097: The Special Laws, IV (Part 1)

THE SPECIAL LAWS, IV - Part 1^*

*Yonge’s title, A Treatise on Those Special Laws Which Are Contained Under and Have Reference to the Eighth and Ninth, and Tenth Commandments.

I. (1) I have in my previous treatises spoken of the laws relating to adultery and murder, and to all the subordinate offences which come under those head, with, as I persuade myself, all the accuracy which the case admits of, and now, proceeding in the regular order, I must consider what is the third commandment in the second table, but the eighth in all, if the two tables are taken together, namely, the commandment, "Thou shalt not Steal." ⁽¹⁾ [Exo 20:13] (2) Whoever carries off or leads away the property of another when he has no right to do so, if he does it openly and by main force, shall be set down as a common enemy, and shall be prosecuted as having with lawless wickedness contrived a shameless act of audacity. But if he has done it secretly, endeavouring to escape notice like a thief, exhibiting some modesty, and making the darkness the veil of his iniquity, let him then be punished privately as only liable to condemnation in respect of the one individual whom he endeavoured to injure; and let him restore double the value of the thing stolen, making amends by his own most righteous suffering for the unrighteous advantage he has endeavoured to gain. (3) But if he is a poor man, and consequently unable to pay the penalty, let him be sold (for it is fitting that that man should be deprived of his freedom who for the sake of his most iniquitous gain has endured to become a slave to guilt), that he who has been ill-treated may not be allowed to depart without consolation, as if he appeared to have his claims disregarded by reason of the poverty of the man who has robbed him. (4) And let no one accuse this ordinance of inhumanity; for the man who is sold is not left as a slave for ever and ever, but within the space of seven years he is released by a common proclamation as I have shown in my treatise on the number seven. (5) And let him be content to pay the double penalty, or even to be sold, since he has committed no slight offence; sinning in the first place in that, not being content with what he had, he has desired more, encouraging a feeling of covetousness, a treacherous and incurable wickedness. Secondly, because he has cast his eyes on the property of others and longed for it, and has laid plots to deprive his neighbour of his own, depriving the owner of what belongs to him. Thirdly, because through his desire to escape detection, he very often keeps to himself all the advantage that can be derived from the thing he appropriates, and diverts the accusation so as to cause it to fall upon the innocent, thus making the investigation of the truth blind. (6) And such a man appears in some degree to be himself his own accuser, being convicted by his own conscience of the theft of those things which he has secretly stolen, being filled either with shame or fear, one of which feelings is a proof of his considering his action a disgraceful one, for it is only disgraceful actions which cause shame, and the other is a sign of his thinking it deserving of punishment, for punishment causes fear.

CONCERNING HOUSEBREAKERS

II. (7) If any one being insanely carried away by a desire for the property of others attempts to steal it, and not being able easily to carry it off breaks into a house at night, using the darkness as a veil to conceal his wicked action, if he be caught in the fact before the sun has risen, he may be slain by the master of the house in the breaches, having accomplished the lesser object which he had proposed to himself, namely, theft, but having been hindered by some one from accomplishing the greater crime which might have followed it, namely, murder; since he was prepared with iron house-breaking tools which he bore, and other arms, to defend himself from any attack. But if the sun has risen, then let him no longer be slain by the hand of the master of the house, but let him be led away and brought before the magistrates and judges, to suffer whatever punishment they condemn him to. (8) For while men are remaining in their houses at night, and when they have betaken themselves to rest, whether they be rulers or private individuals, in either case there is no refuge or assistance for the offender; on which account the inmate of the house has the power of punishment in his own hands, being appointed magistrate and judge by the very time itself. (9) But in the day time the courts of justice and the council chambers are open, and the city is full of persons who will help to arrest the criminal; some of whom have been formally appointed guardians of the laws; and others, without any such appointment, by their natural disposition which hates iniquity, take up the cause of those who are injured; and before these men the thief must be brought; for thus the man who seeks revenge will escape the charge of arrogance or rashness, and appear to be acting in the spirit of the democracy. (10) But if, when the sun has risen and is shining upon the earth, any one slays a robber with his own hand before bringing him to trial, he shall be held guilty, as having been guided by passion rather than by reason, and as having made the laws second to his own impulses. I should say to such a man, "My, friend, do not, because you have been injured by night by a thief, on this account in the daylight yourself commit a worse theft, not indeed affecting money, but affecting the principles of justice, in accordance with which the constitution of the state is established."

ABOUT THE THEFT OF A SHEEP OR AN OX

III. (11) Now other thefts are to be atoned for by a payment of double the value of the thing stolen; but if any one steals an ox or a sheep, the law thinks such a man worthy of a greater punishment, giving a particular honour and precedence to those animals which are the most excellent among all tame flocks and herds, not only by reason of the beauty of their bodies, but also because of the service they are of to the life of man. And on this account the lawgiver has not affixed a fine of equal amount to the theft of each animal, but having calculated the use of both and the purposes for which both are available, he has appraised their value in this way. (12) For he commands that the thief shall restore four sheep and five oxen in the place of the one which he has stolen; since a sheep gives four kinds of tribute, milk, and cheese, and its fleece, and a lamb, every year: but an ox furnishes five; three of which are the same as those of the sheep--the milk, the cheese, and the offspring; but two are peculiar to itself, the ploughing of the earth, and the threshing of the corn; the first of which actions is the first step towards the sowing of the crops, and the other is the end, being for the purification of the crop after it is gathered in, in order to the more easy use of it for food.

CONCERNING KIDNAPPERS

IV. (13) A kidnapper also is a thief; but he is, moreover, a thief who steals the very most excellent thing that exists upon the earth. Now, in the case of inanimate things, and of those animals which are of no very great use indeed in life, he has commanded twice the value of them to be paid to their owners by those who steal them, as has been said before. And again, in the case of those tame and very useful flocks and herds of sheep and oxen, he has ordered the payment to be fourfold or fivefold; (14) but man, as it seems, has been assigned the most pre-eminent position among the animals, being, as it were, a near relation of God himself, and akin to him in respect of his participation in reason; which makes him immortal, although he is liable to death. On which account every one who feels any admiration of virtue is full of exceeding anger, and is utterly implacable against kidnappers, who for the sake of most iniquitous gain dare to inflict slavery on those who are free by birth, and who partake of the same nature as themselves. (15) For if masters perform a praiseworthy action when they emancipate servants born in their house or purchased with money, even though they have often not done them any great service, from the slavery in which they are held, because of their own humanity by which they are influenced, how heavy ought to be the accusation which is brought against those who deprive of that most excellent of all possessions, freedom, those who are at present in possession of it; when it is an object for which man, who has been well born and properly brought up, would think it glorious to die? (16) And before now, some men, increasing their own innate wickedness, and directing the natural treachery of their characters to a violation of all rights, have studied to bring slavery not only upon strangers and foreigners, but even upon those of the same nation as themselves; and sometimes, even upon men of the same borough and of the same tribe, disregarding the community of laws and customs, in which they have been bred up with them from their earliest infancy, which nature stamps upon their souls as the firmest bond of good will in the case of all those who are not very intractable and greatly addicted to cruelty; (17) who, for the sake of lawless gain sell slaves to slave-dealers, and enslave them to any chance persons, transporting them to a foreign land, so that they shall never any more salute their native land, not even in a dream, nor taste of any hope of happiness. For these kidnappers would be committing a lighter iniquity if they themselves retained the services of those whom they have enslaved, but as the case stands at present they commit a double wrong, in selling them again, and thus making them two masters instead of one, and raising up two slaveries as enemies to their condition. (18) For they, being aware of the former prosperous condition of those whom they have carried off, might perhaps repent, feeling a tardy and late compassion for those who are thus fallen, having a proper awe of the uncertainty of fortune eluding all conjectures. But those who buy persons in this condition, out of ignorance of their families, will neglect them as if they were sprung from successive generations of slaves, having no inducement in their souls to display that gentleness and humanity towards them which it would be natural for them to preserve in the case of slaves who had become so after having been originally and naturally free-born. (19) And let whatever punishment the court of justice shall sentence them to be inflicted upon those who kidnap and enslave those of another nation; but upon those who kidnap those of their own country and of their own blood, and who sell them for slaves, shall be passed the unalterable sentence of death. For, in fact, one’s own countrymen are not far from blood relations, and they must very nearly come under the same definition with them.

CONCERNING DAMAGE

V. (20) "In the field also," as some one of the old writers has said, "lawsuits arise;" since covetousness and a desire for the possessions of others does not exist only in the city, but is found also outside the walls, inasmuch as it has its abode not only in various places, but also in the minds of insatiable and contentious men. (21) On which account those cities which enjoy the best codes of laws elect double superintendents, and rulers, and providers of a common regularity and safety; one class to manage within the walls, whom they call curators of the city; the others without the walls, to whom also they give an appropriate name, for they call them agrarian magistrates. But what need could there be of agrarian magistrates if there were not some persons in the fields living only for the injury of their neighbours? (22) If, therefore, any shepherd or goatherd, or oxherd, or in short any manager of any kind of cattle, drives his herds to feed and pasture upon another man’s land, sparing neither crops nor trees, he shall pay a fine equal to the value of those crops and trees. (23) And he may be very well content to escape with this punishment, having met with a very merciful and exceedingly indulgent law, which, though he has adopted the conduct of implacable foreign enemies, who are accustomed to lay waste the lands and to destroy the cultivated trees of the inhabitants, has, nevertheless, not chastised him as a common enemy, inflicting upon him death, or exile, or of, lastly, a confiscation of all his property; but has merely sentenced him to make good the damage done to the owner. (24) For as the lawgiver was always seeking pretexts by which to lighten whatever misfortunes have been suffered by reason of the excessive gentleness and humanity which he derived from nature and from habit, he found an excuse for the shepherd on the ground that the nature of cattle was inconsiderate and disobedient, and especially so when in pursuit of food. (25) Let the shepherd, then, be guilty, as having originally driven his herd into an unsuitable place, but still let him not bear the blame of every thing that has ensued from his doing so. For it is natural to suppose that, as soon as he perceived the mischief that had taken place he endeavoured to drive them out again, but that his beasts resisted him, luxuriating in the green pasture, and the tender crops, and shoots which they were devouring.

CONCERNING NOT SETTING FIRE TO BRAMBLES INCONSIDERATELY

VI. (26) And not only do those men do damage who devour the property of others with their flocks and herds, but so also do those who inconsiderately and carelessly kindle a fire; for if the power of fire catches hold of any appropriate fuel, it spreads in every direction, and extends and devours all around. And when it has once got ahead it defies all the means of extinguishing it which any one seeks to apply, taking the very things employed for that purpose as food for its increase, until having consumed every thing it is at last exhausted by itself. (27) It is right, therefore, never to leave any fire either in a house or in any stables in the fields unguarded, since we well know that a single spark has often smouldered long, and at last has been fanned into a flame, and so has consumed great cities, especially when the flame has been borne onwards by a favourable wind. (28) Accordingly, in savage wars the first, the middle, and the last power which is excited is that of fire, to which the enemies trust more than they do to their squadrons of infantry, or cavalry, or to their fleets, or to their unlimited supplies of arms and naval stores. For if any one with good aim shoots a fiery arrow among a numerous squadron of ships he may burn it with all the crews, or he may thus destroy vast camps with all their baggage, and furniture, and equipments, on which the army rested its hopes of victory. (29) If, then, any one scatters fire among a heap of brambles or thorns, and the fire kindles and burns a threshing floor full of wheat, or barley, or vetches, or sheaves of corn which have been gathered together, or any fertile plain full of pasture, then the man who scattered the fire shall pay the amount of the damage done, in order that by his suffering he may learn to take good care and to guard against the Beginnings ⁽²⁾ [This resembles Ovid, which may be translated--"Check the first rise: all remedy’s too late / When long delay has made the mischief great."] of things, and may not awaken and stir up an invincible power which might otherwise have remained quiet.

CONCERNING DEPOSITS

VII. (30) A deposit is the most sacred of all those things which relate to the associations of men with regard to property, inasmuch as it depends upon the good faith alone of the man who has received it. For loans are proved by contracts and writings, and things which, independent of loans, are openly used, have all the persons who see them for witnesses. (31) But this is not the case with deposits, but the owner by himself gives them privily to the man who receives them by himself, looking carefully round the place, and not even taking a slave with him for the purpose of carrying the thing to be deposited, even though he be ever so affectionate to his master; for each of the two parties appears to be anxious to avoid discovery; the one depositing the thing in order to receive it again, and the other being desirous not to be known to have received it. But we ought by all means to look upon the invisible God as an unseen third party to every concealed action, whom it is natural to make as a witness for both parties; the receiver calling him to witness that he will restore the deposit when it is demanded back from him, and the other making him to see that he receives it back at the proper time. (32) Let, then, the man who commits this great wickedness and denies his deposit not be ignorant that he has deceived him who committed it to him of his hope, and that he is concealing a wicked disposition under specious language, and that he is hypocritically pretending a bastard sort of faith while in reality faithless, showing that all his pledges are worthless and all his oaths disregarded, so that he neglects all human and all divine obligations; and that he is denying two deposits at once; firstly, the deposit of him who entrusted his property to his care; and secondly, that of that most unerring and infallible witness who sees all the actions of all men, and hears all the words of all men, whether they are willing that he should do so or not. (33) But if the man who has received a deposit as a sacred thing thinks that he ought to keep it without fraud, duly honouring truth and good faith, but yet others who are always plotting against their neighbours’ property, such as cutpurses or housebreakers, break in treacherously and steal the deposit so entrusted, then he shall pay as a penalty double the value of what has been stolen by the thieves. (34) And if they are not taken, then the man who received the deposit shall go of his own accord before the divine tribunal, and stretching out his hands to heaven shall swear by his own life that he himself had no hand in the theft from any desire to appropriate what had been deposited with him, and that he did not voluntarily give it up to any one else; and that, moreover, he is not making a false statement of a robbery which has never taken Place. ⁽³⁾ [Exo 22:7] For it would be absurd to punish a man who has done no wrong, or for a man who had taken refuge in the assistance of a friend when he was being injured by others, now to become the cause of injury to that friend. (35) And deposits consist not only of inanimate things but also of animals: the danger of which last is twofold; first, that while they share in common with inanimate things in being liable to be stolen, and also one which is distinct and peculiar to themselves, that they are liable to die. We have hitherto been speaking only of the first kind of deposit, but we must now also explain the law about the second. (36) If now any cattle which have been entrusted as a deposit die, then he who has received the deposit shall send for him who committed it to him, and show him the matter, protecting himself from any evil suspicion; but if the depositor be absent, then it is not proper to send for any one else, whose notice perhaps the depositor might have been desirous to escape; but when the depositor returns home, his friend shall swear to him that he has not been concealing any unjust appropriation of the animals by a false statement of their death. (37) And if any one receives anything not as a deposit, but because he has borrowed it to use, whether it is a vessel or an animal; then if he be robbed of it, whichever it may be, or if the animal die, while the man who lent it is living with the borrower, the borrower shall not be liable, as the owner himself can be brought as a witness that there is no false pretence in the business; but if the lender be not with him at the time, he shall pay the value. (38) Why so? because it is possible that the man who used the animal when the owner was not present may have either worn him out by continual labour so as to kill him, or may have worn out the vessel, from not taking any care of the property of another of which he ought to have been careful, and to have put it away, and not to have given thieves an easy opportunity of stealing it. (39) But as our lawgiver was acute beyond all other men at discerning the consequences of actions, he proceeds to enact a series of prohibitions, one after another, preserving a due connection between them, and taking care that his later commandments shall be consistent with his earlier cones. And with this harmonious connection of what was to be said by him, he tells us that he was divinely inspired by the person of God speaking to him in this manner:-- "Ye shall not steal.

"Ye shall not speak falsely, and bring false accusations against your neighbour.

"And ye shall not swear by my name to compass an unjust end, and ye shall not profane my Name." ⁽⁴⁾ [Lev 19:11]

(40) These injunctions are given with great beauty and very instructively; for the thief being convicted by his own conscience denies and speaks falsely, fearing the punishment which would ensue upon his confession. And he who denies an action seeks to attach the imputation to some one else, bringing a false accusation appear probable; and every false accuser is at once a perjured man, thinking but little of piety, since he has not just proofs; on which account he has recourse to what is called the inartificial mode of proof, that by oaths, thinking that by the invocation of God he shall produce belief among those who hear him. But let such an one know that he is ungodly and impious, inasmuch as he is defiling that which by nature is undefiled, the good and holy name of God.

THOU SHALT NOT BEAR FALSE WITNESS ⁽⁵⁾ [Exo 20:16]

VIII. (41) This is the ninth of the ten commandments, being the fourth in number of those in the second table; but one which is calculated to bestow ten thousand benefits on human life if it be kept, as, on the other hand, it may injure men in innumerable ways if it is neglected; (42) for the false accuser is to be blamed, but he who bears witness to what is false is more guilty still; for the one acts only from a desire to protect himself, but the other is wicked from his wish to co-operate with another in iniquity. And in the comparison of wicked men he who does wrong for his own sake is less unrighteous than he who does so for another. (43) And every judge looks with suspicion on an accuser, as likely to pay but little attention to truth for the sake of coming off in safety himself, on which account the accuser stands in need of a preface to beg the attention of the hearer while he is speaking; but if the judge has no prejudice against a witness on any personal grounds he receives his evidence with a willing mind and open ears, while he is covering over those most excellent things, truth and good faith, which specious language. And the false witnesses use seductive words as a sportsman uses bait for the purpose of attaining the objects which he desires and aims at. (44) For which reasons, in many parts of his enactment of the law, he commands that we should not approve of any wicked man or Action. ⁽⁶⁾ [Exo 23:1] For any approbation of what is not virtuous is likely to lead to giving false evidence; since every one to whom iniquity is a disagreeable and hateful thing is a friend of truth. (45) Now there is no great wonder in a man’s having connected himself with one wicked person, who has incited him to an action resembling his own character; but it is a sign of a noble soul, and of a disposition practised in manly resolutions not to follow a multitude to do evil, like a man borne down over a precipice by the collective force of a torrent. (46) For some people, among the multitude, think some things lawful and just, even though they be most flagitious, not judging correctly; for it is well to follow nature, but this impulse of the multitude is wholly at variance with the following of nature. (47) If, then, some persons, being assembled together in companies and numerous multitudes, attempt to make any innovations, one must not consent to them, since they are adulterating the ancient and approved coinage of the state; for one wise counsel is superior to many attempts, but ignorance, in conjunction with numbers, is a great evil; (48) but some persons practise such an excess of wickedness that they not only accuse mortal men, but adhere and cling to their unrighteousness, so as even to raise their lies as high as heaven, and to bear their testimony against the blessed and happy nature of God. And by these men I mean soothsayers, and diviners, and augurs, and all other persons who practise what they call divination studying, an art without any art, if one must tell the plain truth, a mere bare imitation of the real inspiration and prophetic gift; (49) for a prophet does not utter anything whatever of his own, but is only an interpreter, another Being suggesting to him all that he utters, while he is speaking under inspiration, being in ignorance that his own reasoning powers are departed, and have quitted the citadel of his soul; while the divine spirit has entered in and taken up its abode there, and is operating upon all the organization of his voice, and making it sound to the distinct manifestation of all the prophecies which he is delivering. (50) But all those persons who pursue the spurious and pretended kind of prophecy are inverting the order of truth by conjectures and guesses, perverting sincerity, and easily influencing those who are of unstable dispositions, as a violent wind, when blowing in a contrary direction, tosses about and overturns vessels without ballast, preventing them from anchoring in the safe havens of truth. For such persons think proper to say whatever they conjecture, not as if they were things which they themselves had found out, but as if they were divine oracles revealed to themselves alone, for the more complete inducement of great and numerous crowds to believe a deceit. (51) Such persons our lawgiver very appropriately calls false prophets, who adulterate the true prophecy, and overshadow what is genuine by their spurious devices; but in a very short time all their manoeuvres are detected, since nature does not choose to be always hidden, but, when a suitable opportunity offers, displays her own power with irresistible strength. (52) For as in the case of eclipses of the sun the rays which have, for a brief moment, been obscured, a short time afterwards shine forth again, exhibiting an unclouded and far-seen brilliancy without anything whatever coming over the sun at all, but one unalloyed blaze beaming forth from him in a serene sky; so also, even though some persons may deliver predictions, practising a lying art of prophecy, and disguising themselves under the specious name of prophetic inspiration, falsely taking the name of God in vain, they will be easily convicted. For, again, the truth will come forth and will beam forth, shedding around a most conspicuous light, so that the falsehood which has previously overshadowed it will disappear. (53) Moreover there also was an Excellent ⁽⁷⁾ [Num 35:30] commandment that Moses gave when he ordained that the judge should "not receive the testimony of one Witness." ⁽⁸⁾ [Deu 17:6; Deu 19:15] First of all, because it is possible that one person may without designing it have a false impression of a thing, or may be careless about it and therefore be deceived. For there are innumerable false opinions, which frequently arise from an innumerable variety of grounds; (54) and secondly, because it is most unjust to trust to one witness against many persons, or indeed against only one individual; in the first place, because many are more entitled to belief than one, since the one is not superior in number to many, and equality of number is inconsistent with any preponderance; for why should the judge trust a single witness, bearing testimony against another, rather than the defendant pleading in his own behalf? But, as it should seem, it is best to suspend one’s opinion, where there is no deficiency and no excess to guide the judgment.