16 ¶If a false witness rise up against any man to testify against him that which is wrong;
17 Then both the men, between whom the controversy is, shall stand before the Lord, before the priests and the judges, which shall be in those days;
18 And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother;
19 Then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you.
20 And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you.
21 And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot.
Since Laban had falsely accused Laman of being a “robber” (a serious capital offense)43 and had sent his soldiers to execute the sons of Lehi on this pretext (1 Nephi 3:13, 25), Laban effectively stood as a false accuser. Such an accusation, coming from a commanding officer of the city, was more than an idle insult; it carried the force of a legal indictment. Since Nephi and his brothers were powerless to rectify that wrong, God was left to discharge justice against Laban.
State of mind—did the killer “lie in wait,” or “come presumptuously” with murderous intent?
The role of divine will—did “God deliver him into his hand” (Exodus 21:12–14)
12 ¶He that smiteth a man, so that he die, shall be surely put to death.
13 And if a man lie not in wait, but God deliver him into his hand; then I will appoint thee a place whither he shall flee.
14 But if a man come presumptuously upon his neighbour, to slay him with guile; thou shalt take him from mine altar, that he may die.
6 And among the cities which ye shall give unto the Levites there shall be six cities for refuge, which ye shall appoint for the manslayer, that he may flee thither: and to them ye shall add forty and two cities.
9 ¶And the Lord spake unto Moses, saying,
10 Speak unto the children of Israel, and say unto them, When ye be come over Jordan into the land of Canaan;
11 Then ye shall appoint you cities to be cities of refuge for you; that the slayer may flee thither, which killeth any person at unawares.
12 And they shall be unto you cities for refuge from the avenger; that the manslayer die not, until he stand before the congregation in judgment.
13 And of these cities which ye shall give six cities shall ye have for refuge.
14 Ye shall give three cities on this side Jordan, and three cities shall ye give in the land of Canaan, which shall be cities of refuge.
15 These six cities shall be a refuge, both for the children of Israel, and for the stranger, and for the sojourner among them: that every one that killeth any person unawares may flee thither.
16 And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.
17 And if he smite him with throwing a stone, wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.
18 Or if he smite him with an hand weapon of wood, wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.
19 The revenger of blood himself shall slay the murderer: when he meeteth him, he shall slay him.
20 But if he thrust him of hatred, or hurl at him by laying of wait, that he die;
21 Or in enmity smite him with his hand, that he die: he that smote him shall surely be put to death; for he is a murderer: the revenger of blood shall slay the murderer, when he meeteth him.
22 But if he thrust him suddenly without enmity, or have cast upon him any thing without laying of wait,
23 Or with any stone, wherewith a man may die, seeing him not, and cast it upon him, that he die, and was not his enemy, neither sought his harm:
24 Then the congregation shall judge between the slayer and the revenger of blood according to these judgments:
25 And the congregation shall deliver the slayer out of the hand of the revenger of blood, and the congregation shall restore him to the city of his refuge, whither he was fled: and he shall abide in it unto the death of the high priest, which was anointed with the holy oil.
26 But if the slayer shall at any time come without the border of the city of his refuge, whither he was fled;
27 And the revenger of blood find him without the borders of the city of his refuge, and the revenger of blood kill the slayer; he shall not be guilty of blood:
28 Because he should have remained in the city of his refuge until the death of the high priest: but after the death of the high priest the slayer shall return into the land of his possession.
29 So these things shall be for a statute of judgment unto you throughout your generations in all your dwellings.
30 Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses: but one witness shall not testify against any person to cause him to die.
31 Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death.
32 And ye shall take no satisfaction for him that is fled to the city of his refuge, that he should come again to dwell in the land, until the death of the priest.
33 So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.
34 Defile not therefore the land which ye shall inhabit, wherein I dwell: for I the Lord dwell among the children of Israel.
4 ¶And this is the case of the slayer, which shall flee thither, that he may live: Whoso killeth his neighbour ignorantly, whom he hated not in time past;
5 As when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour, that he die; he shall flee unto one of those cities, and live:
6 Lest the avenger of the blood pursue the slayer, while his heart is hot, and overtake him, because the way is long, and slay him; whereas he was not worthy of death, inasmuch as he hated him not in time past.
7 Wherefore I command thee, saying, Thou shalt separate three cities for thee.
8 And if the Lord thy God enlarge thy coast, as he hath sworn unto thy fathers, and give thee all the land which he promised to give unto thy fathers;
9 If thou shalt keep all these commandments to do them, which I command thee this day, to love the Lord thy God, and to walk ever in his ways; then shalt thou add three cities more for thee, beside these three:
10 That innocent blood be not shed in thy land, which the Lord thy God giveth thee for an inheritance, and so blood be upon thee.
11 ¶But if any man hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die, and fleeth into one of these cities:
12 Then the elders of his city shall send and fetch him thence, and deliver him into the hand of the avenger of blood, that he may die.
13 Thine eye shall not pity him, but thou shalt put awaythe guilt of innocent blood from Israel, that it may go well with thee.
1 And it came to pass that I, Nephi, returned from speaking with the Lord, to the tent of my father.
7 And it came to pass that I, Nephi, said unto my father: I will go and do the things which the Lord hath commanded, for I know that the Lord giveth no commandments unto the children of men, save he shall prepare a way for them that they may accomplish the thing which he commandeth them.
11 And we cast lots—who of us should go in unto the house of Laban. And it came to pass that the lot fell upon Laman; and Laman went in unto the house of Laban, and he talked with him as he sat in his house.
13 And behold, it came to pass that Laban was angry, and thrust him out from his presence; and he would not that he should have the records. Wherefore, he said unto him: Behold thou art a robber, and I will slay thee.
14 But Laman fled out of his presence, and told the things which Laban had done, unto us. And we began to be exceedingly sorrowful, and my brethren were about to return unto my father in the wilderness.
16 Wherefore, let us be faithful in keeping the commandments of the Lord; therefore let us go down to the land of our father’s inheritance, for behold he left gold and silver, and all manner of riches. And all this he hath done because of the commandments of the Lord.
18 For behold, they have rejected the words of the prophets. Wherefore, if my father should dwell in the land after he hath been commanded to flee out of the land, behold, he would also perish. Wherefore, it must needs be that he flee out of the land.
20 And also that we may preserve unto them the words which have been spoken by the mouth of all the holy prophets, which have been delivered unto them by the Spirit and power of God, since the world began, even down unto this present time.
24 And it came to pass that we went in unto Laban, and desired him that he would give unto us the records which were engraven upon the plates of brass, for which we would give unto him our gold, and our silver, and all our precious things.
25 And it came to pass that when Laban saw our property, and that it was exceedingly great, he did lust after it, insomuch that he thrust us out, and sent his servants to slay us, that he might obtain our property.
28 And it came to pass that Laman was angry with me, and also with my father; and also was Lemuel, for he hearkened unto the words of Laman. Wherefore Laman and Lemuel did speak many hard words unto us, their younger brothers, and they did smite us even with a rod.
29 And it came to pass as they smote us with a rod, behold, an angel of the Lord came and stood before them, and he spake unto them, saying: Why do ye smite your younger brother with a rod? Know ye not that the Lord hath chosen him to be a ruler over you, and this because of your iniquities? Behold ye shall go up to Jerusalem again, and the Lord will deliver Laban into your hands.
31 And after the angel had departed, Laman and Lemuel again began to murmur, saying: How is it possible that the Lord will deliver Laban into our hands? Behold, he is a mighty man, and he can command fifty, yea, even he can slay fifty; then why not us?
1 Nephi 4
1 And it came to pass that I spake unto my brethren, saying: Let us go up again unto Jerusalem, and let us be faithful in keeping the commandments of the Lord; for behold he is mightier than all the earth, then why not mightier than Laban and his fifty, yea, or even than his tens of thousands?
2 Therefore let us go up; let us be strong like unto Moses; for he truly spake unto the waters of the Red Sea and they divided hither and thither, and our fathers came through, out of captivity, on dry ground, and the armies of Pharaoh did follow and were drowned in the waters of the Red Sea.
3 Now behold ye know that this is true; and ye also know that an angel hath spoken unto you; wherefore can ye doubt? Let us go up; the Lord is able to deliver us, even as our fathers, and to destroy Laban, even as the Egyptians.
4 Now when I had spoken these words, they were yet wroth, and did still continue to murmur; nevertheless they did follow me up until we came without the walls of Jerusalem.
5 And it was by night; and I caused that they should hide themselves without the walls. And after they had hid themselves, I, Nephi, crept into the city and went forth towards the house of Laban.
6 And I was led by the Spirit, not knowing beforehand the things which I should do.
7 Nevertheless I went forth, and as I came near unto the house of Laban I beheld a man, and he had fallen to the earth before me, for he was drunken with wine.
8 And when I came to him I found that it was Laban.
9 And I beheld his sword, and I drew it forth from the sheath thereof; and the hilt thereof was of pure gold, and the workmanship thereof was exceedingly fine, and I saw that the blade thereof was of the most precious steel.
10 And it came to pass that I was constrained by the Spirit that I should kill Laban; but I said in my heart: Never at any time have I shed the blood of man. And I shrunk and would that I might not slay him.
11 And the Spirit said unto me again: Behold the Lord hath delivered him into thy hands. Yea, and I also knew that he had sought to take away mine own life; yea, and he would not hearken unto the commandments of the Lord; and he also had taken away our property.
12 And it came to pass that the Spirit said unto me again: Slay him, for the Lord hath delivered him into thy hands;
13 Behold the Lord slayeth the wicked to bring forth his righteous purposes. It is better that one man should perish than that a nation should dwindle and perish in unbelief.
14 And now, when I, Nephi, had heard these words, I remembered the words of the Lord which he spake unto me in the wilderness, saying that: Inasmuch as thy seed shall keep my commandments, they shall prosper in the land of promise.
15 Yea, and I also thought that they could not keep the commandments of the Lord according to the law of Moses, save they should have the law.
16 And I also knew that the law was engraven upon the plates of brass.
17 And again, I knew that the Lord had delivered Laban into my hands for this cause—that I might obtain the records according to his commandments.
18 Therefore I did obey the voice of the Spirit, and took Laban by the hair of the head, and I smote off his head with his own sword.
19 And after I had smitten off his head with his own sword, I took the garments of Laban and put them upon mine own body; yea, even every whit; and I did gird on his armor about my loins.
20 And after I had done this, I went forth unto the treasury of Laban. And as I went forth towards the treasury of Laban, behold, I saw the servant of Laban who had the keys of the treasury. And I commanded him in the voice of Laban, that he should go with me into the treasury.
21 And he supposed me to be his master, Laban, for he beheld the garments and also the sword girded about my loins.
22 And he spake unto me concerning the elders of the Jews, he knowing that his master, Laban, had been out by night among them.
23 And I spake unto him as if it had been Laban.
24 And I also spake unto him that I should carry the engravings, which were upon the plates of brass, to my elder brethren, who were without the walls.
25 And I also bade him that he should follow me.
26 And he, supposing that I spake of the brethren of the church, and that I was truly that Laban whom I had slain, wherefore he did follow me.
27 And he spake unto me many times concerning the elders of the Jews, as I went forth unto my brethren, who were without the walls.
28 And it came to pass that when Laman saw me he was exceedingly frightened, and also Lemuel and Sam. And they fled from before my presence; for they supposed it was Laban, and that he had slain me and had sought to take away their lives also.
29 And it came to pass that I called after them, and they did hear me; wherefore they did cease to flee from my presence.
30 And it came to pass that when the servant of Laban beheld my brethren he began to tremble, and was about to flee from before me and return to the city of Jerusalem.
31 And now I, Nephi, being a man large in stature, and also having received much strength of the Lord, therefore I did seize upon the servant of Laban, and held him, that he should not flee.
34 And I also spake unto him, saying: Surely the Lord hath commanded us to do this thing; and shall we not be diligent in keeping the commandments of the Lord? Therefore, if thou wilt go down into the wilderness to my father thou shalt have place with us.
35 And it came to pass that Zoram did take courage at the words which I spake. Now Zoram was the name of the servant; and he promised that he would go down into the wilderness unto our father. Yea, and he also made an oath unto us that he would tarry with us from that time forth.
Legal Perspectives on the Slaying of Laban
John W. Welch
Abstract: This article marshals ancient legal evidence to show that Nephi’s slaying of Laban should be understood as a protected manslaughter rather than a criminal homicide. The biblical law of murder demanded a higher level of premeditation and hostility than Nephi exhibited or modern law requires. It is argued that Exodus 21:13 protected more than accidental slayings or unconscious acts, particularly where God was seen as having delivered the victim into the slayer’s hand. Various rationales for Nephi’s killing of Laban are explored, including ancient views on surrendering one person for the benefit of a whole community. Other factors within the Book of Mormon as well as in Moses’ killing of the Egyptian in Exodus 2 corroborate the conclusion that Nephi did not commit the equivalent of a first-degree murder under the laws of his day.
When Nephi reentered the city of Jerusalem late at night in his final effort to obtain the plates of brass, he must have been completely in the dark about how the plates could ever possibly fall into his possession. The city was asleep; the chance of any further meetings or negotiations with Laban was out of the question; appeals to friends or intercession by Lehi’s sympathizers seemed improbable; Nephi himself was the son of a prophet who was a fugitive from justice (at least in the minds of those who thought he should be executed, just as the prophet Urijah ben Shemaiah had been; cf. Jeremiah 26:23). Nephi appears to have entered the city unarmed, having no expectation of any specific way that he might gain access to the locked treasury that held the plates. Nephi must have been as surprised as anyone by the events that unfolded that night.
The story of Nephi’s unexpected success in 1 Nephi 4 can be viewed today from many perspectives, and obviously it was included in Nephi’s record for several significant reasons. For example, this dramatic account demonstrated the religious importance of the scriptures and the vital role of the law in God’s desires for the Nephite people. If the law was important enough that one man should perish so that an entire nation could have it, the message was clear that the nation should be diligent not to dwindle in unbelief—a lesson that was kept bright in the Nephite memory for many years (1 Nephi 4:13; Omni 1:14; Alma 37:3–10). Moreover, in Nephi’s mind the events that night validated the promises that the Lord had given to him personally about keeping the commandments, prospering in the land, and being a ruler and a teacher over his brothers (1 Nephi 2:20; 4:14, 17). Politically, the account undoubtedly came to play an important part among the founding narratives of Nephite culture and society, for it showed how God miraculously put a copy of their fundamental laws into their hands (1 Nephi 5:8–10). The fact that Nephi alone was able to obtain the plates—while his inept and unfaithful brothers were unable to complete the task their father had assigned them—legitimized Nephi’s claim to possess the plates and to lead the group. Indeed, for several subsequent centuries the Lamanites accused the Nephites of having robbed them of their rightful possession of these plates (Mosiah 10:16), but the recorded facts about the events of that night went a long way toward showing that Nephi was the rightful owner of the plates, was the legitimate successor to his father Lehi, and was able to succeed with God’s help where his brothers not only had failed at the task but had said that it could not be done.1Accordingly, for the next six hundred years, one of the most important symbols of authority among the Nephites was possession of the plates of brass (see Mosiah 1:16; 28:20; 3 Nephi 1:2).2 The story of Laban, therefore, serves several purposes in the Nephite record: religious, political, historical, and personal.
The story also has significant legal dimensions. By its very nature the episode invites legal analysis and commentary: The story involves the killing of a man, to which the legal consequences of the day normally would have attached. The terminology of the narrative is also legalistic: precise words and technical concepts used by Nephi show that he wrote this story with biblical laws in mind that justifiably cast this episode in a favorable light. Accordingly, Nephi’s slaying of Laban can be evaluated profitably through the perspectives of the prevailing legal principles of Nephi’s day. Those precepts are found primarily in Exodus 21:12–14, Deuteronomy 19:4–13, and Numbers 35:9–34, discussed below.
The following analysis presents several factors that substantially reduce Nephi’s guilt or culpability under the law of Moses as it was probably understood in Nephi’s day, around 600 B.C. Nephi may have broken the American law of Joseph Smith’s day, but it appears that he committed an excusable homicide under the public law of his own day. This is not to say that Nephi would have been acquitted and declared free to walk the streets of Jerusalem again had he been brought before a Jewish court in Jerusalem and tried for killing Laban, although Nephi could have raised several arguments in his own behalf if such a proceeding had ever taken place.3 As a practical matter, however, Nephi’s case probably never would have come before a formal court because the required two witnesses were lacking, making a capital conviction technically impossible (Numbers 35:30; Deuteronomy 19:15). But if an action had been brought against Nephi, early biblical law appears to have recognized two types of killings—excusable and inexcusable—and the slaying of Laban arguably falls quite specifically into the excusable category.
The primary biblical text explaining the enforcement of the general command, “Thou shalt not murder (rasah)” (Exodus 20:13), is found in Exodus 21:12–14. It reads:
He that smiteth a man, so that he die, shall be surely put to death. And if a man lie not in wait, but God deliver him into his hand, then I will appoint thee a place whither he shall flee. But if a man come presumptuously upon his neighbor, to slay him with guile; thou shalt take him from mine altar, that he may die.
The normal punishment under biblical law for murder at the time of Nephi was apparently death (Genesis 9:6), although the likelihood of paying ransom or compensation (kofer), especially in cases involving unpremeditated acts or indirect causation, has been vigorously examined by biblical scholars.4 By way of comparison, the Hittite laws (c. 1400–1300 B.C.) explicitly provided for slaves or other persons to be given in cases of unpremeditated killings that occurred in a quarrel or unintentionally (“[only] his hand doing wrong”), while they excused entirely aggravated killings that occurred in the heat of passion, thus increasing the possibility that Hebrew law contained mitigating rubrics of its own.5
Although the provisions of these ancient laws cannot be stated precisely, Exodus 21:13–14 clearly shows that not all killings were culpable under biblical law. If a killing qualified as excusable under this provision, the law provided that the Lord would appoint “a place whither he [the slayer] shall flee.” This did not mean that the killer automatically went free, only that he was allowed to flee to a city of refuge and remain there for trial (Numbers 35:12). If it was then shown through witnesses that the slayer had come presumptuously upon his victim to kill him with guile or enmity, the slayer was taken from the city of refuge and put to death by one of the victim’s relatives acting as the so-called “avenger of blood” (Deuteronomy 19:12).6 If it was found that the slayer had not planned the event in advance, he was still considered to be tainted by blood but he would be granted safe refuge in a city of asylum until the death of the reigning high priest, at which time he could safely return to his former city. Nephi, of course, was prepared to flee—not only from his city of residence, but from the land of Israel entirely; thus, even to the extent that he might have been thought to have carried a blood taint due to his slaying of Laban, Nephi did not pollute the land, for he did not remain in it.7
The crucial question, however, is whether or not the law of Exodus 21:13–14 would have applied to the case of Nephi’s killing of Laban. In order to determine the answer, we must carefully examine the two key elements that are mentioned there. The first involves the slayer’s state of mind. As will be explained, the slayer must not have been lying in wait, or in other words must not have come presumptuously (having planned the deed out in advance) to kill his victim with guile. The second involves the role of the divine will: God must deliver the victim into the slayer’s hand. Whether it was necessary to satisfy both of these elements, or only one, in order to prove that a killing was legally excusable under the law of Moses,8 Nephi’s slaying of Laban probably satisfies both. After discussing these two elements, I will consider briefly biblical precedents and traditional attitudes in Jewish law which, under certain circumstances, allowed one person to be killed in order to save the lives of a whole city or community. I will then end with evidence from the Book of Mormon and also from Moses’ killing of the Egyptian in Exodus 2 to corroborate the conclusion that Nephi’s killing of Laban was not tantamount to murder under the law of Moses.
1. Nephi’s state of mind. The basic facts regarding Nephi’s state of mind in this case are well known. He entered Jerusalem late one night, probably unarmed, hoping to obtain the plates of brass. He did not know beforehand what he should do. He stumbled onto Laban drunk in the street. He was constrained repeatedly by the spirit of the Lord to kill Laban, and eventually he cut off Laban’s head with his own sword. In killing Laban, Nephi sought no revenge, but acted reluctantly, without hatred, and in good faith.
It is evident that the ancient concept of premeditation (if we may use such a term) was different from the concept of premeditation under modern American or British law. The modern concept merely requires awareness and determination, and such determination need not have been formulated any earlier than the instant at which it is given effect. The archaic concept of premeditation, however, required a murder to have been preplanned, thought out, schemed, or implemented through some kind of treachery, ambush, sabotage, or lying in wait. “Lying in wait” is the term employed to describe the wily tactics of a hunter stalking his prey (as in Genesis 10:9; 25:27–28; 27:3, 5, 7, 33); and the word “presumptuously” expresses “insolent defiance of law.”9Thus, Bernard Jackson has concluded: “Premeditation [in biblical law] means that the action in question was the result of a preconceived design, not of a desire formed on the spur of the moment. Thus, not every intentional act is premeditated.”10
Several strong clues indicate that Nephi had the ancient definition in mind when he wrote the story of Laban. He trusted implicitly that the Lord in some miraculous unknown way would be “able . . . to destroy Laban,” even as he had vanquished the Egyptians at the Red Sea (1 Nephi 4:3). He expressly emphasized the fact that he did not know what he was to do as he entered the city of Jerusalem: “I was led by the Spirit, not knowing beforehand the things which I should do” (1 Nephi 4:6). This point is crucial, for it shows that Nephi had not planned to find Laban and that he did not know that Laban would be out with the city elders, where Laban would be, or that he would be drunk. The occasion presented itself spontaneously. Nephi was completely surprised to find Laban. His deed was not preplanned and, therefore, not culpable.
A later and more commonly found interpretation of Exodus 21:13–14, however, would limit its application to accidental killings irrespective of the slayer’s state of mind. For example, several biblical commentators, without examining or discussing the point, readily assume that these verses only provide “that the accidental homicide will have a place appointed for him for flight”11 or that this grant of asylum was “limited to instances of accidental homicide only.”12 If such a limited understanding of this text is correct, Nephi’s slaying of Laban would not be covered by the concepts of asylum in Exodus 21, for in no way can this killing be described as an accident.
The limited interpretation of negligent or excusable homicide in Exodus 21:13–14 and its related texts, however, is unpersuasive. While it is true that Deuteronomy 19:4–5 gives as an example of an excusable homicide the case where a man and his neighbor are chopping wood and an axe head accidentally flies off its handle and kills the neighbor, this does not mean that the definition of excusable homicide includes only freak accidents. If that were the intent, there would have been no need for each of the three definitive sections to require that the slayer had not “hated” his neighbor in time past (Deuteronomy 19:4), had not come “presumptuously upon his neighbor to slay him with guile” (Exodus 21:14), or had not injured him in “hatred” or with “enmity” (Numbers 35:20, 22). Put another way, as Jackson has concluded: “Unpremeditated but intentional homicide seems to be dealt with in the same way as purely accidental homicide”;13 in other words, the concept of excusable homicide includes more than purely accidental killings. Ben Zion Eliash concurs: although it is “unclear what the exact relationship is between the manslayer’s [state of mind] toward the victim, or his motive to kill, and the classification of that murder as either intentional or unintentional,” it is clear that “even a death brought about by an intentional blow is not intentional homicide unless that blow was accompanied by enmity.”14 Accordingly, if Nephi’s intentions were neither maliciously nor hatefully preconceived, he would well come within the definition of a protected slayer under the law of his day.
Evidently for this further reason, Nephi certified in some detail that he had no desire to kill Laban and that he did not do the deed of out malice because of any of Laban’s offenses against him and his family. Nephi reasoned with himself, “I also knew that he had sought to take away mine own life; yea, and he would not hearken unto the commandments of the Lord; and he also had taken away our property” (1 Nephi 4:11), but he recognized that none of these rationalizations would justify the slaying of Laban either at law or before the justice of God. He resisted the distasteful assignment, saying in his heart, “Never at any time have I shed the blood of a man” (1 Nephi 4:10). He did not act out of hatred or enmity, although the meaning of the later term is somewhat unclear.15
In addition, Numbers 35:11, 15, and Joshua 20:3, 9, which seem to require that the killing occur “at unawares,” should not be understood to limit the ability of a person in Nephi’s situation to flee to a city of refuge and seek exculpation simply because he had been conscious of his action at the time it took place. The Hebrew word translated “unawares” is shegagah. Meaning “to sin ignorantly,” this word also occurs in Numbers 15:28 (compare Mosiah 3:11). It derives from the word shagag, meaning to stray, sin, miss the mark, be deceived, or err, but not necessarily unconsciously. Depending on how these words are construed, they may imply that the person acted perhaps negligently but at least unaware of the consequences of his action, or that he miscalculated or misjudged. Others in Jerusalem might have judged Nephi to have acted in error,16 and ancient legal distinctions may have existed between various kinds of mistakes (i.e., ignorance of the law, mistakes of fact, misjudgments of consequences, etc.), but no one could have doubted that if Nephi sinned he did so unaware of it being a sin and acted in good faith. Gauging by later Jewish law, which may shed a little further light on the subject, “a murder by someone under the mistaken belief that his actions were permissible” was considered grossly negligent, but the slayer was not subject to punishment;17 at least, it has been argued, he “should be treated less severely than one who kills another in ignorance of the more fundamental command not to kill.”18 Thus, Nephi’s action would probably have come within the additional protection of wrongs committed “unawares,” if it were viewed as a wrongdoing to any extent.
The foregoing conclusion, based on an examination of the Hebrew terminology, is confirmed on other grounds by the Greek word that was used in the Septuagint to translate shegagah in Numbers 15:28. The Greek word is akousios, a contracted form of aekousios, literally meaning “unwillingly.” Its root is hekousios, from hekon, denoting action that is “voluntary, willing, acting of free will,” within one’s control; and thus its opposite, akousios, is action that is “against the will, constrained,”19“intended but not desired.”20 This term was used as a legal term by Antipho, Plato, and Aristotle to refer to “involuntary action,” including such actions as “involuntary murder” or jettisoning the cargo of a ship in order to save the vessel and its passengers. Obviously, its meaning was broader than the English word involuntary.21 Aristotle recognizes that many difficult philosophical questions are raised by “actions done through fear of a worse alternative, or for some noble object,” and he concludes that these “mixed” actions approximate voluntary conduct at the time they are committed; but his main interest is not juristic and thus he does not pursue or resolve the issue. Aristotle’s discussion, however, shows that the issue was a live one in the ancient world: where an action was truly undesired by the human agent, it certainly could be argued that it was equivalent to involuntary conduct for purposes of assessing legal culpability so long as the circumstances were meritorious.22
Such concepts coming from the Greek world only a few centuries after the time of Nephi offer a valuable point of comparison in assessing Nephi’s state of mind. Nephi says, “And I shrunk and would that I might not slay him” (1 Nephi 4:10). This affirms that Nephi’s action was strongly against his will and his desire, and hence was involuntary under either the Hebrew or Greek conceptions. Moreover he states that he was “constrained by the Spirit that I should kill Laban” (1 Nephi 4:10). “Constrain” was a strong English word in Joseph Smith’s day, meaning “to compel or force; to urge with irresistible power, or with a power sufficient to produce the effect” and “to produce in opposition to nature.”23 Being “constrained,” Nephi should not be viewed as acting willingly according to his predilections, but obedient to a higher authority to achieve the lesser of two evils. Thus Nephi concludes this section of his account by saying, “And now when I, Nephi, had heard these words, . . . I did obey the voice of the Spirit” (1 Nephi 4:14, 18). Accordingly, Numbers 15:28; 35:11, 15; and Joshua 20:3, 9 would have encompassed Nephi’s action legally within the concept of “involuntary” conduct and would not have taken him outside the principles of asylum or of mitigated culpability.
Having found that the definition of excusable homicide was broader than purely accidental killings and was not limited by what modern readers would consider to be acts committed “unawares,” we must next ask whether that law in Exodus 21 was broad enough to include even a slaying with a sword. Indeed, the application of Exodus 21 to the slaying of Laban should not have been precluded in Nephi’s mind by Numbers 35:16, even though that slaying was by the sword. Numbers 35:16 states: “If he smite him with an instrument of iron, so that he die, he is a murderer.” This provision, however, must be read in its surrounding context. The purpose of Numbers 35:16–24, is, in essence, to establish the rule that the burden of proof must be borne by or for the avenger of blood who pursues a killer to a place of refuge,24 and that text sets forth several evidentiary considerations that were to be weighed by the judges in reaching their judgment.25 If it could be proved that the killer was not entitled to the protection of the sanctuary, the congregation was to judge between the slayer and the avenger of blood (Numbers 35:24). Verses 16–18 seem to speak categorically, creating rules of strict liability that were to operate without regard to the slayer’s state of mind: They provide that if the killer struck the victim with an instrument of iron, hit the victim by throwing a stone, or struck the victim with a weapon of wood, the killer was to be put to death. But while the use of such dangerous instruments, weapons, or projectiles might raise a strong presumption that the slaying was not accidental but preplanned, verses 20–23 show that the earlier statements were not intended to create an automatic judicial outcome based on that single fact alone. The text continues, “But if he thrust him of hatred, or hurl at him by lying of wait, that he die; or in enmity strike him with his hand, that he die: he that smote him shall surely be put to death” (Numbers 35:20–21). These qualifications show that “hatred” or “lying in wait” must still be proven in addition to the probative—but not necessarily conclusive—evidence supplied by the nature of the weapon used.26 The text concludes that if the killer “thrust him suddenly without enmity, or have cast upon him anything without lying of wait, or with any stone, wherewith a man may die, seeing him not, and cast it upon him, that he die, and was not his enemy, neither sought his harm,” then the congregation shall exonerate the slayer and allow him to remain in the city of refuge until the death of the reigning high priest (Numbers 35:22–23). Thus, it is possible, under some circumstances, for a person to be killed with an instrument of iron and for that not to be counted automatically as a homicide requiring the death penalty or other criminal sanctions.27
Obviously, the ground in antiquity between the two extremes of intentional homicide and negligent manslaughter was wide enough to raise several legal questions that cannot be answered today with certainty. Although we cannot reformulate a precise law of negligent or excusable homicide with any degree of certainty for the biblical period (and it is doubtful that a codified version of the foregoing principles ever existed),28 it is abundantly clear that several elements in Nephi’s state of mind were relevant factors in proving that a slaying was excusable and protected by ancient Israelite law. Thus, although “the Bible does not contain any abstract principles through which one could determine exactly what criteria the court should use in determining whether a murder was intentional or unintentional,”29 it is clear that culpable slayings under biblical law had to involve some preplanned, treacherous, or hateful state of mind and that such a requirement was lacking in Nephi’s case.
2. God’s deliverance of Laban into Nephi’s hand. In the end, Laban was killed for one and only one reason, namely because the Spirit of the Lord commanded it and constrained Nephi to slay him, for “the Lord hath delivered him into thy hands” (1 Nephi 4:11, 12; see also 1 Nephi 3:29). Looking beyond Nephi’s personal state of mind on the matter, the ultimate reason for his action was God’s deliverance of Laban into Nephi’s hands. As the Spirit stated, it was the Lord who caused Laban’s death: “the Lord slayeth the wicked to bring forth his righteous purposes” (1 Nephi 4:13). And, parenthetically, the distinctive biblical punishment for inveterate, unrepentant apostates was execution by the sword (Deuteronomy 13:15).
The killing of Laban was not the only time in ancient Israel when God sanctioned certain slayings to promote the national existence and welfare of the righteous. During the conquest of the Promised Land, Israel was commanded to kill the inhabitants of the region in order to occupy that land and to establish Israel, and accordingly Jewish law recognizes a special legal classification of certain mandatory wars required when God commands.30 The wars of the kings were optional and limited, but the requirements imposed by God in certain circumstances were mandatory.31
Some people have wondered why God needed to have Nephi kill Laban instead of telling him simply to put on Laban’s clothes and go forth in disguise to get the plates. Leaving the drunken Laban alive, however, would probably have created serious problems in several ways: (1) Laban could have awakened, stumbled home, or could have been helped home by someone else who found him drunk in the streets; if Laban had reentered his house while Nephi was there pretending to be Laban, Nephi would have been extremely vulnerable as a housebreaker at night. (2) Even if Laban spent the night in the streets, the next morning he would have regained his senses and would have been furious. He would have led a search party to pursue and kill Nephi and his brothers and recover the plates of brass. With Laban dead, however, his family and kinsmen would have gone into mourning and would have immediately attended to the funeral and burial. They were less motivated to recover the plates than Laban would have been (especially since they had already inherited Lehi’s gold and silver from Laban). (3) Few members of Laban’s family were probably much aware of the negotiations and conflicts between Laban and the four sons of Lehi. With Zoram gone, people in Jerusalem could well have assumed that Zoram was the one who had killed Laban, since the city of Jerusalem had every reason to believe that the four sons of Lehi had been scared out of town earlier and had never returned. If Laban had not been killed, however, he would have known Zoram and the circumstances well enough to have suspected what had happened and to have led an effective pursuit against Nephi and his brothers. These reasons explain why it was virtually essential to the completion of Nephi’s task that Laban be killed, and with a little imagination several other reasons can probably be suggested.
Be that as it may, Laban was not killed for any short-term practical need of the moment. As Nephi stood marveling over the drunken Laban, he must have been quite astonished. He was drawn immediately to Laban’s sword, which he removed from its sheath. The splendor of the workmanship and the sharpness of the steel blade left an indelible impression on the young man’s mind. As Nephi stood marveling at this weapon, the Spirit constrained Nephi that he should kill Laban (1 Nephi 4:10). Nephi balked. The Spirit then said to him again, “Behold the Lord hath delivered him into thy hands” (1 Nephi 4:11). Three times Nephi tried to rationalize the commanded deed, but the Spirit said again, “Slay him, for the Lord hath delivered him into thy hands” (1 Nephi 4:12).
The words of the Spirit were apparently a verbatim quote from Exodus 21:13, “And if a man lie not in wait, but God deliver him into his hand.” These words or their equivalent, in my opinion, would have been recognized by Nephi as coming from the Code of the Covenant. Growing up in Israel as a young boy, Nephi would certainly have learned this passage from Exodus 21. Deuteronomy 6:6–7 required righteous parents in Israel to teach their children the law of Moses, to talk of these words when they sat at the dinner table, to recite them as they walked down the path, to repeat them before going to bed, and to speak of them upon rising in the morning. One of the most important texts of the law of Moses was Exodus 21–23, essentially an elaboration of the familiar Ten Commandments. Coming early in the first chapter of the Covenant Code was the text cited by the Spirit to Nephi.
The Hebrew verb in Exodus 21:13 translated as “deliver” (innah) occurs only four times in the Hebrew Bible. Mayer Sulzberger sees in this phrase a “subtle intimation that Divine wisdom” causes events to occur “between persons not hostile to each other, in order to attain ends of justice which the narrow wisdom of human courts would be unable to reach.”32 Accordingly, this rare Hebrew expression or its equivalent indicated to Nephi in essence that God had caused Laban and Nephi to meet that night,33 and that Laban’s death was occasioned by an act of God, but not as that term is understood in its modern sense.34 Especially if the Spirit used this rare word and not one of the more common Hebrew words for “deliver” (for example, natan, “to give over”; or hissil, “to snatch, rescue”), the connection between the Spirit’s words and Exodus 21 would have been far more obvious in Hebrew than it is even in English.
The implication of the Spirit’s instruction could not have been lost on Nephi: he had not been lying in wait and the Lord had delivered Laban into his hands. Therefore, in order to accomplish the Lord’s purposes, under this unusual and extraordinary circumstance, the killing was on both counts legally justifiable and religiously excusable. It was the kind of killing that would be protected by the mercy of God in a place of refuge within God’s jurisdiction.
3. Better that one man perish than a whole nation. The Spirit, finally, gave the following explanation for Laban’s death: “It is better that one man should perish than that a nation should dwindle and perish in unbelief” (1 Nephi 4:13). This point of view concerning the relative rights of the individual or the group also has a long tradition in biblical and Jewish legal history.
The Old Testament lays a narrative groundwork for the legal view that, under rare appropriate circumstances, a single person can be exposed to certain death for the benefit of the whole. David Daube has shown that in early Israel there was little moral constraint protecting the individual in such a case:
Clearly, no such scruples are entertained by the Judeans in Judges [15:9–13] who, fearing what their mighty Philistine neighbours might do to settle accounts with the indomitable Samson, propose to deliver him up in fetters.35
And the case of Sheba, a rebel against King David in 2 Samuel 20, provided a further instance where peace was offered to an entire city in exchange for the life of a single man (2 Samuel 20:21–22).
This point of law, along with its biblical precedents and ethics, was hotly debated between the Pharisees and Sadducees at the time of Christ: The initial position of the Pharisees was “unbendingly negative: no one to be surrendered ever, even though extinction will ensue,”36 while the Sadducees (notably Caiaphas in condemning Jesus) were more liberal (John 11:50; 18:14).37Eventually the view of the Sadducees prevailed, as evidenced in the Genesis Rabba: “It is better to kill that man [Ullah] so that they may not punish the congregation on his account.”38 In the rabbinic period, Talmudic law went on to puzzle deeply over the meaning and implications of these notions. Used judiciously, these debates confirm the fact that surrendering one person to be killed for the benefit of the entire group was a topic addressed in biblical law.
In the Talmud, unpremeditated homicide was eventually subdivided into five categories: negligent, accidental, nearly avoidable, under duress, or justifiable.39 For purposes of comparison with Nephi’s case, justifiable killings included (1) those that prevented one man from killing another (and by analogy, Nephi’s slaying of Laban prevented him from causing Lehi’s people to perish spiritually) and (2) surrendering a specific named individual to be killed when heathens threaten to kill a whole group unless that one is delivered up.40 While the rabbis passionately and compassionately debated the limited circumstances under which the life of a specified individual could be sacrificed for the benefit of the group,41 and whereas one case from the fourth century A.D. distinguished between an individual and a group ordered to put a man to death (the individual must first offer himself to be killed),42 there can be little doubt that the possibility of killing one person for the benefit of the whole was recognized under early Jewish law and that it was consonant with the rationale expressly stated in Laban’s case (“better that one man should perish than a nation should dwindle and perish in unbelief,” 1 Nephi 4:13).
Indeed, logic was on the side of the rabbis who held that this rule applied especially when the victim had already committed a crime worthy of death, and this raises the further possibility that Laban was justifiably consigned to die because he had committed such a crime. Falsely accusing a person of a capital offense was a capital crime under biblical law (Deuteronomy 19:19), as it had been in the ancient Near East since at least the time of Hammurabi (Code of Hammurabi 1). Since Laban had falsely accused Laman of being a “robber” (a serious capital offense)43 and had sent his soldiers to execute the sons of Lehi on this pretext (1 Nephi 3:13, 25), Laban effectively stood as a false accuser. Such an accusation, coming from a commanding officer of the city, was more than an idle insult; it carried the force of a legal indictment. Since Nephi and his brothers were powerless to rectify that wrong, God was left to discharge justice against Laban.
Corroborating factors. Three pieces of circumstantial evidence corroborate the view that the prevailing law in Nephi’s day counted the slaying of Laban as something less than culpable or capital homicide.44
First, it is significant that Nephi’s brothers never accused him of breaking the law. Laman and Lemuel had ample reason to accuse Nephi. If he had broken the very law that he so scrupulously claimed to observe, Laman and Lemuel would not have let that pass unnoticed. They accuse him of usurping power, of trying to become a ruler and a teacher over them, of trying to trick them by his cunning arts and “foolish imaginations” (1 Nephi 16:37–38; 17:20), but never do they accuse him of murder. Moreover, their descendants taught their children to hate and murder the Nephites because Nephi “had taken the ruling of the people out of their hands” and robbed them (Mosiah 10:15–17), but never do they depict Nephi as a murderer. This strongly implies that they accepted Nephi’s explanation of the case as a justifiable killing.
Second, at or shortly after Nephi’s coronation as king, Jacob addressed the young Nephite assembly. He pronounced ten woes upon those who work wickedness (2 Nephi 9:27–38). His ten woes are quite obviously patterned after the Ten Commandments.45 One of these woes pertains to murder: “Wo unto the murderer who deliberately killeth, for he shall die” (2 Nephi 9:35). The conspicuous insertion of the word “deliberately” is an uncharacteristic qualification. Few of Jacob’s strict woes are accompanied by such a modifier. The thrust of his point is to be sure that only those who deliberately kill are considered guilty and punishable. Under Exodus 21:12–14, that would require deliberation, lying in wait, or other similar planning and hatred. Categorically cursing all people who killed—particularly at the coronation of Nephi—would have been extremely undiplomatic. People immediately would have wondered, “But what about Nephi?” The answer is simple. As has been shown above, Nephi had not killed “deliberately.” Jacob’s curse implies that he understood Exodus 21:13 to require a high degree of advance deliberation.
Third, of course, Nephi was not the only prophet in scripture to shed a man’s blood. Moses killed an Egyptian when Moses saw the Egyptian beating a Hebrew slave; when he looked around and saw that no one was watching, Moses killed the Egyptian and buried him in the sand (Exodus 2:11–12). Fearing that he might get caught, Moses fled to the land of Midian. This background sheds further light on the meaning of intentionality in the law of homicide in Exodus 21. Moses, the lawgiver himself, just like Nephi could have argued that his spontaneous action was not preplanned or premeditated in that sense. This, again, is not to say that Moses had not committed a slaying, but only that it was a protectable slaying. He fled and took refuge in the wilderness of Midian, perhaps thereby creating the very precedent out of which the strange procedure of the cities of refuge emerged.46 Only rarely, however, has any connection between Moses’ flight and the biblical asylum law been suggested. One Jewish source imagined that Moses must have been happy when he received that section of the law from God, because “he that hath tasted of a food knoweth its flavor,” and Moses “who had erstwhile been obligated to flee on account of having slain an Egyptian, knew the feelings of the man who is pursued on account of a manslaughter that he had committed unawares.”47 Accordingly, the concrete cases of Moses and Nephi offer us important practical glimpses into the meaning of unintentional manslaughter in the biblical period.
Nephi’s reference to Moses as he and his brothers moved quietly toward Jerusalem that dark night turns out to be more prophetic and more significant than Nephi probably realized at the time. Nephi urged his brothers, “Let us be strong like unto Moses. . . . Let us go up; the Lord is able to deliver us, even as our fathers, and to destroy Laban, even as the Egyptians” (1 Nephi 4:2–3). Although Nephi had the destruction of the Egyptian army in mind (he assumed he would encounter Laban’s fifty), in the end it was not an army that Nephi destroyed, but a single man. Nephi became strong like unto Moses, following the archetype who set into motion the exodus of Israel from Egypt. Even so, the slaying of Laban inexorably sealed the destiny of Lehi’s party as exiles from the land of Jerusalem until they likewise arrived at their new Promised Land. In retrospect, the parallel between the actions of Moses and Nephi was surely strengthened by the fact that both had been involved in the excusable killing of a man.
Concluding observations. Over the years Hugh Nibley has enjoyed telling a story about his Arab students in the early 1950s who were required to take the basic Book of Mormon class at Brigham Young University. Knowing that the Laban episode had been troublesome to the moral sensitivities of many twentieth-century readers, Nibley was puzzled when these students found the story somewhat implausible but precisely for the opposite reason he had expected. Instead of being troubled that Nephi had killed the unconscious Laban, the students found it odd that he had hesitated so long.48 While the reaction of these Arab students cannot be taken as evidence of the attitudes of the inhabitants of the city of Jerusalem around 600 B.C., it does reinforce the point that different cultures have unique values and idiosyncratic legal expectations. Accordingly, modern readers should be willing to consider not only the implications and moral bearings of ancient scriptural events upon contemporary society, but also to approach these developments in terms of the ancient dispositions and legal norms that would have operated as guiding principles in the lives of people years ago.
While nineteenth-century vocabulary and concepts are in some ways useful in Book of Mormon exegesis, the Laban episode is a case where the nineteenth-century environment offers little help.49 Joseph Smith’s nineteenth-century audience was just as scandalized by Nephi’s killing of Laban as is a modern audience. Early Book of Mormon critics readily viewed this episode as a clear indication that the Book of Mormon was not inspired by God, a divine being who would never have commanded a true prophet to kill, having already commanded, “Thou shalt not murder.” That view, however, assumes only a nineteenth-century viewpoint.
But when analyzed in terms of ancient biblical law, the case is framed within the appropriate set of legal terms and issues. This is not to say that the slaying of Laban presents us as modern readers with an easy case: neither was it an easy case for Nephi. In its ancient legal context, however, the slaying of Laban makes sense, both legally and religiously, as an unpremeditated, undesired, divinely excusable, and justifiable killing—something very different from what people today normally think of as criminal homicide.