Copyright
Stanley Arthur Cook.

The laws of Moses and the Code of Hammurabi online

. (page 17 of 22)
Online LibraryStanley Arthur CookThe laws of Moses and the Code of Hammurabi → online text (page 17 of 22)
Font size
QR-code for this ebook


of the king (a-na pi si-im-da-at sar-ri-im) and given
to the merchant ( 51).

The debts, it will be observed, are mostly for
money lent; the repayments are in kind. Money
does not appear to be in universal use, a state of
conditions which reminds us of the society reflected
in the Book of the Covenant. The debts are
usually repaid at harvest-time l and the creditor not
unfrequently holds prior right to the first-fruits.
The creditor cannot legally take a man's garden or
field for a debt, but he may hold it as security, and
as long as the debt is unpaid he remains in posses-
sion of it. 2 Forcible seizure was not tolerated, and a
letter of Hammurabi shows the king intervening in
a case where a money-lender had taken the land and
crops of his debtor Lalum. The latter's right to
possession is proved by a tablet in the palace which
ascribes to him two 6^;vof land, 3 and the king orders
an investigation to be made, and if the money-lender
took it on pledge (ik-bu-n[_l, Lalum's pledge is to
be restored and the money-lender punished. 4
Money matters in early Israel were on a simpler
I scale, and the laws, few as they are, regard the

1 So also in later Babylonia when money was more generally used,
a survival of earlier times. Payment at harvest-time is still required
(Doughty, Ar. Des. 2 113).

2 CH, 49 sqq. ; cp. Meissner, op. cit. p. 9. 183.

3 For the tabulation of land in registers, cp. above, p.

4 King, Letters, no. ix. p. 24 sq. Lalum is an official (KADUR\
and it is conceivable that his case would come under the laws relating
to the gangers (cp. CH, 38, and above, p. 184 sqq.~). In no. x. there
is another case of the illegal detention of property by a money-lender.



CHAP, ix TRADE AND COMMERCE 233

debtor as the victim of misfortune and one who was
not to be treated oppressively. In spite of this
humane ideal the sale of defaulters was customary
even in Elisha's time (2 Kings 4 i), and fugitives
were doubtless numerous at all periods (cp. I Sam.
222). Under the Book of the Covenant the debtor
would be released in the seventh year (contrast CH,
117 above), and the Deuteronomic code goes
further, and remits the debt at the same time (Deut.
15). 1 The statute was naturally impracticable in
real life (cp. Jer. 34s sqq.\ and was replaced in the
post- exilic legislation by the institution of the
"Jubilee" (Lev. 25 35 sqq)? As is also the case
among the Bedouin of the present day, 3 no usury was
to be taken by an Israelite from his countryman
(Ex. 22 25-27) ; the gratitude of the needy debtor,
explains Josephus (Ant. iv. 8 25 sq.), should be a
sufficient reward. 4

1 The law is more ideal than practical, and the modern view
that the debt was merely suspended for one year (cp. CH, 48) has
certainly inherent probability in its favour ; cp. the discussion of the
question in Driver, Deut. pp. 178 sqq. At all events we read of a
complete remission of debts in the time of Nehemiah (chap. 5 ; on
v. ii see Bertholet, ad loc. y and Buhl, op. cit. p. 102).

2 Cf. Benzinger, EBi. "Law and Justice," 16, and " Jubilee."
In Egypt bodily distraint was forbidden under the code of Bocchoris
(Diod. 1 79 ).

3 Doughty, Ar. Des. 1 318.

4 Of the two words for interest, tarblth is the natural increase
whilst ntsek (lit. bitten off) might suggest an unfair additional
imposition (cp. Syr. tarbttha and tuka\ Buhl (Socialen Verhdltnisse d.
Israeliten, p. 98, n. 2) suggests that the latter is the discount upon the
money lent, " bitten out " of the principal ; this is supported by the
etymology of the Syr. term kesasa.



234 THE LAWS OF MOSES CHAP, ix

The creditor who ensured the repayment of a
debt by demanding a pledge 1 must not abuse his
power. The laws attached to the Book of the
Covenant required the pledge, if a garment, to be
returned at nightfall (Ex. 2226^.; cp. Prov. 20 16,
27 13). The Deuteronomic code not only requires
the garment to be given back to the needy debtor
at night, but also forbids the mill for grinding the
daily corn to be taken as a pledge (Deut. 246, 12 sq. 17).
In all probability these are typical, and the code
understands therein all that serves for the preparation
of food or for the protection of the body. 2 Common
custom had doubtless agreed what things it was
proper for the creditor to take, but usage had not
the authority of law, and whilst in Israel the
complaint was that the iniquitous "drive away the
orphan's ass," and "take the widow's ox for a
pledge " (Job 24 3), the Code of Hammurabi tersely
and pointedly orders that " if a man has distrained
an ox he shall pay one-third of a mina of silver"
( 241). Deut. 24io^. enacts further that the
creditor must not enter the debtor's house to take
his pledge ; presumably, therefore, he was also
obliged to accept whatever was offered. 3 Land was



, Gen. 8817-20, the Canaanite term ; c dd/(Deut 24 12 sq.)
may be of Aramaic origin (Wellhausen, Kleinen Prophelen, p. 168 sq.},
in which case it may be ultimately derived from Ass. sibittu. habal
perhaps means primarily to seize a personal object by force (cp. Buhl,
I.e. and Amer. Journ. of Theol. 1 728 sqq.\ and later, to pledge
(? through Assyrian influence).

2 Cp. Mishnah, Baba Mes. 9 ; Bruns and Sachau, pp. 34 ( 112),
281 sq. 8 Cp., perhaps, the Babylonian law cited above, p. 230 sq.



CHAP, ix TRADE AND COMMERCE 235

also given as security, and the creditor probably had
the usufruct until the debt was paid, and with
rapacious creditors the unfortunate defaulters speedily
lost possession of their estates (Job 20 19, Neh. 5 ; cp.
Gen. 47). Securityship was common enough in late
times, to judge by the warnings in the Wisdom
Literature (Prov. 6 1-5, 11 15, 17 18, etc.), but it is
noteworthy that it does not appear to have been
based upon a written contract but was entered upon
by the striking of the hands. 1 Finally, imprisonment
for debt was not a native institution but probably of
Roman origin (Matt. 625 sg.) 2

The more prominent part taken by Israelites
in trade and commerce at a later day finds an
illustration in a recently edited Aramaic papyrus from
South Egypt, containing a legal document probably
of the Persian age. 3 It relates to a debt, and from
the character of the names it is inferred that the
creditor is a Jewish banker or money-lender. The
interest is at the rate of two h-l-r per s-z per month,
and if not paid punctually, it was to be added to the
principal and both were to bear interest. A n-b-z
(receipt ?) was to be written out for all money and
interest received, and if the debt was not paid off by
a certain date, the debtor was to be held liable to
double the amount. Whether s-z is the Babylonian

1 Cp. above, p. 209.

2 In Arabia also it was due to foreign origin. G. Jacob, Leben
vorislam. Beduinen, p. 165 (Berlin, 1895).

3 A. E. Cowley, Proceedings Soc. BibL Arch. 1903, pp. 202-208 ;
G. A. Cooke, North Semitic Inscriptions, pp. 404-407 (Oxford, 1903).



236 THE LAWS OF MOSES CHAP, ix

soss, and h-l-r the Babylonian kalluru, 1 is uncertain,
and the correct meaning of n-b-z is quite obscure ;
at all events, it is worth noticing that the terms for
" principal" and " interest" are Canaanite. 2

Money matters are naturally treated with greater
fulness in the legislation of the Mishna and the
Talmud, and, still later, in the Syro- Roman law-
I book. The last-mentioned has preserved a statute
of Babylonian origin, though with Roman analogies,
which is interesting enough to be quoted in full. 8
" If a man give another a piece of land as a
pledge, and it is agreed that the lender shall take
the produce in return for the interest (Syr. rebbltha)
of his money, it is legitimate ; if a man give an ass or
mare as a pledge, the lender may agree with the
borrower that the animal may be worked for the
interest, but the young ones that are born belong to
the owner of the pledge ; if a man give a flock of
sheep or goats for a pledge, and it is agreed that the
produce of the flock shall be for interest, it is
legitimate ; the wool is for interest, the young ones
for the hire and maintenance of the hireling and the
sheep-dogs. The increase of the flock makes up for
those which die, and the number thereof remains for
the owner ; so, if a man gives his companion a
maid-servant for a pledge and there is a vo/j^j that
she shall work for him, this shall be in place of the
interest of the money which her master borrowed.

1 halluru (kaspi), some small amount : so Muss-Arnolt.

2 Viz. r - s, and m-r-b-th.
3 See Bruns and Sachau, op. tit. pp. 29 ( 99), 274.



CHAP, ix TRADE AND COMMERCE 237

But if there shall be children to her, they are to be
her master's who borrowed (the loan). For a human
being is not like the earth, for the grace of God
causes fruits to spring forth from the earth for the
sake of mankind generally." The principle of the \
antichretic pledge was too familiar in Babylonia,
especially in the New Empire, 1 to render it necessary [
to assume that the law was introduced from Rome. /

It is not until a comparatively late period that the
Israelites appear to have emulated the Phoenicians
by undertaking journeys for business purposes (Prov.
7 19 sq.j Tob. 9 2, Matt. 13 45), a striking contrast
to Babylonia, 2 where the laws of the relations
between merchants and their agents presuppose the
long existence of trading by caravans or " travellers."
The agent 3 takes with him money, for which he
must be security ; he must agree not to act on behalf

1 Cp. Kohler and Peiser, Bab. Rechtsleben, 1 15 (1890), and Kohler,
Beit. z. Assyr. 4427. (In Cyrus, no. 252, two slaves form the pledge ;
their labour pays for the interest, and their persons are security for
the debt.)

2 The Canaanite term is soker (Heb. and Punic), a trader or
merchant (e/xTropos), as contrasted with the moker^ seller (7rwA?/s) ;
cp. G. A. Smith, EBi. col. 5194 (b. i.) ; Clermont-Ganneau, Recueil
d? Archtologie Orient. 5 316 (1903). A more specific term is
sursur (pronunc. uncertain), upon a Phoenician inscription from
Citium, of the fourth century B.C., wherein we find a "chief of
the brokers," whose office was hereditary ; see G. A. Cooke, North
Semitic Inscriptions , p. 70 sq.

8 SAGAN-LAL, explained elsewhere by nas $u sa abni, "he who
carries the bag (ktsu) of stones " (cp. Heb. use of kis and abanlm).
The ideogram is to be read samallu^ sawallil^ and appears to be the
Talm. and Mand. sewalya, " pupil," etc. (Beitr. z. Assyr. 4 83).



238 THE LAWS OF MOSES CHAP, ix

of any other merchant, and all profits are to be
shared according to the bonds. 1 The laws in the
Code are incomplete owing to the erasure, and the
commencement of the first is missing. The agent
or trader is answerable to the merchant (dam-gar)
for the money he takes with him on his journeys
and the interest thereof ( 100), and if in the course
of his travelling he has found no luck, he must pay
back the amount borrowed ( 101). If the merchant
gave him money as a favour (? a-na ta-ad-mi-ik-tim),
and the agent suffers loss (bi-ti-ik-tum) in his journey,
he must return the sum (ga-ga-ad) to the merchant
( 102). The last-mentioned law presupposes actual
loss in the transaction, and the agent is therefore
bound to return the bonus which he had received,
together with the capital. 2 The agent who is robbed
on the road (har-ra-nam) by an enemy can swear
(his innocency) by the name of God (ni-i$ i-lim i-za-
kar-ma), and goes free ( 103). On the other hand,
when the merchant gives the agent corn, wool, oil,
or any other thing to sell, the agent must draw up
an invoice and hand it over to the merchant, and
take from the latter a receipt (ka-ni-ik kaspi ; 104
sq)? If the agent receives money from the mer-
chant, and the latter disputes (the amount ?), the
merchant puts the agent to account before God and

1 Kohler and Peiser, Bab. Rechtsleben, 3 47.

2 That this is the true meaning of the law is not certain.

3 It is not clear what happens when the agent neglects to take a
receipt ( 105) : a-na ni-ik-ka-az-zi-im u-ul is-sa-ak-ka-in, according
to Johns, " he shall not put in his accounts."



CHAP, ix TRADE AND COMMERCE 239

witnesses, and the agent pays the money threefold
( 1 06). The merchant who wrongs an agent, and
disputes with him the amount he has received, is
dealt with in a similar manner and is condemned
to pay sixfold ( 107). The double penalty is in
accordance with the graduated system of punish-
ment which prevails throughout the Code. It is
not easy to see how disputes could arise, when,
according to 104 sq., the agent must give the
merchant a receipt, unless perhaps the last -men-
tioned laws are new. 1 Finally, if the merchant is
away on a journey, and sends silver, gold, precious
stones, or " treasure of his hand " 2 by transport and
the carrier keeps them, he is put to account and is
ordered to return fivefold to the owner ( 112).

According to the Talmudical law, all benefits
resulting from the execution of agency are shared
between the principal and the agent, and the latter
is responsible for damages and loss, except in the
case of vis major? In the Syro- Roman law-book,
on the other hand, it is laid down that if the agent
and the principal agree to share the profits equally,
the agent's responsibility, in case of loss, extends
only to half the amount received. 4

1 The verbal evidence "before God" in 106 sq., as opposed to
104 sg., suggests that there is no written evidence.

2 bi-is ga-ti-su, i.e. a personal ornament.

3 L. M. Simmons, " Talmudical Law of Agency," Jewish Quarterly
Review, 8 614-631 (1896); for an abstract of the Mohammedan
principles, see Kohler, Rechtsvergleich. Stud. pp. 81 sqq.

4 Bruns and Sachau, op. cit. p. 73 ( 82).



CHAPTER X

PROTECTION OF THE PERSON

The king Kidnapping Witchcraft and sorcery Responsibilities of
the builder Of the doctor and veterinary Traces in Syrian
law Principles of the jus talionis Modifications Assaults
upon men Assaults upon women Manslaughter and murder
The unknown murderer E volution of the talio Stage reached
by the Code of Hammurabi Individual responsibility.

A NUMBER of laws relating to damages of various kinds
have come up for notice in the course of the preced-
ing pages, and) it now remains to undertake a general
survey of the various methods by which the safety
of the person was secured. We shall find that the
Code of Hammurabi is particularly rich in this
respect, and that some extremely minute precau-
tions were taken to fix the responsibility for accident
or loss of life upon the guilty party. The king's
safety is secured in the well-being of his subjects,
but there is one statute which may probably be
regarded as aimed against high treason. The
taverns, as we have seen, were kept by women,
and evidently were not regarded as places to which
respectable people would resort (above, p. 150), and

240



CHAP, x PROTECTION OF THE PERSON 241

the Code orders that if rebels (sa-ar-ru-tim) have
collected in her house, the wine-seller must seize and
drive them off to the palace-guard, under fear of the
penalty of death ( 109). Apart from this, the king
does not come under consideration, except in so far
as his interests may be said to be protected by
the laws relating to the royal messengers (pp. 184



Theft of persons, whether for enslavement or any"
other purpose, was a capital offence in Babylonia as
also in Israel. 1 The Code (CH, 14) applies the
law to the son of a freeman (mar a-wi-lim), whilst
the Book of the Covenant is wider in its scope, and,
uses the general term "man" (zs, Ex. 21 16). The
Deuteronomic code restricts the offence to Israelites
only (Deut. 24 7), a noteworthy illustration of the
changed conditions of its time. The earlier col-
lection in Exodus practically applies only to the
Hebrews, and the law therefore requires no ex-
planatory specification. By the end of the seventh
century, however, Israel's horizon had been con-
siderably extended, and dealings with foreign powers
and the growth of new conditions had made slavery
a recognised institution. The later code, realising
this, is forced to confine the prohibition to members
of the chosen race.

The man who tied a magical spell (u-ub-bi-ir-ma) }
and put a ban (ne-ir-tum) upon another and could/
not justify himself (la uk-ti-in-su) is put to death'
( i). If a man put a charm (ki-is-bi) upon another

1 Cp. also the Syro- Roman law-book, op. tit. p. 244 ( 78).

16



242 THE LAWS OF MOSES CHAP, x

and could not justify himself the case is left for the
river-god (ilu naru) to decide. The man upon
whom the spell is cast not the wizard plunges
into the holy river, and if it overcomes him, the
weaver of spells takes over the victim's house, but
if the ordeal shows him to be innocent and preserves
him (is-ta-al-ma-am), the wizard is put to death and
his house is taken by the victim ( 2). 1 With these
laws the Code of Hammurabi commences, and their
prominent position is perhaps an indication of the
importance attached to them. To understand their
motive one has only to realise the prevalence of
magical practices in Babylonia. Pain, illness, and
even death itself were held to be due to the malig-
nant energy of spells worked by demons or human
beings. The latter, more commonly women, in-
flicted all kinds of ills by means of magical formulae,
by loathsome potions, or by the use of sympathetic
magic. The last-mentioned frequently took the form
of magical knot-tying, and it is possible that this is
intended in the first law ( i). The second ( 2)
evidently implies a more terrible form of enchant-
ment, but its precise nature can only be speculated. 2
The evils which befall the unhappy victim may have
been sent as punishments for sins whether of omis-
sion or commission, and the lengthy list of cere-
monial and ethical transgressions preserved in a
seventh -century tablet is a striking illustration of
the advanced conceptions ruling in Assyria, 3 and

1 Cp. above, p. 64. 2 Possibly a magical drug.

3 King, Babylonian Religion, pp. 218 sqq.j see below, p. 277 sq.



CHAP, x PROTECTION OF THE PERSON 243

suggests that the wizard even of Hammurabi's time
would find little difficulty in justifying his spells.

Laws directed against sorcery are general, and"
are not absent from the early Hebrew collections.
Among the exhortations accompanying the Book of
the Covenant is one aimed at the extirpation of /
witches (mekassephah ; Ex. 22 is), and the wording
("thou shalt not let live") may be taken to imply,
that the witch might be killed out of hand without
resort to judicial procedure. 1 Deut. 18 10 sq. pre-
sents a full list of forbidden practices coming under
this head, and along with the sorcerer (mekasZepK)
includes the charmer, or weaver of magic spells
(hober htber). The absence of all mention of a
penalty severs the Deuteronomic code from both
Ex. 22 18 and the Law of Holiness, where stoning is
inflicted upon those who indulge in magical practices
(Lev. 20 27 ).

That both Israel and Babylonia should have
endeavoured to protect individuals from sorcery
occasions no surprise, and the only question is to
what extent the punishments were actually put into
practice. That Saul expelled and "cut off" all
sorcerers from the land of Israel (i Sam. 283, 9, 21)
is a statement due to a writer who was at least
contemporary with, if not later than, the Book of
the Covenant. In Babylonia, too, death by burning/

1 Cp. Holzinger, ad loc. Josephus (Ant. iv. 8 34) finds in the
verse a prohibition against keeping drugs, fatal or harmful, and
assumes that the man who is caught is to be put to death and suffer
the pain he would have brought upon his victim.



244 THE LAWS OF MOSES CHAP, x

\
was regarded as the only appropriate penalty for

witchcraft, but Zimmern observes that it cannot yet
be clearly made out whether it was ever put into
effect. 1 It seems certain, however, that the victim
might retaliate by burning the effigy of the witch
before the image of the deity whose help he implored;
but this is only sympathetic magic. The laws were
probably more ideal than practicable, and in spite
of condemnations magical practices were never up-
rooted in Israel but continued to flourish down to
Talmudical times.

A small group of laws relates to the responsi-
bilities of the builder (banu). Houses were let on
lease yearly or for a period of years up to eight.
They were to be kept in repair by the tenant, who
was responsible, also, for damage caused by fire or
any other accident. 2 As was often the case in
paying salaries, a deposit was paid down, and the
rest became due at the expiration of the time agreed
upon. The Code of Hammurabi probably contained
a number of laws in the five erased columns applying
to tenants, but only one of them, from the time of
Asurbanipal, has been preserved complete. 3 Here,
if the occupier (a-wi-lum as-6u-ta-[am]) has paid the
entire rent (kasap kisri-\_su~ for the year, and the
owner of the house orders him to leave before the
days are fulfilled, the money which the tenant paid
him (he must restore). The tablet being imperfect,

1 Zimmern, EBi. " Magic," 2b.

2 Sayce, op. cit. pp. 114 sqq. ; Meissner, op. tit. p. 1 1 sq.
3 Scheil, p. 51 ; Winckler, p. 18; Johns, p. 58 (Y).



CHAP, x PROTECTION OF THE PERSON 245

it is uncertain whether the landlord is required to
return the whole of the amount or only a portion
corresponding to the length of time which had still
to elapse.

For making and completing * a house the builder
receives two shekels of silver for each SAR ( 228). 2
If he had not made it strong, and it fell and killed
the owner of the house, he was put to death ( 229).
If the owner's son died, the builder's son became
the victim ( 230) ; if a slave, he must give slave
for slave ( 231); and if the household goods were
destroyed, he must make good the loss (232). In
the last-mentioned case the builder was obliged to
build up the ruined house ; no doubt this was always
understood in the preceding cases. If he had not
erected it (us-ie-is-hi-maf firmly and a wall fell down,
he must strengthen it at his own expense ( 233).
The laws thus cover all damages and inconveniences
likely to arise from the negligence of the jerry-
builder. Parallels to these laws from the rest of
the Semitic field are wanting. The Deuteronomic
code enjoins the man who built a new house to
protect the roof with a parapet (mctakeh; Deut.
22 s), a provision which is on the same general lines
as the law in the Book of the Covenant which makes
the owner of an unprotected pit responsible for loss

1 saklilj cp. Bibl. Aram. Ezr. 5 3, n.

2 According to Sayce (op. cit. p. 266), "180 SE were probably
equivalent to i GIN [? CAN], 60 GIN to one SAR or 'garden,' 1800
SAR to i feddan or acre," but there was a smaller acre one-tenth of
the size. 3 " Jointed " (Johns).



246 THE LAWS OF MOSES CHAP, x

caused by animals falling therein (Ex. 21 33 sq.}. A
similar safeguard was required in post-biblical times,
and it is interesting to notice that the general regula-
tions applying to tenants are clearly framed upon
Babylonian models. 1

(The dues of the physician and veterinary also
come under consideration in the Code. The state-
ment of Herodotus (1 197), that the Babylonians
brought their sick into the market-place in order to
enlist the help and advice of any passer-by who
might happen to have the necessary knowledge to
cure the complaint, probably does not refer to
skilled physicians. 2 The cuneiform texts show that
the medical profession was firmly established under
the protection of certain deities, and that the doctors
ranked high socially and formed a corporation. 3 The
medical literature of the Babylonians is not insigni-
ficant, and for the history of the science in classical
countries it is of the greatest interest. In one con-
tract and apparently in one only is there mention
of the doctor's fee (three shekels), 4 and from the Code
it appears that it was arranged upon a sliding scale

1 H. Pick, Assyriscfes und Talmudisches, p. 27 sq. (Berlin, 1903).
The Syro-Roman laws relating to houses (op. cit. p. 37, 120) do not
cover any of the above-mentioned details.

2 Cp. C. F. Lehmann, Babyloniens Kulturmission, p. 86 sq.

3 Dumon, Journal Asiatique, Qth ser. 9318-326(1897). Gula or
Nin-karrak was the goddess of nostrums ; Ea, the patroness of
doctors, was apparently figured with a serpent's head (cp. Num.
219); and Allatu unkindly enough was the goddess of the land
from which there is no return.

4 Dumon, op. cit. p. 326 (Strassmaier, no. 382, temp. Cyrus).



\

CHAP, x PROTECTION OF THE PERSON 247


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 19 20 21 22

Online LibraryStanley Arthur CookThe laws of Moses and the Code of Hammurabi → online text (page 17 of 22)