Chapter XIII: The Code of Hammurapi and the Pentateuch (1)

THE TEXT OF THE CODE; RESEMBLANCE TO AND CONTRAST WITH THE MOSAIC
CODE. THE MOSAIC CODE NOT BORROWED FROM THE BABYLONIAN; DIFFERENT
UNDERLYING CONCEPTIONS.

=1. The Text of the Code; Comparison with the Mosaic Code.=

The following code of laws was inscribed by order of Hammurapi, of the first dynasty of Babylon (2104-2061 B. C.), on a block of black diorite nearly eight feet in height and set up in Esagila, the temple of Marduk, in Babylon, so that the people might have the laws in the mother-tongue. As this last statement implies, the laws are written in Semitic Babylonian; before the time of Hammurapi the laws had been written in Sumerian. At some later time an Elamite conqueror, who was overrunning Babylonia, took this pillar away to Susa as a trophy. In course of time the pillar was broken into three parts, which were found by the French expedition under de Morgan in December, 1901, and January, 1902, while excavating at Susa. As the code is the oldest known code of laws in the world, being a thousand years older than Moses, and as it affords some interesting peculiarities as well as some striking parallels to the laws in Exodus 21-23 and in Deuteronomy, a translation of it, with some comparison of Exodus and Deuteronomy, is here given:

Against Witches

§ 1. If a man brings an accusation against a man, that he has laid a
death-spell upon him, and has not proved it, the accuser shall be put
to death.[459]

§ 2. If a man accuses another of practising sorcery upon him, but has
not proved it, he against whom the charge of sorcery is made shall go
to the sacred river; into the sacred river he shall plunge, and if the
sacred river overpowers him, his accuser shall take possession of his
house. If the sacred river shows that man to be innocent, and he is
unharmed, he who charged him with sorcery shall be killed. He who
plunged into the sacred river shall take the house of his accuser.

With these laws we should compare Exod. 22:18, which imposes the death penalty upon witches, and Deut. 18:10, ff., which declares that there shall be no sorcerer, diviner, magician, or charmer in Israel and promises a line of prophets to render these unnecessary. Magic is banished from Israel; its presence in Babylonia is taken for granted, and only some of its exercises, which were supposed to be especially deadly, were forbidden. In § 2 the man accused of sorcery is to be tried by ordeal. He is to plunge into the river and if he can swim in its current, he is innocent. Trial by ordeal is found but once in the Hebrew laws (Num. 5:11-28). There both the crime and the ordeal are very different from this.

Note that in these sections the false accuser suffers in just the way he has tried to bring suffering to the other. This is the law of retaliation, which appears in Deut. 19:16-21, where it is applied to false witnesses in the same way as here. It will be found underlying many of the penalties of this code.

Laws Concerning False Witness

§ 3. If in a case a man has borne false witness, or accused a man
without proving it, if that case is a capital case, that man shall be
put to death.

§ 4. If he has borne witness in a case of grain or money, the penalty
of that case he shall himself bear.

Hebrew law was similar; a false witness was to be visited with the penalty which he had purposed to bring upon his brother (Deut. 19:18, 19).

Against Reversing a Judicial Decision

§ 5. If a judge has pronounced a judgment, made a decision, caused it
to be sealed, and afterward has altered his judgment, that judge they
shall convict on account of the case which he decided and altered; the
penalty which in that case he imposed he shall pay twelvefold, and in
the assembly from the seat of his judgment they shall expel him; he
shall not return; with the judges in a case he shall not sit.

Hebrew law presents no parallel to this.

Against Theft

§ 6. If a man steals the goods of a god (temple) or of a palace, that
man shall be put to death, and he by whose hand the stolen goods were
received shall be put to death.

§ 7. If a man purchases or receives on deposit either silver, gold,
man-servant, maid-servant, ox, sheep, ass, or anything whatever from
the hand of a minor or a slave without witnesses or contracts, that
man is a thief; he shall be put to death.

§ 8. If a man has stolen ox, or sheep, or ass, or pig, or a boat,
either from a god (temple) or a palace, he shall pay thirtyfold. If he
is a poor man, he shall restore tenfold. If the thief has nothing to
pay, he shall be put to death.

§ 9. If a man, who has lost anything, finds that which was lost in a
man’s hand, (and) the man in whose hand the lost thing was found says:
“A seller sold it; I bought it before witnesses”; and the owner of the
lost thing says: “I will bring witnesses who know that the lost thing
is mine”; if the purchaser brings the seller who sold it to him and
the witnesses in whose presence it was bought, and the owner of the
lost thing brings the witnesses who know that the lost thing is his,
the judges shall examine their testimony. The witnesses before whom
the purchaser purchased it, and the witnesses who know the lost thing,
shall give their testimony in the presence of a god. The seller is a
thief; he shall be put to death. The owner of the lost thing shall
take that which was lost. The purchaser shall take from the house of
the seller the money which he had paid.

§ 10. If the purchaser does not produce the seller who sold it to him
and the witnesses before whom he bought it, and the owner of the lost
thing produces the witnesses who know that the lost thing is his, the
purchaser is the thief; he shall be put to death. The owner of the
lost thing shall take that which he lost.

§ 11. If the owner of the lost thing does not bring the witnesses who
know that the lost thing is his, he is one who has attempted fraud; he
shall be put to death.

§ 12. If the seller has died, the purchaser shall recover from the
house of the seller the damages of that case fivefold.

§ 13. If that man has not his witnesses near, the judges shall set an
appointed time within six months; and if, within six months, his
witnesses he does not produce, that man is a liar; the penalty of that
case he shall himself bear.

The Hebrew laws comparable to these are found in Exod. 22:1-4, 9, and Lev. 6:3-5. Exodus directs (v. 1) that, if a man steals an ox or a sheep and kills it or sells it, he shall restore live oxen for an ox and four sheep for a sheep. In case it is not sold he shall restore double (v. 9). No highly organized courts appear in the Biblical codes. The thief was brought before God and his guilt determined by some religious test. The law of Leviticus required a man guilty of theft to restore the lost property, adding to it a fifth more, and to offer a ram in sacrifice. (See Exod. 18:13-26. Cf. 2 Chron. 19:5-7 with 1 Chron. 23:4 and Deut. 16:18-20.)

The Babylonian laws presuppose a much more highly organized social community than the Hebrew.

Against Stealing Children and Slaves

§ 14. If a man steals the son of a man who is a minor, he shall be put
to death.

§ 15. If a man causes a male or female slave of a palace, or the male
or female slave of a workingman to escape from the city gate, he shall
be put to death.

§ 16. If a man harbors in his house either a male or a female slave
who has escaped from a palace or from a workingman, and does not bring
him out at the summons of the officer, the owner of that house shall
be put to death.

§ 17. If a man finds in a field a male or a female slave who has
escaped and restores him to his owner, the owner of the slave shall
pay him 2 shekels of silver.

§ 18. If that slave will not name his owner, he shall bring him unto
the palace and they shall investigate his record and restore him unto
his owner.

§ 19. If he shall detain that slave in his house and afterward the
slave is found, that man shall be put to death.

§ 20. If the slave escapes from the hand of his captor, that man shall
declare it on oath to the owner of the slave and shall be innocent.

These laws are analogous to Exod. 21:16 and Deut. 23:15. The former inflicts the death penalty for stealing a man and selling him, and the latter prohibits one in whose house a fugitive slave has taken refuge from returning the slave to his master. Slavery was not in Israel such a firmly established institution as in Babylonia. (See Exod. 21:2-6; Deut. 15:12-18; Lev. 25:25-46.)

Housebreaking and Brigandage

§ 21. If a man breaks into a house, before that breach he shall be put
to death and thrown into it.

§ 22. If a man practices brigandage and is caught, that man shall be
put to death.

§ 23. If the robber is not caught, the man who is robbed shall declare
his loss, whatever it is, in the presence of a god, and the city and
governor in whose territory and jurisdiction the robbery was committed
shall compensate him for whatever was lost.

§ 24. If it is a life, that city and governor shall pay to his
relatives 1 mana of silver.[460]

Hebrew law presents an analogy to the last of these sections in Deut. 21:1-9, though in Israel no compensation was offered to the heirs of the man who was slain, but a sacrifice was performed by the elders of the nearest city, to purge it of innocent blood.

Stealing at a Fire

§ 25. If a fire breaks out in a man’s house, and a man who has come to
extinguish it shall cast his eye upon the furniture of the owner of
the house, and the furniture of the owner of the house shall take,
that man shall be thrown into that fire.

The Duties and Privileges of Soldiers, Constables, and Tax-collectors

§ 26. If a soldier or a constable[461] who is ordered to go on a
journey for the king does not go, but hires a substitute and
dispatches him instead, that soldier or constable shall be put to
death; his hired substitute shall appropriate his house.

§ 27. If a soldier or a constable is detained in a royal fortress and
after him they give his field or garden to another and he takes it
and carries it on, if the first one returns and reaches his city, they
shall restore to him his field and garden, and he shall take it and
carry it on.

§ 28. If a soldier or a constable who is detained in a royal fortress
has a son who is able to carry on his business, they shall give to him
his field and garden and he shall carry on the business of his father.

§ 29. If his son is small and not able to carry on the business of his
father, they shall give one-third of his field and garden to his
mother and she shall rear him.

§ 30. If a soldier or a constable from the beginning of his
appointment neglects his field, garden, and house and leaves them
uncared for, another after him shall take his field, garden, and
house, and carry on his business for three years. If he returns and
desires his field, garden, and house, they shall not give them to him.
He who has taken them and carried on the business shall carry it on.

§ 31. If he leaves it uncared for but one year and returns, they shall
give him his field, garden, and house, and he shall carry on his own
business.

§ 32. If a merchant ransoms a soldier (?) or a constable who, on a
journey of the king, was detained, and brings him back, to his city,
if in his house there is sufficient ransom, he shall ransom himself.
If in his house there is not sufficient to ransom him, by the temple
of his city he shall be ransomed. If in the temple of his city there
is not a sufficient ransom, he shall be ransomed by the palace. His
field, garden, and house shall not be given for ransom.

§ 33. If a governor or a magistrate harbors a deserting soldier or
accepts and sends a hired substitute on an errand of the king, that
governor or magistrate shall be put to death.

§ 34. If a governor or a magistrate takes the property of a soldier,
plunders a soldier, or hires out a soldier, has defrauded a soldier in
a suit before a sheik, or takes the present which the king has given
to a soldier, that governor or magistrate shall be put to death.

§ 35. If a man buys the cattle or sheep which the king has given to a
soldier, he shall forfeit his money.

§ 36. One shall not sell the field, garden, or house of a soldier,
constable, or tax-collector.

§ 37. If a man has bought the field, garden, or house of a soldier,
constable, or tax-collector, his tablet shall be broken, he shall
forfeit his money; the field, house, or garden shall return to its
owner.

§ 38. A soldier, constable, or tax-collector shall not deed to his
wife or daughter the field, house, or garden, which is his perquisite,
nor shall he assign them for debt.

§ 39. A field, garden, or house which he has purchased and possesses
he may deed to his wife or daughter, or may assign for debt.

§ 40. A priestess, merchant, or other creditor may purchase his field,
garden, or house. The purchaser shall conduct the business of the
field, garden, or house which he has purchased.

§ 41. If a man has bargained for the field, garden, or house of a
soldier, constable, or tax-collector and has given sureties, the
soldier, constable, or tax-collector shall return to the field, house,
or garden, and the sureties which were given him he shall keep.

No such officers as these are mentioned in the laws of the Old Testament, though some of them appear in earlier times in the records of Babylonia. The tax-collectors mentioned here remind us of Solomon’s tax-collectors mentioned in 1 Kings 4:7, ff.

Laws of Agriculture

§ 42. If a man rents a field for cultivation and produces no grain in
that field, they shall call him to account for doing no work in that
field, and he shall give to the owner of the field grain similar to
that of adjacent fields.

§ 43. If he does not cultivate that field and neglects it, he shall
give the owner of the field grain similar to that of adjacent fields,
and the field which he neglected he shall break up with mattocks, he
shall harrow, and return it to the owner of the field.

§ 44. If a man rents an uncultivated field for three years for
improvement and neglects its surface and does not develop the field,
in the fourth year he shall break up the field with mattocks, he shall
hoe and harrow it, and return it unto the owner of the field, and for
every _Gan_ of land he shall measure out 10 _Gur_ of grain.

§ 45. If a man lets his field for pay on shares to a farmer and
receives his rent, and afterward the storm-god inundates the field and
carries off the produce, the loss is the farmer’s.

§ 46. If the rent of his field he has not received, and he has let the
field for one-half or one-third (of the crop), the farmer and the
owner of the field shall divide the grain which is in the field
according to agreement.

§ 47. If the farmer, because he has not in a former year received a
maintenance, entrusts the field to another farmer, the owner of the
field shall not interfere. He would cultivate it, and his field has
been cultivated. At the time of harvest he shall take grain according
to his contracts.

§ 48. If a man has a debt against him and the storm-god inundates his
field and carries away the produce, or if through lack of water grain
has not grown in the field, in that year he shall not make a return of
grain to his creditor; his contract he shall change, and the interest
of that year he shall not pay.

§ 49. If a man borrows money from a merchant, and has given to the
merchant a field planted with grain or sesame, and says to him:
“Cultivate the field and harvest and take the grain or sesame which it
produces”; if the tenant produces grain or sesame in the field, at the
time of harvest the owner of the field shall take the grain or sesame
which was produced by the field, and shall give to the merchant grain
for the money which he borrowed from the merchant with its interest,
and for the maintenance of the farmer.

§ 50. If the field was already planted [with grain or] sesame, the
owner of the field shall receive the grain or the sesame which is
produced in the field, and the money and its interest he shall return
to the merchant.

§ 51. If there is not money to return, he shall give to the merchant
[the grain or] sesame for the money and its interest which he had
received from the merchant, according to the scale of prices fixed by
the king.

§ 52. If the farmer does not produce grain or sesame in his field, he
shall not alter his contract.

§ 53. If a man the side of his strong dyke has neglected and has not
strengthened it, and in his dyke a break occurs, and the water
destroys the farm-land, the man in whose dyke the break occurred shall
restore the grain which was destroyed.

§ 54. If he is not able to restore the grain, they shall sell him and
his possessions for money, and the owners of the fields whose grain
was destroyed shall share it.

§ 55. If a man has opened his sluice for watering and has left it open
and the water destroys the field of his neighbor, he shall measure out
grain to him on the basis of that produced by neighboring fields.

§ 56. If a man opens the water and the water destroys the work[462] of
a neighboring field, he shall measure out 10 _Gur_ of grain for each
_Bur_ of land.

§ 57. If a shepherd causes his sheep to eat vegetation and has not
made an agreement with the owner of the field, and without the consent
of the owner of the field has pastured his sheep, the owner of the
field shall harvest that field, and the shepherd who without the
consent of the owner of the field caused his sheep to eat the field,
shall pay the owner of the field in addition 20 _Gur_ of grain for
each _Bur_ of land.

§ 58. If, after the sheep have come up out of the fields and are
turned loose on the public common by the city gate, a shepherd turns
his sheep into a field and causes the sheep to eat the field, the
shepherd shall oversee the field which he caused to be eaten, and at
harvest-time he shall measure to the owner of the field 60 _Gur_ of
grain for each _Bur_ of land.

The Hebrew land laws are found in Exod. 22:5, 6; 23:10, 11; Lev. 19:9, and Deut. 24:19-22; 23:24, 25. An examination of these passages reveals a wide difference between Babylonia and Israel. In Babylonia it seems to have often been the rule that a landlord let out the fields to tenants to work; among the Hebrews the law presupposes that each man shall work his own land. Many of the Babylonian laws are designed to secure the respective rights of landlord and tenant. Naturally, there is nothing in the Old Testament to correspond to these. Hebrew law (Exod. 22:5), like the Babylonian, provides that one who causes a neighbor’s crop to be eaten shall make restitution, but the regulations are of the most general character. In Babylonia a larger social experience had made much more specific regulations necessary.

The characters of the respective countries are reflected in the dangers from which crops might be threatened. In waterless Palestine a fire started by a careless man might burn his neighbor’s crop (Exod. 22:6); in Babylonia, where irrigation from canals was conducted to fields lower than the surface of the water, one might flood his neighbor’s field and destroy his crop by carelessly leaving his sluice open.

The Hebrew legislation presupposes a poorer community. It provides that the land shall lie fallow, and whatever it produces shall belong to the poor (Exod. 23:10, 11). At harvest-time, too, one must not reap the corners of his field; that was left to the poor (Lev. 19:9). If one forgot a sheaf in his field, he must not return to take it; that should be left to the poor (Deut. 24:19). Rich Babylonia made no such provision for the poor; it felt no such social sympathy.

Again, even these agricultural laws show that commerce was highly developed in Babylonia, with its necessary concomitant, the right to charge interest for money. The uncommercial Hebrews regarded interest as unlawful (Exod. 22:25), and it was Hillel, the contemporary of Herod the Great, who invented an interpretation known as the Prosbūl, which practically did away with this law and permitted Jews to take interest.

Horticultural Laws

§ 59. If a man shall cut down a tree in a man’s orchard without the
consent of the owner, he shall pay ½ mana of silver.

§ 60. If a man gives a field to a gardener to plant as an orchard, the
gardener shall plant the orchard and cultivate it for 4 years. In the
fifth year the owner of the orchard and the gardener shall share it
together. The owner of the orchard shall mark off his share and take
it.

§ 61. If the gardener in planting does not complete it, but leaves a
part of it waste, unto his portion they shall count it.

§ 62. If the field which is given to a gardener he does not plant, if
vegetation is the produce of the field for the years during which it
is neglected, the gardener shall measure out to the owner of the field
on the basis of the adjacent fields, and shall perform the work on the
field and restore it to the owner of the field.

§ 63. If the field is [left] waste land, he shall perform the work on
the field and shall restore it to its owner, and 10 _Gur_ of grain for
each _Bur_ of land he shall measure out.

§ 64. If a man lets his orchard to a gardener to manage, as long as
the gardener is in possession of the garden he shall give to the owner
of the garden two-thirds of the produce; one-third he shall take
himself.

§ 65. If the gardener does not manage the garden and diminishes its
produce, the gardener shall measure out the produce of the orchard on
the basis of adjacent orchards.[463]

§ 66. If a man has received money from a merchant, and his merchant
puts him under bonds and he has nothing to give, and he gives his
orchard for management unto the merchant and says: “The dates as many
as are in my orchard take for thy money,” that merchant shall not
consent; the owner of the orchard shall take the dates that are in the
orchard and the money and its interest according to the tenor of his
agreement he shall bring to the merchant. The remaining dates from the
orchard shall belong to the owner of the orchard.

As in Palestine, there was no system of rental; the Bible contains almost no horticultural laws. “Orchards” in Babylonia were, as the last section shows, date orchards. The corresponding fruit in Palestine was the grape. Hebrew laws deal with vineyards as with fields. If a man destroys the crop in another’s vineyard, he is to give the best of his own (Exod. 22:5). He is to leave his crop unpicked every seventh year for the poor (Exod. 23:11). He is not, when he gathers it, to glean it carefully, but leave some for the poor (Lev. 19:10). When one goes into his neighbor’s vineyard, he may pick what he wishes to eat, but must carry nothing away. Horticulture among the Hebrews was not so highly developed as in Babylonia.

Five columns of writing have been erased after § 65 from the column on which the laws are written. This erasure was probably made by the Elamite conqueror, who carried the column as a trophy to Susa, in order to inscribe his own name on it, but unfortunately, if that was the intention, it was never carried out. We are accordingly in ignorance of his name. It is estimated that 35 sections of laws were thus lost. As already noted, one can be supplied from a fragment found at Susa, and from other tablets fragments of two or three other sections can be made out. One of these incomplete fragments refers to the rights of tenants of houses. It reads:

[If] a man rents a house for money, and pays the whole rent for a year
to the owner of the house, and the owner of the house orders that man
to vacate before the expiration of his lease, the owner of the house
from the money that he received shall ............

Unfortunately, the tablet is broken and the penalty for breaking the lease is unknown. It is interesting to know that Babylonian tenants were protected from avaricious landlords, even though no parallel law exists in the Old Testament.

Two other sections of laws that once stood in this lacuna can now be supplied from a considerably defaced tablet from Nippur in the University Museum in Philadelphia, which once contained a part or all of the code of Hammurapi. These sections are as follows:

A Bankrupt Law[464]

If a man borrows grain or money from a merchant and for the payment
has no grain or money, whatever is in his hand he shall in the
presence of the elders give to the merchant in place of the debt; the
merchant shall not refuse it; he shall receive it.

A Partnership Law[465]

If a man gives money to a man for a partnership, the gain and profit
that accrue are before the gods; together they shall do business.

The phrase “before the gods” means that the division shall be made on oath. Commercial life was not sufficiently developed among the Hebrews so that they needed such a law, consequently the Pentateuch contains no parallel to this.

After the erasure of five columns the laws have to do with agents or traveling salesmen.

Agents and Merchants

§ 100. [If an agent has received money from a merchant, he shall write
down the amount and the amount of] the interest on the money, and,
when the time has expired, he shall repay the merchant as much as he
has received.

§ 101. If where he goes he does not meet with success, the agent shall
double the amount of the money he received and return it to the
merchant.

§ 102. If a merchant gives money to an agent as a favor, and where he
goes he meets with misfortune, he shall restore the principal unto the
merchant.

§ 103. If on the road as he travels an enemy robs him of anything he
carries, the agent shall give an account of it under oath and shall be
innocent.

§ 104. If a merchant has given to an agent grain, wool, or oil, or
anything whatever to sell, the agent shall write down the price and
shall return the money to the merchant. The agent shall take a receipt
for the money which he gives to the merchant.

§ 105. If the agent is careless and does not take a receipt for the
money he gave the merchant, money not receipted for shall not be
placed to his account.

§ 106. If an agent receives money from a merchant and has a dispute
with his merchant about it, that merchant shall put the agent on trial
on oath before the elders concerning the money he received and the
agent shall pay the merchant three times as much as he received.

§ 107. If a merchant lends to an agent and the agent returns to the
merchant whatever the merchant had given him, if the merchant has a
dispute with him about it, that agent shall put the merchant on trial
on oath in the presence of the elders, and the merchant, because he
had a dispute with his agent, whatever he received he shall give to
the agent six times as much.

The Hebrews of the Old Testament time were not a commercial people and had no such laws. Men today are inclined to think that the drummer, or traveling salesman, is a modern invention, but these laws show that he was an old institution in Babylonia four thousand years ago.

Wine Merchants

§ 108. If a woman who keeps a wine-shop does not receive grain as the
price of drink, but takes money of greater value, or makes the measure
of drink smaller than the measure of grain, that mistress of a
wine-shop they shall put on trial and into the water shall throw her.

§ 109. If the mistress of a wine-shop collects criminals in her house,
and does not seize these criminals and conduct them to the palace,
that mistress of a wine-shop shall be put to death.

§ 110. If the wife of a god (_i. e._, a consecrated temple-woman), who
is not living in the house appointed, opens a wine-shop or enters a
wine-shop for a drink, they shall burn that woman.

§ 111. If the mistress of a wine-shop gives 60 _Qa_ of _sakani_-plant
drink on credit at the time of harvest, she shall receive 50 _Qa_ of
grain.

The Old Testament affords no parallel. There were no wine-shops in Israel so far as we know, and such consecrated women were prohibited by Deut. 23:17.

Deposits and Distraints

§ 112. If a man continually traveling has given silver, gold, precious
stones, or property to a man and has brought them to him for
transportation, and that man does not deliver that which was for
transportation at the place to which it was to be transported, but has
appropriated it, the owner of the transported goods shall put that man
on trial concerning that which was to be transported and was not
delivered, and that man shall deliver unto the owner of the
transported goods five times as much as was entrusted to him.

§ 113. If a man has grain or money deposited with a man and without
the consent of the owner he takes grain from the heap or the granary,
they shall prosecute that man because he took grain from the heap or
the granary without the consent of the owner, and the grain as much as
he took he shall return, and whatever it was he shall forfeit an equal
amount.

§ 114. If a man does not have against a man [a claim] for grain or
money and secures a warrant against him for debt, for each warrant he
shall pay ⅓ of a mana of money.

§ 115. If a man holds against a man [a claim] for grain or money and
secures a warrant against him for debt and the debtor dies through his
fate in the house of the creditor, that case has no penalty.

§ 116. If the debtor dies through violence or lack of care, the owner
of the debtor shall prosecute the merchant; if it was the son of a
man, his son shall be put to death; if the slave of a man, he shall
pay ⅓ of a mana of money, and whatever [the debt] was, he shall
forfeit as much.

Among the Hebrews, as among other ancient peoples, the poor at times deposited their valuables with the more powerful for safekeeping. This was natural before the invention of banks and safe deposit vaults.

The Hebrew law in Exod. 22:7-10 provides that if goods are given to another man to keep and are stolen out of his house, the thief should, if found, restore double the amount taken. If the thief was not found, the owner of the house should be brought to God (so American R. V.)[466], _i. e._, to the temple, where in some way (probably by lot) it was determined whether he was guilty. If guilty, the owner of the house had to restore twofold.

Somewhat parallel to the Babylonian laws which permit the imprisonment of a debtor in one’s house is the Hebrew law that a poor debtor might become a slave for six years (Exod. 21:2-6; Deut. 15:7-18). The Old Testament laws are not quite uniform. In reality it is only that of Deuteronomy which contemplates slavery in consequence of indebtedness; Exodus speaks as though the slave might not be bought in any way. The important point is that in Babylonia a man might be imprisoned for debt; in Israel he might become a temporary slave.

As to the deposit of valuable property with a creditor for security, the Hebrew law, while it shows that there were other kinds of pledges (Deut. 24:10, ff.), mentions but one kind. This was in the case of a man so poor that he had to give his outer garment as security. The law provided that this should be returned to him at night, since the poor peasants had no other blankets than these garments. A hard-hearted creditor might, by keeping the garment at night, risk the life of the debtor (Exod. 22:26, 27; Deut. 24:11-13).

Debts

§ 117. If a man is subjected to an attachment for debt and sells his
wife, son, or daughter, or they are given over to service, for three
years they shall work in the house of their purchaser or temporary
master; in the fourth year they shall be set free.

§ 118. If he binds to service a male or a female slave, and the
merchant transfers or sells him, he can establish no claim.

§ 119. If a man is subjected to an attachment for debt and sells a
maid-servant who has borne him children, the owner of the maid-servant
shall pay and shall release his maid-servant.

These laws are quite similar to Exod. 21:2-11 and Deut. 15:12-18.

The main differences are that the Hebrew law contemplates that a man may enter slavery himself; the Babylonian only that he shall permit his wife, son, or daughter to do it. The Hebrews released such slaves at the end of six years;[467] the Babylonians at the end of three. Hebrew law recognized, too, that a man might sell his daughter into slavery (Exod. 21:7-11), but it stipulated that her treatment should be different from that of men. It recognizes that either her master or his son would be likely to make her a real or a secondary wife. She was not to be released at the end of seven years, but in case her master did not deal with her in certain specified ways she regained her freedom regardless of her period of service.

Storage of Grain

§ 120. If a man has stored his grain in heaps in the building of
another and an accident happens in the granary, or the owner of the
building has disturbed the heap and taken grain, or has disputed the
amount of grain that was stored in his building, the owner of the
grain shall give an account of his grain under oath, the owner of the
building shall double the amount of grain which he took and restore it
to the owner of the grain.

§ 121. If a man stores grain in a man’s building, he shall pay each
year 5 _Qa_ of grain for each _Gur_ of grain.

These laws have no Biblical parallel.

Deposits and Losses

§ 122. If a man gives to another on deposit silver or gold or anything
whatever, anything as much as he deposits he shall recount to
witnesses and shall institute contracts and make the deposit.

§ 123. If without witnesses and contracts he has placed anything on
deposit and at the place of deposit they dispute it, that case has no
penalty.

§ 124. If a man gives to another on deposit silver or gold or anything
whatever in the presence of witnesses and he disputes it, he shall
prosecute that man and he shall double whatever he disputed and shall
repay it.

§ 125. If a man places anything on deposit and at the place of deposit
either through burglary or pillage anything of his is lost, together
with anything belonging to the owner of the building, the owner of the
building who was negligent and lost what was given him on deposit
shall make it good and restore it to the owner of the goods. The owner
of the house shall institute a search for whatever was lost and take
it from the thief.

§ 126. If a man has not lost anything, but says he has lost something,
or files a claim as though he had lost something, he shall give
account of his claim on oath, and whatever he brought suit for he
shall double and shall give for his claim.

There is no mention in the laws of the Old Testament of this kind of deposit, though, as already noted, it probably was sometimes practised.

Against Slandering Women

§ 127. If a man causes the finger to be pointed at the woman of a god
or the wife of a man and cannot prove it, they shall bring him before
the judges and they shall brand his forehead.

The nearest parallel to this in the Old Testament is in Deut. 22:13-21, which is really quite a different law, for it applies only to cases where men, when just married, slander their wives by charging them with previous impurity. The Hebrew law provides a method of trial, a punishment for the man, if guilty, and a much severer one for the woman, if the charge is true. The two codes belong to quite a different legal development, as is shown by the fact that the Babylonian law refers to “a woman of a god,” _i. e._, one of the temple-women who, under certain religious rules, represented in a concrete way the procreative power of the god.

This code recognizes several classes of these, as will appear later, but Hebrew law forbade the existence of such women in Israel (Deut. 23:17).

Chastity, Marriage, and Divorce

§ 128. If a man takes a wife and does not execute contracts for her,
that woman is no wife.

§ 129. If the wife of a man is caught lying with another man, they
shall bind them and throw them into the water. If the husband of the
woman would let her live, or the king would let his subject live, he
may do so.

§ 130. If a man forces the betrothed wife of another who is living in
her father’s house and has not known a man, and lies in her loins and
they catch him, that man shall be put to death and that woman shall go
free.

§ 131. If the wife of a man is accused by her husband, and she has not
been caught lying with another man, she shall swear her innocence and
return to her house.

§ 132. If the finger has been pointed at the wife of a man because of
another man and she has not been caught lying with the other man, for
her husband’s sake she shall plunge into the sacred river.

§ 133. If a man is taken captive and there is food in his house, his
wife shall not go out from his house, her body she shall guard, into
the house of another she shall not enter. If that woman does not guard
her body and enters into the house of another, that woman they shall
prosecute and throw her into the water.

§ 134. If a man is taken captive and in his house there is no food,
and his wife enters into the house of another, that woman is not to
blame.

§ 135. If a man is taken captive and there is no food in his house and
his wife has openly entered into the house of another and borne
children, and afterwards her husband returns and reaches his city,
that woman shall return to her husband and the children shall follow
their father.

§ 136. If a man deserts his city and flees and after it his wife
enters into the house of another, if that man returns and would take
his wife, because he deserted his city and fled, the wife of the
fugitive shall not return to the house of her husband.

§ 137. If a man sets his face against a concubine who has borne him
children or a wife that has presented him with children, to put her
away, he shall return to that woman her marriage portion, and shall
give her the income of field, garden, and house, and she shall bring
up her children. From the time that her children are grown, from
whatever is given to her children, a portion like that of a son shall
be given to her, and the husband of her choice she may marry.

§ 138. If a man would put away his spouse who has not borne him
children, he shall give her silver equal to her marriage gift, and the
dowry which she brought from her father’s house he shall restore to
her and may put her away.

§ 139. If she had no dowry, he shall give her one mana of silver for a
divorce.

§ 140. If he belongs to the laboring class, he shall give her
one-third of a mana of silver.

§ 141. If the wife of a man who is living in the house of her husband
sets her face to go out and act the fool, her house neglects and her
husband belittles, they shall prosecute that woman. If her husband
says: “I divorce her,” he may divorce her. On her departure nothing
shall be given her for her divorce. If her husband does not say: “I
divorce her,” her husband may take another wife; that woman shall
dwell as a slave in the house of her husband.

§ 142. If a woman hates her husband and says: “Thou shalt not hold
me,” they shall make investigation concerning her into her defects. If
she has been discreet and there is no fault, and her husband has gone
out and greatly belittled her, that woman has no blame; she may take
her marriage-portion and go to her father’s house.

§ 143. If she has not been discreet, and has gone out and neglected
her house and belittled her husband, they shall throw that woman into
the water.

§ 144. If a man takes a priestess and that priestess gives a female
slave to her husband, and she has children; if that man sets his face
to take a concubine, they shall not favor that man. He may not take a
concubine.

§ 145. If a man takes a priestess and she does not present him with
children and he sets his face to take a concubine, that man may take a
concubine and bring her into his house. That concubine shall not rank
with the wife.

§ 146. If a man takes a priestess and she gives to her husband a
maid-servant and she bears children, and afterward that maid-servant
would take rank with her mistress; because she has borne children her
mistress may not sell her for money, but she may reduce her to bondage
and count her among the female slaves.

§ 147. If she has not borne children, her mistress may sell her for
money.

§ 148. If a man takes a wife and she is attacked by disease, and he
sets his face to take another, he may do it. His wife who was attacked
by disease he may not divorce. She shall live in the house he has
built and he shall support her as long as she lives.

§ 149. If that woman does not choose to live in the house of her
husband, he shall make good to her the dowry which she brought from
her father’s house and she may go away.

§ 150. If a man presents his wife with field, garden, house, or goods,
and gives to her sealed deeds, after her husband’s death her children
shall not press a claim against her. The mother after her death may
leave it to her child whom she loves, but to a brother she may not
leave it.

§ 151. If a wife who is living in the house of a husband has persuaded
her husband and he has bound himself that she shall not be taken by a
creditor of her husband; if that man had a debt against him before he
took that woman, the creditor may not hold that woman, and if that
woman had a debt against her before she entered the house of her
husband, her creditor may not hold her husband.

§ 152. If they become indebted after the woman enters the man’s house,
both of them are liable to the merchant.

§ 153. If a woman causes the death of her husband on account of
another man, that woman they shall impale.

§ 154. If a man has known his daughter, the city shall drive out that
man.

§ 155. If a man has betrothed a bride to his son and his son has known
her and he afterward lies in her loins and they catch him, they shall
bind that man and throw him into the water.

§ 156. If a man has betrothed a bride to his son and his son has not
known her and he lies in her loins, he shall pay her half a mana of
silver and restore to her whatever she brought from the house of her
father, and the man of her choice may marry her.

§ 157. If a man after his father’s death lies in the loins of his
mother, they shall burn both of them.

§ 158. If a man after his father’s death is admitted to the loins of
his chief wife who has borne children, that man shall be expelled from
the house of his father.

§ 159. If a man who has brought a present unto the house of his
father-in-law and has given a bride-price looks with longing upon
another woman, and says to his father-in-law: “Thy daughter I will not
take,” the father of the daughter shall keep whatever was brought to
him.

§ 160. If a man brings a present to the house of a father-in-law and
gives a bride-price, and the father of the daughter says: “I will not
give thee my daughter,” whatever was brought him he shall double and
restore it.

§ 161. If a man brings a present to the house of his father-in-law and
gives a bride-price, and his neighbor slanders him, and the father
says to the groom: “Thou shalt not take my daughter,” whatever was
brought he shall double and restore to him.

These Babylonian laws present numerous points of contact and of divergence, when compared with the Biblical laws on the same subject. There is no Biblical parallel to § 128. The law (§ 129) which imposes the death penalty upon a man who commits adultery with another man’s wife and upon the woman, finds an exact parallel in Lev. 20:10 and Deut. 22:22, though the Biblical law, unlike the Babylonian, provides no way in which clemency could be extended to the offenders.

The laws in §§ 130, 156, concerning the violation of betrothed virgins, are in a general way paralleled by Lev. 19:20-22 and Deut. 22:23-26, though there are such differences that, while the underlying principles are the same, it is clear that there was entire independence of development. A religious element enters into Leviticus that is entirely absent from the Babylonian code. The Bible contains two laws on this subject that are without parallel in the Babylonian code. These are found in Exod. 22:16, 17 and Deut. 22:28, 29, and impose penalties for the violation of virgins who were not betrothed. In both codes the principle is manifest that the loss of a girl’s honor was to be compensated by money, though Deut. 22:28, 29 recognizes that it has a value that money cannot buy.

The laws relating to a wife whose fidelity is suspected (§§ 131, 132) find a general parallel in Num. 5:11-28. The provision at the end of § 132 that the wife should plunge into the sacred river is in the nature of trial by ordeal. The law in Numbers imposes on such a woman trial by ordeal, though it is of a different sort. She must drink water in which dust from the floor of the sanctuary is mingled--dust surcharged with divine potency--and if she does not swell up and die, she is counted innocent.

The laws which provide that a wife may present her husband with a slave-girl as a concubine (§§ 137, 144-147) are without parallel in the Biblical codes, but are strikingly illustrated by the patriarchal narratives. Sarah gave Hagar to Abraham (Gen. 16); Rachel and Leah gave Bilhah and Zilpah to Jacob (Gen. 30:1-13). The law (§ 146) which deals with such a slave-girl who would rank with her mistress is closely parallel to the story of the treatment of Hagar in Gen. 16:5-7 and 21:9, 10.

The laws on divorce (§§ 138-141) are really in advance of the one Biblical law on the subject (Deut. 24:1-4). The law in Deuteronomy permits a husband to put away a wife, who in any way does not please him, without alimony, while to the wife no privilege of initiating divorce proceedings is granted at all. The Babylonian laws secure to the divorced woman a maintenance, and, while by no means according her equal rights with the man, provide (§ 142) that she may herself initiate the proceedings for divorce. The ordeal must have been an unpleasant one, but in Israel’s law a woman had no such rights.[468]

The law concerning adultery with a daughter-in-law (§ 155) is identical in purpose and severity with Lev. 20:12. The laws in §§ 157, 158, which prohibit immorality with one’s mother or the chief wife of one’s father, just touch upon the great subject of incest and the prohibited degrees of marriage which are treated at considerable length in Lev. 18:6-18; 20:11, 19-21, and Deut. 22:30. The Babylonian laws touch but two specific cases, which may be said to be covered by Deut. 22:30, while the laws of Leviticus treat the whole subject of the prohibited degrees of marriage in a broad and comprehensive way. The main idea pervading Leviticus is holiness. Israel is to be kept free from the pollution of incest in any form. The religious motive exhibited here is foreign to the Babylonian code.

Inheritance

§ 162. It a man takes a wife and she bears him children and that woman
dies, her father may not lay claim to her dowry. Her dowry belongs to
her children.

§ 163. If a man takes a wife and she does not present him with
children and that woman dies; if his father-in-law returns unto him
the marriage-settlement, which that man brought to the house of the
father-in-law, unto the dowry of that woman her husband may not lay
claim. Her dowry belongs to the house of her father.

§ 164. But if his father-in-law does not return the
marriage-settlement unto him, he shall deduct from her dowry the
amount of the marriage-settlement, and then return the dowry to the
house of her father.

§ 165. If a man has presented to his son, the first in his eyes,
field, garden, or house, and written for him a sealed deed, and
afterward the father dies; when the brothers divide, he shall take the
present which his father gave him, and over and above they shall
divide the goods of the father’s house equally.