EXPOSITION
THE BOOK OF THE COVENANT, continued.
Laws connected with rights of property, continued (Exodus 22:1-2). The fret section—Exodus 22:1-2—is upon theft. The general principle laid down is, that theft shall be punished if possible, by a fine. There is a moral fitness in this, since a man's desire to get what was his neighbour's would lead to the loss of what was his own. In ordinary cases the thief was to restore to the man robbed double of what he had stolen (Exodus 22:4) but, if he had shewn persistence in wrong doing by selling the property, or (if it were an animal) killing it, he was to pay more—fourfold in the ease of a sheep, fivefold in that of an ox. If the criminal could not pay the fine, then he was to be sold as a slave (Exodus 22:3). Burglary, or breaking into a house at night, might be resisted by force, and if the burglar were killed, the man who killed him incurred no legal guilt (Exodus 22:2); but, if the house were entered by day, the proviso did not hold (Exodus 22:3).
Laws about theft.
If a man shall steal an ox. The principal property possessed by the Israelites in the wilderness was their cattle; whence this occurs to the legislator as the thing most likely to be stolen. It required more boldness in a thief to carry off an ox than a sheep or goat; and so the crime was visited with a heavier penalty.
If a thief be found breaking up. Rather, "Breaking in"—i.e; making forcible entry into a house. The ordinary mode of "breaking in" seems to have been by a breach in the wall. Hence the word here used, which is derived from khathar, "to dig." There shall no blood be shed for him. Rather, "the blood-feud shall not lie upon him"—i.e; the avenger of blood shall not be entitled to proceed against his slayer. The principle here laid down has had the sanction of Solon, of the Roman law, and of the law of England. It rests upon the probability that those who break into a house by night bare a murderous intent, or at least have the design, if occasion arise, to commit murder.
If the sun be risen upon him. If the entry is attempted after daybreak. In this case it is charitably assumed that the thief does not contemplate murder. There shall be blood shed for him. Or, "the blood-feud shall hold good in his case"—i.e; his slayer shall be liable to be put to death by the next of kin. For he should make full restitution. Rather, "He shall make full restitution." The punishment of the housebreaker, who enters a house by day, shall be like that of other thieves—to restore double. If he have nothing. Rather, "if he have not enough"—i.e; if he cannot make the restitution required, then he shall be sold for his theft. It is somewhat fanciful to suppose, that this punishment aimed at enforcing labour on those who preferred stealing to working for their own living (Kalisch). Probably the idea was simply the compensation of the injured party, who no doubt received the proceeds of the man's sale.
If the theft be certainly found in his hand. If he be caught in flagrante delicto, with the thing stolen in his possession, "whether it be ox, or ass, or small cattle," he shall restore double. The law of theft in the Mosaic legislation is altogether of a mild character, as compared with the Roman, or even with the English law, until the present century. Double restitution was a sort of "retaliation"—it involved a man losing the exact amount which he had expected to gain
HOMILETICS
Punishment, even for one and the same offence, should be graduated.
Some codes treat a crime which can be given a single definite name, e.g; theft, as if it were in all cases uniform, and prescribe a single penalty—death, the bastinado, a month's imprisomnent. The Mosaic Law, with greater refinement and greater propriety, graduated the punishment according to the special character of the offence. The worst form of theft proper is burglary. Burglary destroys the repose of the household, introduces a feeling of insecurity, trenches upon the sacredness of the hearth, endangers life, affrights tender women and children. By permitting the destruction of the burglar, the law pronounced him worthy of death. Other forms of thieving were punished in proportion to the audacity and persistence of the thief. A man who had stolen without converting the property, was to pay back double. If he had converted it to his own use, or sold it, the penalty was heavier—fourfold for a sheep or goat, fivefold for an ox. There was especial audacity in stealing an ox—an animal so large that it could not readily be converted; so powerful that it could not easily be carried off. The graduation of punishment for all crimes is desirable—
I. BECAUSE THE SAME OUTWARD OFFENCE INVOLVES VARIOUS DEGREES OF INWARD WICKEDNESS; e.g; homicide varies between absolute blamelessness (Exodus 22:2) and the highest degree of culpability (Exodus 21:14). Assault may be the lightest possible matter, or approach closely to murder. False witness may arise from imperfect memory, or from a deliberate design to effect a man's ruin. Lies may be "white," or the blackest falsehoods which it is possible for the soul of man to invent. Punishment is, and ought to be, in the main retributive; and as the moral guilt varies, so should the penalty.
II. BECAUSE THE OUTWARD OFFENCE ITSELF IS MORE OR LESS INJURIOUS. By an act of stealing we may rob a man of a trifle, or reduce him to beggary. By a blow of a certain force we may inflict on him a slight pain, or render him a cripple for life. By a false statement in a court of justice we may do him no harm at all, or we may ruin his character. All crimes short of homicide vary in the extent to which they injure a man; and it is reasonable that the amount of injury received should be taken into consideration when punishment is apportioned. Therefore, a rigid unbending law, assigning to each head of crime a uniform penalty would be unsuitable to the conditions of human life and the varying motives of criminals. A wise legislator will leave a wide discretion to those who administer justice, trusting them to apportion to each offence the punishment which under the circumstances it deserves.