Chapter III: Preface (3)

The picture which W. ROBERTSON SMITH draws of the state of society contemplated by the Book of the Covenant is founded on the assumption that there was no more of it. The basis of life is agriculture, cattle and agricultural produce constitute the chief part of wealth, and the laws of property deal almost exclusively with them. Only we cannot say that this was all. True, there is no longer preserved any regulation of the relations between principal and agent, if such ever existed. There is no widely extended tariff of wages for artificers and workpeople. Too much cannot be made of the fact that the Code of Hammurabi proves the existence of such specialized classes in Babylonia. For it does so without ever mentioning them in just those laws which can best be compared with the Book of the Covenant. If we were acquainted only with that part of the Code of Hammurabi which does correspond to the Book of the Covenant we might similarly construct from it a picture of the state of society in Babylonia just as simple as the Book of the Covenant warrants us in recognizing in Israel. Nevertheless it was not so.

The fact is that the Book of the Covenant does not present a complete picture of the state of society in Israel in the early days of the monarchy. That may not have been so advanced as in the days of Hammurabi. But the kings of Israel at any rate had need of skilled workmen. We read, indeed, that Solomon had to send to Hiram of Tyre for certain workmen, but this is not enough to prove the entire absence from his dominions of other classes of artisans. The absence of blacksmiths in Saul’s time is ascribed to an exceptional cause. In fact, the only way in which the entire absence in Israel of all but agriculturalists and shepherds could possibly be accounted for is by supposing that the Israelites had killed out all the Canaanites. We know they did not. We may point out other ways in which it would be dangerous to deduce from the absence of mention in the Book of the Covenant the non-existence of any particular institution whatever.

It is of more importance to notice that the principles of criminal and civil justice are those still current among the Arabs of the desert, namely, retaliation and money compensation. It is precisely the same with the Code of Hammurabi. If these features in the Book of the Covenant compel us to consider the Israelites for whom it was compiled as nomads in much the same state of civilization as the Bedawin, the same features compel us in the case of the Code to ascribe similar civilization to the Babylonians of Hammurabi’s period. The fact probably is that in both cases the dominant folk, Amorites or Hebrews, really were conservative of customs once in place in the desert if not too unsuitable for a settled life to retain.

It is a truer way to present the facts to say that both the Book of the Covenant and the Code of Hammurabi do not so much enact the _lex talionis_ as interfere to limit its action in certain directions. For example, it is scarcely correct to say in either case that murder was dealt with by the law of revenge or left to the avenger of blood to punish. In the Code murder in general is not mentioned; we cannot suppose it condoned. But as in the Book of the Covenant it is distinguished from manslaughter, and this is expressly exempted from the death penalty. The innocent man-slayer might take refuge at the altar, as was still the case with those who feared for their lives down to the time of Solomon. It is clear that a murderer might do the same, for he was to be taken thence. Some sort of trial must have taken place before he was delivered up to the avenger of blood. We are nowhere told what was the procedure in Babylonia, but we may assume it was the same, for the innocent man-slayer was liberated on oath of want of malice. The oath was taken at the altar or before the emblem of the god. It is singular enough that no penalty for murder is stated, but there is nothing whatever to indicate that it met with different treatment in Israel and Babylonia.

In both legislations man-stealing is reckoned with murder and punished by death. So is witchcraft, according to the evident implications of the Code and the express declaration of the Book of the Covenant. That offences against parental authority were treated differently is to some extent true. They are summarily dealt with in the Book of the Covenant with a death penalty. The Code spares the son for a first offence in such crimes as would naturally disinherit him, and enacts mutilation for violence to a parent. One may question whether death or loss of the hands was the worse penalty in Babylonia, and may remember that some critics hesitate to ascribe the law enacting the death penalty to the Book of the Covenant. The fierce resentment of the sons of the desert against any form of mutilation would account for the substitution of the death penalty. Other cases of injury in the Book of the Covenant are treated as proper occasions for self-help or for private suits to be adjusted at the sanctuary. That is exactly the view taken by Hammurabi, only explicit provision is made for suits which cannot be so adjusted by judges. Contemporary legal practice bears witness to frequent settlements ‘out of court’.

The case of the goring ox is treated by both legislations. Both make no amends to the victim of the attack made by an animal suddenly become savage. Here the Hebrew Code orders the death of the ox, a piece of useless barbaric revenge that has only recently died out amongst us. The poor beast got no trial and could not plead, but was held responsible. This may be very human, but it is to the credit of Hammurabi that he is at least silent on the point. On the other hand, if the ox was known by his owner to be vicious and death resulted, the Code inflicted stated fines on the owner according to the estimated value of the life destroyed. The Book of the Covenant does the same, fixing a ransom for the death of a slave to be paid to the owner, but death of the ox’s owner if the man killed be a freeman. And again, the ox is killed. The difference between the two fines for the death of a slave is noteworthy as probably marking average value in each case. This illustrates the reason why other fixed money payments do not correspond. Money values differed. Otherwise the treatments could scarcely be more closely alike.

In the case of specific and particular bodily injuries both laws exact a retaliation. The Book of the Covenant is here the more explicit: ‘life for life, eye for eye, tooth for tooth, burning for burning, wound for wound, stripe for stripe’ is more detailed at any rate than the Code, which only enumerated ‘eye for eye, limb for limb, tooth for tooth’. The difference, such as it is, can hardly be pressed as really giving a different complexion to the legislation. On the whole, despite its extra detail, the Hebrew law is less clear, and the arrangement certainly looks like a hasty compilation. For as it stands these words occur attached to the case of a woman with child hurt by blows. At any rate Exodus xxi. 24-5 introduces them with the words ‘and if any mischief follow’. It may be, as some suggest, that they have slipped in here from some other context, or be merely an expansion of the ordinary ‘eye for eye’ to give a fuller formulation of the _lex talionis_. But it is difficult to see how the loss of a limb, or an eye, or a burning could be the mischief done by a blow to a pregnant woman. Miscarriage or death, or both, are the mischiefs likely to happen. The Code of Hammurabi deals with the case more reasonably. In fact, as it stands, the Exodus passage, xxi. 18-25, looks very like a loose summary of Hammurabi (§§ 196-200) without its logical connexion. At any rate, it is hardly credible that this collection of words was ever put forward at any time in the world’s history to enunciate a new law for a community of any type that ever existed. The most intelligible way of regarding this clause is as an attempt fully to enunciate the law of retaliation, and that its presence in its present place is due to the desire to explain some phrase which less effectively quoted that law; but in the quotation of the fuller statement the fact was overlooked that some of its clauses were unsuited to the cases under consideration. It is no excuse to say that it looked back over all the preceding cases of assault, for ‘burning’ nowhere applies. The only clause which really applies is the first, ‘life for life’.

Doubtless some critical rearrangement may be made to justify the use of the clauses somewhere, but as it stands it looks like a stupid interpolation or an undiscerning quotation of the law of retaliation bringing in the sense ‘if any mischief follow then it shall come under the law of retaliation’. That would yield some sense if interpreted with common sense in particular cases. The Code of Hammurabi is much more distinct. If miscarriage followed, a fine was set down. If the woman died also, the assailants daughter was put to death when the dead woman was of patrician family, otherwise a fine was set down. The Book of the Covenant evidently held to the strict retaliation throughout, but gave no hint as to how it was to be carried out. The Code slips into the same vagueness if the assailant had no daughter to pay the penalty of her father’s fault.

In the case of the injured woman in Exodus xxi. 22, the punishment, if no mischief follow, was left to be assessed by her husband, obviously for motives of delicacy; but the decision of the amount to be paid lay finally with the judges. In Hammurabi’s Code it was fixed by statute and graded according to the status of the woman (§§ 209-14). What, we may ask, is the essential difference? Can any one suppose that in Israel the husband could demand and secure what compensation he chose? Surely the Hebrew law is a concise way of saying the same thing as Hammurabi’s Code does. The scale of payment could hardly be expected to be the same in both lands owing to the difference in money values. A discretionary power in the judges, or a liberty of composition between the parties, is implied in the Code which everywhere states maximum penalties. This is made clear by contemporary practice. Both legislations further take into account the possible death of the woman herself. Else, what is the meaning of the phrase ‘and if mischief follow’? The Hebrew law, however, in that case legislates most awkwardly for what could hardly happen in its endeavour exhaustively to express the law of retaliation which was to rule the case.

While we are comparing the laws as to assaults and their penalties, we may pause to note one conspicuous difference between the legislations. The Babylonian lawgiver made a considerable allowance for class distinctions. His was eminently class legislation. Some at once feel that this fact places his law on a lower level than the law of God. Such is a grotesque misapprehension. In Babylonia there was what we have not yet attained nor can do until the State bears all law expenses and gives a poor man justice free of cost. There was one and the same law for both rich and poor. But the aristocrat was treated differently from the commoner. In the eyes of some this is a far worse crime than favouring the rich against the poor, which is the vice of all democracy. But Hammurabi was in this much finer than we might expect, for he treated the aristocrat more severely in every respect than the man of humble birth. I do not attempt to defend that method, but it does need a little explanation.

The facts are these, the aristocrat in Babylonia took a very high view of his personal dignity as one of the conquering race. On his continued support and loyalty the safety of the throne, and consequently the welfare of all Babylonia, depended. The commercial-minded Babylonians, rich or poor, like any other commercial group in the history of the world, could never defend for long even their own money-bags, and for all their industry, brains, and wealth could only pay for protection so long as the pay they were willing to offer exceeded the spoil their mercenaries could wring from them. The aristocrat was actually of a lower civilization, as conquerors were always apt to be, but he held the land by force of arms. Hammurabi was as dependent on his noble Amorites as William the Conqueror was on his Normans. He held them to his allegiance in practically the same feudal manner as did William and his successors hold the Barons.

Now the aristocratic _amêlu_ or patrician of Babylonia was very sensitive to a personal injury. He would accept no compensation for a blow as might a commercial plebeian. The exact retaliation ’eye for eye, tooth for tooth, limb for limb’ was his sole satisfaction. The _mushkênu_ or commoner had to be content with a money payment. So far for the contemporary public opinion. We say that the proud patrician was conservative of a more primitive type of law, which we find to be that of a nomad Semitic folk, the Bedawin Arabs, still. So far as the Hebrew clung to the same law we discern aristocratic views with a lower type of civilization.

But there is no trace of such class distinctions in the Book of the Covenant. It is not, therefore, a higher type of law. It would be lower if it were purely aristocratic in the sense of love of retaliation. Why, we may ask, were there no social grades in Israel? Possibly because in proportion to the conquered the conquerors were relatively more numerous than in Babylonia. Or possibly the conquered were more thoroughly subdued. Possibly also because the references to class distinctions have since been expurgated from our copies of the legislation.

Now let us take the view that the higher law which accepts compensation for injury in place of strict retaliation emerged later in Israel. Are we to regard this as a natural evolution? Surely not. We are not convinced, surely, that it is a higher law or more inspired. It was probably, as in Babylonia, already the older law of the land before the Israelite invasion, the more civilized law of the more civilized inhabitants of Canaan. Later, according to the critical arrangement of the law codes as preserved to us in the Pentateuch, this more civilized custom is growing, and it has to be forbidden in the interests of conservatism (Leviticus xxiv. 22). At any rate, there, after repeating the law of retaliation, differences of treatment are forbidden. Why should this be done, unless they had been growing? Later still, in Deuteronomy xix. 21, deviations from strict retaliation are again forbidden with the words ‘thine eye shall not pity’. Once more, we may ask, if compensation had not been a growing custom among the Israelites, why should this effort be made to strengthen the observance of a lower law? Was it solely because of their reverence for Moses and his law, or was it not because it was all along the Canaanite law and so repugnant to the Jewish lawyers? If so, were not the Canaanites in the same position to the Israelites as the Babylonian _mushkênu_ to their Amorite conquerors in the old days of Hammurabi?

The cases in the Book of the Covenant where an injury to a slave is treated are not to be compared to those in the Code of Hammurabi. If a slave is freed (Exodus xxi. 26) for a bad assault on him, it is an assault by his master, for which Hammurabi has no notice. Hammurabi’s cases of assault on a slave are by one who is not his master. There is nothing here to show that the law was not exactly the same for both legislations for the same cases. As far as our evidence goes one law treats one case and omits the other, the other law treats the last case and omits the first.

As a matter of fact the Book of the Covenant is here not consistent with itself. A man might beat his servant to death, provided he did not ‘die under his hand’, and go unpunished, but he might not knock out his eye without having to free him. Obviously, then, if he did knock out his eye, his wisest plan was to so injure him further that he should die. In any case he lost his slave. One can hardly help suspecting that these two clauses belong to different periods. What the Babylonian master could do to his slave without incurring punishment we do not now know. If a slave ran away and was brought back his master could put him in fetters. If the slave repudiated his master’s authority he was punished by mutilation. But Hammurabi does not otherwise interfere between master and slave. Probably he, too, counted on the master’s regard for his own property.

The case of a slave who married a free wife comes up both in the Code (§ 176) and in Exodus xxi. 3. Hammurabi makes the woman and her children exempt from the master’s power. So does Moses, if the man had married before he became a slave. Of course, if his master gave him a wife, the master retained power over her and the children. We cannot, however, suppose that if the enslaved Hebrew married a free woman while in servitude that the master claimed to treat her as a slave. Probably, however, the master had power to forbid such a marriage. Thus there really was no case likely to arise in Israel to compare with that legislated for in Babylonia, which law regulated all cases except this in Canaan also. The only new regulation which had come into use is the restriction on the man’s term of service. To meet the case of a man who preferred perpetual servitude in domestic comfort to destitute freedom he was allowed to be ear-marked for the purpose (Exodus xxi. 6).

The Book of the Covenant extends the right of release to females (Exodus xxi. 7) with a proviso. If her master has used her as a concubine he cannot sell her. Either he must continue to treat her as a wife or give her freedom. In the Code of Hammurabi the concubine has the same rights, whether she had been slave or free woman originally, if she has borne children. If she has not borne children to her master she may still be treated as a slave if a slave before. The contrast between the laws is only apparent. A Hebrew could not sell his slave whom he had used as concubine, although she were childless, and the Babylonian could. But, it must be noted that the Nippur copy of the Code, perhaps embodying South Babylonian custom such as Abraham may have learned in Ur, omits the clause allowing the sale of the childless slave-concubine. As a slave she had to go out in three years, if once a free woman, according to the Code (§ 176), which is the case contemplated by Moses who, however, permits six years’ servitude as in the case of male servants (Exodus xxi. 7). If the slave-girl became betrothed to her master’s son she rose to the status of a daughter, which conferred freedom despite her previous status.

The Code of Hammurabi punishes kidnapping of a freeborn man with death (§ 14). To steal a slave was just common theft, and that also was punished with death (§ 15). Moses combines the two cases in one (Exodus xxi. 16): ‘he that stealeth a man shall surely be put to death.’ The clause which adds ‘and selleth him or if he be found in his hand’ constitutes no contrast. It does not appear very illuminating. For what purpose any one would steal a man except to sell him as a slave or keep him as such is not easy to see. But it does recall the insistence of the Code that a man-stealer to be convicted as such must be caught ‘with the slave in his hand’ (§ 19). In fact the Book of the Covenant seems here to have somewhat awkwardly condensed §§ 14-20 of the Code, attempting to make the law apply to any man, slave or free, without expressly naming the slave. But it does name one case which Hammurabi omitted to notice—when the man-stealer had succeeded in selling his capture. The sale might be difficult to prove, but in a country where scarcely anything was sold without a deed of sale on which the Code insists so clearly no buyer would easily be found. In any case Hammurabi could hardly have meant that a man-stealer was only to be punished if he had not succeeded in passing on his captive. How the Book of the Covenant contemplated proof of sale would be found does not appear. It is to be borne in mind that a man-stealer was only likely to attempt to kidnap a child or a slave. Hammurabi legislates fully for both cases; Moses apparently attempts to include all cases under one term and condenses the carefully distinguished cases of the Code, and leaves a law which as the Book of the Covenant now preserves its regulations can scarcely be called clear.

In the case of grievous assault the Code demands an oath of lack of malice and payment of the doctor. Moses omits the oath, Exodus xxi. 18 f., and orders payment for loss of time. The injured man seems to have been left to get well as best he could, or the doctor may have been ignored because his practices were connected with idolatry. But the words ‘cause him to be thoroughly healed’ surely imply the existence in Israel of some sort of doctor. Anyway, the customary justice underlying both laws is the same. If the injured man dies Hammurabi admits oath of want of malice (§ 207) and fixes the compensation. Here in Exodus xxi. 13 Moses allows the right of asylum. This is a most marked difference, and a whole literature has grown up about the question of asylum and the Cities of Refuge. It is impossible here to work out the question. We must, however, notice that the Book of the Covenant does not specify the usage as to asylum at that period. We can hardly quote the regulations given, say in Numbers xxxv, which are held by critics to be of later date and may embody considerable changes. One of these changes forbids the innocent slayer to leave his asylum until the death of the high priest. That is considered certainly to be of late date. It is associated with a prohibition to take a satisfaction for the deed. If this be also late it marks a growing custom or the recrudescence of an earlier usage. Whenever it held sway the ultimate fate of the innocent man-slayer was the same as in the Code. He had to pay a compensation to the relatives of the slain man.

Now we may consider several alternatives. This custom of asylum or purgation by oath, both implied or prescribed in Israel and Babylonia, was also associated with compensation to the relatives both in Israel and Babylonia at some time. In Babylonia it was so in the time of Hammurabi and, if not in Israel at the time of the Book of the Covenant, some time later before the prohibition.

In Babylonia the man-slayer would be tried on the capital charge before a court. Whether he had to flee for refuge to the temple to escape the avenger of blood does not appear. But the court was certain to be held there, and the oath was before the altar or emblem of the god. In Israel he had so to flee. He had to be tried on the capital charge there. His oath of purgation implies a trial there. Exodus xxi. 14 implies that a murderer would take refuge there. In neither law are the details given explicitly, but we cannot point out any contradiction; all we can say is that each omits what the other records. We must admit, however, that there may have been real and essential differences here.

Cases of theft show much the same treatment, allowing for adaptation to changed circumstances. The burglar in the Code of Hammurabi was killed on the spot and gibbeted before the breach he had made. In the Book of the Covenant this right to self-help is only allowed if the burglary takes place at night. It may be that the Code also contemplates nocturnal burglary alone, as did the Roman XII Tables. There is, however, no explicit statement on the point. The case of burglary in daylight, however, implies the possibility of calling in assistance. That the death penalty should be inflicted in the Code of Hammurabi for the brigand, for the thief who enters a temple or palace, both public treasuries, to steal, for the stealer at a neighbour’s fire, are not to be alleged as contrasts so long as we do not know what the penalties inflicted on such criminals should be. We cannot suppose such crimes unknown in Israel or so rare as not to be dealt with. All we can say is that what we have left of the Book of the Covenant does not notice them.

A very remarkable set of differences strikes our attention when we consider the fines for theft or fraud. In the Code of Hammurabi restitution might be demanded up to thirty-fold in some cases or only double in others. In the Book of the Covenant it ranges from double to five-fold. The treatment is certainly completely independent. Actual reasons for the amount of penalty are given in no single case. We may suggest some, with little confidence, however, in their real influence in antiquity.

That the Code of Hammurabi punishes the aristocrat so sharply may have been due to the uneradicated predatory instinct of his Amorite retainers, or to the arrogance of conquerors who were disposed to hold that the conquered had no rights against them. That the Book of the Covenant instances only ox and sheep may be due to the fact that its legislation was meant for a pastoral folk entering upon a new environment. The peculiar numerical calculations which brought about the penalty of multiple restitution and decided how many times may have been founded on some theory as to the significance of numbers which now escapes us.

But one point must be carefully borne in mind. The Code of Hammurabi states the maximum penalty. Its ‘shall’ is not imperative but permissive, it may best be rendered ‘may’. A considerable licence was allowed to judges, and there was always appeal to a higher court and ultimately to the king.

Damage to crops by animals is explicitly treated both by the Code and by the Book of the Covenant. Hammurabi (§ 57) separates two types of damage—one where the crop may recover and even benefit by the growing corn being fed off and trodden by sheep, the other where the corn in the ear is irretrievably destroyed. It is not clearly the case, however, which is treated in Exodus xxii. 5. If not, then we can allege no contrast; but the LXX and the Samaritan Pentateuch add the case of complete consumption. This might be due to a later acquisition of knowledge concerning Babylonian or Canaanite usage, but is so distinct that we cannot fairly insist on conscious antiquarian interest. The case could hardly be left undecided.

Damage by flooding a neighbour’s field, dealt with in the Code, §§ 53-6, is foreign to Israelite soil, irrigation being rare, but the same type of law is given for damage by fire in Exodus xxii. 6. This is not referred to in the Code.

The Code of Hammurabi deals at length with the case of property claimed as lost from a holder who asserts ownership (§§ 9-13). The corresponding section of the Book of the Covenant, Exodus xxii. 9, may be said to condense the whole with extreme brevity thus: In any case of breach of trust, whether it concern ox or ass or sheep or clothing, or any kind of lost thing of which one saith ‘This is it, the case of both parties shall come before God; he whom God shall condemn shall make double restitution to his neighbour’. This seems to be the best that PROFESSOR KENT can make of the Hebrew. Now can any unprejudiced person suppose for a moment that this clause sets out a new law in an intelligible fashion. Is it not obviously drawn up in the manner of one who is summarizing a well-known series of enactments? To my mind it is very difficult to resist the impression that it is meant to reduce a rather wide and perhaps not a very uniform series of judgements to a single formula. That the law thus sought to be simplified was the Code of Hammurabi does not appear, for the simplification is of a type that destroys almost all likeness. Only this may be said: in both legislations, if any man is found holding property his right to which is challenged by another, the claims of both are to be rehearsed before the judges. So far the resemblance is exact, but while the Code takes each contingency separately, and whoever is proved to have made a false claim is judged to be a would-be thief and as such condemned to death, in the Book of the Covenant the culprit has merely to pay double to the man he has defrauded. This is indeed a marked change, if not improvement. But one would expect progress in five hundred or a thousand years of settled life in Canaan. That so primitive a folk as Israel is usually supposed to have been on entrance into Canaan, or even in the early days of the monarchy, should have a law so advanced would be remarkable enough. But we note that apparently the Book of the Covenant wishes to include breach of trust as well as unlawful detention of property.

Now the law of deposit or trust is dealt with in the Code very clearly and precisely. The depositee is responsible for all loss. Even if the deposited goods are stolen from him he must repay and recover at his own charges from the thief if he can find him. If the depositee wrongly denies or disputes the deposit he pays double. One point only is not decided. The thief has, of course, to be killed when caught. But he may not be caught, and his death in any case will not restore the goods. Now Exodus xxii. 7, dealing with deposit also, does not repeat or resume the surely necessary points treated by the Code, but does take up one of its difficulties. If the thief is caught he, too, pays double. If he cannot be produced, the depositee is brought to the judges to see if he has appropriated the goods. The sequel is not stated, but is usually supplied by supposing it covered by verse 11, which, however, formally applies to a different case, the case of animals entrusted to a shepherd or farmer, which is treated in the Code (§§ 244, 249, 267). There unavoidable accidents are cleared by an oath of innocence, just as in verse 11. But as in Exodus xxii. 13, evidence of the animal being killed by a lion is demanded in the production of the remains; we can hardly regard this as on all fours with robbery from a granary, for example. In the case of negligence or theft of a deposit both legislations require restitution. There are certainly differences, but no fundamental difference of view. No one can deny that the regulations in the Book of the Covenant might have arisen quite independently, founded on natural experience; but surely, in that case, the law would have explicitly treated more points. These must have arisen in practice. Why were they not treated?

The answer which seems to meet the case is that the Book of the Covenant assumes just what the Code contains, repeats some of it summarily, adds a fresh case or two, revises the penalties, but, if completely preserved, does all this in a rather crude fashion. We may not have it all, and that must not be forgotten. The Exodus passage as it stands has all the appearance of supplementary legislation, and, if it be as early as is commonly supposed, where are we to look for what it assumes already known?

So far we have instituted a comparison between the Hammurabi Code and the Book of the Covenant without exploiting the subsequent Hebrew legislation. We have seen great likeness mingled with decided contrasts. We have followed quite carefully critical views without being able to exhaust all the ramifications of criticism. We have taken the usual acceptation of the Hebrew laws. Considerations of time and space prevent our extending our researches to the limits of exhausting our subject. Much clearly remains to be done. We could examine most of the points taken up much more closely. Before we leave this part of our subject let us look from another point of view at the cases of slavery already dealt with.

The Book of the Covenant, Exodus xxi, legislates for slaves, both male and female, but especially for those of Hebrew race. A moment’s consideration will show that this is not an exhaustive treatment of the questions relating even to them; only selected points are dealt with. Now we may ask, Why should just those points be selected? Was it because the nomads before entering Canaan had no slaves, or were there none of the Hebrew race, or was it the case that in the desert none could sink so low? Or were there no slaves under the early kings of Israel? At what time did the use of slaves arise? Definite ideas on such points are necessary before theories of the date of the laws can be sustained. The usual view is that the institution of slavery is long anterior among the Israelites to the Book of the Covenant, whose regulations introduce no new regulations, only fix customary usages. On the other hand, a very frequent view is that a change in habits on entrance into Canaan had brought new conditions and so had given rise to new sociological problems. Perhaps the conquest of Canaan added largely to the numbers of slaves. The older views on the subject of slavery had to be modified in order to meet new conditions. The Book of the Covenant on this view did introduce new regulations which aimed at teaching a newly settled folk how to treat particular cases. Did the lawgiver, then, treat the subject _de novo_, or merely adopt regulations already in force in Canaanite cities, or did he seek inspiration from the land to which his people’s traditions ascribed their origin?

Now the answer to such a question depends upon what we can find elsewhere in the people’s previous experience in the desert, in Canaan, or in dim memories of far-off Babylonian days. That is to say, if these really denoted distinct epochs in their history with distinct civilizations. For if a law on these points already existed, was recalled, or observed in force, which proves to be practically the same as that here adopted, or could be ascertained on inquiry by Hebrew legislators, then the view that they did not attempt to ascertain it, nor recalled it, nor observed it, but independently concocted a fresh law, and in so doing hit upon exactly the same result as they might have ascertained, recalled, or observed, needs only to be stated to refute itself. An appeal to inspiration to explain this kind of miracle is only laughable, and if the best of men professed to so account for any of his actions in ordinary life, we could only doubt his sanity so long as we believed his sincerity.

The Code of Hammurabi had existed for five hundred years or more, and it shows what a settled folk of same racial type under much the same conditions did achieve on the subject. We must, then, show that the Book of the Covenant treats things differently, or that its author could not well be aware of this Code, before we can safely deny that he is indebted to it. Such reasoning has led many scholars to assert roundly that the Hebrew legislation is derived directly from the Babylonian. But for argument’s sake let us start by assuming that the regulations in the Book of the Covenant are original and devised solely to meet the circumstances in Canaan at some early period in the Israelite predominance there, and let us consider these regulations more closely.

The regulations appear to concern a Hebrew slave. The first question we ask in astonishment is: How came a Hebrew to be a slave? We probably all know of amazing feats of exegetical dexterity achieved over this question. The Book of the Covenant, however, only adduces the one case of a man sold by the judicial authority for a theft which he was unable to restore (Exodus xxii. 3). The later law in Deuteronomy xv. 12 appears to add the slave acquired by purchase. Who had then the right to sell him? If a Babylonian was captured by the enemy and offered for sale as a slave to his compatriots he had to be ransomed by his own family, his city, or the state, and was restored to freedom and not enslaved any longer. Surely a Hebrew would not be worse treated. The law of P. explains the case more clearly (Leviticus xxv. 39): ‘If thy brother be waxen poor with thee, and sell himself unto thee.’ We may regard this as later, but can we deny that the case itself was not supposed all along? It is most probable that the only way in which a Hebrew could become a slave in his own land to serve a Hebrew master was in some such fashion, which is not really slavery at all.

There is no evidence to show that captives in war, reduced to slavery, or the slaves bought in the open slave market, foreigners in either case, would be freed from slavery at any time, under this law or any other. Later, Leviticus xxv. 44-6 expressly sanctions such being ‘bondmen for ever’, and this was everywhere the natural custom.

The Hebrew ‘slave’, as he has hitherto been called, contemplated in this law, as understood somewhat later, is simply one who had assigned himself or had been assigned by lawful authority to his holder to work off a debt which he himself had contracted. Such in Rome became a real slave, and might easily have so become in Israel and Babylonia but for Moses and Hammurabi. There is no evidence that a Hebrew was ever a slave in any other sense. We shall return to the point again. This is not really a slave but a hostage for debt. Hammurabi had a special name for him, as had the Roman law. The Hebrew term covers such, using a word that may mean a servant, a hostage for debt, or a proper slave.

This ‘slave’, then, worked off his debt by unpaid service. When Leviticus xxv. 40 lays down the rule that he shall not serve as a bondservant but shall be as a hired servant, it bears in mind that he was not a slave at all, but had temporarily lost his freedom. He was like the sojourner, still free, but not fully free. It could not be meant to order that wages were to be paid, only that no such exacting service should be required as was evidently the rule for bondservants or real slaves. ‘Thou shalt not rule over him with rigour’ is a good gloss on the case. For it was naturally a temptation to the holder to get as much work out of this ‘slave’ as he could, in order to recoup the debt or purchase-money in view of the approaching release.

It is most important here to note that the law takes no account of the amount of debt. A purely commercial spirit would have estimated the yearly average value of the slave’s work above his keep and clothing, and then would fix the term of service at such a length as would suffice to work off the debt and its interest. That such calculations were made in Babylonia is evident from existing documents. In the existing state of legislation in Israel we may assume that a man who was in debt, knowing that if he sold himself for debt he would have to serve six years, would not sell himself unless he saw some fair equivalence between the work he would have to perform in that time and the amount he owed. He could hire himself out as a hired servant and pay off the debt with the money, possibly in less time. So it was ruled that if he did elect to serve out his debt he is not to be made to work harder than a hired servant would have to do.

In the Book of the Covenant, then, it seems that a Hebrew was only likely to get into such a position as a result of crime for which he could not pay the fine or a theft which he could not restore, and so by judicial sentence or by voluntary self-assignment for debt.

In such cases the law rules that whatever was the amount of debt six years’ service must be held to discharge it. That opened the way to abuses in two directions. The service might be an insufficient discharge, and so the holder, if the debt was due to him, or the purchaser of the convict, would be cheated; or the man who had suffered the theft be not remunerated. So it is not to be supposed that when a man was sold to pay for a theft which he had committed the buyer would pay more for him than he could reasonably expect to get back by six years’ service. Thus the way was opened to a second abuse, excessive exaction of labour from the slave. Later legislation recognized the existence of just these abuses and attempted redress.

Now all this is completely like the Code of Hammurabi, which already provided for the abuses as well (§ 117 ff.). The Code deals with the man assigned, literally ‘named’, _nibutum_, like the Roman _nuncupatus_, to work off a debt. The Code expressly reserves the right of ‘naming’ this hostage to the debtor himself. The creditor had no power to seize the debtor or distrain on his goods or dependants. If he does he is fined and voids his debt at once. It also, like the Book of the Covenant, contains cases where a man might be sold with his family, and of course his goods, to pay a liability which he had incurred through culpable negligence. Neither it nor the Book of the Covenant expressly brings this case under the law of release. It does not record the case of a man actually ‘naming’ himself as _mancipium_. But that surely is not excluded from possibility, and we know from actually recorded cases that it occurred.

The points of difference are (i) the term of service—fixed by the Code at three years, by the Book of the Covenant at six years; (ii) the regulations against the ill-treatment of the hostage; (iii) the regulation for the case of the man who wished to remain a slave for ever.

On these we may remark, first that in Israel the term of six years imposed by the Book of the Covenant was evidently resented, and has to be explained as really a double term (Deuteronomy xv. 18). Surely that indicates a knowledge on the part of the later lawgiver of what was not generally known in Israel, to wit, that the term had once been three years. Where and when, we may well ask? Surely not in Israel, or the creditor would not have so resented a regulation which gave him twice as much for his money. Nor in his neighbour cities of Canaan, or he would still have recognized his improved position. It must have been somewhere at a time now forgotten in a state of things which he would be expected still to respect. Where else could it be than in Babylonia, the home of his father Abraham? Would any one have quoted him a law unless it was one he was likely to respect as eminently just? He may not have known that law by the name of the Code of Hammurabi, but simply as ‘ancient law’ so highly revered by Orientals in all ages. ‘Ye have heard that it was said by them of old time’ was enough.

Here some one may be disposed to raise the objection that the creditor was not told that the six years was double the term allowed by ancient law, but simply that it was ‘the double of the hire of a hired servant’. Now if that does not mean the same thing it has no sense at all. For a term cannot be double the hire of anything. It is the value in work of the term of service which is double a hire. We must express both terms in the same denomination. In what sense could six years ever be double of anything but three years? How can we imagine three years to have any special connexion with the term of a hired servant? Is there any evidence that servants were usually hired for three years? The term in Israel, as in Babylon, must always have been matter of free contract. The writer has in his mind the other regulation that the hostage for debt must not be treated worse than a hired servant, and explains the six years’ term as double what the debtor would be likely to agree to if he was in the position of a hired servant and free to contract about the term. Why should he be thus expected to fix upon three years as a term? Probably because the custom, which had come down from the time when Canaan observed the same usages which Hammurabi codified, regarded three years as a proper term. If this view be thought not convincing, it may be rejected.

It is at least curious that the excuse given for demanding release for a hostage for debt at the end of six years is that this is after all double something—when it actually is double the term Hammurabi fixed. In whatever way the Deuteronomist meant his reader to understand his explanation it is difficult to imagine what else was in his mind. The something which he appears to allege may be a gloss on his words. The text may once have said ‘for the double he hath served thee’, and a dull glossator may have sought within his own consciousness for the rather pointless example suggested by the other reference to a hired servant’s service.

Anyway, the term is explained as a double one, and it was double of the term in the Hammurabi Code.

The second point of difference has a suggestion of greater ruthlessness in Babylonia in treatment of a hostage. ‘Blows and starvation’ point to efforts to get more out of the hostage. This, too, is the underlying thought of the later legislation in Israel which forbids his treatment as a bondservant.

The third point, too, suggests that in Babylonia it rarely occurred to a man to prefer comfort with servitude to freedom and destitution. The lot of the free destitute may have been more hopeless in Israel, the lot of the slave less tolerable in Babylonia. Or the love of freedom may have been greater in Babylonia. In any case, such a difference in law is the sort of addition which might be expected to grow up in five hundred years of advance, in a different state of society and a far-off land.

In the last resource the ground principle remains the same. A debtor may name himself, or one of his family, or his slave, as hostage for debt, but whatever the amount of debt, the hostage shall not be held beyond a fixed term. This in both laws only applies to a free individual and never affected a real ‘slave’.

We have hitherto assumed that the law contemplates only the Hebrew male ‘slave’. But are we to suppose that when an Israelite got into debt or was sold to pay an obligation that he alone was responsible? Could not he also assign his wife or child or slave to work off his debt? And if he did, are we to understand that they could be kept for ever in bondage? The words of the Book of the Covenant do not expressly answer any of these questions, but only a very pedantic interpretation of the letter of the law could confine its operation to the male head of the family.

We do have, however, an indirect answer in the next two clauses. He might come in alone or he might bring in his wife (and family presumably) with him. If so, they had to be released with him. The case where he assigned them in his place is not mentioned. Are we to assume that this was not done? Subsequent legislation extended the law. Deuteronomy xv. 17 has ‘so shalt thou do to thy female slave’. This may have been necessary to prevent an abuse of refusing to release a female ‘slave’ sold to work off a debt, on the plea that she was not covered by the words of the Act. This would be to assume a litigious spirit, of which we have no other proof to allege. It is better to regard it as commentary. It may, indeed, be contended that the law was intended to cover only one special case, but it is more reasonable to suppose that it takes a special case as norm for all.

Now what is this the law of? To call it the rights of the Hebrew slave is surely to miss the whole point. It is still more misleading to call it the law of male slaves. It is the law of the hostage for debt. It concerns only the person assigned as _mancipium_. No other comes into view. And such is not a slave at all. There is, therefore, here no information about the treatment of slaves in Israel. All the fine talk about the humane character of the Mosaic law may apply elsewhere, not here. The law simply insists on the release of a debtor held to work off a debt at the end of a fixed term.

The further details of the case in the Book of the Covenant are considerations of special cases—(i) if the debtor is a single man when he enters on his term of service, (ii) or accompanied by his wife (and family?), (iii) if provided by his creditor with a wife during his service, (iv) if he prefers servitude in domestic freedom to destitute freedom. On these grounds we may remark—

(i) That he should go forth alone if he came in alone merely heightens the contrast. No restraint of the holder’s freedom is intended, but a limitation of the debtor’s claim. If his holder finds him a wife, and so children, he cannot claim to take them with him, that is all.

(ii) If his wife accompanied him she has the same rights to release as he has. His family is not named, but was surely in the same position. What is here ruled is simply that this class of servitude does not forfeit freedom for any one.

(iii) It is obvious that the holder might give him a slave-woman to be his wife. Had he been fully free the children of such a marriage would be at his own disposal. Now they are the holder’s property. As a single man held to work off his debt he probably was not free to choose his own wife. His children were a species of profit to his holder, just as if he were an ox.

(iv) The case where the man chooses to stay is instructive from many points: for a Hebrew could thus become a slave for ever. There were no degradations if no grades were recognized, and there were no religious disabilities. It did not even preclude wealth. The boring of his ear by the awl was a significant way of nailing his obedience, of which the ear was the organ and symbol, to a particular house.