THE LESSER LAW (continued).
PART II.--RIGHTS OF THE
PERSON.
Exo 21:1-32.
The first words of God from Sinai had declared that He was
Jehovah Who brought them out of slavery. And in this remarkable
code, the first person whose rights are dealt with is the slave. We
saw that a denunciation of all slavery would have been premature,
and therefore unwise; but assuredly the germs of emancipation were
already planted by this giving of the foremost place to the rights
of the least of all and the servant of all.
As regards the Hebrew slave, the effect was to reduce his utmost
bondage to a comparatively mild apprenticeship. At the worst he
should go free in the seventh year; and if the year of jubilee
intervened, it brought a still speedier emancipation. If his debt or
misconduct had involved a family in his disgrace, they should also
share his emancipation, but if while in bondage his master had
provided for his marriage with a slave, then his family must await
their own appointed period of release. It followed that if he had
contracted a degrading alliance with a foreign slave, his freedom
would inflict upon him the pang of final severance from his dear
ones. He might, indeed, escape this pain, but only by a deliberate
and humiliating act, by formally renouncing before the judges his
liberty, the birthright of his nation ("they are My servants, whom I
brought forth out of Egypt, they shall not be sold as
bondservants"-- Lev 25:42), and submitting to have his ear pierced,
at the doorpost of his master's house, as if, like that, his body
were become his master's property. It is uncertain, after this
decisive step, whether even the year of jubilee brought him release;
and the contrary seems to be implied in his always bearing about in
his body an indelible and degrading mark. It will be remembered that
St. Paul rejoiced to think that his choice of Christ was practically
beyond recall, for the scars on his body marked the tenacity of his
decision (Gal 6:17). He wrote this to Gentiles, and used the Gentile
phrase for the branding of a slave. But beyond question this Hebrew
of Hebrews remembered, as he wrote, that one of his race could incur
lifelong subjection only by a voluntary wound, endured because he
loved his master, such as he had received for love of Jesus.
When the law came to deal with assaults it was impossible to
place the slave upon quite the same level as the freeman. But Moses
excelled the legislators of Greece and Rome, by making an assault or
chastisement which killed him upon the spot as worthy of death as if
a freeman had been slain. It was only the victim who lingered that
died comparatively unavenged (Exo 21:20-21). After all, chastisement
was a natural right of the master, because he owned him ("he is his
money"); and it would be hard to treat an excess of what was
permissible, inflicted perhaps under provocation which made some
punishment necessary, on the same lines with an assault that was
entirely lawless. But there was this grave restraint upon bad
temper,--that the loss of any member, and even of the tooth of a
slave, involved his instant manumission. And this carried with it
the principle of moral responsibility for every hurt (Exo 21:26-27).
It was not quite plain that these enactments extended to the
Gentile slave. But in accordance with the assertion that the whole
spirit of the statutes was elevating, the conclusion arrived at by
the later authorities was the generous one.
When it is added that man-stealing (upon which all our modern
systems of slavery were founded) was a capital offence, without
power of commutation for a fine (Exo 21:16), it becomes clear that
the advocates of slavery appeal to Moses against the outraged
conscience of humanity without any shadow of warrant either from the
letter or the spirit of the code.
There remains to be considered a remarkable and melancholy
sub-section of the law of slavery.
In every age degraded beings have made gain of the attractions of
their daughters. With them, the law attempted nothing of moral
influence. But it protected their children, and brought pressure to
bear upon the tempter, by a series of firm provisions, as bold as
the age could bear, and much in advance of the conscience of too
many among ourselves today.
The seduction of any unbetrothed maiden involved marriage, or the
payment of a dowry. And thus one door to evil was firmly closed (Exo
22:16).
But when a man purchased a female slave, with the intention of
making her an inferior wife, whether for himself or for his son
(such only are the purchases here dealt with, and an ordinary female
slave was treated upon the same principles as a man), she was far
from being the sport of his caprice. If indeed he repented at once,
he might send her back, or transfer her to another of her countrymen
upon the same terms, but when once they were united she was
protected against his fickleness. He might not treat her as a
servant or domestic, but must, even if he married another and
probably a chief wife, continue to her all the rights and privileges
of a wife. Nor was her position a temporary one, to her damage, as
that of an ordinary slave was, to his benefit.
And if there was any failure to observe these honourable terms,
she could return with unblemished reputation to her father's home,
without forfeiture of the money which had been paid for her (Exo
21:7-11).
Does any one seriously believe that a system like the African
slave trade could have existed in such a humane and genial
atmosphere as these enactments breathed? Does any one who knows the
plague spot and disgrace of our modern civilisation suppose for a
moment that more could have been attempted, in that age, for the
great cause of purity? Would to God that the spirit of these
enactments were even now respected! They would make of us, as they
have made of the Hebrew nation unto this day, models of domestic
tenderness, and of the blessings in health and physical vigour which
an untainted life bestows upon communities.
By such checks upon the degradation of slavery, the Jew began to
learn the great lesson of the sanctity of manhood. The next step was
to teach him the value of life, not only in the avenging of murder,
but also in the mitigation of such revenge. The blood-feud was too
old, too natural a practice to be suppressed at once; but it was so
controlled and regulated as to become little more than a part of the
machinery of justice.
A premeditated murder was inexpiable, not to be ransomed; the
murderer must surely die. Even if he fled to the altar of God,
intending to escape thence to a city of refuge when the avenger
ceased to watch, he should be torn from that holy place: to shelter
him would not be an honour, but a desecration to the shrine (Exo
21:12, Exo 21:14). According to this provision Joab and Adonijah
suffered. For the slayer by accident or in hasty quarrel, "a place
whither he shall flee" would be provided, and the vague phrase
indicates the antiquity of the edict (Exo 21:13). This arrangement
at once respected his life, which did not merit forfeiture, and
provided a penalty for his rashness or his passion.
It is because the question in hand is the sanctity of man, that
the capital punishment of a son who strikes or curses a parent, the
vicegerent of God, and of a kidnapper, is interposed between these
provisions and minor offences against the person (Exo 21:15-17).
Of these latter, the first is when lingering illness results from
a blow received in a quarrel. This was not a case for the stern
rule, eye for eye and tooth for tooth,--for how could that rule be
applied to it?--but the violent man should pay for his victim's loss
of time, and for medical treatment until he was thoroughly recovered
(Exo 21:18-19).
But what is to be said to the general law of retribution in kind?
Our Lord has forbidden a Christian, in his own case, to exact it.
But it does not follow that it was unjust, since Christ plainly
means to instruct private persons not to exact their rights, whereas
the magistrate continues to be "a revenger to execute justice." And,
as St. Augustine argued shrewdly, "this command was not given for
exciting the fires of hatred, but to restrain them. For who would
easily be satisfied with repaying as much injury as he received? Do
we not see men slightly hurt athirst for slaughter and blood?...
Upon this immoderate and unjust vengeance, the law imposed a just
limit, not that what was quenched might be kindled, but that what
was burning might not spread." (Cont. Faust, xix. 25.)
It is also to be observed that by no other precept were the Jews
more clearly led to a morality still higher than it prescribed.
Their attention was first drawn to the fact that a compensation in
money was nowhere forbidden, as in the case of murder (Num 35:31).
Then they went on to argue that such compensation must have been
intended, because its literal observance teemed with difficulties.
If an eye were injured but not destroyed, who would undertake to
inflict an equivalent hurt? What if a blind man destroyed an eye?
Would it be reasonable to quench utterly the sight of a one-eyed man
who had only destroyed one-half of the vision of his neighbour?
Should the right hand of a painter, by which he maintains his
family, be forfeited for that of a singer who lives by his voice?
Would not the cold and premeditated operation inflict far greater
mental and even physical suffering than a sudden wound received in a
moment of excitement? By all these considerations, drawn from the
very principle which underlay the precept, they learned to relax its
pressure in actual life. The law was already their schoolmaster, to
lead them beyond itself (vide Kalisch in loco).
Lastly, there is the question of injury to the person, wrought by
cattle.
It is clearly to deepen the sense of reverence for human life,
that not only must the ox which kills a man be slain, but his flesh
may not be eaten; thus carrying further the early aphorism "at the
hand of every beast will I require ... your blood" (Gen 9:5). This
motive, however, does not betray the lawgiver into injustice: "the
owner of the ox shall be quit"; the loss of his beast is his
sufficient penalty.
But if its evil temper has been previously observed, and he has
been warned, then his recklessness amounts to blood-guiltiness, and
he must die, or else pay whatever ransom is laid upon him. This last
clause recognises the distinction between his guilt and that of a
deliberate man-slayer, for whose crime the law distinctly prohibited
a composition (Num 35:31).
And it is expressly provided, according to the honourable
position of woman in the Hebrew state, that the penalty for a
daughter's life shall be the same as for that of a son.
As a slave was exposed to especial risk, and his position was an
ignoble one, a fixed composition was appointed, and the amount was
memorable. The ransom of a common slave, killed by the horns of the
wild oxen, was thirty pieces of silver, the goodly price that
Messiah was prized at of them (Zec 11:13).
PART III.--RIGHTS OF
PROPERTY.
Exo 21:33 - Exo 22:15.
The vital and quickening principle in this section is the stress
it lays upon man's responsibility for negligence, and the indirect
consequences of his deed. All sin is selfish, and all selfishness
ignores the right of others. Am I my brother's keeper? Let him guard
his own property or pay the forfeit. But this sentiment would
quickly prove a disintegrating force in the community, able to
overthrow a state. It is the ignoble negative of public spirit;
patriotism, all by which nations prosper. And this early legislation
is well devised to check it in detail. If an ox fall into a pit or
cistern, from which I have removed the cover, I must pay the value
of the beast, and take the carcase for what it may be worth. I ought
to have considered the public interest (Exo 21:33). If I let my
cattle stray into my neighbour's field or vineyard, there must be no
wrangling about the quality of what he has consumed: I must forfeit
an equal quantity of the best of my own field or vineyard (Exo
22:5). If a fire of my kindling burn his grain, standing or piled, I
must make restitution: I had no right to kindle it where he was
brought into hazard (Exo 22:6). This is the same principle which had
already pronounced it murder to let a vicious ox go loose. And it
has to do with graver things than oxen and fires,--with the teachers
of principles rightly called incendiary, the ingenious theorists who
let loose abstract speculations pernicious when put into practice,
the well-behaved questioners of morality, and the law-abiding
assailants of the foundations which uphold law.
It is quite in the same spirit that I am accountable for what I
borrow or hire, and even for its accidental death (since for the
time being it was mine, and so should the loss be); but if I hired
the owner with his beast, it clearly continued to be in his charge (Exo
22:14-15). But again, my responsibility may not be pressed too far.
If I have not borrowed property, but consented to keep it for the
owner, the risk is fairly his, and if it be stolen, the presumption
is not against my integrity, although I may be required to clear
myself on oath before the judges (Exo 22:7-8). But I am accountable
in such a case for cattle, because it was certainly understood that
I should watch them; and if a wild beast have torn any, I must prove
my courage and vigilance by rescuing the carcase and producing it (Exo
22:10-13).
But I must not be plunged into litigation without a compensating
hazard on the other side: he whom God shall condemn shall pay double
unto his neighbour (Exo 22:9).
It only remains to be observed, with regard to theft, that when
cattle was recovered yet alive, the thief restored double, but when
his act was consummated by slaughtering what he had taken, then he
restored a sheep fourfold, and for an ox five oxen, because his
villainy was more high-handed. And we still retain the law which
allows the blood of a robber at night to be shed, but forbids it in
the day, when help can more easily be had.
All this is reasonable and enlightened law; founded, like all
good legislation, upon clear and satisfactory principles, and well
calculated to elevate the tone of the public feeling, to be not only
so many specific enactments, but also the germinant seeds of good.