Biblical Commentary on the Old Testament, by Carl Friedrich Keil and Franz Delitzsh, [1857-78], at sacred-texts.com
With regard to cattle-stealing, the law makes a distinction between what had been killed or sold, and what was still alive and in the thief's hand (or possession). In the latter case, the thief was to restore piece for piece twofold (Exo 22:4); in the former, he was to restore an ox fivefold and a small animal (a sheep or a goat) fourfold (Exo 22:1). The difference between the compensation for an ox and a small animal is to be accounted for from the comparative worth of the cattle to the possessor, which determined the magnitude of the theft and the amount of the compensation. But the other distinctions of twofold, fourfold, and fivefold restitution cannot be accounted for, either by supposing "that the animal slain or sold was lost to its master, and might have been of peculiar value to him" (Knobel), for such a consideration of personal feelings would have been quite foreign to the law-not to mention the fact that an animal that had been sold might be recovered by purchase; or from the fact that "the thief in this case had carried his crime still further" (Baumgarten), for the main thing was still the theft, not the consumption or sale of the animal stolen. The reason can only have lain in the educational purpose of the law: viz., in the intention to lead the thief to repent of his crime, to acknowledge his guilt, and to restore what he had stolen. Now, as long as he still retained the stolen animal in his own possession, having neither consumed nor parted with it, this was always in his power; but the possibility was gone as soon as it had either been consumed or sold (see by Archologie, 154, Note 3).
(Note: Calvin gives the same explanation: Major in scelere obstinatio se prodit, ubi res furtiva in quaestum conversa est, nec spes est ulla resipiscentiae, atque ita continuo progressu duplicatur malae fidei crimen. Fieri potest ut fur statim post delictum contremiscat: qui vero animal occidere ausus est, aut vendere, prorsus in maleficio obduruit.)
Into 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 Exo 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 Exo 22:1 and Exo 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.
Injury done to another man's field or corn was also to be made good by compensation for the injury done. If any one should consume a field or a vineyard, and let loose his beast, so that it fed in another man's field, he was to give the best of his field and vineyard as restitution. These words do not refer to wilful injury, for שׁלּח does not mean to drive in, but simply to let loose, set at liberty; they refer to injury done from carelessness, when any one neglected to take proper care of a beast that was feeding in his field, and it strayed in consequence, and began grazing in another man's. Hence simple compensation was all that was demanded; though this was to be made "from the best of his field," i.e., quicquid optimum habebit in agro vel vinea (Jerome).
(Note: The lxx have expanded this law by interpolating ἀποτίσει ἐκ τοῦ ἀγροῦ αὐτοῦ κατὰ τὸ γέννημα αὐτοῦ ἐὰν δὲ πάντα τὸν ἀγρὸν καταβοσκήσῃ before מיטב. And the Samaritan does the same. But this expansion is proved to be an arbitrary interpolation, by the simple fact that πάντα τὸν ἀγρόν forms no logical antithesis to ἀγρὸν ἕτερον.)
Exo 22:6 also relates to unintentional injury, arising from want of proper care: "If fire break out and catch thorns (thorn-hedges surrounding a corn-field, Isa 5:5; Sir. 28:24), and sheaves, or the standing seed (הקּמה the corn standing in the straw), or the field be consumed, he that kindleth the fire shall make compensation (for the damage done)."
In cases of dishonesty, or the loss of property entrusted, the following was to be the recognised right: If money or articles (כּלים, not merely tools and furniture, but clothes and ornaments, cf. Deu 22:5; Isa 61:10) given to a neighbour to keep should be stolen out of his house, the thief was to restore double if he could be found; but if he could not be discovered, the master of the house was to go before the judicial court (האלהים אל, see Exo 21:6; אל נקרב to draw near to), to see "whether he has not stretched out his hand to his neighbour's goods." מלאכה: lit., employment, then something earned by employment, a possession. Before the judicial court he was to cleanse himself of the suspicion of having fraudulently appropriated what had been entrusted to him; and in most cases this could probably be only done by an oath of purification. The Sept. and Vulg. both point to this by interpolating καὶ ὀμεῖται, et jurabit ("and he shall swear"), though we are not warranted in supplying ויּשּׁבע in consequence. For, apart from the fact that אם־לא is not to be regarded as a particle of adjuration here, as Rosenmller supposes, since this particle signifies "truly" when employed in an oath, and therefore would make the declaration affirmative, whereas the oath was unquestionably to be taken as a release from the suspicion of fraudulent appropriation, and in case of confession an oath was not requisite at all; - apart from all this, if the lawgiver had intended to prescribe an oath for such a case, he would have introduced it here, just as he has done in Exo 22:11. If the man could free himself before the court from the suspicion of unfaithfulness, he would of course not have to make compensation for what was lost, but the owner would have to bear the damage. This legal process is still further extended in Exo 22:9 : על־כּל־דּבר־פּשׁע, "upon every matter of trespass" (by which we are to understand, according to the context, unfaithfulness with regard to, or unjust appropriation of, the property of another man, not only when it had been entrusted, but also if it had been found), "for ox, for ass, etc., or for any manner of lost thing, of which one says that it is this ("this," viz., the matter of trespass), the cause of both (the parties contending about the right of possession) shall come to the judicial court; and he whom the court (Elohim) shall pronounce guilty (of unjust appropriation) shall give double compensation to his neighbour: only double as in Exo 22:4 and Exo 22:7, not four or fivefold as in Exo 22:1, because the object in dispute had not been consumed.
If an animal entrusted to a neighbour to take care of had either died or hurt itself (נשׁבּר, broken a limb), or been driven away by robbers when out at grass (Ch1 5:21; Ch2 14:14, cf. Job 1:15, Job 1:17), without any one (else) seeing it, an oath was to be taken before Jehovah between both (the owner and the keeper of it), "whether he had not stretched out his hand to his neighbour's property," i.e., either killed, or mutilated, or disposed of the animal. This case differs from the previous one, not only in the fact that the animal had either become useless to the owner or was altogether lost, but also in the fact that the keeper, if his statement were true, had not been at all to blame in the matter. The only way in which this could be decided, if there was ראה אין, i.e., no other eye-witness present than the keeper himself at the time when the fact occurred, was by the keeper taking an oath before Jehovah, that is to say, before the judicial court. And if he took the oath, the master (owner) of it (the animal that had perished, or been lost or injured) was to accept (sc., the oath), and he (the accused) was not to make reparation. "But if it had been stolen מעמּו from with him (i.e., from his house or stable), he was to make it good," because he might have prevented this with proper care (cf. Gen 31:39). On the other hand, if it had been torn in pieces (viz., by a beast of prey, while it was out at grass), he was not to make any compensation, but only to furnish a proof that he had not been wanting in proper care. עד יבאהוּ "let him bring it as a witness," viz., the animal that had been torn in pieces, or a portion of it, from which it might be seen that he had chased the wild beast to recover its prey (cf. Sa1 17:34-35; Amo 3:12).
If any one borrowed an animal of his neighbour (to use it for some kind of work), and it got injured and died, he was to make compensation to the owner, unless the latter were present at the time; but not if he were. "For either he would see that it could not have been averted by any human care; or if it could, seeing that he, the owner himself, was present, and did not avert it, it would only be right that he should suffer the consequence of his own neglect to afford assistance" (Calovius). The words which follow, וגו שׂכיר אם, cannot have any other meaning than this, "if it was hired, it has come upon his hire," i.e., he has to bear the injury or loss for the money which he got for letting out the animal. The suggestion which Knobel makes with a "perhaps," that שׂכיר refers to a hired labourer, to whom the word is applied in other places, and that the meaning is this, "if it is a labourer for hire, he goes into his hire, - i.e., if the hirer is a daily labourer who has nothing with which to make compensation, he is to enter into the service of the person who let him the animal, for a sufficiently long time to make up for the loss," - is not only opposed to the grammar (the perfect בּא for which יבא should be used), but is also at variance with the context, "not make it good."
The seduction of a girl, who belonged to her father as long as she was not betrothed (cf. Exo 21:7), was also to be regarded as an attack upon the family possession. Whoever persuaded a girl to let him lie with her, was to obtain her for a wife by the payment of a dowry (מהר see Gen 34:12); and if her father refused to give her to him, he was to weigh (pay) money equivalent to the dowry of maidens, i.e., to pay the father just as much for the disgrace brought upon him by the seduction of his daughter, as maidens would receive for a dowry upon their marriage. The seduction of a girl who was betrothed, was punished much more severely (see Deu 22:23-24).
The laws which follow, from Exo 22:18 onwards, differ both in form and subject-matter from the determinations of right which we have been studying hitherto: in form, through the omission of the כּי with which the others were almost invariably introduced; in subject-matter, inasmuch as they make demands upon Israel on the ground of its election to be the holy nation of Jehovah, which go beyond the sphere of natural right, not only prohibiting every inversion of the natural order of things, but requiring the manifestation of love to the infirm and needy out of regard to Jehovah. The transition from the former series to the present one is made by the command in Exo 22:18, "Thou shalt not suffer a witch to live;" witchcraft being, on the one hand, "the vilest way of injuring a neighbour in his property, or even in his body and life" (Ranke), whilst, on the other hand, employment of powers of darkness for the purpose of injuring a neighbour was a practical denial of the divine vocation of Israel, as well as of Jehovah the Holy One of Israel. The witch is mentioned instead of the wizard, "not because witchcraft was not to be punished in the case of men, but because the female sex was more addicted to this crime" (Calovius). תחיּה לא (shalt not suffer to live) is chosen instead of the ordinary יוּמת מות (shall surely die), which is used in Lev 20:27 of wizards also, not "because the lawgiver intended that the Hebrew witch should be put to death in any case, and the foreigner only if she would not go when she was banished" (Knobel), but because every Hebrew witch was not to be put to death, but regard was to be had to the fact that witchcraft is often nothing but jugglery, and only those witches were to be put to death who would not give up their witchcraft when it was forbidden. Witchcraft is followed in Exo 22:19 by the unnatural crime of lying with a beast; and this is also threatened with the punishment of death (see Lev 18:23, and Lev 20:15-16).
Whoever offered sacrifice to strange gods instead of to Jehovah alone, was liable to death. יחרם he shall be banned, put under the ban (cherem), i.e., put to death, and by death devoted to the Lord, to whom he would not devote himself in life (cf. Lev 27:29, and my Archologie, 70).
The Israelites were not to offer sacrifice to foreign deities; but a foreigner himself they were not only to tolerate, but were not to vex or oppress him, bearing in mind that they also had been foreigners in Egypt (cf. Exo 23:9, and Lev 19:33-34). - Whilst the foreigner, as having no rights, is thus commended to the kindness of the people through their remembrance of what they themselves had experienced in Egypt, those members of the nation itself who were most in need of protection (viz., widows and orphans) are secured from humiliation by an assurance of the special care and watchfulness of Jehovah, under which such forsaken ones stand, inasmuch as Jehovah Himself would take their troubles upon Himself, and punish their oppressors with just retribution. ענּה to humiliate, includes not only unjust oppression, but every kind of cold and contemptuous treatment. The suffix in אתו (Exo 22:23) refers to both אלמנה and יתום, according to the rule that when there are two or more subjects of different genders, the masculine is employed (Ges. 148, 2). The כּי before אם expresses a strong assurance: "yea, if he cries to Me, I will hearken to him" (see Ewald, 330b). "Killing with the sword" points to wars, in which men and fathers of families perish, and their wives and children are made widows and orphans.
If a man should lend to one of the poor of his own people, he was not to oppress him by demanding interest; and if he gave his upper garment as a pledge, he was to give it him back towards sunset, because it was his only covering; as the poorer classes in the East use the upper garment, consisting of a large square piece of cloth, to sleep in. "It is his clothing for his skin:" i.e., it serves for a covering to his body. "Wherein shall he lie?" i.e., in what shall be wrap himself to sleep? (cf. Deu 24:6, Deu 24:10-13). - With Exo 22:28. God directs Himself at once to the hearts of the Israelites, and attacks the sins of selfishness and covetousness, against which the precepts in Exo 22:21-27 were directed in their deepest root, for the purpose of opposing all inward resistance to the promotion of His commands.
"Thou shalt not despise God, and the prince among thy people thou shalt not curse." Elohim does not mean either the gods of other nations, as Josephus, Philo, and others, in their dead and work-holy monotheism, have rendered the word; or the rulers, as Onkelos and others suppose; but simply God, deity in general, whose majesty was despised in every break of the commandments of Jehovah, and who was to be honoured in the persons of the rulers (cf. Pro 24:21; Pe1 2:17). Contempt of God consists not only in blasphemies of Jehovah openly expressed, which were to be punished with death (Lev 24:11.), but in disregard of His threats with reference to the oppression of the poorer members of His people (Exo 22:22-27), and in withholding from them what they ought to receive (Exo 22:29-31). Understood in this way, the command is closely connected not only with what precedes, but also with what follows. The prince (נשׂיא, lit., the elevated one) is mentioned by the side of God, because in his exalted position he has to administer the law of God among His people, and to put a stop to what is wrong.
"Thy fulness and thy flowing thou shalt not delay (to Me)." מלאה fulness, signifies the produce of corn (Deu 22:9); and דּמע (lit., tear, flowing, liquor stillans), which only occurs here, is a poetical epithet for the produce of the press, both wine and oil (cf. δάκρυον τῶν δένδρων, lxx; arborum lacrimae, Plin. 11:6). The meaning is correctly given by the lxx: ἀπαρχὰς ἅλωνος καὶ ληνοῦ σοῦ. That the command not to delay and not to withhold the fulness, etc., relates to the offering of the first-fruits of the field and vineyard, as is more fully defined in Exo 23:19 and Deu 26:2-11, is evident from what follows, in which the law given at the exodus from Egypt, with reference to the sanctification of the first-born of man and beast (Exo 13:2, Exo 13:12), is repeated and incorporated in the rights of Israel, inasmuch as the adoption of the first-born on the part of Jehovah was a perpetual guarantee to the whole nation of the right of covenant fellowship. (On the rule laid down in Exo 22:30, see Lev 22:27.)
As the whole nation sanctified itself to the Lord in the sanctification of the first-born, the Israelites were to show themselves to be holy men unto the Lord by not eating "flesh torn to pieces in the field," i.e., the flesh of an animal that had been torn to pieces by a wild beast in the field. Such flesh they were to throw to the dogs, because eating it would defile (cf. Lev 17:15).