The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples / The Schweich Lectures

by C. H. W. Johns

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.