John Gill Commentary Exodus 22

If a man shall steal an ox or a sheep In which the substance of men chiefly lay in those times, and particularly the people of Israel, who were now come out of Egypt, with their flocks and herds, and these lying near together, were the more liable to be stolen; and hence also the laws in the preceding chapter concerning oxen and damages done by them, and oxen and sheep are only mentioned; perhaps chiefly because used in sacrifice, as well as serviceable for other things; not but that stealing other cattle and other things were criminal and forbidden, and to be punished in proportion:

and kill it, or sell it either of which cases would plainly show that he took it away with an intention to deprive the owner of it, and to convert it to his own use:

he shall restore five oxen for an ox , and four sheep for a sheep; the reason of this difference, five being obliged to be given for the one, and but four for the other, is, because the one was more valuable than the other, as well as more useful, and also more easily stolen, and therefore the greater mulct or fine was laid upon the theft of it, to deter from it:

the Targum of Jonathan expresses the reason of the law thus; five for oxen, because the theft of them hindered from ploughing, or made to cease from it; and for sheep but four, because there was trouble in the theft of them, and there was no tillage or agriculture by them: and Saadiah Gaon observes, that the damage that comes to the owner of the ox is more than that by a lamb, because with it, the ox, he ploughs, which is a creature that was used in those countries to be employed in that service, as well as in treading out the corn:

Maimonides ^F21 accounts for it thus, ``the restitution of the theft of oxen is increased by one, because the theft of them is easy; sheep are fed in flocks, and are easily kept and watched, and can scarcely be taken away by theft but in the night; but oxen are fed scattered here and there, and therefore cannot be so easily kept by the herdsmen; hence also their theft used to be more common:''

four fold restitution was in use with the ancient Persians, with whom it was a rule, ``whoever took any substance of another, in retaliation they took fourfold from him, and if he restored it, he gave fourfold of the same ^F23 .''

FOOTNOTES:

• F21: Moreh Nevochim, par. 3. c. 41.
• F23: Lib. Shed-dar, apud Hyde Relig. Vet. Pers. p. 472.

If a thief be found breaking up
A house, in order to steal money, jewels, household goods or breaking through any fence, hedge, or wall of any enclosure, where oxen, or sheep, or any other creatures are, in order to take them away: the Targum of Jonathan is,

``if in the hole of a wall (or window of it) a thief be found;'' that is, in the night, as appears from the following verse, "if the sun" to which this is opposed, as Aben Ezra observes; some render it, with a digging instrument <sup>F24</sup> ; and it is a Jewish canon <sup>F25</sup> , that ``if anyone enter with a digging instrument: he is condemned on account of his end;'' his design, which is apparent by the instrument found upon him;

for, as Maimonides ^F26 observes, ``it is well known, that if anyone enters with a digging instrument, that he intends, if the master of the house opposes him to deliver his goods out of his power, that he will kill him, and therefore it is lawful to kill him; but it does not matter whether he enters with a digging instrument, either by the way of the court, or roof;''

and be smitten that he die
be knocked down with a club, by the master of the house, or any of his servants, or be run through with a sword, or be struck with any other weapon, to hinder him from entrance and carrying off any of the goods of the house, and the blow be mortal:

there shall no blood be shed for him: as for a man that is murdered; for to kill a man when breaking into a house, and, by all appearance, with an intention to commit murder, if resisted, in defence of a man's self, his life and property, was not to be reckoned murder, and so not punishable with death:

or, "no blood" shall be "unto him" ^F1 ; shall be imputed to him, the man that kills the thief shall not be chargeable with his blood, or suffer for shedding it; because his own life was risked, and it being at such a time, could call none to his assistance, nor easily discern the person, nor could know well where and whom he struck.

FOOTNOTES:

• F24: (trtxmb) "cum perfossorio", Pagninus; "cum instrumento perfosserio", Tigurine version.
• F25: Misn. Sanhedrin, c. 8. sect. 6.
• F26: Comment. in ib.
• F1: (Mymd wl Nya) "non ei sanguines", Montanus, Vatablus, Drusius.

If the sun be risen upon him
Either upon the thief, or upon the master of the house, or the person that finds the thief and smites him that he dies; it matters not which it is interpreted, it is true of both, for when it is risen on the one, it is on the other:

[there shall be] blood [shed] for him ;
the person that kills him shall die for it: the Targum of Jonathan is,

for he should makes full restitution ;
by returning them and as much more, as the following verse shows:

if he have nothing, then he shall be sold for his theft,
by the sanhedrim, or court, of judicature: as the Targum of Jonathan, before whom he should be brought, and the theft proved upon him, and unto the year of the remission or release, as the same Targum; nor were such to be sold to strangers, or to serve forever, for they were to be dismissed after six years, as Josephus ^F2 observes: and it is a canon with the Jews ^F3 , that,

From hence it appears that theft was not a capital crime by the law of Moses: Draco is said to be the first who made it so; but his law being thought by the Athenians to be too severe, was annulled by them ^F6 : the law of the twelve tables, with the Romans greatly agrees with the Mosaic laws about theft; these permitted to kill a thief who should be taken in open theft, if either when he committed the theft it was night or if in the daytime, and he defended himself with weapons when about to be taken ^F7 or, as elsewhere expressed ^F8 , an open thief was delivered to servitude to him who was robbed, but nocturnal thief it was lawful to kill by the law of the twelve tables.

FOOTNOTES:

• F2: Antiqu. l. 16. c. 1. sect. 1.
• F3: Maimon. Abadim. c. 1. sect. 3.
• F4: Hilchot Genubah, c. 3. sect. 11.
• F5: So Misn. Sotah, c. 3. sect, 8.
• F6: A. Gell Noct. Attic. l. 11. c. 18.
• F7: Ib.
• F8: Ib. l. 20. c. 1.

If the theft be certainly found in his hand alive
Or, "in finding be found" ^F9 , be plainly and evidently found upon him, before witnesses, as the Targum of Jonathan; so that there is no doubt of the theft; and it is a clear case that he had neither as yet killed nor sold the creature he had stolen, and it could be had again directly, and without any damage. It would also appear by this that he was not an old expert thief, and used to such practices, since he would soon have made away with this theft in some way or another:

whether it be ox, or ass, or sheep ,
or any other creature; and even, as Jarchi thinks, anything else, as raiment, goods

he shall restore double ;
two oxen for an ox, two asses for an ass, and two sheep for a sheep: and, as the same commentator observes, two living ones, and not dead ones, or the price of two living ones: so Solon made theft, by his law, punishable with death, but with a double restitution ^F11 ; and the reason why here only a double restitution and not fourfold is insisted on, as in (Exodus 22:1) is, because there the theft is persisted in, here not; but either the thief being convicted in his own conscience of his evil, makes confession, or, however, the creatures are found with him alive, and so more useful being restored, and, being had again sooner, the loss is not quite so great.

FOOTNOTES:

• F9: (aumt aumh) "inveniendo inventum fuerit", Pagninus, Montanus, Piscator.
• F11: A. Gell, l. 11. c. 18.

If a man causes a field or vineyard to be eaten
Which is not his own, by putting cattle into it to feed upon it, as it is explained in the next clause:

and puts in his beast, and feeds in another man's field ;
does damage in one or both those two ways, either by his feet treading down the grass and fruits of the earth,which the Rabbins, as Jarchi says, think, is meant by putting in his beast; or with his beast eating up thesame, which is intended by the latter phrase:

of the best of his own field, and of the best of his own vineyard,
he shall make restitution
for what damage is done by his beast in his neighbour's field or vineyard; and this held good of any gardenor orchard injured in like manner.

And it is a general rule with the Jews, that when any damage is sustained, he that does the damage is obliged to pay with the best the earth produces ^F12, even though better than was the man's that suffered the loss, so that in the future he might be more careful of doing injury to another ^F13.

FOOTNOTES:

• F12: Misc. Bava Kama, c. 1. sect. 1.
• F13: Bartenora in Misn. Gittin, c. 5. sect. 1.