2. If a thief be found breaking up. This clause is to be taken separately, and is inserted by way of parenthesis; for, after having decreed the punishment, God adds in connection, “he should make full restitution; if he have nothing, then he should be sold for his theft;” and this exception as to the thief in the night is introduced parenthetically. But although the details are not expressed with sufficient distinctness, still the intention of God is by no means ambiguous, viz., that if a thief should be killed in the dark, his slayer should be unpunished; for he can then hardly be distinguished from a robber, especially when he proceeds with violence; because he cannot enter another man’s house by night without either digging through a wall or breaking down a door. The Twelve Tables (135) differ slightly from this; for they permit the killing of a thief by night, and also by day if he should defend himself with a weapon. But, since God had sufficiently repressed by other laws murders and violent assaults, He is silent here respecting robbers who use the sword in their attempts at plunder. He therefore justly condemns to death those who have avenged by murder a theft in open day.
(135) This provision of the Twelve Tables is thus given by A. Gell. 11. ult. , “Si nox furtum faxit, sim ( si eum) quis occisit, jure caesus esto: si luci furtum faxit, sim aliquis endo ( in) ipso furto capsit, verberator, illique, cui furtum factum escit ( erit) addicitor, sed non nisi is, qui interemturus erat, quiritaret,” i.e. , shall have called out for assistance.