2.9. The Limitation of Slavery in Time. The Years of Liberation. Restrictions on Liberation. The Gift to a Slave Upon His Release. Laws in the Event of a Slave’s Refusal of Lawful Emancipation

As is evident from the foregoing, the Jew even in the condition of slavery enjoyed extensive rights. The conditions that make this condition among other peoples onerous and degrading to human dignity are here restricted to the smallest possible degree, almost to the point of their negation. But while restricting the conditions of the harshness of the condition of slavery in respect of its very essence, the lawgiver at the same time restricted it also in respect of time. Among other peoples the condition of slavery was perpetual—as it was also, with certain restrictions, among the Jews in relation to slaves from among foreigners. With respect to slaves from among Jews, however, such a condition was incompatible with the theocratic principle, by which “the sons of Israel are slaves of Jehovah” and therefore must not be slaves of men in the strict sense of the word, but must be as hired servants. In view of this principle the lawgiver restricted the condition of the Jew’s slavery in time, fixing a term upon the expiry of which the Jewish slave was to receive his freedom without any ransom. “If you buy a Hebrew slave,” says the lawgiver, “he shall serve you six years, and in the seventh year he shall go out free, for nothing” (Exod. 21:2; Deut. 15:12). Upon this provision lies the vivid stamp of theocratism. Having yielded to the natural-social development of society that had led to a violation of the personal legal equality of the members of the theocratic state, expressed in the emergence of the condition of slavery, the theocratic principle gains full sway in the seventh, sacred year, abolishing the inequality of persons that had been permitted. The restriction of the condition of slavery to six years and the proclamation of the seventh year as the year of liberation are closely connected with the concept of the Sabbath and the sabbatical year. Just as after six days of labor the weekly Sabbath, and after six years of tilling the land the annual Sabbath or sabbatical year, were to serve as memorials of the Creator and Lord of the world who had commanded man both labor and the enjoyment of the fruits of the field, so too after six years of slavery the manumission of the slave was to serve, both for master and for slave, as a memorial of the fact that both are slaves of Jehovah and are therefore equals among themselves. But while closely connected with the sabbatical year in principle, the year of liberation was nonetheless not identical with it in time. Whereas the sabbatical year was the concluding year of a definite sabbatical cycle of years common to all members of the theocratic state, the year of liberation was the seventh year for the individual person—the seventh year from the time of his entering into the condition of slavery. This is already indicated by the law itself, which prescribes six years of service prior to liberation; such a prescription could not have been made if the year of liberation were the sabbatical year, since in that case the period of service would have been shortened depending on the interval of time between the moment of sale and the sabbatical year. Moreover, these years are evidently distinguished from one another in the actual presentation of the law, since in the description of the sabbatical year (Lev. 25:1–7; Deut. 15:1) and the privileges connected with it for members of the theocratic state, no mention is made of so important a privilege as liberation from the condition of slavery; and in the establishment of the year of release, no mention is made of the sabbatical year.

The law concerning the release of the Jewish slave in the seventh year, set forth above, appears to be in contradiction with another provision of the lawgiver, which appoints a different term for release. “When your brother becomes poor beside you and is sold to you, let him serve you until the jubilee year; and then he shall depart from you” (Lev. 25:39–41). To explain such a considerable difference in the term of release, several different interpretations have been proposed by scholarly investigators. Ewald and many others seek to explain this difference by the differing times at which the two legislative provisions were issued: after the provision prescribed in Exodus concerning the release of slaves in the seventh year had fallen out of use, says Ewald, the term of release was restricted to the jubilee year in order to preserve the principle of the law, which of course, given that only few slaves lived to see the jubilee year, was a sorry substitute for the earlier law. Others, such as Salshutz, explain this difference by the difference in the persons which each of the two laws has in view: whereas the law of Lev. 25:39–41 has in view an impoverished Israelite who has sold his land allotment before the jubilee and who therefore, having no means of free maintenance, was necessarily required to remain in slavery until the jubilee year, when he could recover his plot—the law of Exodus and Deuteronomy has in view a middle class of slaves, born in the household from a slave marriage, who by law, when sold to another master, had the right to liberation in the seventh year.

Both of the explanations of the difficulty under consideration suffer from one shortcoming—an artificial exaggeration of the difference appearing to exist between the first and second laws—and consequently resort to such extreme measures as admitting a difference in the time at which the law was issued, or artificially creating a special class of people. Salshutz, for example, builds his entire theory chiefly upon the expression of the law (Exod. 21:2)—“if you buy a Hebrew slave”—which expression, in his opinion, can be applied only to a person who was previously in the condition of slavery, and by no means to one who is only now entering into the condition of slavery. But such a foundation, besides being artificial, is also insecure. On such a foundation, as Milziner justly observes, one could, when interpreting expressions similar to the one under consideration—such as “to anoint a king” (Judg. 9:8) or the Latin ducere uxorem — arrive at the absurd conclusion that the one being anointed had previously already been king, or that a woman marrying had previously already been married. Moreover, when this law is repeated in (Deut. 15:12), the person being bought is not even called a slave. Thus the theory under consideration entirely loses its footing in this respect. Finally, one cannot fail to notice the incongruity by which, if this theory is accepted, the special legislation, without first defining the rights of Israelites who have entered into the condition of slavery, would have occupied itself with the fate of a quite separate and in any case inferior class of persons. This incongruity is removed by a straightforward understanding of the matter.

The difference between the two laws under consideration is considerably more easily explained by another method. Michaelis already attempted to resolve the apparent contradiction between these two laws by allowing that they quite independently establish their respective terms of release. “A slave was ordinarily released,” he says, “in the seventh year of his service (according to the law of Exodus and Deuteronomy). But suppose he had entered into slavery in the forty-sixth year of the Hebrew reckoning, consequently four years before the jubilee year; in that case he did not wait for the seventh year but received his freedom in the jubilee year (according to the law of Leviticus), and along with his freedom received his sold field as well.” Milziner fully accepts Michaelis’s opinion, and it has considerably more foundation than the two other opinions examined above. First of all, it has in its favor the simplicity with which the difficulty—exaggerated by other explanations—of reconciling the two apparently different laws is resolved. Under such an explanation these two laws prove to be not contradictory but mutually supplementary: the first law establishes, so to speak, the ordinary term of release in the seventh year from the entry into the condition of slavery, while the second establishes an extraordinary term, called forth exclusively by the general theocratic and social-economic significance of the jubilee year, which had as its aim the restoration of the original equality of right and condition, and therefore entailed the liberation of members of the theocratic state who had lost their freedom, and the return of alienated fields to their original owners. As for the perplexity that arises under such an explanation—why the law (Lev. 25:39–41) expresses itself so categorically and independently, as if it has no other law in view that prescribes the six-year term of service, so that it may contain a “dangerous ambiguity” (in Salshutz’s phrase)—this is removed by the very position of this law within the legislation. Whereas in the first law the lawgiver establishes the ordinary seven-year term of release throughout the entire duration of the fifty-year period, here in the second law, where the discussion is principally concerned with the privileges connected with the jubilee year in general, the lawgiver deemed it necessary to indicate only that term of release determined by the jubilee year, without mentioning the ordinary term, which is presupposed to be already known. The law would contain a dangerous ambiguity only if it contradicted the first law in even a single feature—if it contained provisions that at least indirectly abrogated the provisions of the first law. But it contains no such thing; it merely, independently of that law, establishes its own term, called forth by the internal meaning of the jubilee year.

Mosaic legislation takes on a different character with regard to an Israelite who has entered into a condition of slavery to a non-Israelite, but one who lives among the Israelite people. Such an Israelite is not given the right to release in the 7th year of service; instead, the 50th jubilee year is designated as the time of his liberation. Here too the right to release in the 7th year is not explicitly denied, but this can be inferred from certain features of the law that presuppose the absence of this right. The text of the law reads as follows: “If a stranger or sojourner with you becomes wealthy, and your brother beside him becomes poor and sells himself to the stranger, then after he is sold he may be redeemed; one of his brothers, or a kinsman from his family, must redeem him; or if he himself acquires sufficient means, he may redeem himself. He shall reckon with his buyer from the year when he sold himself to him until the year of jubilee; and the price of his release shall be proportional to the number of years. If there are still many years remaining, he shall pay back a proportionate part of his purchase price as the redemption price. If only a few years remain until the jubilee year, he shall calculate accordingly and pay his redemption price in proportion to his years. But if he is not redeemed in any of these ways, then in the year of jubilee he shall go free, he and his children with him” (Lev. 25:47–54). From the text it is evident that the law does not contemplate the 7th year of release, for in speaking of release in the jubilee year it presupposes that many years remain before it—a span that cannot be the four- or at most five-year period that could elapse before the jubilee year under a six-year term of release. It is difficult to state positively the grounds on which the lawgiver deprived an Israelite who had entered into slavery to a foreigner of the right to release in the seventh year. But it may be supposed that the lawgiver thereby expressed his unwillingness that an Israelite—a servant of Jehovah—should become the slave of a foreigner who does not know Jehovah, intending that the long term of slavery would deter people from entering such a condition with a foreigner. This appears to be indicated also by the right of redemption, which in this case alone is permitted by the law: if for some reason an Israelite entered into slavery with a foreigner, despite the grievous burden of that lengthy bondage, the law in this case laid upon the kinsmen the obligation to effect a redemption—and the circle of kinsmen envisioned by the law is so broad (“one of his brothers, or his uncle, or his uncle’s son, or a near kinsman belonging to his clan, shall redeem him”) that only in exceptional circumstances could the redemption fail to be carried out. The redemption was calculated according to how many years the slave had already worked and how many years remained until the jubilee; a corresponding sum had to be paid for the years remaining. If, for example, someone had sold himself into slavery for 10 years before the jubilee for 40 shekels, and after three years found the means to redeem himself, the redemption price—after deducting 12 shekels for the three years already worked—would amount to 28 shekels. A kinsman who redeemed a slave in this way had no claim whatsoever to the labor of the redeemed person. Redemption was a duty laid by law upon the kinsmen—a duty to the fulfillment of which, under other circumstances, according to the testimony and opinion of Maimonides, one could even be compelled. If the redemption could not be effected and the Israelite remained in slavery with the foreigner, the law took every measure to ease his situation: “He shall be with him as a hired servant year by year; the foreigner shall not rule over him ruthlessly in your sight” (Lev. 25:53). In the latter expression the rabbis discern a requirement of the law that the community should oversee the treatment of the slave and protect him from the cruelty of his master. “In the year of jubilee he shall go free, he and his children with him.” But even in the act of liberation itself the law draws a distinction between a slave held by a foreigner and a slave held by an Israelite. The former the law provides only with liberation, whereas the latter, along with liberation, is also prescribed a gift from the master.

This gift was the highest expression of the solicitude with which the law surrounded an Israelite who had entered into a condition of slavery. “When you let him go free from you, you shall not let him go empty-handed. You shall furnish him liberally out of your flock, out of your threshing floor, and out of your winepress. As the Lord your God has blessed you, you shall give to him.” “You shall remember,” the lawgiver adds, “that you were a slave in the land of Egypt, and the Lord your God redeemed you; therefore I command you this today” (Deut. 15:13–15). This gift evidently served a twofold purpose. It was meant to provide the freed man with means to establish a new household, so that he would not again be driven by need to sell the freedom he had just received—which is why creditors, according to the Talmudic interpretation, had no right to demand this gift in payment of a debt. On the other hand, this gift—for a slave whom the law forbade the master to compel to fulfill his duties through harshness—was meant to serve as an incentive for the slave to strive to earn the complete satisfaction of his master, since the size of the gift depended on that satisfaction. Moreover, in the establishment of this gift one cannot fail to see a moral purpose as well: through this compensation for labor the lawgiver seems to have wished to remove from the freed man the last mark of his slave condition—the absence of remuneration for his work—making him, as it were, in the fullest sense a free “hired servant” who receives payment for his labor.

In conclusion of the provisions concerning the release of a slave, the lawgiver says: “Do not consider it a hardship when you let him go free from you, for at half the cost of a hired servant he has served you six years. And the Lord your God will bless you in all that you do” (Deut. 15:18). Some scholars understand the expression “at double the wage of a hired servant” differently. Thus Saalschütz prefers the following reading of this text: “Do not consider it a hardship that you must let him go free, even though he has served you for double the wage of a hired servant—that is, since you bought him and had to feed him, he has cost you twice as much as a hired servant who receives pay according to his work.” But such a reading and interpretation has an air of artificiality, all the more so since the Hebrew text in its literal Latin translation reads: quia duplex merces mercenarii servivit tibi, or more clearly according to the Syriac version: quoniam plusminus (duplo major) pro mercede mercenarii servivit tibi. The meaning of the law is evidently this: a slave who was entirely at the disposal of his master could in any case earn twice as much as a hired servant who demands appropriate pay for his work, and therefore the master, who has already sufficiently profited from the labors of his slave’s hands, could have no adequate grounds for considering the law’s provision for the slave’s release a hardship—except perhaps the feeling of self-interest that made him reluctant to lose such a profitable worker.

Thus the lawgiver took every measure to make the release of slaves as unimpeded as possible, removing through the provision just examined any potential obstacle on the part of the master. But the lawgiver at the same time anticipates the possibility that the slave himself, owing to his comfortable position in the master’s household and the attachment he has developed there, may not wish to avail himself of his release. In such a case the slave was permitted to remain in the master’s household. “But if he says to you, ‘I will not go out from you,’ because he loves you and your household, since he is well off with you, then he shall be your slave forever” (Deut. 15:16–17). The law (Exod. 21:4–5) connects this refusal of freedom, among other things, with a law by which a slave who, during his time of bondage, had cohabited with a female slave and had children by her, was entitled upon release to go free only alone, leaving his wife and children behind. With the slave’s attachment to his wife and children in view, the law anticipates the possibility that “the slave will say: I love my master, my wife, and my children; I will not go free”; in such a case “he shall be a slave forever.” And to prevent any abuse on the part of the master—who, given the law regarding refusal of freedom, might have the ability to detain the slave even against his will—and also to draw the slave’s attention to the full gravity of the step he was taking, the lawgiver prescribes certain formalities for the performance of the act of refusal. “But if the slave says, ‘I will not go free,’ then his master shall bring him to the judges, and shall bring him to the door or the doorpost. And his master shall pierce his ear with an awl, and he shall be his slave forever” (Exod. 21:5–6). The meaning of this formality, as it appears in the interpretation of the Talmudists and modern scholars, is as follows. The slave was required to appear before the judges in order to declare his decision. The judges were to draw his attention to the consequences his decision entailed and to satisfy themselves that the decision was not made lightly and had not been coerced in any way by the master. If the slave held to his decision, he was to receive on an open and relatively insensitive part of his body a “mark” of his decision; in antiquity the piercing of the ear served preeminently as such a mark—one recognized as a sign of slavery among other peoples as well. The piercing of the ear was performed by the master himself, and in such a way that the slave’s ear was pinned to the doorpost of the house by an awl—which made the act itself partly public, and partly expressed to the slave symbolically the idea that, already standing on the threshold of freedom, he was by his own free choice renouncing freedom and binding himself to the house of his servitude. The shame and humiliation naturally associated with this entire act, and with the indelible mark of slavery, could—so long as the last spark of self-respect had not yet been extinguished in the slave—deter him from consenting to perpetual enslavement. Such is the purpose of the law that pervades this entire act. In the law just examined, scholars have also been struck by the expression “he shall be a slave forever.” The majority of modern scholars interpret it in the literal sense—namely, that after the performance of the act described, the slave shall remain in a condition of slavery for the rest of his life. Others, however—including Mielziner—on the contrary, relying on the rabbinic tradition and on the testimony of Josephus Flavius, who interprets the word “forever” in the sense of ἕως ίωβήλου, allow that the slave could in any case remain in slavery no longer than the jubilee year. If one takes into account the great theocratic and social significance of the jubilee year—by which it was meant to restore the equality of rights and property that had been disrupted—and if one takes into account that in that year the slave’s hereditary field, which he had sold, was returned to him, so that he again had an independent source of livelihood, and one so substantial that with the help of kinsmen he could make such arrangements as would enable him to buy back his wife and children—and if, finally, one takes into account the fact that in the exposition of the law concerning the jubilee year there is not the slightest indication that not all Israelite slaves were freed from slavery in that year of universal emancipation—then, in view of all this, the release of a slave, even one who had received the mark of slavery, becomes not improbable. Otherwise, this phenomenon would stand in direct contradiction to the fundamental principles of the socioeconomic order in the Mosaic state: according to the law of Moses, hereditary family land-holdings were to be preserved forever within one family line and not pass to another; and yet, if an Israelite were not released from slavery in the jubilee year, his land allotment—returned to him in that year by law—would have passed to his master’s family line, thereby disrupting the established order of land tenure.