Commentaria in Exodum
IF HE HAVE NOTHING (namely the thief) TO RESTORE FOR THE THEFT, HE SHALL BE SOLD. The Hebrews often omit the subject (such as the thief is here), and leave it to be understood from what has been said before, as if known.
4. IF THAT WHICH HE STOLE BE FOUND WITH HIM ALIVE, EITHER OX, OR ASS, OR SHEEP, HE SHALL RESTORE DOUBLE. Note: alive, and with him. For if he had killed or sold the ox or sheep, he had to restore not two but five for one ox, four for one sheep, as has been said in verse 1. But if the living animal was found with the thief, then the thief had to restore only two for one. The reason of the difference was that in the former case the fault and injury were greater, both because there the thief had not only stolen the animal but had also killed or sold it, and because there was no hope of restitution with him; both of which were otherwise with a thief who still kept the stolen animal alive; for it could easily and in many ways be restored to its owner and return to him. Now among Christians, to whom theft is a greater crime, to restrain the licence of thieving and for the necessary peace of the commonwealth, thieves, even if they keep the stolen thing alive or whole, are justly punished by hanging.
The emperor Alexander Severus was so great an avenger of theft that, if he saw any such man, he had his finger ready to put out his eye; indeed one of the honourable men, caught in theft, he at once ordered to be crucified by law. He likewise proclaimed by a herald: “Let no one salute the prince who knows himself to be a thief.” He could not even bear to look upon those infamous on suspicion of theft; so that when Septimius Arabinus, who had been notorious for thefts under Heliogabalus and was set free, came among the senators to salute the prince, he cried out: “O ye powers, O Jupiter, O immortal gods! Arabinus not only lives, but even comes into the senate. Perhaps he hopes—does he think me so silly, so foolish?” Lampridius is witness, in his Life. Diogenes in Laertius, book 6, seeing a thief led away who had taken a bowl from the treasury, said: “The great thieves lead away the small.” Would that this could not truly be said of some Christian magistrates, by whom a man who has taken ten drachmas is sometimes driven to the halter, while they themselves grow rich with impunity by great thefts, or rather by embezzlement!
Note that it says, “either ox or sheep:” under these, by parity of reason, all cattle and flocks, and all animals, great as well as small, are to be understood, says Cajetan.
5. IF ANY MAN HURT A FIELD OR A VINEYARD, AND PUT IN (that is, so as to put in, or by putting in, as is plain from the Hebrew) 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 VINEYARD.
6. IF FIRE BREAK OUT (spreading) 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. Note the word thorns. For so it must be read, not ears of corn, as is plain from the Hebrew, Chaldee, Septuagint and Roman. For this law commands that if any man, through his negligence, have not watched the fire he kindled, nor taken care that it should not spread, so that the fire seized the thorns which hedged the crop and thence the crop itself, he is bound to make good the damage; the judgment was alike if the fire seized flax or hemp, or trees, etc.
Law of the deposit. Verses 7, 8. IF THE THIEF BE NOT KNOWN (who stole the thing entrusted, that is, the deposit), THE MASTER OF THE HOUSE (in which the deposit was stolen) SHALL BE BROUGHT TO THE GODS (to the judges), AND SHALL SWEAR THAT HE DID NOT LAY HIS HAND UPON HIS NEIGHBOUR’S GOODS—as if to say: If any thief has stolen a deposit, the depositary with whom the thing was deposited, and to whom it was entrusted, being called into court shall come before the judges, and shall clear himself by oath, and prove his innocence of the theft.
9. AND WHATSOEVER MAY BRING DAMAGE. The Hebrew is, concerning every lost thing which he shall say, because it is that, namely which I lost through the depositary; as if it said: Concerning every fault which he lays upon the depositary.
THE CAUSE OF BOTH PARTIES (as well of the depositor who lost his property as of the depositary with whom the thing was stolen) SHALL COME TO THE GODS (that is, the judges), AND IF THEY GIVE JUDGMENT, HE SHALL RESTORE DOUBLE TO HIS NEIGHBOUR. The Hebrew is, whom the judges shall condemn shall restore double to his neighbour, which Cajetan and some others understand of either party, as if to say: Whichever of the two, whether the depositary who is the accused, or the depositor who is the accuser, if he be condemned, must pay double: the depositary, because he guarded the deposit wickedly and fraudulently, or even stole it himself, or shared it with the thief; the depositor (if he be condemned), because he falsely laid the calumny of theft and unfaithfulness on the depositary, who was innocent.
But our Interpreter better explains this place of the depositary alone, who is the one accused, as if to say: The depositary, who by the judges shall be condemned of theft, or of collusion with the thief, shall pay double of what by his fault was lost and stolen. For the question here is of the depositary who is accused; his it is to restore the deposited thing, as is said here; but of the depositor nothing is said here; for if he is the accuser and falsely accuses the depositary by calumny, that he is to undergo the same penalty by the law of retaliation is enacted not here but in Deuteronomy 19:19.
10. AND NO MAN SAW IT—who could take heed, nor any who could be a witness; as if to say: If he cannot prove his innocence by witnesses, let him purge himself by oath, and let the end of the controversy be an oath by the most holy name of God; for in the Hebrew the name of God, the Tetragrammaton, is added.
11. AND THE OWNER (the master or possessor, as the Hebrew has, of the sheep or lost animal) SHALL ACCEPT OF THE OATH.
12. BUT IF IT BE TAKEN AWAY BY STEALTH, HE SHALL MAKE THE DAMAGE GOOD TO THE OWNER—if, namely, it was by his fault or negligence, that is, of the depositary, that the thing was stolen. Whence the Hebrew adds, if with him, that is, if with his knowledge or sight, or when he could easily have known or seen and guarded against it (for so “with him” is taken in verse 15, as all there translate and explain), the thing was stolen, then he shall be bound to restore the thing stolen. This verse is set against the preceding one, in which was added, “and no man saw it;” for that spoke of him from whom, without fault, the thing was taken; for he was blameless.
There are therefore here three cases concerning a deposit, and three laws. First, if the depositary by fraud has made away with the deposited thing, he shall restore double, as is decreed in verse 9. Second, if he has committed no fraud, but through his negligence the deposited thing was stolen, he shall restore the single value, namely the thing itself or its price, as is decreed in this verse 12.
Third, if without his knowledge and negligence the thing was secretly stolen, he shall be held innocent and restore nothing, as is decreed in verses 10 and 11.
13. IF IT BE EATEN BY A BEAST, LET HIM BRING TO HIM THAT WHICH WAS SLAIN, AND HE SHALL NOT MAKE RESTITUTION. The Hebrew sense is this: “If it was seized by rapine, or torn by a beast, he shall bring the very witness, namely that which was torn, and shall not restore.” So the Chaldee, and the Septuagint agree. Whence our Vulgate translates most briefly and best.