Chapter II: Referral of the Forensic Laws to the Decalogue, §30.
CHAPTER II: REFERRAL OF THE FORENSIC LAWS TO THE DECALOGUE
An enumeration.
§ 30. These laws are set forth in Exodus 21–23 and are repeated in many places throughout the books of Moses. They can be most conveniently listed and reviewed following the order of the commandments of the Decalogue, for they are appendices of it; they especially deal with observing the Second Table.
To the First Commandment belongs the ordinance concerning the punishment of idolaters: Exod. 22:20: “Whoever sacrifices to any god other than Jehovah alone shall be killed.” Deut. 13:5: “The prophet or dreamer of dreams who has spoken rebellion against Jehovah your God shall be slain.” ([Corpus Iuris Civilis,] C. De haereticis et Manichaeis, l. Adriani, dictates that Manichaeans were to be driven from the city and handed over to the ultimate punishment. Ibid., l. ubicunque: “Wherever Manichaeans are found, they are to be condemned to death.” Ibid., l. Manichaei: “The Manichaeans are driven out everywhere and punished by death, as well as the other heretics. A heretic is anyone who is not orthodox. Greeks, or pagans, and Jews and Samaritans are forbidden to bear and hold the office of magistrates,” etc.) Deut. 13:6, 9–10: “If your brother, your son, or the wife of your bosom entices you secretly, saying, ’Let us go and serve other gods,’ you shall kill him and stone him to death with stones.” In vv. 12[–18] idolatrous cities are ordered to be destroyed and all their spoils to be burned in a fire.
To the Second Commandment belongs the ordinance regarding the punishment of witches, or sorceresses,1 and all evildoers devoted to incantations or other satanic arts. Exod. 22:18: “You shall not allow a witch to live.” ([Corpus Iuris Civilis,] C. De maleficis et mathematicis, l. Multi: “Many do not hesitate to use magic arts, to upset the elements, or to weaken the life of the innocent. Having summoned the multitudes, they cause a disturbance such that everyone harms his enemies by wicked arts. May a terrible plague consume these because they are aliens to nature.”) Lev. 20:27: “A man or woman who is a medium or spirit of divination shall be put to death.” Also pertinent is the ordinance concerning the punishment for blasphemy. Lev. 24:15–16: “Whoever curses God shall bear his own sin. Whoever pronounces the name ’Jehovah’ shall surely die. They shall surely stone him.”
To the Third Commandment belong the ordinances concerning the death penalty for violators of the Sabbath (Exod. 35:2), and concerning the sabbatical year (Exod. 23:10[–11]; Lev. 25:4): “For six years you shall sow your land; but in the seventh year you shall let it rest and lie fallow that the poor of your people may eat; and what they leave the wild beasts may eat. You shall do so with your vineyard and with your olive grove.” (We explained the reasons for this ordinance in § 22.)
§ 31. To the Fourth Commandment belong various items as, for instance: (1) Concerning the freeing of slaves. Exod. 21:2–11:
If you buy a Hebrew slave, he will serve for six years, and in the seventh he will go out free, for nothing. If he comes in single, he will go out single; if he comes in married, then his wife will go out with him. If his master gives him a wife and she bears him sons or daughters, the wife and children will be her master’s, and the slave will go out alone. But if the slave says, “I love my master, my wife, and my children. I shall not go out free,” then his master will bring him to the judges, and he will also bring him to the door or to the doorpost. And his master will pierce his ears with an awl; and he will serve him for life (until the jubilee year). When a man sells his daughter as a maidservant, she will not go out as the male slaves do. If she does not please her master who has betrothed her to himself, he will let her be redeemed. He will not have the power to sell her to a foreign people, because he has rejected her. But if he betrothes her to his son, he will deal with her as with a daughter. If he takes another wife to himself, he will not diminish her food or clothing or time. And if he does not do these three things for her, she will go out for nothing, without the payment of money.
Lev. 25:39–41, 46–47, 49: “If your brother becomes poor so as to sell himself to you, you will not use his work as the work of a slave. He will be with you as a hired servant and will serve you until the jubilee year. Then he will go out and his children with him and return to his family” (that is, in accord with the limitation given in Exodus 21). “You will own as your inheritance forever slaves and maidservants you have bought from the Gentiles and also from those who dwell with you.” If any Israelite had sold himself to a foreigner, his nearest kin had the obligation to buy him back. Deut. 15:13–14: “If you set free a Hebrew male or female slave in the seventh year, you will not let him go empty-handed, but you will surely furnish him out of your flock, your threshing floor, and your winepress,” etc. (It is apparent from these laws that there were two kinds of slaves among the Hebrews: one of strangers and foreigners, the other of their own people when the latter would be reduced to slavery because of wickedness, such as theft; because of adversity, such as debt; or because of poverty. The condition of slaves who were Israelites by blood was more tolerable than that of strangers, in memory of the slavery in Egypt.)
(2) Concerning the punishment for injury and insult inflicted upon parents. Exod. 21:15: “Whoever strikes his father or mother must be put to death.” ([Corpus Iuris Civilis,] l. Pompeia 1, ff. De lege Pompeia de parricidiis, establishes the same punishment for parricides as the punishment of the Cornelian law for murderers. [Corpus Iuris Civilis,] l. Poena 9, same tit.: “By custom of our ancestors, this punishment has been established for those who murder their parents. The murderer shall be beaten with bloody rods; then sewn into a sack with a dog, a rooster, a snake, and an ape; and then the sack shall be thrown into the depths of the sea—that is, if the sea is near—otherwise it is thrown to beasts, according to the constitution of Hadrian.” The same thing is established in l. Si quis, C. De his qui parentes vel liberos occiderunt.) Lev. 20:9: “Whoever curses his father or mother shall be put to death.”
(3) Concerning the punishment of a stubborn son. Deut. 21:18–19, 21: “If a man has a stubborn son, let him bring him out to the elders of the city, and all of the men of the city will stone him to death.” (Origen states it beautifully, on Leviticus, homily 11: “If you dishonor your bodily father, this insult passes to your spiritual Father; and if you harm your bodily mother, that injury redounds to the heavenly mother, Jerusalem.”)
(4) Concerning matrimonial cases, such as how captive women may be married. Deut. 21:11–14: “When you see among the captives a beautiful woman and love her and marry her, you will bring her into your house where she will shave her hair and clip her nails. She will take off the clothing of her captivity and remain in your house and mourn for her father and mother for a full month. Afterward you may go in to her, and you will be her husband. If she does not please you, you will let her go where she wills and not sell her in the market” (so that the husband’s lust may be restrained in this way, says Philo, De caritate, p. 481). (The ancients apply this allegorically to making philosophy obedient to the Christian faith. Jerome, Ad Pammach.: “The soul which is to be joined spiritually with Christ must be clad in the mourning clothes of repentance, shaved of the stains of sins through the razor of God’s Law, and dragged away from attachment to the world,” etc.) By these rituals a jealous husband may be able to examine the chastity of his wife (Num. 5:12[–31]).
[Other matrimonial cases include:] That the Israelites were not supposed to intermarry with the tribes of Canaan nor give their daughters to them (Deut. 7:3). That the son of a dearly loved wife should not be preferred to the son of a despised or less loved wife who was first to the marriage bed (Deut. 21:15). That a divorced wife cannot be remarried to her first husband (Deut. 24:1[–4]) (in order to restrain rash license to divorce, for one was not permitted to call a woman he had divorced back again to his bed even if he regretted the divorce).
That newly-married men were exempted from public duties and from going to war for the first year (Deut. 24:5). (The moral reason for this was to strengthen their hearts all the more in conjugal love. Typologically, it symbolizes how those recently converted must be nurtured very gently.)
That a surviving brother or the next of kin was compelled to marry the childless widow of a dead brother (Deut. 25:5[–10]). If a man refused to do this, the related widow spat in his face and removed a sandal of his as a testimony of her public disgrace (v. 9). (But how does this law not contradict the one that forbids uncovering the nakedness of your brother’s wife, Lev. 18:16? We respond. Some take the word “brother” to mean the next of kin, namely, those whom the wife of the deceased is not forbidden to marry in the catalog given in Leviticus 18. Some, on the other hand, distinguish between the wife of a brother still living and the wife of a deceased brother. They claim that Leviticus 18 discusses the former and that this passage concerns the latter.) The primary reason for this law was the preservation and distinction of families. The second reason was the care of widows and the fostering of harmony among brothers. Augustine (Contra Faustum, bk. 32, ch. 10) applies this allegorically to ministers of the church: Christ having died once for us, they raise up seed by begetting spiritual children to receive His name and inheritance. The following allegory can also be constructed: “Adam was the son of God, created by Him for the purpose of procreating more children for God to enter the heavenly inheritance along with him. However, this Adam died spiritually and left no heir for God, his Father. Therefore the second Adam, his Brother, Jesus Christ, took his place. By an eternal and indissoluble covenant He joined Himself to our flesh and now generates children for God our Father through the Word and Sacraments, thus multiplying the seed of Adam” (Polycarp Leyser, on Genesis 38, p. 67).
§ 32. To the Fifth Commandment belong the ordinances: (1) About intentional and accidental homicide. Cities of refuge had been established to which those responsible for manslaughter could flee (Exod. 21:13; Num. 35:11; Deut. 19:2[–3]). (In a homicide of this type, God is said to have delivered the slain person into the hands of his slayer by singular providence or His permission. Augustine, on Exodus, q. 79: “In one and the same deed God is praised for His hidden equity, and the man is punished for his own iniquity.” Furthermore, the fathers are not absurd in applying the five cities of refuge to the five wounds of Christ, where the repentant sinner finds refuge even though through sin he had brought death upon his soul. In connection with this, after the death of the high priest, a manslayer was allowed to return to his homeland; for Christ, the only high priest of the New Testament, has gained re-entrance for us to our heavenly homeland through His death. [Corpus Iuris Civilis,] l. Fideli, C. De his, qui ad ecclesiam confugiunt, agrees with this ordinance of God.) However, those guilty of intentional homicide were to be taken from the altar for punishment (Exod. 21:14).
(2) Concerning the rituals for cleansing the land where the corpse of a slain person was found, whose killer was unknown (Deut. 21:1[–9]). (The fathers apply these rites to Christ, in whom is the expiation for our sins. He never bore the yoke of sin, and He was crucified at Jerusalem, around which the land was harsh and barren.)
(3) Concerning the rights of warfare: That no one was forced to go off to war who had built a new house and had not yet dedicated it, who had planted a vineyard and had not yet enjoyed its fruit, who had betrothed a woman to himself and had not yet taken her home, or who was timid and fainthearted (Deut. 20:5–8). (The hindrance to spiritual warfare is excessive interest in earthly matters.)
That all males of the assaulted city had to be killed by the sword ([Deut. 20:]13).
(4) Concerning the punishments for homicide and for any harm inflicted on the body of one’s neighbor. Exod. 21:18–23: “When men quarrel and one strikes his neighbor with a stone or fist and the man does not die but lies on his bed, if the man gets up again and walks outside though with a cane, then he who struck him will be innocent.” (In the political forum he would be absolved from the ordinary punishment for homicide, because death seems to have ensued from a cause other than the striking.) “But in such a way that he shall pay him for his lost work and for his medical expenses. Whoever strikes a slave, male or female, so that he dies under his hand will surely be punished; but if the slave survives for one or two days, he will not be subject to punishment because the slave is his money” (that is, because he bought the slave, male or female, with his money). ([Corpus Iuris Civilis,] l. Si virgis, C. De emend. serv.: “If a master beats his slave with rods or a whip or chains him to keep him under guard, then if the slave dies after an interval of days has passed, the master should not fear criminal charges. However, he should not use his right immoderately, but would then become guilty of homicide if he intentionally killed him by a blow of a club or a stone, or by using a spear clearly to inflict a lethal wound upon him, by ordering him to be hanged with a noose, or shamefully commanding him to be thrown off a cliff,” etc.) “When men become angry and someone strikes a pregnant woman so as to cause premature birth and there is no death, he will be subject to a fine of as much as the woman’s husband demands and as the judge determines; but if there is death, he will pay life for a life.” (From this law [jurists] deduce a distinction between an unformed fetus and a formed one, for most jurists claim that whoever kills an already formed and animate fetus is ordinarily subject to the punishment for homicide, according to Constitutio Carolina et Electoralis.) Verse 24 sets forth the general law: “An eye for an eye, a tooth for a tooth, a hand for a hand,” etc. Verses 26–32: “When a man strikes the eye of a slave, male or female, and causes them to be one-eyed, he will turn them loose for the sake of the eye. If he knocks out the tooth of a slave, male or female, he will also let them go free.” (This fairness restrained masters in their office from being overly cruel with their slaves, for they did not have the right of life and death over their slaves the way the Romans wrongly did.) “If an ox gores a man or woman so that he dies, that ox will be stoned to death and his flesh not eaten” (so that it is clear how abominable homicide is to God), “but the owner of the ox will be innocent. But if the ox has been accustomed to gore in the past, and they have told its owner” (that is, if the owner has been given a serious warning to lock up the ox which had the habit of goring), “and the owner has not kept it in, and if that ox kills a man or woman, then that ox will be stoned, and also its owner will be put to death. If a ransom price has been imposed upon him that must be paid to redeem his life, he will pay whatever has been demanded.” ([Corpus Iuris Civilis,] l. Nihil interest 12, ff. Ad legem Cornel. de sicar.: “It does not matter whether the killer provides the cause of death.”) “If the ox gores a son or daughter” (that is, younger, unmarried persons), “he will be subject to a similar sentence. If it gores a slave, male or female, the owner of the ox will give the owner of the slave thirty shekels of silver, and the ox will be stoned.”
(5) Concerning works of mercy and love which should be shown to the stranger, widow, orphan, and even to enemies. Exod. 22:21: “You shall not harm a stranger or oppress him.” Verse 22: “You shall not afflict any widow or orphan.” Exod. 23:4–5: “If you come across your enemy’s straying ox or donkey, you shall bring it back to him. If you see the donkey of a man who hates you lying down under its load, you shall assist it,” etc. (Yet these more accurately belong to the moral Law than to the forensic laws.)
§ 33. To the Sixth Commandment belong the ordinances regarding the penalties for lewdness, adultery, and heinous lusts. Exod. 22:16–17; Deut. 22:28: “When someone seduces a virgin who is not betrothed and has sexual intercourse with her, he shall give the bride-price for her and marry her.” (That is, he must not demand from the father a dowry for the girl, but from his own property provide a marriage gift for her and still marry her.) “If the father of the virgin refuses to give her to the man who has defiled her, he will pay him money according to the dowry for virgins.” (He will give as much money as is generally given for a virgin of this sort for her dowry, namely, fifty shekels.) Exod. 22:19: “Whoever lies with an animal shall surely be put to death.” (They generally call this heinous crime “bestiality.”) Deut. 22:20–25: “When someone marries a wife in whom he does not find the tokens of virginity, they shall then bring the girl to the door of her father’s house, and the men of her city shall stone her, and she shall die.” (Lyra explains the tokens of virginity brought into judgment by unfolding her garments metaphorically as a reference to virginity attested through witnesses. Most take it as a reference to the signs of the hymen kept inviolate until the marriage bed. Fallopius, Columbus, and others describe that membrane and call it the virginal diaphragm or barrier; but Oribasius, Collectaneorum Medic., bk. 24, and Laurentius, Anatom., bk. 7, ch. 12, q. 13, clearly deny it. See the book of Pinaeus, De notis virginitatis, and Cypraeus, De sponsal., ch. 13.) Verse 22: “If a man sleeps with the wife of another, both shall die, the adulterer and the adulteress.” (The Lex Julia and the Constitutio Carolina also approve capital punishment for this crime.) [Verses 23–24:] “If someone betroths a young virgin, and someone else finds her in a city” (where she could call others for protection, unlike in a solitary place) “and lies with her, you shall take both outside the gate of that city and stone them to death—the girl because she did not cry out though she was in the city, and the man because he shamed her, that is, defiled his neighbor’s wife with adultery.” (In the sight of God a betrothed woman is a wife, seeing as it is not sex [concubitus] but consent which makes a marriage.) [Verse 25:] “But if someone accosts a girl betrothed to another in open country, grabs her, and lies with her, he alone shall die, but the girl shall not be guilty of death” (for the defilement is presumed to have been inflicted upon her violently).
Also related to the Sixth Commandment is the punishment for unchaste contact. Deut. 25:11–12: “When men fight and the wife of one draws near to rescue her husband from the hand of his assailant and puts out her hand and takes hold of his privates, you shall then cut off her hand.” (God is a chaste mind, a very severe avenger of all unchastity.) Deut. 23:18: “You shall not bring the earnings of a prostitute or the price of a dog into the house of Jehovah your God.”
§ 34. To the Seventh Commandment belong various ordinances, such as: (1) Concerning the punishment for kidnapping. Exod. 21:16; Deut. 24:7: “Whoever steals a person and sells him, or is found in possession of him, must die.” ([Corpus Iuris Civilis,] l. Si liberum 1, ff. De lege Fabia de plagariis: “If a buyer knowingly purchases a free man, he will be charged with a capital offense according to the Lex Fabia. The seller is also guilty of this crime if he knowingly sold a free man.” [Corpus Iuris Civilis,] l. Quoniam servos 7, C. Ad legem Fabiam de plagiariis: “You indicate that slaves are being stolen from the city by kidnappers, and you wrote earlier that sometimes free men are being carried off in this criminal activity. Therefore we decree that you must respond to the lawlessness of these offenses with greater severity. Accordingly, if you arrest anyone for this crime, you shall not hesitate to sentence him to death.”)
(2) Concerning the punishment for simple theft. Exod. 22:1–4: “If anyone steals an ox or a sheep and kills it” (so that he cannot return it to its owner) “or sells it, he shall pay five oxen for one ox and four sheep for one sheep.” (Cardinal Hugh says that the reason for the different repayments is that an ox has five uses: it feeds, plows, treads out grain as a calf, provides shoes and equipment; a sheep, on the other hand, has four: it gives milk, feeds, provides clothes, and is sacrificed. However, it is better to attribute the reason for the difference to the grades [of severity] of the theft.) “If a thief is caught breaking in or digging in at night and is wounded so that he dies, the one who struck him will have no bloodguilt.” (According to the Laws of the Twelve Tables,2 one was permitted to kill a thief at night, and also during the day if he defended himself with a weapon.) “However, if the head of the household does this after sunrise, he will be liable to death.” (Or, as others render it, “he will have bloodguilt”; that is, the magistrate will force him to await a sentence for shedding blood.) “The thief shall make restitution” (that is, fivefold or fourfold), “but if he has nothing with which to make restitution, he shall be sold for his theft. If the stolen beast is found alive in his possession, whether an ox or an ass or a sheep, he shall repay double.”
(3) Concerning damages which a four-footed animal has caused. Exod. 21:35–36: “When one man’s ox hurts another’s so that it dies, then they shall sell the live ox and divide the price of it, and the dead ox they also shall divide. But if it is known to the owner of the killed ox that the ox has been in the habit of goring in the past, and the owner has not guarded it, he will give a live ox to the owner of the dead ox and will take the entire body of the dead ox.” Exod. 22:5: “If anyone lets his beast loose to feed on another’s property, namely, in the field or vineyard of his neighbor, he shall pay back the best he has in his field or vineyard in proportion to the value of the loss.” (Compare [Corpus Iuris Civilis,] bk. 9, ff., tit. 1, Si quadrupes pauperiem fecisse dicatur.)
(4) Concerning causing loss. Exod. 21:33–34: “If anyone opens a cistern or a well and then does not cover it, and an ox or a donkey falls into it, the owner of the cistern shall pay back the price of the beasts, but whatever has been killed will belong to him.” Exod. 22:6: “If fire breaks out and catches in thorns” (that is, if someone starts a fire close to the thorn hedge next to a field and the thorns catch fire) “and consumes the nearby sheaves of grain or the standing crops in the fields, the one who started the fire will make restitution for the loss.”
(5) Regarding a deposit. Exod. 22:7–8, 10–13: “If someone gives his neighbor money or vessels” (that is, any household goods) “to keep, and they are stolen from him who has undertaken the guardianship of the deposited property, then if the thief is found, he shall pay double. If the thief is not found, the owner of the house will be brought to the gods” (or, rather, to the judges, who inquire precisely) “whether he has put his hand to his neighbor’s property. If someone entrusts to his neighbor a donkey, ox, sheep, or any other animal for safekeeping, and it dies, is injured, or is abducted by an enemy without any eyewitness, there shall be an oath between them as to whether he put his hand to his neighbor’s property. If it was stolen, he shall make restitution to the owner. If it was carried away by a beast, he should bring back to him some piece as evidence that the animal has been torn by a wild beast, and he shall not make restitution.”
(6) Concerning a trespass. Exod. 22:9: “For every transgression, whether it be for an ox, donkey, sheep, clothing, or whatever kind of loss can be brought upon someone” (that is, as regards any kind of loss), “the case of both will go to the gods [that is, the judges], and he whom they condemn shall make double restitution to his neighbor.”
(7) Concerning borrowing and hiring. Exod. 22:14–15: “When3 a man takes an animal or beast from his neighbor on loan, and it dies or is hurt while its owner is absent, then the borrower shall be forced to make restitution. But if the owner was present, he shall not make restitution; what is hired comes for its hiring fee.” (If it died while its owner was present, it is judged that it died by accident rather than by the fault of the borrower.)
(8) On lending and usury. Exod. 22:25; Lev. 25:36: “If you lend money to any of My people with you who is poor, you shall not press him as a creditor does, nor shall you impose usury on him.” Deut. 23:19–20: “You shall not lend to your brother upon interest of money, interest of food, or interest of anything usually loaned for interest. You may charge interest to a foreigner, but to your brother you shall not charge interest.” (For there were Canaanite peoples among whom the Israelites were living, peoples dedicated to destruction. Therefore it was permitted to oppress the Canaanites with usury even as it was permitted to kill them. Ambrose, De Tobia, ch. 15: “Take usury from him whom it is not a crime to kill; where there is a right of war, there is also the right to take usury.”)
(9) Concerning pledges. Exod. 22:26–27: “If you take your neighbor’s garment as a pledge, you shall give it back to him before sunset, because that is his only covering, the mantle of his flesh, and he has nothing else in which to sleep.” Deut. 24:6: “No one shall take as a pledge a mill or an upper millstone.” (Synecdochically this means all instruments used for operating machinery needed to prepare food. Cf. [Corpus Iuris Civilis,] l. Obligatione [and] l. Vel qui in usum, ff. De pignoribus.) Deut. 24:10–12: “When you make a loan to your neighbor, you shall not go into his house to seize the pledge. You shall stand outside, and the man to whom you make the loan shall bring the pledge out to you” (lest, after examining all his household goods, the creditor demand a pledge of his own choosing). “If he is a poor man, you shall not sleep with his pledge,” etc.
§ 35. To the Eighth Commandment belongs the ordinance: (1) Concerning repudiating the testimony of one witness in trials. Deut. 17:6: “On the word of two or three witnesses he that is to die shall be put to death, but he shall not be put to death on the word of one witness.” Deut. 19:15: “A single witness shall not prevail against anyone for any wrong or for any crime; I say, in whatever crime has been committed, only on the word of two or three witnesses shall a charge be sustained.”
(2) Concerning the penalty for false testimony. Deut. 19:16–19, 21: “When a lying witness rises up against anyone to accuse him of wrongdoing, then both parties to the dispute shall appear before Jehovah, before the priests and judges who are [in office] in those days; the judges shall inquire diligently, and if the witness is a false witness and has accused his brother falsely, you shall do to him as he had meant to do to his brother. Your eye shall not pity. It shall be a life for a life,” etc.
(3) Concerning the penalty for bringing a false accusation. Deut. 22:13–15, 18–19: “When someone marries a wife and goes in to her and hates her and gives the reproach of words against her and brings a bad name upon her” (that is, if he impugns her honor, saying her chastity was violated before marriage), “then the parents of that girl shall take the tokens of her virginity to the magistrate” (that is, cloths stained with the blood of her broken hymen). “Then the elders of that city will take the man and fine him a hundred shekels of silver, which he shall give to the girl’s father because he defamed her, and he shall be unable to divorce her all the days of his life.” (However, these seem to belong more to the moral Law.)
§ 36. In this way the forensic laws can be enumerated and listed according to the commandments of the Decalogue. Yet we must point out here that some of them are general and cannot be suitably assigned to any specific commandment of the Decalogue, such as: (1) The laws preventing certain people from holding public offices and duties. Deut. 23:1: “He whose testicles are crushed or whose male member is cut off shall not enter into the assembly of the Lord.” That is, no public office may be committed to him, for thus entrance into the assembly of the Lord was most properly received since they were permitted to take part in divine worship. Isa. 56:4–5: “Thus says the Lord: ’To the eunuchs who keep My Sabbaths, who choose the things that please Me and hold fast My covenant, I shall give them in My house and within My walls a monument and a name better than sons or daughters.’ ” (The purpose of this law was to disapprove of the Gentile custom where castrated males would be put in charge of the women’s quarters and public functions. In fact, the castrated very often are effeminate, and to commit magistracy to them was improper.) Deut. 23:2: “No bastard shall enter the assembly of the Lord; until the tenth generation he shall not enter the assembly of the Lord.” (The purpose of this law was to denounce fornication, which greatly harms the family. The example of Jephthah in Judg. 11:11 shows that there were some exceptions to this law.) Deut. 23:3: “No Ammonite or Moabite shall enter the assembly of the Lord; even to the eleventh generation none shall enter the assembly of the Lord forever, because they did not receive you with bread and water along the way after you had gone out of Egypt, and because they hired Balaam against you,” etc. (It is quite clear from Exod. 12:48 that strangers and sojourners were not forbidden to join the church of the Israelites through the sacrament of circumcision and to take part in the public sacred rites. Thus “entering the assembly of the Lord” cannot mean “to take part in public rites” but “to hold public office in the state.” Duarenus, De sacris eccles. ministeriis, bk. 4, ch. 5, takes it as a reference to a law about intermarriage, that the Ammonites and Moabites were forbidden to marry Israelite women. But the prior explanation better fits the text because Boaz married Ruth, a Moabite woman, Ruth 4:13.) According to Deut. 23:7, Edomites and Egyptians of the third generation could enter the assembly of the Lord; that is, they could hold public offices.
(2) Laws about removing the corpse of a hanged person from the people’s sight before sunset (Deut. 21:22–23). (On account of the hope of resurrection and of the dignity of man, the apostle applies this to Christ, who for us was made a curse on the tree. See Julius Clarus, Sent., bk. 5, q. 100.)
Distinction within the forensic laws.
§ 37. Those are the more important forensic laws. If one pays careful attention to them, he will grasp that most of them are quite severe and harsh in applying punishments, for the people of Israel were “a stiff-necked people” (Acts 7:51). God often complained about this through Moses (Exod. 32:9; Deut. 9:13): “I have seen this people, and, behold, it is a stiff-necked people.” Exod. 33:3: “I shall not go up with you, for you are a stiff-necked people, lest I consume you in the way.” Because of this “hardness of heart,” the Israelites were allowed to divorce in order to avoid greater evil, as Christ testifies in Matt. 19:8. From this Luther drew the distinction that some forensic laws command that which is good of itself and in its own category; but some forensic laws, to avoid a greater evil, permit that which of itself and in its own category is not good. “Some are laws of teaching; some are laws of prevention.”4
Here one should also consider that Moses played two roles, so to speak, among the Israelites: that of a prophet-teacher and that of a political lawgiver. As a prophet-teacher he well knew that divorce and polygamy were contrary to the original institution of marriage, as Christ teaches in Matt. 19:6. Nevertheless he permitted that stubborn people to divorce in order to avoid the greater evil, lest those wife-haters become wife-killers. Since the Pharisees did not observe this distinction, Christ rebuked them sharply. They interpreted the law about divorce as if giving wives a certificate of divorce were good of itself and in the eyes of God. [Christ] changed their “commanded” [ἐνετείλατo] to “allowed” [ἐπέτρεχεν] (Matt. 19:8). In fact, the prophets themselves despised and rejected that rash license to divorce on the basis of the moral Law (Mal. 2:14[–16]).