In my first lecture I tried to set out in brief some of the most striking features of the Babylonian Code of Laws due to the famous king Hammurabi, especially such as were likely to be useful for our comparison with the laws of Israel. We must, however, have a precise idea of the laws of Israel before we can institute a comparison.
Now this is by no means so easy to obtain as one might expect. It is indeed true that the laws of the Hebrew peoples, as set out in the so-called Books of Moses, have been the subject of uninterrupted and intense study by the Jews themselves for many centuries, and that not only for their antiquarian interest but as of supreme importance for religion and morals in the life of to-day. Most of us have heard of the Rabbinic writings, of the Mishna and Gemara, of the Talmud, and may even know the names of some of the famous Rabbis, lawyers, and doctors who have commented upon them. But, I fear, few of us have any clear idea of the stupendous work which they represent. Perhaps the new Jewish Encyclopaedia may give us a better idea. Christian scholars, such as the famous Dr. John Lightfoot, made much use of the treasures of the Jewish writers, but modern scholars appear to have paid small attention to this type of learning.
Nevertheless we are sometimes assured that the discussions of the Jewish Rabbis embody all the most assured results of modern criticism. Certainly they do contain an amount of material for the elucidation of the Mosaic laws which is almost bewildering in extent. When the traditional information and explanation which they furnish are freely taken into account we shall doubtless be in a far better position to understand much that is now very obscure. Certain it is that some scholars who have made a special study of this large traditional body of interpretation, such asD. H. Müller,Nathan, andPick, have been willing to admit most striking likenesses between the Rabbinic rules and old Babylonian law. In fact, it seems to be the case that the later Jewish interpretation of the Mosaic law so closely follows Babylonian law that it may be regarded as no less a commentary on that legislation. Our task would soon be at an end if we could be sure that this traditional view was not strongly influenced by the Jewish exile, but really represented whatthe old Jewish law was intended to be. For it is practically indistinguishable from the Code of Hammurabi except for the peculiar usages based upon a separate religion and a progressive interpretation in favour of the criminal due to benevolence and humane sentiment.
Very little more need be said than that the Jews, with their wonderful adaptability to the customs of the land of their adoption which has always rendered them the best of citizens, readily assimilated all that was good in Babylonia while preserving also the best things in their own ancient law and jealously guarding whatever was sacred by its religious value. Such a course was not only sane and sensible; it affords a proof of the great hold which Hammurabi’s Code still had in Babylonia at the time of the Exile and much later; it sets the seal of approval on its regulations as the judgement of some of the most penetrating intellects the world has seen, and furnishes a brilliant example of a learned but not pedantic attitude which we may do well to imitate.
We shall have reason to refer presently to some of the later Jewish traditions and to appreciate their value.
It is the case that among Christians also the laws of Moses have been studied with deep interest and increasingly careful scholarship. Possibly too little attention has been paid by the modern Christian scholar to ancient tradition. At any rate, the chief part of the difficulties which we are likely to find in comparing the two legislations arise from the results of the studies pursued by orthodox modern Christian, or at any rate non-Jewish, scholars which have been carried out for the most part without reference to Jewish susceptibilities or Rabbinic interpretations.
Modern scholarship has succeeded in fixing and separating out of the Books of Moses a number of different sources or documents. In the case of the laws these may be regarded as different codes promulgated at very different dates, or in some cases mere pious wishes for future observance, ultimately worked up into a loosely combined book written in the interest of a party of religious zealots whose prominence later led to the system of thought known to us as Judaism.
We must accept these results, so far as we can get a distinct notion of them, and refer to the separate codes rather than to a single body of laws known as those of Moses. No one can venture to dispute these decisions on pain of being reckoned reactionary and obscurantist. These scholars hold the seat of authority, and it would be rash presumption to question their ruling. Nor have I any wish to do this. Yet it may be hoped that they will pardon a sigh of regret on our part that we are now unable to compare the Mosaic law as a wholewith the Code of Hammurabi. It would be so much easier for the lecturer, and the indebtedness of Moses to Hammurabi so much more convincing to you. Sadly as many have lamented the tearing of the great law-book of Moses into pieces as rendering it a mere thing of shreds and patches, they may take comfort that its present condition renders it much harder to recognize the characteristic texture of the Babylonish garment.
For now, when one fancies he can discern a surprising likeness between some clause in the Code of Hammurabi and some verse in the Bible, he is wise to keep his surprise to himself until he has procured and studied the latest critical subdivision of the laws of Israel and satisfied himself to which source or sources his verse belongs. Then one has to ransack other authorities to know whether this ruling is one which is widely accepted, and even more important, whether it had been independently reached or was constructed with an eye to the very likeness to Babylonian law which it dreaded to acknowledge.
Consequently we have to be very careful to-day. We cannot use our comparisons, even if they should suggest identity, to restore to more ancient dates the Mosaic items which seem to be most closely in accord with Hammurabi’s laws. For here tradition itself imports many difficulties. If we set Moses the lawgiver at his old place in history, just before the entrance of the Israelites into Canaan, and accept the traditional synchronism of Abraham and Amraphel, then if we accept the modern identification of Amraphel with Hammurabi we are landed in this difficulty: the Hammurabi Code is thus as much older than the Mosaic law as Abraham is before Moses. On the authority of Moses himself that means 430 years. Now the Babylonians reckoned 650 years from the death of Hammurabi to the death of Kadashman-Ellil, who was corresponding with Amenophis King of Egypt while that king was still sovereign of Palestine, and therefore before Moses. This is the lowest figure yet suggested based on documentary sources, and gives at least 700 years between the two codes. How can we reconcile the disparity in dates?
The Higher Critics do not mend matters. They would bring down the date of the early Mosaic laws much later, necessitating a period of more than a thousand years between the two codes. It would take hours to argue out the merits of various systems of chronology, and the truth probably is that we have not yet recovered reliable data to fix either Babylonian or Biblical chronology with sufficient accuracy. Babylonian chronology is, however, in much the better state, and late rulings make the death of Hammurabi fallsomewhere near 1916B.C.But how we are to reconcile such a date for Abraham with the Biblical data is a knotty question to which I can contribute no help to solution.
We have here made some assumptions which may be all wrong. I am often asked with much concern whether Hammurabi really is Amraphel. Now that is a question which cannot possibly be answered until much else has been answered first. Hammurabi we know; his life and reign are as well or better known than those of the Saxon kings of England. But who was Amraphel? All we know of him is contained in the fourteenth chapter of Genesis. He is there said to be King of Shinar. If Shinar in that passage means what it clearly means elsewhere, he was a king of Babylonia, or at least of some part of that land for which Shinar is used as a synonym. But even if Shinar does not certainly mean Singara, part of Assyria, it could quite well be a part of the Mesopotamian area with which the early Israelites became acquainted, and so transferred its name to all Babylonia. But Hammurabi is never said to be King of Shinar, nor of any land but Amurru, Akkad, Elam, &c., or Sumer. The latter name means South Babylonia, where Rîm-Sin of Larsa maintained his supremacy in spite of Hammurabi until his thirty-first year. Till then no one could call Hammurabi King of Sumer, and then it is certain he could be no ally with Rîm-Sin. Hammurabi was, however, always King of Babylon. He could hardly have been called King of Shinar by any one who knew anything about his history.
How comes Hammurabi’s name to be rendered by Amraphel? We know that his name was variously rendered in cuneiform, being a foreign name to the Babylonian scribes. But they never spell his name as ending inl. It has been suggested that one character which denotesbiand can also be readbilmay have misled some Hebrew writer who transcribed the cuneiform account which he found among the archives of some ancient city in Palestine. There is nothing whatever improbable in such ancient cuneiform records being kept. The discovery of the Tell-el-Amarna tablets proves that the kings of Palestine before the Israelite invasion wrote to their neighbours far and near in cuneiform and in the Babylonian language, and also that they spoke a language closely related to Hebrew. But there is no evidence that they misread cuneiform. Let us go on with the assumptions supposed to have restored the credibility of the fourteenth chapter of Genesis. The first point has been that, assuming a cuneiform record to be translated by a Hebrew writer (? Moses) who knew some cuneiform Babylonian, that writer blundered into misreading the name of one of the most celebrated kings of Babylon, with whosehistory he must have been little acquainted and whose name he found written in a way to which there is no known parallel. Further, he called him King of Shinar. No tenable suggestion has yet been made as to what cuneiform signs he rendered by Shinar. There also he must have found something to which there is no parallel in the native titles of Hammurabi. There is not a single reason in anything said of Amraphel to suggest anything properly said of Hammurabi, except that the names have two out of four letters in common.
But we are told that this identification is supported by the identification of Rîm-Sin of Larsa with Arioch of Ellasar. Rîm-Sin and Arioch have only one letter in common, though Larsa and Ellasar have three. It is a perfect triumph of ingenuity to identify Rîm-Sin and Arioch, and it has been done on various suppositions. But it is also clear that on no supposition was a Hebrew right in reading Rîm-Sin as Arioch, nor has the former name been yet found written in the form which he has been supposed to have so misread. The confirmation of one blunder turns out to be the assumption of another as bad or worse. But the others, Chedorlaomer King of Elam and Tidal king of ‘Nations’, are also accounted for by a series of misreadings either in cuneiform or out of it into Hebrew or in Hebrew. Grant, then, all that is claimed for this astounding blunder-exegesis. Amraphel was meant for Hammurabi by a man who persistently misread cuneiform. The cuneiform account being reliable history, we can reconstruct what it said about Hammurabi and Rîm-Sin with two somewhat vague allies in Palestine. But what credence are we to give to this Hebrew writer’s reading of cuneiform in the case of the name of Abraham? At what period of Hammurabi’s reign was an alliance with his life-long enemy Rîm-Sin likely or even possible? When did either make an expedition to the West under the suzerainty of Elam?
But we might consume hours discussing each thread of the web of fancies which some modern scholars have woven over and about the fourteenth chapter of Genesis. There is no mention in Babylonian or Assyrian documents of any one of the persons there named, nor any event recorded similar to those there placed. This fact neither confirms nor contradicts the Hebrew narrative. The doubts thrown on the historicity of the chapter by higher critics were based on arguments which, sound or not, are in no way touched by any cuneiform texts.
So our question must be put differently. It should be: Was the writer of the fourteenth chapter of Genesis of opinion that Abraham was a contemporary of Hammurabi? I am not sure that he everheard of Hammurabi or knew who he was. The whole story, if reliable, may apply to some other kings than those usually supposed, and this would suit what little we know of chronology much better. It is precisely the identification of Amraphel with Hammurabi which professedly rehabilitates the fourteenth chapter of Genesis, but at the expense of other Biblical statements equally important. It is always well to distinguish the statements of archaeologists and Assyriologists on unrelated subjects from the results of science. No matter how distinguished an Assyriologist may be, his opinion on other matters than Assyriology cannot be laid to the charge of that branch of knowledge. The statements made in the fourteenth chapter of Genesis may yet be shown to be affected by Assyriological research, but most of the recent speculations about them deserve neither the name of Archaeology or Assyriology.
The effect of modern criticism is to make us cautious in another direction. I have hitherto spoken of the Laws of Moses, and I shall continue to do so throughout my lectures. But I trust you will not misunderstand my position. To speak of the Laws of Moses is simply to use the title which was given to them before the rise of modern criticism and by which they are still most widely known. It does not necessarily assume that any one ever existed at all like the Moses described in the Old Testament. Some regard Moses as the name of a mythical hero—a national ideal into whose personification were run all the mythological material which the Hebrew writers deemed appropriate. This need not be the same thing as to deny absolutely the personality of Moses; for another great conqueror of men, Alexander the Great, most assuredly lived, and one clear proof of it, if we had no other, is that his deeds so impressed men that the Arabic historians ascribe to him just as many mythical stories as they know. You have only to readA. Jeremias’sOld Testament in the Light of the Ancient Eastto see how almost every incident in the life of Moses may be paralleled by some astralmotifin the mythical story of other ancient heroes or demigods.
But the effect of modern criticism, astral theory, comparative mythology, &c., on the history of Moses leave him much like a lump of sugar in a cup of tea. We know it was there because the tea is sweet, but details as to size or shape are now very unreliable. Nor does Assyriology help us much, for it never mentions or refers to Moses any more than it does to Abraham, or to Israel even until the days of Shalmaneser, 859-825B.C.
In speaking of the Laws of Moses then, the use of the word Moses is not meant to imply any opinion or to prejudice any question asto the personality or history of the lawgiver or the date of the law. It is used solely as a convenient periphrasis for the current Hebrew lawgiver, just as Hammurabi may be taken as a periphrasis for the Babylonian legislator. That the Babylonian king originated all or even any of the laws enacted in his Code is not asserted. But the historical case of Hammurabi does remove alla prioriimprobability that a Hebrew legislator could draw up a code of laws at a much later date. Further, it should make us beware of arguing anything from the absence of mention in such documents as have come down to us, for, until the excavation of his monuments, no one among modern scholars had guessed his name or surmised his existence.
This analogy, while it forbids us to deny the existence of Moses, does not show that any or all of the laws ascribed to Moses were in any sense due to him. But that a leader in the position to which tradition assigned Moses could perfectly well promulgate a code of laws as full and complete as the whole Mosaic law, even for a people in the primitive state of society in which Israel is often supposed to have been at the Exodus, is obvious. He had only to avail himself of the knowledge of cuneiform, available at that time both in Canaan and in Egypt, and import copies of the Hammurabi Code from Babylonia if they were not at hand where he then was. He could exercise his judgement as to what would be suitable for his people, add what he chose, and reject what he disliked. That he did this or anything like it is not asserted, but it would be so natural for any one in his position then that we have no excuse for surprise if we should find indications of his having done exactly that.
Still, nothing depends in our comparison of the Laws of Moses with the Code of Hammurabi on our knowledge of the personality or circumstances of Moses. Much would depend on how much of the Laws of Moses we should consider to be his. In a similar way, the use of such terms as the Book of the Covenant, Leviticus, or Deuteronomy, The Priestly Code, and the like, neither implies nor denies the appropriateness of the terms nor any adhesion to any theory of their source or date. They must be regarded as merely names for more or less definite pieces of legislation. That the balance of argument is in favour of assigning to them the extent usually assigned to them by Old Testament critics may be granted for purposes of comparison. It is an opinion which may not be shared by all. But it is not by any means essential to our comparison that any one of the views now held about any of them should be final.
Thus it is enough to grant that the Book of the Covenant is the sole relic of the earliest Hebrew legislation and that the rest may beregarded as later development. In that case, however, it is incumbent on those who hold the theory of this development as an evolution on native soil to show intelligibly what influenced the particular form which that development took. Our comparison may suggest that if this supposed later law be really not of the Exodus period also, and not a product of the same mind which modified Babylonian law into the Book of the Covenant, yet its likeness to Babylonian law excludes the idea of a free uninfluenced development. We may hold further that early or late Babylonian influence is still there. And we must account for its persistent influence. On the supposition of its being later than the Book of the Covenant we may be inclined to hold that it was adopted, not directly from Babylonia, but from the relics of pre-Israelite Babylonian influence on Canaanite law.
It may be asked at once—what do we know of Canaanite law? Confessedly very little; but so far little attempt has been made to inquire into the subject. Scholars have been too ready to endorse the judgement of the old Jewish writers who denounced all Canaanite usages. As yet no documents of Canaanite production have been found, unless we include those of near neighbours like the Phoenicians, Moabites, and Northern Syrians. We may deduce something from the Old Testament, but that is a hostile source. A certain amount of information may be collected from the Tell-el-Amarna tablets, which supply evidence for times before the Israelites entered Canaan. Much of the law or custom witnessed to by later times may really be very old. Some scholars of late have argued with great force that the First Dynasty of Babylon were not only Amorites but came into Babylonia from Canaan. There were Amorites left in Canaan when the Israelites settled there. If these were of the same stock, much that in the Code of Hammurabi marks change from the old settled Babylonian Semitic law may be due to a Canaanite source. The subject of the Amorite characteristics, apart from their peculiar proper names, has as yet received next to no attention. The researches of Macalister on Palestinian soil will be awaited with great interest, as he appears to have recognized such distinct characters about his Amorite finds as to enable him to identify them as such without hesitation. He will, it is to be hoped, soon tell us something of their civilization. Gradually, no doubt, we shall be able to tell what was the exact character of each of the peoples in Canaan; and in the end the Code of Hammurabi may prove to be the best witness we have to the Canaanite law.
The Laws of Moses were once, and in some quarters still are, supposed to be all contemporary with that great national hero andlawgiver, and to form a complete body of law imparted to men by Divine inspiration. The Jewish commentators, however, of old treated this view with considerable freedom. Modern scholars, who have devoted two centuries to a critical study of the Pentateuch, have lately gravitated towards a fairly definite theory implying the existence of several codes, so to speak, and those of very different dates, all much later than the time of Moses. As experience shows there is very little permanence about the critical views, we had best confine ourselves to the latest presentation. We need not trouble to inquire into the merits of the earlier critical theories, and may leave their refutation to the last writer on the subject. We may take two good examples for our purpose. Mr.S. A. Cookin his excellent workThe Laws of Moses and the Code of Hammurabiassumed the critical view of the Pentateuch as then presented, and made the most successful defence of the originality of the Mosaic Law yet attempted. It will be noted that one of the so-called ‘destructive’ critics made a most vigorous defence of the uninfluenced character of the Mosaic fragments adjudged by that school to be early. Naturally so; for such critics it is vital to maintain the exclusion of external influence. There is no criterion of date for them if the orderly continuous evolution along well-known lines can be supposed to be overwhelmed by a catastrophic influence from without. The history of the development being unknown or rejected in favour of a theoretical reconstruction upon lines evolved out of the supposed results of comparative law, religion, or the like, it was delightful and easy to build up a purely imaginary self-consistent view of the order in which ideas developed or evolved. The consistence of the view impressed its authors as proof of reality. There was no history to test the reconstruction by except such as could be brushed aside as unreliable because inconsistent with the view. But some late things, dated as late upon this theory, turned out to be a thousand years older than the early ones, and so the almost forgotten maxim ‘what is primitive need not be old’ had to be revived. For the evidence of the Hammurabi Code had to be rebutted anyhow.
It is most remarkable that the champions of the traditional view never seized upon the Code as a weapon to beat the critics with, while the Rationalists made a good show of learning and even indulged in argument on the matter. But after the dust of controversy cleared off it was perceived that the Code was a new fact to be reckoned with, neither attacked nor minimized nor exploited, but studied and respected. As it had surprised and even disconcerted the lawyers, so it had gradually compelled divines to reconsider.
A work which freely accepts the critical division of the Hebrew laws isProfessor C. F. Kent’sbook—Israel’s Laws and Legal Precedentsin theOld Testament Student Series. If any modification of critical views may have been thought necessary as a result of the new material provided by the Code of Hammurabi, it is here tacitly but fully allowed for. Further study may be expended on the comparison and somewhat modified views may have to be taken, but the nature of the questions involved is clearly and concisely shown in this work.
Were it possible to institute the comparison between the Code of Hammurabi and the whole Hebrew legislation treated as one indivisible body of laws, it would be much less difficult than when a set of regulations are picked out as early and treated as the only rules which deserve to be regarded as in the remotest sense Mosaic, while all else is treated as later and scarcely to be regarded as law at all, but merely pious wishes or aspirations. By such a careful selection there is not only very little to compare, but the very things ruled out as late or unhistorical aspiration on account of their relatively high tone are just those most like the Babylonian. On such principles with criteria so carefully selected to rule out all disagreeing evidence a verdict is easy to attain. It is the fact that these criteria were invented before the Code of Hammurabi was dreamt of, but it does afford a very strong test of them and should lead to some revision. The critical theory is now so firmly rooted in the minds of all scholars who are not allowed in youth to imagine any alternative that we too must accept it or be lost in a perfect morass of unintelligibility. Only we ought to remember that in so doing we make the comparison as difficult and complicated as possible.
Accepting the present division of the Hebrew laws it is possible to divide the periods of Babylonian influence on Israel correspondingly. The conclusion to be drawn is that Babylonian influence was strong in the case of the earliest Israelite law perhaps through common Semitic custom, recalling that Abraham traditionally came from Ur of the Chaldees through Haran, a Babylonian Province, to settle there under strong Babylonian influence where Babylonian language and writing were still used down to the time of the Exodus. The impression of Babylonian is said to be less prominent in later codes until after the Assyrians, whose civilization was specifically of Babylonian origin and type, had held Palestine vassal for two centuries. The Exile was to Babylon itself, and Babylonian influence is naturally strongest after the Return from the Exile, and even more powerful on the Jewish doctors of later days, many of whom continued to live in Babylonia.
Seeing, however, that there is not yet full and final acceptance of critical views as to the exact classification of the Hebrew laws into separate codes, and that my audience is probably not completely familiar with either the separate codes in themselves or their dates, anything like a complete comparison of the Laws of Moses with the Code of Hammurabi is impossible without first at least sketching the character of each separate code. For comparative purposes we may begin with the earliest and see how it compares with Babylonian law, for the rest what has already been compared need not be repeated, but as it is necessary to limit our time I must leave all critical reasons for assigning a passage to a particular stratum to be consulted inProfessor Kent’svolume and the extended literature which he names.
The usually accepted critical views of the sources of the Pentateuch regard the Book of the Covenant as the oldest code of Hebrew law now preserved to us. What law the people obeyed before we are not told, but it is obvious that they were not without law. Some scholars, attaching great weight to the traditions of the patriarchs and the implications of their story as to the growth of the people of Israel, assume that before the adoption of the Book of the Covenant they were nomad pastoral folk, and obeyed much the same customs as the Bedawin Arabs of the present day. For such a standpoint the lateProfessor W. Robertson Smith’sworks on Semitic civilization, religion, and law are simply indispensable. Here, if anywhere, we can find a clear idea of common Semitic custom, so often appealed to to account for the similarities between Jewish law and the Hammurabi Code. But other scholars look on these narratives of the patriarchal life with deep suspicion as being a late attempt to sketch, in the light of a writer’s knowledge of what the nomads of his day were like, an instructive and edifying ancestral background for a set of very dissimilar tribes or clans, whom some political necessity led to amalgamate into the Hebrew people. A great deal in our research naturally depends upon our attitude to the questions, ‘Was Israel ever in Egypt?’ or ‘Was only one party of them ever there?’ Or again, ‘Was the Book of the Covenant promulgated at the unification of the component clans, or did it grow up long after?’ All such and many similar questions we must lay aside, as we start with the Book of the Covenant as accepted Israelite law.
We cannot suppose the Book of the Covenant preserved in its original state. Even if we suppose it was promulgated solely to decide those cases on which conflicting usage was causing disturbance, say between nomad Israelites settling down and the long settledCanaanite town dwellers; no one can be prepared to claim that it is complete. There must have been more of it. What we have now preserved may have been cut down to present limits for various reasons. It may be that later legislation superseded some of its regulations which later writers would thus think not worth recording. If the Code had been embodied in a document, that source may have become fragmentary in some way by the time the compiler of Exodus rescued it from oblivion. A careful perusal of the laws of Moses as arranged in their strata, byProfessor Kentfor example, will show that Hebrew writers had no hesitation in repeating earlier legislation. Hence we cannot argue that no more was preserved solely because it was embodied in later legislation.
Nor can we feel sure that no additions have been made to it. Some clauses seem to be very incongruous in their present context. This phenomenon, however, is not entirely absent from the Code of Hammurabi, which certainly has not been interpolated. But we must start on the Book of the Covenant, as critics have rescued it from its surroundings and set it down for us.
At once an external feature strikes us. In the Book of the Covenant many have discerned a systematic arrangement of the laws in pentads or decads. The Ten Commandments at once occur to one’s mind as a parallel. What is the significance of this partiality for five and ten? We are expressly told that the Ten Commandments were on two tables. We should not be surprised had there been seven. Some will think the human equipment of five fingers led to the adoption of five as a convenient method of remembrance. In some such way five or ten may have conveyed the idea of numerical completeness. Unfortunately the division of the laws made byProfessor V. Scheilin hiseditio princepsof the Code is both arbitrary and inaccurate. No one has yet ventured to revise the numbering of the sections into which he divided the text of the Code; though several scholars have pointed out the inconsistencies. The lecturer, however, was struck by the fact that a more natural division at once shows an arrangement inpentads; and latelyProfessor D. G. Lyonhas worked out this idea, as can be most conveniently followed in the rendering of the Code given byProfessor R. W. Rogersin hisCuneiform Parallels to the Old Testament. Such an attempt will be resented by some as a purely subjective attempt to work up a likeness to the Mosaic laws and disputed accordingly. But the lecturer was led to it in the beginning solely by the fact thatScheil’s division did not agree with that made by the Babylonian scribes in the fragments of their copies which have survived. These divisions had nojustification on the stela found at Susa, which divides only lines and even occasionally cuts a word in two. It shows no indication where a particular law begins or ends. Hence the Babylonian scribes, as all modern scholars, have had to divide as their common sense dictated. But the text on the stela was certainly copied from a clay tablet which may well have shown division-lines between the laws. At any rate, the divisions adopted by the Babylonian scribes, even if not original, have great weight as embodying an independent tradition among scholars who surely knew the meaning and connexion of the successive regulations in a very authoritative way. That their ruling does not agree withProfessor Scheil’s where we can compare them shows that his division is not essential and may be neglected. Unfortunately our fragments of later copies do not help us often, and are too few to give us a canon upon which we can rely when we need it most, and we can rarely be sure that the division we propose was that of the original. Nevertheless there is great verisimilitude aboutProfessor Lyon’s proposals, and it is a very striking likeness between the Book of the Covenant and the Code of Hammurabi that both adopted a division of laws into groups of five. We cannot press the argument too far, but the Roman Law at any rate shows that this arrangement is not a logical necessity nor a psychological demand of early legislation.
The critical account usually given of the Book of the Covenant is that it embodies the consuetudinary law of the early monarchy. It is regarded as embracing the formulated decisions which had gradually accumulated among the people up to that age. It is admitted that it, or at any rate parts of it, may well be older than the narrative (E.) in which it was incorporated. Its place in the scale of civilization is estimated by the fact that it imposes many restrictions on the arbitrary action of the individual, while it retains thelex talionis. Further, prominence is sometimes given to the fact that God is regarded as the immediate source of punishment. It is styled theocratic law, but breaks away from the purest type of such laws. The Code of Hammurabi goes further in the direction of purely civil enactment.
The picture whichW. Robertson Smithdraws 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 forartificers 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 thelex talionisas 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 Covenantdoes 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 thelex 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 stupidinterpolation 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 muchfiner 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 aristocraticamêluor 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. Themushkênuor 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 landbefore 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 Babylonianmushkênuto 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 somewhatawkwardly 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 disposedto 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 thatProfessor Kentcan 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 thelaw 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 morepoints. 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 thesubjectde 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 moreclearly (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 debthe 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.