John Calvin Commentary Exodus 22

Up to this point, God has proclaimed Himself the avenger of iniquities and, summoning thieves before His tribunal, has threatened them with eternal death. Now follow the civil laws, whose principle is not as exact and perfect, since in their enactment God relaxed His just severity considering the people’s hardness of heart.

What God previously delivered to His people, pagan legislators afterward borrowed.

Draco, indeed, was more severe, but his extreme rigor became obsolete through the silent consent of the people of Athens. The Decemvirs borrowed from Solon part of their law, which they published in the Ten Tables, although there were some variations in the distinction of the double or quadruple restitution, and over time other alterations were later made.

But if all things are duly considered, it will be found that both Solon and the Decemvirs made a change for the worse wherever they deviated from the law of God.

First of all, no distinction¹³² is made here, such as the Roman laws decree, between manifest thieves and those that are not manifest. For by Roman law, the thief not manifest is condemned to double restitution, and the manifest thief to quadruple. A manifest thief is defined as one who is caught before he has carried what he has stolen to its intended destination.

I suppose that those who assigned the punishment had this in mind: that the wickedness of the person was more egregious if they were so greedily and anxiously set on their prey as not to be afraid of disgrace. Undoubtedly, one who has no fear of shame is more audacious in sin.

But, on the contrary, God condemns to double restitution those on whom the stolen goods were found, and to quadruple restitution those who had killed or sold the stolen item. And rightly so, because greater obstinacy in crime reveals itself where the theft is turned into profit, and there is no hope of repentance. Thus, by this further action, the crime of dishonesty is doubled.

A thief might be alarmed immediately after the offense, but one who has dared to kill the stolen animal or sell it is altogether hardened in his sin.

Besides, the more difficult its investigation, the greater the punishment a misdemeanor deserves.

Meanwhile, it must be remembered that the monetary fine imposed on thieves did not free them from guilt. For, as Marcellus says,¹³³ not even the governor of a province can ensure that infamy does not pursue a man condemned for theft; and there was no need to establish by law something on which all people naturally agree. Thus, when God punished thieves with a fine, He still left them marked by infamy.

I do not know whether they¹³⁴ assign the true reason why one who had stolen an ox is fined a larger amount than one who had stolen a goat, sheep, or other cattle. Some suggest that the owner's loss is taken into account, as the labor of the ox is especially useful in agriculture; for what is said about an ox, I extend to cows and the whole herd. Others, who seem to come nearer to the truth, say the thief's audacity is punished, since in stealing the larger animal, he did not fear being observed by witnesses. Yet, it seems more likely to me that the different sentence depended on the price of the item. For certainly, it is more reasonable that one who has done the most harm should be exposed to the greater punishment.

If a thief be found breaking up. This clause is to be taken separately and is inserted parenthetically. For, after having decreed the punishment, God adds, he should make full restitution; if he have nothing, then he should be sold for his theft; and this exception regarding the thief in the night is introduced parenthetically.

But although the details are not expressed with sufficient clarity, the intention of God is still not at all ambiguous: namely, that if a thief should be killed in the dark, his killer should go unpunished. This is because he can then hardly be distinguished from a robber, especially when he proceeds with violence. Indeed, he cannot enter another person’s house by night without either digging through a wall or breaking down a door.

The Twelve Tables¹³⁵ differ slightly from this, for they permit the killing of a thief by night, and also by day if he defends himself with a weapon.

But, since God had sufficiently addressed murders and violent assaults through other laws, He is silent here regarding robbers who use the sword in their attempts at plunder. He therefore justly condemns to death those who have avenged by murder a theft committed in broad daylight.

He should make full restitution. These words, as I have said, are connected with the first verse, since here the execution of the punishment is only prescribed; as if God forbade thieves to be spared, but rather that they should pay either twofold or quadruple, or even quintuple, according to the measure of their crime. But if they were unable to pay, He commands them to be sold as slaves, which was also the custom at Rome. Hence the saying of Cato,¹³⁶ "that private thieves lived in bonds and fetters, but public ones in gold and purple." And since this condition was a harsh one, a caution is expressly given that they were not to be absolved on account of their poverty.

If anyone should ask whether it was lawful for the owner of the stolen item to recover double or quadruple its value, I answer that what God awards, a person is fully entitled to. Meanwhile, in equity, people were bound to take care that they did not grow rich at the expense of others; rather, they should apply whatever they gained to pious and holy uses.

If a man shall cause a field or vineyard to be eaten. This kind of fraud is justly ranked among thefts; namely, if any man has put in his animal to feed in another’s field or vineyard. For if a person has made improper use of his servant, using him to steal, he himself is deemed guilty of the offense, even though he may have touched nothing with his own hand; nor does he who has caused injury through an animal do any less wrong. Still, God restricts the punishment to a compensation of double the amount, because it cannot be certainly established that the master of the animal intended to cause the damage fraudulently and intentionally; yet He requires the loss to be made up at the highest estimate of its value; ¹³⁸ for this is how I interpret the goodness of his field and his vineyard: that after the place has been examined, generous restitution is to be awarded to its owner, according to the maximum it would likely have produced at its peak fertility.