoundeth well, Abs{que} distinctione prasentiae vel absentiae Domini non tenebitur conductor ad solvendum animal casu confractum, &c. Here without any distinction of the presence or absence of the master, the hirer is not bound to make good the beast which is by chance hurt or dead, because it came for his hire. 3. Yet in this case also, tenebit • r de dolo, vel lata culpa, the hirer shall be bound, if he used deceit or were in a manifest fault; otherwise not, as, si fecisset animal illud nimis laborare, if he caused the beast which was borrowed to be over labored, Lyranus. But in the case of borrowing he is bound not only to make restitution where anything is lost by his fraud and willful default, sed tenetur de levissima culpa, but for every small fault, oversight or negligence, is he bound to make satisfaction, Tostat. qu. 8.

QUEST. XX. Whether the fornicator by this Law be sufficiently punished.

Vers. 16. IF a man entice a maid not betr • thed, &c. 1. This Law enjoining only unto the fornicator marriage with the virgin corrupted, if her father consent, may seem to be too easy and gentle. But here it must be considered, that in these civil Laws the punishment is not always answerable to the sin: for even the sin of fornication is one of those which without God's mercy excludeth out of the kingdom of heaven: but the intendment of this Law is, to bridle such inordinate lusts, and to restrain them, that they still increase not, Simler. 2. And beside, it must be considered, multa pro ruditate populit • lerare, that many things in that Common-wealth were tolerated, because of the rudeness of the people, Gallas. 3. Although the offender by this means do satisfy the political Law, in marrying the virgin by him corrupted, yet, coram Deo, &c. in the presence of God he is not cleared from this offense, in making amends by marriage, and giving her a dowry, Osiander. But repentance beside is necessary for the expiation of this sin. 4. The special scope of this Law is to provide for the virgin thus abused, that she being made by this means unapt for any marriage with another, should be taken to be his wife that had done her this wrong. 5. The like Law there was among the Athenians, that he which defiled a maid should take her to be his wife. But among the Romans, there was a more severe Law: that he which had committed fornication, if he were of good sort, should be punished in the loss of half his goods: if of base condition, he should be banished, Simler. 6. This Law is only concerning virgins not betrothed: for to lie with them which were espoused to another, was death by Moses Law, Deut. 22.23.

QUEST. XXI. Why the women committing fornication be not as well punished by the Law.

AGaine, this Law may seem to be defective, as in laying so easy a punishment upon the man, so imposing none at all upon the woman. 1. But the reasons thereof may be these: the woman might be enticed and deceived upon hope of marriage: and it was sufficient punishment unto her, the loss of her virginity: and beside, being under her fathers power, and so having nothing of her own, she could not be charged to pay any sum of money, as the man is, Simler. 2. Yet the high Priests daughter, if she played the whore in her fathers house, was to be burned, because she had dishonored her fathers house: Levite. 21.9. therefore she is to be excepted out of this Law, Tostat. quaest. 9. 3. The word patah, here used, signifieth to decline, or turn: so that whether he entice the maid, blanditiis, vel mendaciis, by fair promises, or by lying words: whether he promised her marriage or not, he is bound by this Law to take her to wife, Oleaster. 4. And as this Law is meant for the one party of virgins not betrothed, so is it intended on the other part, that he must be a single man that is by this Law enjoined to marry her, Iun. If he were married, it seemeth he was rather to endow her, than marry her; because the father would not willingly consent to give his daughter to one that was married already. 5. The word shacab, signifieth to lie, or sleep: non est peccatum dormire cum puella, it is no sin (saith Tostatus ) only to sleep with a maid, if no other thing be committed: though he follow the Latin text, reading, and sleep with her: it is better therefore to read, lie with her, Iun. Vatab.

QUEST. XXII. What kind of dowry this Law speaketh of.

HE shall endow her. There is difference between Dos, the dowry, and donati • propter nuptias, the marriage gift or jointure: this is not meant of the jointure which the man should make his wife, but of the dowry which the father used to give in marriage with his daughter, as may appear by these reasons: 1. The endowing of the wife is inflicted h • re as a punishment: the man for his fault is enjoined to do that which otherwise he was not bound to do: but the husband always bestowed upon his wife a marriage gift: therefore this Law meaneth, he shall bear also her dowry, which his wife should bring with her, or her friends give with her. 2. If it were understood of the jointure or marriage gift, it had been superfluous to say, he shall endow her, and take her to wife: for in taking her to wife, the husband was of ordinary course to bestow on her a marriage gift or jointure. 3. If he have her not to wife, her father not consenting, yet he was to pay her dowry, verse. 17. that is, not a jointure, or marriage gift, but that portion which her friends used to give with her, Tostat. qu. 9.

QUEST. XXIII. How this Law differeth from that, Deut. 22.29.

SOme make this Law all one with that, Deut. 22.29. where the man which defiled a maid, is enjoined to pay 50. shekels to her father, which R. Solomon thinketh to be the certain dowry of a virgin: and so they say, that there is duplex dos, una qua datur uxori, alia quae datur patri ; a double dowry, one which is given unto the wife, the other unto her father, Lyranus. Simler. Gallas. Lippom. But these two appear to be divers Laws: 1. This case is put when a man entiseth a maid, and she consenteth and is willing therewith: but there the Law speaketh of the violent taking of a maid, Iun. Tostat. 2. There the sum of 50. shekels is paid to the father for the wrong done unto his daughter, it is not given in the name of a dowry: for there could not be any certain rate or sum of money appointed for every maids dowry: some might give 1000. shekels with their daughter, others not thirty: therefore that sum of 50. shekels is not prescribed here; but it is said in general, He shall pay money according to the dowry of virgins, that is, according to their state and condition, as dowries used to be given with virgins and maids of like parentage, calling and birth, for a poor maid had not so great a dowry as one of noble stock and high degree. 3. The maid by violence first defiled, and then taken to wife, by that Law could never be put away, Deut. 22.30. but no such thing is mentioned here: he that taketh a maid to wife, whom with her own consent he before defiled, might according to the general liberty then permitted, Deut. 24.1. if there seemed unto him cause, after put her away: and the reason of this difference may be this: he that taketh a wife willingly, will not put her away without cause; but he that taketh her against his mind, never loved her, and so upon every occasion would be ready to send her away, whether there were cause or not, if he were not by Law restrained of his liberty, Tostat. qu. 10.

QUEST. XXIV. What was to be done if the fornicator were not sufficient to pay the dowry.

HE shall endow her, &c. But what if the man, which had committed this wrong to a maid, were not able to endow her, the question is, what course was then to be taken: 1. If he were a free man, and an Hebrew, he was to be sold as in the case of theft, verse. 3. and to serve so many years, as might raise this stock or dowry for the maid: but longer than for six years he could not be sold, for all Hebrews were to be set free in the seventh. 2. If he were a free Gentile, he might be sold for his life, or for so many years as sufficed to make up the dowry. 3. If he were an Hebrew servant, if his master refused to pay so much money as might serve for the dowry, then he was to deliver up his servant to be sold over for so many years as might recompense the dowry, before the year of remission came: and if the years which remained were not sufficient, he might be sold over again. 4. If he were a stranger or Gentile being a servant, then he might be set over to serve his whole life, Tostat. quaest. 12.

QUEST. XXV. What if the fornicator refused to take the maid to wife.

BUt yet further it will be inquired, what if the maids father would consent, and yet the party will neither take her, nor endow her? 1. By the Civil laws, if he be a noble person, he should be banished that had deflowered a virgin; if of base condition, he should be whipped: and if they ravished a maid against her will, in that case they were to suffer death. By the Canon laws, if one refused to marry her whom he had defiled, he was to be thoroughly whipped, and excommunicate, and enjoined penance till he had fully satisfied. 2. And though this be omitted in Moses Law, yet so much may be inferred and collected by the letter of the Law, that as he was necessarily to endow her (for the future of the Indicative mood, semper inducit dispositionem necessariam, doth always imply a necessary disposition) so he was of necessity to marry her: like as in another case of forcing a maid, he was to be compelled to take her to wife, and never to put her away, Deut. 22.30. Tostat. quaest. 11.

QUEST. XXVI. Whether this Law were general without any exception.

NOw although this Law be propounded generally, if a man entice a maid, he was to endow her and marry her; yet there were some exceptions to be made: 1. For whereas the Israelites were charged to take them wives out of their own tribe, Numb. 36. it is evident, that if the maid were of another tribe, then the man could not take her to wife: but because this case was very rare and unusual, seeing the tribes, after they were settled in Canaan, when these Laws were to take place, dwelt everyone apart by themselves, and so there was no fear of such unlawful intercourse and commixtion, between a man and maid of divers tribes: the Law therefore is silent in this point: for ad ea, qua raro accidunt, jura non adaptantur, laws are not applied to those cases which fall out seldom. 2. If he were a Gentile and a stranger of another religion, which committed this sin with a maid, neither could she in this case be given him to wife; because they were forbidden to make marriages with such, Deut. 7.3. And the Israelitish women were to match in their own tribe, and therefore not with strangers. 3. If an Hebrew servant had trespassed herein, neither could he have the maid to wife, whom he had abused: for he was first to endow her, which a servant could not do: for either he had fold himself into servitude, because he was poor, or was sold by the Magistrate, to make satisfaction for some offense which he had committed, and therefore being poor he had not wherewithal to endow her, and so could not take her to wife. 4. Beside, if it were the Priests daughter with whom he had wrought this folly, she could not become his wife, for she was in this case to be burned, Levite. 21. And the man likewise by equity of the same Law, being guilty of the same offense. 5. Yea if the high Priest himself had deflowered a maid, he could not take her to wife, because he was forbidden by the Law to marry any polluted, or an harlot, Levite. 21. verse. 14. 6. If also one had defiled a maid near of his kin, being within the degrees of marriage forbidden, they were both to suffer death for it, Levite. 20. and therefore could not marry together. This Law therefore being generally propounded, must yet be interpreted and expounded according to other Laws: for they must all be made to agree together, Tostat. qu. 12.

QUEST. XXVII. How far this positive Law against fornication doth bind Christians now.

ANd as this Law did not hold generally in the Old Testament, so neither is it now necessary, that whosoever hath committed fornication, should be compelled to marry the maid so abused: 1. For though it were admitted, that this Judicial and positive Law of Moses were in force still: yet some exceptions must needs be admitted: as if they are to near of kin: for no such marriage can be allowed within the limited degrees. As Saint Paul willed the young man, that had committed fornication with his fathers wife, to be excommunicate for that fact, 1 Cor. 5. he was not suffered to marry her. Again, if a Christian maid should commit fornication with an Infidel, with a Turk, Jew, or Heretike, in this case the rule of the Gospel will not allow marriage: for Christians must marry only in the Lord, 1 Cor. 7.39. therefore not with those which are blasphemers of God, and enemies to true religion: and the Apostle saith, Be not unequally yoked with Infidels, 2 Cor. 6.14. 2. But Tostatus bringeth in two other exceptions, as if the maid defiled be either a professed Nun, and so devoted to Monastical and single life; or the man entered into orders, unto the which the vow of single life is annexed: in neither of these cases can (saith he) marriage be admitted after fornication committed, Tostat. quaest. 12. Contra. But against both these exceptions I will oppose the holy judgment of the Apostle: and touching the first, I urge that Apostolical saying: It is better to marry, than to burn, 1 Cor. 7.9. If then Nuns are subject to this burning, as it appeareth they are by their secret fornications, the fruits of their burning lust, then according to the Apostles rule, it were better for them to marry. Concerning the second, I say with the Apostle, Marriage is honorable among all men, &c. Heb. 13.4. therefore it is no dishonor nor disparagement to holy Orders. 3. But the best answer is, that this politic Law of Moses doth not bind us now, otherwise than in respect of the general equity thereof, that fornication being a breach of the Moral law, should be severely punished: in every part and circumstance of the Law, it is not necessary now to be kept. For as by Moses Law, it was left in the power of the maids father, whether he thought it fit to give his daughter in marriage to the fornicator: so the Magistrate being the common father of the Common-wealth, may in his discretion determine when it is fit for such marriages to proceed, when otherwise, Simler.

QUEST. XXVIII. Why the Law requireth the consent of the father to such marriages.

Vers. 17. IF her father refuse, &c. 1. There is great reason that this power should be given unto the father, to choose an husband for his daughter: for many times it may so fall out, that the fornicator is such a lewd and ill disposed person, that his daughter were but cast away, to be bestowed upon such an one. And if the fornicator were necessarily to marry the maid so abused, many would make practice of it of purpose, by this means to get them rich wives, Gallas. 2. But because sometime, if it were wholly left unto the maids father, to give his daughter in marriage, or to take a portion of money for her dowry, some might ask unreasonable sums, therefore the Law defineth, that upon the refusal of the father the fornicator shall pay money according to the dowry of virgins, such as parents of that state and condition used to give with their daughters, Tostat. 3. And beside it must be understood, that the fathers refusal must be reasonable: Si officium piorum parentum praestant, &c. If they perform the office of good and godly parents. For what if he refuse to give his daughter, because he would match her into a bad stock, only respecting wealth, not religion and piety; in this case God is rather to be obeyed than man: and the duty to the first table to be preferred before the second, Borrhaius. 4. Confirmatur hac lege patria potestas in liberos, &c. The authority of the father is confirmed by this Law toward their children, in respect of their marriages, that they should not be contracted without their consent, Marbach.

QUEST. XXIX. Why next to the Law of fornication followeth the Law against witchcraft.

Vers. 18. THou shalt not suffer a witch to live, &c. 1. Some think that this precept is joined to the former, Quia sortilegia plerun{que}, fi •• t in his, quae pertinent ad actum carnis, &c. Because sorcery is often used in those things which belong to the carnal act, Lyranus. So also Cajetan: Et forte adjecta est lex ista stupro virginis, &c. It may be this Law is joined to the former of whoredom committed with a maid, to insinuate that sorcery is much used to set forward venery and unclean lust. 2. Tostatus maketh this the reason of this connection, that as most of the Laws in the former chapter concerned the ordring and directing, partis irascibilis, of the angry part of the mind: the Laws hitherto in this chapter, partis concupiscibilis, of the coveting part of the mind: now these following belong to the direction partis rationals, of the reasonable part of the mind, the judgment and understanding, that it should not be corrupted with evil arts, Tostat. qu. 12. 3. But the reason rather is, that as fornication of the body, immediately before touched, is odious before God and man, so much more is the spiritual fornication of the soul abominable, when any seduced by the devil into witchcraft, or any such devilish trade, do forsake God, and commit most gross idolatry, Simler. And so hereunto agreeable is that law which followeth in the next verse but one, verse. 20. that he should be slain, that offereth unto any gods, but to the Lord.

QUEST. XXX. What kind of witchcraft is here understood.

A Witch. 1. The word is niecashephah, which signifieth, as Oleaster out of R. Abraham, one that changeth anything before the sight: we call them Jugglers which deceive the sight, and cast a mist before the eyes. The right Latin word is praestigiatrix, Iun. Montanus, one which by legerdemaine deludeth the eyes. 2. But under this kind, by a Synecdoche, all other sorts of witchcraft, sorcery, inchauntment are forbidden: as Hydromantae, which use divination by water; Aeromanta, by the air; Pyromantae, by the fire; Capniomantae, by smoke; Alectriomantae, by the crowing of Cockes; Psycomanta, that consult with the souls of the dead; Alphitomanta, which divine by the inspection of flower; Icthuomantae, by fish; Libanomantae, by incense; Cheiromantae, by the hand; Necromantae, diviners by the dead; Gastromantae, which divine and give answers from within, out of their bellies: and all other of the same devilish profession. See hereof before. 3. Instance is given here of women, and the word is put also in the feminine, Quia illud genus maleficii crebriùs reperitur in foemina, Because that kind of sorcery is oftener found in women: Lippom. Quia procliviores sunt in hoc scelus ex infirmitate mulieres, Because women by the infirmity of their sex are more prone unto this mischief: and women are named, that no compassion should be shown, no not unto the weaker sex, if they be thus seduced, Iun. Nec minus hoc damnantur mares, quam foemina, Yet men witches are no less condemned here, than women, Gallasius.

QUEST. XXXI. Whether love may be procured by sorcery.

BUt because it is the opinion of some, as is before shown, qu. 29. that this law of witchcraft is annexed to the former law against fornication, because sorcery may be used to procure unlawful lust, it shall not be amiss somewhat to touch that point. 1. Virgil, a great practitioner in such feats, showeth in his 8. Eclog, how Daphnis was compelled to come by certain enchanted love verses, where he often repeateth this verse, Ducite ab urbe domum mea carmina, ducite Daphnin, My verses go, from city see: go bring ye Daphnis home to me. And Jerome in the life of Hilarion, as Tostatus citeth him, reporteth how a young man enamored with a virgin, by certain words and enchaunted figures put under the threshold where the maid was, drave her into such fits of raging love, that she tore her hair, and whetted her teeth, and often used to call the young man by his name: this maid thus tormented, her parents brought to Hilarion, who by his prayers healed her. 2. Now then this instigation unto love by sorcery, and diabolical subtlety, may be procured three ways: One is the ordinary means, whereby Satan by external objects useth to tempt men, thereby stirring and provoking their natural lust: as David was inflamed at the sight of fair Bathsheba: but here needeth no other sorcery or enchantment than the corrupt inclination of a man's own affection: the devil doth but offer the occasion, and show the object, he draweth not the affection: but the corruption of the heart of it self is ready to apprehend and lay hold of the object set before it. Another way there is, whereby the affection is stirred, as when the evil spirit entereth, and possesseth any with madness and frenzy for the time; not changing the understanding, or will, but troubling the vital spirits, and inflaming the blood, and so incensing unto lust. The third way is, when Satan entereth not to disquiet the body, and trouble the spirits, but externally offereth violence, transporting and carrying (by God's permission) bodies from place to place: which is no hard thing for Satan to do; and so he may bring one to the place where their lover is, Tostat. qu. 13.3. But here two things are to be considered: 1. That Satan directly cannot work upon the heart of any in the immediate change or alteration of their affections, but he doth it by means, either external, in moving by objects, or by internal provocation and stirring of carnal lust. 2. That he hath not the like power over the servants of God, which he exerciseth over carnal men which are his own vassals: he ruleth in the children of disobedience, as he listeth: as the Apostle saith, They are taken of him at his will, 2 Tim. 2.26. But the faithful do resist him by faith, 1 Pet. 5.9. So that his temptations cannot fasten upon them, to entangle them further than God shall see it good for the trial of their faith. This is made evident by that story of Iustina the Virgin whom Cyprian (then a dissolute young man, and given to Art Magicke, but afterward a most holy and constant Martyr) loved exceedingly: and when he was not able to prevail with her by any allurements, he called for the Devils help to bring her unto him, who by faith chased the evil spirit away, Ex Tostat. qu. 13.

QUEST. XXXII. Whether witches can indeed effect anything, and whether they are worthy to be punished by death.

NOw further by this sentence of the law, which adjudgeth witches worthy of death, they are found to be in error, which think that witchcraft is nothing but nudum phantasma, a very fantasy: that silly women imagine they do things, which indeed they do not, but in their own conceit and imagination. First, I will examine the objections which are made in the defense, or at the least the excuse of these wicked women, and in favor of them, for the mitigation of their punishment.

1. They say that this law is made de veneficis, of such as kill and destroy by secret poisons, and noisome herbs, it concerneth not witches.

Answ. 1. Indeed the Septuagint read, 〈 in non-Latin alphabet 〉 , and the Latin translateth, maleficos, workers of mischief: but they are both in error, for the Hebrew word, mecashephah, is put in the feminine, whereas they both interpret it by the masculine: And the word, mecashphim, is applied to those which work by evil spirits, and have confederacy with them, as Exod. 7.10. it is given to the Egyptian Sorcerers and Magicians. 2. The practice of poisoning belongeth to the sixth Commandment, Thou shalt not kill, whereas witchcraft here forbidden is a breach of the first Table, Simler.

2. These silly women can effect nothing: they imagine they do many things, but it is only in their own conceit.

Answ. 1. True it is, that they cannot effect what they would; for the Lord restraineth the power of the devil, by whom they work: as he did, when the Sorcerers attempted to bring forth lice, and could not, Exo. 8. 2. Yet it cannot be denied, but that they effect many strange things by the operation of the devil: as the Magicians of Egypt could turn their rods into the similitude of Serpents, and water into the likeness of blood: and the witch at Endor could cause the likeness of Samuel to appear, which was not in deed Samuel, but the devil taking upon him his shape. So it is no strange thing by the operation of Satan, when they take a man's garments, and beat them to cause the body of the man to feel the smart, Simler. 3. And if they did no hurt, and could effect nothing; why was this law ordained against them? God gave no superfluous or unnecessary laws to his people, nor without great reason. 4. Though they should effect nothing, yet their wicked desire and endeavor thereunto is worthy to be punished.

3. Witches many times do good, and heal men of their infirmities and diseases: therefore they deserve no such punishment.

Answ. 1. Indeed in the Civil law such a decree is extant, made by Constantine, Qui per incantationes intemperiem aeris & grandinis evertit, puniendus non est, &c. He which by enchantment turneth away the intemperate season of the air and weather, is not to be punished. But it is no marvel that such things were tolerated then, when they came newly from Gentilism, wherein such things were not only suffered, but honored and rewarded. 2. We have a more perfect rule out of the Scriptures, that no such unlawful means are to be used, no not to a good end, as to procure health, or such like: for this cause the Prophet reproved the King of Israel, having received hurt by a fall, because he sent to the god of Ekron for help. And to this purpose Augustine saith well, as he is cited in the Decrees, Si aliquando sanare videntur languidos, id Deipermissu sit, ut homines probentur ▪ &c. If they seem sometime to heal the diseased, it is done by God's permission, that men might be thereby proved, &c. And again he saith, Laque • sunt adversarii, mederi non possunt ; They are the deviles snares, they cannot heal.

4. Object. But the means which they use are wholesome, and medicinal, as herbs and ointments, and therefore herein they are not to be found fault with.

Answ. 1. For the most part they use such means, whereof no natural or apparent reason can be given, as to burn the thatch of the house, to cut off some part of the beast bewitched, and burn it, and such like. Concerning such things, Augustine giveth a good rule, Remedia & ligaturae qu • medicorum disciplina condemnat, non adhibenda, &c. Such remedies and ligatures which the skill of Physic condemneth, are not to be used. 2. He saith further, Ex tradition malorum angelorum sunt ; Such remedies had their beginning from the tradition of evil angels: therefore he concludeth, that Phylacteria sunt animarum vincula ; Such Phylacteries, things applied to, or hung about the neck or other parts, are but the snares of the soul. 3. If they do use herbs, and ointments, and such other outward means, it is but to color their devilish practice and enchantments, whereby they work, and not by the virtue or operation of such herbs: therefore it was well decreed in the Matiscane Council, as it is cited in the Decrees, Nec in collectionibus herbarum, quae medicinales sunt, observationes aliqua • licet attendere, &c. In the collection of herbs, which are of themselves medicinal, it is not lawful to use any other (superstitious) observations.

Now on the contrary it shall appear, that witches and other of that sort are worthy of punishment by death, and that they are not by any means to be tolerated in a Commonwealth.

1. They are manifest transgressors against the first Table, and every precept thereof: for they do combine themselves with Satan, and forsake their faith, and so make them other gods, beside the Lord: they also invent superstitious rites and ceremonies, images, figures and pictures, which the devil hath taught them to worship him by: and beside, they profane and abuse the holy name and titles of God in their superstitious invocations and enchantments. And they appoint certain holy days, solemnities, and assemblies among themselves, as the Lord hath appointed the Sabbath for his own worship. And thus they apparently violate every precept of the first Table.

2. They are also enemies to the Commonwealth, full of mischief, practicing their malice upon men and beasts: and therefore the Civil law, Propter magnitudinem scelerum maleficos appellate ; Because of the greatness of their mischievous practices, calleth them, Evil or Wicked doers. They are manifest murderers, assaulting the life of Christian people, where God permitteth, by all devilish means: and thus the second Table likewise is by them violated and perverted, Gallas.

3. They also are perverters of their children, and seducers of others, and so cause this mischief to spread further and to be transmitted over unto posterity.

4. Further, if divine and human laws condemn all filthy society and company with beasts; much more horrible and abominable is all confederacy and league made with devils and unclean spirits, Simler.

5. Thomas touching this error, that some should say, Quod maleficium nihil erat in mundo, &c. That witchcraft was nothing in the world, but in the opinion of men, addeth, Procedit haec opinio ex radice infidelitatis ; That this opinion proceedeth from the root of infidelity, because they do not believe that there are any devils, but only in the estimation of the people, &c. But we are taught by the Scriptures, that the Angels fell from heaven, and became devils, by whom witches and Sorcerers work.

6. And this is sufficient to convince these men of error, because the law of Moses judgeth the sin of witchcraft worthy of death: which they must 〈◊〉 •• cuse of 〈◊〉 , if witchcraft were so small an offense, and consisted but in opinion only. And the Imperial laws herein do concur also with the Divine law, which calleth, Ars 〈…〉 ; The Mathematical (it meaneth Magicall) science damnable: and it decreeth thus, 〈…〉 sunt, Soothsayers and Diviners are to be burned: Nec • rs ista dis • i, nec d • ce • t debet ; This art must neither be learned nor taught▪ yea by the Civil law, he which consulted with Soothsayers, 〈…〉 , shall be punished by the sword.

QUEST. XXXIII. Of the 〈◊〉 stone of 〈…〉 .

Vers. 19. WHosoever lieth with a beast 〈◊〉 Pr • opins and the 〈…〉 , do understand▪ this of a beastly▪ and bru •• sh man, with whom it is dangerous to converse, and by death, they understand here eternal death. But this were to 〈◊〉 these gross and unnatural sins which here are condemned, and these civil political laws are literally to be understood. 2. Therefore this law meeteth with that most unnatural and monstrous sin of more than beastly lust▪ 〈◊〉 this one kind also comprehending all other outrageous lusts 〈◊〉 against nature, as 〈◊〉 . 18.22. and 20.15. 〈◊〉 . 3. And there are two sins specially against nature; either when, non servitus 〈◊〉 speci •• , the due kind, is not kept, as when the filthy company of beasts is desired; Nature only having ordained the generation of mankind to be with man: the other is when, non servatur debit • s sermo, the due sex is not kept, as when man with man worketh • ilahinesse, which was the sin of Sodom, Thomas. 4. And these are the reasons why such wicked persons should be put to death without all mercy: 1. 〈◊〉 latur talibus fl • giri •• societ 〈◊〉 illa, qua cum Deo no •• s esse debet, &c. By such hainou • sins that society 〈◊〉 violated, which ought to be between us and God; seeing Nature it self, whereof God is the Author, is polluted with such perverse lusts, &c. 2. Such wicked and vile persons show themselves worse than bru •• beasts, qua coitu naturali contenta sunt ; which are content with natural copulation, Calvin: and go not out of their kind. 3. Serit semen ubi aut nihil n • scitur, 〈…〉 contrar •• m, &c. Such soweth seed, where either nothing at all is engendered, or a monster contrary to nature, Pelarg. 5. Not only the man or woman committing this filthiness, but the beast also wherewith it is perpetrated, was to be put to death, Levite. 20.15. both for the detestation of the fact, and l • st any other by th •• evil example should attempt to do the like with that beast, Lyranus.

QUEST. XXXIV. The reasons why m • n are given over to unnatural lust.

1. THis bestial sin may be committed two ways; either indirectly when one, not at the first intending any such filthy act, but being inflamed with lust, ad coitum simplic • ter, simply unto that carnal act, because it cannot be satisfied as he would, seeketh to have it satisfied howsoever: or else directly at the first there is a wicked inclination unto this bestiality. 2. Tostatus giveth three reasons of it▪ why some men are carried into these unnatural lusts: 1. Their vile corrupt nature, which is procured by the evil disposition of the country: as in Ethiopia and Libya, and toward the poles in the remote countries, monstrous shapes and forms are found, which are the fruits of such unnatural lusts. 2. Some grow bestial by frenzy and madness▪ and other distemperatures of the brain. 3. Some by an evil use and custom, as it seemeth the Sodomites even from their childhood were exercised in those acts of filthiness. As these reasons may be yielded, of the unnatural appetite of men which feed of raw flesh, yea of the flesh of men as brute beasts: so also of unnatural lust, Tostat. qu. 14.15.3. But a better reason may be given than all these: for these unnatural and beastly lusts are the traits of Idolatry and false worship▪ as here immediately it followeth, that they should not offer unto any other gods. And Saint Paul showeth, that the Gentiles after they had corrupted the true worship of God, were given over unto their own hearts desire▪ Rom. 1. as the Canaanites ha • ing not the true worship of God, defiled themselves with these abominations, for the which the Lord cast them out, Levite. 18.24. Simler.

QUEST. XXXV. What is meant by sacrificing to other gods.

〈…〉 hearing that the two tribes and an half beyond Jordan, had erected them an Altar, they assembled themselves together against them, as jealous, lest they purposed to bring in a new worship of God, Tostat. 5. And not only they which committed Idolatry themselves, but they which persuaded others, were to be put to death, Deut. 13.6, 7.

QUEST. XXXVI. Whether Idolatry now is to be punished by death.

Vers. 20. SHall be slain. 1. The word is charam, that simply signifieth, not to cut off, but to destroy, as an anathema, thing accursed, and bequeathed to destruction, Iun. Pelarg. 2. The Interlinearie Gloss, expoundeth it of excommunication, and of eternal death: but both the practice of those times, and the like punishment here • nflicted upon other capital crimes, showeth that it must be understood of the loss of the temporal life: though beside, without their great repentance, Idolaters deserve also everlasting death, Rev. 22.8. 3. Some object, that now Idolatry is not to be punished by death, but that such rather that are seduced, should be instructed in the true worship of God: and in the times of the Gospel, it is fit more clemency and mercy should be shown, than under the rigor of the law. Answ. 1. Though Idolaters are to be instructed to reform their error, for the salvation of their souls: yet this letteth not, but that for so great impiety, and for the example of others, they should worthily suffer the pains of death. 2. And now under the Gospel, seeing robbery against the common peace, and • reason against the life and safety of the Prince and State, are judged worthy of death: Qui majestatem Dei 〈◊〉 dissime violavit, tam leve facinus admisisse putabitur? shall he which violateth the Majesty of God most impiously, be thought to commit so small an offense? Gallas. 4. But although, as Osiander saith, the Magistrate, non gladio in idololatriam vindicare teneatur, be not now bound to take revenge of Idolatry by the sword: for some difference there is between Pagan idolatry, and Popish superstitious Imagerie; the one being an absolute denial of all Christianity, the other a mixing therewith of superstitious vanity; yet by the equity of this Judicial law, which serveth for the strengthening of a moral precept, the like sin of idolatry may justly receive the like punishment. As Cyprian, repeating that law, Deut. 13.12. Si audieris in una ex civitatibus ; &c. If thou hearest of any of the cities, &c. that are drawn away to serve other gods; that such a city should be destroyed; thus further inferreth; cujus praecepti memor Mattathias, which precept Mattathias remembering, killed him that approached to the idolatrous Altar to sacrifice, &c. Then he further addeth: Quod si ante adventum Christi, circa Deum colendum, et idola spernend • haec pracepta servata sunt, &c. Now if these precepts concerning the worship of God, and despising of Idols were kept before the coming of Christ; quanto magis post adventum Christi servanda sunt? How much more ought they to be kept after the coming of Christ? seeing he hath not only exhorted us in words but in deeds. Augustine likewise showing a difference between the schism of the Donatists, and Pagan idolatry, thus concludeth; Quis vestrum non laudat leges, &c. Which of you doth not commend the laws given by the Emperors, against the sacrifices of the Pagans? illius quippe impietatis capitale supplicium est, &c. for the punishment of that impiety is capital. 5. R. Solomon thinketh, that if a Jew did sweep an Idol Temple, velornaret, vel alia similia faceret, quae sunt praambula &c. or adorn it only, and do other things which are but preambles to Idolatry, he was not to be punished by death, but some other ways, Ex Lyrano. But if enticing in words to idolatry, were judged worthy of death, Deut. 17.5. much more to entice and draw by fact and example, as in adorning and beautifying the Temples of Idols.

QUEST. XXXVII. Why idolatry is judged worthy of death.

NOw the reasons why idolatry was held by Moses law to be worthy of death, were these: 1. Quia is cultus diabolo exhibetur qui idolorum author est ; Because that idolatrous worship is given unto the devil, who is the author of Idols, Gallas. 2. Aequum est vita privari eos, &c. It is just that they should be deprived of life, which forsake God, the author and fountain of life, Simler. To leave the worship of God who is the author of life, and to worship the devil, the author of death and destruction, mille mortibus &c▪ doth show himself to be worthy of a thousand deaths, Gallas. 3. Though every transgression of the law be in some sort a breach of God's covenant, yet idolatry more specially is said to be a transgression of the covenant of God, Deut. 17.2. Because men apparently and professedly thereby forsake the profession solemnly made of their service and obedience unto the Lord, Simler. 4. And this severe punishment the Lord appointeth for idolatry: quia inter Aegyptios idololatria assi • everant: because the Israelites had accustomed themselves unto idolatry among the Egyptians, in so much that they, Moses yet living▪ set up a golden calf to worship, Simler. 5. Because of the ready inclination and propension of man's nature unto idolatry, it was fit that it should by some severe punishment be restrained, Calvin. 6. And two things there are which do exaggerate the nature of a sin, and aggravate the punishment thereof: Res in quib • s committitur, & is in quos committitur, &c. The things wherein they are committed, and they against whom they are committed, Borrh. Both which concur here in the sin of apostasy and idolatry: For what matt •• can be of greater moment, than the service and worship of God, and what sin more grievous, than that which is committed against God?

QUEST. XXXVIII. Of kindness, how to be shown toward strangers, and why.

Vers. 21. THou shalt not do injury to a stranger. 1. There are two reason, why men are apt to do wrong unto strangers a both because they are not allied by affinity or consanguinity, and therefore no natural affection is commonly shown toward them: & because they are destitute of friends and patrons, and therefore lie more open to wrong, Tostatus. 2. The stranger must neither be injured in word, nor wronged in deed, Simler. Neither secretly by fraud, nor openly by violence: neither must they be hindered by any private man, nor publicly prejudiced by laws made against them, Tostat. And it is not enough not to do them wrong; but we must help them, and do them what good we can, Gallas. 3. And this reason is added, because they were strangers in Egypt, they did feel by experience what it was to use strangers hardly, that by their own experience, they might learn to have compassion on others, Simler. For the law of nature teacheth not to do that unto another, which we would not have offered to ourselves, Cajetan. They in Egypt would not have had the Egyptians to deal so hardly with them, and God punished the Egyptians for their sakes: let them take heed then by those judgments, which • ell upon the Egyptians, lest they be punished in like manner for afflicting strangers, Simler. 4. Other reasons beside may be added: as that strangers, as well as they, were created according to God's image, and they have the same common father: and let them remember the uncertainty of man's condition, Qua variis casibus est exposita, &c. which is exposed to divers chances: they do not know how soon they may be driven to sojourn in a strange country, Marbach. 5. The evil entreating of strangers, was odious even by the light of nature among the heathen: Plato affirmeth 〈 in non-Latin alphabet 〉 , that God is a revenger of wrongs and injuries done unto strangers: in so much, as those cities were famous, which were kind to strangers, as the Athenians, the Lucari Egineta: which were called 〈 in non-Latin alphabet 〉 , lovers of strangers. And they were noted of infamy, that used strangers hardly, as the Lacedemonians with others, Galass.

QUEST. XXXIX. Why widows and orphans are not to be oppressed.

Vers. 22. YEe shall not trouble any widow. 1. As the former law enjoined pity and commiseration to be shown toward strangers, that were in misery: so this provideth for such as are in misery, being not strangers, as Widows and orphans, Tostat. 2. And although none at all are to be wronged and afflicted, yet these especially must not be hurt, Quia defensorem non habent ; Because they have none to defend them, Chrysost. Car •• do patre, se • marito, &c. The one wanteth a father, the other an husband▪ Cajetan. 3. The Lord here threateneth that he will be revenged of such as oppress the widow and fatherless: and three punishments are threatened, they shall be smitten with the sword▪ and the other two are sequels hereof, their wives shall become widows, and their children fatherless, Tostat. 4. Which punishments are procured by these degrees: the widows and fatherless being oppressed, do cry unto God: for prayer made in time of affliction is most fervent: then though men regard not their tears, and prayers, yet God will, Pelican. And his anger will wax hot against them, because they oppress those whom God favoreth and loveth: as we use to be angry with those, which hurt either ourselves, or our friends whom we love, Borrh.

QUEST. XL. How and by what means prayers are made effectual.

Vers. 23. SO he call, and cry unto me, &c. Divers causes and occasions there are set forth in Scripture, which do procure the exaudition and hearing of our prayers: 1. When two consent together, and offer up their prayers with one accord, their voice is heard, Matth. 18.19. 2. Prayer made in faith is effectual, as the Apostle saith, The Prayer of Faith shall save the sick. 3. Continuance and perseverance in prayer is available, Luk. 11.8. Because of his importunity, he would arise, and give him as many as he needed. 4. Prayer joined with alms and deeds of charity is so much the more respected with God, Act. 10.4. Thy prayers and thy alms, are come up in remembrance before God. 5. Fasting joined with prayer maketh it more fervent, Matth. 17.21. This kind cannot go out, but by prayer and fasting. 6. And the greatness of affliction, Psal. 118.5. I called upon the Lord in trouble, and he heard me. As in this place, the Lord heareth the cry of the widows and fatherless, that call unto him, Lippom. ex collationibus Patrum. And here they cry, Non tantum sono vocis, quantum intention cordis, &c. Not so much by sound of voice, as in the intention and elevation of their hearts, Thomas.

QUEST. XLI. Why usury is called biting.

Vers. 25. THou shalt not oppress him with usury. The word nashach, whence is derived neshech, usury, signifieth to bite: usury then is called a biting: 1. Because as the biting of a Serpent, parum percipitur in principio, &c. is but little felt in the beginning, but afterward the whole body is inflamed upon that biting: So usury is not felt in the beginning, but at the last, devorat totam hominis substantiam, &c. It devoureth all a man's substance. So R. Salom. ex Lyranus. 2. Or because the usurer, tanquam hirud • •• nem succum & sanguinem exugit, &c. as an horse-leach sucketh out all the juice and blood, Galass. 3. Morsus serpentis non sinit dorm • re ; The biting of a serpent will not suffer one to sleep neither will usury suffer the man that is encumbered therewith, to be at rest, Simler. 4. And it may be so called, in respect of the greedy desire of usurers, which live upon the poor, and eat them up by usury: tanquam canis famelicus, alios mordendo, seipsum pascens, as an hungry dog, by biting and devouring others, feeding himself, Calvin. 5. Usury is called a biting, Quia lethaliter mo • det eos, qui ea gravantar, because it biteth and grip •• h those to death, which are oppressed with it.

QUEST. XLII. What usury is.

HEnce it is evident that usury is unlawful. But before the several points belonging to this question can be discussed, first we must see what usury is. 1. Plus ex mutu • velle, quam mutuatum sit, iniquum est. To desire more by lending, than was lent, is wicked, Cajetan. He then counteth that usury, when anything is received for loan, more than that which was lent. 2. Vsura est lucrum quo ••• nipe •• r, soli •• 〈…〉 causa; Usury is a gain, which is taken only for lending, Ursinus. Quicquid 〈…〉 ▪ What gain soever was given beside the principal: whereupon it is called in the Hebrew, turbith, that is, increase of the multiplying, Calvin. 3. After the same manner was usury defined in 〈…〉 as Carthag. 3. c. 16. Nullus clericorum amplius accipiat, quam cuiquam accomodavit, That 〈◊〉 of the Clergy should receive more than he hath lent, Augustine thus describeth an usurer, Si plus qu • m 〈◊〉 , expectas accipere foenerator es, If thou look to receive more than thou hast given, thou art an usurer: So also, Council. Lateranens. Usury is thus defined, Quando ex usurei, quae non germinat, nullo labor, nullo s •• pt • , nullo periculo lucrum conquiri studetur, &c. When by the use of a thing, which increaseth not, gain is sought without any labor, cost, or hazard.

QUEST. XLIII. Of divers kinds of usuries.

THere were divers kinds of usury: 1. As that which was called Vsura centesima, the usury of the hundredth part, quae aquiparatur sorti in anno, which did rise to be equal to the principal in one year. 2. Then there was, Dimidia centesimae, half of the hundredth part. 3. Terria centesimae, the third part of the hundredth, was, when the interest in one year came to the third part of the principal: as 12. being the principal, if it gained four. 4. Bessis centesimae, was, when the usury in the compass of a year▪ was two parts of the principal: as 8. to 12. 4. Vsurae semisses, were so called, when the interest was equal unto the stock in two years. 5. Then quarta centesimae, the fourth of the hundredth part, was, when in four years, the principal and the interest were even. 6. Vsura sescupla, was, when any did summam capitis, & dimidiam summae percipere take the stock or head again, and the half of it. 7. All these were singular and extraordinary kinds of interest. There was beside a common interest, which was more tolerable and easy: and there was a third called, conventuale, an interest upon agreement.

QUEST. XLIV. That usury is simply unlawful.

BVt that all these kinds of usury and interest with the like, were utterly unlawful, and not to be practiced among Christians, it shall appear by these reasons: 1. The Hebrews were forbidden to take any usury at all of their brethren; of the Gentiles they might: but now, diruta est mac • ries, the wall of partition is taken away, there is neither Jew nor Gentile, but all are one in Christ, Calvin. 2. Vsura ex suo genere nociva est, usury even of it self is hurtful, because it is called, neshech, biting, Cajetan. And the law of nature teacheth: that we should not do that to another, which we would not have offered to ourselves. 3. Usury was detestable among the Heathen, much more odious ought it to be among Christians: As Cato being asked what it was to play the usurer, answered, Idem, quod occidere ; All one, as to kill: and further he said, that in former time they used to punish a thief but in twofold, an usurer in four fold, Calvin. 4. Usury is against the first institution of money, pecunia inventa est, &c. money was invented and found out, that thereby things necessary for the maintenance of this life might be provided: but now it is perverted and abused to covetousness, that money may increase money, Borrh. 5. The Scripture absolutely condemneth usury, Psal. 15.5. He that giveth not his money to usury, shall dwell in the Lord's Tabernacle, and Ezech. 18. verse. 17. He that hath not received usury, nor increase, &c. the word tarbith, signifieth increase: by which words, all increase by usury and unlawful interest, seemeth to be forbidden. 6. Chrysostom saith, Vsurarius super omnes mercatores maledictus ; The usurer is accursed beyond all merchants and tradingmen. And he further useth this comparison, Like as when one sifteth wheat or any other grain in a sieve, all the grain by little and little slippeth thorough, and so, solum stercus remanet in cribr • , only the soil and dirt remaineth in the sieve: so of all the substance and ill gotten goods of usurers, nihil remanet praterpeccatum, nothing remaineth beside sin, &c. 7. If it be objected, that God permitted the Hebrews to take usury of the Gentiles, therefore it was not simply unlawful. To this it may be answered, that they were those seven nations of the Canaanites, of whom they might take usury, which nations they were commanded to destroy; and so by this means they might weaken their estate, and impoverish them: whereupon Ambrose inferreth, Ab hoc usuram exige, quem non sit crimen occidere, Exact usury of him, whom it is not unlawful to kill. And so Augustine also concludeth, Non minus crudelis, qui pauperem trucidat foenore, quam qui cripit diviti, &c. He is no less cruel, that slayeth a poor man by usury, than he which taketh it from a rich man by violence.

QUEST. XLV. Certain contracts found to be usury, not commonly so taken.

NOw there are certain contracts, which commonly are not taken for usury, where there is no accession or increase of anything above the stock and principal, and yet they are of the nature and kind of usury, or worse. 1. As a poor man wanting money, is constrained to take an horse, or cow, or some other commodity, at an unreasonable price, and selleth it again with loss, it may be for the one half: this is a biting usury, Simler. 2. Another case is this: one in time of harvest, buyeth corn at a certain price as for two pound, and selleth it again, for four or six pound: the Canons decree this to be turp • lucrum, filthy and unhonest gain. 3. Si dederis frumenti modium unum, & super aliquid exegeris, &c. If thou lendest a bushel of wheat, and exactest somewhat over again: it is by the Canons judged an unlawful kind of interest. 4. If any buy a commodity, as of cinamom, pepper, or such like, which is not worth above five pound at the time of the buying: Et promittunt per publicum instrumentum, se 6. libras soluturos, &c. And promise by some public instrument, to pay for the same six pound, usura peccatum incur • nt venditores, the sellers incur the sin of usury. 5. One having need of money, l • yeth his ground to pawn, and the lender taketh the profit of the ground for the use of his money▪ this is also usury: and therefore it was decreed thus in a certain Council, Fructus, qui capiuntur ex fundis, vel possessionibus 〈◊〉 dentur, in sortem sunt computandi. &c. The profits which are received out 〈…〉 , and possessions mortgaged, must be accounted as part of the principal. 6. Some usurers 〈◊〉 this sleight, they cause their debtors to acknowledge that they owe so much money, which is untrue 〈…〉 in sortem computari, &c. They cause the interest to be counted as part of the principal. As if one lend ten pounds upon interest, and make the borrower acknowledge by his deed, that he oweth unto him eleven pounds, counting the twenty shillings which cometh for the loan, part of the principal. 7. Another case is put, one selleth unto another, or bargaineth for a lease of his ground, and it being but worth forty shillings by the year, he covenanteth to pay three pound▪ this is counted usury: Si a •• uni cersus excedu val • rem fructuum, isto modo palliatur usura, &c. If the yearly rent exceed the value or worth of the fruits and profits, it is but a colouring of usury. 8. Qui pecunias dam, &c. They which give a peace of money to receive at a certain day twice so much in value of corn: Sub titulo venditionis exercent usuras, &c. Under the title of selling, they practice usury. 9. One buyeth a commodity of his poor neighbor that wanteth money, and giveth him but half the value, otherwise he will let him have no money: afterward he selleth it for double, Hujusmodi usurarios, nisi satisfactionem fecerint, &c. These usurers unless they make satisfaction, we decree not worthy to be admitted to Ecclesiastical burial. 10. Jerome also giveth another instance: in the country usury is enacted of wine, corn, oil: as in winter time one delivereth ten bushels, Vt in mess accipiat quindecim to receive fifteen in harvest: for usury may as well be of meat, and other things, as of money▪ Deut. 23.19. Hereupon in that great general Council, all usury was condemned of what kind soever 1▪ Ex ade • venti • ne aliqua, vel qualibet • odo negotium transigens ; He that by any slight or device, or by any means whatsoever, made any such transaction or bargain, is condemned.

QUEST. XLVI. Whether all increase by the loan of money be unlawful.

FVrther, as these kinds of contracts are of the nature of usury, though commonly they are not so taken: so likewise there may grow some increase and advantage in the use of money, and yet no usury committed. Here, then it must be considered, whether it be unlawful to receive any gain at all by the use and occupation of money. Where I find there are three opinions: 1. The Civil and Imperial laws do generally allow or tolerate all kind of usury, as is before shown, quest. 43. But the unlawfulness of usury is likewise declared before, quest. 44. 2. Contrariwise, the Canonists and Canon law do condemn all usury and interest whatsoever: Si quis affirmare praesumat exercere usuras non esse peccatum ▪ &c. If any man presume to affirm that it is no sin to practice usury, we decree him worthy to be punished as an Heretike. And herein the Canons consent, Vt ipsum quod dedit sine ullo augmento acciptat, &c. That what one hath given or lent, he should receive without any advantage or increase. Yea the Canons are so strict, that they allow not any advantage to be made of money by usury, to redeem the Christians therewith, that were in captivity among the Saracens. 3. But the mean between both may be most safely held: for as there may be certain contracts of usury, where there is no gain, or any increase above the principal, as before is manifested, qu. 45. 1. So, Non omne mutuum, quod accedit super sortem est usura, &c. Not every loan, which bringeth some gain above the stock, is to be counted usury. As it may appear in these particular cases.

1. Council. Lateranens. sub Leon. 10. sess. 10. This case was put, Demontibus pietatis, &c. Of the banks of money, which were erected by Christian Magistrates, only for the benefit of the poor, that they might there have money at their need; it was there decreed, that for the maintenance of the officers and Ministers of the bank, which attended that business, aliquid moderatum supra sortem salvatur, &c. that some small thing above the stock might be paid by those which made profit of the money there borrowed, to that end only for the maintenance of the officers. And all the whole Sinode consented, excepting only one Bishop, who alleged, that he had learned by experience▪ praefatos montes plus damnosos esse quam miles ; that the foresaid banks were more discommodious, than profitable. But notwithstanding his dissenting, the foresaid decree was confirmed.

2. Certain orphans have a stock left them, which will soon be spent, if they should live only of the stock: may not their tutor or guardian put out their money to them which may make some profit by the use thereof, Ad res necessarias pupillo subministrandas, to minister things necessary to the pupil and orphan? Gallas. Simler.

3. Eadem ratio exulum & peregrinorum est, &c. There is the like reason of exuls and strangers, which are not permitted to use any traffic in foreign parts, where they sojourn, and so can have no maintenance but by the use of their stocks, Simler.

4. A man borroweth money for a certain time, he maketh profit of the money, and payeth it not unto the Creditor at the time appointed, whereby he is much damnified: Nemo certe (ut arbitror) negabit usur accreditori solvendacorater sortem, vt p • rsetur ejus jactura, &c. I think surely no man will deny, but that some gain should come unto the Creditor above his principal, to recompense his loss, by not having his money in due time, Calvin. Hereunto the Civil laws give consent: Vsur • solvendae ex mora depositi ; Usury is to be paid for delay in matters committed to one of trust. Vsurae debentur ex pensione non solum ; Usury is due for a pension not paid. Vsura debent •• pro d • te ad diem non prastita, &c. Usury is due for a dowry not paid at the day.

5. Si quis diviti mercatori pec •••• lam suam utendam dedit, &c. If one put forth his money to use to a rich Merchant, may he not receive part of the gain, which the Merchant maketh by the use of his money? Gallasius.

6. A rich man is about a purchase, and borroweth a piece of money to go thorough with his bargain: he that lendeth the money, Au non poterit ex fundi reditu fructum aliquem percipere, &c. may he not receive some profit by the ground, until his principal be restored? Calvin.

These and divers such cases may be brought, wherein either the gain and usury is not unjust, or because the name of usury and interest is odious, it is indeed no usury at all; because in these contracts, frater non laditur, &c. our brother is not hurt or hindered, and so they are not against charity, Simler. And in all such transactions, where that rule is observed, Quod tibi non vis fieri, &c. That which you would not to be done to yourself, do not to another, there can be no oppression or injustice, Ursinus. p. 703. So that where a man in the loan of money offereth no other measure to his neighbor, than he would be content he should mete by unto him again, the rule of equality being observed, no great offense or inconvenience can ensue.

4. But that we may yet grow to a more certainty in this matter and question of the loan of money, there are four circumstances to be considered: 1. Who lendeth. 2. To whom. 3. For what. 4. In what manner.

1. He that lendeth his money upon usury, must not be such an one as maketh it his trade to live by letting of money: but such an one, as whose necessity in some sort compelleth him to take some advantage by his money for his necessary maintenance: as strangers, exiles, and orphans, as in the second and third cases before propounded; who either cannot, or know not how to employ their stocks: but they which have other means to maintain themselves by, as lands, rents, offices, have not the like warrant. And of all other trades, to be a professed Usurer, is most odious. And therefore the law here saith: Thou shalt not be an usurer, or exacter unto him: that is, as such an one which professeth himself to be a banker and usurer.

2. They to whom money may be lent upon usury, must not be of the poorer sort: for to such is simply forbidden to lend upon usury, verse. 25. To lend then unto the rich for some profit, is not against this precept. But here three kinds of persons are to be considered, to whom money is to be lent; some are so poor, that they are not able to render again that which they receive: some are rich and have no need, in regard of any necessity, to have anything given, or lent: some are between both, who are able in time to repay that which they lend, but yet upon some urgent occasion are driven to borrow: of these specially this law speaketh: that unto such as are constrained to take money for their necessity, as either to pay their rent, or to save the forfeiture of a bond, or to redeem a mortgage; to such we are bound to lend freely, without any recompense. To the first we ought to give rather than lend: Deut. 15.11. Because there shall be ever some poor in the land, therefore I command thee, saying, Thou shalt open thy hand to thy brother, to thy needy, and to thy poor in the land. Unto the third sort, namely the rich, we are not bound to lend freely, as unto the poorer sort: neither is this against the rule of our blessed Savior: Lend, looking for nothing again, Luke 6.35. For of the poor we should not expect anything, but lend freely: yea if their necessity be urgent, and our estate can bear it, the case may be such, as that we ought to forgive them the principal and all, Marbach. So then, of the first we must neither look for increase, nor principal, but give unto them of alms: of the second we may expect the principal, but not any interest: of the third we may receive both. And yet this properly is no usury, but rather a gratuity; that he which hath gained by another's money, should, to show his thankful mind, make him, which was the occasion thereof, a reasonable partaker of his gain: Gratitudo animi lege naturali mandatur ; This gratitude and thankfulness of mind is commanded even by the law of nature, Borrhaius.

3. The interest which is received must be moderate, not excessive: Ye shall not oppress him with usury: the word is neshech, biting: it must not be a biting, nipping, or devouring usury. The Imperial laws gave great liberty to take what usury soever was agreed upon, as before is shown, quest. 43. yea they allowed hemiola or sescupla, to take half so much as the principal: which are called sequialtera usura, usury to the half part: as for ten Bushels of corn to exact fifteen, as may appear by the law of Constantine. But this kind of usury is directly forbidden in the Nicene Council. So the laws of this land do moderate excessive usury: to take above two shillings in the pound, and ten in the hundredth, is a forfeiture both of the principal and interest.

4. This consideration given for the loan of money, must not be ex pacto, it must not be agreed upon by any certain compact and covenant: as the words here are, lotesimur, non imponetis ei: you shall not impose, or lay upon him usury. As it is not lawful to covenant with a man certainly to pay so much; he may lose by using the money, he may be in hazard also of the principal: for the lender then to receive a certain gain, where the borrower is a certain loser, were not just. Such indifferency must be used, as that the borrower be contented, as to be made partaker of the gain, that cometh by his money, so also proportionably to bear part of the loss. These former rules observed, and circumstances considered, I see not why all receiving of increase by the use of money should be condemned. And herein I mislike not Calvin's conclusion: Vnde sequitur usuras hodie non esse illicitas, nisi quatenus cum aquitate & fraterna conjunctione pugnant ; Whence it followeth, that usury now is not unlawful, but as it impugneth equity and brotherly conjunction and society. Likewise Gallasius: Quare non vid •• , quare omne pecunia em • lumentum sive usuram sine ulla exceptione damnemus ; Wherefore I see not wherefore we should condemn all profit or usury of money without all exception. Simlerus to the same effect: Comr • ctus, ubi fr •• r non l • ditur per mutuum, charitati non repugnat ; Such contract, where the brother is not hurt by lending▪ is not against charity.

5. But it will be thus objected on the contrary, against all kind of gain and increase that cometh, by money.

1. In taking money for the use of money, one selleth that which is not in his power: for the use of money consisteth in him that receiveth it.

2. It maintaineth idleness, when men are suffered to live of their money without the sweat of their brows.

3. It is against nature, that money being not apt to increase, should beget money.

4. It was forbidden and prohibited to the Israelites to take usury of their brethren, saving only of the Gentiles. And Psal. 15.5. Ezech. 18.17. all kind of usury and increase is condemned.

5. Our blessed Savior biddeth to lend, looking for nothing again, Luke 6.

Answ. 1. Though another man use the money which is lent, yet the lender is the occasion thereof: and in the mean time he wanteth the use of it himself: therefore it is not unjust that a thankfulness be acknowledged for the use thereof, which the other is the cause of.

2. Such as live only of letting of money, and make a trade of it, are not to be suffered: but such rather which by that means are relieved, and cannot otherwise be conveniently maintained, as orphans, strangers, exiled persons: as before is shown.

3. Money of it self begetteth not money, but being employed by man's industry, it is a fit means to increase ones stock: so neither is a field fruitful of it self, unless it be tilled. Ambrose indeed saith: Vsurae art nequissima ex auro aurum nascitur, &c. By the wicked skill of usury gold is begotten of gold, &c. He speaketh of unjust and insatiable usury: when as the usurer will extort his interest compounded for, he careth not at whose hand rich or poor: whether he gain by it or not: for so it followeth in the same place, nec finis unquam, nec satietas aderit cupiditati, &c. there will be no satiety or end of coveting, &c.

4. That was a politic law given unto the Israelites, as it may appear by that they were permitted to take usury of the Gentiles; that by this means they might grow rich, and the other poor. And the special intendment of the law is, that they should not oppress any, especially the poor, by usury: which is also now held to be unlawful. In those places objected, the word is neshech, which signifieth biting usury, which is indeed against the rule of charity.

5. To the poor we are bound to lend freely, yea to give them principal and all, where their extreme need requireth: and so is that place to be understood.

Thus much I thought necessary to add in this place concerning this great and weighty question of usury: wherein if the rules before prescribed were duly observed, we should have fewer Usurers, and nothing so many, or none at all eaten up and devoured of usury. And for a final resolution herein, this I conclude, That although all circumstances considered, some increase by money may be tolerated: yet it were better that no such urgent occasion were given. And as S. Paul saith concerning rich men, that that they should lay up in store a good foundation against the time to come, by being rich in good works: so it were better for them which have money, that they look for the increase thereof in the next world, at the hands of God, by using it here to the relief and comfort of their poor brethren, than to seek earthly gain and transitory commodity by it: as Leo excellently saith: Foenus hoc solum aspicere & exercere debemus, ut quod hic misericorditer tribuimus, à Domino, qui multiplicitar & in perpetuum mansura retribuat, recipere valeamus ; We must only look unto and exercise this usury, that what we here bestow mercifully we may receive of the Lord, who giveth abundantly, and such things as remain forever.

QUEST. XLVIII. Whether it were lawful for the Jews to take usury of the Gentiles.

NOw whereas here mention is made only of the poor brother, that they should not oppress him with usury, but it is not determined what they shall do herein toward the Gentiles: therefore elsewhere it is directly expressed, that they may lend to a stranger upon usury, Deut. 23, 20. 1. Where first the opinion of R. Solomon is confuted, who as Lyranus reporteth him, thinketh that it was unlawful for the Hebrews to take any usury, yea of the Gentiles: for the words of the text are very direct, that of strangers they may take. 2. Some think also that this was permitted unto them for the hardness of their heart, to take usury of the Gentiles, lest if they had been restrained of that liberty, they might have oppressed their brethren with usury, Genevens. But if this had been permitted only for the hardness of their heart, it had been in it self unlawful: as they were permitted to give their wives a bill of divorce, and so send them away: it shall then appear, that it was not only permitted, but lawful for them to take usury of the Gentiles: as is evident by these reasons:

1. They are forbidden to lend unto their brethren upon usury: now the Gentiles were not counted their brethren, but the Hebrews only.

2. In other like cases the Hebrews were privileged before the Gentiles: as the debts of the Hebrews were remitted in the seventh year; so were not the strangers, though they were Prosely • es, and converted to the Jewish faith, Deut. 15.3. Of a stranger 〈◊〉 mayest require it, but that which thou hast with thy brother, thine hand shall remit. Again, the Hebrew servants were 〈◊〉 go out free if they would, 〈◊〉 the seventh year, 〈…〉 if they would not, yet in the 〈◊〉 year of Jubile they w •• e for a • liberty, Levite. 25.54. But the strangers which were servants, were in their possession and inherit •• ce forever they and their children, Levite. 25.45. The like privilege was here concerning the Hebrews, that although they might lawfully take usury of strangers, yet of them they could not, Tostatus. quaest. 16.

3. Neither of all strangers might they take usury, but only of the Canaanites, which were ordained to destruction: those, and against whom, they had jus belli, right to wage battle, they might then as lawfully keep them under with usury, as use against them the sword, Simler. Hereupon Ambrose saith, Cui j • re inferuntur arma, huic legitima judicantur usura, &c. Against whom rightfully we may bear armor, unto him also lawfully may we set usury, &c. ubi ju • belli, ibi jus usurae ; where there was right of making war, there was right of taking usury.

4. But this is the blindness and error of the Jews, who think that they are warranted by this ancient privilege to take interest of the Christians now: 1. For both the time of their privilege is expired, Christ having broken down the wall of partition, and made of Jews and Gentiles all one, Tostat. quaest. 16. 2. As also we are not of those Gentiles and nations, whom they had right to invade with war, Simler.

QUEST. XLIX. What garment must be restored before the Sun set, which was taken to pledge, and why.

Vers. 26. IF thou take thy neighbors ra • meant to pledge, &c. 1. R. Solomon thus understandeth this text, that it is meant of the poor man's day garment, which must be restored until the Sun set, and then it might be fetched again until the morning, and so restored again for the use of the day. But the text evidently showeth, that this law speaketh of his night garment wherein he lieth or sleepeth. 2. Some do understand it indifferently both of the day and night garment: that if it were used in the day, it should be restored in the morning, and taken again at night: if it served for the night, it should be restored in the evening, and fetched again in the morning, Lyranus. Simler. And they press the literal meaning of the words, ghalbo hashemesh, usque venire solemn, till the Sun come, which may be as well understood of the rising, as setting. But it is evident, that this phrase of the coming or entering of the Sun, is used to signify the setting or going down of the Sun, as Judge. 19.17. And in other places: and beside, the letter of the text only speaketh of the night garment wherein he sleepeth. And if it were his day garment, it had been a trouble to the Creditor to fetch his pledge every evening, and to carry it again in the morning: for the poor debtor having but that one garment, could not go and carry it, being naked without it. It had been also an inhumane thing for the debtor to be stripped and left naked in the fight of his Creditor. 3. I therefore here rather am▪ of Tostatus judgment, that this place is only understood of the night garment: the day garment, if the poor man had but one, could not be taken to pledge at all, no more than the upper or nether mil-stone, Deut. 24.6. or any other necessary thing which the poor man lived by: but if the debtor had two or more garments, then one of them might be laid to pledge, and it needed not to be restored till the debt was paid. 4. Cajetan thinketh, that this night garment was delivered every night, and restored again in the morning: the debtor was to carry it again to his creditor. And R. Solomon giveth this reason, why the pledge was restored every day: to set forth the mercy of God, which daily forgiveth our sins: Josephus addeth also, that by this means the debtor might better be put in mind of his debt. But I rather subscribe to Oleaster here, that this raiment which was to be restored before the Sun set, was not delivered again, because the poor debtor had continually necessary use of it. 5. This is not only meant of the covering which he wrappeth himself in by night, but of any other part of his bedding, as his couch, pillow, or such like: because there is the same reason of them all: they help to defend him from the cold of the night, Gallas. 6. And this law is made for the benefit of the poor: Hic de paupere loquitur qui non habet nisi unam vestem, &c. He speaketh here of the very poor man which hath but one garment, and cannot live without it, Hugo de S. Victor ▪ 7. Two reasons are annexed: the one taken from common humanity; it is his only covering: the other from the judgment of God, which the Lord at their cry will exercise upon such hard hearted Creditors, Junius. A third reason is added, Deuteronomy 24.13. That the poor man having received his covering may bless him.

QUEST. L. Who are understood here by gods, and why.

Vers. 28. THou shalt not rail upon the gods. 1. Augustine thinketh, that this place is to be understood according to that saying of S. Paul, Though there be that are called gods, whether in heaven or in earth, as there be many gods, and many Lord's, 1 Cor. 8.5. addende, sicut sunt, deos intelligi voluit, qui digne 〈◊〉 dicuntur; in adding as there are, &c. he would have understood such gods, which are worthily so • alled. And these gods which are worthily so called, he forbiddeth to be railed on, non jussisunt sacificiis, &c. • os honorare, they are not bidden to honor them with sacrifices, &c. But the Apostle rather in this place understandeth the vain idols of the Heathen, which in their blind opinion were counted gods: not such to whom that name was worthily attributed: as Cyril saith, Vnde divinus Paulus, quod multi quidem 〈…〉 coel • et in terra ni • sunt, sed p • tius n • minantur ; Whereupon divine Paul saith, that there are many which are not indeed gods in heaven and in earth, but are so called. 2. Therefore by the name of gods, here is understood the Prince or Magistrate: as Cyril ••• expoundeth, Vt manifestam faceret dicti vim, subj • ngit stati •• ▪ That he might make manifest the sense of the word, he addeth presently, Neither speak evil of the Ruler of the people. Likewise Gregory interpreteth, Per dons, sublimes & sapicu • es viri intelliguntur, &c. By gods, high and wise men are understood▪ as the Lord saith, he had made Moses, Pharaohs god. So Constantine, when accusations were brought in against the Bishops, called them together, and burned before their face the libels of accusation, thus saying unto them: Ye are gods, non dignum est ut nos judicemus deos : it is not meet that we should judge the gods. 3. So our blessed Savior expounded that place of the 82. Psalm, I said ye are gods, he calleth them gods, to whom the word of God was▪ Job. 10.34. Which is not to be understood, (as Calvin well interpreteth) of the general doctrine which is directed to all the sons of God, sed de specially dominandi mandato, of the special charge of government. 4. By gods then here, and Rulers, are understood both Ecclesiastical and Civil governors, as Saint Paul expoundeth it, Act. 23. Iun. Gregory applieth it only to Ecclesiastical Governors: but it comprehendeth also the Civil Rulers, as appeareth, Psal. 82.1. 5. They are called gods, Tanquam imagines existentes ejus, &c. Because they are as the image of him which is both the Son and God, Cyril. Quod ad universorum Iudicis imitationem▪ judicia illis credita sunt ; Because judgment is committed unto them, wherein they imitate the universal Judge of all, Theodoret. Iniis relucet Majestas Dei, cujus vicem & nomen ger •• t ; The Majesty of God shineth in them, in whose stead they are, and whose name they bear, Gallas. And so the Apostle calleth them the Ministers of God, Rom. 13. And they are so called, Ne quid admittant quod • os dedeceat, qui loco Dei sedent, &c. That they should commit nothing unbeseeming them, seeing they sit in God's place, Lippoman. Dei personam sustinent, tanquam legati & vicari • ; They sustain the person of God, as his ambassadors, and vicegerents, Calvin.

QUEST. LI. Why the Magistrate is not to be reviled, and with what limitation this law is to be understood.

THou shalt not rail. 1. The word, callal, here used, signifieth properly to set at naught, or esteem light by, and consequently to revile, because men contemn and despise those whom they speak evil of, Oleaster. They are then forbidden, first, to contemn or despise the Magistrates, then to speak evil of them. 2. And two things they are here warned of, not in secret to detract from them, nor openly to rail on them, Tostat. quaest. 16. Neither in absentia, velcoram, in their absence, or to their face, Cajetan. 2. And specially this law intendeth to restrain their insolency, that are ready to speak evil of Magistrates▪ if they judge not according to their humor: and especially, malefactors are given to • aile upon the Judge, when they are punished justly, Lyranus. 3. They being then in God's place, are to be reverenced, and had in honor: because injury cannot be done unto them, Quin simul Deo inferatur ; But it must likewise be offered unto God, in whose place they are, Marbach. And he that curseth them, in a manner curseth himself; because the Magistrate is the head of the people, whereof he is a member, or part, Lyranus. 4. But though Magistrates must be honored, they are not to be adored: Prohibiti sunt maledici, non jussi sunt sacrificiis honorari, &c. Though they are forbidden to be evil spoken of, they are not bidden to be honored with sacrifices, or any such adoration, August. quaest. 86. in Exod. 5. And although they are not to be railed upon, yet neither are they to be flattered in their sin: we must not think, Honorem, quo praediti sunt, esse vitiorum integumentum, That the honor which is yielded unto them, is a veil or covering of their sin, Calvin. Dei nomen etiamsi falso quibusdam imponatur, &c. The name of God, though it be given falsely unto some Magistrates, yet is to be honored, Cyril. 6. But so far are Magistrates to be honored, and those terrene gods to be admired, as they command nothing against the great God of heaven: Praepositis obediendum vice Dei, sed non contra Deum ; We must obey them in God's stead, but not against God, Lippoman. 7. As Princes are not to be reviled, so yet they may be soberly and discreetly admonished▪ not taunted, or checked, or malepertly rebuked. Augustus was wont to say, In libera civitate liberas esse linguas oportere ; That in a free city tongues ought to be free: But herein the lenity of those Christian Emperors Theodosius, Honorius, Arcadius, was admirable, who would have them subject to no punishment which spake evil of them: for (say they) Si ex levitate profectum est, contemnendum: si ex insanla, miseratione dignissimum; si ab injuria, remittendum ; If it come of lightness, it was to be contemned; if of madness, to be pitied; if of wrong, to be remitted, Gallas. 8. There is here no punishment set for him that should rail on the Magistrate: but seeing he that railed on his father and mother was to die for it, chap. 21.17. much more worthy of death was he which should curse the Prince, the father of the country, Simler.

QUEST. LII. Whether S. Paul transgressed this law, Act. 23. when he called the high Priest painted wall: and whether in deed he did it of ignorance.

BUt here by the way somewhat would be added, concerning S. Paul's fact, in calling Ananias the high Priest, painted wall; and afterward being told that he reviled God's high Priest, he excused himself by his ignorance, alleging this text, Act. 23.4, 5. 1. Some here answer, that where he saith, God shall smite thee thou white or painted wall, that it was no imprecation, but a prediction, that God would punish him, Genevens.