Commentaria in Exodum
Chapter Twenty-two
He goes on to enact judicial laws concerning theft, verse 1; concerning a deposit, verse 7; concerning a loan, verse 14; concerning fornication, verse 15; concerning sorcerers, verse 18; concerning charity toward strangers, widows and orphans, verse 21; concerning usury, verse 25.
1. If any man steal an ox or a sheep, and kill or sell it: he shall restore five oxen for one ox, and four sheep for one sheep. 2. If a thief be found breaking open a house or undermining it, and be wounded so as to die: he that slew him shall not be guilty of blood. 3. But if he do this when the sun is risen, he hath committed murder, and he shall die. If he have nothing, he shall be sold for the theft. 4. If that which he stole be found with him alive, either ox, or ass, or sheep: he shall restore double. 5. If any man hurt a field or a vineyard, and put in his beast to feed upon that which is other men’s: he shall restore the best of whatsoever he hath in his own field, or in his vineyard, according to the estimation of the damage. 6. If fire break out, and meeting with thorns, catch hold of stacks of corn, or corn standing in the fields: he that kindled the fire shall make good the loss. 7. If a man deliver money, or any vessel unto his friend to keep, and it be taken away by stealth from him that received them: if the thief be found, he shall restore double. 8. If the thief be not known, the master of the house shall be brought to the gods, and shall swear that he did not lay his hand upon his neighbour’s goods, 9. To commit any fraud, as well in an ox, as in an ass, and a sheep, and a garment, and whatsoever may bring damage: the cause of both parties shall come to the gods: and if they give judgment, he shall restore double to his neighbour. 10. If a man deliver to his neighbour’s custody an ass, an ox, a sheep, and any beast, and it die, or be hurt, or be taken by enemies, and no man saw it: 11. There shall be an oath between them, that he did not put forth his hand to his neighbour’s goods: and the owner shall accept of the oath: and he shall not be compelled to make restitution. 12. But if it be taken away by stealth, he shall make the damage good to the owner. 13. If it be eaten by a beast, let him bring to him that which was slain, and he shall not make restitution. 14. He that borroweth of his neighbour any of these things, and it be hurt or die, the owner not being present, shall be compelled to make restitution. 15. But if the owner be present, he shall not make restitution: especially if it were hired, and came for the hire of his work. 16. If a man seduce a virgin not yet espoused, and lie with her: he shall endow her, and have her to wife. 17. If the maid’s father will not give her to him, he shall pay money according to the dowry, which virgins are wont to receive. 18. Wizards thou shalt not suffer to live. 19. He that lieth with a beast, shall be put to death. 20. He that sacrificeth to gods, save only to the Lord, shall be put to death. 21. Thou shalt not molest a stranger, nor afflict him: for yourselves also were strangers in the land of Egypt. 22. You shall not hurt a widow or an orphan. 23. If you hurt them they will cry out to me, and I will hear their cry: 24. And my fury shall be enkindled, and I will strike you with the sword, and your wives shall be widows, and your children fatherless. 25. If thou lend money to any of my people that is poor, that dwelleth with thee, thou shalt not be hard upon them as an extortioner, nor oppress them with usuries. 26. If thou take of thy neighbour a garment in pledge, thou shalt give it him again before sunset. 27. For that same is the only thing wherewith he is covered, the clothing of his body, neither hath he any other to sleep in: if he cry to me, I will hear him, because I am compassionate. 28. Thou shalt not speak ill of the gods, and the prince of thy people thou shalt not curse. 29. Thou shalt not delay to pay thy tithes and thy firstfruits: the firstborn of thy sons thou shalt give to me. 30. Of thine oxen also and thy sheep thou shalt do in like manner: let it be seven days with its dam, the eighth day thou shalt give it to me. 31. You shall be holy men to me: the flesh that beasts have tasted of before, you shall not eat, but shall cast it to the dogs.
Verses 1–4. IF ANY MAN STEAL AN OX OR A SHEEP, AND KILL OR SELL IT, HE SHALL RESTORE FIVE OXEN FOR ONE OX, AND FOUR SHEEP FOR ONE SHEEP. Question: Why is the thief of an ox bidden to restore five oxen, and the thief of a sheep not five but only four sheep? Theodoret answers, because a greater theft is to be punished with a greater penalty and fine; and the theft of an ox is greater than that of a sheep, because an ox is of greater price than a sheep. Add that the thief of an ox is justly driven to render a fifth ox, that by it he may make good the loss which the owner of the ox suffered in his tillage through the theft; for the sheep does not serve for this, as the ox and the horse do. To this Strabo alludes in the Gloss: God bids, he says, that the thief restore five oxen for one ox, because the ox has five uses: first, it is sacrificed; second, it feeds with its flesh; third, it ploughs; fourth, it gives milk; fifth, it gives hide. The sheep brings only four conveniences: first, it is sacrificed; second, it feeds with its flesh; third, it gives milk; fourth, it gives wool. This is a fitness, not a cause.
Mystically, the ox signifies the teacher of the people, the sheep the hearer and disciple; hence he who takes away or perverts the teacher is punished more heavily than he who does so to the hearer. See Rabanus.
3. BUT IF HE DO THIS WHEN THE SUN IS RISEN (if he kill the thief), HE HATH COMMITTED MURDER, AND HE SHALL DIE. Note: Here God enacts that he who kills a thief by day is guilty of death, but he who kills a thief by night is not; the latter might therefore be killed, not the former. The reason of the difference is that the force and intention of a night thief are uncertain; for it is not known whether he comes only to steal, or also to kill. Again, because at night the thief cannot be recognised, so that the owner could demand his stolen goods back from him by a judgment. Thirdly, because a night thief cannot be so safely repelled or seized as a day thief; for by day the father of the household has the help of his household and neighbours at hand, and can call them at once. The same distinction of the day thief and night thief, as to killing him, is found in canon law, Extrav., De homicidiis, chapter Si perfodiens, from St. Augustine, and it is derived from this ordinance of God.
Understand this to hold if the thief only steals; for if he should further defend the theft with sword or arms, a day thief could be killed just as a night thief. So Augustine, Question 84, which the civil law also enacted, as may be seen in the law Furem, Digest, ad legem Corneliam, De sicariis.
AND HE SHALL DIE—namely he who kills a day thief; the Hebrew is, rendering he shall render blood to him, as if to say: He shall give his own blood for the blood of the thief shed by him;
for when the thief has been slain (on account of the injury done him by the slaughter), the blood of the slayer is in a manner owed. The Chaldee refers this to the thief, and renders, paying he shall pay, the thief, that is, shall restore his theft. But our Vulgate and the Septuagint better refer these words not to the thief but to the slayer of the thief.