Ellicott's Commentary for English Readers
If a man shall steal an ox, or a sheep, and kill it, or sell it; he shall restore five oxen for an ox, and four sheep for a sheep.XXII.
(1-4) Theft is here treated of with great brevity, only three kinds being distinguished—(1) Housebreaking; (2) stealing without conversion of the property; (3) stealing with conversion. The main principle of punishment laid down is the exaction from the offender o! Double (Exodus 22:4). When, however, there has been conversion of the property, the penalty is heavier, the return of four-fold in the case of a sheep, of five-fold in that of an ox (Exodus 22:1). Incidentally it is enacted that the burglar may be resisted by force (Exodus 22:2), and that to kill him shall be justifiable homicide; and further, it is laid down that a thief unable to make the legal restitution shall become a slave in order to pay his debt (Exodus 22:3).
(1) If a man shall steal an ox, or a sheep.—The flocks and herds of the Israelites constituted their principal property, and hence cattle-stealing is taken as the representative of theft in general.
And kill it, or sell it.—Plainly showing persistence and determination.
Five oxen . . . four sheep.—The principle of the variation is not clear. Perhaps the theft of an ox was regarded as involving more audacity, and so more guilt, in the thief.
If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him.(2) If a thief be found breaking up.—Rather, breaking in: i.e., making forcible entry into a dwelling-house. Most codes agree with the Mosaic in allowing the inmates of the house to resist such an attempt if made at night, and to shed the blood of the burglar, if necessary. He may be considered as having dissolved the “social compact,” and converted himself from a fellow-citizen into a public enemy. A murderous intent on his part may be suspected.
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.(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.
If the theft be certainly found in his hand alive, whether it be ox, or ass, or sheep; he shall restore double.(4) If the theft be certainly found in his hand.—If he had not converted it, consumed it, or, if it were an animal, killed it, then, instead of the four-fold or five-fold restitution of Exodus 22:1, a restoration of double was to suffice.
If a man shall cause a field or vineyard to be eaten, and shall put in his beast, and shall feed in another man's field; of the best of his own field, and of the best of his own vineyard, shall he make restitution.(5) If a man shall cause a field . . . to be eaten.—On theft follows trespass, another injury to property. Two kinds of trespass alone are mentioned; but from these the principles to be followed in punishing trespass generally can be sufficiently made out. Accidental injury, such as that caused by fire extending from one man’s field into another’s, was to be simply compensated up to the amount of damage done; but voluntary injury, such as followed on the turning of beasts into a neighbour’s ground, was to be more than compensated. The amount of produce destroyed was to be exactly calculated, and then the injurer was to make good the full amount of his neighbour’s loss out of the best of his own produce.
If fire break out, and catch in thorns, so that the stacks of corn, or the standing corn, or the field, be consumed therewith; he that kindled the fire shall surely make restitution.(6) If fire break out, and catch in thorns.—In the East, as elsewhere—e.g., Italy (Virg. Georg., i. 84) and England—it is customary at certain seasons to burn the weeds and other refuse of a farm, which, is collected for the purpose into heaps, and then set on fire. Such fires may spread, especially in the dry East, if care be not taken, and cause extensive damage to the crops, or even the corn-heaps of a neighbour. The loss in such cases was to fall on the man who lit the fire.
If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen out of the man's house; if the thief be found, let him pay double.(7-13) Property deposited in the hands of another for safe keeping might be so easily embezzled by the trustee, or lost through his negligence, that some special laws were needed for its protection. Conversely the trustee required to be safe-guarded against incurring loss if the property intrusted to his care suffered damage or disappeared without fault of his. The Mosaic legislation provided for both cases. On the one hand, it required the trustee to exercise proper care, and made him answerable for the loss if a thing intrusted to him was stolen and the thief not found. Embezzlement it punished by requiring the trustee guilty of it to “pay double.” On the other hand, in doubtful cases it allowed the trustee to clear himself by an oath (Exodus 22:10), and in clear cases to give proof that the loss had happened through unavoidable accident (Exodus 22:12).
(7) If a man shall deliver unto his neighbour money or stuff to keep.—The practice of making deposits of this kind was widespread among ancient communities, where there were no professional bankers or keepers of warehouses. The Greeks called such a deposit παρακαταθήκη. It was usually made in money, or at any rate in the precious metals. A refusal to restore the thing deposited was very rare, since a special nemesis was considered to punish such conduct (Herod, vii. 86). However, at Athens it was found necessary to have a peculiar form of action for the recovery of deposits (παρακαταθήκης δίκη).
If the thief be not found, then the master of the house shall be brought unto the judges, to see whether he have put his hand unto his neighbour's goods.(8) To see whether he have put his hand.—Kalisch translates, to swear that he has not put his hand, and so the LXX. (καὶ δμεῖται) and Vulg. (et jurabit quod non extenderit manum).
For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour.(9) For all manner of trespass.—Rather, in every case of fraud. The context limits the expression to cases of fraud, or alleged fraud, in connection with a deposit.
For ox, for ass, for sheep.—The deposit of animals is unknown in classical antiquity, but might well be the custom of a people whose wealth consisted in flocks and herds. In the wilderness small proprietors might have been glad to intrust their few animals to the herdsmen who guarded the flocks and herds of their wealthier neighbours.
Which another challengeth to be his.—The case is supposed of the trustee saying a thing is lost which the depositor declares he can identify, and show to be still in his (the trustee’s) possession.
The cause of both parties shall come before the judges.—This seems to mean that the challenge was to be made at the challenger’s risk. If he proved his point to the satisfaction of the judges, he was to recover double; if he failed, he was to forfeit double of what he had claimed.
If a man deliver unto his neighbour an ass, or an ox, or a sheep, or any beast, to keep; and it die, or be hurt, or driven away, no man seeing it:(10) And it die, or be hurt, or driven away.—The animal might “die” naturally, or “be hurt” by a wild beast or a fall down the rocks, or “be driven away” by the marauding tribes of the desert. Both parties might be agreed on the fact of its disappearance; the dispute would be as to the mode of the disappearance. Here the trustee might bring proof, if he could (Exodus 22:13); if not, he might clear himself by an “oath of the Lord” (Exodus 22:11).
And if it be stolen from him, he shall make restitution unto the owner thereof.(12) If it be stolen from him, he shall make restitution.—It seems to have been considered that theft could have been prevented by proper care, but that hurts from wild beasts or accidents were not preventible.
If it be torn in pieces, then let him bring it for witness, and he shall not make good that which was torn.(13) Let him bring it for witness.—This would not always be possible. Where it was not, the trustee could fall back on the oath.
And if a man borrow ought of his neighbour, and it be hurt, or die, the owner thereof being not with it, he shall surely make it good.(14, 15) Lending is a species of deposit; but for the benefit, not of the depositor, but of the man with whom the deposit is made. The obligation of the latter to keep intact and to return is therefore even more stringent than in the preceding case. Consequently, if the thing lent were lost or injured, however the loss was brought about, the borrower was justly called upon to make it good. The only exception was, when the lender was still in charge of what he lent, present with it, and able to keep guard over it.
But if the owner thereof be with it, he shall not make it good: if it be an hired thing, it came for his hire.(15) If it be a hired thing.—Letting out for hire is akin to lending; but still quite a different transaction. Damage to a thing hired was not to be made good by the hirer, since the risk of it might be considered to have formed part of the calculation upon which the amount of the hire was fixed.
(16-31) The remainder of the chapter contains laws which it is impossible to bring under any general head or heads, and which can, therefore, only be regarded as miscellaneous. Moses may have recorded them in the order in which they were delivered to him; or have committed them to writing as they afterwards occurred to his memory.
(16) If a man entice a maid.—The seduction of a maiden is regarded more seriously in primitive than in more advanced communities. The father looked to receive a handsome sum (ἕδνα) from the man to whom he consented to betroth his virgin daughter; and required compensation if his daughter’s eligibility as a wife was diminished. If the seducer were a person to whom he felt it a degradation to marry his daughter, he might exact from him such a sum as would be likely to induce another to wed her; if he was one whom he could accept as a son-in-law, he might compel him to re-establish his daughter’s status by marriage. It might be well if modern societies would imitate the Mosaic code on this point by some similar proviso.
He shall surely endow her—i.e., pay the customary sum to the father. See Deuteronomy 22:29, where the sum is fixed at fifty shekels of silver.
If her father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins.(17) He shall pay money according to the dowry of virgins.—It is not stated what the amount was to be in this case; but probably it was more than in the other.
Thou shalt not suffer a witch to live.(18) Thou shalt not suffer a witch to live.—The word translated “witch” in this passage is the feminine singular of that rendered by “sorcerers” in Exodus 7:11, and means “a mutterer of charms.” The use of the feminine form can only be accounted for by supposing that, practically, witchcraft was at the time mainly professed by females. Whether “witches” had actual help from evil spirits, or only professed to work magical effects by their aid, the sin against God was the same. Jehovah was renounced, and a power other than His invoked and upheld. Witchcraft was as much rebellion against God as idolatry or blasphemy, and deserved the same punishment.
Whosoever lieth with a beast shall surely be put to death.(19) The sin here denounced was common among the Canaanitish nations (Leviticus 18:24), and not unknown in Egypt (Herod. ii. 46). It was therefore necessary that God’s abhorrence of it should be distinctly declared to Israel.
He that sacrificeth unto any god, save unto the LORD only, he shall be utterly destroyed.(20) He that sacrificeth.—Sacrifice in this place represents worship generally, being its most essential act. Elsewhere the death-penalty is affixed to any acknowledgment of false gods (Deuteronomy 13:1-16).
Shall be utterly destroyed.—Heb., Shall be devoted, i.e., devoted to destruction.
Thou shalt neither vex a stranger, nor oppress him: for ye were strangers in the land of Egypt.(21-24) The juxtaposition of laws against oppression with three crimes of the deepest dye seems intended to indicate that oppression is among the sins which are most hateful in God’s sight. The lawgiver, however, does not say that it is to be punished capitally, nor, indeed, does he affix to it any legal penalty. Instead of so doing, he declares that God Himself will punish it “with the sword” (Exodus 22:24). Three classes of persons particularly liable to be oppressed are selected for mention—(1) Strangers, i.e., foreigners; (2) widows; and (3) orphans. Strangers have seldom been protected by any legislation, unless, indeed, they formed a class of permanent residents, like the Metœci at Athens. The law of civilised communities has generally afforded some protection to the orphan and the widow, particularly in respect of rights of property. The protection given is, however, very generally insufficient; and it is of the highest importance that it should be supplemented by an assured belief that, beyond all legal penalties there lies the Divine sentence of wrath and punishment, certain to fall upon every one who, careless of law and right, makes the stranger, the widow, or the orphan to suffer wrong at his hands.
(21) For ye were strangers.—Ye should, therefore, sympathise with “strangers;” not “vex them,” not “oppress them,” but “love them as yourselves” (Leviticus 19:34). The condition of foreigners in Israel is shown to have been more than tolerable by the examples of the Kenites (Judges 1:16; Judges 4:11); of Araunah the Jebusite (2Samuel 24:18-24); of Uriah the Hittite (2Samuel 23:39), Zelek the Ammonite (2Samuel 23:37), and others.
If thou afflict them in any wise, and they cry at all unto me, I will surely hear their cry;(23) If thou afflict them in any wise, and they cry at all unto me.—Rather, If thou afflict them sore, and they cry earnestly unto me. On the transgression of the laws against oppression by the later Israelites, see Jeremiah 5:28; Jeremiah 7:6; Jeremiah 22:3; Jeremiah 22:17; Zech. 7:20; Malachi 3:5; Matthew 23:14, &c. The sword of the Babylonians and the sword of the Romans avenged the sufferers, according to the prophecy of Exodus 22:24.
If thou lend money to any of my people that is poor by thee, thou shalt not be to him as an usurer, neither shalt thou lay upon him usury.(25-27) The Mosaic law of borrowing and lending was strange and peculiar. It was absolutely forbidden to exact any interest from those borrowers who were Israelites. The wording of the present passage, and of some others (Leviticus 25:35; Deuteronomy 15:7), construed strictly, prohibits interest only on loans to the poor; but, as in a primitive state of society only the poor wish to borrow, the qualifying expression lost its force, and to exact any interest of any Israelite was regarded as wrong. (See Psalm 15:5; Proverbs 28:8; Nehemiah 5:7; Nehemiah 5:11; Ezekiel 18:13; Ezekiel 22:12.) And some prohibitions, as Deuteronomy 23:19, were expressed in the most general terms. On the other hand, the lending of money upon interest to foreigners was distinctly allowed (Deuteronomy 23:20), and no limit placed upon the amount of interest that might be taken.
(25) Usurer. . . . usury.—The Hebrew nûsheh and nĕshek have no sense of “excess” attached to them. They mean simply “interest,” and “the man who lends upon interest.”
If thou at all take thy neighbour's raiment to pledge, thou shalt deliver it unto him by that the sun goeth down:(26, 27) Thy neighbour’s raiment.—The simlah, or salmah, here translated “raiment,” was the large flowing outer raiment, elsewhere called beged, which was commonly of woollen, and corresponded to the abba of the modern Arabs. It was a warm wrapper, and has sometimes been compared to a Scotch plaid. The poor Israelite did not much want it by day; but needed it as a blanket by night—a practice known to many modern tribes of Arabs. The present passage forbids the retention of this garment as a pledge during the night, and seems to imply a continuous practice of pledging the simlah by day, and being allowed to Enjoy the use of it, nevertheless, as a nocturnal covering.
Thou shalt not revile the gods, nor curse the ruler of thy people.(28) Thou shalt not revile the gods.—The LXX. And Vulgate give the passage this sense; and so it was understood, or at any rate expounded, by Philo (De Vit. Mos. ii. 26) and Josephus (Ant. Jud. iv. 8, § 10), who boasted that the Jews abstained from reviling the gods of the nations. But the practice of the most pious Israelites in the best times was different (1Kings 18:27; Psalm 115:4-8; Psalm 135:15-18; Isaiah 41:29; Isaiah 44:9-20; Jeremiah 10:11-15, &c.). The gods of the heathen were uniformly, and with the utmost scorn. “reviled.” It has been suggested that the true meaning of elohim in this place is “judges” (Rosenmüller, Zunz, Herxheimer); but to have that sense, the word requires the article. It is best, therefore, to translate by “God,” as is done by De Wette, Knobel, Keil, Kalisch, Canon Cook, &c., and to understand the entire passage as intended to connect the sin of cursing a ruler with that of reviling God, the ruler being regarded as God’s representative.
Thou shalt not delay to offer the first of thy ripe fruits, and of thy liquors: the firstborn of thy sons shalt thou give unto me.(29) The first of thy ripe fruits.—Heb., of thy fulness. “Firstfruits” were the spontaneous tribute of natural piety among almost all nations. They were called by the Greeks ἀπαρχαί, by the Romans primitive. Abel’s offering (Genesis 4:4) was one of the “firstlings of his flock,” and Cain’s probably one of firstfruits. In the present passage it is assumed that firstfruits are due, and the stress is laid upon offering them promptly, without “delay.” Delay would show a grudging spirit.
Likewise shalt thou do with thine oxen, and with thy sheep: seven days it shall be with his dam; on the eighth day thou shalt give it me.(30) Thine oxen.—Rather, thy beeves. The word used is applied to horned cattle of either sex.
Seven days it shall be with his dam.—Compare Leviticus 22:27. The main object of forbidding sacrifice before the eighth day would appear to have beer-regard for the health and comfort of the mother, which needed the relief obtained by suckling its offspring. There may also have underlain the prohibition some reference to birth as an impure process. Compare the circumcision of the male child on the eighth day.
And ye shall be holy men unto me: neither shall ye eat any flesh that is torn of beasts in the field; ye shall cast it to the dogs.(31) Ye shall be holy men unto me.—Compare Exodus 19:6. The holiness really desired was holiness of heart and spirit. Outward ordinances could not effect this; but, to keep the thought perpetually before- men’s minds, a network of external obligations was devised, whereof a specimen is given in the law which follows. The flesh of an animal torn by a carnivorous beast would be doubly unclean: (1) By contact with the unclean carnivorous beast; and (2) through not having all the blood properly drained from it. It was therefore not to be eaten by a Hebrew.
Ye shall cast it to the dogs—i.e., ye shall do this rather than eat it. The flesh might probably be given, or even sold, to an alien. (Compare Deuteronomy 14:21.)