(3) If the sun be risen upon him.—In the daytime no violence is to be feared. The housebreaker seeks to avoid observation, and decamps if discovered. Moreover, assistance is readily obtainable, and thus there is no need of resorting to extreme measures. The English law makes exactly the same distinction as the Mosaic.

For he should make full restitution.—Heb., restoring, he shall restore. It is not quite clear whether he is to restore double; but so most commentators understand the passage.

If he have nothing.—Rather, if he have not enough. If he cannot make the full restitution of the preceding verse, then “he shall be sold for his theft.” He shall become the slave for the term of six years of the man whom he has robbed, and in that way pay his debt.

Exodus 22:3-4. For he should make full restitution — This the law determined: not that he should die. In his hand alive — Not killed, nor sold, as Exodus 22:1, so that the owner recover it with less charge and trouble.

22; 1 - 31 Judicial laws. - The people of God should ever be ready to show mildness and mercy, according to the spirit of these laws. We must answer to God, not only for what we do maliciously, but for what we do heedlessly. Therefore, when we have done harm to our neighbour, we should make restitution, though not compelled by law. Let these scriptures lead our souls to remember, that if the grace of God has indeed appeared to us, then it has taught us, and enabled us so to conduct ourselves by its holy power, that denying ungodliness and wordly lusts, we should live soberly, righteously, and godly in this present world, Titus 2:12. And the grace of God teaches us, that as the Lord is our portion, there is enough in him to satisfy all the desires of our souls.If a thief, in breaking into a dwelling in the night, was slain, the person who slew him did not incur the guilt of blood; but if the same occurred in daylight, the slayer was guilty in accordance with Exodus 21:12. The distinction may have been based on the fact that in the light of day there was a fair chance of identifying and apprehending the thief. CHAPTER 22

Ex 22:1-31. Laws concerning Theft.

1-4. If a man shall steal an ox, or a sheep—The law respects the theft of cattle which constituted the chief part of their property. The penalty for the theft of a sheep which was slain or sold, was fourfold; for an ox fivefold, because of its greater utility in labor; but, should the stolen animal have been recovered alive, a double compensation was all that was required, because it was presumable he (the thief) was not a practised adept in dishonesty. A robber breaking into a house at midnight might, in self-defense, be slain with impunity; but if he was slain after sunrise, it would be considered murder, for it was not thought likely an assault would then be made upon the lives of the occupants. In every case where a thief could not make restitution, he was sold as a slave for the usual term.

There shall be blood shed for him; he that kills him shall be put to death, because he punished him more than his crime deserved, and might have been otherwise either secured or righted; and in that case, it is probable, the thief designed not murder, but theft only. But if it were evident that the housebreaker designed murder, he might doubtless kill him in his own defence.

He shall be sold; either so long till his service was worth the thing stolen, or rather for the ordinary time of six years, because this was not a simple thief, but a housebreaker, which was much worse.

Quest. How can he be sold, who is supposed to be killed?

Answ. 1. The Hebrew word may be better rendered should be sold, as the foregoing word of the same future time is rendered, should make restitution, to wit, if he were not killed; and therefore the killer of him being sufficiently secured against this injury, was more culpable in killing him without necessity.

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,"if it is as clear as the sun (and so Jarchi), that not to kill any he entered, and he should kill him, there is guilt of shedding innocent blood:''because coming at broad daylight, and when the sun was up, it was a plain case he came not with a design to murder, but only to steal; besides, being at such a time, the master of the house could call for help and assistance, and take him; which is what is suggested he should do, and not take away his life, but oblige him, if he had got any of his goods, to restore them, as follows:

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 (b) observes: and it is a canon with the Jews (c), that,"an Hebrew servant whom the sanhedrim sell, they do not sell him but to an Israelite, or to a proselyte of righteousness;''according to the Targum of Jonathan, it seems as if he was to be sold to the person from whom he stole, since it is,"he shall he sold to him;''but if not, however, the price he was sold at was to be given to him for a recompence of his loss; so says Maimonides (d),"if he have not goods, neither movable nor immovable the sanhedrim sell him, and give the price to him that is injured, as it is said: "if he have nothing", &c. and adds, a man is sold for his theft but not a woman (e):''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 (f): 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 (g) or, as elsewhere expressed (h), 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.

(b) Antiqu. l. 16. c. 1. sect. 1.((c) Maimon. Abadim. c. 1. sect. 3.((d) Hilchot Genubah, c. 3. sect. 11. (e) So Misn. Sotah, c. 3. sect, 8. (f) A. Gell Noct. Attic. l. 11. c. 18. (g) Ib. (h) Ib. l. 20. c. 1.

If the sun be risen upon him, there shall be {c} blood shed for him; for he should make full restitution; if he have nothing, then he shall be sold for his theft.

(c) He shall be put to death that kills him.