2.8. Israelite Slaves. The Cause of the Emergence of Slavery Among the Israelites. The Conditions of Entry Into Slavery for Israelites and Their Legal Status. Rights and Privileges Serving to Alleviate Their Condition of Servitude

In the Mosaic state, alongside the class of slaves from among foreigners that we have examined, there was also a class of slaves from among the Jews themselves. This category of slaves would seem on its face to have no place at all in the free state of the chosen people, since slavery, as an abnormal phenomenon and an expression of civic-social and moral inequality, would appear to have been excluded by the civic-social and economic laws of Moses. The wise lawgiver, in founding his state, took every measure to make it a kingdom of “equality,” in which all—and each individually—were provided with all the conditions for moral and material development, not development at the expense of some at the cost of others, as in all the ancient states, but equal development for all. To this end he abolished all artificial divisions of the people into classes and estates with different rights and privileges, made all members of the state full members thereof, declared all equal before the state and the law, allotted equal land portions, and enacted laws designed to prevent violation of the established equality. How, then, could there be so flagrant a violation of it as the slavery of free citizens in such a free state? This question can be answered only by pointing to the common fate of great ideas, which, when they enter the midst of a crude, unordered mass, never retain that purity and force which they possessed when they first emerged from the creative spirit of their great originator: the crude mass by its influence always weakens their force, so that in their realization they inevitably become subject to the ordinary characteristics of that mass. The great idea of equality, first proclaimed by Moses, suffered the same fate. Although it was called to realization in a theocratic state—that is, a state where, in comparison with all the rest of the ancient world, unfavorable influences upon it were least to be expected—yet here too the unfavorable conditions, the result of centuries of abnormal historical life, proved strong enough that the great idea could never fully overcome them. The natural historical conditions of social-economic development acted continuously and stubbornly against it, and it was compelled to yield to them: the equality once established gradually gave way to social-economic inequality—the source of slavery. Moses, with his prophetic vision, foresaw such an inevitable fate of his idea, and therefore directed his efforts toward limiting the development of the necessary evil as far as possible.

The essence of the theocratic principle, under the protection of which Moses placed the inviolability of the persons of the members of his state, is expressed in the following proposition: “The sons of Israel, whom the Lord God brought out of the land of Egypt, that they should not be slaves there, became the own slaves of Jehovah, and therefore must not be sold as slaves are sold” (Compilation of texts: Lev. 25:42, 25:55; 26:13). By the direct sense of this proposition, slavery in the strict sense ought to have no place among the people of Israel, since it would be a practical negation of the lordship of Jehovah. It was upon this principle that the Mosaic idea of equality rested, since the elimination of social-economic inequality would remove the primary and principal source of slavery. But, as has already been said above, the idea of equality was never fully realized; the natural-economic laws operated steadily in the opposite direction and, gradually, in place of the established equality there appeared first economic and then social inequality—fertile ground, consequently, for slavery. In accordance with this state of affairs, the lawgiver determined the conditions for the condition of slavery.

The entry of a free Israelite into the condition of slavery under Mosaic law was conditioned by two circumstances: (1) poverty, and (2) an offense against the property of one’s neighbor—theft—when the offender had no means to compensate for what was stolen. The first case is not defined by positive provisions of the law but is rather presupposed by it. “When your brother,” it says, “becomes poor and is sold to you” (Lev. 25:39). Under the economic conditions of the Mosaic state, a free Israelite could be reduced to a degree of poverty sufficient to entail “sale” into slavery chiefly through the sale of his hereditary land allotment. Having sold his land allotment, the Jew thereby deprived himself of the principal support of his economic well-being, since in the Mosaic state—almost exclusively agricultural—land was the primary and nearly the only (aside from livestock herding) source of income. After such a sale he was left entirely without any means of livelihood, and therefore, in order to deliver himself and his family from the afflictions of extreme poverty, the only exit from his helpless situation that remained to him was to give himself into slavery—unless he could escape such a necessity by some fortunate turn of events, in the form of a loan or assistance from relatives.

Some scholars allow that under Mosaic law an Israelite also entered into the condition of slavery for insolvent debts, which he had accumulated in an attempt to restore his ruined circumstances. There are no direct indications of such a provision in the law, but the scholars referred to deduce it from certain provisions that appear to presuppose the creditor’s right over the person of the debtor. If indeed the primary condition for entering into slavery is assumed to be poverty (Lev. 25:39), then by ordinary logic the inability to meet debt obligations could also serve as such a condition. This is particularly implied, they say, by the passive form of the verb expressing the law concerning sale into slavery: “When your brother becomes poor and is sold to you”—a passive form presupposing a third party’s right over the person subject to sale. Scholars find another foundation for their view in the fact that at the time of redemption from slavery, the payment of a sum calculated proportionally to the time remaining until the year of release is required (Lev. 25:50). Such a sum, in Salshutz’s opinion, could have arisen only from debts, since if an Israelite entered into slavery freely as a simple hired servant, no one would have paid him in advance for the entire period of his service, bearing in mind the possibility of his illness or even death. But, first, the “passive” form of the verb is too indefinite a datum to serve as a categorical foundation for any conclusion. For instance, beyond sale into slavery for debt, it may give grounds for concluding that an Israelite’s family, deprived of all means of subsistence, gave their principal breadwinner—the head of the household (of course with his consent, as is indicated, among other things, by the instability of the passive form of the verb, which in another passage of a similar law shifts to an active form—“he shall sell himself,” “he sells himself” [Lev. 25:47–50])—into service with someone, in a certain sense “selling” him into slavery, so that on the proceeds of the sum received the family might sustain its existence until more favorable circumstances arose, such as, for example, the jubilee year, in which the family could by law recover its hereditary land allotment, sold on account of poverty, and thus once again have an independent source of livelihood. Salshutz’s second premise, from which he concludes that sale into slavery was for debt, suffers from the same indefiniteness. The sum presupposed by the law, which is required to be paid to the owner upon redemption from slavery, could have arisen not only from debts, as Salshutz supposes, but also by other means—for instance, the means described above: an Israelite’s sale into slavery by his own family, with the aim of sustaining its existence on the sum received. In that case, upon the redemption of the Israelite, precisely this sum—received by the family upon his sale—was paid on his behalf. Salshutz in his conclusion that this sum is none other than a debt appears to have been misled by the expression of the law by which the sold Israelite was not to be regarded as a slave in the strict sense, but was to be treated “as a hired servant, as a sojourner” (Lev. 25:39–40). On this basis he concluded that if an Israelite thus sold was indeed not a slave but a “hired servant” (day laborer or year laborer), then naturally no one would pay him in advance for the whole period until the year of release or the jubilee year, as the law presupposes; and if such a sum is presupposed as having been, so to speak, paid and received by the slave, so that at the time of his redemption it is required to be returned to the slave’s owner, then naturally this sum is nothing other than a debt, the payment of which is required in order to free the Israelite from slavery. But the point is that, although the law, in the interests of humanity, commands that the Israelite slave be regarded not as a slave in the strict sense but as a hired servant, and therefore forbids the imposition of “slavish labor” upon him, this Israelite slave is nonetheless not in the strict sense a hired servant either: in the social and civil sense he is still not a free worker but a person in a condition of slavery. This is indicated by his deprivation of freedom until the period established by law for the release of slaves—something utterly incompatible with the position of a free hired laborer. And if this is so, then upon the purchase of an Israelite the slaveholder must have paid him, or paid on his behalf to his family, not in installments proportional to the time of his labor, not by days or years, but have paid him the full sum at once up to the year of release or the jubilee year, as is done upon the purchase of ordinary slaves, taking upon himself whatever disadvantageous possibility the slave’s illness or death might entail. Such considerations weaken the force of Salshutz’s arguments in favor of the creditor’s right over the person of the debtor. Such a right, says Milziner on this point, has no adequate foundation in Mosaic law, and in rabbinical tradition there is not the remotest hint of its existence. It would stand in complete contradiction to the spirit of humaneness with which Mosaic legislation treats the debtor. The law that forbids the creditor to retain overnight a cloak taken in pledge from a poor man (Exod. 22:25ff.; Deut. 24:12ff.), or to take in pledge an object necessary for running a household, or even generally forbids the creditor himself from entering the debtor’s house in order to take in pledge, at his own discretion, the best items (Deut. 24:6–10)—such a law could not deliver the person and freedom of an impoverished debtor, or his children, into the power of a hard-hearted creditor. Defenders of such a right in Mosaic legislation cite, among other things, historical examples of the seizure into slavery of insolvent debtors or even their children (1 Kgs. 4:1ff.; Neh. 5:5). But to assess the true meaning of these examples, one must, as Milziner says, pay attention to the time from which we have both of these examples. The first comes from the period of the dominion of the house of Ahab, when the Mosaic laws were generally not being observed; the second from the period shortly after the return from the Babylonian captivity, when legal relations had not yet been restored and brought into order. Moreover, the very narrative concerning these events in both places shows that the actions of the creditors were unlawful and unjust. This is indicated, in the opinion of the above-named scholar, even by the expressions used in both passages, which in the biblical language frequently signify a cry against an injustice that has been suffered (cf. Exod. 22:26; Job 19:7 and especially Exod. 5:7). The arguments based on other passages, allegedly confirming the creditor’s right over the person of the debtor and the sale of the latter into slavery for debt, are likewise untenable. Thus against the proof of this right on the basis of (Matt. 18:28), Kahl, a commentator on the Talmudists of the previous century, already justly remarked: “Ibi non historia scribitur, sed pingitur parabola eaque fortasse ad mores Romanorum accommodata, qui pridem in Judaea rerum poliebantur. Apud illos scilicet malae fidei debitores solebant vendi.”

The second circumstance conditioning entry into the condition of slavery was theft, when moreover the thief had no means to pay the compensation prescribed by law to the injured party. “The thief must pay; if he has nothing, then he shall be sold for his theft,” or as read in the Vulgate: Si non habuerit, quod pro furto reddat, ipse venumdabitur (Exod. 22:2–3). According to Mosaic law, a thief was generally required to pay the injured party double, four times, or five times the value of what was stolen; therefore even when a thief was caught with the stolen object, he still could not be discharged merely by returning it—he was required to pay the legally prescribed compensation in addition to the stolen item. If he had nothing with which to pay this, he was sold. Josephus Flavius says that the thief was sold into slavery to the injured party himself — δοῦλος ἔστω τοῖς κατταδικάσασιν — but this is scarcely probable in view of the moral difficulties of such a sale. It is more likely that he could be sold to any other Jew, with which the rabbinical view on this subject agrees. A considerably greater difficulty in the interpretation of the law under consideration is whether the thief was sold only for so long a time as was sufficient to obtain the sum necessary for compensating the injured party, or whether he was sold into slavery in the strict sense—that is, until the legally prescribed release for all slaves from among the Jews. The text would seem to offer some grounds for thinking that the thief was sold only “for his theft,” ἀντὶ τοῦ κλέμματος, in the wording of the Septuagint text. However, the testimony of Josephus Flavius gives grounds for a different conclusion: “Videlicet furem, quodsi non fit solvendo, vendi, non tamen exteris, nec in servitutem perpetuam, sed vindicandum in libertatem anno septimo.” This testimony, which points to the right of a slave sold for theft to be freed in the seventh year, gives grounds for supposing that the thief was not sold merely for so long as was necessary to obtain the sum required to compensate the victim of the theft, but into slavery—in the sense in which that word was defined by law for an Israelite.

In defining the legal position of the Jew in the condition of slavery, Mosaic legislation is a full expression of the theocratic principle, by which “slaves of Jehovah” must not be “slaves of men” in the ancient, strict sense of that word. Having yielded to the natural social-economic conditions that necessarily led to the development of slavery, the lawgiver, having reduced these conditions to the smallest possible number, at the same time took every care to ensure that the condition of those members of the theocratic state subjected to these conditions was as unlike a genuine condition of slavery as possible. To this end, immediately following the provision permitting the possibility of a Jew’s entering into slavery on account of poverty, he appends a definition of his legal position, together with a requirement of humane treatment. “When your brother becomes poor beside you and is sold to you, you shall not make him serve as a slave. He shall be with you as a hired servant and as a sojourner” (Lev. 25:39–40). Scholars of Mosaic law, agreeing in their recognition of the spirit of humaneness that breathes through this provision, nonetheless explain its precise meaning differently. The Talmudists, and after them Milziner and others, understand the requirement “not to impose slavish labor on a Jewish slave” to mean the requirement “not to impose degrading tasks ordinarily performed by actual slaves, such as following one’s master to the bath and carrying his clothing, or untying and fastening his sandals, washing him, anointing him, or putting him to bed.” Such an interpretation has its justification in a certain respect, since by it the Jew was freed from the enumerated tasks regarded as servile. But the performance of these tasks, though regarded as servile, could not have been burdensome for the slave, except perhaps in a moral respect, since they would have constantly reminded him of his condition of slavery. The other explanation is considerably more well-grounded, according to which “slavish labor” is understood as heavy, excessive labor that is slavish in the strict sense of the word—such as, for example, the Jews performed in Egypt (Exod. 1:14). Such a thought is presupposed by the lawgiver’s view of the Jewish slave as a “hired servant”—meaning a free worker who chooses work within his capacity. This same thought appears in the expression of the theocratic principle that follows the provision under consideration, by which the Jews are “slaves of Jehovah, whom He brought out of the land of Egypt”—that is, freed them from those heavy labors with which they were burdened there. Finally, the concluding provision of this law—“you shall not rule over him ruthlessly,” or as it reads more expressively in the Septuagint: οὐ κατατενεῖς αὐτὸν ἐν μόχθῳ (Lev. 25:42–43)—leaves no further room for doubt that the lawgiver, in forbidding the imposition of “slavish labor” upon the Jewish slave, had in view precisely the heavy, slavish labor with which the Israelites had been burdened in Egypt and from which Jehovah had now delivered them. From these provisions it is evident with what care the legislation surrounds the Jew in his condition of slavery. The restriction of the harsh conditions of his slavery is carried almost to the point of negating slavery itself, so that the Jew even in this condition did not cease to be a free person, just as any other Israelite not in the condition of slavery. His person was inviolable. If a master inflicted an insult or injury upon him, he had a claim to the same compensation as the law prescribes for an offense against a free citizen. The provision stated in (Exod. 21:26–27) the rabbis rightly apply only to the slave from among foreigners, since the Jewish slave was in any case released after six years or in the jubilee year, and therefore manumission for beatings that caused bodily injury would have been an insufficient recompense for an affront to him. The Jewish slave was even regarded in a property respect as a free hired servant, so that his master had no right to his property acquired beyond the legally prescribed labor for the master—for example, through finds, gifts, his wife’s earnings, and so on. This is presupposed by the law on the redemption of an Israelite from the condition of slavery to a settler, in which the redemption is placed upon relatives—“or, if he has sufficient means, he may redeem himself” (Lev. 25:49)—the law adds. In (2 Sam. 9:2; 9:10) there is a story about a wealthy slave of Saul who had a good estate and twenty slaves. As a member of the theocratic state, the Jew even in the condition of slavery enjoyed all the privileges established by law for free citizens of that state. Thus he enjoyed rest on the Sabbath day and participated in the family and public celebrations at the offering of sacrifices (Exod. 20:10; Deut. 5:14; 12:17–18; 16:11). In one respect only, says Milziner, did the position of the Jewish slave more closely resemble that of a foreign slave than that of a free citizen: namely, his marriage in the condition of slavery with a slave woman given to him by his master for cohabitation was recognized not as a religious-civil marriage but as a slave marriage (Exod. 21:4), so that children from this cohabitation remained permanently in the possession of the master as members of his household. But even such a provision concerns the person of the slave woman more than the slave, since the law does not say that this cohabitation had for the Jew the character of something forced upon him by the master.