Exodus 22:3
If the sun be risen upon him, there shall be blood shed for him; for he should make full restitution; if he have nothing, then he shall be sold for his theft.
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.