CHAPTER XIII

THE CODE OF HAMMURAPI AND THE PENTATEUCH

THE TEXT OF THE CODE; RESEMBLANCE TO AND CONTRAST WITH THE MOSAIC

CODE. THE MOSAIC CODE NOT BORROWED FROM THE BABYLONIAN; DIFFERENT

UNDERLYING CONCEPTIONS.

=1. The Text of the Code; Comparison with the Mosaic Code.=

The following code of laws was inscribed by order of Hammurapi, of the

first dynasty of Babylon (2104-2061 B. C.), on a block of black diorite

nearly eight feet in height and set up in Esagila, the temple of Marduk,

in Babylon, so that the people might have the laws in the mother-tongue.

As this last statement implies, the laws are written in Semitic

Babylonian; before the time of Hammurapi the laws had been written in

Sumerian. At some later time an Elamite conqueror, who was overrunning

Babylonia, took this pillar away to Susa as a trophy. In course of time

the pillar was broken into three parts, which were found by the French

expedition under de Morgan in December, 1901, and January, 1902, while

excavating at Susa. As the code is the oldest known code of laws in the

world, being a thousand years older than Moses, and as it affords some

interesting peculiarities as well as some striking parallels to the laws

in Exodus 21-23 and in Deuteronomy, a translation of it, with some

comparison of Exodus and Deuteronomy, is here given:

Against Witches

§ 1. If a man brings an accusation against a man, that he has laid a

death-spell upon him, and has not proved it, the accuser shall be put

to death.[459]

§ 2. If a man accuses another of practising sorcery upon him, but has

not proved it, he against whom the charge of sorcery is made shall go

to the sacred river; into the sacred river he shall plunge, and if the

sacred river overpowers him, his accuser shall take possession of his

house. If the sacred river shows that man to be innocent, and he is

unharmed, he who charged him with sorcery shall be killed. He who

plunged into the sacred river shall take the house of his accuser.

With these laws we should compare Exod. 22:18, which imposes the death

penalty upon witches, and Deut. 18:10, ff., which declares that there

shall be no sorcerer, diviner, magician, or charmer in Israel and promises

a line of prophets to render these unnecessary. Magic is banished from

Israel; its presence in Babylonia is taken for granted, and only some of

its exercises, which were supposed to be especially deadly, were

forbidden. In § 2 the man accused of sorcery is to be tried by ordeal. He

is to plunge into the river and if he can swim in its current, he is

innocent. Trial by ordeal is found but once in the Hebrew laws (Num.

5:11-28). There both the crime and the ordeal are very different from

this.

Note that in these sections the false accuser suffers in just the way he

has tried to bring suffering to the other. This is the law of retaliation,

which appears in Deut. 19:16-21, where it is applied to false witnesses in

the same way as here. It will be found underlying many of the penalties of

this code.

Laws Concerning False Witness

§ 3. If in a case a man has borne false witness, or accused a man

without proving it, if that case is a capital case, that man shall be

put to death.

§ 4. If he has borne witness in a case of grain or money, the penalty

of that case he shall himself bear.

Hebrew law was similar; a false witness was to be visited with the penalty

which he had purposed to bring upon his brother (Deut. 19:18, 19).

Against Reversing a Judicial Decision

§ 5. If a judge has pronounced a judgment, made a decision, caused it

to be sealed, and afterward has altered his judgment, that judge they

shall convict on account of the case which he decided and altered; the

penalty which in that case he imposed he shall pay twelvefold, and in

the assembly from the seat of his judgment they shall expel him; he

shall not return; with the judges in a case he shall not sit.

Hebrew law presents no parallel to this.

Against Theft

§ 6. If a man steals the goods of a god (temple) or of a palace, that

man shall be put to death, and he by whose hand the stolen goods were

received shall be put to death.

§ 7. If a man purchases or receives on deposit either silver, gold,

man-servant, maid-servant, ox, sheep, ass, or anything whatever from

the hand of a minor or a slave without witnesses or contracts, that

man is a thief; he shall be put to death.

§ 8. If a man has stolen ox, or sheep, or ass, or pig, or a boat,

either from a god (temple) or a palace, he shall pay thirtyfold. If he

is a poor man, he shall restore tenfold. If the thief has nothing to

pay, he shall be put to death.

§ 9. If a man, who has lost anything, finds that which was lost in a

man’s hand, (and) the man in whose hand the lost thing was found says:

“A seller sold it; I bought it before witnesses”; and the owner of the

lost thing says: “I will bring witnesses who know that the lost thing

is mine”; if the purchaser brings the seller who sold it to him and

the witnesses in whose presence it was bought, and the owner of the

lost thing brings the witnesses who know that the lost thing is his,

the judges shall examine their testimony. The witnesses before whom

the purchaser purchased it, and the witnesses who know the lost thing,

shall give their testimony in the presence of a god. The seller is a

thief; he shall be put to death. The owner of the lost thing shall

take that which was lost. The purchaser shall take from the house of

the seller the money which he had paid.

§ 10. If the purchaser does not produce the seller who sold it to him

and the witnesses before whom he bought it, and the owner of the lost

thing produces the witnesses who know that the lost thing is his, the

purchaser is the thief; he shall be put to death. The owner of the

lost thing shall take that which he lost.

§ 11. If the owner of the lost thing does not bring the witnesses who

know that the lost thing is his, he is one who has attempted fraud; he

shall be put to death.

§ 12. If the seller has died, the purchaser shall recover from the

house of the seller the damages of that case fivefold.

§ 13. If that man has not his witnesses near, the judges shall set an

appointed time within six months; and if, within six months, his

witnesses he does not produce, that man is a liar; the penalty of that

case he shall himself bear.

The Hebrew laws comparable to these are found in Exod. 22:1-4, 9, and Lev.

6:3-5. Exodus directs (v. 1) that, if a man steals an ox or a sheep and

kills it or sells it, he shall restore live oxen for an ox and four sheep

for a sheep. In case it is not sold he shall restore double (v. 9). No

highly organized courts appear in the Biblical codes. The thief was

brought before God and his guilt determined by some religious test. The

law of Leviticus required a man guilty of theft to restore the lost

property, adding to it a fifth more, and to offer a ram in sacrifice. (See

Exod. 18:13-26. Cf. 2 Chron. 19:5-7 with 1 Chron. 23:4 and Deut.

16:18-20.)

The Babylonian laws presuppose a much more highly organized social

community than the Hebrew.

Against Stealing Children and Slaves

§ 14. If a man steals the son of a man who is a minor, he shall be put

to death.

§ 15. If a man causes a male or female slave of a palace, or the male

or female slave of a workingman to escape from the city gate, he shall

be put to death.

§ 16. If a man harbors in his house either a male or a female slave

who has escaped from a palace or from a workingman, and does not bring

him out at the summons of the officer, the owner of that house shall

be put to death.

§ 17. If a man finds in a field a male or a female slave who has

escaped and restores him to his owner, the owner of the slave shall

pay him 2 shekels of silver.

§ 18. If that slave will not name his owner, he shall bring him unto

the palace and they shall investigate his record and restore him unto

his owner.

§ 19. If he shall detain that slave in his house and afterward the

slave is found, that man shall be put to death.

§ 20. If the slave escapes from the hand of his captor, that man shall

declare it on oath to the owner of the slave and shall be innocent.

These laws are analogous to Exod. 21:16 and Deut. 23:15. The former

inflicts the death penalty for stealing a man and selling him, and the

latter prohibits one in whose house a fugitive slave has taken refuge from

returning the slave to his master. Slavery was not in Israel such a firmly

established institution as in Babylonia. (See Exod. 21:2-6; Deut.

15:12-18; Lev. 25:25-46.)

Housebreaking and Brigandage

§ 21. If a man breaks into a house, before that breach he shall be put

to death and thrown into it.

§ 22. If a man practices brigandage and is caught, that man shall be

put to death.

§ 23. If the robber is not caught, the man who is robbed shall declare

his loss, whatever it is, in the presence of a god, and the city and

governor in whose territory and jurisdiction the robbery was committed

shall compensate him for whatever was lost.

§ 24. If it is a life, that city and governor shall pay to his

relatives 1 mana of silver.[460]

Hebrew law presents an analogy to the last of these sections in Deut.

21:1-9, though in Israel no compensation was offered to the heirs of the

man who was slain, but a sacrifice was performed by the elders of the

nearest city, to purge it of innocent blood.

Stealing at a Fire

§ 25. If a fire breaks out in a man’s house, and a man who has come to

extinguish it shall cast his eye upon the furniture of the owner of

the house, and the furniture of the owner of the house shall take,

that man shall be thrown into that fire.

The Duties and Privileges of Soldiers, Constables, and Tax-collectors

§ 26. If a soldier or a constable[461] who is ordered to go on a

journey for the king does not go, but hires a substitute and

dispatches him instead, that soldier or constable shall be put to

death; his hired substitute shall appropriate his house.

§ 27. If a soldier or a constable is detained in a royal fortress and

after him they give his field or garden to another and he takes it

and carries it on, if the first one returns and reaches his city, they

shall restore to him his field and garden, and he shall take it and

carry it on.

§ 28. If a soldier or a constable who is detained in a royal fortress

has a son who is able to carry on his business, they shall give to him

his field and garden and he shall carry on the business of his father.

§ 29. If his son is small and not able to carry on the business of his

father, they shall give one-third of his field and garden to his

mother and she shall rear him.

§ 30. If a soldier or a constable from the beginning of his

appointment neglects his field, garden, and house and leaves them

uncared for, another after him shall take his field, garden, and

house, and carry on his business for three years. If he returns and

desires his field, garden, and house, they shall not give them to him.

He who has taken them and carried on the business shall carry it on.

§ 31. If he leaves it uncared for but one year and returns, they shall

give him his field, garden, and house, and he shall carry on his own

business.

§ 32. If a merchant ransoms a soldier (?) or a constable who, on a

journey of the king, was detained, and brings him back, to his city,

if in his house there is sufficient ransom, he shall ransom himself.

If in his house there is not sufficient to ransom him, by the temple

of his city he shall be ransomed. If in the temple of his city there

is not a sufficient ransom, he shall be ransomed by the palace. His

field, garden, and house shall not be given for ransom.

§ 33. If a governor or a magistrate harbors a deserting soldier or

accepts and sends a hired substitute on an errand of the king, that

governor or magistrate shall be put to death.

§ 34. If a governor or a magistrate takes the property of a soldier,

plunders a soldier, or hires out a soldier, has defrauded a soldier in

a suit before a sheik, or takes the present which the king has given

to a soldier, that governor or magistrate shall be put to death.

§ 35. If a man buys the cattle or sheep which the king has given to a

soldier, he shall forfeit his money.

§ 36. One shall not sell the field, garden, or house of a soldier,

constable, or tax-collector.

§ 37. If a man has bought the field, garden, or house of a soldier,

constable, or tax-collector, his tablet shall be broken, he shall

forfeit his money; the field, house, or garden shall return to its

owner.

§ 38. A soldier, constable, or tax-collector shall not deed to his

wife or daughter the field, house, or garden, which is his perquisite,

nor shall he assign them for debt.

§ 39. A field, garden, or house which he has purchased and possesses

he may deed to his wife or daughter, or may assign for debt.

§ 40. A priestess, merchant, or other creditor may purchase his field,

garden, or house. The purchaser shall conduct the business of the

field, garden, or house which he has purchased.

§ 41. If a man has bargained for the field, garden, or house of a

soldier, constable, or tax-collector and has given sureties, the

soldier, constable, or tax-collector shall return to the field, house,

or garden, and the sureties which were given him he shall keep.

No such officers as these are mentioned in the laws of the Old Testament,

though some of them appear in earlier times in the records of Babylonia.

The tax-collectors mentioned here remind us of Solomon’s tax-collectors

mentioned in 1 Kings 4:7, ff.

Laws of Agriculture

§ 42. If a man rents a field for cultivation and produces no grain in

that field, they shall call him to account for doing no work in that

field, and he shall give to the owner of the field grain similar to

that of adjacent fields.

§ 43. If he does not cultivate that field and neglects it, he shall

give the owner of the field grain similar to that of adjacent fields,

and the field which he neglected he shall break up with mattocks, he

shall harrow, and return it to the owner of the field.

§ 44. If a man rents an uncultivated field for three years for

improvement and neglects its surface and does not develop the field,

in the fourth year he shall break up the field with mattocks, he shall

hoe and harrow it, and return it unto the owner of the field, and for

every _Gan_ of land he shall measure out 10 _Gur_ of grain.

§ 45. If a man lets his field for pay on shares to a farmer and

receives his rent, and afterward the storm-god inundates the field and

carries off the produce, the loss is the farmer’s.

§ 46. If the rent of his field he has not received, and he has let the

field for one-half or one-third (of the crop), the farmer and the

owner of the field shall divide the grain which is in the field

according to agreement.

§ 47. If the farmer, because he has not in a former year received a

maintenance, entrusts the field to another farmer, the owner of the

field shall not interfere. He would cultivate it, and his field has

been cultivated. At the time of harvest he shall take grain according

to his contracts.

§ 48. If a man has a debt against him and the storm-god inundates his

field and carries away the produce, or if through lack of water grain

has not grown in the field, in that year he shall not make a return of

grain to his creditor; his contract he shall change, and the interest

of that year he shall not pay.

§ 49. If a man borrows money from a merchant, and has given to the

merchant a field planted with grain or sesame, and says to him:

“Cultivate the field and harvest and take the grain or sesame which it

produces”; if the tenant produces grain or sesame in the field, at the

time of harvest the owner of the field shall take the grain or sesame

which was produced by the field, and shall give to the merchant grain

for the money which he borrowed from the merchant with its interest,

and for the maintenance of the farmer.

§ 50. If the field was already planted [with grain or] sesame, the

owner of the field shall receive the grain or the sesame which is

produced in the field, and the money and its interest he shall return

to the merchant.

§ 51. If there is not money to return, he shall give to the merchant

[the grain or] sesame for the money and its interest which he had

received from the merchant, according to the scale of prices fixed by

the king.

§ 52. If the farmer does not produce grain or sesame in his field, he

shall not alter his contract.

§ 53. If a man the side of his strong dyke has neglected and has not

strengthened it, and in his dyke a break occurs, and the water

destroys the farm-land, the man in whose dyke the break occurred shall

restore the grain which was destroyed.

§ 54. If he is not able to restore the grain, they shall sell him and

his possessions for money, and the owners of the fields whose grain

was destroyed shall share it.

§ 55. If a man has opened his sluice for watering and has left it open

and the water destroys the field of his neighbor, he shall measure out

grain to him on the basis of that produced by neighboring fields.

§ 56. If a man opens the water and the water destroys the work[462] of

a neighboring field, he shall measure out 10 _Gur_ of grain for each

_Bur_ of land.

§ 57. If a shepherd causes his sheep to eat vegetation and has not

made an agreement with the owner of the field, and without the consent

of the owner of the field has pastured his sheep, the owner of the

field shall harvest that field, and the shepherd who without the

consent of the owner of the field caused his sheep to eat the field,

shall pay the owner of the field in addition 20 _Gur_ of grain for

each _Bur_ of land.

§ 58. If, after the sheep have come up out of the fields and are

turned loose on the public common by the city gate, a shepherd turns

his sheep into a field and causes the sheep to eat the field, the

shepherd shall oversee the field which he caused to be eaten, and at

harvest-time he shall measure to the owner of the field 60 _Gur_ of

grain for each _Bur_ of land.

The Hebrew land laws are found in Exod. 22:5, 6; 23:10, 11; Lev. 19:9, and

Deut. 24:19-22; 23:24, 25. An examination of these passages reveals a wide

difference between Babylonia and Israel. In Babylonia it seems to have

often been the rule that a landlord let out the fields to tenants to work;

among the Hebrews the law presupposes that each man shall work his own

land. Many of the Babylonian laws are designed to secure the respective

rights of landlord and tenant. Naturally, there is nothing in the Old

Testament to correspond to these. Hebrew law (Exod. 22:5), like the

Babylonian, provides that one who causes a neighbor’s crop to be eaten

shall make restitution, but the regulations are of the most general

character. In Babylonia a larger social experience had made much more

specific regulations necessary.

The characters of the respective countries are reflected in the dangers

from which crops might be threatened. In waterless Palestine a fire

started by a careless man might burn his neighbor’s crop (Exod. 22:6); in

Babylonia, where irrigation from canals was conducted to fields lower than

the surface of the water, one might flood his neighbor’s field and destroy

his crop by carelessly leaving his sluice open.

The Hebrew legislation presupposes a poorer community. It provides that

the land shall lie fallow, and whatever it produces shall belong to the

poor (Exod. 23:10, 11). At harvest-time, too, one must not reap the

corners of his field; that was left to the poor (Lev. 19:9). If one forgot

a sheaf in his field, he must not return to take it; that should be left

to the poor (Deut. 24:19). Rich Babylonia made no such provision for the

poor; it felt no such social sympathy.

Again, even these agricultural laws show that commerce was highly

developed in Babylonia, with its necessary concomitant, the right to

charge interest for money. The uncommercial Hebrews regarded interest as

unlawful (Exod. 22:25), and it was Hillel, the contemporary of Herod the

Great, who invented an interpretation known as the Prosbūl, which

practically did away with this law and permitted Jews to take interest.

Horticultural Laws

§ 59. If a man shall cut down a tree in a man’s orchard without the

consent of the owner, he shall pay ½ mana of silver.

§ 60. If a man gives a field to a gardener to plant as an orchard, the

gardener shall plant the orchard and cultivate it for 4 years. In the

fifth year the owner of the orchard and the gardener shall share it

together. The owner of the orchard shall mark off his share and take

it.

§ 61. If the gardener in planting does not complete it, but leaves a

part of it waste, unto his portion they shall count it.

§ 62. If the field which is given to a gardener he does not plant, if

vegetation is the produce of the field for the years during which it

is neglected, the gardener shall measure out to the owner of the field

on the basis of the adjacent fields, and shall perform the work on the

field and restore it to the owner of the field.

§ 63. If the field is [left] waste land, he shall perform the work on

the field and shall restore it to its owner, and 10 _Gur_ of grain for

each _Bur_ of land he shall measure out.

§ 64. If a man lets his orchard to a gardener to manage, as long as

the gardener is in possession of the garden he shall give to the owner

of the garden two-thirds of the produce; one-third he shall take

himself.

§ 65. If the gardener does not manage the garden and diminishes its

produce, the gardener shall measure out the produce of the orchard on

the basis of adjacent orchards.[463]

§ 66. If a man has received money from a merchant, and his merchant

puts him under bonds and he has nothing to give, and he gives his

orchard for management unto the merchant and says: “The dates as many

as are in my orchard take for thy money,” that merchant shall not

consent; the owner of the orchard shall take the dates that are in the

orchard and the money and its interest according to the tenor of his

agreement he shall bring to the merchant. The remaining dates from the

orchard shall belong to the owner of the orchard.

As in Palestine, there was no system of rental; the Bible contains almost

no horticultural laws. “Orchards” in Babylonia were, as the last section

shows, date orchards. The corresponding fruit in Palestine was the grape.

Hebrew laws deal with vineyards as with fields. If a man destroys the crop

in another’s vineyard, he is to give the best of his own (Exod. 22:5). He

is to leave his crop unpicked every seventh year for the poor (Exod.

23:11). He is not, when he gathers it, to glean it carefully, but leave

some for the poor (Lev. 19:10). When one goes into his neighbor’s

vineyard, he may pick what he wishes to eat, but must carry nothing away.

Horticulture among the Hebrews was not so highly developed as in

Babylonia.

Five columns of writing have been erased after § 65 from the column on

which the laws are written. This erasure was probably made by the Elamite

conqueror, who carried the column as a trophy to Susa, in order to

inscribe his own name on it, but unfortunately, if that was the intention,

it was never carried out. We are accordingly in ignorance of his name. It

is estimated that 35 sections of laws were thus lost. As already noted,

one can be supplied from a fragment found at Susa, and from other tablets

fragments of two or three other sections can be made out. One of these

incomplete fragments refers to the rights of tenants of houses. It reads:

[If] a man rents a house for money, and pays the whole rent for a year

to the owner of the house, and the owner of the house orders that man

to vacate before the expiration of his lease, the owner of the house

from the money that he received shall ............

Unfortunately, the tablet is broken and the penalty for breaking the lease

is unknown. It is interesting to know that Babylonian tenants were

protected from avaricious landlords, even though no parallel law exists in

the Old Testament.

Two other sections of laws that once stood in this lacuna can now be

supplied from a considerably defaced tablet from Nippur in the University

Museum in Philadelphia, which once contained a part or all of the code of

Hammurapi. These sections are as follows:

A Bankrupt Law[464]

If a man borrows grain or money from a merchant and for the payment

has no grain or money, whatever is in his hand he shall in the

presence of the elders give to the merchant in place of the debt; the

merchant shall not refuse it; he shall receive it.

A Partnership Law[465]

If a man gives money to a man for a partnership, the gain and profit

that accrue are before the gods; together they shall do business.

The phrase “before the gods” means that the division shall be made on

oath. Commercial life was not sufficiently developed among the Hebrews so

that they needed such a law, consequently the Pentateuch contains no

parallel to this.

After the erasure of five columns the laws have to do with agents or

traveling salesmen.

Agents and Merchants

§ 100. [If an agent has received money from a merchant, he shall write

down the amount and the amount of] the interest on the money, and,

when the time has expired, he shall repay the merchant as much as he

has received.

§ 101. If where he goes he does not meet with success, the agent shall

double the amount of the money he received and return it to the

merchant.

§ 102. If a merchant gives money to an agent as a favor, and where he

goes he meets with misfortune, he shall restore the principal unto the

merchant.

§ 103. If on the road as he travels an enemy robs him of anything he

carries, the agent shall give an account of it under oath and shall be

innocent.

§ 104. If a merchant has given to an agent grain, wool, or oil, or

anything whatever to sell, the agent shall write down the price and

shall return the money to the merchant. The agent shall take a receipt

for the money which he gives to the merchant.

§ 105. If the agent is careless and does not take a receipt for the

money he gave the merchant, money not receipted for shall not be

placed to his account.

§ 106. If an agent receives money from a merchant and has a dispute

with his merchant about it, that merchant shall put the agent on trial

on oath before the elders concerning the money he received and the

agent shall pay the merchant three times as much as he received.

§ 107. If a merchant lends to an agent and the agent returns to the

merchant whatever the merchant had given him, if the merchant has a

dispute with him about it, that agent shall put the merchant on trial

on oath in the presence of the elders, and the merchant, because he

had a dispute with his agent, whatever he received he shall give to

the agent six times as much.

The Hebrews of the Old Testament time were not a commercial people and had

no such laws. Men today are inclined to think that the drummer, or

traveling salesman, is a modern invention, but these laws show that he was

an old institution in Babylonia four thousand years ago.

Wine Merchants

§ 108. If a woman who keeps a wine-shop does not receive grain as the

price of drink, but takes money of greater value, or makes the measure

of drink smaller than the measure of grain, that mistress of a

wine-shop they shall put on trial and into the water shall throw her.

§ 109. If the mistress of a wine-shop collects criminals in her house,

and does not seize these criminals and conduct them to the palace,

that mistress of a wine-shop shall be put to death.

§ 110. If the wife of a god (_i. e._, a consecrated temple-woman), who

is not living in the house appointed, opens a wine-shop or enters a

wine-shop for a drink, they shall burn that woman.

§ 111. If the mistress of a wine-shop gives 60 _Qa_ of _sakani_-plant

drink on credit at the time of harvest, she shall receive 50 _Qa_ of

grain.

The Old Testament affords no parallel. There were no wine-shops in Israel

so far as we know, and such consecrated women were prohibited by Deut.

23:17.

Deposits and Distraints

§ 112. If a man continually traveling has given silver, gold, precious

stones, or property to a man and has brought them to him for

transportation, and that man does not deliver that which was for

transportation at the place to which it was to be transported, but has

appropriated it, the owner of the transported goods shall put that man

on trial concerning that which was to be transported and was not

delivered, and that man shall deliver unto the owner of the

transported goods five times as much as was entrusted to him.

§ 113. If a man has grain or money deposited with a man and without

the consent of the owner he takes grain from the heap or the granary,

they shall prosecute that man because he took grain from the heap or

the granary without the consent of the owner, and the grain as much as

he took he shall return, and whatever it was he shall forfeit an equal

amount.

§ 114. If a man does not have against a man [a claim] for grain or

money and secures a warrant against him for debt, for each warrant he

shall pay ⅓ of a mana of money.

§ 115. If a man holds against a man [a claim] for grain or money and

secures a warrant against him for debt and the debtor dies through his

fate in the house of the creditor, that case has no penalty.

§ 116. If the debtor dies through violence or lack of care, the owner

of the debtor shall prosecute the merchant; if it was the son of a

man, his son shall be put to death; if the slave of a man, he shall

pay ⅓ of a mana of money, and whatever [the debt] was, he shall

forfeit as much.

Among the Hebrews, as among other ancient peoples, the poor at times

deposited their valuables with the more powerful for safekeeping. This was

natural before the invention of banks and safe deposit vaults.

The Hebrew law in Exod. 22:7-10 provides that if goods are given to

another man to keep and are stolen out of his house, the thief should, if

found, restore double the amount taken. If the thief was not found, the

owner of the house should be brought to God (so American R. V.)[466], _i.

e._, to the temple, where in some way (probably by lot) it was determined

whether he was guilty. If guilty, the owner of the house had to restore

twofold.

Somewhat parallel to the Babylonian laws which permit the imprisonment of

a debtor in one’s house is the Hebrew law that a poor debtor might become

a slave for six years (Exod. 21:2-6; Deut. 15:7-18). The Old Testament

laws are not quite uniform. In reality it is only that of Deuteronomy

which contemplates slavery in consequence of indebtedness; Exodus speaks

as though the slave might not be bought in any way. The important point

is that in Babylonia a man might be imprisoned for debt; in Israel he

might become a temporary slave.

As to the deposit of valuable property with a creditor for security, the

Hebrew law, while it shows that there were other kinds of pledges (Deut.

24:10, ff.), mentions but one kind. This was in the case of a man so poor

that he had to give his outer garment as security. The law provided that

this should be returned to him at night, since the poor peasants had no

other blankets than these garments. A hard-hearted creditor might, by

keeping the garment at night, risk the life of the debtor (Exod. 22:26,

27; Deut. 24:11-13).

Debts

§ 117. If a man is subjected to an attachment for debt and sells his

wife, son, or daughter, or they are given over to service, for three

years they shall work in the house of their purchaser or temporary

master; in the fourth year they shall be set free.

§ 118. If he binds to service a male or a female slave, and the

merchant transfers or sells him, he can establish no claim.

§ 119. If a man is subjected to an attachment for debt and sells a

maid-servant who has borne him children, the owner of the maid-servant

shall pay and shall release his maid-servant.

These laws are quite similar to Exod. 21:2-11 and Deut. 15:12-18.

The main differences are that the Hebrew law contemplates that a man may

enter slavery himself; the Babylonian only that he shall permit his wife,

son, or daughter to do it. The Hebrews released such slaves at the end of

six years;[467] the Babylonians at the end of three. Hebrew law

recognized, too, that a man might sell his daughter into slavery (Exod.

21:7-11), but it stipulated that her treatment should be different from

that of men. It recognizes that either her master or his son would be

likely to make her a real or a secondary wife. She was not to be released

at the end of seven years, but in case her master did not deal with her in

certain specified ways she regained her freedom regardless of her period

of service.

Storage of Grain

§ 120. If a man has stored his grain in heaps in the building of

another and an accident happens in the granary, or the owner of the

building has disturbed the heap and taken grain, or has disputed the

amount of grain that was stored in his building, the owner of the

grain shall give an account of his grain under oath, the owner of the

building shall double the amount of grain which he took and restore it

to the owner of the grain.

§ 121. If a man stores grain in a man’s building, he shall pay each

year 5 _Qa_ of grain for each _Gur_ of grain.

These laws have no Biblical parallel.

Deposits and Losses

§ 122. If a man gives to another on deposit silver or gold or anything

whatever, anything as much as he deposits he shall recount to

witnesses and shall institute contracts and make the deposit.

§ 123. If without witnesses and contracts he has placed anything on

deposit and at the place of deposit they dispute it, that case has no

penalty.

§ 124. If a man gives to another on deposit silver or gold or anything

whatever in the presence of witnesses and he disputes it, he shall

prosecute that man and he shall double whatever he disputed and shall

repay it.

§ 125. If a man places anything on deposit and at the place of deposit

either through burglary or pillage anything of his is lost, together

with anything belonging to the owner of the building, the owner of the

building who was negligent and lost what was given him on deposit

shall make it good and restore it to the owner of the goods. The owner

of the house shall institute a search for whatever was lost and take

it from the thief.

§ 126. If a man has not lost anything, but says he has lost something,

or files a claim as though he had lost something, he shall give

account of his claim on oath, and whatever he brought suit for he

shall double and shall give for his claim.

There is no mention in the laws of the Old Testament of this kind of

deposit, though, as already noted, it probably was sometimes practised.

Against Slandering Women

§ 127. If a man causes the finger to be pointed at the woman of a god

or the wife of a man and cannot prove it, they shall bring him before

the judges and they shall brand his forehead.

The nearest parallel to this in the Old Testament is in Deut. 22:13-21,

which is really quite a different law, for it applies only to cases where

men, when just married, slander their wives by charging them with previous

impurity. The Hebrew law provides a method of trial, a punishment for the

man, if guilty, and a much severer one for the woman, if the charge is

true. The two codes belong to quite a different legal development, as is

shown by the fact that the Babylonian law refers to “a woman of a god,”

_i. e._, one of the temple-women who, under certain religious rules,

represented in a concrete way the procreative power of the god.

This code recognizes several classes of these, as will appear later, but

Hebrew law forbade the existence of such women in Israel (Deut. 23:17).

Chastity, Marriage, and Divorce

§ 128. If a man takes a wife and does not execute contracts for her,

that woman is no wife.

§ 129. If the wife of a man is caught lying with another man, they

shall bind them and throw them into the water. If the husband of the

woman would let her live, or the king would let his subject live, he

may do so.

§ 130. If a man forces the betrothed wife of another who is living in

her father’s house and has not known a man, and lies in her loins and

they catch him, that man shall be put to death and that woman shall go

free.

§ 131. If the wife of a man is accused by her husband, and she has not

been caught lying with another man, she shall swear her innocence and

return to her house.

§ 132. If the finger has been pointed at the wife of a man because of

another man and she has not been caught lying with the other man, for

her husband’s sake she shall plunge into the sacred river.

§ 133. If a man is taken captive and there is food in his house, his

wife shall not go out from his house, her body she shall guard, into

the house of another she shall not enter. If that woman does not guard

her body and enters into the house of another, that woman they shall

prosecute and throw her into the water.

§ 134. If a man is taken captive and in his house there is no food,

and his wife enters into the house of another, that woman is not to

blame.

§ 135. If a man is taken captive and there is no food in his house and

his wife has openly entered into the house of another and borne

children, and afterwards her husband returns and reaches his city,

that woman shall return to her husband and the children shall follow

their father.

§ 136. If a man deserts his city and flees and after it his wife

enters into the house of another, if that man returns and would take

his wife, because he deserted his city and fled, the wife of the

fugitive shall not return to the house of her husband.

§ 137. If a man sets his face against a concubine who has borne him

children or a wife that has presented him with children, to put her

away, he shall return to that woman her marriage portion, and shall

give her the income of field, garden, and house, and she shall bring

up her children. From the time that her children are grown, from

whatever is given to her children, a portion like that of a son shall

be given to her, and the husband of her choice she may marry.

§ 138. If a man would put away his spouse who has not borne him

children, he shall give her silver equal to her marriage gift, and the

dowry which she brought from her father’s house he shall restore to

her and may put her away.

§ 139. If she had no dowry, he shall give her one mana of silver for a

divorce.

§ 140. If he belongs to the laboring class, he shall give her

one-third of a mana of silver.

§ 141. If the wife of a man who is living in the house of her husband

sets her face to go out and act the fool, her house neglects and her

husband belittles, they shall prosecute that woman. If her husband

says: “I divorce her,” he may divorce her. On her departure nothing

shall be given her for her divorce. If her husband does not say: “I

divorce her,” her husband may take another wife; that woman shall

dwell as a slave in the house of her husband.

§ 142. If a woman hates her husband and says: “Thou shalt not hold

me,” they shall make investigation concerning her into her defects. If

she has been discreet and there is no fault, and her husband has gone

out and greatly belittled her, that woman has no blame; she may take

her marriage-portion and go to her father’s house.

§ 143. If she has not been discreet, and has gone out and neglected

her house and belittled her husband, they shall throw that woman into

the water.

§ 144. If a man takes a priestess and that priestess gives a female

slave to her husband, and she has children; if that man sets his face

to take a concubine, they shall not favor that man. He may not take a

concubine.

§ 145. If a man takes a priestess and she does not present him with

children and he sets his face to take a concubine, that man may take a

concubine and bring her into his house. That concubine shall not rank

with the wife.

§ 146. If a man takes a priestess and she gives to her husband a

maid-servant and she bears children, and afterward that maid-servant

would take rank with her mistress; because she has borne children her

mistress may not sell her for money, but she may reduce her to bondage

and count her among the female slaves.

§ 147. If she has not borne children, her mistress may sell her for

money.

§ 148. If a man takes a wife and she is attacked by disease, and he

sets his face to take another, he may do it. His wife who was attacked

by disease he may not divorce. She shall live in the house he has

built and he shall support her as long as she lives.

§ 149. If that woman does not choose to live in the house of her

husband, he shall make good to her the dowry which she brought from

her father’s house and she may go away.

§ 150. If a man presents his wife with field, garden, house, or goods,

and gives to her sealed deeds, after her husband’s death her children

shall not press a claim against her. The mother after her death may

leave it to her child whom she loves, but to a brother she may not

leave it.

§ 151. If a wife who is living in the house of a husband has persuaded

her husband and he has bound himself that she shall not be taken by a

creditor of her husband; if that man had a debt against him before he

took that woman, the creditor may not hold that woman, and if that

woman had a debt against her before she entered the house of her

husband, her creditor may not hold her husband.

§ 152. If they become indebted after the woman enters the man’s house,

both of them are liable to the merchant.

§ 153. If a woman causes the death of her husband on account of

another man, that woman they shall impale.

§ 154. If a man has known his daughter, the city shall drive out that

man.

§ 155. If a man has betrothed a bride to his son and his son has known

her and he afterward lies in her loins and they catch him, they shall

bind that man and throw him into the water.

§ 156. If a man has betrothed a bride to his son and his son has not

known her and he lies in her loins, he shall pay her half a mana of

silver and restore to her whatever she brought from the house of her

father, and the man of her choice may marry her.

§ 157. If a man after his father’s death lies in the loins of his

mother, they shall burn both of them.

§ 158. If a man after his father’s death is admitted to the loins of

his chief wife who has borne children, that man shall be expelled from

the house of his father.

§ 159. If a man who has brought a present unto the house of his

father-in-law and has given a bride-price looks with longing upon

another woman, and says to his father-in-law: “Thy daughter I will not

take,” the father of the daughter shall keep whatever was brought to

him.

§ 160. If a man brings a present to the house of a father-in-law and

gives a bride-price, and the father of the daughter says: “I will not

give thee my daughter,” whatever was brought him he shall double and

restore it.

§ 161. If a man brings a present to the house of his father-in-law and

gives a bride-price, and his neighbor slanders him, and the father

says to the groom: “Thou shalt not take my daughter,” whatever was

brought he shall double and restore to him.

These Babylonian laws present numerous points of contact and of

divergence, when compared with the Biblical laws on the same subject.

There is no Biblical parallel to § 128. The law (§ 129) which imposes the

death penalty upon a man who commits adultery with another man’s wife and

upon the woman, finds an exact parallel in Lev. 20:10 and Deut. 22:22,

though the Biblical law, unlike the Babylonian, provides no way in which

clemency could be extended to the offenders.

The laws in §§ 130, 156, concerning the violation of betrothed virgins,

are in a general way paralleled by Lev. 19:20-22 and Deut. 22:23-26,

though there are such differences that, while the underlying principles

are the same, it is clear that there was entire independence of

development. A religious element enters into Leviticus that is entirely

absent from the Babylonian code. The Bible contains two laws on this

subject that are without parallel in the Babylonian code. These are found

in Exod. 22:16, 17 and Deut. 22:28, 29, and impose penalties for the

violation of virgins who were not betrothed. In both codes the principle

is manifest that the loss of a girl’s honor was to be compensated by

money, though Deut. 22:28, 29 recognizes that it has a value that money

cannot buy.

The laws relating to a wife whose fidelity is suspected (§§ 131, 132) find

a general parallel in Num. 5:11-28. The provision at the end of § 132 that

the wife should plunge into the sacred river is in the nature of trial by

ordeal. The law in Numbers imposes on such a woman trial by ordeal, though

it is of a different sort. She must drink water in which dust from the

floor of the sanctuary is mingled--dust surcharged with divine

potency--and if she does not swell up and die, she is counted innocent.

The laws which provide that a wife may present her husband with a

slave-girl as a concubine (§§ 137, 144-147) are without parallel in the

Biblical codes, but are strikingly illustrated by the patriarchal

narratives. Sarah gave Hagar to Abraham (Gen. 16); Rachel and Leah gave

Bilhah and Zilpah to Jacob (Gen. 30:1-13). The law (§ 146) which deals

with such a slave-girl who would rank with her mistress is closely

parallel to the story of the treatment of Hagar in Gen. 16:5-7 and 21:9,

10.

The laws on divorce (§§ 138-141) are really in advance of the one Biblical

law on the subject (Deut. 24:1-4). The law in Deuteronomy permits a

husband to put away a wife, who in any way does not please him, without

alimony, while to the wife no privilege of initiating divorce proceedings

is granted at all. The Babylonian laws secure to the divorced woman a

maintenance, and, while by no means according her equal rights with the

man, provide (§ 142) that she may herself initiate the proceedings for

divorce. The ordeal must have been an unpleasant one, but in Israel’s law

a woman had no such rights.[468]

The law concerning adultery with a daughter-in-law (§ 155) is identical in

purpose and severity with Lev. 20:12. The laws in §§ 157, 158, which

prohibit immorality with one’s mother or the chief wife of one’s father,

just touch upon the great subject of incest and the prohibited degrees of

marriage which are treated at considerable length in Lev. 18:6-18; 20:11,

19-21, and Deut. 22:30. The Babylonian laws touch but two specific cases,

which may be said to be covered by Deut. 22:30, while the laws of

Leviticus treat the whole subject of the prohibited degrees of marriage in

a broad and comprehensive way. The main idea pervading Leviticus is

holiness. Israel is to be kept free from the pollution of incest in any

form. The religious motive exhibited here is foreign to the Babylonian

code.

Inheritance

§ 162. It a man takes a wife and she bears him children and that woman

dies, her father may not lay claim to her dowry. Her dowry belongs to

her children.

§ 163. If a man takes a wife and she does not present him with

children and that woman dies; if his father-in-law returns unto him

the marriage-settlement, which that man brought to the house of the

father-in-law, unto the dowry of that woman her husband may not lay

claim. Her dowry belongs to the house of her father.

§ 164. But if his father-in-law does not return the

marriage-settlement unto him, he shall deduct from her dowry the

amount of the marriage-settlement, and then return the dowry to the

house of her father.

§ 165. If a man has presented to his son, the first in his eyes,

field, garden, or house, and written for him a sealed deed, and

afterward the father dies; when the brothers divide, he shall take the

present which his father gave him, and over and above they shall

divide the goods of the father’s house equally.

§ 166. If a man takes wives for the sons which he possesses, but has

not taken a wife for his youngest son, and afterward the father dies;

when the brothers divide, for their younger brother who does not have

a wife they shall present over and above his portion money for a

marriage-settlement, and shall enable him to take a wife.

§ 167. If a man takes a wife and she bears him children and that woman

dies, and after her he takes a second and she bears him children,

after the father dies, the children shall not share according to their

mothers. They shall receive the dowries of their respective mothers,

and the goods of their father’s house they shall share equally.

§ 168. If a man has set his face to cut off his son, and says to the

judges: “I will cut off my son,” the judges shall make investigation

concerning him; if the son has not committed a grave crime which cuts

off from sonship, the father may not cut off his son from sonship.

§ 169. If he has committed against his father a grave crime which cuts

off from sonship, he shall pardon him for the first offense. If he

commits a grave crime the second time, the father may cut off his son

from sonship.

§ 170. If a man’s wife bears him children and a slave-girl bears him

children, and the father during his lifetime says to the children

which the slave-girl bore him: “My children,” and counts them with the

children of the wife, after the father dies the children of the wife

and the children of the slave-girl shall divide equally the goods of

their father’s house. The sons that are sons of the wife shall at the

sharing divide and take.

§ 171. But if the father during his lifetime has not said unto the

children which the slave-girl bore him: “My children,” after the

father dies the children of the slave-girl shall not share with the

children of the wife. The slave-girl and her children shall be given

their freedom; the children of the wife may not put a claim upon the

children of the slave-girl for service. The wife shall receive her

dowry and a gift which her husband gave her and wrote upon a tablet

and may dwell in the dwelling of her husband as long as she lives and

eat. She may not sell it. After her it belongs to her children.

§ 172. If her husband has not given her a gift, they shall restore to

her her dowry and she shall receive from the goods of the house of her

husband the portion of one son. If the children abuse her in order to

drive her from the house, the judges shall investigate concerning her

and if they find the children in the wrong, that woman shall not go

from the house of her husband. If that woman sets her face to go out,

she shall leave with her children the gift which her husband gave her;

the dowry from the house of her father she shall receive and the

husband of her choice may take her.

§ 173. If that woman, where she has entered, bears children to her

later husband, after that woman dies the children of her first and her

later husband shall share her dowry.

§ 174. If she did not bear children to her later husband, the children

of her first husband shall receive her dowry.

§ 175. If a slave of the palace or the slave of a workingman takes the

daughter of a patrician and she bears children, the owner of the slave

shall have no claim for service on the children of the daughter of a

patrician.

§ 176. But if a slave of the palace or the slave of a workingman takes

the daughter of a patrician, and when he takes her she enters together

with the dowry from her father’s house into the house of the slave of

the palace or the slave of the workingman; if after they are united

they build a house and acquire property and afterward the slave of the

palace or the slave of the workingman dies, the daughter of the

patrician shall receive her dowry and they shall divide into two parts

whatever her husband and herself had acquired after their union. Half

the owner of the slave shall take, and the daughter of the patrician

shall receive half for her children. If the daughter of the patrician

had no dowry, whatever her husband and herself had acquired after

their union they shall divide into two parts. The owner of the slave

shall take half and the daughter of the patrician shall receive half

for her children.

§ 177. If a widow whose children are minors sets her face to enter the

house of a second husband, she shall not do it without the consent of

the judges. When she enters the house of a second husband, the judges

shall inquire into the estate of her former husband, and the estate of

the former husband they shall entrust to the second husband and to

that woman, and shall cause them to leave a tablet (receipt). The

estate they shall guard and rear the minors. The household goods they

may not sell. The purchaser of household goods belonging to the

children of a widow shall forfeit his money. The goods shall revert to

their owners.

§ 178. If there is a wife of a god, priestess, or sacred harlot, whose

father has given her a dowry and written her a record of gift, and in

the record of gift he has not written, “after her she may give it to

whomsoever she pleases,” and has not given her full discretion; after

her father dies her brothers shall take her field and garden, and

according to the value of her share they shall give her grain, oil,

and wool, and shall content her heart. If her brothers shall not give

her grain, oil, and wool, according to the value of her share, and

shall not content her heart, she may let her field and garden unto any

tenant she pleases and her tenant shall maintain her. Her field,

garden, or whatever her father gave her she may enjoy as long as she

lives. She may not sell it for money or transfer it to another. Her

heritage belongs to her brothers.

§ 179. If there is a wife of a god, priestess, or sacred harlot, whose

father has given her a dowry and written a record of gift; and in the

record of gift he has written, “after her she may give it to

whomsoever she pleases,” and has granted her full discretion; after

her father dies she may give it after her to whomsoever she pleases.

Her brothers have no claim upon her.

§ 180. If a father does not give a dowry to his daughter, a priestess

living in the appointed house, or a sacred harlot, after the father

dies she shall receive from the goods of her father’s house the same

share as one son, and as long as she lives she shall enjoy it. After

her it belongs to her brothers.

§ 181. If the father of a priestess, sacred harlot, or temple maiden

gives her to a god and does not give her a dowry, after the father

dies she shall receive from the goods of her father’s house a third of

the portion of a son and shall enjoy it as long as she lives. After

her it belongs to her brothers.

§ 182. If a father does not give a dowry to his daughter, a priestess

of Marduk of Babylon, and does not write a record of gift for her;

after her father dies she shall receive from the goods of her father’s

house one-third of the portion of a son, and shall pay no tax. A

priestess of Marduk after her death may leave it to whomsoever she

pleases.

§ 183. If a father presents a dowry to his daughter who is a

concubine, and gives her to a husband and writes a record of gift;

after the father dies she shall not share in the goods of her father’s

house.

§ 184. If a father does not present a dowry to his daughter who is a

concubine and does not give her to a husband; after her father’s death

her brothers shall give her a dowry according to the value of the

father’s estate and shall give her to a husband.

In comparison with these Babylonian laws of inheritance those in the Old

Testament are comparatively simple. We learn from Deut. 21:15-17, that a

man’s firstborn son received a “double portion” of his father’s estate,

_i. e._, twice as much as any other son. The inference is that the other

sons shared equally. This law also provides that, when a man has two

wives, the sons of the favorite wife shall have no advantage as to

inheritance over the sons of the less loved wife. In Num. 27:8-11 it is

provided that if a man has no son, his estate (_i. e._, real estate) may

go to his daughter; if he has no daughter, it may go to his brothers; if

no brothers, it goes to his father’s brothers. If his father has no

brothers, the estate is to go to the next of kin. In Num. 36:2-12 the law

that a daughter may inherit her father’s estate is supplemented by the

provision that such a daughter must marry within the tribe, so that the

landed property may not in the next generation pass out of the tribe.

Such were the Hebrew laws of inheritance. They apply to a much less

complexly organized society than the Babylonian.

§§ 168, 169 of Hammurapi’s code deal with the cutting off of a son. This

is paralleled in Deut. 21:18-21, though punishment inflicted by the law in

Deuteronomy is quite different from the Babylonian, since the Hebrew boy,

whose parents have proved him before the elders to be unworthy of sonship,

was not cast out and sent away, but stoned to death. Another form of this

law appears in Exod. 21:17.

Adoption

§ 185. If a man takes a young child in his name unto sonship and

brings him up, one may not bring a claim for that adopted son.

§ 186. If a man takes a young child unto sonship, and when he has

taken him he rebels against his [adopted] father and mother, that

foster-child shall return to his father’s house.

§ 187. One may not bring claim for the son of a temple-servant, a

palace guard, or of a sacred harlot.

§ 188. If an artisan takes a son to sonship and teaches him his

handicraft, one may not bring claim for him.

§ 189. If he does not teach him his handicraft, that foster-son may

return to the house of his father.

§ 190. If a man does not count among his sons a young child whom he

has taken to sonship and reared, that foster-child may return to his

father’s house.

§ 191. If a man who takes a young child to sonship and rears him and

establishes a house and acquires children, afterward sets his face to

cut off that foster-son, that son shall not go his way. The father who

reared him shall give him from his goods one-third the share of a son

and he shall go. From field, garden, or house, he shall not give him.

In the codes of the Old Testament there are no laws of adoption. The story

of the adoption of Ephraim and Manasseh by Jacob in Gen. 48 shows that the

idea was not unknown to the Hebrews, among whom the ceremony of adoption

would seem to have consisted of the act of acknowledging the children as

one’s own by placing one’s hands on their heads and giving them a paternal

blessing.

Renunciation of Sonship

§ 192. If the son of a temple-servant or the son of a sacred harlot

says to the father that brought him up or to the mother that brought

him up, “Thou art not my father,” or, “Thou art not my mother,” they

shall cut out his tongue.

§ 193. If the son of a temple-servant or the son of a sacred harlot

has identified his father’s house and hated the father who brought him

up or the mother who brought him up and goes back to his father’s

house, they shall pluck out his eye.

The Old Testament has no laws with which to compare these. The two classes

of persons whose children are mentioned were banished from Israel by Deut.

23:17, 18.

Wet-nurses or Foster-mothers

§ 194. If a man gives his son unto a nurse and his son dies in the

hands of the nurse and the nurse substitutes another child without the

consent of the father or the mother, they shall prosecute her; because

she substituted another child without the consent of his father or his

mother they shall cut off her breast.

This law also is without Biblical parallel.

Assault and Battery

§ 195. If a son strikes his father, they shall cut off his hand.

§ 196. If a man destroys the eye of the son of a patrician, they shall

destroy his eye.

§ 197. If he breaks a man’s bone, they shall break his bone.

§ 198. If one destroys the eye of a workingman or breaks the bone of a

workingman, he shall pay 1 mana of silver.

§ 199. If one destroys the eye of a man’s slave or breaks the bone of

a man’s slave, he shall pay half his value.

§ 200. If a man knocks out the tooth of a man of his own rank, they

shall knock his tooth out.

§ 201. If one knocks out the tooth of a workingman, he shall pay ⅓ of

a mana of silver.

§ 202. If a man shall strike the private-parts of a man who is of

higher rank than he, he shall receive sixty blows with an ox-hide

scourge in the assembly.

§ 203. If a patrician strikes the private-parts of a patrician of his

own rank, he shall pay 1 mana of silver.

§ 204. If a workingman strikes the private-parts of a workingman, he

shall pay 10 shekels of silver.

§ 205. If the slave of a patrician strikes the private-parts of the

son of a patrician, they shall cut off his ear.

§ 206. If a man strikes a man in a quarrel and wounds him, he shall

swear, “I did not strike with intent,” and shall pay for the

physician.

§ 207. If from the stroke he dies, he shall swear [as above], and if

it was a patrician, he shall pay ½ mana of silver.

§ 208. If it was a workingman, he shall pay ⅓ of a mana of silver.

§ 209. If a man strikes a man’s daughter and causes a miscarriage, he

shall pay 10 shekels of silver for her miscarriage.

§ 210. If that woman dies, they shall put his daughter to death.

§ 211. If through a stroke one causes a miscarriage of the daughter of

a workingman, he shall pay 5 shekels of silver.

§ 212. If that woman dies, he shall pay ½ mana of silver.

§ 213. If one strikes the slave-girl of a man and causes a

miscarriage, he shall pay 2 shekels of silver.

§ 214. If that slave-girl dies, he shall pay ⅓ of a mana of silver.

These laws are strikingly parallel to Exod. 21:18-27, to which Exod.

21:12-14 should be prefixed. The Babylonian code, like the Hebrew, imposes

the death penalty for wilful murder. Both codes provide that one who is an

accidental homicide shall escape the penalty, but they do it in different

ways. Hammurapi provides that the killer may take an oath that he did it

without intent to kill. Exod. 21:13, 14 provides that the homicide may

find sanctuary at the altar of God. In place of this Deut. 19:4, ff.,

provides that he may flee to a city of refuge.

If a man injures another in a fight, the Bible (Exod. 21:18, 19) provides

that he shall pay for the lost time and, as does Hammurapi, the cost of

healing the injured man. Exod. 21:22 provides, as does Hammurapi, for the

payment of a fine for causing a woman to miscarry, but Exodus does not,

like the Babylonian code, fix the amount of the damage; that is left to

the judges. In the laws concerning the injury of slaves the two codes

differ. Exodus provides (21:20, 21, 26, 27) for cases in which owners

injure or kill their own slaves; Hammurapi, for cases in which the injury

is done by others. A mere reading of the penalties imposed by the parts of

the Babylonian code translated above impresses vividly upon the mind the

fact that underlying many of them is the principle so forcibly expressed

in Exod. 21:21-25: “life for life, eye for eye, tooth for tooth, hand for

hand, foot for foot, burning for burning, wound for wound, stripe for

stripe.” The details of application are different, but the principle is

the same. Many of the differences were caused by the more complex nature

of Babylonian society, in which three classes, patricians, workingmen (or

semi-serfs), and slaves, existed. Hebrew law recognizes but two

classes--freemen and slaves.

Physicians

§ 215. If a physician operates upon a man for a severe wound with a

bronze lancet and saves the man’s life, or if he operates for cataract

with a bronze lancet and saves the man’s eye, he shall receive 10

shekels of silver.

§ 216. If it is a workingman, he shall receive 5 shekels of silver.

§ 217. If it is a man’s slave, the owner of the slave shall give the

physician 2 shekels of silver.

§ 218. If a physician operates upon a man with a bronze lancet for a

severe wound, and the man dies; or operates upon a man with a bronze

lancet for cataract and the man’s eye is destroyed, they shall cut off

his hand.

§ 219. If a physician operates with a bronze lancet upon the slave of

a workingman and causes his death, he shall restore a slave of equal

value.

§ 220. If he operates for cataract with a bronze lancet and destroys

his eye, he shall pay ½ his price.

§ 221. If a physician sets a broken bone for a man or has cured of

sickness inflamed flesh, the patient shall pay 5 shekels of silver to

the physician.

§ 222. If he is a workingman, he shall give 3 shekels of silver.

§ 223. If he is the slave of a patrician, the owner of the slave shall

give 3 shekels of silver to the physician.

§ 224. If an ox-doctor or an ass-doctor treats an ox or an ass for a

severe wound and saves its life, the owner of the ox or the ass shall

pay to the physician ⅙ of a shekel of silver as his fee.

§ 225. If he operates upon an ox or an ass for a severe wound and it

dies, he shall give unto the owner of the ox or the ass ¼ of its

value.

These laws about physicians have no parallel in the Old Testament, the

laws of which did not take account of the existence of doctors. They are

of interest, since they show the antiquity of physicians in Babylonia, not

only for men, but for animals. They also reveal the fact that the practice

of medicine in Babylonia was attended by some risks!

Herodotus (I, 197) declares that the Babylonians had no physicians, but

brought their sick out into the streets and asked of each passer-by

whether he had had a like sickness and what he had done for it. Possibly,

as among ourselves, there were many who did not wish to incur the expense

of a doctor, and who did as Herodotus reports, but these laws, and the

existence of physicians at Nineveh at the time of the later Assyrian

kings, make it probable that Herodotus was wrong as to their non-existence

at Babylon in his day.

Laws of Branding

§ 226. If a brander without the consent of the owner of a slave cuts a

mark on a slave, making him unsalable, they shall cut off the hands of

that brander.

§ 227. If a man deceives a brander and he brands a slave with a mark,

making him unsalable, they shall put that man to death and cause him

to perish in the gate of his house. The brander shall swear: “I did

not brand him knowingly” and shall go free.

These laws have no parallel in the Old Testament. Evidently the simpler

organization of Hebrew society made them unnecessary.

Responsibility of House-builders

§ 228. If a builder builds a house for a man and completes it, he

shall give him as his wages 2 shekels of silver for each _Shar_ of

house.

§ 229. If a builder builds a house for a man and does not make its

work strong and the house which he made falls and causes the death of

the owner of the house, that builder shall be put to death.

§ 230. If it causes the death of the son of the owner, the son of that

builder shall be put to death.

§ 231. If it causes the death of a slave of the owner of the house, a

slave like the slave he shall give to the owner of the house.

§ 232. If it destroys property, he shall restore whatever was

destroyed, and because he did not build the house strong and it fell,

he shall rebuild the house that fell from his own property.

§ 233. If a builder builds a house for a man and does not make his

work strong and a wall falls, that builder shall strengthen that wall

at his own expense.

These laws have no parallel in the Bible. Among the agricultural

population of Palestine builders were not a separate class. The penalties

inflicted by the Babylonian code were severe, and yet, if modern

legislators would put upon the house-builders of our time a similar

responsibility for good work, fewer lives would be sacrificed by falling

buildings.

Responsibility of Boatmen

§ 234. If a boatman builds a boat of 60 _Gur_ for a man, he shall give

him 2 shekels of silver as his wages.

§ 235. If a boatman builds a boat for a man and does not make his work

sound and in that year the boat is sent on a voyage and meets with

disaster, that boatman shall repair that boat and from his own goods

shall make it strong and shall give the boat in sound condition to the

owner of the boat.

§ 236. If a man gives his boat to a boatman for hire and the boatman

is careless and sinks or wrecks the boat, the boatman shall restore a

boat to the owner of the boat.

§ 237. If a man hires a boatman and a boat and loads it with grain,

wool, oil, dates, or any other kind of freight, and that boatman is

careless and sinks the boat or destroys its freight, the boatman shall

replace the boat and whatever there was in it which he destroyed.

§ 238. If a boatman sinks a man’s boat and re-floats it, he shall give

money for ½ its value.

§ 239. If a man hires a boatman, he shall give him 6 _Gur_ of grain a

year.

The Hebrews were not a maritime people, and had no such laws as these or

the following.

The Collision of Ships

§ 240. If a boat that is floating downstream strikes a boat that is

being towed and sinks it, the owner of the boat that was sunk shall

declare in the presence of a god everything that was in that boat and

[the owner] of the boat floating downstream, which sunk the boat that

was being towed, shall replace the boat and whatever was lost.

There is, naturally, nothing similar to this in the Old Testament.

Laws Concerning Cattle

§ 241. If a man levies a distraint upon an ox as security for debt, he

shall pay ⅓ of a mana of silver.

§ 242. If a man hires for a year, the wages of a working ox is 4 _Gur_

of grain.

§ 243. The hire of a milch cow, 3 _Gur_ of grain for a year he shall

give.

§ 244. If a man hires an ox or an ass and a lion kills it in the

field, the loss falls on the owner.

§ 245. If a man hires an ox and causes its death through neglect or

blows, he shall restore to the owner an ox of equal value.

§ 246. If a man hires an ox and crushes its foot or cuts the cord of

its neck, he shall restore to the owner an ox of like value.

§ 247. If a man hires an ox and destroys its eye, he shall pay to the

owner of the ox money to ½ its value.

§ 248. If a man hires an ox and breaks off its horn, or cuts off its

tail or injures the flesh which holds the ring, money to ¼ of its

value he shall pay.

§ 249. If a man hires an ox and a god strikes it and it dies, the man

who hires the ox shall take an oath in the presence of a god and shall

go free.

§ 250. If an ox when passing along the street gores a man and causes

his death, there is no penalty in that case.

§ 251. If the ox of a man has the habit of goring and they have

informed him of his fault and his horns he has not protected nor kept

his ox in, and that ox gores a man and causes his death, the owner of

the ox shall pay ½ mana of money.

§ 252. If it is the slave of a man, he shall pay ⅓ of a mana of money.

§ 253. If a man hires a man and puts him over his field and furnishes

him with seed-grain and intrusts him with oxen and contracts with him

to cultivate the field, if that man steals the seed-grain or the crop

and it is found in his possession, they shall cut off his hands.

§ 254. If he takes the seed-grain, but enfeebles the cattle, from the

grain which he has cultivated he shall make restoration.

§ 255. If he shall let the cattle to a man for hire, or steal the

seed-grain so that there is no crop, they shall prosecute that man,

and he shall pay 60 _Gur_ of grain for each _Gan_.

§ 256. If he is not able to meet his obligation, they shall tear him

in pieces in that field by means of the oxen.

The Biblical legislation corresponding to this is found in Exod. 21:28-35,

but it covers only a portion of the cases of which the Babylonian law

treats. It provides that, if an ox gores a man or a woman to death, the ox

shall be stoned. If the ox was wont to gore and the owner had not kept it

in, but it had been permitted to kill a man or a woman, the owner as well

as the ox should be stoned. At the discretion of the tribunal a fine or

ransom might be laid on the owner. In case the ox gored a slave, the

owner of the ox was to pay 30 shekels of silver and the ox was to be

stoned. If a man opened a pit and a neighbor’s ox or ass fell into it, the

digger of the pit must make good the loss to the owner of the animal, and

the dead beast became the property of the digger of the pit. If one man’s

ox killed the ox of another man, the two men were to sell the live ox and

divide the price. If it were known that the ox was wont to gore in the

past, and its owner had not kept it in, he was to pay ox for ox, and the

dead animal should be his.

It thus appears that the exigencies of Hebrew agricultural life were

different from those of Babylonia, and were naturally met in different

ways.

Wages of Laborers

§ 257. If a man hires a field-laborer, he shall pay him 8 _Gur_ of

grain per year.

§ 258. If a man hires a herdsman, he shall pay him 6 _Gur_ of grain

per year.

Hebrew law did not regulate wages.

On Stealing Farming-tools

§ 259. If a man steals a watering-machine from a field, he shall pay

to the owner of the watering-machine 5 shekels of silver.

§ 260. If a man steals a watering-bucket or a plow, he shall pay 3

shekels of silver.

As the Hebrews did not systematically irrigate their land, the Old

Testament contains no similar laws.

Laws Concerning Shepherds

§ 261. If a man hires a herdsman to tend cattle or sheep, he shall pay

him 8 _Gur_ of grain per year.

§ 262. If a man, oxen, or sheep ..............

(The rest is broken away.)

§ 263. If he loses an ox or a sheep that is intrusted to him, he shall

restore ox for ox and sheep for sheep.

§ 264. If a herdsman who has had cattle or sheep intrusted to him

receives his full pay and is satisfied, and he causes the cattle or

the sheep to diminish in number or lessens the birth-rate, he shall

give increase and produce according to his contracts.

§ 265. If a shepherd to whom cattle or sheep have been given to tend

is dishonest and alters the price or sells them, they shall prosecute

him, and he shall restore to their owner 10 times the oxen or sheep

which he stole.

§ 266. If in a fold there is a pestilence of a god, or a lion has

slain, the shepherd shall before a god declare himself innocent, and

the owner of the fold shall bear the loss of the fold.

§ 267. If the shepherd is careless and causes a loss in the fold, the

shepherd shall make good in cattle or sheep the loss which he caused

in the fold and shall give them to the owner.

The nearest approach in the Old Testament to laws of this character is in

Exod. 22:10-13, which provides that, if a man deliver to his neighbor an

ox, or ass, or sheep, or any beast to keep, and it dies, or is injured or

is carried off when no one sees the deed, the oath of Jehovah shall be

between them that the keeper has not put his hand to his neighbor’s goods.

The owner was to accept this, and no restitution was necessary. If the

animals were stolen from the keeper, he must make restitution. If they

were torn in pieces by beasts of prey, he must bring the pieces for

witness, and need not make restitution.

The same general principles of the limits of responsibility underlay the

two codes in these cases, though they differ in details. In Israel the

shepherding of the flocks and herds of other people was not, as in

Babylonia, a distinct occupation.

On Wages of Animals and Men

§ 268. If a man hires an ox for threshing, 20 _Qa_ of grain is its

hire.

§ 269. If he hires an ass for threshing, 10 _Qa_ of grain is its hire.

§ 270. If he hires a kid for threshing, 1 _Qa_ of grain is its hire.

§ 271. If he hires cattle, a wagon and a driver, he shall pay 180 _Qa_

of grain per day.

§ 272. If a man hires a wagon only, he shall pay 40 _Qa_ of grain per

day.

§ 273. If a man hires a field-laborer from the beginning of the year

until the fifth month, he shall pay him 6 _She_ of silver per day;

from the sixth month to the end of the year, 5 _She_ of silver per day

he shall pay.

§ 274. If a man hires an artisan, he shall give per day as the wages

of a ..... 5 _She_; as the wages of a brick-maker, 5 _She_ of money;

as the wages of a tailor, 5 _She_ of silver; as the wages of a

stone-cutter, ...... _She_ of silver; ............ _She_ of silver;

............ _She_ of silver; ............ of a carpenter, 4 _She_ of

silver; as the wages of a ...... 4 _She_ of silver; as the wages of a

...... _She_ of silver; the wages of a builder, ...... _She_ of

silver.

§ 275. If a man hires a boat (?) to go upstream (?), its hire is 3

_She_ of silver per day.

§ 276. If he hires a boat to float downstream, he shall pay as its

hire 2½ _She_ of silver per day.

§ 277. If a man hires a boat of 60 _Gur_ burden, he shall pay ⅙ of a

shekel of money per day.

There are no parallels to these laws in the Bible, as the Old Testament

does not attempt to regulate prices. When one considers the customs of

trade all over the Orient, and the time fruitlessly consumed in making

bargains, one does not wonder that the practical sovereign of a great

commercial people, such as the Babylonians were, should regulate prices by

law. As a rule, to this day, a purchaser begins by offering only a

fraction of what he is willing to give, and the seller by asking at least

twice as much as he is willing to take. A long psychological battle

follows, during which there are many victories and capitulations on each

side. This law was designed to put an end to this time-consuming custom.

When the Sales of Slaves are Void

§ 278. If a man buys a male or a female slave and before a month is

past he has an attack of rheumatism (?), he shall return to the

seller, and the purchaser shall receive back the money that was paid.

§ 279. If a man buys a male or a female slave, and another has a legal

claim upon him, the seller shall be responsible for that claim.

§ 280. If a man, while in a foreign country, purchases a male or a

female slave of a man, and, when he returns home, the former owner of

the male or the female slave recognizes his slave, if that male or

female slave is a native of the land, he shall give it its freedom

without recompense.

§ 281. If they are natives of another country, the purchaser shall

declare in the presence of a god the price that he paid, and the

former owner of the male or female slave shall pay the price to the

merchant, and shall receive back his slave.

No laws similar to these are found in the Old Testament.

The Penalty for Renouncing a Master

§ 282. If a slave shall say to his owner: “Thou art not my owner,”

they shall make him submit as his slave, and shall cut off his ear.

This penalty reminds one of the boring of a slave’s ear (Exod. 21:6; Deut.

15:17) in token of perpetual slavery.

=2. The Mosaic Code not Borrowed from the Babylonian; Different Underlying

Conceptions.=

A comparison of the code of Hammurapi as a whole with the Pentateuchal

laws as a whole, while it reveals certain similarities, convinces the

student that the laws of the Old Testament are in no essential way

dependent upon the Babylonian laws. Such resemblances as there are arose,

it seems clear, from a similarity of antecedents and of general

intellectual outlook; the striking differences show that there was no

direct borrowing. The primitive Semitic custom of an eye for an eye and a

tooth for a tooth (Exod. 21:24; Lev. 24:20; Deut. 19:21) is made the basis

of many penalties in the Babylonian code. (See §§ 196, 197, 200, 229, 230,

etc.) The principle underlying it is found also in many other sections.

These similarities only show that Babylonia had a large Semitic element in

its population. Again, Hammurapi pictured himself at the top of the pillar

on which these laws are written as receiving them from the sun-god (Fig.

292). The Bible tells us that Moses received the laws of the Pentateuch

from Jehovah. The whole attitude of the two documents is, however,

different. Hammurapi, in spite of the picture, takes credit, both in the

prologue and in the epilogue of his code, for the laws. He, not Shamash,

established justice in the land. Moses, on the other hand, was only the

instrument; the legislation stands as that of Jehovah himself.

This difference appears also in the contents of the two codes. The

Pentateuch contains many ritual regulations and purely religious laws,

while the code of Hammurapi is purely civil. As has been already pointed

out, the code of Hammurapi is adapted to the land of the rivers, and to a

highly civilized commercial people, while the Biblical laws are intended

for a dry land like Palestine, and for an agricultural community that was

at a far less advanced stage of commercial and social development.

Religion is, however, not a matter of social advancement only. In all that

pertains to religious insight the Pentateuch is far in advance of

Hammurapi’s laws.