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according to the status of the patient. The doctor
(a-zu) who treats a man for a grievous wound (zi-
im-ma-am kab-tam) with a bronze knife and heals
him (ub-ta-al-li-it\ or cuts the film * of a man with
a bronze knife and heals it, receives ten shekels of
silver (CH, 215), but only five if the patient is a
poor man (mar MAS-EN-KAK ; 216), and two if it is
a man's slave (arad a-wi-lim / 2 1 7). I f in operating
upon the wound the patient dies or his eye is lost,
the doctor's hands are cut off ( 218) : the member
that caused the damage receives the punishment. 2
This penalty, however, applies only to the (free-)
man. 3 If it is a servant (slave) who dies under the
operation, the doctor must give the owner slave for
slave ( 219), whilst for the loss of the slave's eye
pecuniary compensation (half his price) must be
made ( 220). The doctor who makes whole (us-
ta-li-im) a man's broken limb or heals a diseased
bowel (ha-nam mar-sa-am) receives five shekels
( 221), or three in the case of a poor man's son,
and two for a servant (222 sq.). The cow doctor
(a-zu alpi) or sheep 4 doctor who treats a cow or
sheep for a grievous wound and cures it receives
one-sixth of a shekel as his pay (ID-SU\ but if it

1 ? " Cataract," na-gab-ti; perhaps " abscess " (Johns).

2 Cp. pp. 134, 249-

3 So, in Egypt, the doctor who was at fault was punished with
death (Diod. 1 25, 82).

4 So Johns, reading immeru. Scheil and Winckler agree in
rendering " ass " (imeru). The most natural combination is ox and
sheep ; cp. CH, 262-265. The ass, however, is used for threshing
( 269) ; cp. also 7 sq.



248 THE LAWS OF MOSES CHAP, x

dies he must pay one-fourth of its price to the owner
( 224 sg.).

Although these laws are without their parallel in
the Hebrew legislation, there is evidence which leads
to the assumption that they had not died out in Syria
by the time of the Syro-Roman law-book. Accord-
ing to this work, if a man has been taken in hand
by a physician (Syr. asya) in the TrepwSevo-i,? the
reference is perhaps to a peripatetic surgeon and
he gave him his pay, 1 the patient cannot recover the
sum, whether he be healed or not. 2 From the stand-
point of Roman law the principle is self-evident, and
Bruns remarks that the ruling datio ob causam is
grounded on the analogy of the treatment of advo-
cates, no special mention of doctors being found in
the old Roman codes. He finds it surprising,
therefore, that the law should pass from doctors
to advocates (cp. note below), and not vice versa,
and makes the happy suggestion that the Syrian
collection once contained other laws relating to
physicians. It seems highly probable that the law
under discussion was distinctly an innovation intro-
duced through Roman influence in order to put down
a practice which admits of explanation in the light
of the Babylonian code. Doubtless the severity of
the Code of Hammurabi had been modified in

1 The veterinary in the Code like the doctor in Syria receives
his "pay" (Syr. agra), whilst the house and shipbuilder receive
their " honorarium " (kistti).

2 Bruns and Sachau, op. cit. pp. 38 ( 122), 289 sq. The Syriac
extends the principle of this law to prostitutes and



CHAP, x PROTECTION OF THE PERSON 249

course of time, and it may be conjectured that the
patient was formerly allowed to claim the return of
the doctor's fee if he had good cause to be dis-
satisfied with his treatment.

The principles underlying the laws relating to
the builder and the physician are thoroughly
characteristic of the Code. Just as the hand that
errs or steals ( 195, 218, 226, 253), or the tongue
that reviles ( 192), is cut off, 1 so the person guilty
of an assault upon another is punished precisely in
that part of the body where he injured his neigh-
bour. The old crude system of the talio prevails!
almost everywhere. In cases of damage to property
it is ship for ship ( 235), goods for goods ( 232),
ox for ox ( 245, 263), sheep for sheep ( 263) ; and,
similarly, as regards persons, it is man for man
( 229), woman for woman ( 210), son for son
( 1 1 6, 230), slave for slave ( 219, 231), limb for
limb ( 197), tooth for tooth ( 200), eye for eye}
( 196), and whatever punishment a man tried to
bring upon another it is to be inflicted upon him
( 3 sq.\ The talio holds good in old Hebrew law,;
in the Koran, and is as characteristic of early Semitic!
legislation as of other ancient legal codes. 2

1 So, in the Laws of Manu, he who raises his hand or a stick
shall have his hand cut off; he who in anger kicks with his foot shall
have his foot cut off ( 8 280). For examples of the practice among
the Israelites as applied to punishments, cp. Num. 5 19-22 and Gray's
note (Internat. Crit. Comm. p. 53 $<?).

2 Ex. 21 23-25 ; Deut. 19 21 ; Lev. 24 17-21 ; cp. Job 2 4 ; Matt. 5 38 ;
Mish. Sotah 1 7 sqq., etc. ; Bruns and Sachau, op. tit. p. 70, 75 ;
Koran, 2 173 sqq. (" free for free, slave for slave, woman for woman ").



250 THE LAWS OF MOSES CHAP, x

But certain modifications are to be observed.
The Code, for example, enacts that the talio is to be
enforced if one has caused the loss of a man's eye
( 196), or tooth ( 200), or has broken the limb
(ner-pad-du) of another ( 197). If the sufferer is
of lower standing a pecuniary compensation suffices.
Thus, the loss of the poor man's eye or the fracture
of his limb may be covered by a payment of half of
a mina of silver ( 198), whilst his tooth is valued at
one-third of a mina ( 201). Again, any injury to a
son or a slave is a detriment to his father or owner,
and in case of death the son of the guilty man is put
to death or the latter must render to the owner
slave for slave. If he has suffered an injury and
lost an eye or limb, one-half of his price must be
paid to the owner ( 199), whilst for the slave who
died in the house of his distrainer from neglect or
cruelty, the compensation was fixed at one -third
(11 6).

One obscure kind of bodily assault not only is
not punished by the talio, but is treated in three
distinct ways according to the status of the parties.
The man who struck the strength (li-e-it) of his
superior is struck in public (i-na pu-uh-ri-im) with
sixty strokes of the ox-hide ( 202). If a freeman
(mar a-wi-lim) assaulted one of his own standing in
this manner he is ordered to pay one mina of silver,
or, if both are poor men (MAS-EN-KAK), the penalty
is ten shekels ( 203 sg.). Finally, if it is a free-
man's servant (slave) who struck a freeman, he is
condemned to lose his ear ( 205). The precise




CHAP, x PROTECTION O

meaning of li-e-it is uncertain,
rendered " crown of the head" (Scheil), "body"
(Winckler), or " strength " (Johns), and the last-
mentioned tentatively suggests that the reference
is to the genitalia. 1 The perplexing variation in
the penalty gives no clue to the nature of the
offence, but if Johns's conjecture is well-founded,
the law would find a parallel in Deut. 25 n sq. y a
typical statute, especially noteworthy for the fact that
it is the only case where mutilation is prescribed.
Scourging in Hebrew law was introduced after the
time of the Book of the Covenant, and first appears
in the Deuteronomic code, apparently as the penalty
for several kinds of offences (25 1-3). That it is to
be regarded as an innovation in Israel is practically
certain. 2

A small group of laws in the Code relating to
personal injuries by cattle is especially interesting
for the analogies in the Book of the Covenant. If
a wild bull (alap zu-ga-ani) gored a man in its charge
(i-na a-la-ki-su] and killed him, no claim could be
made ( 250) ; but if the ox was known to gore (na-
ak-ka-pu-u], and its vice (ba-ab-ta-sii) had been made
known to its owner, and he had not cut or blunted
its horns (kar-ni-m la u-sar-ri-im)* or kept it under
restraint (la u-sa-an-ni-ik-ma\ compensation must

1 Johns, p. 83. 2 See above, p. 45 and n. i

3 In later times the horns were protected by a basket ; cp. Talm.
Bab. Berakh. f. 33^ (Schwab, 1 538, where a black bull is considered
particularly dangerous, especially in Nisan [April], " for then it has
the devil on the horns ").



252 THE LAWS OF MOSES CHAP, x

be made. For a freeman the owner must pay
half a mina ( 251), and for a slave one-third ( 252).
Hebrew law required the ox to be stoned, 1 and
forbade its flesh to be eaten ; and under ordinary
circumstances the owner was free from guilt. If the
ox was wont to gore (naggah\ and its propensity
had been testified to the owner, and he had failed to
keep it under restraint (samar), the owner was put
to death (Ex. 2128 sqq.}. It is provided, however,
that if a ransom (kopher) was laid upon him he must
pay what was demanded. For a male or female
slave a payment of thirty shekels was to be made
to their master (vv. 30-32). The slave's life is thus
valued rather more highly than in the Babylonian
code.

Another group of laws with distinct analogies in
/the oldest Hebrew law-book deals with assaults upon
/ women resulting in miscarriage. If the sufferer is a
freewoman the compensation is fixed at ten shekels
( 209), five shekels if a poor woman (marat MA$-
EN-KAK ; 21 1), but only two if a slave (amat ; 213).
If the woman herself dies from the injury the penalty
is made proportionately more severe. If a free-
woman, the man's daughter is put to death ( 210);
if a poor woman, half a mina of silver must be paid
( 212), and if a slave, one-third of a mina ( 214).
The scale of penalties for miscarriage agrees

1 Cp. Frazer, Pausanias, 2 370 sqq., and for mediaeval examples,
Baring-Gould, Curiosities of Olden Times^ pp. 57 sqq. (Edinburgh,
1895). At the present day the parents of the victim may lay claim
to the animal (Jaussen, Revue Biblique^ 1901, p. 600).



CHAP, x PROTECTION OF THE PERSON 253

curiously with the doctor's fees in 215, 217, and
the monetary valuation for loss of life is identical
with 251 sq. (above). In the Book of the
Covenant the relative law is confined to a single
verse which is embedded in the general laws dealing
with assault. It orders that miscarriage caused by
assault is to be compensated according to the
demands of the woman's husband (ba'al, Ex. 21 22).
The amount of the penalty is not specified, it is
purely a matter to be adjusted between the offender
and the husband, and the reference in the present
text to the decision of the judges is due to a corrupt
reading. 1 The agreement between the two legis-
lations is only superficial. Both handle the same
topic, both apply their own principles. In Baby-
lonia, the assault becomes an occasion for a judicial
enquiry, in Israel it is a detriment to the husband's
property. The Code treats the case with com-
parative minuteness, and applies it to three classes
of society, whilst the Book of the Covenant does
not speak clearly with regard to the punishment to
be inflicted if the woman should die from the
assault. 2 The present arrangement of the laws of
assault is probably not original. The specification
of the talio in Ex. 21 23-25 preferably belongs to
some general law of assault, and should probably

1 Budde's emendation in v. zzb ("and he shall pay for the
foetus " : ntpkOlim) answers exactly to the Bab. a-na sa li-ib-bi-sa
i-sa-kal ("for what was in her body he shall pay"), and is in
accordance with the discussion in Baba Kamma^ 56; cp. also
Jaussen's account of modern custom, Revue Biblique, 1901, p. 598.

2 Josephus applies the talio^ " life for life " (iv. 8 33).



254 THE LAWS OF MOSES CHAP, x

follow after vv. 18, 19, where assaults between man
and man come under consideration.

Here, if as a result of a blow with the fist or a
stone the instruments are typical a man has been
forced to take to his bed (naphal le-miskab\ and is
lamed, the assailant is acquitted, but he must com-
pensate him for his loss of time (sdbeth, cessation),
and must certainly cause him to be healed. An
injury resulting in death is punished by the death of
the assailant, but the law distinguishes between
presumptuous murder and death arising from a
chance affray (vv. 12-14). It is not a capital offence
for the master to injure his servant mortally ; some
punishment is inflicted, but its nature is not specified,
and if death does not immediately ensue, the master
is free (y. 20 sq.}. Nor was the talio enforced for
a minor injury. The master who struck out his
servant's tooth or eye was only required to grant him
his freedom (v. 26 sq.\ and although it is not stated, it
is to be presumed that this was also the custom for
permanent injuries of other kinds.

In the Code of Hammurabi, the man who struck
another in a quarrel (i-na ri-is-ba-tim im-ta-ha-as-ma)
and caused a wound (zi-im-ma-am) can swear "I did
not strike him wittingly," 1 but must answer for the
physician (a-zu i-ip-pa-al ; 2o6). 2 If the man dies
of his blows, the offender must swear (as before)
and make a compensation, half a mina for a freeman,

1 See above, p. 61 n. i

2 Similarly, in the Laws of Manu, the assailant must pay the
expenses of the cure (8 287).



CHAP, x PROTECTION OF THE PERSON 255

and if the victim was a poor man, one-third of a
mina ( 207 sq.}. In other respects the principles of
Babylonian law are in agreement with the Hebrew.
The talio is enforced, but a pecuniary payment is
sufficient when the sufferer is on a lower footing.

Later usage was directed towards the modifica- j
tion of the talio. Josephus (Ant. iv. 8 35) states
that although maiming is avenged by the talio, the
sufferer may receive a compensation, and is allowed
by law to estimate the amount ; and so in post-
biblical times all petty assaults are generally dealt
with by fines varying according to the dignity of
the injured person 1 a class distinction that is
reminiscent of the Babylonian code. Modern
custom varies ; the loss of a hand may be valued at
half and an eye at one-fourth the price of a man, or
the case may be left to the sheikh's decision. 2 In j
default of payment the guilty man and his nearest kin ?
may be exiled until they have the means to pay. 3

The Code laid upon the city and its governor the
responsibility for brigandage carried on within its
limits ( 23, p. 214 above), and "if it was a life"
(na-bi-is-tutn), the city and its governor were
required to pay one mina of silver to the people of
the murdered man ( 24). The law has Semitic
analogies, and, as Dareste has pointed out, recurs

1 Baba Kdmma, 8 6 ; Jewish Encyclopedia, 2 225^. (As a means
of appraisement damage could be estimated at the difference between
a man's market value as a slave before and after the assault.)

2 Jaussen, Revue Biblique, 1901, p. 598.
8 Doughty, Ar. Des. 1 317 sq.



256 THE LAWS OF MOSES CHAP, x

not infrequently in ancient codes. 1 In Arabia, the
responsibility for homicide, where the murderer was
unknown, was cast in the first instance upon the
nearest community, but under Islam, blood-money
in these circumstances was paid by the State. 2
The Israelite ritual for the expiation of murder by
an unknown hand, although preserved only in the
Deuteronomic code (21 1-9), is evidently a reflection
of ancient usage. Primarily, it rested entirely in
the hands of the elders of the community, who are
required to profess their innocence and make atone-
ment for the blood that has been impiously shed by
placing the burden of the guilt upon an animal. 8
The account covers only one aspect of blood
revenge, 4 and it is noteworthy that nothing is said
of the part taken in the ceremony by the murdered
man's kin, for which reason it is to be inferred that
it relates only to the case where both the murdered
man and the murderer are unknown.

The introductory remarks made in chap. iii. on

1 Journal des Savants, 1902, p. 521, n. 4; cp. Fenton, Early
Hebrew Life, p. 45 sq. The Egyptian custom recorded by Herod.
2 90, whereby the nearest city was obliged to embalm and bury dead
bodies found in the district, can scarcely be cited as a close analogy ;
cp. A. Wiedemann, Herodots ziveites Buck, adloc. (Leipzig, 1890).

2 Robertson Smith, Kinship^ p. 64, n. 2 ; cp. Wellhausen,
Arab. Heid. p. 188 sq. ; Dareste cities also Khalil, art. 1835-1837.

3 The judges (sophetini) are mentioned in v. 2, only to disappear
again, and the Levitical priests are named only in v. 5, which does
not seem to belong to the original ritual (Carpenter and Harford-
Battersby, Hexateuch, Bertholet, Steuernagel, ad loc.).

4 Possibly belonging to a group of laws dealing with the subject ;
cp. Ex. 22, 2, 3#, etc.



CHAP, x PROTECTION OF THE PERSON 257

the prevalence of blood - revenge among primitive
Semitic communities may now be supplemented by
a glance at the successive modifications and qualifi-
cations of the original system under the growth of
society. As long as the jus talionis prevailed with
its logical severity no advance could be made.
Justice repeats the offence, and every affair into
which it is introduced becomes endless. A step
forward is taken when the affair is restricted to the
families of the aggrieved and the aggressor, and the
weakening of the tribal solidarity which rendered
this possible cleared the way for further advances.
At the same time, when the affair is thus reduced to
a dispute between individuals, it is entirely a matter
of private arrangement, and the aggrieved have th
right to make their own terms. A distinction is
made between murder and manslaughter, and th
status of the slain is taken into consideration. Com-
pensation may be demanded or accepted, and the
amount, which at first is arbitrarily fixed by the
injured party (cp. Ex. 21 22, 30), is subsequently
controlled by customary usage (cp. 21 32). Gradually
there grow up fixed scales of fines and compensa-
tion which, by common consent, hold good among
specified tribal groups. The adjustment of these
tariffs one with another follows later when the
various groups are united under one head, or when
one group has become sufficiently powerful to impose
its scale upon all those with which it is brought into
contact. The last stage is reached when revenge isj
taken out of the hands of the individual by society,!

17



258 THE LAWS OF MOSES CHAP, x

and the penalty for the crime is a punishment
. determined by the constituted authorities and carried
\out by duly appointed officials. 1

Old Hebrew law as early as the age of the Book
of the Covenant restricted the right of the slain
man's kin to exact revenge. Unintentional homicide
is distinguished from deliberate murder, and there
are other indications that the laws of murder had
passed beyond the primitive stage of blood - feud,
The slave's person is not valued as highly as that of
the freeman ; for the thief who meets his death at
night no blood-atonement is necessary, and a dis-
tinction is drawn between instant death after a blow
and the case where the victim lingers for a day or
two. The later legislation works out the laws with
greater precision. The rights of asylum are more
clearly defined, and rules are laid down by which
intentional homicide may be justifiably presumed
(Num. 35). Along with this, it is to be observed
that the exaction of the penalty rests with the
injured party, and after the enquiry the murderer is
handed over to the blood-avenger to be put to death
(Deut. 19 ii sg.). The state does not step in to
protect the interests of the aggrieved ; personal
honour and the unwritten laws of the tribe requires
the accuser to take the initiative and compels him to
carry out the penalty (cp. Deut. 17 7).

Mohammedan legislation, in like manner, dis-
tinguished between murder, fatal assault, and un-

1 Cp. Benzinger, EBi. " Law and Justice," 1 1.



CHAP, x PROTECTION OF THE PERSON 259

intentional homicide, and whilst endorsing the talio,
recommends the aggrieved party to accept a fine.^
In Syria the Syro- Roman law-book forbids the,
blood-avenger to kill the man-slayer and requires the i
accuser to hand the guilty over to the authorities. 2 ^
Naturally, different groups of communities reached
different stages. The lawless Trachonites of the
time of Herod the Great carried out the old law of
retaliation to the full (Josephus, Ant. xvi. 9 i).
Among the modern Bedouin usage varies. The
extreme penalty for murder may be exacted, and
the relatives of the murdered person may be com-
pelled to carry it out, 3 or the death-sentence may
even be performed by the relatives of the murderer. !
Among those tribes where the were-gild is accepted,
either the amount of the ransom is left to the
decision of the kadi, or two or more tribes will
come to an understanding among themselves
touching the rate of assessment. 5 Thus the road!
is paved for the formulation of a definite legal \
code.

The legal principles of the Code of Hammurabi
viewed in the light of the foregoing are particularly
striking. The primitive law of the talio has under-
gone certain modifications. It is rigidly enforced,

1 Koran^ 2 177, 4 94 sq. ; cp. Procksch, op. cit. p. 86 (and chap,
iv. generally).

2 Brims and Sachau, op. cit. p. 70, 74.

3 Cp. Doughty, Ar. Des. 2 368.

4 PEFQ, 1897, p. 131 sq*

5 Doughty, 1 145 sq., 491 ; cp. 402, 476, 491 ; Jaussen, Revue
Biblique^ 1901, p. 599.



260 THE LAWS OF MOSES CHAP, x

and the exceptions are made chiefly in those cases
where the victim is on a lower standing than the
assailant. But revenge is not admitted ; every-
thing is under the supervision of the legal authorities,
and the rare occasions when the individual may
take the law into his own hands refer not to murder
but to theft ( 21, 25). The Code does not handle
murder, but the detailed punishments for various
kinds of assault suggest that if no mention is made
of it, it is only because the law was too firmly
established to require a specific statute. " The
people which killed my servants," writes Burraburias
to Naphururiaof Egypt, "kill them and avenge their
blood" (da-mi-su-nu ti-i-ir.) 1 This was doubtless the
law at the time when the Code was promulgated,
and Hammurabi's chief concern was to make excep-
tions in favour of unintentional homicide ( 206-208).
Further, it is probable that when the victim was
lof inferior rank a fine was sufficient, whilst in the
case of a slave naturally the owner required some
pecuniary compensation.

In conclusion, although this tends to show that

I the Babylonians had reached the stage of penal

[law, and although we find that punishments were

inflicted by the State, and private individuals only

on the rarest occasions were allowed to avenge

themselves, it is very necessary to observe that certain

of the grosser features of the barbarous jus talionis

were retained in all their crudeness. When it is

remembered, for example, that the builder's son is

1 Amarna Letters, no. n, obv. 1. 4 sq. (KB 5 27).



CHAP, x PROTECTION OF THE PERSON 261

made a victim for the tenant's son ( 230), or the
assailant's daughter dies to make atonement for the
woman who has died of an assault ( 210), it is clear
that the people among whom these practices pre-
vailed were still a long way behind pure con-
ceptions of justice. And it is interesting to find
that the Code in this respect is quite in agreement
with the tenacious primitive Semitic theory of blood-
revenge, in accordance with which a man's guilty
was shared by the whole family, could be inherited
even by the unborn, and was only wiped out after
revenge had been taken upon some one member
or other of the guilty man's kin. Although this
was the prevailing tendency of early Israelite
thought, it is a characteristic feature of the Book
of the Covenant that it is only the actual manslayer
who is put to death (Ex. 21 12), and throughout
the following centuries the idea of personal re-
sponsibility was the prophetic ideal outstripping
the practice of everyday life. 1 The Deuteronomic
code expressly says that the son is not to die for
the father or the father for the son (Deut. 24 16 ;
cp. 2 Kings 14 6, Jer. 31 30), and the climax is
reached by Ezekiel (chap. 18), who refuses to
recognise either transmitted guilt or transmitted



1 Contrast Deut. 7 10 with the Decalogue, where the extension
of the responsibility of guilt to the third and fourth generation is in
accordance with the Bedouin humsaj the ancestor with four genera-
tions forms a solidarity (cp. Procksch, op. cit. p. 24 ; Patton, loc.
tit. p. 705 sq. ; D. A. Walker, Journ. Bibl. Lit. 1902, p. 190. See
also below, p. 274).



262 THE LAWS OF MOSES CHAP, x

righteousness. The early restriction of the talio
and the gradual recognition of individual respon-
sibility give an ethical superiority to Israelite law


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