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.