Exposition of the Laws of Moses, Exegesis 8 · Chapter 38
CHAPTER XXXVIII. That theft amongſt the Iewes, was not capitall.
EXOD 22.1. If a man ſhall ſteale an Oxe or a Sheepe and kill it or ſell it, he ſhall reſtore fiue Oxen for an Oxe, and foure Sheepe for a Sheepe.
THeft by the Law of Moſes was puniſhed by reſtitution, paying ſometimes two for one,Three ſorts of Precepts amongſt the Hebrewes. or foure for one, or at the moſt fiue for one, & not aboue.
The Hebrewes had three ſorts of Commandements,foreign Graviae foreign Levia. foreign Media. foreign Praecepta firſt, they had [Mitzboth Hhamuroth] Praecepta gravia, and [Mitzboth Kalloth] Praecepta levia: thoſe which they call, Praecepta gravia, here they ſay the puniſhment is alwayes indiſpenſable, as the murtherer is alwayes to die the death. Secondly, they had Praecepta levia, as not to kill the dam ſitting upon the egges; this was one of the judiciall Lawes of the lighteſt ſort, for there was no puniſhment in Iſrael for tranſgreſſion of this Law; ſo if an Oxe had killed a man, his fleſh was not to be eaten, this was one of their judiciall Lawes; but if a man had eaten the fleſh of ſuch an Oxe, he was not to die for it. Thirdly, they ſay, they had Praecepta media, where the puniſhment might be enlarged or diminiſhed, but not unto death, as in theft.
How affirmatiue and negatiue Precepts bind.Affirmatiue commandements binde not ſo ſtrictly as Negatiues doe, this is a Negatiue, yee ſhall not ſuffer a Witch to liue, but this is an Affirmatiue, that the theefe ſhall pay fourefold or fiue; this Law had ſundry exceptions and mitigations, it might be extended or mitigated, he was bound to pay fourefold, but yet the Magiſtrate might hauehave mitigated this, and taken but twofold from him; and they might hauehave extended it further, as Salomon extendeth it to ſevenfold, Proverb. 6.31. [Ieſhallem Shibhgnathaijm] he ſhall pay ſevenfold: foreign VVhat the doubling of the duall nūber among the Hebrewes ſignifieth.the Hebrewes double the duall number, ten in the duall number, is twentie; three is thirtie; and foure is fortie; but when they come to ſeaven, here they double not. The light of the Moone ſhall be as the light of the Sunne, and the light of the Sunne ſhall be ſevenfold; then he addeth for explanation, as the light of ſeven dayes, Eſa. 30.26. Here Shibhgnathaijm doubleth not in the duall number, as in the former numbers, but onelyonly ſtandeth for ſeven, he ſhall pay Shibhgnathaijm, VVhat the number ſeven ſignifieth.that is, ſeven for one; ſome interpret it a definite number for an indefinite, or he ſhall pay ſevenfold, that is, as much as two for foure; but it is not the manner of the Scriptures to take the number under ſeven, for ſeven; or he ſhall pay ſevenfold, that is, much more then he tooke; and the words following ſeeme to approue this interpretation, he ſhall pay all the ſubſtance of his houſe. And ſometimes this puniſhment was extended to death, as Davids ſentence was, that he ſhould die the death, becauſe he tooke the poore mans onelyonly ſheepe. Some anſwere that it was not for his theft that David gaue out ſentence of death upon him, but for his oppreſſion and violent theft, as if a man had come by night, and had broken into a mans houſe, and had ſtollen any thing, then he might hauehave ſafely killed him by the Law, and he was not to die for it; but if he had come after the Sunne roſe, and had ſtolen any thing, and the owner of the goods had killed him, then he was to die for it.
But out of Davids anſwere we may obſerue this,The perſon againſt whom the theft is committed aggravateth the ſinne. that the perſon againſt whom the ſinne is committed, aggravateth the ſinne, as for a rich man to ſteale a poore mans ſheepe; ſo the time aggravateth the ſinne, if the theefe came in the night to ſteale, then the owner of the goods might ſafely kill him, becauſe of his violent theft. But it may be asked, what is violent theft? If a man ſteale to ſatisfie his hunger, that is not violent theft, but if a man ſteale who may get his living other wayes, and liue upon the ſweat of other mens browes, or if he ſteale from one that hath ſmall means to liue on, or if he hauehave meanes to liue upon who ſtealeth, this is judged violent theft,Tom. 1.2. Municipall Lawes bind onelyonly in the Countrey where they are made. and the Magiſtrate for this may put him to death. Thomas obſerveth well, that the Magiſtrate may adde to the judiciall Law of Moſes according to the neceſſitie of the time, and greatneſſe of the offence; and as the Municipall Lawes of other Countries oblige not men, but in the Countrey where they are made, ſo doth not Moſes judiciall Law; A Magiſtrate in Iſrael was bound when a malefactor was whipt not to giuegive him aboue fortie ſtripes, this Law bindeth not the Magiſtrate now, ſed creſcentibus delictis exaſperantur paenae, but the equitie of Moſes judiciall Lawes bindeth all people; this is the equitie of Moſes Law, that for violent theft, a man ſhould alwaies die, and the Law judged that violent theft, which is not for a mans neceſſitie to ſatisfie his life.
Queſt. What if a poore man had but a little to ſaue his life, and another were in as great extremitie, whether were this violent theft for him to take from the poore man in ſuch a caſe.
Anſw. How Chriſts words are to be underſtood in workes of charitie.No doubt it were, therefore Chriſt ſayth, hee that hath two coats, let him giuegive his neigbour one, to wit in his neceſſitie, but not he that hath one coat, for then he was not bound to giuegive it.
Object. It is alledged Prov. 6.30. that the theife ſhould pay ſeven-fold, and not be put to death, but the jealous husband will kill the adulterer.
Anſw. This place proveth nothing, it ſheweth onelyonly what the jealous husband doth, it ſheweth not what he may doe. And ſecondly, for the theife, it ſheweth onelyonly what was the uſuall puniſhment amongſt the Iewes, by their judiciall Lawes to take ſeven fold, but it ſheweth not what may bee done by the poſitiue lawes of other Countries.
The concluſion of this is; Now under the Goſpell theft is a greater ſinne then under the Law,A difference betwixt that which is done, and that which ſhould bee done. and the neceſſitie is greater amongſt us generally, then it was amongſt them. And thirdly, that ſelling of men to make reſtitution for things taken by theft, is not in uſe amongſt us, and therefore theeues may bee put to death.