The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples: The Schweich LecturesJohns, C. H. W. (Claude Hermann Walter)
History
The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples: The Schweich Lectures
Johns, C. H. W. (Claude Hermann Walter)
Jewish law; Law -- Iraq -- Babylonia
Thus far common human experience and its dictates. As a responsible man
and the head of his family, the debtor, at least among the Semites, had
power over the labour of the other members of his family. There may be
peoples where this power does not exist, if so, the power may be called
a Semitic trait. But in both the Code of Hammurabi and the Book of the
Covenant we have some reason to suppose the debtor would have power to
offer not only his own labour but that of his wife, often the better
worker of the two, or that of a son or daughter, or of a slave, as well
as or instead of his own. Exactly how far his power over the members of
his own household extended may be set down, if we chose, as depending
upon Semitic custom, if we can show that this extent of power is common
to all Semites, at any rate in early times, and is not shared with
non-Semitic folk. The parallels in Roman law do show that it did not
remain exclusively Semitic, unless it be held that the Twelve Tables
were so influenced by Eastern civilization as to have derived this
feature ultimately from a Semitic source. It was probably Sumerian also,
but there we may perhaps derive it from an early Semitic source. At any
rate we do find it common to both Babylonia and Israel, whether they
derived it from a common source or obtained it independently.
Now how long shall the debtor or his hostage serve the creditor to pay
off the debt? The creditor might well say in the case of a slave, who in
practice was often taken as an antichretic pledge for a loan, his labour
being supposed to pay the interest on the loan without affecting the
capital, that he had a right to keep him always. Theoretically this was
true if the loan was about the value of the slave. It would practically
be accepting the slave as a payment of the loan. The value of a slave
was often very little in excess of the cost of keeping him, feeding,
clothing, and housing him. Indeed, he was even an anxiety after he
became adult. The owner usually did wisely in providing him with a
slave-girl for wife and so breeding a family of slaves, who after they
had been kept to adult age might be sold profitably. But even this was a
speculation, and at the best not a very profitable business. The
creditor who accepted the debtors slave as a hostage for debt usually
took the opportunity of a sale to pass him on. A slave-girl had other
uses than her work and was usually more saleable. Hence she was more
likely to be accepted and offered as a hostage.
The Code of Hammurabi here steps in with a remarkable set of
restrictions upon the freedom of action of the debtor and creditor. The
debtor cannot complain if the creditor sells the slave given him as
hostage. But if it is a slave-girl who has borne children to the debtor,
she cannot be sold. She may be pledged or given to work off a debt, but
not alienated by the creditor (§ 118).
Public-domain text, read in full here on John Shaqi.
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