Exodus 21 COMMENTARY (Ellicott)

XXI.

LAWS CONCERNING THE RIGHTS OF PERSONS.

(1) These are the judgments.—“The laws” (Knobel), “the rights” (Keil), “the rules which shall guide judicial decisions” (Pool). The paraphrase alone gives the full meaning.

(2) If thou buy an Hebrew servant.—Ancient society was founded upon slavery. “The ultimate elements of the household,” says Aristotle, “are the master and his slave, the husband and his wife, the father and his children” (Pol. i. 2, § 1). In any consideration of the rights of persons, those of the slave class naturally presented themselves first of all, since they were the most liable to infraction. Slaves might be either natives or foreigners. A Hebrew could become a slave—(1) through crime (Exodus 22:3); (2) through indebtedness (Leviticus 25:39); (3) through his father’s right to sell him (Nehemiah 5:5). Foreign slaves might be either prisoners taken in war, or persons bought of their owners (Leviticus 25:45). The rights of Hebrew slaves are here specially considered.

Six years shall he serve.—The Hebrew was not to be retained in slavery for a longer space than six years. If a jubilee year occurred before the end of the six years, then he regained his freedom earlier (Leviticus 25:39-41); but in no case could he be retained more than six years in the slave condition, except by his own consent, formally given (Exodus 21:5). This law was an enormous advance upon anything previously known in the slave legislation of the most civilised country, and stamps the Mosaic code at once as sympathising with the slave, and bent on ameliorating his lot. It has been thought strange by some that slavery was not now abrogated; but even Christianity, fifteen hundred years later, did not venture on so complete a social revolution.

(3) His wife shall go out with him.—The privilege of the married Hebrew slave was to attach also to his wife, if he was married when he became a slave. It further, no doubt, attached to his children.

(4) If his master have given him a wife.—If, however, the Hebrew slave, being previously unmarried, had been allowed by his master to take to wife one of his female slaves, then, when the husband claimed his freedom the wife could not claim hers. Both she and her children remained in the slave condition.

(5) And if.—Better, But if.

I love my master.—Under every system of slavery affection grows up between the slaves and a master who is indulgent to them. At Rome it was common for slaves to endure the severest torture rather than betray or accuse their owners. If a man has no rights, he is thankful for small mercies, and responds with warm feeling to those who treat him kindly. As the Hebrew form of slavery was of a mild type, masters being admonished to treat their slaves “not as bondservants, but as hired servants” (Leviticus 25:39-40), and, again, “not to rule over them with rigour” (Leviticus 25:46), there would naturally be frequent cases where the slave would not wish to “go out.” He might actually “love his master;” or he might value the security from want which attaches to the slave condition; or he might be unwilling to break up the family which, by his master’s favour, he had been allowed to create. For such cases some provision was necessary. It was made by the law here formulated (Exodus 21:5-6), which allowed the Hebrew slave, if he liked, to forfeit all claim to freedom, and take upon him permanently the condition of a bondman.

(6) His master shall bring him unto the judges.—A formal act was necessary. The State must sanction the passing of a citizen into the slave condition, and so the “judges” were called in. The change was to be made by a significant ceremony. In order to mark that henceforth the volunteer bondman became attached to the household, he was to be physically attached to the house by having an awl forced through his ear, and then driven into the door or door-post. Hence “opening the ear” became a synonym for assigning a man to the slave condition in perpetuity (Psalm 40:6). The word used for “judges” is ha-Elohim, “the gods,” or “the exalted ones,” which has the same sense in Exodus 22:8-9.

(7) If a man sell his daughter to be a maidservant.—The right of selling their children into slavery was regarded in ancient times as inherent in the patria potestas, and was practised largely by many nations (Herod. v. 6; Heyne, Opusc., vol. iv., p. 125). Among the Hebrews such sales were, comparatively speaking, rare; but still they occasionally took place, in consequence of extreme poverty (Nehemiah 5:5). Women sold in this way might claim their freedom at the end of six years if they chose (Deuteronomy 15:17); but if purchased to be wives, they received a further protection. If the intention were carried out, they were to be entitled to the status of wives during their whole lifetime, even though their husbands contracted further marriages (Exodus 21:10). If, instead of becoming the wife of her purchaser, a woman was made over by him to his son, she was to enjoy all the rights of a daughter (Exodus 21:9). If the purchaser declined to act in either of these two ways, he was compelled to take one of two other courses. Either he must get another Hebrew to discharge his obligation of marriage (Exodus 21:8), or he must return the maid intact to her father, without making any demand for the restitution of the purchase-money (Exodus 21:11). These provisions afforded a considerable protection to the slave-concubine, who might otherwise have been liable to grievous wrong and oppression.

(8) Who hath betrothed her to himself.—The reading is to be preferred which gives the opposite sense—“who hath not betrothed her;” and the meaning is, “If the man, after purchasing the woman to be his wife, finds that he does not like her, and refuses to go through the ceremony of betrothal”—

Then shall he let her be redeemed.—Heb., then let him cause her to be redeemed: i.e., let him provide some one to take his place, and carry out his contract, only taking care that the substitute be a Hebrew, and not one of “a strange nation,” since her father did not intend to have her wed a foreigner.

(10) If he take him another wife.—Polygamy is viewed as lawful in this passage, as elsewhere generally in the Mosaic Law, which did not venture to forbid, though to some extent discouraging it. The legislator was forced to allow many things to the Hebrews, “for the hardness of their hearts” (Matthew 19:8).

Her duty of marriage.—Rather, her right of cohabitation.

(11) These three—i.e., one of these three things: (1) Espouse her himself; (2) marry her to his son; or (3) transfer her, on the terms on which he received her, to another Hebrew.

(12-14) He that smiteth a man, so that he die.—Homicide had been broadly and generally forbidden in the sixth commandment. But something more was necessary. Laws are for the most part inoperative unless they are enforced by penalties; and for every case of homicide the same penalty would not be fitting. Accordingly we have here, first, the assignment of the death penalty for homicide of the first degree, i.e., murder; and secondly, the provision of a refuge for homicide of the second degree, i.e., manslaughter, or death by misadventure. The death penalty for murder had already received Divine sanction in the injunctions given to Noah (Genesis 9:6). Tradition, backed up by conscience, had made it an almost universal law. The Sinaitic legislation adopted the law into the national code, and lent it additional force by the proviso, which we know to have been carried out in practice (1 Kings 2:28-34), that the

Murderer was even to be torn from God’s altar, if he took refuge there.

(13) If a man lie not in wait, but God deliver him into his hand.—If, that is, without malice aforethought, a man happen upon his enemy, God’s providence bringing the two into contact without man’s contrivance, and the result is that one slay the other, then the law of the refuge or asylum shall come in. A place is to be provided whither the man-slayer may flee, and where he may be safe, at any rate until the cause is inquired into. Hitherto, throughout the East, it had been regarded as the duty of the next of kin to avenge homicide of whatever kind, and blood had been exacted for blood, however sudden, however provoked, however excusable had been the homicide. No right of asylum, so far as we know, had ever been established before. The Sinaitic legislation for the first time interposed the “city of refuge,” between the “avenger of blood” and his victim. It was for the elders of the city to see that the privilege was not abused. Where the case was doubtful, the man-slayer had to be remitted for trial to the elders of his own town (Numbers 35:22-25); where the elders considered his claim made out, he was entitled to protection.

(14) If a man come presumptuously.—Rather, if a man come maliciously, or with premeditation. (Vulg., de industria.)

Thou shalt take him from mine altar.—Comp. 1 Kings 2:28-34. In most parts of the ancient world a scruple was felt about putting criminals to death when once they had taken sanctuary, and those who did so were regarded as accursed (Herod. v. 71, 72; Thucyd. i. 126; Plut. Vit. Sol., § 12). The Mosaic Law regarded this scruple as a superstition, and refused to sanction it.

(15-17) And he that smiteth his father . . .-With homicide are conjoined some other offences, regarded as of a heinous character, and made punishable by death: viz. (1), striking a parent; (2) kidnapping; and (3) cursing a parent. The immediate sequence of these crimes upon murder, and their punishment by the same penalty, marks strongly God’s abhorrence of them. The parent is viewed as God’s representative, and to smite him is to offer God an insult in his person. To curse him implies, if possible, a greater want of reverence; and, since curses can only be effectual as appeals to God, it is an attempt to enlist God on our side against His representative. Kidnapping is a crime against the person only a very little short of murder, since it is to deprive a man of that which gives life its chief value—liberty. Many a man would prefer death to slavery; and to almost all the passing into the slave condition would be a calamity of the most terrible kind, Involving life-long misery. Its suddenness and unexpectedness, when the result of kidnapping, would augment its grievousness, and render it the most crushing of all misfortunes. Joseph’s history shows us how easy it was to sell a free man as a slave, and obtain his immediate removal into a distant country (Genesis 37:25-28). The Egyptian annals tell us of bloody wars carried on for kidnapping purposes (Lenormant, Histoire Ancienne, vol. i., pp. 423, 424). In the classical times and countries, the slaves offered for sale in the markets had usually been obtained in this way. The stringent law of the Mosaic code (Exodus 21:16) was greatly needed to check an atrocious crime very widely committed.

(18, 19) Severe assault, endangering life, but not actually taking it, is placed under the same head with homicide, as approaching to it, but is not to be punished in the same way. If death ensues in such a case, the crime is, of course, murder or manslaughter, according to the attendant circumstances; but if death does not ensue, it is aggravated assault only. In such cases punishment could not be inflicted by retaliation—the usual penalty under the Mosaic Law (Exodus 21:24-25)—without a risk of killing the man, which would have been an excessive punishment. The law therefore imposed a fine, which was to be fixed at such an amount as would at once compensate the sufferer for the loss of his time (Exodus 21:19), and defray the cost of his cure.

(18) With a stone, or with his fist.—Comp. The difference made under the English law between wounding with a sharp or a blunt instrument.

(19) If he rise again, and walk abroad upon his staff.—The charge of murder was not to be kept hanging over a man indefinitely. If the injured person recovered sufficiently to leave his bed, and get about by the help of a stick, the injurer was to pay his fine and be quit of his offence, whatever might happen afterwards.

(20) And if a man smite his servant.—The homicide hitherto considered has been that of freemen; but the Mosaic Law was not content to stop at this point. Unlike most other codes, it proceeded to forbid the homicide of slaves. Hitherto, throughout the East, and also in many parts of the West, slaves had been regarded as so absolutely their master’s property that he was entitled to do as he pleased with them. Now, for the first time—so far as we know—was the life of the slave protected. The exact extent of the protection is uncertain. According to the Talmud, the master who killed his slave was put to death; according to some modern Jews, as Kalisch, he had merely to pay a fine. In any case, the killing was an offence of which the law took cognisance. Later on it appears that even assaults on slaves, if they reached a certain intensity, were unlawful, and involved the slave’s compulsory emancipation (Exodus 21:26-27).

With a rod.—The usual instrument of punishment. It would follow, as a matter of course, that if a more dangerous implement was used the master was punished with equal, or greater, severity.

(21) If he continue a day or two, he shall not be punished.—Comp. the proviso with respect to freemen (Exodus 21:19). The notion is, that unless the death follows speedily it must be presumed not to have been intended; and this might be especially presumed in the case of a man killing his slave, since thereby he inflicted on himself a pecuniary loss.

(22-25) A personal injury peculiar to women—a hurt producing miscarriage—is here considered. The miscarriage might cost the woman her life, in which case the man who caused it was to suffer death (Exodus 21:23); or it might have no further ill result than the loss of the child. In this latter case the penalty was to be a fine, assessed by the husband with the consent of the judge (Exodus 21:22). The death penalty, where the woman died, is clearly excessive, and probably belongs to the pre-Mosaic legislation, which required “life for life” in every case.

(22) If men strive, and hurt a woman with child.—It is assumed that this hurt would probably take place through the interference of a pregnant wife in some strife wherein her husband was engaged. It would almost certainly be accidental.

And yet no mischief follow—i.e., no further mischief—nothing beyond the loss of the child.

(22, 23) Life for life, eye for eye.—It is a reasonable conjecture that the law of retaliation was much older than Moses, and accepted by him as tolerable rather than devised as rightful. The law itself was very widely spread. Traces of it are found in India, in Egypt, among the Greeks, and in the laws of the Twelve Tables. Aristotle says that the Pythagoreans approved it, and that it was believed to be the rule by which Rhadamanthus administered justice in the other world. There is, primâ facie, a semblance of exact rectitude and equality about it which captivates rude minds, and causes the adoption of the rule generally in an early condition of society. Theoretically, retaliation is the exactest and strictest justice; but in practice difficulties arise. How is the force of a blow to be measured? How are exactly similar burns and wounds to be inflicted? Is eye to be given for eye when the injurer is a one-eyed man? And, again, is it expedient for law to multiply the number of mutilated citizens in a community? Considerations of these kinds cause the rule to be discarded as soon as civilisation reaches a certain point, and tend generally to the substitution of a money compensation, to be paid to the injured party by the injurer. The present passage sanctioned the law of retaliation in principle, but authorised its enforcement in a single case only. In a later part of the Mosaic code the application was made universal (Leviticus 24:17-21; Deuteronomy 19:21).

(26, 27) The eye . . . Tooth.—An exception to the law of retaliation is here made. If the injurer is a free man and the injured person a slave, the marked social inequality of the parties would make exact retaliation an injustice. Is the slave, then, to be left without protection? By no means. As the legislation had already protected his life (Exodus 21:20), so it now protects him from permanent damage to his person. The master who inflicts any such permanent damage—from the least to the greatest—loses all property in his slave, and is bound at once to emancipate him. The loss of an eye is viewed as the greatest permanent injury to the person; the loss of a tooth as the least.

(28-32) Injuries to the person might arise either from man or from animals. Protection from both was needed. The law given to Noah (Genesis 9:5) had already laid it down that whenever a beast killed a man his life was to be forfeit. This law was now re-enacted, but with a further and very important proviso. If the animal had an owner, and the owner had reason to know that it was dangerous, then not only the beast, but the owner also was to be held guilty. He was to be liable to a process for murder (Exodus 21:29); but, with the consent of the aggrieved family, might pay a sum of money as compensation instead (Exodus 21:30). In the case of a slave, the sum was fixed at what was regarded as the standard price of a slave (Leviticus 25:44-46; Leviticus 27:3), viz., thirty silver shekels.

(28) The ox shall be surely stoned—i.e., he shall die the death of a murderer.

His flesh shall not be eaten.—An ox killed by stoning would not be bled in the usual way, and would be “unclean” food for Hebrews. According to the Rabbis, the flesh might not even be disposed of to the Gentiles, but had to be buried. If this were so, the object must have been to mark strongly that whatever creature took human life was accursed.

(29) His owner also shall be put to death.—It seems clear that under this law the representatives of the slain person might have exacted life for life; but probably they would in almost all cases have been ready to accept a compensation.

(30) Whatsoever is laid upon him.—Primarily, by the aggrieved relatives; but in the case of an exorbitant demand there was, no doubt, an appeal to the judges, who would then fix the amount.

LAWS CONCERNING THE RIGHTS OF PROPERTY.

(33-36) The legislation slides from rights of persons to rights of property easily and without effort, by passing from the injuries which cattle cause to those which they suffer. They are injured (1) by the culpable laches of persons leaving their pits uncovered; (2) by hurts which one man’s cattle inflict upon another’s. Both kinds of loss have to be made good.

(33) If a man shall open a pit.—Rather, uncover a well. The wells in the East commonly have covers, which are removed when water is drawn, and then replaced. If a man neglected to replace a cover, he was rightly answerable for any damage that might ensue. The case was the same if he dug a new well, and neglected to cover it over.

(34) The dead beast shall be his.—Having paid the full value of the live animal, the owner of the well was entitled to make what he could by the carcass.

(35-36) if one man’s ox hurt another’s.—Where no blame attached to the owner, the loss was to be equally shared. Where the dangerous character of the animal was, or ought to have been, known, the man whose ox was killed received its full value.