Stanley Arthur Cook.

The laws of Moses and the Code of Hammurabi online

. (page 15 of 22)
Online LibraryStanley Arthur CookThe laws of Moses and the Code of Hammurabi → online text (page 15 of 22)
Font size
QR-code for this ebook

the Covenant. Of the two laws in Ex. 22 5 sq. t the
former, according to the ordinary view, deals with
the man who allows his beasts to eat in another

and has neglected it must put in another year's labour and pay a
specified amount of corn.

1 So, for example, Delitzsch, loc. cit.

2 Sayce, op. cit. p. 112.

3 Baba kamma, 2. A distinction is drawn between domesticated
and dangerous animals, between those shut up in a stable and those
loose, and the shepherd is responsible for his flock even if he has
entrusted it to another; cp. Jewish Encyclopedia, 1 160. The
Laws of Manu distinguish two cases : for cattle that feed upon en-
closed crops a fine is demanded ; if the crops were unfenced, the
value of the crop must be restored (8 238, 240 sq.). Modern custom
allows the farmer to injure or kill the trespassing beast and at the
same time to demand compensation for the damage (Jaussen, Revue
Biblique, 1901, p. 600).


man's field, and orders restitution to be made of the
best in his own field. The law is given in a fuller
form in the Septuagint and Samaritan versions : "If
a man cause a field or a vineyard to be eaten and
shall let loose his beast and it feed in another man's
, field he shall surely make restitution from his own
field according to its yield, and if he cause all the field
\ to be eaten he shall make restitution from the best of
Lhis field and the best of his vineyard." * Here, the
words in italics are not found in the Massoretic
text. Apart from other objections to the rendering,
the interpretation of the verb hitiir and its deriva-
tive constitutes the difficulty. The verb is almost
everywhere used of burning, and Hoffmann, followed
by Baentsch and Dillman-Ryssel, accordingly brings
the law into connection with v. 6, where devastation
by fire is handled. Under these circumstances, the
first law will deal with a man who burns the refuse
in his field or vineyard 2 and negligently allows it to
spread to his neighbour's ground, whilst the second
is purely a case of vis major fire has accidentally
spread and burnt the adjoining crops, and the law
demands a restitution, but of an unstated character. 3
Later Jewish times treated the subject with greater

1 In later times land was divided into three classes : best,
medium, and inferior ; damages by individuals or animals were made
good from the first ; creditors were paid from the second (Gift, 5 i ;
cp. Schwab transl. 9 17 sq.).

z Cp. Is. 5 24, 27 ii, Ezek. 15 4, 6, 19 12, Ps. 80 16 ; also Is. 5 5
(see RV m s-)-

3 The usual interpretation of v. 5 (cp. EV) is, as the secondary
addition in LXX. and Sam. proves, undeniably old.


precision, 1 and if the fire passed from point to point
until it reached the adjoining fields, the man who
had kindled it was responsible ; whilst if the fields
were separated by a wall, stream, or road, the
spread of the fire was held to be due to uncon-
trollable circumstances and no restitution was to be

1 Jewish Encyclopedia, 1



Business in Babylonia contrasted with Israel Scantiness of evidence
in Israel Methods of conducting business General laws for
the furtherance of business and trade Theft and burglary
Analogous Hebrew laws The receiver of stolen and lost
property Laws for property in the charge of another The
boatman Hired animals in Israel and Babylonia Laws of
deposit Debtor and creditor Pledges and security Simplicity
of procedure in Israel Antichretic pledge in Syria Trading
journeys Laws for agent and principal.

THE numerous contract-tablets from Babylonia and
Assyria and the survival of one or two old Baby-
lonian laws had for some years past led to the
conviction that business relations from the time of
the first dynasty must have been regulated with the
greatest precision, and not only is this entirely borne
out by the Code of Hammurabi itself, but we are
now introduced to a thoroughness of detail which
presupposes that the closest attention possible was
paid to the perfection of the machinery upon which
the successful prosecution of trade and commerce
depends. The Babylonians were past masters in
all that pertains to business, and many current



usages can be traced back to them through the!
Greeks and Romans ; and Kohler has justly re-
marked, in the course of one of his model studies
on the legislation of Babylon, /that the history of;
trade and money transactions cannot be written*
without reference to Babylonia. 1 In agreement
with the scope of the present study, however, it is
not required for us to do more than note the laws in
the Code of Hammurabi which relate to business
dealings, and the numerous details revealed in the
contract-tablets from the earliest times onwards do
not call for consideration except in so far as they
illustrate the laws in question. In this department,
moreover, if the attempt were made to trace the
influence of Babylonia upon Israel, it would be to
the post-exilic, nay, rather, the post-biblical literature
to which we should have to turn. Trade and com-
merce as we understand it, and as it was understood
in Babylonia, was entirely foreign to the early
Israelites to the primitive Semites. Commercial
cleverness is partly a matter of environment ; certain
communities have acquired an aptitude for acuteness
in business to others it is abhorrent. Love of
money and the commercial spirit do not always go
hand-in-hand, and the varying degrees of business
talent found among present day Bedouin suggests
that things were not otherwise before the Christian

The Israelites confess a latent objection to the
commercial spirit when they use the gentilic

1 Beitr. z. Assyr. 4 430.


" Canaanite " (Phoenician) 1 as a specific term for
,all traders. The designation is correct, since the
Phoenicians were pre-eminently the traders of the
Mediterranean, and through their trading-journeys
were no doubt acquainted with Babylonian methods.
There were traders, of course, even in ancient
Israel, and great trade-routes crossed the country
along the Jordan valley or the maritime plain, and
smaller cross routes branched out and joined the
larger towns, 2 but we can scarcely infer that the
traders left their mark upon the country to any
greater extent than, perhaps, the Gipsies of Europe,
and this inference is supported by a critical examina-
tion of the evidence.

The Book of the Covenant, although acquainted
[with money and deposits, makes no provision for
trade, whereas in Deuteronomy there are regulations
for debts and interest, and the internal history
indicates that the lengthy reigns of Jeroboam II.
and^Uzziah saw a marked change in the economic
j conditions of the country. Thus arose the necessity
' for denouncing the sins of trade, avariciousness,
oppression, and, in particular, the frequent condem-
nation of unfair weights (Deut. 25 13-16 ; cp. Lev.
19s6, Ezek. 45 10-12, etc.). 3 But the scantiness of

1 The earlier names are also tribal, e.g. Ishmaelite (Gen. 37 25
sqq. J), Midianites (Gen. 37 28, 36 E).

2 Cp. G. A. Smith, EBi. " Trade and Commerce," 32 sqq.

3 Cp. in the list of sins from an Assyrian tablet of the seventh
century " Has he used false scales ? . . . has he accepted a wrong
account, or has he refused a rightful sum ? " (King, Babylonian


evidence upon the Hebrew side still continues to be
remarkable, and it is an extremely significant fact
that the Hebrew terminology of trade in the Old
Testament contains comparatively few words of
Babylonian or Assyrian origin, and these, in turn,
are to be found chiefly in the exilic and the post-
exilic writings, that is to say, subsequent to the
period when Israel had been brought into the closest
possible touch with Assyrian life and conditions. 1

In Babylonia and Assyria all business was done^
by deed or bond before witnesses, 2 not only between
strangers or kinsfolk, but even between members of
the same family Babylonia was verily a Paradise
for the professional scribe. According to the Code,
"if a man has bought (is-ta-am) silver or gold,
man-servant (ardu) or maid-servant, ox or sheep or
ass or anything else, from the son of a man or the
man-servant of a man, or has received it on deposit
(a-na ma-sa-ru-tim im-hu-ur) without witness or
contract (ri-ik-sa-tim), he is a thief (sar-ra-ak) and
shall be put to death (id-da-ak)" (7). It is
interesting to notice that the names of nearly all the
objects mentioned (kaspu, hurasu, alpu, immeru,
imeru, etc.) are also familiar in Hebrew or Phoe-
nician, but the technical terms are quite distinct. 3

Religion, p. 2 1 9). From Amos 8 5 it may be perhaps inferred that
weights and measures were legally fixed by the eighth century.

1 G. A. Smith, EBi. "Trade and Commerce," 82.

2 Each party often has a relative or two among his witnesses
(e.g. in KB 4 41, each has a brother).

3 On the Heb. terms for buying and depositing, cp. G. A. Smith,
EBi. col. 5198 (g\ and art "Deposit" (col. 1074).


The law is a just one, its evident aim being
to ensure that business was transacted with a
certain amount of publicity when one of the parties
was a minor or under the tutelage of a master.
Thus it was less easy for the servant or slave to
make dishonest use of his master's goods, and a
sharp -dealing trader was prevented from taking
advantage of the minor's youth and inexperience.
Accordingly the law is drawn up in the interests both
of the father and of the owner of servants.

The business transactions of the Israelites were

j performed in the simplest of methods. In P's long
account of the purchase of the Cave of Machpelah
(Gen. 23), the presence of witnesses is practically
the only important legal feature. 1 The stipulated
price, four hundred shekels, the price which the
seller "had spoken in the ears" of the people,
required no contract. The plot is specified the
field, the cave, and all the trees, the wording is
not improbably in accordance with customary legal
usage in Israel, but as such is not Babylonian, nor
is it drawn up in accordance with the Babylonian
stereotyped formulae. 2 From Jer. 32 6 sqq., however,

I it appears that towards the close of the seventh
century a more business-like practice was in use, at

"all events in the larger towns. The transaction was

iput in writing, witnesses were called and the money

1 So, in Ruth 4 10 sq., the solemn appeal is made to the testimony
of the elders who act as witnesses.

2 Pinches, The Old Testament, pp. 236-8. See p. 38 above, and
cp. Carpenter and Harford-Battersby, The Hexateuch, 1 64.


weighed out in their presence, and they signed their)
names. In this case the witnesses were court-
officials. The purchase-deed (sepher ham-miknaJi)
was sealed and preserved in a receptacle and,
according to the present text, a duplicate was drawn
up which was called the " open." 1 Notwithstanding
this, such primitive usages were retained as the
taking off of the shoe symbolical of the transference.)
of rights (Ruth 4 7 sq.\ and the striking of hands asj
an indication of agreement (Prov. 6 i, 22 26). 2

In the preceding chapter we have already had
occasion to notice certain laws dealing with the
responsibilities of labourers in so far as they pertain
to the protection of agricultural interests. These
now require to be supplemented, and it will be con-
venient in this chapter to classify the various usages
by means of which the Semites endeavoured to
further trade and commerce and to ensure due
respect for the property rights of individuals. The
greater the precision with which law or custom
handles the protection of property the more ad-
vanced must be the conditions of life in general
and trade and commerce in particular. The laws
which require to be noticed range over a great
variety of subjects and may be considered in the

1 The text in w. n, 14 is corrupt ; in the former verse " the com-
mandment and the stipulations " (RV " according to the law and
custom ") is probably a gloss ; see further the commentaries of
Giesebrecht and Bertholet, ad loc. In later Jewish times it was only
occasionally that a copy of a deed was put on record (Jewish
Encyclopedia, 1 395^: : Roman influence is suggested).

2 Cp. G. A. Smith, EBi. "Trade," col. 5196*).



following order : theft, hired goods, deposits, loans
and debts, agents and traders. The comparative
minuteness with which the Babylonian code deals
with these topics will be particularly prominent in
the course of the following pages, and it will be im-
possible to ignore the conviction that the trading
successes of the Babylonians and Assyrians and
to these names we may perhaps add that of the
Phoenicians was very largely due to the wise
counsels of the Babylonian monarch Hammurabi.
The care taken in his Code to place upon a firm
footing everything that tended to give security both
to individual property and to business relations
between a man and his neighbour do not fail to
move our admiration, and tend to exemplify in a
more striking manner than ever the essential
difference between the people of this ancient seat of
civilisation and the other Semites dwelling alone,
secure and unsuspicious, remote from strangers and
foreigners (cp. Judges 18;, Job 1519). Not only
do we find that Hammurabi has fixed the standard
of pay for agricultural labourers and workmen (p.
172 sq. above), and has settled the rate of exchange
(CH, 51), he even interferes in the price of wine
and enacts two laws, the motives of which are no
longer perfectly intelligible. The wine - seller (a
female, p. 150 above) who sold drink, not by
corn, but by the " great weight," * and made its price

1 i-na abni ra-bi-tum, perhaps two-thirds of a shekel, as opposed
to the "little weight" (abnu sihritt), which was one-third (Johns,
Amer. Journ. Sem. Lang. 1903, p. 173).


less than the price of corn, was to be put to account
and drowned ( 108). On the other hand, if she
gave sixty KA of U-SA KA-NI drink "for thirst"
(? di-ip-tim) at harvest-time, she was to receive fifty
KA of corn ( in). Presumably at this thirsty
season drink might be sold at a cheaper rate.

The laws relating to theft of various kinds are
perhaps the most complete of their kind in the
whole of the Code. Theft of the first order involv-
ing entry deals with the goods of the temple (i-li)
or palace (e-kal) and condemns to death both the
thief and the receiver of stolen goods ( 6). For
stealing an ox, sheep, ass, pig, 1 or ship from the
temple or palace a thirtyfold restitution must be
made, but only tenfold if the thief is a poor man 2 ;
and if he has nought to pay he is put to death ( 8).
(In between these laws is sandwiched the require-
ment that business transactions with a minor or
slave must be done in the presence of witnesses
and with contract.)

Sacrilege, according to old Semitic belief and
custom, would be most severely punished ; the pro-
perty of the deity is taboo to common people, and the
god himself isexpected to intervene to protect hisown.
Achan's sin practically consisted in stealing property 1
that had been dedicated to Yahwe, and the death j
penalty for such an offence finds an analogy in Gen. i

1 The animals are tribute or revenue for the temple. Cp. King,
Letters of Hammurabi, nos. xxxii. sq. ; cp. p. 144.

2 A tenfold restitution is also required of the dishonest shepherd


31 32 (E), where Jacob, in answer to Laban's accusa-
tion that his goods have been stolen, declares that
with whomsoever Laban shall find them " he shall
not live." Primarily a man protected his own pro-
perty by placing it under a taboo or in a holy place
i.e. under the protection of a deity, and the
custom is still widely prevalent. 1 Communities that
are susceptible to development soon outgrow such
trustful practices and severer measures are taken
against the thief either by the sufferer himself or by
the authorities.

[Two remarkable laws in the Code allow the thief
to be put to death summarily by the individual who
has been robbed. If a house is on fire and a man
comes to extinguish it and " lifts up his eyes " (i-in-
su i$-si-ma) towards the owner's property and takes
it, he is to be cast into the fire ( 25). Again, if a
man has made a breach (ip-lu-us) in a house, " one
shall kill him before this breach (pi-li-si-im) and
bury him" (in it? 2i). 2 Similarly, the man who
caused another to brand a slave with an indelible
mark is killed and buried in his own house ( 227)
both instances apparently treated as an aggravated
kind of theft (p. 160 above). The summary treat-
ment of the house-breaker is familiar, but the obje<

1 Cp. Rel. Sew. p. 162 sq. (esp. n. 3), and Jewish Quarterly
Review^ 1902, p. 425. Dareste observes that the death penalty
for sacrilege was also customary in Egypt and India (Diod. 2 28
Manu, 9 270).

2 Cp. the Syro-Roman law-book ( 81), where the Syriac h;
preserved an echo of the Babylonian wording : " Those who make
breaches (palesai piilsatha) are condemned to death."


of burying him in the breach is not clear. The
Assyrian kings on their death had the right to be
burned and buried in their own palaces, and it was
a privilege which was only granted to ordinary
people by royal permission. 1 The theory that the
dead man's spirit would protect the house from
future burglary is not without analogy, but would
apply only to 21, and one is forced to conclude that
burial in any other than the recognised place carried
with it some dreadful humiliation. 2 The Book of)
the Covenant declares that the house-owner incurs
no blood-guiltiness if he kills a thief who is found
breaking in, provided it is before sunrise (Ex. 22 2),
and the provision finds analogies in other legisla-
tions. 3 It was permissible, also, in Jeremiah's day
(2 34). In dealing with the theft of cattle another
distinction is made which is worth noticing. The
thief who is found stealing with the stolen cattle
alive in his possession must restore double, whereas
if he has killed or disposed of his booty he must
restore five times the number of oxen and four
times the number of sheep. 4 If he has nothing

1 Sayce, op. tit. p. 65.

2 Dareste {Journal des Savants^ 1902, p. 521 n. 3) points out that
the interment of the thief on the spot is frequently met with in the
laws of the mediaeval age, and cites Grimm, Rechtsalterthiimer^ p. 686.

8 Solon, Plato, and the Twelve Tables ; cp. also the Syro-Roman
law-book (Bruns and Sachau, 77). Modern custom requires an
idemnity even for the thief killed at night-time (Jaussen, Revue
Biblique y 1901, p. 600). It is possible that Ex. 222, 3*2 belong
to a distinct series of laws on various forms of blood-feud (Baentsch).

4 Ex. 22 1-4. The ox is of course the more valuable animal ; cp
CH, 268-270, where the hire of an ox is twice that of an ass.


wherewith to pay, he is sold for his theft (cp. Gen.
44 17), and, according to Josephus (Ant. iv. 8 2),
becomes the property of the robbed man (as in the
Twelve Tables). But the thief regained his freedom
after six years (cp. pp. 164, 170 above), although this
would hardly happen if, under the law introduced
by Herod, he had been sold to a foreigner (Jos.
Ant. xvi. 1 i).

Hebrew law does not order the thief to be killed, 1
and the extreme severity of the Code may perhaps
find ,an explanation in the lawless state of Babylonia
at the time when Hammurabi ascended the throne. 2
Death is the penalty for robbing a court official
( 34), for receiving stolen goods ( 6 above, cp.
9-11), for kidnapping ( 14), and for the man who
has carried on highway robbery ( 22). If the last-
mentioned 3 has not been caught the victim declares
his loss " before God," and the city (alu) and governor
(ra-bi-a-nu-um) in whose district the robbery took
place must make it good ( 23), and if it was a life
(na-bi-is-tum), they must pay one mina of silver to
his people (ni-si-su ; 24). A Hebrew analogy for
the undiscovered murder will come up for considera-
tion later. 4 In one case only does the Code order the

1 Gen. 44 9 is not a law but an emphatic protestation of innocence ;
cp. Gunkel, ad loc.

2 Or it may perhaps be more naturally explained from his strong
desire to put an end to every offence that might lead to a breach of
the peace ; cp. Lippert in Die Nation, 28th March 1903, p. 404*2.

3 He is distinguished from the ordinary thief by the term

4 At the present day the sheikhs may be held responsible


hands of the thief to be cut off ( 253), a punishment
which was frequently inflicted in the East down to
quite modern times and is still not unknown. 1
Finally, we come down to two cases of petty larceny : \
the theft of watering utensils or a harrow, 2 the j
penalty for which is five and three shekels of silver 1
respectively ( 259 sq.).

It will presently be noticed that the theft of jewels
by a carrier is punished by a fivefold restitution
( 112 ; see also 12), whilst for misusing a deposit
apparently twofold is restored ( 124-1 26). 3 Turn-
ing again to the Book of the Covenant, we are
reminded of the five, four, and twofold restitution
of Hebrew law (Ex. 22 i, 4), and of the fourfold
penalty in Nathan's parable (2 Sam. 12 6 ; cp. Lk. 19
s). It is true that the Septuagint here reads seven-
fold, and this is followed by all critics on the strength
of Prov. 6 31. David, it is urged, is more likely to
have thought of the proverbial " sevenfold" than
of the law, and the reading of the text is con-
sequently ascribed to a corrector. 4 On the other
hand, it is perhaps reasonable to argue that the

for thefts committed by their tribesmen (Doughty, Ar. Des.
1 176).

1 Burckhardt, Ar. Prov. no. 550; Doughty, Arabia Deserta^ 2
318 j0., and Baldensperger, PEFQ-> 1897, p. 127 sq. (Old offenders
were put to death as late as the middle of the last century.)

2 The former, GlS-APUfvad GIS-APIN TUR-KIN^ perhaps correspond
to the modern watering-bucket and water-wheel (shaduf).

3 The twelvefold penalty of the unrighteous judge has already
been discussed (CH, 5, p. 66 above).

4 Thenius Lohr Driver, H. P. Smith, Budde.


heavier penalty for theft belongs to a later time. 1
At all events it is to be noticed that the " sevenfold "
does not happen to occur in the Babylonian Code,
nor has it survived in later Jewish law, where the
penalty is twofold if the thief has pleaded not guilty,
and four or fivefold if he has stolen an animal and
disposed of it. On these grounds, therefore, the
fourfold penalty is probably to be preferred in
Nathan's parable ; it was legal, 2 and was fixed by
custom, and has survived to the present day in the
so-called murabbct?

In CH, 6 we saw that the receiver of stolen
property was, like the thief, condemned to death,
and it now remains to glance at a small series of
laws which deal more closely with him. If a man
lost something of his and it was found in the hands
of another, the accused could defend himself by
saying " a seller sold it to me, before witnesses I
bought it " ; and the owner of the lost object could
say, " I can bring witnesses who know my lost

1 Wildeboer suggests that it has arisen from the "twofold" of
Ex. 224 with the addition of the " fivefold " of v. i ; but it is more
probable that it is used as a round number (cp. Gen. 4 24 ; so also
Frankenberg, Toy).

2 Naturally, the passage, whatever be its date, is not evidence of
the existence of written laws.

3 Jaussen (Revue Biblique, 1901, p. 600), observes that among the
modern Bedouin the stolen animal must be restored with three more
of the kind. As mares are more valuable, and less easily obtainable,
the stolen animal in this case must be restored together with a pecuniary
compensation. The fourfold restitution is familiar in Roman law,
and in the Syro-Roman law-book it is the penalty for men or women
who receive stolen goods from slaves (Bruns and Sachau, op. cit. 79).


property " (mu-di hu-ul-ki-ya-mi\ The accused
brings both the man from whom he bought the lost
article and the witnesses to the purchase, and the
former owner brings his witnesses, and the judge
examines their evidence. 1 The witnesses of the
purchase on the one side, and of the stolen property

1 2 3 4 5 6 7 8 9 10 11 12 13 15 17 18 19 20 21 22

Online LibraryStanley Arthur CookThe laws of Moses and the Code of Hammurabi → online text (page 15 of 22)