Exodus 22:2
If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him.
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(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.

Exodus 22:2. If a thief broke into a house in the night, and was killed in the doing it, his blood was upon his own head; but if it were in the day-time that the thief was killed, he that killed him was accountable for it, unless it were in the necessary defence of his own life.

22; 1 - 31 Judicial laws. - The people of God should ever be ready to show mildness and mercy, according to the spirit of these laws. We must answer to God, not only for what we do maliciously, but for what we do heedlessly. Therefore, when we have done harm to our neighbour, we should make restitution, though not compelled by law. Let these scriptures lead our souls to remember, that if the grace of God has indeed appeared to us, then it has taught us, and enabled us so to conduct ourselves by its holy power, that denying ungodliness and wordly lusts, we should live soberly, righteously, and godly in this present world, Titus 2:12. And the grace of God teaches us, that as the Lord is our portion, there is enough in him to satisfy all the desires of our souls.If a thief, in breaking into a dwelling in the night, was slain, the person who slew him did not incur the guilt of blood; but if the same occurred in daylight, the slayer was guilty in accordance with Exodus 21:12. The distinction may have been based on the fact that in the light of day there was a fair chance of identifying and apprehending the thief. CHAPTER 22

Ex 22:1-31. Laws concerning Theft.

1-4. If a man shall steal an ox, or a sheep—The law respects the theft of cattle which constituted the chief part of their property. The penalty for the theft of a sheep which was slain or sold, was fourfold; for an ox fivefold, because of its greater utility in labor; but, should the stolen animal have been recovered alive, a double compensation was all that was required, because it was presumable he (the thief) was not a practised adept in dishonesty. A robber breaking into a house at midnight might, in self-defense, be slain with impunity; but if he was slain after sunrise, it would be considered murder, for it was not thought likely an assault would then be made upon the lives of the occupants. In every case where a thief could not make restitution, he was sold as a slave for the usual term.

Ver. 2: Breaking up, to wit, an house, which the Chaldee here adds, and by night, as appears from the next verse.

For him, i.e. for the thief, though he be killed by a man in his own defence. Because in that case the thief might be presumed to have a worse design, and the owner of the house could neither expect or have the help of others to secure him from the intended violence, nor guide his blows with that discretion and moderation which in the day-time he might use.

If a thief be found breaking up,.... An house, in order to steal money, jewels, household goods, &c. or breaking through any fence, hedge, or wall of any enclosure, where oxen, or sheep, or any other creatures are, in order to take them away: the Targum of Jonathan is,"if in the hole of a wall (or window of it) a thief be found;''that is, in the night, as appears from the following verse, "if the sun", &c. to which this is opposed, as Aben Ezra observes; some render it, with a digging instrument (x); and it is a Jewish canon (y), that"if anyone enter with a digging instrument: he is condemned on account of his end;''his design, which is apparent by the instrument found upon him; for, as Maimonides (z) observes,"it is well known, that if anyone enters with a digging instrument, that he intends, if the master of the house opposes him to deliver his goods out of his power, that he will kill him, and therefore it is lawful to kill him; but it does not signify whether he enters with a digging instrument, either by the way of the court, or roof;"

and be smitten that he die be knocked down with a club, by the master of the house, or any of his servants, or be run through with a sword, or be struck with any other weapon, to hinder him from entrance and carrying off any of the goods of the house, and the blow be mortal: there shall no blood be shed for him: as for a man that is murdered; for to kill a man when breaking into a house, and, by all appearance, with an intention to commit murder, if resisted, in defence of a man's self, his life and property, was not to be reckoned murder, and so not punishable with death: or, "no blood" shall be "unto him" (a); shall be imputed to him, the man that kills the thief shall not be chargeable with his blood, or suffer for shedding it; because his own life was risked, and it being at such a time, could call none to his assistance, nor easily discern the person, nor could know well where and whom he struck.

(x) "cum perfossorio", Pagninus; "cum instrumento perfosserio", Tigurine version. (y) Misn. Sanhedrin, c. 8. sect. 6. (z) Comment. in ib. (a) "non ei sanguines", Montanus, Vatablus, Drusius.

If a thief be found {b} breaking up, and be smitten that he die, there shall no blood be shed for him.

(b) Breaking a house to enter in, or undermining.

2–3a. A thief caught breaking in by night may be killed without any guilt being incurred by his death, but not if the act take place by day. In the dark the householder would probably not be able to recognize the burglar, so as to bring him to justice, nor would he know whether he might not intend murder: a mortal blow, given in defence of his life and property, would therefore be excusable under the circumstances: but no such excuse could be made for it in the light of day. A thief might also be killed in the night with impunity by Athenian law (Dem. Timocr., § 113, p. 736; cf. Plato, Legg. ix. 874 b), and by the law of the XII. Tables (viii. 12) ‘si nox furtum factum sit, si im (eum) occisit, iure caesus esto.’ Ḥamm. § 21 is not really parallel: see Cook, p.213.

2. breaking in] digging through: cf. Jeremiah 2:34, Job 24:16, Matthew 6:19 RVm. Still the usual method of housebreakers in Syria: see Trumbull, The Threshold Covenant (1896), p. 260 f.

for him] i.e. for the householder, if he kills him in the darkness. For the expression, cf. Numbers 35:27 RVm. (אין לו דם); and for ‘blood’ (marg.), implying ‘bloodguiltiness,’ Psalm 51:14. Elsewhere blood is said to be ‘upon’ a person, Deuteronomy 19:10.

3a. upon him] i.e. upon the thief.

for him] the householder, as v. 2.

3b. If the text is correct, we must understand tacitly after v. 3a, ‘[He ought not therefore to be killed;] he should make restitution, &c.’ This however is a good deal to supply: both v. 2 and v. 3a start distinctly from the supposition that the thief is slain; and the ox, ass or sheep, of v. 4, are hardly likely to have been found in the house that was ‘dug’ into, v. 2. Hence there is great probability in Budde’s view that vv. 2, 3a are out of place; and that vv. 3b, 4 form really the sequel to v. 1, stating what is to be done in the two other alternative cases, (1) if the thief have nothing, (2) if the stolen animal be found in his possession alive. Render then (directly following v. 1): (v. 3b) ‘he shall surely make restitution [the word rendered ‘pay’ in vv. 1, 4]: if he have nothing, then he shall be sold,’ &c. (to the end of v. 4).

for his theft] i.e. not ‘as a punishment for his act of stealing,’ but ‘as compensation for the thing stolen.’ ‘According to Jos. Ant. xvi. 1. 1 a thief sold under these circumstances was not sold to a foreigner, and became free in the 7th year (ch. Exodus 21:2)’ (Kn.).

Verse 2. - 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. Exodus 22:2Into the midst of the laws relating to theft, we have one introduced here, prescribing what was to be done with the thief. "If the thief be found breaking in (i.e., by night according to Exodus 22:3), and be smitten so that he die, there shall be no blood to him (the person smiting him); if the sun has risen upon him (the thief breaking in), there is blood to him:" i.e., in the latter case the person killing him drew upon himself blood-guiltiness (דּמים lit., drops of blood, blood shed), in the former case he did not. "The reason for this disparity between a thief by night and one in the day is, that the power and intention of a nightly thief are uncertain, and whether he may not have come for the purpose of committing murder; and that by night, if thieves are resisted, they often proceed to murder in their rage; and also that they can neither be recognised, nor resisted and apprehended with safety" (Calovius). In the latter case the slayer contracted blood-guiltiness, because even the life of a thief was to be spared, as he could be punished for his crime, and what was stolen be restored according to the regulations laid down in Exodus 22:1 and Exodus 22:4. But if he had not sufficient to make retribution, he was to be sold "for his stolen," i.e., for the value of what he had stolen, that he might earn by his labour the compensation to be paid.
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