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THE LAWS OF MOSES

AND

THE CODE OF HAMMURABI

THE

LAWS OF MOSES

AND THE

CODE OF yAMMURABI

STANLEY A. COOK, M.A.

FELLOW OF GONVILLE AND CAIUS COLLEGIA CAMBRIDGE', MEMBER OF THE
EDITORIAL STAFF OF THE ' ENCYCLOPEDIA BIBL1CA '

or THE
UNIVERSITY

/FOR

LONDON
ADAM AND CHARLES BLACK

1903

SENERAL

'PREFACE

THE chief aim of the present study is to provide a
full account of the contents of the recently discovered
Babylonian Code of laws promulgated in the twenty-
third century before Christ by Hammurabi, the
king whose name has been identified with Amraphel,
the contemporary of Abraham (Gen. xiv.). The fact
that it is the oldest collection of laws in existence,
and the advanced state of culture which Babylonia
had reached even at that remote period, make the
Code one of the most notable discoveries in the
history of cuneiform research,* and the great interest
which it has succeeded in arousing is evinced by the
rapidly growing number of monographs, pamphlets,
and articles which have already appeared in print.

To jurists and students of comparative law, the
Code, by reason of its antiquity, has an importance
surpassing that of similar collections from India,
Greece, or Rome. A critical estimate of the extent
of Babylonia's influence upon the culture of these
lands has yet to be made, but the varied traces that
have hitherto been adduced would suggest that in

vi THE LAWS OF MOSES

the department of law, too, these lands may be

'found to have been not entirely ignorant of

i' Hammurabi's Code. Semitic scholars, too, and

especially students of biblical and post - biblical

literature, will welcome the recovery of a monument

which for its bearing upon the laws of the Old

Testament exceeds in value even the discoveries of

Babylonian creation-legends and deluge-myths.

The Code comes at a time when the biblical
world is being flooded with literature, scholarly and
otherwise, dealing with the extent of Babylonian
civilisation upon Israel. It is, therefore, a particu-
larly opportune discovery, since a careful examination
should enable the unprejudiced reader to determine
how far — if at all — Israelite legislation was indebted
to Babylonia. If the indebtedness is beyond dis-
pute, then the influence of Babylonia must have
been of the most deep-seated character ; but if, on
the other hand, the dependence of Israel upon the
Babylonian Code is not proved, only the strongest
arguments will allow us to accept those views in
accordance with which Palestine had been saturated
with Babylonian culture and civilisation centuries
before Hebrew history took its rise.

As a preliminary to our account of the Code a
few pages have been devoted in Chapter II. to a
general consideration of Babylonia and Israel. The
problem of the origin of Hammurabi's dynasty
naturally came up for discussion, since, if it was

PREFACE vii

Canaanite, there would be the clearest grounds for
the view that the Code reflects Canaanite institu-
tions. If, on the other hand, the dynasty was
Arabian, the dependence of Israel, and more par-
ticularly of Israelite procedure, upon Northern
Arabia might suggest that this land was the
common home of the Babylonian and Hebrew
systems of legislation. Here it was impossible to
ignore the question of the antiquity of the old
Arabian civilisation, and so — unwillingly enough —
one found oneself drawn into the field of controversy.
The conclusion that was reached in this chapter was
not favourable to the view that Babylonia, or even
Arabia, would have been likely to influence Israel to
such an extent as to impose upon it a code of laws
representing a stage of society which the Israelites
had scarcely reached before the Exile, and this pro-
visional conclusion was not refuted by the results
which, it is believed, have been legitimately obtained
from a discussion of the actual contents of the Code.

The scope of the work is indicated by the title. \
It is primarily restricted to a discussion of the <
Pentateuchal legislation and the Code of Hammur-/
abi. As regards the " Laws of Moses," the critical
standpoint has naturally been adopted,1 and this
procedure appears to be entirely justified by the
result. The Code is essentially a collection of civil
laws, and on this account the numerous Hebrew

1 See below, pp. 42-47.

viii THE LAWS OF MOSES

regulations which apply solely to cult and ritual do
not fall to be considered. The Code has been
supplemented by other laws from Babylonian or
Assyrian sources, and illustrated from the numerous
contract -tablets. The necessity of keeping the
book within limits, however, has prevented the
writer from dealing at too great a length with this
department, otherwise Chapters VI I. -IX. would
easily have been double their present length.

The present writer has no claim to any inde-
pendent knowledge of Assyrian. Three translations
/of the Code of Hammurabi have been published,
and the general agreement between them may be
unhesitatingly accepted as a sure indication that
save only in a very small number of cases is there
any doubt about the meaning of the Code. These
three translations have been constantly consulted
and compared, and he must accordingly express his

indebtedness to Father Scheil, whose transliteration

"* ••"•••a^^— — j, — — —

and French translation form the basis of all sub-
sequent studies ; to Dr. Hugo Winckler, whose
German edition with notes is published in con-
venient form in Der Alte Orient ; and last, but not
least, to the Rev. C. H. W. Johns, whose handy
English translation, with its complete digest of the
contents of the Code, is indispensable for English
readers.

The question of the dependence of Israelite law
upon the Code has been steadily kept in view, and

PREFACE ix

the attempt has been made to work it out on the
lines already indicated in an article by the present
writer in The Guardian of 22nd April. Then
essential difference between the highly -cultured
Babylonians and the more primitive Children of .
Israel, which is obviously reflected in their laws, has
rendered it necessary to widen the inquiry. The
post- biblical legislation, therefore, has not been
ignored,) and the illustrations are significant of the
traces of Babylonian law which a complete survey
of Talmudical and post-Talmudical literature might
have multiplied. Further, the valuable fifth-century
law-book edited by Bruns and Sachau has been
frequently drawn upon, and its importance for the
study of comparative Semitic legislation must be
recognised to be of the very first order. In spite of
its admitted indebtedness to Roman law, it is difficult
to avoid the suspicion that a number of the analogies
are to be ascribed to the general similarity of
conditions which prevailed in the two lands, rather
than to actual dependence upon Rome.

The point of departure for the study of Semitic \
law must be sought among those communities where j
society is least complex. The attempt has been
made, accordingly, to pay some regard to early pre-
Mohammedan usages in so far as they have been
collected by others, notably by Robertson Smith
and Wellhausen ; and if the chapters dealing with
"the Family" in all its phases and aspects are

x THE LAWS OF MOSES

unduly lengthy, the explanation must be sought in
the fact that the former scholar in his Kinship and
Marriage in Early Arabia1- has emphasised the
importance of the subject in its bearing upon the
comparative study of Semitic institutions.

Finally, primitive Semites are still to be found
; the present day between the Tigris and the Nile.
The tenacity with which ancient religious customs
have been retained by the Fellahin and Bedouin is
familiar. No one can read the observations of such
workers as Burckhardt, Doughty, Baldensperger,
Curtiss, Jaussen, and others, without the conviction
that distinct traces of primitive Semitic religion
have been preserved among the modern Arabs and
Syrians, and that they may be detected either in
their native form, or slightly, but recognisably,
tinged with Mohammedanism. If this be true of
religion, if the peculiar characteristics of Babylonian
worship, for example, have not left their stamp upon
the ruder tribes, surely we may expect to find in
their laws and customs, also, the primitive principles
which the Israelites brought from the desert, and
modified under the influence of their settled agricul-
tural life in the land of Canaan, and which the
earliest Semitic Babylonians developed, altered, and-
adapted to suit their growing civilisation. To trace
the growth of these principles, as we see them at

1 A new edition of this work is now being published under the
editorship of the present writer.

PREFACE xi

the present day in the East, down to the finished
code of law of a Hammurabi, as it existed over four
thousand years ago, belongs rather to a handbook
of Semitic legislation and lies far outside the scope
of the present volume. Nevertheless, in spite of its
shortcomings, this collection of material from various
parts of the Semitic field will, it is hoped, not be
without some interest to those whose inclinations
lead them to the study of the unchanging East.

For the convenience of those who have not access
to the Babylonian and other texts cited herein, a
transliteration of the more important terms or
phrases has frequently been added. The indexes
have been made fairly complete for the greater
facility of reference, and readers who do not happen
to possess a translation of the Code will notice that
the pages indicated in heavy type in the first index
(p. 289 sqq.) will usually be found to contain either a
translation or a paraphrase of the section in the Code
in question.

Attention may also be directed to the Addenda \
which take account of the most recent literature of /
the Code and include some corrections of import- '
ance. In spite of the care exercised by myself
and by the printers — to the accuracy of whose
reader I am indebted — errors doubtless remain, for
notification of any of these I should be exceedingly
obliged. STANLEY A. COOK.

LONDON, October 23, 1903.

CONTENTS

PAGE

LIST OF PRINCIPAL AUTHORITIES AND ABBREVIATIONS xvii

CHAPTER I

THE CODE OF HAMMURABI

Sources of the inquiry — The discovery of the monument — Descrip-
tion— The Prologue — Synopsis of the Code — The Epilogue —
"Blessings and Curses" — Reign of Hammurabi — Associations
with Israel — Preliminary questions .... i

CHAPTER II

BABYLONIA AND ISRAEL

Hammurabi's dynasty of foreign origin — The arguments — Linguistic
evidence doubtful — Alleged traces of monotheism — Theory of
the Arabian origin of the dynasty — Ancient Arabian culture and
its antiquity — Babylonian influence over Canaan — General con-
siderations— Importance of the Code as a test — Legal literature
in Babylonia contrasted with the Mosaic laws — Development of
Israelite law ......... 20

CHAPTER III
ELEMENTS OF LAW AND PROCEDURE

Babylonians and primitive Semites — Tribal custom the foundation of
law — Blood -revenge — Judicial authorities — Institution of judges
in Israel — Centralisation of justice — Divine decisions — Resort
to a deity — Oaths of purgation " before God " — Semitic ordeals —
Procedure in Babylonia — Laws relating to judges and witnesses . 48

xiii

xiv THE LAWS OF MOSES

CHAPTER IV

THE FAMILY

PAGE

Position of women — Marriage- types — Marriage by purchase — Details —
" Breach of promise " — Modifications of purchase-system — Laws
of the dowry and marriage-settlement — Survivals of earlier con-
ditions— Wife's position in the family 71

CHAPTER V
THE FAMILY (continued}

Bars to marriage — Babylonian laws against incest — Chastity and
slander — Parallel Hebrew laws — Laws of adultery — Ordeals —
Childlessness and bigamy — Polygyny in the Old Testament —
Sarah and Hagar — Other laws of separation or divorce — Divorce
in Israel — Wife's ability to divorce herself — Later Syrian laws . 96

CHAPTER VI

THE FAMILY (concluded}

Parental authority — Old Babylonian family - laws — Adoption of
children — Special laws bearing on the same — Limits to disin-
heritance— Wills and division of property — Rights of concubines
and maid-servants — Position of the widow — Ability of women to
inherit — Laws for special classes — The votary — Law of intestacy 128

CHAPTER VII

SLAVES AND LABOURERS

Slaves in Babylonia — Their protection — Rights of slave -owners —
Slavery for debt — Marriage-laws of slaves — Their position in
Israel — Laws for Hebrew slaves — Humane tendency of Deuter-
onomy— Status and wages of hirelings — Responsibilities of
labourers — and of shepherds — General resemblance of laws
among pastoral folk . . . . . . . 153

CHAPTER VIII

LAND AND AGRICULTURE

Common lands among the Semites — Rise of individual property —
Lands on fief — Holders of crown-lands, their rights and duties —
Old agricultural precepts in Babylonia — Laws for farmers and
gardeners — Land on metayer — Israelite laws and usages — Irri-
gation— Miscellaneous Babylonian laws — Damage to crops by
animals or fire . . . 1 80

CONTENTS xv

CHAPTER IX

TRADE AND COMMERCE

PAGE

Business in Babylonia contrasted with Israel — Scantiness of evidence
in Israel — Methods of conducting business — General laws for
the furtherance of business and trade — Theft and burglary —
Analogous Hebrew laws — The receiver of stolen and lost
property — Laws for property in the charge of another — The
boatman — Hired animals in Israel and Babylonia — Laws of
deposit — Debtor and creditor — Pledges and security — Simplicity
of procedure in Israel — Antichretic pledge in Syria — Trading
journeys — Laws for agent and principal ..... 204

CHAPTER X

PROTECTION OF THE PERSON

The king — Kidnapping — Witchcraft and sorcery — Responsibilities of
the builder — Of the doctor and veterinary — Traces in Syrian
law — Principles of the jus talionis — Modifications — Assaults
upon men — Assaults upon women — Manslaughter and murder —
The unknown murderer — Evolution of the talio — Stage reached
by the Code of Hammurabi — Individual responsibility . . 240

CHAPTER XI

CONCLUSION

General considerations — Phraseology not conclusive — CH contrasted
with Book of Covenant and Deuteronomy — Divergent treat-
ment of identical topics — The humanity of the codes — Strangers
and foreigners — Laws relating to cult, religion, and ethics —
Influence of CH in post-exilic period — Comparative Semitic
legislation .......... 263

ADDENDA 283

INDEX TO THE CODE OF HAMMURABI .... 289

INDEX OF BIBLICAL PASSAGES 293

GENERAL INDEX . 299

LIST OF PRINCIPAL AUTHORITIES
AND ABBREVIATIONS

V. Scheil, DtUgation en Perse. Memoires publics sous la direction
de M. J. de Morgan, delegue general. Tome iv. Textes £la-
mites-Shnitiques. Deuxieme SJrze (Paris, 1902). The Code of
Hammurabi with the complete text reproduced by photogravure,
transliterated and translated.

H. Winckler, Die Gesetze Hammurabis, 4th year, part four of Det
Alte Orient-, second edition, Leipzig, 1903; complete transla-
tion with introduction and short notes.1

C. H. W. Johns, The Oldest Code of Laws in the World. Second
impression, Edinburgh, 1903 ; translation of the Code with an
introduction and a complete digest of the contents. Philological
notes in the American Journal of Semitic Languages, 1903,
Jan., April.

Johannes Jeremias, Moses und Hammurabi (Leipzig, 1903). General
account of the contents of the Code, in the light of the Old
Testament ; with Assyriological and other notes.

S. Orelli, Das Gesets Hammurabis und die Thora (Leipzig, 1903).
General account of the Code with Old Testament parallels.2

Beitrdge zur Assyriologie, ed. Delitzsch and Haupt (Leipzig, 1 890- ).
Keilinschriftliche Bibliothek, Sammhing von Assyrischen Texten, ed.

Schrader, vol. iv. : Texte juristischen und geschdftlichen Inhalts,

ed. Peiser (Berlin,

1 A third edition has recently appeared.

2 Among the more important articles may be mentioned those by Father
Lagrange in the Revue Bib lique, 1903, January, pp. 27-51, and by Dareste in the
Journal des Savants, 1902, Oct., pp. 517-528; Nov., pp. 586-596. Some notice
of the latest literature will be found in the Addenda.

xvii

xviii THE LAWS OF MOSES

King, Letters and Inscriptions of Hammurabi, I.— III. (London,

1898-1900).
Kohler and Peiser, Aus dem Babylonischen Rechtsleben, I. -IV.

(Leipzig, 1894-1898).

Meissner, Beitrdge zum altbabylonischen Privatrecht (Leipzig, 1893).
Pinches, The Old Testament in the Light of the Historical Records

and Legends of Assyria and Babylonia (London, 1902).
Sayce, Babylonians and Assyrians (London, 1900).

Encyclopedia Biblica, I.-IV. (London, 1899-1903) = EBi.
Robertson Smith, The Old Testament in the Jewish Church (second

edition; London, 1892).

The Prophets of Israel (second edition ; London, 1895).
Lectures on theReligion of the Semites (second edition ; London,

1 8 94) = /&?/. Sent®
Kinship and Marriage in Early Arabia (second edition ;

London, 1 903) = Kinship.^
Wellhausen, Die E 'he bei den Arabern (Nachrichtenv. d. kgl. Gesellsch.

d. Wissenschaft, Gottingen, 1893; No. xi.).
Reste Arabischen Heidentums (second edition ; Berlin, 1897).
Palestine Exploration Fund, Quarterly Statements (London, 1 869- )

= PEFQ.

Zeitschrift des deutschen Paldstina- Vereins (1878- ) = ZDP V.
Zeitschrift der deutschen morgenldndischen Gesellschaft (1846- )

= ZDMG.
Bruns and Sachau, Syrisch-Romisches Rechtsbuch aus dem fiinften

Jahrhundert (Leipzig, 1880).
J. Kohler, Rechtsvergleichende Studien iiber islamitisches Recht, etc.

(Berlin, 1889).
J. Estlin Carpenter and G. Harford-Battersby, The Hexateuch . . .

arranged in its constituent documents . . . with introduction,

notes, marginal references and synoptical tables. Two vols.

(Oxford, 1900).
JE. The oldest Hebrew documents ascribed to the Jahwist and

Elohist schools respectively.
P. The writings of the Priestly school.

CHAPTER I

THE CODE OF HAMMURABI

Sources of the inquiry — The discovery of the monument — Descrip-
tion— The Prologue — Synopsis of the Code — The Epilogue —
" Blessings and Curses " — Reign of Hammurabi — Associations
with Israel — Preliminary questions.

*— — ,

ANCIENT law takes its rise in social custom based
upon precedent and practical experience. It is
closely interwoven with religion, and lawless deeds
are infractions of religious principles. The ordinary^
affairs of everyday life, however, are regulated by
traditional practice preserved without writing, and
as traditional usages frequently vary considerably,
the same topic may be variously regarded by
separate communities. Among the Semites, where
there were numerous divisions and subdivisions,
nomadic or settled, varying in organisation, culture,
and religion, engaged in pastoral, agricultural, or
mercantile pursuits, there was scope enough for the
development of tribal usage in manifold directions,
until, with the gradual unification of diverse elements,
the possibility arose of reducing the working results
of past experience to some degree of order. Among

2 THE LAWS OF MOSES CHAP, i

the three leading divisions of the Semites we find
that at some period the consuetudinary usages have
received the stamp of a divine authority, and have
henceforth been accepted as authoritative laws, the
norm and foundation of subsequent legislation.
The three promulgations are those of Hammurabi
in Babylonia, Moses in Israel, and Mohammed in
Arabia, with the first of which the present study is
primarily concerned.

The past century has revolutionised our ideas of
these lands. The keenness with which Arabic
studies have been pursued has immeasurably
increased our knowledge of the land in which Islam
took its birth, and has permitted us to gain an
insight into the conditions that prevailed before the
time of Mohammed. The discovery and decipher-
ment of ancient Arabian inscriptions reaching back
some centuries before the time of Christ have re-
vealed the presence of an old civilisation with char-
acteristic religious and mythological features, whose
influence upon the north-lying land of Canaan future
research may enable us to determine with more
certainty than is possible at present.1 In regard to
the Hebrews, if the discoveries on Israelite soil
have not yet been of such far-reaching importance
as those in the adjacent countries, the unremitting
study of the Old Testament, and the critical investi-
gation of its literary sources and the development
of its ideas, have entirely changed the long-held
views of Israel's religion and culture, and the history

1 See below, chap. 2, pp. 30 sqq.

CHAP, i THE CODE OF HAMMURABI 3

of the Hebrews has been presented in a clearer
and more scientific aspect. Finally, in Babylonia
and Assyria, the excavation of ruined mounds and
the discovery of thousands of tablets have brought
to life not one lost nation but many, and we are
made familiar with the history of names which in
the Old Testament and in classical writers receive^
only the barest mention. A fund of information has
been placed at our disposal whereby the history of \
the Nearer East is placed in a new perspective ]
and the ancient world is made known with an /
almost inconceivable fulness. In Babylonia and
Assyria the tablets have brought us face to face

with a highly developed religion and with a perfectly
organised military state ; there was a regular postal
exchange, intercommunication was unbroken, and
mercantile and commercial enterprise was in full
swing. In particular, they have enabled scholars!
to conclude that in such a developed organisation,
the principles and administration of law and justice^
must have been firmly established. Not to speak
of the legal usages which were to be inferred from
the marriage, commercial, and other contracts, a
few old Babylonian laws have been known for some
years, and on internal grounds were ascribed by
Meissner and Delitzsch to the age of Hammurabi,
the sixth king of the first Babylonian dynasty.1

1 Viz. K 4223 contains portions of laws, §§ 23-25, 31 sg.t in the
Code of Hammurabi ; K 8905, § 45 sg. ; K 10483, §48 sg.; K 11571,
§ 278 sg. ; K 10485, § 104 sg. ; Dt. 81, § 103 sq. ; Sm. 26, § 267 ;
Sm. 1642, § 249 sq. ; Rm. 277, §§ 57-59, 120 sq. See further
Meissner, Beitr. z. Assyr. 3 493-523, with the remarks by Fr. Delitzsch,

4 THE LAWS OF MOSES CHAP, i

The accuracy of this opinion was triumphantly
proved a little more than a year ago by the actual
discovery of a lengthy series of enactments which
owed their promulgation to the authority of no
other than this king.

^TJiis welcome discovery was made by the French

excavation under the superintendence of M. de

Morgan at the great mound known as the Acropolis

i of Susa1 in December iQOi-January 1902, a fitting

celebration of the centenary of that study which has

done so much for the history of ancient civilisation.

fit consisted of a stone of black diorite nearly eight

feet high, and was in three fragments, which readily

admitted of being joined together. The upper part

bore a representation of the sun-god Samas, from

whom Hammurabi received the laws with which the

I rest of the stone is covered. The sun-god is seated

upon a raised throne. He wears the well-known

swathed head-gear, and a flounced robe. Behind

This shoulders rays spring out, and in his right hand

the clasps a sceptre,2 the symbol of authority, and a

ib. 4 80-87 ; and cp. Winckler, Orientalistische Litteratur-zeitung,
1903, col. 28 sqq.

1 Edited and translated by Father Scheil, Memoir es de la
Dtttgation en Perse, Textes fclamites-Stmitiques, vol. 4 (Paris, 1902).
Independent translations in German by Hugo Winckler in Der Alte
Orient (4th year, Heft 4), and in English by C. H. W. Johns
(Edinburgh, 1903).

2 Jeremias and Orelli rather improbably take it to be a stylus,
the symbol of wisdom. Ball (Light from the East, p. 156), in his
remarks on the representation of Mamas' on the inscription of Nabu-
apla-iddina, where the same object recurs, suggests that it indicates
the straight course of the sun across the heavens.

CHAP, i THE CODE OF HAMMURABI 5

wheel or ring. The king stands before Samas in
an attitude of reverent obedience. He is clothed
in a long tunic, which is hemmed in at the waist and
hangs down in folds, and upon his head he wears a
cap with fillet. His right hand is at his mouth, his
left hand rests against the waist, precisely as in the
familiar portrait sculpture of the king in the British
Museum.1 Like the sun-god, he wears the familiar/
artificially plaited beard.

The appropriateness of the representation lies in
the fact that 'the sun-god Samas was the god of law,2
whose children are called " Justice " (kettit) and
"Right" (mesaru, cp. Heb. mesanm), and Ham-
murabi elsewhere calls himself the darling (mi-gi-ir)
of Samas. It is unnecessary, therefore, to suppose
that the seated figure is Hammurabi himself, before
whom stands a man crying for justice,3 and it is
quite improbable that it is the mountain-god Bel
who " gave laws to men and wore on his breast the
tablets of destiny," who appears here as the law
giver.4

1 No. 22454. See the frontispiece to L. W. King, The Letters
and Inscriptions of Hammurabi ( London, 1900), vol. 3. This repre-
sentation, which differs from the above in certain slight details,
contains only the upper half of the king. A fragment of another
statue of Hammurabi was found at Susa by M. Morgan (Textes
£lqmites-Semitiques, 184; Paris, 1900).

2 At Sippar justice was rendered at the " gate (bab) of Samas "
(Scheil, Une Saison de fouilles a Sippar, Cairo, 1902 ; li p. 26).
In the inscription of Nabu-apla-iddina (Ball, loc. «'/.), Samas is called
" the lofty of eyes."

3 Lippert, in Die Nation, April 4, 1903, no. 27, p. 422.

4 So, the writer in the Times, April 4, in his account of this

6 THE LAWS OF MOSES CHAP, i

Since mutilated portions of Hammurabi's code of
laws have been found in the library of Asurbanipal,
and a small duplicate fragment of the epilogue
was actually discovered at Susa itself, it seems
natural to infer that copies of the code were made
to be set up in various cities, Susa included.1 It is
possible, also, that the original stone was removed
from Sippar by some Elamite conqueror, just as
another Elamite, Kutur-Nahunte, carried off the
image of the goddess Nana. At all events, some
five columns of ~the stele have been erased, and the
stone has been polished, apparently with the inten-
tion of inscribing upon it a fresh inscription, and it
is suggested that the Elamite victor in question was
probably Sutruk-Nahunte (towards noo B.C.). No
name, however, is actually inscribed, and the ques-
tion must therefore be left unsettled.

There are forty-four columns of inscription, which
fall into three divisions : (i) Prologue, (2) Code, and
(3) Epilogue. In the Prologue2 considerable space
is devoted to Hammurabi's titles and to his glorious
and beneficent deeds for his country and people,
and this portion of the inscription is extremely im-

code, associates Bel or Ellu with the Hebrew El Shaddai, evidently
thinking of the Hebrew law-giving upon Mount Sinai, and the
doubtful theory that Shaddai is to be derived from the Ass. sa^dUj
"mountain'' (EBi. "Shaddai," § 2).

1 Pinches conjectures that it was for some city which Hammurabi
hoped to conquer in Elam (Proceedings of the Soc. of Biblical Arche-
ology, 1902, p. 302).

2 The following paraphrastic account of the Prologue and
Epilogue is based upon the translations by Scheil and Winckler.

CHAP, i THE CODE OF HAMMURABI 7

portant for its numerous references to the leading
historical events of his reign, and for the mytho-
logical and other interesting allusions. It com-
mences with the statement that Ilu,1 the supreme,
and Bel, the "lord of the heaven and earth" (be-el
sa-me-e u ir-si-tim), ruler of the destiny of the
world, entrusted to Marduk mankind, and called
Hammurabi, the god-fearer (pa-li-ih i-li-ya-ti\ to
create justice in the land, to destroy the wicked
and evil, that the strong oppress not the weak
(dan-nu-um en-sa-am a-na la ha-ba-li-im). " Ilu and
Bel called me Hammurabi," says the king, "the
shepherd (ri-i-a-um), the elect of Bel to bring about
the happiness of men" (lit. " to please the flesh of
men," a-na si-ir ni-si tu-ub-bi-im)? This is followed
by the king's personal account of his achievements,
in the course of which he states that he has enriched
Ur, protected Larsa (Ellasar, Gen. 14 i),3 and en-
larged Cuthah ; he refers also to the ceremonial
meals ofFTnvtu of Kes, and of Nin-a-zu, the oracles
(te-ri-tim) of Hallab, to his great offerings for the
" Temple of the Fifty," and to the god Dagon, his
creator (Da-gan ba-ni-$u}.

Hammurabi states further that he gave new life

1 Winckler throughout replaces Ilu by Anu.

2 So, too, Samsu-iluna, Hammurabi's successor, declares that the
gods gave him the whole of the world to rule, to settle the land in
security and to rule the scattered peoples in prosperity (su-ul-mi-ini},
L. W. King, The Letters and Inscriptions of Hammurabi, vol. 3,
p. 205.

3 Perhaps a reference to the overthrow of the Elamite dynasty.
Larsa was the old Babylonian city of the sun-god (EBi. col. 1281).

8 THE LAWS OF MOSES CHAP, i

to Uruk by providing its inhabitants with richly-
flowing water; he enlarged the agricultural lands
(me-ri-es-tim) of Dilbat, granted pasturage and
watering-places to Lagas and Girsu, and fostered
the inhabitants of Nin-a-zu in their distress. He,
the shepherd of men, who proclaimed right and
upheld law, returned its tutelary deity (lamassu) to
Assur,1 and caused the name of Istar to dwell in
Nineveh. He, " the suppliant of the great gods,"
the descendant of Sumula-ilu, mighty son of Sin-
mubalit, concludes his Prologue with the words :
I" When Marduk sent me to govern men, to sustain
and instruct the world, right and justice in the land
I established, I brought about the happiness of

men."

This is immediately followed by the Code itself,
which commences with two laws relating to witch-
craft (§ i sg.)t followed by three dealing with
witnesses and judges (§§ 3-5). A series of laws on
theft (§§ 6-8), and stolen property found in the hands
of another (§§ 9-13), leads up to kidnapping (§ 14)
and fugitive slaves (§§ 15-20), and ends with
burglary and brigandage (§§ 21-25). Another series
deals with the duties and privileges of " gangers "
and " constables " (§§ 26-41). Next follow the
land-laws, and provisions relating to the cultivation
of fields (§§ 42-56), the responsibilities of herdsmen
(§ 57 *£•)* and various enactments concerning
gardeners (§§ 59-65). This ends on the foot of the
sixteenth column. Five columns have been erased,

1 The earliest mention of the city.

CHAP, i THE CODE OF {JAMMURABI 9

probably by the Elamites, with the purpose already
mentioned above (p. 6), and it is estimated that
thirty-five sections have been lost. Elsewhere,1 ^
ancient Babylonian laws have been recovered con-
taining other laws relating to agriculture and to the
letting of houses, and it has been plausibly con-
jectured that they form part of the sections here
missing. The laws which commence again on the
obverse of the monument deal with merchants and
their agents ; they are not complete, owing to the
erasure. The rights of merchant and agent (§§ 100
[mutilated]- 107) are followed by a small series of
four relating to wine-merchants and the price of
wine (§§ 108-111). Debt _and deposit are handled
in fifteen sections (§§ 112-126). The laws coming
under the head of family relations constitute a small
code in themselves (§§ 127-193). Starting with
slander (§ 127) and the marriage contract (§ 128), the
Code touches on adultery, violation, and suspicion of
unchastity (§§ 129-132) ; separation and divorce in its
different aspects (§§ 133-143) are closely linked with
the laws regulating the taking of a second wife or con-
cubine (§§ 144-149). Three laws relate to women's
property (§§ 150-152). A small series bears upon
various forms of unchastity (§§ 153-158), and the
regulations respecting the purchase -price for the
bride and her marriage-portion (§§ 159-164). The
laws of inheritance (§§ 165-184) range over the
rights of wife, children, maidservants and slaves
and their children, widows, and a particular class
1 See p. 3, n. i.

io THE LAWS OF MOSES CHAP, i

of women. The family code comes to an end
with nine laws on adopted children (§§ 185-193).
Another series is concerned with responsibility for
death, assault, etc. (§§ 194-214), and in addition to
fixing penalties, enacts the honorarium to be paid
to doctors and veterinary surgeons (§§ 215-225). In
the same series is included the branding of slaves
(§ 226 sg.), and the responsibilities of the builder
(§§ 228-233) and boatman (§§ 234-240). Another
series is more precisely restricted to agricultural
life — laws dealing with oxen, their hire and
care, wages of agricultural labourers and artisans,
and responsibility for loss (§§ 241-274). Three
laws follow on with the prices for hiring boats
(§§ 275~277)> and the Code concludes with five
sections on the buying of slaves and a ferocious
penalty for the slave who repudiates his master

(§§ 278-282).1

The Code is immediately followed by the Epi-
I logue, commencing with the words: "Decrees of
justice (di-na-a-at mi-sa-ri-im) which Hammurabi the
Wise King established, for the land a just law and
a happy rule." The king then proceeds to state
that he has not neglected the people whom Bel
had granted to him, whose rule2 Marduk had

1 There are a few examples of pentads (§§ 9-13, 21-25, 1 5 4- 158,
178-182, 278-282) ; the presence of decads is less easily recognisable
(§§ 127-136, 185-194, 195-214 are all doubtful). In addition to the
Hebrew Decalogues (Ex. 34, 20), groups of five or ten laws can be
detected in the Book of the Covenant (Ex. 21-23), in Deuteronomy,
and in the Law of Holiness (Lev. 17-26).

2 Scheil aptly " pastorate " (riu}.

CHAP, i THE CODE OF £AMMURABI u

entrusted to him. Abodes of peace (as- riju^^m i-
Jm^he found for them, he opened up the narrow
ways and gave them light. Endowed with the
mighty help of Zamama and I star, with the clear
vision of Ea, with the wisdom of Marduk, he ex-
terminated the enemies of North and South Baby-
lonia ; he brought about happiness in the land, those
that dwelt at home he caused to live in security,
free from unrest. " The great gods have chosen
me," he continues. " I am the safety-bringing shep-
herd (^3* mu-sa^l-M-jmt^um}, whose sceptre is
upn^r^sa-ra-at\ ... on my breast I cherish the
people of Sumer and Accad, in my protection I
have let them rest in peace, in my wisdom (or
depth) they are concealed, that the strong may not
oppress the feeble, to give safety to the orphan and
widow ; in Babylon the city of El and of Bel in
E-sag-gil, the temple whose foundations are as firm
as the heaven and earth, for the justice of the land,
for the decision of law-suits in the country (pu-ru-
zi-e ma-tim a-na pa-ra-si-im), for the healing of
hurts,1 my precious words I have written upon my
stele, set up before my image (salmu) as King of
Uprightness (sarri mi-sa-ri-im)" The oppressed
man who has a suit (a-wi-lum ha-ab-lum sa a-wa-
tum i-ra-as-su-u) may come before the image of the
King of Justice, may read the inscription, and hear
the precious words. The stele will make clear unto
him his suit, he will understand his cause_ (dinu), and

1 Scheil renders, " pour 1'edification du faible " (ha-ab-lim su-te-su-
ri-iiti).

12 THE LAWS OF MOSES CHAP, i

his heart will rejoice, saying : " Hammurabi is a
lord (be-lum) who is literally a father (a-bi-im wa-li-
di-imy to his people, by the word of Marduk his
lord he has created fear, the victory of Marduk in
north and south has he gained, he has pleased the
heart of Marduk his lord, and brought happiness to
men for ever, and the land he has set in order."
When he reads the document (da-ni-tum), and prays
with all his heart before " Marduk my lord and
Zar-pa-nit my lady," the tutelary deity and the gods
of E-sag-gil will bring that man's wishes before
Marduk and Zar-pa-nit. Moreover, continues
Hammurabi, every king that rules in the land shall
observe the " sentences of justice " (a-wa-a-at mi-sa-
ri-im) which are written upon the stele, the laws of
the land (pu-ru-zi-e Mama) which he has enacted
shall he not alter, nor injure the monument. If
such a king would rule wisely and govern the land
well, let him observe the Code, and act according to
it, to exterminate the wicked and evil-doers, and to
bring happiness upon the people.

Then the king pronounces a blessing upon
|those who observe the laws, and utters a series of

1 The fact that abu, "father," is followed by ivalidim, "progenitor,3'
(cp. Heb. yoled in Gen. 4 18) is particularly interesting, since it shows
that the word in Babylonian, as also in the other Semitic languages,
originally meant something other than procreator, and that its use as
a term of relationship, " husband," " father," is relatively later (see
Robertson Smith, Kinship and Marriage in Early Arabia]® p. 140
sq.}. To this it may be added that abu, " husband," as in Jerem. 3 4,
has been shewn to be Babylonian usage also by Barton, Semitic
Origins, p. 68, n. 5.

CHAP, i THE CODE OF HAMMURABI 13

denunciations against the disobedient. " I am '
Hammurabi, King of Justice, to whom Samas has {
entrusted judgment (rectitude, ki-na-tim)" If
that man observe the sentences engraved upon the
stele, and acts in accordance with them, may Samas
make his sceptre to endure long, to lead his subjects
in righteousness (mi-sa-ri-im). But if that man
pays no heed to them, despises my curse, fears not
the curse of God (ir-ri-it i-li), annuls my law (di-in),
alters my sentences, erases my name and engraves
his thereon, or through fear of the curses has
charged another to do thus, this man, whether king,
lord, patesi,1 or man of repute,2 may the Great God
(ilu ra-bu-um), the Father of the Gods, remove the
splendour of his kingdom, break his sceptre, curse
his fate. May Bel, the lord, the decider of destiny
(mu-si-im si-ma-tim\ whose command is unalterable,
bring sedition, years of sighing, days few in number,
years of hunger, darkness without light ; may he
appoint for him as his fate a death which he shall
see with his own eyes ; the ruin of his city, the dis-
persion of his subjects, the removal of his rule, and
the disappearance of his name and memory (sum-$u
u zi-kir-su), may he decree. May Belti, the great
mother, annul his projects before Bel in the Place
of Justice and Law, to ruin his country, to destroy
his subjects, to pour out his life like water.
Similarly, Ea, the messenger of the gods, the all-
knowing, is invoked to deprive that king of under-

1 "Ruler" ; see King, EBi. "Babylonia," § 43.
2 Winckler, " or man, whoever he may be."

14 THE LAWS OF MOSES CHAP, i

standing and wisdom, to lead him into oblivion, to
close up the source of the rivers, and not to cause
the earth to produce corn, " the life of men." Next,
Samas, "the great judge of heaven and earth," is
called upon to destroy his kingdom, to send him in
his dreams (i-na bi-ri-sit) evil premonitions of the
decay of his throne, to hinder his martial successes ;
"from above, among the living, may he snatch him
away, and deprive his departed shades of water."
Sin, "the lord of the heavens," the divine creator
(ilu ba-ni-i\ whose sickle shines among the gods, is
besought to remove that king's tiara and royal
throne, to make him live out the days, months, and
years of his rule in sighs and tears, to make burden-
some the cares of sovereignty, to inflict upon him a
life that is like unto death. May Adad, " the lord
of abundance," continues Hammurabi, keep back the
rain in heaven, the swelling of the waters (mi-lam
i-na na-ak-bi-im), destroy his land with famine and
want, thunder upon his city, and make his land a
heap of tells. May Zamama, " the great warrior,"
break his weapons over his battle-field, turn his day
into .night, and cause his enemy to triumph over
him. May Istar, "the lady of battle and combat,"
curse his kingdom, and turn his good into evil ; on
the field of battle may she break his weapons, and
destroy his warriors ; may she give him captive into
the hand of his enemy. Nergal, "the powerful
among the gods," is invoked to burn that king's
subjects, to cut off his limbs, to break him as an
image of clay (sa-lam di-di-im). Nintu, "the

CHAP, i THE CODE OF HAMMURABI 15

august mother of the lands," the child-bearing
mother (ummu ba-ni-ti), is invoked to deprive him
of son and progeny (sir a-wi-lu-tim) upon earth, to
leave him no name (su-ma-am). Nin-Karak is
invoked to inflict upon him a severe illness (mur-sa-
am kab-tam), an evil disease (asakkam li-im-nam), a
dangerous wound (zi-im-ma-ammar-sa-am) which
cannot be healed, of the character of which the
physician (a-zu) is ignorant, which cannot be
bandaged, until at last she destroys his life. In
conclusion, may the great gods of heaven and earth,
all the Anunnaki,1 curse the outskirts of the temple,
the walls of this E-barra,2 his rule, his' land, his
warriors, his subjects, and his army, and may Bel
with an irrevocable curse execrate him, immediately
assail him.

With this final denunciation the inscription ends.
The code of laws, therefore, is preceded by a
honorific introduction, and is followed by a single
invocation of blessings upon the man who keeps
the laws, and by a series of denunciations upon him
who disregards them. Like the Deuteronomic law-}
book (Deut. 5-26, 28), it concludes with a nuyiber \
of curses, considerably longer than the corre-
sponding blessings.3

The sentiments which Hammurabi utters, and

1 The Anunnaki, the evil spirits of the deep, as opposed to the
Igigi, or spirits of the heaven.

2 According to Winckler, the sun-temple of Sippar, where the
stele stood.

3 Hammurabi's injunction against altering the laws has Deutero-
nomic parallels also (Deut. 4 2, 1 2 32).

i6 THE LAWS OF MOSES CHAP, i

the blessings and cursings accompanying the Code,
do not stand alone in Babylonian literature. We
may compare the warnings contained in a tablet
from the library of Asurbanipal,1 wherein the king
who gives heed to the commands of Ea will be
endowed with knowledge and discernment, whereas
if he acts contrary to them, Ea " the king of destinies
shall change his destiny, and shall visit him with
misfortune." If he ignores justice his land shall be
overthrown, if he pays no heed to his nobles his
days shall not be long, if he ignores his wise men
his land shall revolt. " If he treats a man of
Sippar with injustice and gives a harsh decision,
Samas, the judge of heaven and earth, shall give
a harsh decision in his land, and shall appoint a just
prince and a just judge in place of injustice." If he
acts unjustly towards the men of Nippur, Bel shall
bring a foreign foe against him and overthrow his
army. If he allows himself to be bribed by the men
of Babylon, Marduk shall bring a foe and give his
goods and possessions to his enemy. " And the men
of Nippur, Sippar, or Babylon who do these things
shall be cast into prison," concludes the tablet.2

It fortunately happens that in addition to this
i Code we are in possession of a number of con-
si temporary records in the shape of letters, business

1 For the full text see King, Babylonian Religion (London, 1899),
p. 217.

2 In the inscription of Nabu-apla-iddina it is said that the sun-god
has been angry with the land because " his laws were forgotten "
(Ball, Light from the East, p. 156).

CHAP, i THE CODE OF gAMMURABI 17

documents, and contract -tablets, which throw a
^welcome light upon the history of Hammurabi
and his dynasty.1 He was the sixth king of a
dynasty founded by Sumu-abi about the middle of
the third millennium B.C., and probably ascended^
the throne about 2285 B.C.2 Under his prede-
cessors, Babylonia had been gradually freeing
herself from the Elamite yoke, and by the total
defeat of Elam — whose king, Eri-aku of Larsa, has
been identified with Arioch (Gen. 14 19)® — he com-
pleted the deliverance of his country, and was able
to amalgamate Northern and Southern Babylonia
into one state, and even extend his sway as far
west as Canaan.4 From the very commencement^
of his reign Hammurabi devoted himself to the
internal improvement of his country, and when
the Babylonian chronicle says of his second year
that it was " the year in which Hammurabi
(established) the heart of the land in righteous-
ness," 5 we may see in this the beginning of those
reforms which ultimately ended in the promulgation
of the Code which has recently been discovered.
Examples of his practical efforts on behalf of the
welfare of his people will come under consideration

1 See L. W. King, Letters of Hammurabi (vol. 3, English
translation, London, 1900); id. EBi. art. "Babylonia," § 53.

2 So, e.g., King, C. H. W. Johns, but Assyriologists are not
unanimous, and the date in question ranges from 2394 (Oppert) to
1947 (Hommel).

3 On this question, see the criticisms by Tiele and Kosters in
EBi. col. 733 sq.

4 See below, chap. 2, p. 35. 5 King, Letters, 8229.

1 8 THE LAWS OF MOSES CHAP, i

in the course of the following pages, and 'may serve
as illuminating specimens of the manner in which
justice was administered in Babylonia in the
twenty-third century before Christ.

But this king has other claims which we cannot
ignore. The generally accepted identification of the
name Hammurabi with that of Amraphel, king of
Shinar (Gen. 14 i, 9), the tradition that ... Abraham
came from Ur of the Chaldeans, a city which is
actually mentioned in the Prologue to the Code,
are interesting links in themselves, but when it is
added that Hammurabi extended his sway over
Canaan, that the dynasty to which he belonged was
of foreign — perhaps Canaanite — origin, and that
monotheistic ideals and the conception of the Divine
Essence as a unity have been claimed for this
dynasty, it is obvious that the value of the Code is
immeasurably enhanced, and at first sight it would
appear almost incredible that it should not have
fundamentally influenced the laws and institutions
not only of the Canaanites, but of the later invading
children of Israel.1

Accordingly, the question of the origin of the
dynasty of Hammurabi becomes one of peculiar

1 So Delitzsch, after a discussion of the old Babylonian laws

which had previously been known (p. 3 above), concludes that

p Babylonian law and justice must have influenced to the deepest

/ extent the legal principles and procedure of the immigrating Hebrew

Ljiomads, and he expresses the hope that in the course of time, as the

Babylonian laws become more completely known, light may be

thrown upon the origin and development of the Mosaic law- giving

/\ (Beitr. 2. Assyr. 4 87). These words, it is interesting to remember,

were written before the Code was discovered.

CHAP, i THE CODE OF HAMMURABI 19

importance for the study of the Code. If it could
be proved that the dynasty was North Semitic, and
therefore of the same stock as the later Phoenicians,
Moabites, and Israelites, might it not be plausible
to suppose that the Code was based upon legal
institutions which were familiar to those peoples?
But the question in the present state of knowledge
cannot be placed beyond dispute, and there are
Assyriologists, whose opinion must carry great
weight, who have argued in favour of an Arabian;
origin. This, in like manner, if it could be con-
clusively maintained, would be of the utmost interest
for our study. If the kings of the first Babylonian
dynasty came from Arabia, would it not be reason-
able to infer that the legal elements in the Code
were specifically Arabian ? — one immediately re-
calls the important part played by (North) Arabia
in the early history of the Israelites, the traditions
of the wanderings in the wilderness, and tthe influ-
ence of the Midianite Jethro on Moses' work, which
is described in the most explicit manner by the
Elohist in Exod. 18. Apart from these questions,
it will be necessary to inquire also whether Israel
was as susceptible to outside influence as is fre-
quently assumed, and Iwe must also bear in mind
that Jewish law was the result, not of a single
promulgation like the Code of Hammurabi, but of
a gradual development. / The preliminary problems
therefore, are intimately connected not only with
the Code itself, but with the whole question of the
relation of the Code to Israelite law.

CHAPTER II

BABYLONIA AND ISRAEL

ASSYRIOLOGISTS have for some years past come to
the conclusion that the dynasty to which Ham-
murabi belonged was not indigenous,1 and have
associated it with one of those waves of immigra-
tion which have recurred from time to time in the
history of the Semites. Although the evidence is
linguistic — and linguistic arguments, taken by them-
selves, are extremely precarious — it is striking
enough to deserve attention, and may be briefly
recapitulated here. The evidence in question is

1 Pognon, Journal Asiatique, 8th ser., 11543 sqq. (1888); Sayce,
Records of the Past, 2nd ser., 3 ix.-xii. ; Hommel, Ancient Hebrew
Tradition, pp. 89 sqq. ; and most recently, Delitzsch, Babel and Bible,
pp. 123-125. An exception, however, must be made in favour of
Jensen, who uncompromisingly denies its foreign origin, Zeit. f.
Assyr. 10342, n. i ; die Christliche Welt, May 22, 1902, col. 491.

CHAP, ii BABYLONIA AND ISRAEL 21

chiefly derived from a number of proper names
which, it is agreed, are not of the pure Babylonian/
type. Thus, even the Babylonian scribes regarded '
the name Hammurabi as foreign, and glossed it by
Kimta-rapastum, " wide-extended family," obviously
regarding the name (which is sometimes written
Ammurabi) as a compound, not of ham, " father-in-
law," but of famm, with the meaning " family"; an
interpretation which may be claimed also for the
Hebrew and Arabic am(m).1 In like manner, they
find it necessary to explain the name Ammi-saduga,
one of Hammurabi's successors, by Kimtum-kettum,
"just or righteous family."

Further, in names of this dynasty, s is used
where the older Babylonian employs s, notably in;
Samsu-iluna as contrasted with Samsu. The
termination -na in the above name, which is in-
terpreted " Samas our god," is quite distinct from
the ordinary Babylonian -ni. The imperfect, which
usually takes the form imlik, appears as iamlik in
lamlik-ilu, larbi-ilu, etc. There are, besides, a
number of minor details, for an account of which
reference may be made to the recent discussion by
Ranke,2 who is on the side of Hommel, Sayce, and
A. Jeremias, in favouring the Arabian origin of the

1 See Gray, EBi. col. 139, and Robertson Smith, Kinship]®
p. 72 (properly an aggregate or community). The use of h for the
guttural *ain is a familiar feature in the Amarna Tablets (zuruht
" arm," Heb. zeroa ; ha-pa-ru, " dust," Heb. *aphar, etc.), and recurs
in the well-known Bit Humri, "house of Omri."

2 Die Personennamen in den Urkunden der Hammurabidynastie
(Munich, 1902).

22 THE LAWS OF MOSES CHAP, n

dynasty. But Winckler and Delitzsch, who are
equally convinced that it was not indigenous, have
arrived at a different conclusion. " Linguistic and

\ historical considerations," says the latter, " combine
to make it more than probable that these immigrant

; Semites belonged to the Northern Semites, more
precisely to the linguistically so-called ' Canaanites '
(i.e. the Phoenicians, Moabites, Hebrews, etc.)."1
And whilst Hommel points out that Ammi-saduga
is identical with the old Arabian Ammi-saduka
(HaleVy, 535), Delitzsch remarks that zadug (another
form of the second element) "may point to a
4 Canaanite ' dialect, both lexically . . . and pho-
netically." 2 The suffix -nay to which reference has
already been made, is no proof of Arabian origin,
since not only is it also Aramaic (-no), but Delitzsch
points out that "it is at least equally probable that
iluna represents an adjective."

Arguments founded upon hypothetical interpre-
tations of proper names can scarcely pass muster,
and it is therefore unsafe to find traces of Arabic
either in the second element in Ammi-satana, which
is explained from the Arabic sadd, "mountain,"3 or
in the particle pa in Pa-la-samas, which, according

1 Delitzsch, op. tit. p. 124. It is "Canaanite" because the
analogies are found at their best upon " Canaanite " soil. A.
Jeremias suggests " Amorite " as a preferable term (Im Kampfe um
Babel und BibelJ® p. 8 sq.\

2 Sa-du-uk, in the sense of ' innocent," is used by Abd-hiba of
Jerusalem in the Amarna Tablets (KB 5 180, 1. 32).

3 Hommel, Anc. Heb. Trad. p. 109.

CHAP, ii BABYLONIA AND ISRAEL 23

to Hommel,1 means " Is it not then Samas ? " Even
if the interpretation were correct, pa is by no means
necessarily the Arabic fa, since it is well known that
it appears several times in the old Aramaic inscrip-
tions from Z^jjlli in N^rth Syria. The nominal
form maful in the names Maknubi-ilu, Makhnuzu,
is certainly common in Arabic, but though rare in
Hebrew, it is not unfamilar in Aramaic. Arabian
influence has also been claimed for the name
Akbaru (afal form), but it lies close at hand to
compare the Hebrew 'akbor, " mouse." Passing
over the isolated examples of mimmation which are
claimed by Ranke,2 we may note that the imperfect
form iamlik, though it certainly presupposes a
Semitic race distinct from the Babylonian, is not
necessarily Arabic, since the earliest form of the
preformative in North Semitic was originally ya-,
and probably did not pass over into j/e- until a com-
paratively late period.3 Finally, the element Sumu
in Sumu-abi, etc., although explained to mean "his

1 Op. cit. p. 99, n. 2.

2 Op. cit. p. 31, Samas ba-ni-im (CT 6 23-442). For instances of
other Arabisms reference may be made to the notes on KB 3 i, p. 1 1 1,
col. i, 1. 21 sq. ; p. 115, col. 4, 1. 9. It may be noticed that
Delitzsch recognises mimmation in the name la-u-um-ilu (JBabel and
Bible, p. 135).

3 The Septuagint transliterates proper names of this form by ta-,
ie-, and i- (see EBi. s.w. Ibhar, Ibleam, Imna, Imnah, Irijah, Iron,
Ishvah, etc.). The thinning of a to i in the Hebrew names Miriam,
Gilead, and Samson is later than the Septuagint. Jerome, even,
writes machthab for the Hebrew miktab^ and magras for migras
(Wright, Comp. Gram, of Sem. Lang. pp. 78-80, 182; P. Kahle,
Massoret. Text. d. Alien Test., Leipzig, 1902; p. 69 sq.\

24 THE LAWS OF MOSES CHAP. 11

name " (sum-kit), can scarcely be claimed as specifi-
cally Arabic, since in the oldest Arabian inscriptions
—the Minean — the form would be Sum-su, and
Hommel himself, who recognises this difficulty, is
forced to suppose that the Minean form of the
suffix, with su as contrasted with hu in the later
(Sabean) inscriptions and in Arabic, was in its turn
due to Babylonian influence.1 The discussion is
further complicated by the fact that the linguistic
phenomena which characterise the names of the
dynasty are also to be found upon a number of the
Assyrian contract-tablets from Cappadocia, which,
though of extremely uncertain age and origin, are
necessarily assigned by Hommel to the age of
Hammurabi.2

The truth is, we know too little of the earlier
A history of the languages of Canaan and Arabia in
I the time of Hammurabi. At that remote period
(about 2250 B.C.), to quote Bevan, " Semitic
languages may have been spoken of which we
know nothing. Words and forms which we are
accustomed to regard as characteristically Arabic
may then have existed in no Semitic language, or
may have been common to all Semites. Even
with regard to a much later period, our linguistic
information is extremely imperfect ; whether, for

1 Op. tit* pp. 99, 103. Under these circumstances, the fact that
the Minean forms the causative conjugation with s, whilst the
Sabean uses the h (as in " Canaanite " and early Aramaic), should
also for consistency's sake be derived from the Babylonian s.

2 Hommel, op. cit. p. 142 sq.

CHAP, ii BABYLONIA AND ISRAEL 25

instance, the language of the Midianites, the
Edomites, or the Amalekites, in the time of David,
was more nearly akin to Hebrew or to Arabic is
a matter of pure conjecture. Recent discoveries
have repeatedly shown the danger of dogmatising
on these questions. Thus, for example, we are
now aware that a certain reflexive verbal form,
which scholars once considered peculiar to Arabic,
was used by the Moabites in the ninth century B.C.
If this were all that we knew of the Moabite
language, we might conclude that it was a dialect of
Arabic,1 but the inscription of King Mesha' proves
that in general it closely resembled biblical Hebrew.
Again, the Zenjirli inscriptions have shewn that,
about the same period, there existed in the extreme
north of Syria a dialect which combined certain
features hitherto supposed to be specifically Hebrew
with other features hitherto supposed to be specifi-
cally Aramaic."2 We do not know with certainty
how Moabite, Phoenician, or biblical Hebrew was
pronounced. The linguistic test for these names
must therefore be given up.

Nor is the evidence derived from theophorous
names free from ambiguity. Winckler, commenting^
upon the reference to Dagon in the Prologue to •
Hammurabi's Code, observes that Dagon is the

1 (Or, since the form is also found in Assyria, it might have been
inferred that it was an Assyrian dialect.)

2 A. A. Bevan, Critical Review, October 1897, p. 412. One
may observe also the forms taken by Canaanite words which appear
transliterated in the Assyrian and Egyptian inscriptions.

26 THE LAWS OF MOSES CHAP, n

Canaanite name of the deity who is essentially the
same with Bel, and that Hammurabi is here speaking
cnjite as a " Canaanite." On the other hand, the
prominence ascribed to the moon-god_Sin in the
same Prologue appears to Joh. Jeremias1 to point
to Arabia, where the moon -cult seems to have
flourished from an early period. Among other
divine names in this dynasty Ranke2 notes the
"new moon" (Hilal) in Elali-wakar and Arad-elali,
the Minean moon-god Wadd in Ahi-wadum and
Samas-tabbi-wadi, the goddess 'Anath in Bunu-
Anati, and Yahu (Yah we) in la-u-um-ilu, la-ve-ilu,
la-a'-ve-ilu. That the Israelite, perhaps better
Kenite, divine name Yahwe was current in Baby-
lonia at the close of the third millennium is no new
suggestion, and has so far failed to meet with
general acceptance. Even granted that the read-
ings are correct — and it is only right to notice that
they have been questioned by Halevy, Bezold, and
Zimmern 3 — the result is not helpful for the question
under discussion. If the names mean " la-u is
God," it is still questionable whether la-u is the
same as Yahwe.4 This would require the assump-
tion that Yahu or Yah was an earlier form and not

1 Moses and Hammurabi, p. 7, n. 2.

2 Op. cit. p. 51 ; cp. Hommel, op. cit. p. 116.

8 The subject has been most recently discussed by Delitzsch
(Babel and Bible, pp. 133-142) and Zimmern (Die Keilinschriften
und das Alte Testament^ p. 467 sq.}.

4 EBi. col. 3322, n. 3. It is not even certain, for example,
that the name Joel means " Yahwe is God."

CHAP, ii BABYLONIA AND ISRAEL 27

an abbreviation of Yahwe, and Hommel,1 who
adopts this unusual view, identifies it with an.
Arabian and Babylonian Ai or Ya, whose name,!
according to Delitzsch,2 on the other hand, cannot)
be proved to exist in Babylonian literature. A
solution of the problem would be to suppose that
Yahwe has been modified from an originally distinct
divine name Yahu, but the evidence at present is
far too scanty to build upon.3 At all events, the
three Babylonian names are the slenderest of
supports for the theory that monotheism prevailed
in this dynasty.

Nor is the theory strengthened by reference to
the personal names compounded with il, which are
particularly common during the period of the first
Babylonian dynasty, and led Delitzsch to argue
that these " North Semitic tribes . . . thought of
and worshipped God as a single spiritual being,"
and were in possession of "religious ideas which
differed from the indigenous polytheistic mode of

1 Anc. Heb. Trad. p. 115; Explorations in Bible Lands (ed.
Hilprecht), p. 746.

2 Op. cit. p. 138.

3 The meaning of the name Yahwe is disputed. Against the
view that it is to be connected with " to be," it has been objected
the Phoenician inscriptions use kan, not hayah. In this connection
it is interesting to find both words in a letter from the king of Tyre
(Amarna Tablets, 149 35-38) : " If my lord the king says to me, * Be
(ku-na) at the disposal of my deputy,' the servant says to his lord,
'I will be' (ta-a-ia-ia}" The latter, it will be noticed, is written
with a medial y, i.e. hayah^ and not the earlier form hawah pre-
supposed by some scholars.

28 THE LAWS OF MOSES CHAP, n

| thought in Babylonia." l Such compound names
also occur frequently in the old Arabian inscriptions,
and on the strength of them Hommel, several
years previously, had inferred that these pre-
Christian — almost prehistoric — .Arabs were mono-
theists.2 Following this line of reasoning, it would
be equally plausible to argue that such names as
Theodores, Theodotos, Theophilos, and others
proved that the Greeks were monotheists. Similar
compounds of the word for " God " are found
among the Aramaeans and Phoenicians, and cannot
be claimed to represent any other than the existence
of specified local or tribal gods. Henotheism is a
long way removed from monotheism ; the road to it
" lay through a long development in which tribes
were welded into nations and the deities were
formed into polytheistic pantheons." 3

It must be mentioned that other indications of
tendencies towards monotheism have been brought
forward, and a tablet — of the New Babylonian
period certainly — is quoted where Marduk is
identified with the highest of the deities in the
Babylonian pantheon.4 But from what we read in

1 Delitzsch, Babel and Bible, pp. 129-133.

2 Hommel, Anc. Heb. Trad. pp. 82-84.

8 Barton, Semitic Origins, p. 321 ; cp. Robertson Smith, Rel.
Sem.(z) p. 39; Bevan, Critical Review, October 1897, p. 413 sq.;
Gunkel, Israel und Babylonien (Gottingen, 1903), p. 29.

4 Pinches, The Old Testament in the Light of the Historical Records
of Assyria and Babylonia (1902), pp. 58-60, 160 sq. ; Delitzsch,
op. cit. pp. 67-72, 132 sq., 143 sq., 199 sqq. ; A. Jeremias, Im
Kampfe um Babel und Bibel,^ pp. 12-16.

CHAP, ii BABYLONIA AND ISRAEL 29

some of the more elevated writings of the Baby-
lonians such syncretism is not unexpected. The
advanced conceptions which meet us now and again
are not unworthy of a Hebrew prophet; they breathe
the loftiest ideals and are inspired with the sub-
limest postulates.1 But this is no argument that ]
Israel's monotheism or the ideals of the prophets
took their rise upon Babylonian soil, and Hommel
has reasonably objected that the dynasty, if!
" Canaanite," left no traces of its monotheism in
Canaan itself. Tendencies towards monotheism
are found in early Arabia before Islam,2 and are
not confined to the Semitic field, but they do not
admit of being placed upon the same plane with the
Israelite conceptions ; they are exceptional growths,
and the speculations of a few of the more noble
minds. " The sublimity which appears in Israel,"
to quote from a recent able discussion of Semitic
religions, " is that of a practical monotheism ac-
cepted by the whole nation — men, women, and
children ; the loftiest thoughts of God applied to
daily duties by all." 3

The theory of the Arabian origin of the first
Babylonian dynasty, on the other hand, must be
admitted to be extremely plausible. From Arabia,
probably the earliest home of the Semites,4 suc-^j h

1 One need only refer to the extracts in King, Babylonian
Religion^ chap. 6.

2 Wellhausen, Reste Arab. Heidentumsj® pp. 216 sqq.

3 Barton, Semitic Origins^ p. 307.

4 See Wright, Comparative Grammar of the Semitic Langtiages,

30 THE LAWS OF MOSES CHAP, n

cessive waves of immigration have swept north-
wards, and a certain amount of intercourse with
Babylonia is proved by the occasional references to
Arabian products in the oldest inscriptions of
Gudea, Sargon I., and Naram-sin.1 Consequently,
Hommel is not without the support of analogy
when, on the one hand, he ascribes the dynasty
of Hammurabi to Arabia, and, on the other,
seeks distinct traces of Arabian influence in Israel.
The hypothesis of a common fountain-head is also
adopted by Joh. Jeremias, who, summing up his
discussion of the Code of Hammurabi, puts forward
the hypothesis that the traces of customary law in
ancient Arabia — the reference is to the pre- Islamic
usages of Christian times — lead us to infer a
common tradition of Arabian origin for the laws of
Moses and the Code.2 If Arabia is the cradle of
the Semites, and has best preserved the character-
istics of the Semitic race, even as the language
approximates most nearly to the primitive Semitic
tongue, the hypothesis in question is no doubt
a priori justifiable. At the same time, neverthe-
less, one must not too hastily accept the theory
that Arabia at this remote period was already in
possession of a civilisation of a highly developed
character that was able to leave its stamp upon

chap. 1 ; and Barton's discussion of the newer theories in Semitic
Origins, chap. 1.

1 Hommel, Explorations in Bible Lands, pp. 738 sqq.\ A.
Jeremias, Im Kampfe um Babel u. Bibel, p. 21.

2 Moses und Hammurabi, p. 47 ; cp. p. 7, n. 2.

CHAP, ii BABYLONIA AND ISRAEL 31

either the dynasty of Hammurabi or the earliest
Israelites. This theory of a South -Arabian seat
of culture, second only to that of Babylonia, has
obtained some currency in recent years, and has
become particularly prominent since it has been
used in some quarters to support the traditional
view of the Old Testament against the results of
higher criticism.

Our knowledge of the ancient South - Arabian
kingdoms is derived from numerous inscriptions,
which fall into two distinct classes, the Minean and
Sabean, and belong chiefly to south-west Arabia.
The former of these have been ascribed to a period
ranging from 1400 to 700 B.C., at which date the
inscriptions of the Sabean priest-kings are supposed
to begin ; the latter go down to about the sixth
century of the Christian era.1 They presuppose
a highly developed religious system, with priests
and priestesses, whose designation, lawl, lawiat, is j
not improbably to be connected with the familiar
biblical "Levite"; they present interesting analo-
gies to Israelite ceremonial laws, and contain
terms relating to cult that find their parallels inj
the priestly writings of the Old Testament. But
this is not the place to speak in detail of the state
of culture which these inscriptions reveal. How-
ever valuable they may be, it must not be for-
gotten that, unfortunately, there is no certain
evidence as to their date, and the authorities to

1 Hommel in Hilprecht's Explorations in Bible Lands, p. 728 sq. ;
cp. Winckler, KAT^ p. 141 sq.

32 THE LAWS OF MOSES CHAP, n

whom we are indebted for their decipherment are
by no means unanimous as to the period to which
they belong. The above-mentioned dates, which
fare those recently given by Hommel, must there-
fore be regarded as tentative, and if that scholar's
view be accepted, that the dynasty of Hammurabi,
and the culture that characterises it, are of Arabian
origin, it would be necessary to push back the date
(1400 B.C.) another eight centuries at least.

The antiquity which the argument presupposes
is considerably shaken by the fact that the one
dated Minean inscription belongs to the Ptolemaic
age, and that another which has a reference to
Egypt and to Minean colonies in Edom is attri-
buted to the time of Cambyses. It would not be
unreasonable to suppose that the Minean inscrip-
tions, like those of Assyria and Babylonia, extended
over a lengthy period, and one would therefore
expect to find a marked change in the language
and palaeography. This, however, does not appear
to be the case, at least as regards the palaeography,1
since the oldest Minean royal inscriptions are most
closely related to the oldest Sabean, and only those
of the " kings of Saba" present later modifications.2
It is a far cry from here to the origin of the
alphabet, but the question of the date of the

1 The most important linguistic differences between Minean and
Sabean have already been mentioned (p. 24, n. i above).

2 The "kings of Saba" followed the "priest-kings" (not later
than about 550 B.C.), and extend to about 115 B.C. (Hommel,
loc. dL

CHAP, ii BABYLONIA AND ISRAEL 33

Arabian kingdom actually hinges upon it. The
Minean script is now admitted to be derived from
the same alphabet as that of Canaan,1 and the
merest glance sufficiently demonstrates the extra-
ordinary modifications it has undergone. The
writing, instead of running from right to left,
becomes boustrophedon (from right to left and left
to right alternately) ; an intense desire to form the
characters symmetrically has changed curves into
angles and has caused several of the letters to take
a new position ; and, finally, additional signs have
been formed in order to represent the finer shades
of utterance. In Canaan, on the other hand, the
earliest specimens of the so-called " Phoenician "
alphabet scarcely go back beyond the middle of
the ninth century. The Moabite Stone, the Hadad
inscription from Zenjirli in North Syria, and the
11 Baal-Lebanon" bowl of Hiram II.2 palaeographic-
ally resemble one another and the earliest European
forms so closely, and in the course of the next few
centuries begin to diverge from one another so
characteristically, tfyat the parent source from which
they have severally been derived could not have
been in existence any very lengthy period. How
long a time one must allow for the gradual modi-
fication of this script to the form which it takes in

1 Hommel, loc. cit. See especially Lidzbarski's essay in his
Ephemeris fur Semitische Epigraphik, 1 109 sqq. (1902).

2 So, and not Hiram I., the contemporary of David and Solomon,
following von Landau and E. Meyer (EBi. "Phoenicia," col. 3753,
n. 2).

34 THE LAWS OF MOSES CHAP, n

the oldest Minean inscriptions it is impossible to
say, but the most favourable allowance being made,
it is most improbable that they can be dated as
far back as 1400 B.C.1 Other arguments against the
extreme antiquity of the South Arabian inscriptions
have been urged,2 and an unprejudiced view of the
drift of the evidence unhesitatingly forbids us in the
present state of our knowledge to assume that
Arabian culture could have influenced the earliest
Israelites.

The conclusions to which one has been led are
negative. There are no cogent reasons for the
view that |the dynasty of Hammurabi was so
specifically North Semitic as to suggest that his
code was based upon legal institutions which grew
up and flourished in the land which many centuries
later was occupied by the Hebrews. | The occur-
rence of the name Yahwe in that remote age is
uncertain, and the monotheism of the dynasty is
doubtful.3 That the dynasty was Arabian does not
yet admit of proof, but the theory has in its favour

!the fact that it is entirely in accordance with history
that immigrants from Arabia should have issued
forth from the " Brown Continent," and gained

1 That the assumed antiquity of the inscriptions should compel us
to carry back the date of the parent alphabet is an alternative which
will scarcely occur to any one.

2 Budge, History of Egypt, 6 xvi. sqq. ; G. A. Smith, EBL
"Trade and Commerce," §§ 14, 17.

3 The reference is to the numerous compounds of il (p. 27 sq.
above) ; the value of the New Babylonian tablet first edited by
Dr. Pinches is not denied (p. 28, n. 4).

CHAP, ii BABYLONIA AND ISRAEL 35

supremacy in Babylonia. The early existence of
a seat of civilisation in Arabia is proved by its
antiquities that have been discovered, but we are
not yet in a position to ascribe them to a date
anterior to the entrance of the Israelites into
Canaan.

Besides, to what extent is it legitimate to con-"
elude that Canaan, surrounded as it was by seats of
civilisation and culture, must have been touched by
their influence ? Hammurabi and Ammi-satana, the
eighth of the dynasty, claim to have reigned, over
the land of Canaan (mat Amurri \_Mar-tu~\),1 and we
are told that colonies of " Amorites " were at that
time settled throughout Babylonia.2 Neither of
these facts can be taken as proof that the influence
exerted by Babylonia over Canaan was at all deep-
seated, and the same must be said of the famous
Amarna Tablets. The letters between the Egyptian
Pharaohs, on the one side, and the rulers of
Babylonia, Assyria, Mesopotamia, and Cyprus, or the
overlords in Canaan, on the other, are written in
cuneiform, and the widest possible inferences have
accordingly been drawn. Thus, it has been con-
cluded that the influence of Babylonia upon Canaan
must have been of long duration, that Canaan was
steeped in Babylonian culture, and was no more than
a Babylonian domain when the Israelites appeared

1 Pinches, Records of the Past, second series, 5 104 ; Winckler,
Altorient. Forschungen, 1 144 sqq ; KAT®] pp. 20, 178 sqq.

2 Sayce, Babylonians and Assyrians, pp. 187-192; Pinches,
The Old Testament, pp. 169 sqq.

36 THE LAWS OF MOSES CHAP, n

upon the scene. " It was not only the commerce,"
says Delitzsch, " but also the trade, law, custom, and
, science of Babylon that set the fashion in the land." 1
Would it not be as justifiable to assume from the
contents of the letters themselves that Egyptian
influence must have been equally deep-seated?
And this would be the more natural, since the
circumstance that the tablets are written in Assyrian
only proves that as a literary and diplomatic
language Assyrian was found to be a better vehicle
than the Canaanite, which at that time probably did
not exist in writing. The widespread use of
Aramaic in later times is another instance of the
widespread use of a language for diplomatic
purposes, and — to descend to the Christian era — it
is well known that the Arabians wrote their public
documents in Persian, Greek, or Coptic (in Cufa,
Damascus, and Egypt respectively), until the use
of Arabic was introduced. The Amarna Tablets,
therefore, as many scholars agree, are " no criterion
for the state of intelligence and the extent of the
penetration of Babylonian culture among the mass
of the people."2

Or again, if it is stated, on the strength of the
claims of Hammurabi and Ammi-satana, that Canaan
in the time of Abraham was already freely exposed

1 Babel and Bible, p. 40 ; cp. Gunkel, Israel und Babylonien, p. 7.

2 Budde, " The Old Testament and the Excavations," American
Journal of Theology -, 1902, p. 701 ; cp. Bevan, Critical Review^

1897, p. 410; Earth, Bibel u. Israelit. Religion (Berlin, 1902),
p. 4 sq.

CHAP, ii BABYLONIA AND ISRAEL 37

to Babylonian influence, is it not equally plausible
to appeal to the historical inscriptions of Thutmosis
III., Ramses II., and Sosenk I. (Shiskak), and
assert that Canaan, from before the age of Abraham
down to the time of Solomon, was constantly open
to Egyptian civilisation ? This has even been done.
It has been recently asserted, for example, that at
the period when the Israelites entered Canaan,
Arabia was " thoroughly saturated with the elements
of Babylonian, and no doubt also of Egyptian, life
and thought," whilst " in Palestine a highly de-
veloped civilisation had been already in active
existence for at least a thousand years."1

That the influence of the surrounding seats of
civilisation did make itself felt upon the land of
Canaan at some period is a fact that cannot bej
denied.2 The traces of Babylonian culture are too
numerous to be ignored, but to what age do they
belong ? Babylonian myths could no doubt have
found their way in at a remote date, since legendary
matter is precisely the kind of material that most
readily passes from mouth to mouth. It is note-
worthy, however, that the legend of the Flood, even,

1 Kittel, The Babylonian Excavations and Early Bible History,
(London, 1903), pp. 24-27.

2 The traces left by Egypt, however, are of the slightest (cp.
Robertson Smith, Prophets of Israel j® p. 379 sq.\ Sayce, too,
observes that in the Mosaic legislation " it is remarkable how entirely
Egypt is ignored " (Early History of the Hebrews, p. 2 1 o). The
recent attempt of Volter to find Egyptian mythology reflected in the
traditions of earlier Israelite history (Aegypten und die Bibel, Leyden,
1903) is ingenious, but scarcely convincing.

38 THE LAWS OF MOSES CHAP, n

is not preserved in the earliest Hebrew records. It
is not until the time of a later Yahwist writer that
it finds a place, and from this it would seem that it
could scarcely have been familiar to Israel before
the end of the eighth century.1 Again, foreign
traders could easily introduce their systems of
weights and measures, but it is questionable whether
their influence would go beyond this. To take an
example : literary criticism includes the interesting
account of Abraham's purchase of the cave of
Machpelah in Gen. 23 among a series of narratives
written by the (post -exilic) priestly writer. The
purchase is narrated with great fulness, as contrasted
with the single verse which the earlier (Elohist)
writer devotes to the similar act in Gen. 8819 (cp.
also 2 Sam. 24 24). Although of later origin, the
details are doubtless quite in accordance with ancient
practice, since customary usages in the East are
changed only with the greatest difficulty and by slow
degrees. But viewed in the light of " Babylonian
influence," how does the narrative stand ? Some
writers are struck with the Babylonian colouring, and
find in Gen. 23 " a faithful picture of such trans-
actions as they were conducted at the time in the
cities of Babylonia. ... It reads like one of the
cuneiform documents ; ... it is conformed to the
law and procedure of Babylonia as they were in the
patriarchal age. At a later date the law and
procedure were altered, and a narrative in which

1 EBi. col. 1059 sqq. ; Budde, op. tit. p. 706 sq.

CHAP, ii BABYLONIA AND ISRAEL 39

they are embodied must therefore go back to a pre-
Mosaic antiquity." 1 Other Assyriologists, however,
are well aware that a comparison of the Babylonian
contracts with the biblical account of the transaction
in Genesis " shows noteworthy differences." 2 The
resemblance is only superficial ; not only are the
most essential Babylonian characteristics wanting,
but the chief feature common to both — the trans-
action of business at the city gate — was, and is, so
regular a practice in the East, that it is impossible
to find in Gen. 23 10, 18 an indication of Babylonian
influence.

The tendency to exaggerate the extent of
foreign influence — which has occasionally gone to
such a length as to derive the essential features of
Israelite culture and religion from outside — takes
no account of historical experience. It is a familiar
fact that many of the present customs in the East
find parallels in pre- Islamic Arabia, in ancient
Israel, even in Babylonia itself. In the study of
primitive institutions the terms " ancient " and
" primitive " are not correlative ; that which is
chronologically ancient is not therefore old from
the point of view of comparative custom. Many
Bedouin tribes are, sociologically, older than the
earliest historically known Israelites, and the latter,
in turn, even in the sixth century are far behind

1 Sayce, Early History of the Hebrews, p. 57 ; cp. Boscawen,
Journal of the Victoria Institute, 24 186 (1890-91): it "reads as if
it were taken from Babylonian documents."

2 So, Pinches, The Old Testament, p. 238.

40 THE LAWS OF MOSES CHAP, n

the Babylonians of the time of Hammurabi. The
long years of Roman oppression and the wars of
the Crusaders have left their mark upon the land
of Palestine, but what traces are to be found among
the people ? Primitive institutions and beliefs are
almost ineradicable ; waves of foreign population
may flood a land, and leave their traces only in
the nomenclature or in the ethnological types.
Palestine, at the present day, has preserved primi-
tive Semitic rites and customs, sometimes almost
intact, sometimes under a veneer of Moham-
medanism,1 and, speaking generally, it is only in
the towns and villages along the regular trade-
routes and roads that primitive conditions have
undergone any change.

Accordingly, the Code of Hammurabi is an
important addition to ancient literature for socio-
logical reasons. Apart from the fact that it is the
oldest known code of laws, it is especially valuable
for the light it may be expected to throw upon the
life of the Babylonians at the close of the third
millennium before Christ. It follows, too, from
what has been said, that it will enable us to deter-
mine whether f Babylonian influence over Canaan
was so strong as to force its code upon its in-
habitantsTS Of greater interest is the question of
its relation to the legal institutions of the Old

1 See the present writer in the Jewish Quarterly Review^ April
1902, p. 430 sq., and especially the invaluable material collected at
first hand by Prof. S. I. Curtiss, Primitive Semitic Religion To-day
(1902).

CHAP, ii BABYLONIA AND ISRAEL

Testament. The attempt must be made to see To
what extent Israelite law is indebted to the Code,;
to determine whether Israelite lawgivers framed
their laws upon Babylonian models, and if so, at
what period. For this purpose it will be borne in
mind that the [Code was promulgated by a king
whom Hebrew tradition knew as a contemporary
of Abraham, and even Abraham's traditional home
is one of the very cities mentioned in Hammurabi's
prologue. It is by no means unlikely, therefore,!
that a copy of the Code was set up in Urjof the|
Chaldees. In addition to this we must remember
that the Code long continued to form the founda-
tion of Babylonian law. Under the name " the
Judgment of Righteousness which Hammurabi the
great king set up," it reappears in the reign of
Asurbanipal (probably 668-625 B.C.), almost con-
temporary, therefore, with the oldest portion of
Deuteronomy and the reforms of Josiah (622-
621 B.C.). At a still later period it became a text-
book for students in Babylonia, and its laws were*
divided into chapters with headings.1 With the
decay and fall of Assyria and Babylonia, it is not
to be expected that all recollection of the Code diecj
out. Talmudic legislation, with its minuteness of
details, may well have borrowed from it, and this is
the more probable since the later Jewish contracts
contain characteristic reminiscences of Babylonian
legal phraseology.2 Finally, in Syria itself, the

1 C. H. W. Johns, The Oldest Code of Laws in the World, p. vi.
'2 N. M. Nathan, Orient. Litteratur-Zeitung, 1903, col. 182-184.

42 THE LAWS OF MOSES CHAP. 11

fifth-century law-book, edited by Brims and Sachau,
which influenced later legal procedure from Armenia
to Egypt, although a free edition of Roman law,
reveals provisions which are neither of Roman
origin nor modifications or adaptations of known
Roman law.1

Babylonia, fortunate enough to possess a
thoroughly practical code dating back at least to
the twenty-third century before Christ, stands in
marked contrast with Israel, whose legislation was
. the result of a very gradual development from the
primitive customary usage of the desert, and did
not attain its present form until after the Exile.
Jewish theory attributed its origin to Yah we, who
revealed laws through Moses, even as the sun-god
Samas imparted the laws of the Babylonian code to
Hammurabi. But there is not the slightest reason
to suppose that Hammurabi introduced a series of
innovations or novelties ; his laws have had a
lengthy history behind them, and prove themselves
to be based upon ancient custom. Israelite tradi-

ftion, in like manner, presupposes the existence of
laws before Moses, and the two systems of legisla-
tion have this in common, therefore, that they may
claim to be not original productions, but authorita-
tive promulgations. ^Israelite tradition, moreover,
ascribes to the authority of Moses laws that are

1 Syrisch-Romisches Rechtsbuch aus dem fiinften Jahrhundert aus
den orientalischen Quellen herausgegeben, iibersetzt und erldutert
(Leipsic, 1880).

CHAP, ii BABYLONIA AND ISRAEL 43

clearly of later origin.1 ; The conglomeration of
civil and religious law in the Lex Mosaica, when
closely examined, presupposes a variety of condi-
tions which could not have existed at one and the
same time ; some of the enactments have the
appearance of being ancient survivals of nomad'
days adapted to the changed environment, others
are doubtless due to the prophets, the recognised
mouthpieces of " instructions " (torotJi), and still!
others bear a specific priestly stamp, and reflect \
an exilic background. The disentanglement and
separation of this complexity into its component
parts is the work of the " literary criticism " of the
Old Testament, and its results disclose a develop-
ment in the history of Israelite legislation, without
the recognition of which the law becomes un-
intelligible and contradictory, and the study of
Israelite /M5 would be an impossible task.

The history of the development of law in Israel
is divided into four distinct periods, one of which
falls outside biblical times.2

(i) The civil law of the oldest period, down to
the reformation of Josiah, is represented in the
so-called Book of the Covenant, Ex. 21-23 (more
precisely 21 2-22 17), and is illustrated by the

1 Notably in the law of war, I Sam. 30 24 sq., compared with
Num. 31 27 (P).

2 See especially G. B. Gray, EBi. "Law Literature." The
synopsis of Israelite laws and institutions in the Hexateuch can be
best studied in the tables presented in Carpenter and Harford-
Battersby, The Hexateuchy \ 222 sqq.^ 266 sqq. (London, 1900).

44 THE LAWS OF MOSES CHAP, n

writings of the Yahwistic and Elohistic schools
/_.and the earlier prophets. The existence of a
-written collection embodying social laws is pre-
sjoggosed for the middle of the eighth century by
Hosea 8 12, where the allusion may be to no other
than this collection.1 The Book of the Covenant,
therefore, is the oldest civil code in the Old
Testament,2 and it is important to understand its
characteristics. On examination it proves to belong
to an agricultural people, whose wealth consists of
cattle and produce, although money is not un-
y known. The legal principles are those of the
desert-dwellers of to-day — the talio and pecuniary
compensation ; there are no degrading punishments.
Women are not upon an equality with men, but,
like the slaves, possess certain rights. There is no
centralisation of justice ; men can resort to any shrine
or sanctuary for a divine decision. The structure
of society is of the simplest. No doubt other laws
came into being as society became more complicated,
and towards the close of this period, during the
seventh century, we may trace the rise of a greater
refinement of morals and ethics, such as is reflected
in the Decalogue.3

1 The text is doubtful. Gratz's emendation, " the words of my
torah" is perhaps the most plausible.

2 "It may be compared with the Laws of the Twelve Tables, and
especially with the legislation of Solon, to which it is probably not
much anterior in time" (G. F. Moore, EBL " Exodus," col. 1447).

3 The contemporary ethics of the Assyrians are to be seen in
the ceremonial code quoted by King, Babylonian Religion^ pp.
218-220.

CHAP, ii BABYLONIA AND ISRAEL 45

(2) The period of the reformation of Josiah
(621 B.C.) is marked by a pragmatism, the first!
traces of which begin to appear in the later elements1'
of the Elohistic writings. The code of this period
is the Deuteronomic, whose leading feature is the
institution of a single sanctuary at Jerusalem, an
innovation which would inevitably tend to the
centralisation of justice and to the modification of ,
old legal usages. A complete codification of law
now became a necessity. Most critics confine the
original law-book of Josiah's day to Deut. 5-26, 28,
but as a close inspection of their contents proves,
these chapters have not come down unchanged.
The code has probably drawn upon several olden
collections, several of which may have been in
writing before they were embodied in Deutero-J
nomy. The old laws in the Book of the Covenant
are rewritten, expanded, or modified, and primitive
usages which for sofne reason or another were not!
included in the older code find a place here for the
first time. The executive system is more advanced,
the talio has begun to disappear, and a new
form of punishment — the bastinado — makes its
appearance, the indication of a change in sociajt
feeling.1 Pecuniary compensations, which had

1 Robertson Smith, Old Test, in Jewish Church,^ p. 368. The
introduction of the bastinado into Arabian procedure is probably due
to Persian influence (G. Jacob, Das Leben vorislam. Beduinen^
p. 165, Berlin, 1895). It was a common mode of correction in|
Egypt and Assyria, especially for lighter offences. In the former
land leading offenders of rank were spared this humiliation, and were
allowed to commit suicide (Spiegelberg, Studien u. Materialien z.
Rechtswesen d. Pharaonenreiches^ pp. 66 sqq.^ Hanover, 1892).

46 THE LAWS OF MOSES CHAP. 11

previously been left to the injured party or to
customary usage, are now legally fixed at a specified
sum.1 Like the Code of Hammurabi (which is
also characterised by the frequent specification of
the amount of compensation), the Deuteronomic
code is prefaced by a historical introduction and
rounded off with a blessing and a series of cursings
(above, p. 15). As a whole, it is marked by the
emphasis with which heathen usages are forbidden,
and by the mitigation of older rude or harsh institu-
tions. It is a law-book which endeavours to give
expression to the ideals of the prophets, whilst pre-
senting a fairly practical system of legislation.

(3) The exilic period is characterised by the
I largely theoretical and ideal system of legislation
which is especially noticeable in Ezek. 40 sqq.
Early history was rewritten from the priestly stand-
point (end of sixth and beginning of fifth century),
its chief object being to indicate the divine origin of
Israelite institutions. The legislation of Leviticus
is pre-eminently ritualistic ; only the so-called Law
of Holiness (Lev. 17-26) requires special mention.
This important collection is of exilic origin, although
the sources from which it has been derived are
considerably earlier. It is particularly noticeable
or its familiarity with the older codes (cp. especially
ch. 19),2 and for the greater minuteness with which

1 Ex. 22 16 sq. contrasted with Deut. 22 28 sq. ; cp. also Ex.
21 22, 30, with Deut. 22 19.

2 " Perhaps the best representative of the ethics of ancient Israel "
(G. F. Moore, EBi. " Leviticus," § 17).

CHAP, ii BABYLONIA AND ISRAEL 47

family and social life is regulated. It may owe its I
ultimate origin to the toroth or legal decisions of the/
monarchical age, several collections of which were!
probably current.1

(4) The closing of the Canon did not put a stop\
to legislative activity. The Mosaic laws were\
theoretically discussed with an almost inconceivable
thoroughness, and their provisions were adapted to/
the changed conditions of Judaism. Numerous legal
usages had come into currency since the Exile, and
had passed into the common tradition, and this
extra-canonical legislation was likewise attributed to
Moses, who, according to the Jewish theory, had
handed it down orally along with the written laws of
the Pentateuch. The fall of Jerusalem gave occasion
for a systematic codification of the " oral " law,
which, together with the decisions of the Rabbis, is,
embodied in the Mishnah (about 200 A.D.). The
Mishnah, in turn, formed the subject of the renewed
discussions in the rabbinical schools of Palestine
and Babylonia which are contained in the " Gemara,"
and with the Mishnah constitute the Palestinian and
Babylonian Talmuds respectively. The scope of'
the present study does not necessitate a considera-
tion of the later post-Talmudical development of
Jewish law, and enough has been said, perhaps, to
indicate the fields over which the Babylonian code
could exert its influence.

1 Cp. the series of offences in Ezek. 18.

CHAPTER III

ELEMENTS OF LAW AND PROCEDURE

Babylonians and primitive Semites — Tribal custom the foundation of
law — Blood-revenge — Judicial authorities — Institution of judges
in Israel — Centralisation of justice — Divine decisions — Resort to
a deity — Oaths of purgation "before God" — Semitic ordeals —
Procedure in Babylonia — Laws relating to judges and witnesses.

THE existence of a lengthy code, which, as we
have seen in chap, i., covered a great variety of
legal topics, is sufficient proof that in Hammurabi's
age law and justice had reached an extremely
advanced stage of development. It presupposes
regularly instituted courts of law with duly qualified
judges, and it requires us to conclude, further, that
this stage had long been in existence, and that the
Code was intended to fix once and for all certain
judicial decisions which, if not new, at least required
the authority of royal approval to make them
general.

The Babylonian Semites and the Semites of the
desert lived under entirely different conditions, and
whilst the latter, particularly in districts removed
from the regular trade-routes, have remained through-

CHAP, in ELEMENTS OF LAW AND PROCEDURE 49

out all ages practically untouched by the influence of
the surrounding seats of culture, Babylonian society
in the time of Hammurabi was a fusion of Semitic
and pre-Semitic stocks of obscure origin.1 What
Robertson Smith has said of the religious ideas of
Babylonia in their relation to those of the primitive
Semites2 may be applied to its laws. The fusion
of races in Babylonia leads to the expectation that
the principles of law and justice were an artificial
combination of the most diverse elements, and it is
therefore obvious that our inquiry must start with
the less complicated types from the other regions of_
the Semitic world.

Here we are at once brought face to face with the >
fact that among primitive Semitic communities there /
is, properly speaking, no law and no law-givers. But
it would be a mistake to infer that there was law-
lessness.3 Tribal custom — and with it is involved
religious custom — is the strongest of laws. A thing
is lawful because it has always been considered
lawful ; things that are unlawful are things that are
not wont or ought not to be done.4 Within the

1 That the so-called Accadians or Sumerians were not Semites
seems to be conclusively proved, but of their nationality and life there
is little certain information. Under these circumstances it is scarcely
necessary to attempt to discover in what respects the Code is
indebted to non-Semitic legislation.

2 Rel. Sem.(2) p. 1 3 sq.

3 Cp. Benzinger in EBi. "Law and Justice," § i, "Government,"

§9-

4 Gen. 20 9, 29 26 (a reference to local custom) ; cp. Gen. 34 7,
2 Sam. 13 12.

50 THE LAWS OF MOSES CHAP. HI

tribe all men are on a footing of equality, and under
a communistic system petty offences are unreason-
able. Serious misdemeanour is punished by expul-
sion ; the offender is excluded from the protection of
his kinsmen, and the penalty is sufficiently severe to
prevent its being a common occurrence. The man
who is wronged must take the first step in gaining
redress, and when it happens that the whole tribe
is aroused by the perpetration of any exceptionally
serious crime, the offence is fundamentally regarded
as a violation of the tribe's honour, rather than as
a personal grievance on the part of the family of the
sufferer. Courts, as in Babylonia, for the adequate
punishment of offences and legally ordained punish-
ments are not yet in existence. This essential dis-
tinction between primitive Semitic and Babylonian
procedure comes out most clearly in the case of
blood-revenge.

The familiar Semitic conception of the sacredness
of blood — whether human or animal — must have
long been forgotten among the Babylonians, whose
code is characterised by the frequent application of
the death penalty. It is unnecessary to point out
in detail how the Semites have been influenced by
this conception. The inviolable nature of the blood-
tie which makes kinsmen brothers, and the responsi-
bility attached to the shedding of blood, lie at the
very root of the almost ineradicable system of
blood-revenge. If a man has killed one of his own
group, he has committed an offence for which he
cannot expect to obtain protection from the members

CHAP, in ELEMENTS OF LAW AND PROCEDURE 51

of his tribe. He may be solemnly put to death, and
this was primarily effected without the spilling of
blood, or he may be formally expelled, in which
case he becomes an outlaw.1 In any case the com-
munity must be purged of the presence of the
impious member. On the other hand, when the
slayer and the slain are of distinct groups, the
principle of the sacredness of blood reacts in a
different manner. The group of the slain, on the
one side, are bound in point of honour not to leave
their kinsman's death unavenged ; the slayer's group,
on the other, so far from being under an obligation
to surrender the guilty one, regard it as equally a
point of honour to unite to protect him. There is
blood-feud between the two groups. Any member
of the aggrieved group may retaliate upon any of
the slayer's group, and until satisfaction is obtained
this state of feud continues. Naturally, under the
circumstances, there may be indiscriminate slaughter,
and the blood -feud is prolonged indefinitely. So
deeply rooted is the practice that blood -revenge
holds good among the wilder Bedouin tribes of to-
day. Certain modifications, however, were gradually
introduced, with the object of preventing the fierce
internecine fights and the insecurity of life which

1 Cp. Gen. 4 12. In ancient Arabia the formula varied : we pro-
nounced so-and-so to be a hali^ " God put away this man," or " We
are clean (innocent) of him" (Procksch, Uber die Blutrache bei den
vorislamischen Arabern^ p. 31 sq.}. For the principles of blood-
revenge, see Robertson Smith, Kinship and Marriage f} pp. 25-27 ;
cp. also W. M. Patton, " Blood -revenge in Arabia and Israel,"
American Journal of Theology ^ October 1901, pp. 703-731.

52 THE LAWS OF MOSES CHAP, in

the feud entailed. Blood -wit was offered and
accepted, the responsibility for murder was confined
within limits, and retaliation restricted to the guilty
party and immediate relations.1 The development
of the system in Israel will require separate con-
sideration later, where we shall find that as late as the
seventh century the murderer is solemnly delivered
over into the hands of the slain man's nearest kins-
man, "that he may die," and that in other cases
where the death penalty has to be enforced it is
carried out by the community in general. Even
the responsibility of judicial blood -shedding must
needs be borne by as many as possible.2

It is characteristic of primitive Semitic organisa-

f tions that there are no specified officials to pronounce

\ or carry out legal decrees. In every tribe there were,

and are, certain leading families, often hereditary,

whose heads enjoyed certain privileges,3 in return

for which they performed particular duties — the

entertaining of guests, the protection of widows and

orphans, etc. — but except when the tribe is organised

for defence or offence, the office is one of dignity

rather than authority. The sheikh may be called

I upon to settle differences within the tribe, or, if he

1 Jaussen (Revue Biblique, 1903, p. 253) mentions the story of a
modern Bedouin who, to protect his kin from blood -feud and to
confine a quarrel to his adversary and himself, solemnly repudiated
his family. Henceforth he alone became responsible for what
followed.

2 Rel Sem.(a} pp. 284 sy., 304 sq., 417 sqq.

3 Thus the sheikh, in ancient Arabia also called sayyid, " coun-
sellor " (cp. Heb. sod\ receives one-fourth of all booty.

CHAP, in ELEMENTS OF LAW AND PROCEDURE 53

be of repute, men from outside may appeal to his;
decision. But he has no judicial powers, and if
either of the parties is dissatisfied he cannot enforce
obedience. Much less can he himself inflict punish-
ment even upon the poorest man of the tribe. He
is not supported by subordinate officers appointed to
carry out his decrees ; his weapon is persuasion rather
than compulsion.1

Such tribes, held together by the bond of blood,
in course of time united with their neighbours, and
became knit together by common interests and
practical necessity, and when the occasion arose for
joint action, the leading sheikhs of each community
consulted together and took the reins of these half-
developed states. These steps on the road to
kingship2 were trodden by the Israelites, whose
conditions, in the earliest periods of their history,
can scarcely have been very different from the
pre- Islamic Arabs and modern Bedouin. How
utterly removed they were from the advanced
organisation of Hammurabi's age needs no demon-
stration.

On entering Canaan, the Israelites found them-
selves in the presence of a culture superior to their
own, through whose influence their primitive tribal
constitution in course of time became entirely lost.

1 See Robertson Smith, Prophets, p. 381, Kinship,^ p. 68;
Doughty, Arabia Deserta, 1 145 (and passim) ; Procksch, op. tit.
pp. 7 sqq. ; Lady Anne Blunt, Bedouin Tribes of the Euphrates^
2 231 sqq.

2 Rel. Sem.(2) p. 33 sq.; Blunt, op. cit. p. 235 sq.

54 THE LAWS OF MOSES CHAP, in

But the superior culture of the Canaanites rested
solely in the fact that they were a settled people, who
lived in towns and were familiar with agriculture,
and the excavations in Southern Palestine, at all
events, do not lead us to infer that the stage of
civilisation which they had reached was as high as
the presumed influence of Babylonia would have led
us to expect. The Canaanite communities consisted
of cities around which were grouped " daughters,"
villages which stood in a subordinate relation to
them. We are as ignorant of the details of their
constitution as we are of that of their northern
neighbours, the Phoenicians, although several con-
siderations tend to make it probable that their
government was in the hands of an aristocracy, the
princes (sartm), elders (zekeriim), or lords (be'altm)
of the Book of Judges,1 who controlled all matters
affecting the interests of the city (Judg. 8 sq.). That
they held legislative powers is doubtless true, in so
far as might makes right. Professional judges were
rnot known in the earlier period of Israelite history;
even in Egypt it is questionable whether they existed
before the New Kingdom.2 Of the Hebrew terms
Tor " judges," the soter is primarily a military official,
and it is not until post- exilic literature that it is
applied to one with judicial powers.3 The mehokek
is a commander or ruler, and the same appears to

1 Cp. Meyer, EBi. "Phoenicia," § 16.

2 Spiegelberg, Studien und Materialien sum Rechtswesen des
Pharaonenreiches (Hanover, 1892), p. 63.

3 See Driver's note, Deut. p. 17.

CHAP, in ELEMENTS OF LAW AND PROCEDURE 55

be true of the kasin (the familiar Arabic kadi).1
The sophetlm in the Book of Judges are the
champions or deliverers of Israel ; the term is
synonymous with mdlek, " king," in Hos. 7 7, Ps. 2 10,
and as an official title of the chief magistrate or
consul in Phoenician cities is interpreted " king " by
the Greeks.2 A noteworthy exception to these terms
is the specific designation day y an (Heb. and Aram.),
corresponding to the Babylonian da-a-nu, da-ia-nu ;
it is, however, extremely rare, and appears only in
Ps. 68 5 (e) and i Sam. 24 15 (16) ; even in the
latter passage it is questionable whether it belongs
to the original text.3

That a professional class of judges did not exist
is also borne out by the fact that we find no mention
of them in the oldest Israel law-book, the Book of \
the Covenant (Exod. 21 -23), 4 and the story of/
Naboth (i Kings 21) shews that in the middle of I

1 From Judg. 5 14, Sayce (Early History of the Hebrews, p. 121
sq.} wrongly argues that there were lawgivers in the oldest period of
the Hebrew settlement. There would be no object in lawgivers
coming to a military assembly. The kastn is a petty ruler ; cp.
Is. 3 6 sq., 22 3 (in Mic. 3 i, 9, parallel with " head," ray)-

2 Meyer, EBL "Phoenicia," § 16 ; Moore, ib. "Judges," § i.

8 The LXX. reads, "May the Lord be a judge and arbiter," and
Budde (Samuel, ad loc.) rightly suspects that dayyan is an addition.
For the sake of completeness mention must also be made of pillel, to
mediate, arbitrate; cp. pelilah, an umpire's work, Is. 16 3, in late
Hebrew a matter for judgment (i.q. Hebr. pelilt).

4 In Ex. 21 22 the text is corrupt. The judges do not appear in
i/. 30, where some reference to them would certainly be expected.
i Sam. 7 16 sq. 8 cannot be taken as evidence for judicial authorities
in early times ; the passages are late.

56 THE LAWS OF MOSES CHAP, in

•the eighth century judicial functions still lay in the
hands of the aristocracy and elders. Appeal could
be made to the head of the state, and the readiness
with which a complainant could gain the king's ear
is illustrated by the story of the woman of Tekoa
(2 Sam. 144 «$W-)> and the judgment of Solomon
(i Ki. 3 I6-28).1 But as long as judicial powers
continued to be exercised by the nobles and highest
of the land, there was no higher authority to whom
to appeal against injustice, and the passionate outcry
of the prophets against the unjust dealings of the
royal families of the land (Is. 1 23, Jer. 21 n sg.t
Mi. 89) stands in unpleasant contrast with Baby-
lonia, where Hammurabi, as his letters shew us,
investigated the suits of his poorest subjects, and did
not hesitate to reverse the decisions of his governors.
The system of electing subordinate judges under
the control of a supreme central authority was an
innovation in Israel. Tradition itself realised that
it was not part of the desert heritage, and ascribed
its initiation to the Midianite Jethro, the father-in-

Jaw of Moses (Ex. 18), or to Moses himself (Deut.
1 9 sqq.). The system is practically one adapted

I for administrative purposes,2 and whereas, according

1 Cp. also 2 Sam. 15 2 sqq.> 2 Ki. 15 5. In the Amarna Tablets
(25 30-34, 45) the king of Alasia (Cyprus) uses his good offices for the
return of the property of one of his citizens who had died in Egypt.

2 The traces of a parallel account in Nu. 11 are too obscure to
build upon with certainty. The divisions into thousands, hundreds,
fifties, and tens scarcely originated in Babylonia, where the unit was
sixty ; Assyrian texts, however, according to Sayce, speak of captains
of fifty and ten (Early History of the Hebrews^ p. 191).

CHAP, in ELEMENTS OF LAW AND PROCEDURE 57

to the Elohist in the former passage, Moses chooses!
the officers, the Deuteronomist leaves the choice to I
the people, and Moses only charges them with theirj^
duties. The practice of referring difficult or con-
tested cases to a supreme head is similar to that
which the Chronicler ascribes to Jehoshaphat
(2 Chron. 19), and it is upheld by the Deuteronomist,
who emphatically insists upon the sanctity of the
priests' decisions (Deut. 16 18-20, 17 8-13). The actual j
date of its introduction is uncertain. At all events,
the "elders" (zekenlm) had been in possession of a
certain amount of judicial authority, which they still
partly retain in the time of the Deuteronomist
(Deut. 19 12, 22 15 sq.\ It is about the period of"
Josiah's reformation, or a little later, that the priests,
who are the natural intermediaries whenever aj
divine decision is required, begin to receive greater \
powers. In Deuteronomy they investigate legal
cases, and the evident attempt to place them upon
equal footing with the judges (19 17 sq.\ together
with the emphasis laid upon the inviolability of
their decrees (179^, 100, n^), and the consequent
weakening of the authority of the elders, suggest
that a change in Israelite legal procedure is intro-
duced, which is not improbably foreign to the
original scope of that law-book.1

In Babylonia, in addition to the judges, it would
appear that law could be dispensed by the civil
governors and the priests, and Sayce remarks that

1 See The Hexateuch (ed. Carpenter and Harford-Battersby),
vol. 2, notes on Deut. 178, 19 17 sq., 21 2, 5.

58 THE LAWS OF MOSES CHAP, m

in certain cases, where foreigners were involved,
"the elders" of the city take their place among
their judges.1 According to the same authority,
the judges probably went on circuit, but this appears
to be only an assumption from the allusion to
Samuel's activity in i Sam. 7 16, and the " royal
judges" of Persia ;} in Egypt, however, the circuit
system appears to be vouched for in Ptolemaic
times, and Moret finds indications of this early
attempt to centralise justice as early as the twelfth
dynasty.2

Difficult cases are referred to a divine authority.
The god is a "giver of decisions."3 The Arabs of
different clans sank all differences, and accepted
Mohammed's decisions by reason of his divine
authority ; in Israelite tradition, the Hebrews of
the twelve tribes came to Moses for the statutes
and laws of God ; and when written laws are intro-
duced, they receive their authority by being ascribed
to an Ea, the god of culture, or a Samas, the god
[of law and justice. In Babylonia, from the earliest
times, we find that the "gate" was the place where
justice was administered. One contract- tablet
speaks of litigant parties repairing to the judges,
who bring them to the gate (bab) of the goddess

1 Babylonians and Assyrians, p. 198 sq. On the sibutu (KB
423, I- 2 5, 25, 1. 23), cp. below, p. 69, n. I.

2 Maspero, Ree. de Travaux, new series, 1 44-49 (1895). Ac-
cording to Erman (Life in Ancient Egypt, p. 87), the administration
of justice was thus centralised even under the Old Empire.

3 Rel. Sem.® p. 70 ; cp. n. 2.

CHAP, in ELEMENTS OF LAW AND PROCEDURE 59

Nin-marki, where they duly give evidencej elsewhere
the scene is the gate of the god Nun-gal, the house
of Samas or the gate of Samas, and the house of
Marduk.1 The sanctuary is specifically an appropri-
ate place, since the solemn oath, taken in doubtful
cases or for the confirmation of the evidence, is \
made before the deity or his representative.2
Similarly in Israel the place of resort for judgment
might be a sacred site — the three places visited by
Samuel had the reputation of sanctity (i Sam. 7 16,
cp. LXX.) — but in ordinary cases the presence of
witnesses was all that was required, and the city
gate, then as now the scene of business activity,
served the purpose of a law-court (Job 297^^.).
It was not difficult to collect ten men of repute and
standing to act as witnesses (Ruth 42), and legal
contracts were unnecessary. It strikes one as quite
in accordance with the business instincts of the
Babylonians that out of the primitive system of
administering justice at the gates in the presence of
witnesses, the evidence being attested by an oath,
they should have developed the practice of building

1 Meissner, op. tit. (below), nos. 43, 78 sq., 100, no.

2 So, in CH, § 9, where stolen property is found in the hands of
another, the witnesses for the accuser (who know the lost property)
and for the accused (who testify that the article was bought in their
presence) say out " before God " what they know, and the judge gives
his decision. The disputed object is usually brought and deposited
with the god (Meissner, Beitr. z. altbab. Privatrecht, p. 5). For
illustrations of modern procedure among the Bedouin, see Palmer,
Desert of the Exodus, 1 87 (1871) ; Jaussen, Revue Biblique, 1903,
pp. 252 sq., 259 sgq.

60 THE LAWS OF MOSES CHAP, m

temples at these places, in order that the oath might
be taken under the most sacred surroundings. The
primitive Bedouin of to-day considers a solemn
attestation sufficient in ordinary disputes — mercantile
pursuits, one imagines, had seriously corrupted the
inherited simplicity of the Babylonians.

The Code of Hammurabi is quite in touch with
early Semitic custom when, under certain circum-
stances where independent evidence is not avail-
able, it lays down that a man must appear " before
x God " (mahar Him), or undergo an ordeal. To be
more specific, the solemn attestation applies to a
man who has been robbed and the thief remains at
large (§ 23), to a shipowner whose ship is lost
(§ 240), to a merchant who would regain the price
he paid for slaves (§281), to depositors whose
deposits have been lost whilst in the keeping of
another (§§ 120, 126). In every case the man who
• would recover his property (money or goods) must
( assess his loss ''before God." A similar procedure
is to be observed when a man would clear himself
of a charge. Thus, a man from whom a fugitive
slave has escaped (§ 20), an agent who is robbed of
his merchant's goods (§ 103), the herdsman who has
hired an ox, which dies by a " stroke of God "
whilst under his care (§ 249), the wife who is falsely
accused of adultery (§ 131) — these may protest their
innocence and go free. Analogous to the above
are the cases where an agent who accuses a merchant
of wronging him puts him to account "before God
and witnesses" (§ 106 sq.)t and where the shepherd,

CHAP, in ELEMENTS OF LAW AND PROCEDURE 61

whose sheep are killed by a " stroke of God" or a
lion, " declares his innocence (or purges himself)
before God " (§ 266). Here also may be mentioned
the two instances where the man who has wounded
another, or the brander who has made an indelible
mark upon a slave, may swear that the act was not
done " wittingly J>1 (§§ 206, 227).

In early Hebrew law, in the Book of Covenant,
we may also distinguish two methods. The man
from whose keeping a neighbour's deposit is stolen
can resort "to God" (elotwm) to clear himself (Ex.
22; sq.\ and in like manner a suspected herdsman
can take the " oath of Yah we" (sebu'ath Yahwe)
that he has not put his hands to his neighbour's
goods, and go free (Ex. 22 10 sq.). These corre-
spond to the second series in the CH (cp. especially
§§ 1 20, 266), and are evidently different from the
law in Ex. 22 9, which is couched in the - most
general terms, and possibly does not refer to
deposit, but to stolen property. Here, it is not the
accused alone who comes to filohlm to clear himself
of suspicion, but the passage deals with a dispute
between two parties whose case is brought to the
"god of decisions" for his judgment (cp. i Sam.
2 250). It is the procedure which underlies the/
ordeal.

In the old contract-tablets the depositions are
made before (mahar) witnesses, and the parties to

1 ina i-du-U) " with knowledge " ; cp. bi-beli ddath, Deut. 4 42,
etc. (the later equivalent being bi-segagati).

62 THE LAWS OF MOSES CHAP. HI

: the suit swear by (nis) the principal deities and the
I reigning sovereign.1 In Egypt, a similar oath by
the name of the Pharaoh was frequent. A man
swore "by Amon, by the prince whose spirits are
dead, by Pharaoh my lord," and the " king's oath,"
as it was called, was usually followed by an impreca-
tion. " May I have a hundred strokes, or give me
over to the crocodile," maiming, and exile to the
mines of Ethiopia, figure among the oaths sworn by
Egyptian suspects.2 The old Hebrew methods of
oath-taking are too well known to need repeating.3
At the present day, point may be given to an oath
by the addition of such a wish as, " He who lies may
none be born to him."4
*The oath of purgation, which thus allows the

1 E.g., by Nannar, Marduk, and Hammurabi (KB 4 21), or even
by the king alone (ib. 4 25). According to Meissner (Beitr. z. altbab.
Privatrecht, p. 5), the oath is taken by the name of the tutelary
deity of the city, the principal deity of the land, and other gods,
sometimes even by the name of the native city of the contracting
parties. The practice is found as late as the time of Darius.

2 Spiegelberg, Studien u. Materialien z. Rechtswesen d. Pharaonen-
reiches (Hanover, 1892), pp. 70-77 (p. 75, " To him was the king's
oath given to say no lies, he [said] Ethiopia ") ; Arbeiter und Arbeiter-
bewegung im Pharaonen-reich unter den Ramessiden (Strassburg,
1895)5 P- 20.

3 See EBi. art. "Oath." The later post-biblical usages are
illustrated in the Mishnah (tract. Shebuotfi), where some of the
formulae are given. An accused protests his innocence. The accuser
says, "I adjure thee." If the man replies "Amen," and is proved
guilty, he is culpable. " Amen " is thus the legal term with which
the accused expresses his readiness to accept the adjuration (cp.
Hogg, Jewish Quarterly Review ', 1896, p. 17).

4 Ewing, PEFQ, 1895, p. 172 sq.

CHAP, in ELEMENTS OF LAW AND PROCEDURE 63

accused to clear himself of an imputed crime by
swearing that the charge is false, is regarded as
entirely efficacious, since the deity in whose presence
it is taken is confidently expected to avenge himself
upon the perjurer.1 Primarily the ceremony is per-
formed in a holy place before the god himself, or it
may be in the presence of the priest, the authorised
intermediary of the god. The practice recorded by
a writer of the Deuteronomic age, in accordance
with which a man could swear his innocence before
Yahwe's altar at Jerusalem (i Kings 831 sg.), in
earlier days, before the institution of the central
sanctuary, must have been customary at every shrine
or holy place. To take the name of Yahwe falsely,
therefore, was to perjure one's self. Under the
Deuteronomic reformation the oath of purgation
would be taken before the authorised officials (Deut.
19 17), even as among the Bedouins of the present
day it may be made before the sheikh.2 From this
oath we must of course distinguish the curse which
the victim of a theft calls down upon the thief, or
the adjuration, equally based upon a belief in the

1 ReL Sem. p. 480; cp. Jaussen, Rev. Biblique, 1903, p. 259 (a
guilty Bedouin agrees to take an oath \Jialifd\ at a holy tomb, but
on his way, fearing the possible consequences, is filled with terror
and confesses).

2 An interesting development of the oath taken in a holy place is
recorded by Baldensperger, where two parties arranged to settle a
dispute and agreed to swear by St. George (PEFQ, 1897, p. 131).
To avoid the trouble of dressing in festival clothes and repairing to
his shrine, it was decided to make a mark on the ground to represent
the saint's abode (" He is over against us but can be present just as
well").

64 THE LAWS OF MOSES CHAP, in

efficacy of the curse, which solemnly calls upon any
man who has knowledge of the offence to say all
that he knows.

The belief that the deity punishes the guilty one
who swears that a charge is false is intimately con-
nected with the theory of the ordeal where it is left
to him to indicate in some recognisable manner
whether a man is guilty or not. Instead of the oath
of purgation a test is employed. The Code of
Hammurabi uses it only in two cases, and on each
occasion it is by water. The river-god (ilu Naru)
has to decide whether a man upon whom a spell has
been cast has suffered unjustly (§ 2), and whether
a wife who has fallen under the suspicion of un-
chastity is innocent (§ 132). The victim must
plunge into the sacred element, which overpowers
(the guilty and saves the innocent.1 The revenge
taken upon the impious finds analogies in the waters
of the Asbamsean lake, the springs near Tyana, and
the Stygian waters in the Syrian desert — not to
speak of the striking parallel of the " waters of
Jealousy " in Israel — which harmed only the per-
jured.2 But the river-god, instead of punishing the
wicked, may repudiate them, on the principle that
impurity and guilt must not come in contact with

1 Dareste (Journal des Savants, 1902, p. 519, n. i) notes the
same principle in the old German custom of testing the legitimacy
of children by throwing them into the water ; one may compare also
the Sicilian oracle where the tablet bearing the oath of the accused
floated if true and sank if false (Pseudo-Aristotle, Mir. Ausc. 57).

2 Rel. Sem.(z) p. i?9 sq.

CHAP, in ELEMENTS OF LAW AND PROCEDURE 65

sacred things. Sp^ in_ Arabia, those who were sus-
pected of witchcraft — not their victims, as in Baby-
lonia— were thrown to the water, and since the god
would only receive the innocent, the guilty ones
were those who floated : the procedure that has pre-
vailed in dealing with suspected witches down to
modern times.1 Arguing from the same point of
view, the Laws of Manu allowed a man to justify
his oath of purgation by remaining under water a
certain length of time (8 114 sg.), and — to go still
further away from the Semitic world — in Burmah
the parties to a suit keep their heads under
water, and the one who emerges first is reckoned
guilty.2

Although the laws in CH relating to judges and-
witnesses are few, the contract - tablets reveal, as j
might be expected, a very advanced system of pro- /
cedure.3 Evidence was drawn up in legal form and ,
written upon tablets,4 and each case was examined
with commendable thoroughness (cp. CH, § 9). The
general principle not to pervert judgment, accept
bribes, or to show favouritism — and the frequency
with which these exhortations appear in the Old
Testament is an indication of the prevalence of
injustice in Israel5 — if not expressed in so many

1 Cp. Wellhausen, Arab. Heid.® p. 160 (on p. 189, however,
those unjustly suspected of witchcraft float}.

2 Frazer, Pausanias, 3 388 (other water-oaths and tests, 4 253 sg.).

3 Cp. Sayce, Babylonians and Assyrians, chap. 9.

* Written evidence appears to be unknown in Israel until the time
of the book of Job (13 26, 31 35).

5 Ex. 23 3, 6-8 ; Deut. 16 19, 24 17, 27 19 ; Lev. 19 15, etc.

66 THE LAWS OF MOSES CHAP. HI

words, at all events lies at the bottom of CH, § 5.
Here, if a judge has judged a judgment (sum-ma
da-a-a-num di-nam i-di-in), has decided a decision
(pu-ru-uz-za-am ip-ru-us\ and delivered a sealed
sentence (ku-nu-uk-kam\ and subsequently his
judgment is annulled (di-in-su i-te-ni\ he is ordered
to pay twelve times the penalty he had ordained
in his decision, and is openly (properly, " in the
assembly," pukru) thrust from the bench ; he cannot
be reinstated, and is not allowed to sit in judgment
with the judges. There are two disputed phrases
in the law as it stands. In the first place, the judg-
ment is presumably annulled by an appeal, either to
a fresh court or to the king himself. In the con-
temporary letters of Hammurabi and his dynasty,
the king is frequently appealed to either directly or
after a case had been tried at the local courts. In
one instance the litigants, having failed for two years
to obtain justice at Sippar, apply to the king, who
gives orders for the defendant and the ''witnesses
who have knowledge of his case " to be brought
to him at Babylon for judgment. In another we
find Hammurabi investigating a charge of bribery
against one of his officials; he confiscates "the money
or whatsoever was offered as the bribe," and com-
mands the men who had taken it and the witnesses
to be sent to him for trial.1 On the other hand,
Scheil and Johns render, "if . . . he has annulled
(altered) his judgment," which seems hardly natural,
since the judge, however much of a partisan, would

1 King, Letters of Hammurabi ', 821 sq., 136.

CHAP, in ELEMENTS OF LAW AND PROCEDURE 67

scarcely go back from his written verdict. It is
possible that the law refers to judicial error, but the
penalty and subsequent punishment would be
excessively severe.1 In the second place, the
" twelve-fold " (a-du 12 su) penalty has been dis-
puted, and Winckler, in his edition of the Code,
understands it to mean that the penalty consists of
the sum (in the judgment) together with J§, that is
to say, an additional 20 per cent. The addition of
a fifth — as in late Israelite law (Lev. 65, 271519;
Num. 5 7) — is suggestive, but there are serious
objections against this view.2

Next, attempts to intimjfintP thg Ti>j^n^iig^gi rkr

severely punished, and if it be a life or death case
(di-iri na-bi-is-tim), the offender is killed (§ 3).
Bribery is rigorously discountenanced, and the man
who has offered corn or money is punished by being
made to bear the penalty of the judgment (a-ra-an
di-nim, § 4). In Israel, false witness, prohibited
among the additions to the Book of the Covenant
(Ex. 23s) and in the Decalogue, is punished under
the Deuteronomic code in the same manner as in
CH : " You shall do unto him as he purposed to do
to his brother " (Deut. 19 19) ; but one can scarcely
conclude that the law which is aimed at repressing
false accusations (denounced in general terms in

1 In the case of a judge who has not acted in good faith, later
Jewish law required a sacrifice (Mishnah, Horaioth, 1 5, etc.).

2 See Joh. Jeremias, Moses und Hammurabi, p. 25, n. 2 ; Orelli,
Gesetz Hammurabis, p. 47.

68 THE LAWS OF MOSES CHAP, in

Ex. 23 i) owed its origin to Babylonia. The same
ruling held good in Egypt, and, indeed, the principle
of the talio has prevailed in all primitive judicial
systems. The Deuteronomic law is preceded by
one in accordance with which serious crimes re-
quired the concurrent evidence of " two or three "
witnesses as proof of guilt (v. 15), particularly in all
capital cases (cp. Num. 35 30 ; Deut. 17 6). The
procedure is frequently referred to in the New
Testament (Matt. 18 16, 26 60 ; 2 Cor. 13 i ; i Tim.
5 19), and must have been general, since it finds a
place in the Syro - Roman law - book of the fifth
century, which actually preserves the same loose
wording, "two or three."1 In the last-mentioned
collection of laws, the penalty for unjust accusation
is, as is to be expected, based upon the talio: "As
he (the accuser) would do unto his companion, so
shall it be done unto him. " 2

Legal disqualifications of certain persons to act
either as judges or witnesses, and the more minute
details of judicial procedure, do not appear to be
codified before the time of the Mishnah.3 The
Syrian law-book requires witnesses to be freedmen

1 Bruns and Sachau, Syrisch-Romisches Rechtsbuch aus dem
funften Jahrhundert (Leipsic, 1880), p. 106.

2 Op. tit. p. 70 (no. 75). Examples of the minuteness of the
post-biblical Jewish rules relating to false evidence may be seen in the
Jewish Encyclopedia^ 1 394^.

3 Cp. also the fulness of detail in the Mohammedan systems
(abstract by Kohler, Rechtsvergleich. Stud. pp. 149-161). According
to Josephus (Ant. iv. 8 15), there must be three or at least two witnesses,
reliable men ; neither women nor slaves are admitted.

CHAP, in ELEMENTS OF LAW AND PROCEDURE 69

and trustworthy, not slaves, men who have never
been convicted of misdeeds — theft, robbery, sorcery
(Syr. harrasutha), and the like — "who have not been
guilty of objuration " (? efa>/Aoer/a), and are not rela-
tions, friends, or business associates of the parties.
In Babylonia witnesses appear to have formed an
official class ; 1 since every act of business, legal or
otherwise, had to be set down in contracts, reputed
and qualified men were doubtless in frequent demand
as witnesses.

The Babylonian system of judicial procedure, it 1
would appear, did not leave its stamp upon early '
Israelite institutions. Both share, it is true, the
sacred oath and the ordeal, but these are common
Semitic property, and are by no means confined to
the Semitic field. The denunciation of false witness \
does not become codified until the time of Deuter- \
onomy, at a period when the administration of
justice was reconstructed and centralised. On the
other hand, the precautionary rule that " two or /
three " witnesses are required in criminal cases, I
although fairly widespread, does not find a place in_
Babylonian law.

Procedure, as we learn from the legal documents
of the great law -suit under Rameses IX. (twelfth
century B.C.), was no less developed in Egypt.
Officers, appointed by the government, sat in judg-

1 slbH(ti\ "witness" (abstract stbutu\ properly the elders or
"greybeards" (cp. Heb. sebah1\ corresponding to the sheikhs or
zekemm (above) ; cp. Joh. Jeremias, Moses u. Hammurabi, p. 29 ;
Meissner, Beitr. 2. altbab. Private, pp. 5 sq., 95).

70 THE LAWS OF MOSES CHAP, m

! ment daily, and received their salary from the fees
paid by litigants. The evidence, as in Babylonia,
was in writing, and could be extracted from un-
willing lips by torture — a method apparently un-
known in Babylonia.1 Under the New Empire the
jcourts of justice differ in name and constitution from
/those of the Old. The judges were largely priests,
/supported by permanent officials, including a scribe,
\but the composition of the court varied considerably.2
The contrast between the methods that prevailed in
Egypt and Babylonia and the simple primitive
"courts" of the early Arabians and Israelites is
thus sufficiently striking, and we are now in a
position to consider more closely the principles of
common and statute law as they appear in the
ancient and modern Semitic world.

1 Torture is rarely practised among the Bedouin of the desert
(cp., however, Doughty, Ar. Des. 1 14).

2 Erman, Life in Ancient Egypt, pp. 130 sqq.

CHAPTER IV

THE FAMILY

Position of women — Marriage-types — Marriage by purchase —
Details — " Breach of promise " — Modifications of purchase-
system — Laws of the dowry and marriage-settlement — Survivals
of earlier conditions — Wife's position in the family.

IN the primitive Semitic social system, where the*
full-born members were on equal footing one with
another, sharing their losses and gains, the clan
was no other than a family on a large scale, the
position of its "elders" corresponding with that of_
the heads of the various families. To gauge the
character of the Semitic family, we must understand-,
the position assigned to woman. We must ascertain
whether she is a free agent or whether she is always
in the power of her husband or her male relations ;
whether she . is on an equal footing with man in
matters relating to marriage, inheritance, and business,
or whether she is denied all independence and
authority. Is she numbered among the chattels of
her husband, or is she his compeer? In Babylonia,!
we find that the woman could trade and do business, I .
whether on her own account or in partnership, \

72 THE LAWS OF MOSES CHAP, iv

/she could appear independently in the law-courts
fas witness or as plaintiff, she could hold private
1 property and dispose of it as she pleased,. Fr.
Qejitzsch, who contrasts the position of woman in
Babylonia with her Israelite sister, much to the
disadvantage of the latter, would attribute this
"freedom and independence to the civilising influence
of the non- Semitic Sumerians,1 and Sayce, too,
observes that whereas " in the old Sumerian hymns
the woman takes precedence of the manjthe Semitic
translation invariably reverses the order : the one
has 'female and male,' the other 'male and female,'
and this is reflected in the position of the goddess
I star, who, originally a goddess, the equal of the
god, became changed into a male deity in Southern
Arabia and Moab." 2 But it will ultimately be made

1 Babel and Bible ', p. 202 : " The woman [in Israel] is the property
of her parents, and, later on, of her husband; she is a valuable
element for purposes of work, on whom, in married life, a large part
of the hardest business of the home is imposed ; above all, she is, as
in Islam, incompetent to take part in the practice of the cultus. In
the case of the Babylonians all this was managed differently and
better. ... It is just in the domain of questions concerning women
that it can clearly be seen how profoundly Babylonian culture had been
influenced by the non-Semitic civilisation of the Sumerians."

2 Babylonians and Assyrians, p. 13 sq. ; cp. Barton, Semitic
Origins, pp. 123 sq., 140 sqq. The reversal of the order "female
and male" would if anything indicate that the Assyrians had less
chivalry than the Israelites; cp. "mother and father," Lev. 19s
21 2 — the mother's love for her children is surpassed only by
Yahwe's tenderness for his people (Is. 49 15, 66 13). But the
argument is not conclusive ; cp. " father and mother " in the Book of
the Covenant (Ex. 21 15, 17). The tenth commandment in Ex. 20 17
includes the wife in the husband's possessions, whilst Deut. 621

CHAP, iv THE FAMILY 73

clear that the woman, notwithstanding this, is the
legal chattel of the man even in the Code of
Hammurabi, and when all the evidence has been
reviewed, it will be found that her position is scarcely
more independent than it was in early Arabian life..
The theory, therefore, of a Sumerian (non-Semitic)
state of culture where woman's position was perfectly
independent (matriarchy ?) must be regarded as
questionable for the present.

Now the stages in the evolution of human
marriage are still far from intelligible, and the results
of investigators in this line of research tend to show
that it is impossible to lay down specific laws of
universal application. The fundamental idea in CH
is the familiar Semitic view that marriage is in-
stituted for the legal perpetuation of the husband's
name and estate, and that the woman is a property
which can be acquired by purchase, in return for
which the buyer receives full marital rights. This
type of marriage, which Robertson Smith styles bcCal
marriage or marriage of dominion,1 has prevailed
among the Semites in historical times, but, as the
same scholar has proved, is none the less far from,/
being the primitive type among them. The earlier
types, survivals of which are not unknown among

separates her from the house, field, and servants (on the text, cp.
Proceedings of Society of Biblical Archaeology, 1903, pp. 43, 53).
Originally the commandment probably ran simply, " Thou shalt not
covet thy neighbour's house," the rest being an explanatory addition
(EBi. col. 1049; Burkitt, Jewish Quarterly Review, 1903, p. 405).
1 Kinship^ p. 92.

74 THE LAWS OF MOSES CHAP, iv

the Bedouin of later times, may be characterised as
temporary monandrous marriages. The woman
occupies a position of equality and dignity, and is
quite at liberty to dispose of herself as she pleases.
Her independence is such that she is allowed to
receive as her suitor whomsoever she will ; the
marriage may be of greater or less duration, accord-
ing to circumstances over which she is mistress, and
the children of the union remain in her care and
belong to her tribe. Without going into further
Detail, it is enough to observe how utterly different
/ such a type of marriage is from the bctal marriage, the
; characteristic feature of which lies in the fact that the
; woman is not a free agent, but is handed over to a
• man in return for a payment.

Marriage by purchase can take its rise in that
stage of society where the life is pastoral or agri-
cultural, and where individual property is in vogue.
It is purely a business affair. At the present day,
as in the time of Hammurabi, the preliminaries are
nearly always arranged by the parents of the con-
tracting parties. The initiative is taken by the
father, mother, or brothers of the youth. In CH,
§§ 155, 1 66, it is the father who chooses a bride for
his son (cp. Judah, Gen. 386); in the absence of the
father, it rests with the mother (Gen. 21 2I),1 or even
a trusted servant (Gen. 24 4). On the other side, it
is for the nearest relatives of the girl to state the
terms and to give their consent (Gen. 24 50 sqq.\

1 Cp. Doughty, Arabia Deserta^ 2 89 (a widow buys a maiden
to bring up until she is of a marriageable age for her son).

CHAP, iv THE FAMILY 75

cp. 34 8 sqq.).1 The formula with which the pro-
ceedings opened has probably been quite correctly
preserved in the parable of Jehoash (2 Kings 149):
"Give thy daughter to my son to wife (issak)"
The girl's consent is not necessary, and if occasion-
ally asked (as in Gen. 24 58), it was not required by
law. In Arabia, Mohammedan law forbade the
guardian (wait) to give his ward in marriage without
her consent, unless she was under age, but this was
an innovation.3 A Babylonian father, in later times
at least, could refuse to acknowledge his son's
choice, and if the son persisted, could threaten to
reduce the girl to servitude.4 It is to be noticed
that the punishment falls upon the girl. In Israel,
the parents might object to a distasteful union, but

1 In KB, 4 186, the (widowed) mother is approached by the
intending bridegroom. Similarly, in Ruth 3 17, the gift from Boaz is
for Ruth's mother-in-law, her nearest relative.

2 So, in the New Babylonian contract-tablets : - son of -
spoke to - son of - : " Give - thy daughter (or

daughter, marat-kaba-tu-ul-tu} to my son - in marriage " (as-su-tu^
cp. late riebTTEfoM) ; see K& 4 229, no. xxiii. ; when the man makes
the proposal (ib. p. 1 87, no. xi.) it runs : " - thy daughter give, my
wife (aSsati} shall she be."

8 Kinship^ p. 103 sq. In CH only the seduced daughter-in-law,
the widow, the divorced or deserted wife or concubine, appear to have
a right to marry whom they please (§§ 134-137, 156, 172). In the
case of the suspected wife, the sick wife, or the wife divorced for her
bad conduct, it is only said that she returns to her father's house,
and the probability is that she was not free (CH, §§ 131, 142, 149).
4 In other words, set the brand of servitude (si-in-du sa amtu-u-tu)
upon her ; cp. Marx, Beitr. z. Assyriol. 4 n ; Kohler and Peiser,
Bab. Rechtsleben, 2 7 sqq.

76 THE LAWS OF MOSES CHAP, iv

no pressure was brought to bear (Gen. 26 35, 27 46 ;
Judg. 14 3).

It will at once be seen that this type of marriage
differs entirely from the so-called sadlka or mo fa
marriage of early Arabia, which required no consent
on the part of the woman's father or guardian, but
was purely a personal contract of specified duration.1
Such free unions were condemned by later ages as
equivalent to harlotry ; 2 they were not unknown in
early Israel (Judges 8 3i),3 and there is an interesting
allusion to the custom in Judges 14, which sub-
sequent editors sought to obscure. As the opening
of the narrative now stands, Samson requests his
parents to get the Timnathite woman for him as
wife, and in spite of their objections continues to
persist, with the result that they yield and go down
with him to make the arrangements (v. 5). But
the bride remains at Timnah, and the marriage
is celebrated in the presence of her kinsmen
and friends ; obviously it was not sanctioned by
Samson's parents. A closer examination shows
that in the original tradition Samson's marriage was
a modification of the sadlka type, which did not
require the intervention of the parents. Samson
(vv. 5-7) takes all the arrangements into his hands,

pp. 79 sqq.^ 84. The term sadlka is criticised by
Noldeke, ZDMG, 40 154 ; probably mofa would be the better term.

2 Cp. Kinshipjd pp. 85, 165 ; Wellhausen, Ehe, p. 472. There
is a similar distinction between marriage by purchase and voluntary
union in the Laws of Manu (3 29-32).

3 Cp., perhaps, 2 Sam. 17 25 (see Budde, ad loc.).

CHAP, iv THE FAMILY 77

and makes periodical visits to Timnah (15 i). At a
subsequent date, when such marriages were no
longer recognised, the text was edited to make it
appear that the preliminaries were undertaken by
the parents (by the addition of " and his father and
mother " in v. $a ; cp. vv. t>b, ioa) in accordance with
what had become the prevailing system.

The daughter is an addition to her father's
wealth, since by giving her in marriage he is able to
add to his flocks and herds (cp. the Homeric epithet
" cattle-bringing " applied to girls).1 The purchase-!
price is primarily, therefore, a compensation to the^
father, and makes the girl the property of her brfal\
("husband," properly " owner "). This applies not
only to the Semites of Arabia and Syria, as
Robertson Smith has proved,2 but as CH, §129
(be-el as-sa-tim) shews, holds good also for Baby-
lonia, and from the various compounds of be-el in
the Code, it is clear that the Babylonian husband
was as much the ba'al of his wife as he was the
bcEal of his slave, house, ox, sheep, field, corn, or
garden (cp. CH, §§ 57, 59, 120, 229, 245, 266, 281).
The price paid to the parents (Bab. tirhatu, but
Heb. mohar, Ar. mahr, Syr. mahra) is originally
quite distinct from the donatio propier nuptias (Bab.
t, which the husband makes over to the

1 Kinship^ p. 96. So, without going outside Semitic lands, it is
interesting to find that among the Yezidis the daughter who refuses
to marry must compensate her father (Chabot, Journal Asiatique^ 7
(1896), p. 127).

2 Op. cit. p. 92.

78 THE LAWS OF MOSES CHAP, iv

wife, or the marriage -portion (Bab. seriktu) which
the wife brings with her from her home, and that
among the Semites it is simply an act of purchase
appears further from the fact that the bride in
Syriac is called meklrta, the "sold," and that the
Hebrew 'eras, "to espouse, betroth" (Deut. 20 7,
22 23, etc.), also found in Aramaic, is, properly
speaking, to pay the price and so to gain the right
of possession.1

The price, however, was not necessarily money ;
it was frequently paid in kind, or the daughter
ight be given for deeds of valour (Josh. 15 16 ;
Judges 1 12 ; i Sam. 18 25), or for a number of years
of personal service (Jacob and Laban).2 The letters
of Nimmuria to Dusratta and Kallima-Sin in the
Amarna Tablets provide an interesting illustration
of the preliminaries, and of the gifts that were
presented and required by royal personages.3 The
common people were more modest in their benevo-
lence and requirements. The sum agreed upon
might be paid in full or in instalments. The father

1 The root has other meanings of obscure connection, and it is
therefore uncertain whether it has anything to do with the late
Hebrew 'arts, "tiller" (Schwally, Christ. Pal. Aram. p. 115 sq. ;
Wellhausen, Ehe^ p. 435, n. 3 ; Robertson Smith, Prophets^ p. 410).
Delitzsch (Ass. HWH] cites ertsu, "bridegroom," which is apparently
related to the above-mentioned Hebrew and Aramaic usage. In
Mohammedan law it is expressly understood that marriage is a sale
(Kohler, Rechtsvergleichende Studien, p. 22).

2 So at the present day a boy may be taken as shepherd and
receive a girl for his wages (PEFQ, 1901, p. 76).

3 The tirhatu is mentioned in 17 48, 58, 21 23 sq., 23 14.

CHAP, iv THE FAMILY 79

might refuse his consent until the whole of the
stipulated amount has been paid, or half might be
paid down and the rest settled upon the wife, to
be paid in case of divorce or at the death of the
husband. Custom varies as much at the present
day as of old. Among kinsmen the price might be
made conveniently small — almost to the vanishing-
point, but although this is now the case among the
poorest nomads, such generosity does not seem to
have been practised in early Arabia.1 It is true
that the sum sometimes does not appear to have
been paid at all, but it is possible that here the
woman occupies a lower standing.2

In olden times, no less than at the present day,
there must have been innumerable disputes arising
out of the purchase-price, particularly in the case of
the death of one of the betrothed pair before the
marriage -ceremony. The Code, of Hammurabi,
which distinguishes itself by giving three laws
dealing with what might be termed " breach of
promise " actions, makes no provision for such a
contingency, no doubt because the customary usage
in such a case was too firmly established to need
any authoritative decision. The existence of some
traditional usage, however, is proved by the presence
of laws which have found their way into the famous
Syro- Roman law-book of the fifth century A.D.,J
and thence into Mohammedan legislation. The

1 Doughty, Ar. Des. I 491 ; Kinship^ pp. 100-102.

2 Cp. also Brims and Sachau, Syrisch-Romisches Rechtsbuch aus
dem funften Jahrhundert) p. 59 (§ 41^).

8o THE LAWS OF MOSES CHAP, iv

Syrian law presupposes that a man has given to a
girl or her parents a ring in pledge of the betrothal,
'and other gifts. Everything turns upon the question
whether the girl has been seen or kissed by the man,
and this being granted, in the case of death of one
or the other, only half is to be returned to the man
or his nearest relatives. There is some obscurity
attached to the various versions of the law and its
relation to Roman legal parallels,1 which is probably
due to its being a modification of native Syrian
usage. A very clear trace of the latter, however, is
probably to be recognised in the provision appended
to the law whereby, if a girl has been " purchased "
in her absence, and the complete ceremony has not
been performed ("her betrothed has not seen or
kissed her "), in the event of death, all gifts must be
returned, with the exception of the expenses for
"eating and drinking," in which, one must suppose,
was included the cost of some betrothal feast.

According to the old Babylonian code, if a man
has brought goods (biblu) into the house of his
father-in-law (emu) and has given him the purchase-
money (tirhatu), and has afterwards changed his
mind (lit. " looked upon another woman " [zmniftu]),
and says to his father-in-law, "Thy daughter I will
not take," the father-in-law is entitled to retain all
that had been given him (CH, §159). On the
other hand, if the girl's father says, " My daughter
I will not give thee," he must return everything in
full (§ 1 60). Provision is even made where the

1 Bruns and Sachau, op. citn pp. 259-264.

CHAP, iv THE FAMILY 81

father's decision has been influenced by libellous
slander on the part of a friend of the man ; every-
thing must be returned as before, but the slanderer
is not permitted to take the girl to wife (§ 161).
Among the modern Bedouins, too, where a betrothal
has taken place, and the customary ring or presents
have been given as a pledge,1 these must be returned
if the betrothal is annulled.2 The Syro- Roman3"]
law is as explicit as the Babylonian: "If a man
buys a wife to himself from her parents or relations
or any one that is near to her, and gives her a
pledge or ring, or any other golden ornament, or|
money or goods, and after that does not wish to
take her as wife, he shall lose the pledge and all j
that he brought." If, on the other hand, the parents
wish to annul the betrothal, and will not give her
over to him, they must return to him everything
that he brought, but whatever they received on the
first day must be given back double.4

Whatever independence the wife enjoyed in
ancient Babylonia must have been largely due to
the law (CH, § 128) under which, if any one has
taken a wife and " has not laid down her bonds "

1 Cp. the presents to Rebekah, Gen. 24 22, 53.

2 ZDPV, 6 90-93. Dareste, Journal des Savants, November 1902,
p. 588, n. 2, cites a similar provision in the Salic law relating to breach
of promise on the part of the man.

3 Brims and Sachau, op. cit. p. 61.

4 For cases of deception (as in Gen. 29 25 sg.) no provision is
made. The rule that the younger daughter is not to be given away
before the first-born is enunciated in the Book of Jubilees as a divine
law, but there is no hint of it in tradition (28 6, cp. Charles, aa loc.}.

82 THE LAWS OF MOSES CHAP, iv

(ri-ik-sa-ti-sa la is-ku-uri), that woman is no wife.
r-As was also customary in Egypt, a contract was
required in order that the rights of the newly-
married wife might thereby be legally secured, and
reasonable provision made in case of her being left
a widow or divorced by her husband. The wife
brought with her a " present," the dowry or marriage-
portion (seriktu\ and received from her husband the
nudunnu, the "gift" or marriage-settlement, the
details of which were duly set forth in writing (cp.
CH, §§ 150, 171). The Babylonian nudunnu would
answer primarily to the old Arabic sadak and hulwan,
and to the Hebrew nedek and 'ethnan? of the
temporary free marriages, as opposed to the mahr
or mohar of that type of marriage which gave the
husband full rights over the wife.

The degradation implied in the purchase-marriage
was removed to a considerable extent by the practice
of utilising the purchase-price as a dowry for the
wife, either as a gift from the husband or as a
settlement from the father upon the daughter. The
latter custom appears to have been not unusual in
Babylonia from the earliest times (cp. CH, § 163 sq.\
Under Mohammed the difference between the sadak
and the mahr disappears ; 2 the mahr is looked upon

1 Kinship ® pp. 83, n. i, 93 ; Wellhausen, Eke, pp. 465 sqq.
Cp. the "hire " of Arabian marriage (Kinship]® p. 120, n. i), and the
presents of Judah and Samson (Gen. 38 17, Judges 15 i). The
Hebrew terms nedeh, nadan (Ezek. 1633), and 'ethnan are probably
of Babylonian origin (cp. Meissner, Beitrdge zum altbabylonischen
Privatrecht [Leipzig, 1893], p. 149).

2 Kinship^ p. in sq. ; cp. p. 1 2 1. Similarly the Syriac mahra

CHAP, iv THE FAMILY 83

as the wife's property, although at the same time a
small present from the husband — " be it only an
iron ring or half his cloak " — is insisted upon, even
as at the present day in Egypt the " price for the
uncovering of the face " is always customary.1 In
the New Babylonian kingdom the nudun(n)u, origin-
ally, as we have seen, the personal gift from the
husband to the wife, becomes used for the marriage-
portion (seriktu) of the bride,2 and has passed over
into late Hebrew (nedunya) with this meaning.
When Rachel and Leah complain that they have no
portion or inheritance and are treated as strangers,
because their father had sold them and had devoured
that which should rightfully belong to them and
their children (Gen. 31 14-16, E), it may be legiti-
mately concluded that in Israel, too, it was con-
sidered good custom to give the daughter the mohar
in the shape of a marriage-portion. The Book of
the Covenant implies that some such practice as this
was usual, since it enjoins the man who gives a maid- \
servant to his son to do as is wont with fathers who
give their daughters in marriage (Ex. 21 9). So in
modern times when the wife brings household
furniture it is supplied by the makr, but it is a
frequent complaint that the father gives as little as
possible towards the dowry.

is used also of the wife's dowry, the Targ. kgthubta of the marriage-
portion from the father and the husband's settlement, and the Targ.
denominative of </>epv?j of all three (Levy, Chald. Worterb. 2 292*2:).

1 Burckhardt, Ar. Prov.® p. 139.

2 So, in the New Babylonian law, ^^4323 (col. 3, 11. 32-37),
compared with CH, § 163.

84 THE LAWS OF MOSES CHAP, iv

In Babylonia the marriage-portion which the
wife takes from her home was, like the purchase-
price, frequently paid in kind.1 It was fixed by a
contract, and the husband even wrote out a receipt
when it had been paid in full. A clause is often
introduced to emphasise that the matter has been
satisfactorily arranged, a formula that finds a parallel
in Egyptian contracts.2 In one old Babylonian
contract a daughter of a priestess of Samas takes a
man in marriage (a-na as-su-tim u mu-tu-tim i-hu-zi)
and receives ...(?) shekels of silver as terhatu
and "is contented." In New Babylonian times we
read of brothers " freely" giving their sister in
marriage, of a husband " freely " giving his wife a
slave worth i|- mina silver, in addition to ij mina in
cash. The marriage-portion, too, like the purchase-
price, was not always paid at once. It could con-
sist of the rent of a house belonging to the wife's
parents, or of an annual share from the fields culti-

1 The extent of the marriage-portion and purchase-price naturally
varied. For the latter, one old Babylonian contract specifies ten
shekels ; another a slave and a mina and a half of silver. For the
marriage-portion, in New Babylonia we find one GUR of corn land,
or one mina of silver, slaves, or household furniture — further details
are collected by Marx from New Babylonian contracts in Beitr. z.
Assyr. 4 13 sq. From Deut. 22 29 one may infer that the purchase-
price in Israel was fifty shekels of silver. The general rule that for
a widow the amount should be a half (or a third) of that usually paid
for an unmarried woman is Mohammedan, and, as regards the value
of the marriage-settlement, is found also in the Talmud.

2 The formula is not confined to marriage-contracts, and has
numerous analogies in late Jewish contracts (Pick, Assyrisches und
Talmudisches, p. 26; Berlin, 1903).

CHAP, iv THE FAMILY 85

vated by her brothers, and, if unpaid, it could be
stipulated that the wife should have the first claim
to it from the estate.1 According to one New
Babylonian law, a man who had verbally or by
contract promised his daughter a dowry, and had
subsequently become poor, might be allowed to pay
according to his means, and the law adds that there
shall be no cause for complaint between father-in-
law and son-in-law.2 There is a curious develop-
ment of the law of the marriage-portion in the
Syro- Roman law-book, the general purport of which,
in spite of a certain obscurity, is fairly evident. If
the father has promised his son-in-law a marriage-
portion for the daughter, and has written it down in
the fapvr), it is to be paid by the third (or fifth) day
(after the marriage) ; the husband writes an acknow-
ledgment, the Tr\r)pa>(n,<s, signifying that he has been
paid in full ; otherwise he receives a fresh deed,
and without this documentary evidence his claim
upon the wife's family is limited to five years.3

We must not expect to obtain such precise details
outside Babylonia and Assyria. We hear but little
of the marriage-portion in Israel. Laban gives
maid-servants to his daughters, and Caleb's daughter,
in addition to Kirjath-sepher, acquires, at the insti-
gation of her husband Othniel, springs, without

1 Marx, op. cit. pp. 26 sqq.

2 KB 4 323. The dowry is here called nudunnu^ in accordance
with the New Babylonian usage. But the law may rest upon old
custom, as, for example, is actually the case with the one immediately
following it (cp. p. 87, n. i).

3 Bruns and Sachau, op. cit. pp. 39, 291 sqq.

86 THE LAWS OF MOSES CHAP, iv

which land in Palestine is valueless.1 Solomon's
" Egyptian " wife receives from her father the city
of Gezer (i Kings 9 16), and the passage is particu-
larly instructive since it has preserved the old
^ Hebrew name for such a dowry.2 Written marriage-
contracts appear to be quite unknown until late.3
Where endogamy prevailed, or the wife was not
too remote from her kinsmen, she could always
reckon upon finding a protector. The possession
of a good dowry naturally improved the wife's
status, and in the case of an heiress her parents or
even she herself could no doubt impose conditions
which would not otherwise be accepted. Objection
was certainly taken in many cases to the removal of
daughters far away from their natural protectors to
remote places, and whilst Laban, according to the
Elohist, did not scruple to " devour his daughters'
inheritance," he is represented by the Yahwist as
adjuring Jacob to treat his wives humanely and not
to take others (Gen. 31 50). A moral obligation or
verbal covenant is referred to in Mai. 2 14 (" the
wife of thy covenant ") and Ezek. 16 8 (" I sware . . .
and entered into a covenant "), probably also in Prov.
2 17, but these need not refer to anything more than
a solemn undertaking in the presence of witnesses.

1 Judges 1 12-15.

2 silluhim, properly the money or parting gift which is given to
the bride when she is sent away (cp. Mi. 1 14, a pun upon More-
sheth, as though the " betrothed ").

3 Tob. 7 14 refers to a written and sealed document, doubtless
containing the details of the marriage-portion (8 21). The sealing of
the contract is quite in accordance with Babylonian custom.

CHAP, iv THE FAMILY 87

Turning now to laws relating to the marriage-
portion and settlement, let us endeavour to see what \
light they throw upon the position of the wife. In
the first place, the marriage-portion is the wife's,
and on her death goes to the children, and cannot
be reclaimed by her father (CH, § 162), but if she
dies childless it reverts to her father's house (bit a-
ln-J.a.-ma), i.e. her own kindred (Heb. beth ab\ and
the husband has no right to it (§ I63).1 The latter
case is on the assumption that the man's father-in-
law has returned the purchase - price. The law,
therefore, proceeds to state that if the purchase-price
has not been returned, the husband is entitled to
deduct it before returning the marriage-portion to
her " father's house" (§ 164). In other words, since
the wife has died childless, the husband has the
right to the price he has paid,2 whilst the father in

1 The law reappears in New Babylonian times in a slightly
different form : —

A"£4323. CH, §163.

" A man who has given a por- " If a man has taken a wife,

tion (nudunnit) to his daughter, and she has not given him
and son or daughter has she not, children, that woman has gone
but fate snatches her away (Sim- to her fate (a-ncTsiTim-tim itta-
ti ub-lu-us) — her portion shall la-afc) ; . . . the portion Qeriktu}
return to her father's house." of that woman the husband shall

not claim, her portion belongs to
her father's house."

According to the Laws of Manu (9 197), the property of the child-
less wife returns to her parents in the case of the Asura marriage
(one wherein the bridegroom gives wealth to her and to her kins-
men, 3 31).

2 A form of compensation that is to be found in other lands.

88 THE LAWS OF MOSES CHAP, iv

his turn receives back the dowry he had given to his
daughter. The modification of this law in Syria in
the fifth century A.D. through Roman influence is
interesting. The marriage-portion, in the event of
the woman's death, passes over to her husband,
provided she leaves children. As an innovation, it
is provided that if her father is still alive, he and
the husband should share it equally. It is not
remarkable that the law has been found surprising
from the Roman point of view (Bruns and Sachau,
op. cit. pp. n, 200 sg.).1

I Now, in Babylonian custom the marriage-portion
/may be made over for the sole use of the wife or the
^husband, or it may be joint property. Since there
is a possibility of its reverting to the father, it is
unalienable during his lifetime, and a case is cited
where a slave, who formed part of the wife's
dowry, could not be sold without the consent of her
parents.2 It must be given to her in case of divorce
or separation. She holds it in trust for her children,
and if her husband dies and she marries again, the
children of the second marriage — if there are any —
share it with those of the first (§ 173 sq.). The
JSyro-Roman law-book allows the wife, if she has no
tchildren, and is not under the authority of her

1 As an illustration of later Jewish law, it may be mentioned that
R. Jacob Tarn (1100-1171) enacted that if the wife died childless
within the first year after marriage the whole amount of the dowry
was to be returned to her father. According to a subsequent
modification, if she died before the end of the second year only half
reverted to her parents (Jewish Encyclopedia, 4 646^).

2 Sayce, Babylonians and Assyrians, p. 23.

CHAP, iv THE FAMILY 89

father, to leave half of it to whomsoever she will ;
the other half is her husband's (Brims and Sachau,
p. n). Moreover, the marriage-settlement, being
originally the husband's property, is not left to the
wife to dispose of entirely at her pleasure. If, says
the old Babylonian law, a man has made over to his
wife, field, garden, house or goods, and has drawn
up a sealed contract to this effect, the property
remains in her undisputed possession so long as she
lives, but it must go to the children when she dies
or when, as a widow, she leaves her husband's home
to marry again. She is even allowed to give it to a
favourite son, but it must be kept in the husband's
family, and under no circumstance can she leave it
to one of her kin (§§ 150, 171 sq.).1 From CH,
§ 164, to which reference has already been made, it
appears that the marriage-portion was usually larger
than the purchase-price. The relation between the
former and the settlement made by the husband
becomes the subject of legislation in later times, and
the Syro-Roman law-book (p. 58), after observing

1 According to Winckler and Scheil in § 150 the mother may
leave all to her favourite son (a-na mari-sa sa i-ra-am-mii) and
nothing to a brother, i.e. any other son (a-na a-hi-im}. Johns,
however, renders, " The mother after her to her children whom she
loves shall give, to brothers she shall not give." The interpretation
in the text may be justified on the grounds that CH, § 171 sq., proves
that the marriage-settlement must go to the sons ultimately, but the
wife may give the preference to one of them, even as the father might
leave to any one of his sons, " the first in his eyes," a larger amount
of property than the rest (§ 165). There are certain cases where
the woman's share returns to her brothers, but these apply only to
her portion of the father's estate (§§ 178-181).

90 THE LAWS OF MOSES CHAP, iv

that in the Western lands the man is expected to
settle upon the wife exactly as much as she has
brought him, remarks that in the East the settle-
ment is only half the amount.

What has been said regarding the purchase-price,
marriage-settlement, and dowry might be further
extended if full account were taken of the numerous
customary usages illustrated in the contract-tablets
of later times.1 It is important to observe that the
practice of returning the purchase -price in the
dowry (§ 163 sq.) is evidently an attempt to remove
one of the humiliating conditions entailed in the
bdal type of marriage. In the New Babylonian
empire, as in Arabia under Islam, it had become the
marriage-settlement, whilst in Israel the father was
expected to return it to his daughter in the dowry.
In the next place, the father's dowry and the
husband's settlement are not at the free disposal of
the wife, since the former reverts to the father if
she dies childless (§ 163), and the latter cannot be
given to any one apart from her children (§ 150).
The dowry, therefore, practically becomes the
father's contribution to the rearing of his daughter's
children. But the daughter has already been
purchased by the husband, and, in the event of her
dying without children, a crude system of compen-
sation allows him to receive back the price he had
paid. These laws must surely represent more than
one stage in the evolution of marriage in Babylonia,
and it seems probable that the provision in § 163

1 Reference may be made to Marx, loc. tit. ; Sayce, op. cit. ch. 2.

CHAP, iv THE FAMILY 91

reflects that type of union where the wife remains in
her father's house and the children are counted to
her tribe. Under these circumstances the father is
naturally expected to provide for his daughter's
children, since the husband is only on sufferance,
and may belong to another tribe. When, under a
different regime, the wife passed out of her father's
house into that of her husband, there was no objec-
tion to her taking with her a dowry, provided she
bore children to whom to give it. It may have
been considered equitable, therefore, that if the
husband had to return his wife's dowry in the event
of her bearing no children, the father, for his part,
should hand back the purchase - price. Whether
this be so or not, these laws must point to a conflict
of marriage-systems, and unless it may be con-
jectured that they reflect a fusion of types corre-
sponding to the mot' a and bctal marriages of Arabia,
no plausible explanation lies at hand.

According to Peiser, there is evidence that in
Babylonia the husband could pass over into his
wife's family, and if this is correct, one is tempted
to see in it an actual survival of the earlier conditions
which we have assumed.1 But it is necessary to
notice that these conditions have not left their mark

1 Skizze der babylonischen Gesellschaft (Mitteil. d. vorderasiat.
Gesellschaft, 1896, iii.), p. n. So in CH, § 130, the wife (assat) of
a man is still supposed to be dwelling in her father's house, but
betrothal makes the woman nominally a wife, and so in Deut. 22 24
the virgin espoused to a man is called his eseth. In like manner
the girl's father is called father-in-law after the betrothal (CH,
§§159 W-)-

92 THE LAWS OF MOSES CHAP, iv

upon the language as has been the case in both
Arabia and Israel. The Babylonian husband, as we
have already seen, is his wife's bdal, and the usual
word to express the " taking" of the wife is ahazu,
which in the New Babylonian period is generally
replaced by rasu, " possess," whilst Assyrian prefers
liku? corresponding to the Hebrew lakah. We
certainly miss verbs synonymous with the Arabic
malaka and the Hebrew baal, expressive of the
bondage of the woman in marriage,2 but the Arabic
and Hebrew linguistic traces of the custom whereby
the wife receives the husband in her own tent and
tribe,3 as far as the present writer is aware, are
as yet without a parallel in either Babylonia or
Assyria. The married woman in her husband's
home has scarcely the elevated position that has
been claimed for her in Babylonia. If the law
allowed her freedom in all that pertained to business,
she was in precisely the same position as the
modern fellahln women, whose private earnings
remain their own property, who may be virtually
head of the house and yet subject to periodical
chastisement from the husband.4 In Palestine, no
less than in Babylonia, business capabilities advan-
tageously improved the wife's status (Prov. 31 10-31).
| In Syria, too, according to the law preserved in the

1 Meissner, op. cit. p. 147.

2 Kinship,^ pp. 92, 95. Baal, to own, occurs in E (Gen. 20 3),
D, and later writings.

3 Op. tit. p. 198 sq.

4 PEFQ, 1894, p. 133 ; 1900, p. 176.

CHAP, iv THE FAMILY 93

Syro- Roman code, wives were forbidden to bring ani
accusation (fcaryyopeco) against their husbands, and\
the inference is that with this exception women in the
fifth century A.D. still possessed the right to appea|
in law-courts, a privilege which Roman legislation
scarcely allowed,1 but was fully enjoyed in Baby-
lonia from the earliest times.

This independence of the Babylonian woman in
business affairs may also be ascribed partly to a
theory which fundamentally distinguishes Semitic
legal usage from — for example — the Roman.
Whenever we find that the wife leaves her home on
marriage and settles with the husband, either the
woman renounces her own kin and is incorporated
into that of her husband, or she retains her own kin
and enjoys rights in her new position as the mother
of her husband's children rather than by virtue of
being his wife. There are, however, no traces of
the patria potestas among the ancient Semites, and
the wife is not even adopted into her husband's
stock, and the conclusions that Robertson Smith
has drawn from the old Arabian evidence may
be illustrated from other Semitic quarters.2 The
modern fellahin woman is still " often considered a
stranger in the family to a certain degree. If she

1 Bruns and Sachau, op. cit. p. 198.

2 Kinship,^ pp. 76 sq.\ Re 1. Sem.(2} p. 279. The man has not
the power of life or death over his wife that he has over his slave,
and in one early Arabian case a man who had accidentally killed his
wife was compelled to make compensation to her family (Procksch,
Uber die Blutrache bei den vorislamischen Arabern, p. 61 ; Leipzig,
1899).

94 THE LAWS OF MOSES CHAP, iv

is energetic she can rule the house and command
the husband just as well as any Occidental woman
may. She is greatly venerated by her children, but
is not inseparably attached to the family of her
husband."1 She is "called by her own and by her
father's name, never by that of her husband, and as
soon as she has a child she takes her name as its
mother." ! The wife takes a by no means prominent
part in the mourning for a dead husband — a usage
that goes back to early Arabian times,3 and the
husband in his turn pays comparatively slight
regard to the death of his wife. In Israel, according
to the Law of Holiness, the priest is forbidden to
mourn for a dead member of his clan (am), an
exception being made in the case of his immediate
"kin (seer) that is near unto him,"4 and it is note-
worthy that no mention whatever is made of the
wife (Lev. 21 i sq.). Marriage removes the girl
from her kin as long as her husband lives or she
has children by him. The same collection of laws
distinguishes between the priest's sister, " a virgin,
not given to a man," and the " married sister " (Lev.
21 3 sq.).5 The latter, being outside the kin, may
not be mourned for, and so in Lev. 21 12 sq. the
priest's daughter who has married outside is a
stranger and has not the right to eat of the holy

1 Baldensperger, PEFQi 1900, p. 176.

* Id. 1901, p. 75.

8 Kinship^ p. 77, n. i ; cp. Wellhausen, Ehe^ p. 450, n. 2.

4 SPer, lit. flesh (cp. the Arabic analogies cited in Kinship^
P- 39, n. i).

5 Reading beiilath bdal in v. 4, with Baentsch and Bertholet.

CHAP, iv THE FAMILY 95

food, but if she is a widow, or has been divorced,
she again comes into her father's kin, provided she
has no children. The children give the stamp to l
the mother's kin, and, as we shall see in a subsequent I
chapter, the position of the woman in the house of/
her husband is fundamentally based upon the/
question whether she has or has not children.

CHAPTER V
THE FAMILY (continued)

Bars to marriage — Babylonian laws against incest — Chastity and
slander — Parallel Hebrew laws — Laws of adultery — Ordeals —
Childlessness and bigamy — Polygyny in the Old Testament —
Sarah and Hagar — Other laws of separation or divorce —
Divorce in Israel — Wife's ability to divorce herself — Later
Syrian laws.

AMONG the primitive Semites, as among other
peoples in an early stage of development, ideas of
refinement in all sexual matters were the result of a
very gradual growth. The laxity of morals which
was in evidence in early Arabia1 is not without its
parallels both in Israel and in modern Bedouin life,
and, as is proved by the excesses of the I star cult,
was particularly prevalent in Babylonia.2 Certain
restrictions, however, appear as early as the Code
of Hammurabi, and these, viewed in the light of the
Babylonian evidence from other sources, have im-
portant results for the study of early comparative
custom. The most instructive are those which

1 Kinship,^ chap. 4.

2 Cp. also the story of Eabani in the Gilgames epic (Barton,
Semitic Origins •, p. 43 sq.).

CHAP, v THE FAMILY 97

relate to marriage, and it will be convenient, in the
first place, to notice the extent to which marriage
within the kin prevailed among the Semites.

Bars to marriage spring up under a variety of
conditions, and, as Robertson Smith has demon-
strated, appear to have been confined originally to
the woman's side.1 To start with the Old Testa-
ment : marriage with the half-sister was customary
even in Ezekiel's day ; 2 it is vouched for in Phoenicia
(Tabnith) and Egypt, and one instance from Baby-
lonia of the time of Cambyses is mentioned by
Sayce, who rather unnecessarily supposes that it was
an imitation of the Persian custom.3 Moses was
the son of marriage between a nephew and a
(paternal) aunt (Ex. 6 20, Num. 26 59), and there are
several allusions to the deep-seated custom of taking
over the (dead) father's wife along with the inherit-
ance.4 The last -mentioned is the subject of the \
earliest prohibition of forbidden degrees (Deut. |
22 30). Other prohibitions, which appear to belong
to another collection of laws, mention only the step-f
mother, the mother-in-law, and the sister (Deut.
2720-23). The Law of Holiness (Lev. 18, 20)

1 Kinship,™ ch. 6.

2 Ezek. 22 ii ; cp. Gen. 20 12 (Abraham and Sarah), 2 Sam. 13
(Absalom was probably Tamar's uterine brother, hence his interven-
tion). In the Book of Jubilees marriage with the sister ceases with
Kenan (4 14 sq.).

3 Babylonians and Assyrians, p. 31. Illustrations from other
fields are given by Frazer, Pausanias, 2 84 sq.

4 For the practice in general, cp. Gen. 35 22, 49 4 ; 2 Sam. 3 7,
16 22 ; i Kings 2 22.

98 THE LAWS OF MOSES CHAP, v

extends the list of restrictions, although, probably
through an error, it does not include the father and
daughter ; it will be noticed that even for the
marriage of nephew and aunt there is no penalty,
but the punishment of childlessness is threatened
(20 20 ; cp. v. 21). These prohibitions are no doubt
to be regarded as representatives of successive
advances in the marriage law of Israel.1

In early Arabia the strictest bars seem to have
been restricted to the mother, the uterine sister, and
the daughter, to which Mohammed adds prohibitions
against the mother-in-law and stepdaughter, and,
as regards the wife, the father-in-law and stepson.
These and other additions, as far as their principle is
concerned, may be of Jewish origin, although, as
Robertson Smith points out, this cannot apply to
the details.2 Marriage between cousins has been

1 So Robertson Smith, Old Testament in the Jewish Church,® p.
370, n. i ; Carpenter and Harford-Battersby, The Hexateuch, 1 223
("Without laying too much stress on the argument from silence,
it seems natural to see in the increasing stringency of D, and still
more of the Law of Holiness, an evidence of a progressive strengthen-
ing of old custom into detailed law. No doubt the prohibitions in the
Law of Holiness had been frequently issued as oral toroth before
being codified, but the crystallisation in the code is the significant
fact"). Gillah kanaph ("uncover the skirt") could be used of
legitimate as well as of illicit intercourse, and has Arabian analogies
(Robertson Smith in Driver, Deut. p. 259; similarly gillah lerwah,
Lev. 18 6; cp. Freytag, Ar. Prov. 1 234).

2 Kinship® pp. 195-197. For the prohibitions among the
modern fellahm, cp. PEFQ, 1894, p. 132 sq. ; 1900, p. 182. The
bars mentioned by the Syro-Roman law-book comprise uncle and
niece, aunt and nephew, son and father's wife (stepmother) or con-
cubine, deceased brother's wife, deceased wife's sister ; the possession

CHAP, v THE FAMILY 99

and still is particularly common in the East (cp.
Gen. 244, 29 19; i Kings 14 31 and 152), and the
tie between them is closer and more sacred than
that between an ordinary couple (Burckhardt, Ar.
Prov.(y) no. 620). In early Arabia, the man had the
first claim to the hand of his cousin on the father's
side,1 and this claim is even enforced at the present
day.2 In Babylonia, on the other hand, the con-
tracts reveal scarcely any traces of intermarriage, ,
and perhaps the only instance even of the marriage
of cousins appears in the genealogy of the famous
banking-house of Egibi, where Nergal-itir marries
Sukaiiti, the daughter of his father's brother.3

of wives in common is strictly forbidden (Bruns and Sachau, op. cit.
pp. 254 sqq., 279 sq.). Fellowship in women (polyandry) has left
traces in Arabia (Kinship^ pp. 156 sqq.\ and appears to have been
in vogue among the lower classes in Egypt (Spiegelberg, Arbeiter
und Arbeiterbeivegung im Pharaonenreich unter den Ramessiden, p.
10 sq. ; Strassburg, 1895).

1 Kinship^ p. 163 sq. This intermarriage was sometimes
objected to on the score of health (Wellhausen, Ehe^ p. 441 ; cp. ib.
p. 436 sq.).

2 In one instance a man demands his cousin who had been taken
in marriage by another. The husband thinks it a matter of com-

. pensation, but the cousin requires either the girl herself, or four other
daughters in her stead. As a preliminary, it is discussed whether the
case should be tried by Bedouin or Mohammedan law. According
to Mohammedan law, a second daughter offered by the father would
be sufficient reparation, whereas Bedouin right annuls the marriage,
or at least entitles the claimant to his cousin's dowry. Ultimately the
cousin's claim was considered valid, since, although he has put off
marrying her from year to year, the girl ought to have taken steps to
force him to make her his wife (Lady Anne Blunt, Bedouin Tribes of
the Euphrates, 2 105 sqq.).

3 Kohler and Peiser, Babylon. Rechtsleben, 4 22 sq.

ioo THE LAWS OF MOSES CHAP, v

Sayce, however, in addition to a marriage with the
half-sister (referred to above), also adds instances
where the bride is the sister-in-law and the niece.1
I The prevalence of greater freedom in the older
I times is proved by the Code of Hammurabi, which
^contains four specific laws on the subject : —

(a) The man who has known (il-ta-ma-ad) his
daughter is driven out of the city (§ 154).

(6) The man who has betrothed a bride
(kallatu) 2 to his son, and has had intercourse with
her (i-na zu-ni-sa it-ta-ti-il-ma), receives a punish-
ment which varies according to whether the
marriage has or has not been consummated. In
the former case, the man is bound and cast into the
water (§ 155) ; in the latter, he pays half a mina of
silver and returns to her all that she has brought
from her father's house, and she is free to marry the
"man of her heart" (§ I56).3 The law, as it stands
in § 155, reads, "that man one shall bind, and cast
her into the waters " (Johns). Father Lagrange's

1 op. dt. p. 31.

2 Presumably the young betrothed could be taken to her father-in-
law's house before marriage ; at all events, the married son may
remain in his parents' house, and in this case they receive the wife's
dowry (cp. Kohler, Beitr. z. Assyr. 4 424). Kallat in Heb. is used of
the betrothed or the daughter-in-law, in Syr. of the bride or daughter-
in-law, and in Ar. (kanna) of a man's own wife, or that of his son or
brother (cp. Kinship ^ p. 161 ; Barton, Semitic Origins, p. 65).

8 Under Islam, also, a man was forbidden to marry a woman
who had been his son's wife (Kinship^ p. 52) ; cp. Lev. 20 14.
In Amos 2 7 the allusion is to immorality in the service of Ashtoreth
(Istar).

CHAP, v THE FAMILY 101

suggestion,1 that both were bound and cast into the
water, on the analogy of the penalty for adultery
(§ 129), is plausible, but Scheil's conjecture (which
Winckler adopts), that " her " is an error for " him,"
is to be preferred, and is supported by the parallel
law in § 130. Here, the man who is caught violating
another man's wife (assatu], who is living in her
father's house, and has not known the male (zi-ka-
ra-am la i-du-u-ma)? is put to death, and the woman
goes free (§ 130).

(§ i57)-3

(d) The man who has intercourse with her " who
brought him up " (ra-bi-ti-su), and has borne children, 1
is cut off from the paternal home (blti a-ba ; § 158). |
Whether the man is an adopted son or the woman
is a stepmother is not stated, but it is remarkable
that the penalty is comparatively light. Have we
here a survival of the old custom of marrying the
widowed stepmother ? 4

In Babylonia the chastity of the wife is expected, j
and can even be certified in the marriage-contract ; 6 j

1 Revue Biblique, 1903, p. 38, n. I.

2 Cp. Heb. use oiyada, especially with miskab zakar (Judg. 21 n
sg., Num. 31 17 sq.}. Note the synonymous iltamad (CH, § 154).

3 The grossness of the crime appears also from the solemn
formula of divorce in Arabia (Kinship^ p. 193). For the nature of
the punishment, cp. p. 106 sq.

4 So also Orelli, Gesetz Hammurabis^ p. 20.

5 In a contemporary tablet quoted by Pinches, op. cit. p. 173 sq.^
it is declared : " Ana-aa-uzni is a virgin, no one has anything to say

102 THE LAWS OF MOSES CHAP, v

adultery is severely punished, and the libellous
slanderer meets with a just reward. The wife who
has been slandered by her husband, but has not
actually been caught in flagrante delicto, may declare
her innocence by a solemn oath,1 and is free to
return to her house (§ 131). For the slight that has
been cast upon her she is allowed to separate from
her husband. But if that woman "has had the
finger pointed at her on account of another male,"
but as before there is no clear proof, she must
plunge jnto the holy river (§ 132). Here the pre-
sumption is that the scandal has become public
property, her guilt is more probable, and the
decision is left to the river god (ilu naru). From
the nature of the ordeal, and on the analogy of the
law in § 2, it would seem that if she floated it would
be concluded that the deity was not angered against
her, and that she was innocent (p. 64 above).

The Code does not forget the slanderer (cp. Lev.
19 16, Ps. 101 5). The man who has caused a finger
to be pointed against a votary 2 or a man's wife, and
has not proved his case (la uk-ti-in), is brought
before the judge and is branded on the forehead
(§ 127). The precise nature of the penalty (mu-ut-
ta-zu u-gal-la-bu) is not clear. It is conceivable that
the forelock, the mark of the freedman, was cut off,
but the same word is used elsewhere of the branding

against Ana-aa-uzni " ; cp. p. 177. The subject is treated ad nauseam
in the Talmud (Kethilbotk).

1 ni-is i-lim i-za-kar-ma^ i.e. " swear by the name of God."

2 See below, p. 147 sq.

CHAP, v THE FAMILY 103

of slaves.1 When the wife is actually caught in
the act of adultery with a male (zi-ka-ri-im), the
pair are bound together and thrown into the
water, unless the " owner of the wife " (be-el as-sa-
tim) would preserve his wife, or the king his servant
(ardu; § 129). Drowning, it will be noticed, is also
the penalty for the wife who repudiates her husband
and says, " Thou shalt not possess me," 2 whilst in
one New Babylonian contract the wife who is an
adulteress is put to death with an iron sword.3
Intrigue comes into consideration in § 153 (see
below), where the wife who has plotted her
husband's death for the sake of another is impaled.4
The early codification of such laws as the fore-
going stands in marked contrast with what is found
elsewhere among the Semites. The lack of refine-
ment in ancient Israel need not be dwelt upon ; it is
sufficient to recall the stories in Gen. 19, Judg. 19,
etc. Even the restrictions in Lev. 21 7, 14, apply
only to the priests. The old law in Ex. 22 16 sq.
regards the seduction of a virgin as an injury to the
father, and the man must pay the father the purchase-^
price (mokar) and marry her.5 The amount of the

1 In Arabia the forehead of slaves and captives was shaved
(Wellhausen, Arab. Held.® p. 198).

2 § 142. In the old law cited in KB 4 320, the formula is, " Thou
art not my husband."

3 Marx, op. cit. p. 7. The verb is tamatu; cp. Heb. yiimath in
the laws Ex. 21 20, Lev. 24 21, etc.

4 i-na ga-si-si-im i-sa-ak-ka-an-nu-sim. In the Syro-Roman law-
book intrigues are regarded as especially due to intermarriage
(Bruns and Sachau, op. cit. p. 33, § 108).

5 So in Egypt ; cp. Revue Egyptologique^ 1 117 sq.

io4 THE LAWS OF MOSES CHAP, v

price rests with the father, and if he refuses to give
his daughter in marriage, the man must pay the
average customary sum (" according to the price of
virgins "). It is presupposed that she is not already
betrothed (orasak), otherwise the offence would
doubtless be equivalent to adultery, and the man
would have to settle with her husband, or be put to
death (cp. Deut. 22 23-27). The account of the
seduction of Dinah (Gen. 34) is unfortunately too
composite, and the older elements too fragmentary,
to be used as safe evidence for the actual working
of old custom in Israel. Shechem, according
to both J and P, offers the purchase-price, and,
according to the latter, includes an additional gift
(mattan) as compensation. The older narrative
does not actually state that this was accepted, but
that it was becomes highly probable from v. 26 (J),
where Dinah is in Shechem s house ; there was no
occasion, therefore, for the blood -revenge that
ensued, and Gen. 34 30 sq., 49 7, prove that it was
distinctly opposed to the custom. At the present
day, one or both of a guilty pair may be killed on
the spot, or, as in old Israel, the father can force
the man to marry his daughter after paying the
purchase-price. Blood-revenge follows most natur-
ally when no attempt is made to offer compensa-

tion.1

The old law is developed with greater precision
in Deut. 22 23-29. The seducer of a damsel, a virgin,

1 Doughty, Arabia Deserta, 2 114 ; Jaussen, Revue Biblique,
1901, p. 596.

CHAP, v THE FAMILY 105

who is not betrothed, pays fifty shekels of silver
to the father, and is obliged to marry her without
the right of divorce (v. 28 sq.). If she is betrothed,
and the presumption is that she was unwilling, he
is put to death, and the girl is blameless (w. 25-27).
If the crime has not been committed in the open
field (cp. Ruth 2 22), but in the crowded city, the
presumption is that she consented, and both are
stoned to death (v. 23 sg.), the penalty for adultery.1
It will be observed that the purchase-price, which,
in the Book of the Covenant, was either fixed by
the father or was according to customary usage, is
now specified. In addition to this, the law in v. 28,
in agreement with v. 22, implies that the pair are
found in the act. This is particularly striking, not
only on account of its parallelism with CH, § 130
("one has caught him"; cp. § 129, and contrast
§131 sg.), but also because of its development in
later times, when the law came to require the
minutest details before adultery could be legally
punished.2 Hence then as now the injured husband
commonly took the revenge into his own hands.3
The growing strictness of the law of chastity I

1 A fragment preserved in Lev. 19 20 deals with the case where
the woman is not free, but belongs to her master. The meaning is
rather obscure ; apparently there is a judicial inquiry (bikkdreth,
AV, " scourging," follows Jewish tradition and the Mishnah), but
the man is not put to death because she is not a free woman (so
following the text as emended by Baentsch).

2 Cp. PEFQ, 1897, p. 127.

3 Prov. 5 9 (the injured husband is fierce, *a&zan)t 6 34 sq. (will
not always accept compensation, kopher).

106 THE LAWS OF MOSES CHAP, v

in Israel is illustrated by three closely- related
narratives in the patriarchal history, which are
characterised by a common motive. In Gen.
12 10-20, a narrative which seems to owe its inclusion
to J, Abraham does not consider it reprehensible
that his wife should have been taken into Pharaoh's
house. Gen. 26 6-u, a parallel story, also due to
J, relates a similar incident of Isaac and Rebekah
in Gerar, and shows that adultery would have
entailed blood-guiltiness ('asam, primarily a fine or
compensation). Finally, E's story of Abraham at
Gerar in Gen. 20 1-17 displays a great advance in
morality ; the sin of adultery is condemned in the
most emphatic terms, and it is regarded as a capital
offence.1 The stress here laid upon the iniquity
jmarks a stage in ethics comparable only with the
Decalogue, where adultery is prohibited, and with
the Deuteronomic code (22 22), where also the
penalty is death (stoning ; cp. Ezek. 16 40, 23 47 ;
John 8 s).2 In later times the death-sentence was
carried out by strangulation ; 3 burning, the penalty
for the erring priest's daughter (Lev. 21 9) or for
union with a woman and her mother (Lev. 20 14),
was exceptional, and was scarcely common in old

1 Gen. 12 10-20, though probably due to a secondary element of
J, has preserved older features. Pharaoh's presents to Abraham in
12 16 (as purchase-money) are given as compensation in 20 14-16 ;
in 26 13 Isaac's wealth is due to his own labours.

2 Cp. Job 31 ii : it is wickedness (zimmah; cp. Lev. 18 17, 20 14)
and a punishable offence.

3 This was assumed to be the form of death whenever it was not
explicitly stated (Mish. Sanhed. 11 i).

CHAP, v THE FAMILY 107

times (but cp. CH, § 157, above). The Book of
Jubilees (20 4 ; cp. 41 25 sq.) enacts burning for all
fornication, a clear divergence from Old Testament
law, which scarcely finds support in Gen. 38 24.
The Talmudists were forced to assume that Tamar
was the daughter of a priest, and the same solution
of the difficulty is accepted by the Targum Jonathan.1
This is of course a mere conjecture, and an un-
necessary one. Unchastity is a stain upon the
honour -of the kin, and the relatives themselves are
expected to take vengeance upon the guilty woman ;
it is a personal matter, therefore, and before the
introduction of legal penalties the punishment can
take any form the avenger pleases.2

As regards slander and accusation, it is not until
Deut. 22 13-21 that the law intervenes. But the law
in question is hardly to be regarded as entirely an
innovation of the Deuteronomic reformation ; it is
evidently a survival of primitive custom — which is
still in existence in the East — but its most important
feature is that it takes the charge out of the hands
of the husband and leaves the decision to the elders.
If the accusation is false the man is publicly re-
proved (chastised ? yissar), and is ordered to pay
a hundred shekels to the father-in-law, but if it is

1 Cp. Charles, The Book of Jubilees, p. 230. In Jubilees 41 25 sq.
the penalty is enforced more particularly in the case of the mother-
in-law and daughter-in-law.

2 Cp. PEFQ, 1897, pp. 125-127. Burning as a penalty suggests
a sacrificial rite, and, indeed, as Robertson Smith has shown, the
execution of criminals is frequently carried out on the analogy of a
sacrifice (Rel. Sem.(z) pp. 285, 418 sqq.\

io8 THE LAWS OF MOSES CHAP, v

proved that the wife had been guilty of unchastity
before marriage she is stoned to death by the
community. The punishment of the wife is in
agreement with 22 24, and in view of what was
actually written down in some Babylonian contracts,
it may perhaps be inferred that some guarantee
similar to that quoted above (p. 101, n. 5) was made
by the father to the husband. The amount paid
by the slanderous husband, it will be noticed, is
exactly double the penalty for violation (v. 29), and
in neither of these cases is the husband allowed to
divorce the wife.

, A man suspected of adultery by a woman's
husband could no doubt be made to take an oath
of innocence, as is still the custom.1 A similar
procedure might be adopted by the husband towards
a suspected wife (cp. § 131), although where there
were the strongest grounds for suspicion a rite
preserved by P in Num. 5 11-31 2 subjects the woman
to an ordeal.3 The test, analogous to that in CH,

1 Cp. PEFQ, 1897, p. 131 (a man accused of adultery swears
his innocence in the Church of the Nativity in Bethlehem).

2 Two distinct rituals have probably been fused into one : a curse
upon the guilty woman, and an ordeal (Oxford Hexateuch^ ad loc.\
but a perfectly satisfactory separation of the two seems impossible
(cp. G. B. Gray, EBi. "Jealousy, Ordeal of"). Ordeals for sus-
pected wives are cited by W. R. Smith, ReL Sem.(2) p. 1 80, n. 3 ;
Kinship,^ p. 123; in one case a charge of unchastity which is
presumed to be false is to be referred to a diviner for an authoritative
decision.

3 The grounds upon which the suspicions are based are given in
v. 13 ; the additional reason in w. 14, 30 ("or the man over whom
passeth the spirit of jealousy ") is scarcely original.

CHAP, v THE FAMILY 109

§ 132 (above), was by water, but instead of leaping
into the holy river, the woman is obliged to drink of
a potion which, on the principle previously noticed
in chap. 3 (above, p. 64), is only harmful to the
guilty.

Later Jewish law modified the severity of the-
penalty for adultery, and by requiring the clearest
and most convincing proofs of guilt practically]
rendered conviction impossible. The husband,
however, in no way suffered under this new
development, since his freedom of divorce gave him
every power of putting away the wife whose chastity |
he suspected. The initiative, it will be noticed, is
in the hands of the husband, and the principle is
the same as in CH, § 131, where the suspected wife
who takes the oath of purgation returns to her
father's house, not as a punishment, but presumably
in consideration of the humiliation entailed by the
false charge that had been brought against her.
Since, therefore, the laws in Deut. 22 13-21 and Num.
5 11-31 do not allow the innocent wife to leave her
husband and return to her home, it seems a fair
inference that they have modified older custom in
accordance with that tendency to place restrictions
upon divorce and separation which is characteristic
of the Deuteronomic code. This being granted,
the assumption that older law under these circum-
stances gave the wife her freedom seems to throw
some light upon the amount of the penalty in
Deut. 22 19. The law fixes it at exactly double
the purchase-price (v. 29), that is to say, it is the

no THE LAWS OF MOSES CHAP, v

purchase-price — which by this time probably formed
the wife's dowry — together with an additional
(equivalent) sum as compensation or for her
divorce.1

There are other grounds for separation or divorce
besides adultery, and a consideration of them will
illustrate what has been said above in regard to the
position of the woman among the Semites. To
trace the development of Semitic marriage-systems
would take one too far afield from the Code of
Hammurabi, although the investigation is one that
is most intimately bound up with the question of
divorce. As a general rule, however, it may be
held that wherever the da'al type exists, the woman
is not a free agent, but is almost entirely deprived
of the right of claiming divorce, whereas if she is
not purchased, but can give herself away in marriage
and consult her own inclinations, the husband is
retained and dismissed at will.2 Under the bctal
type, further, the woman's status naturally depends
upon the question whether she is her husband's
only wife or whether she shares the position with
others, and if polygyny is disallowed by the law, it
is necessary to ascertain whether this was evaded
by the abuse of the husband's freedom to obtain
divorce.3
| "To have a numerous progeny was the desire of

1 Cp. CH, § 138, p. 119 sg.y below.

2 Kinship}* pp. 80 sqq. ; cp. above, chap. 4, p. 74.

3 As is frequently the case under Mohammedan law (cp. Doughty,
Ar. Des. 2 25 sg.).

CHAP, v THE FAMILY in

every one in ancient Israel,"1 and the desire is
shared by all the Semitic races. To the father, the
possession of sons adds warriors to his tribe, or, in
agricultural communities, brings fresh hands to help
in the field ; daughters, if less welcome, were an
addition to his property, since, as we have seen, the
father receives a compensation when he gives them
away in marriage. To the mother, it is the children
who add to her dignity and authority ; they im-
measurably increase her status, since by granting
her husband sons her chances of being divorced
are greatly diminished.2 Childlessness is still one
of the commonest reasons for divorce or for taking
additional wives (under the Mohammedan law) in
the East, as it was four thousand years ago in,
Babylonia. A small series of laws concerns itself
with this possibility. It shows that if a man's wife 3
was childless, he was allowed to take a concubine
(su-ge-tum) and bring her into his house, but he was
not to place her upon an equal footing with the wife
(§ 145). Or the wife might give her husband a
maid-servant (amtu), and if she brought up children
(mare us-tab-si), he was forbidden to take in addition
a concubine (§ 144). Here it is not explicitly
stated that the wife is childless, and elsewhere in
the Code (§ 170 sq.) it is presumed that a man has
children by both the wife and the maid-servant.

1 Benzinger, EBi. " Family," § 7.

2 This is the point of Leah's words in Gen. 29 34, 30 20.

5 The ideogram is explained as assatu by Scheil and Winckler ;
Johns, however, renders "votary." See below, p. 147 sq.

ii2 THE LAWS OF MOSES CHAP, v

Either the maid-servant or the concubine might be
legitimately taken, but not both, and the law sees
that the position and dignity of the wife are not
injured thereby. The maid-servant who places her-
self upon an equality with her mistress (be-el-ti-sa)
may be " sold for money" if childless, but if she
has borne1 children to her master, "her mistress,
because she has borne children, cannot sell her for
money, ' but shall put a 'mark' (ab-bu-ut-tum)
upon her, and reckon her among the female slaves "

(§ H6 sq)?

Xhg jnan, therefore, may take a concubine when
his wife is childless, or his wife may give him a
maid, but under no circumstances is either of them
,of equal standing with the lady of the house.
From the point of view that childlessness is a
justifiable cause for bigamy, another law is easily
explained. A man whose wife has been seized with
a sickness (la-ah-bu-um)? and has set his face to
marry a second, may do so, but he is not permitted
to put away 4 the first one ; she must remain in his

1 There is usually a difference in the wording : the wife grants
children (§§ 137, 145), whereas the concubine bears them (aladu^
§ M6 sq.).

2 Although the same word (amtu^ pi. amati] is used in both cases,
a distinction is evidently made between the servants and the slaves
branded with a mark. For the penalty here referred to, cp. Beitr.
z. Assyriol. 4 u, and p. 102, above. Winckler, however, translates
" servitude " (properly, " shackles ").

3 A " wasting " sickness (cp. Syr. nefyeb} ? Winckler " climac-
terium ? "

4 ezebu; in Heb. *cizab (leave, forsake) is used of a divorced wife
in Is. 54 6 (issah *azubah) ; in Ethiopic of a widow. The ordinary

CHAP, v THE FAMILY 113

house,1 and he must give her maintenance as long
as she lives (§ 148). If, on the other hand, this
woman (zinnistu) is unwilling to live with him, he
must pay her the marriage-portion (seriktu) which
she brought from her father's house, and she is
free to depart (§ 149). In another law (§ 167),
where a man has had two wives it is explicitly
stated that he has taken the second after the first
"has gone to her fate" (a-na si-im-tim it-ta-la-ak),
and although in certain New Babylonian contracts
we find a case where a man married two sisters,
there is nothing to show that this comes under the
head of bigamy, and Marx plausibly argues that
the first had died before the second was taken in
marriage.2

CH, §§ 144-147, are particularly interesting, not
only for the biblical parallels, which will be con-
sidered presently, but also for the illustration they
receive from a couple of contemporary documents
relating to the marriage of Arad-Samas with Taram-
Sagila and her sister Iltani. The two are not
blood -sisters ; probably Iltani was adopted by the
father of Taram-Sagila, although this cannot be
regarded as certain.3 Iltani's position is inferior ; her

Hebrew words for "to divorce" are sillah (Deut, Jer.), and later,
garas (in gerilsah, Lev. 21 7 14, Ezek. 44 22, etc.).

1 i-na bit z-pu-su, " in the house he has built " (i.e. not elsewhere;
Winckler).

2 Beitr. z. Assyr. 4 24 sq.

3 Pinches, The Old Testament ', p. 174 sq. ; Sayce, op. tit. p. 27
sq. ; cp. Meissner, op. cit. no. 89. In one contract they are given
in marriage by their father Uttatum (Meissner, Samas-s'atum), in the

ii4 THE LAWS OF MOSES CHAP, v

duty is to wash the feet of her sister and to obey
her in all things ; apparently she is Taram-Sagila's
waiting-maid. In one contract, the ordinary stipula-
tions are made in case of repudiation : he may throw
them down from the tower if they deny him, and
can pronounce the formula of divorce and send
them away " from house-goods." The other is
drawn up for Iltani, but applies to both. The
children they have borne and shall bear are "their
children " (recognised by him). Clauses are intro-
duced against the repudiation of one sister by
another. Arad-Samas may divorce his wives for
one mina of silver, and if they deny him he may
strangle (?) them and throw them into the river
(a-na nart). The wives bring no dowry, and
Taram-Sagila has a seat in the " house of her god,"
i.e. the house of Marduk — it is possible that they
were connected in some way with the temple. In
another case, Bunini-abi and Belisunu his wife buy
Samas-nuri " for Bunini-abi a wife, for .Belisunu a
servant " ; the price paid is five shekels, and the only
stipulation is that Samas-nuri shall not repudiate the
authority of her mistress. If she does this, it is
agreed that they shall shave off her hair and sell
her for money.1

I Nowhere in the Semitic world do we find
polygyny so restricted as in Babylonia. In the

other Iltani is the daughter of Sin-abu-Su, who is one of the witnesses
to the first deed.

1 Pinches, op. cit. p. 185. The penalty is the same as that in
Iltani's contract.

CHAP, v THE FAMILY 115

Old Testament, with which we are here more
closely concerned, there are numerous references
to the custom, particularly during the Monarchy,
and if the example was set by the kings we may
be sure it was followed by the wealthy (2 Sam. 5 13,
i Kings 11 1-3; cp. Deut. 17 17). Undoubtedly the
ideal marriage in Israel, as represented in the
prophets' figures of Yah we' s relation to Israel and
in the later gnomic references, is monogamy,1 but
one must hesitate before assuming too confidently
on the strength of Gen. 2 24 that this ideal reaches
as far back as the time of the Yah wist. Jastrow's
theory that in the original form of the narrative
in Gen. 2 man was like Eabani in the Epic of
Gilgames, and that w. 21 sqq. reflect the institution
of a new order, at all events has this in its favour,
that it is supported by the frequency with which un-
natural offences are denounced throughout the laws.2
Of the earlier examples of polygyny one or two
may require sifting. Gideon contracted a marriage
of the sadlka type at Shechem, and no doubt else-
where ; the reference to his " many wives " in
Judg. 8 30 belongs to a post-exilic hand, and is
perhaps based upon 9 2 (E). Bigamy was regularly!
practised, and its extent is proved by the fact that/
the word for a fellow or rival wife is common to
all the Semitic languages.8 It is not to be supposed

1 Cp. Benzinger, EBi. " Marriage," § 5.

2 Exod. 2219; Lev. 1823, 20 15 sq. ; Deut. 27 21. See Barton
Semitic Origins •, p. 43 sq.

3 Heb. sdrdh, denominative "to take a second wife" Lev. 18 18.

n6 THE LAWS OF MOSES CHAP, v

that the custom only prevailed where the first wife
was childless (as in i Sam. 1 2, Gen. 16 2, cp. 11 30,
30 i sqq., 9), since the only law on the subject is of
the time of the Deuteronomic reformation, and its
sole concern is to ensure that the superior rights
of the first-born of the first wife are not ignored
(Deut. 21 15-17). A distinction is to be observed
between the marriage of two or more free wives,
and the custom of taking in marriage the maid-
servant (arnaK). In the former case the two are on
an equality, although the tendency of the age did
not render the position of the first, if childless, a
tolerable one ; * in the latter case, especially if the
mistress (gebtreth, Gen. 164) herself had given her
husband a maid-servant, it was to her interest to see
that her own dignity did not suffer.

The story of Sarah and Hagar is a case in point,
and affords an interesting commentary upon ancient
custom when considered in the light of CH, §§ 144-
147. There are two parallel versions, Gen. 16 and
21, from J and E respectively. In the former,
Hagar's contempt for her childless mistress moves
Sarah to appeal to Abraham for justice, and

In Ass. sirritu = tappattu, "female companion" (Delitzsch, Ass.
Handivorterb. p. 712 a).

1 ed-durra murra, " the second wife is bitter," runs a modern
Arabic proverb (L. Einsler, Mosaik aus dem heiligen Lande
(Jerusalem, 1898), p. 80, no. 80); cp. i Sam. 1 6, 10. Illustrations
of the working of the system are given by Baldensperger, PEFQ,
1899, p. 139, and Jaussen, Revue Biblique, 1901, p. 597 (a woman,
no longer young, at the funeral of her only son, persuades her
husband to take another wife).

CHAP, v THE FAMILY 117

Abraham's words in 16 6 are so far quite in con-
formity with the law in CH, § 146 ; Hagar is in her
hands, let her do to her as she pleases. Compelled
by Sarah's harsh treatment, Hagar flees from the
face of her mistress into the desert. According
to the Elohist's account, Hagar's child has been
legally recognised by Abraham (as heir, 21 10), and
Abraham condemns Sarah's proposal to expel the
child and his mother, and only consents to it
after receiving a revelation. The result, it will be
noticed, is the same in both instances. Naturally,
these stories of the origin of the Ishmaelites, whose
descent is thus regarded as inferior to that of the
Israelites,1 cannot be made to mean too much. It
is not safe, therefore, to assume too confidently
that Sarah's persecution, which Abraham tacitly
allowed (according to J), was, under the circum-
stances, contrary to usage2 — CH, § 146, it will be
remembered, only empowers the mistress to degrade
the arrogant handmaid — or that Abraham's hesita-
tion in the story as related by E was entirely
due to the fact that Ishmael had already been
recognised as his son and heir. But it is per-
missible perhaps, on the other hand, to trace a
growth in the development of custom between J
and E. In J, Sarah's persecution forces Hagar to
flee, and Abraham does not interfere ; in E, Sarah's
intention is grievous in the patriarch's eyes, and he

1 Noeldeke, EBi. "Hagar," § i.

2 Contrast the comparatively humane treatment of captive women
in Arabia even before Islam (cp. Kinship^ p. 89 jy.).

u8 THE LAWS OF MOSES CHAP, v

only permits it to be carried out after receiving the
divine command. This growing tendency towards a
more humane treatment of the maid-servant is quite
in accordance with the Book of the Covenant, where
her status is legally secured, and the harmonising
addition in J's narrative (169-10) not only reconciles
the two stories, but effectively softens the harshness
of the incident by indicating that Hagar returned
again to the tent of Abraham.

That the husband is allowed to take a second
wife when the first suffers from an incurable sickness
(CH, § 148 sq., p. 112 above) is a provision which
finds an interesting parallel in the Syro-Roman law-
book. Here, if the wife suffers from some affliction
" of the sort that separates the wife from the man,"
and he desires to put her away and take another, he
must give her the marriage-portion and her settle-
ment. If, however, he does not wish to divorce her
(" by reason of their first love "), he must set apart
for her a dwelling-place, and her maintenance
according to her due.1 Closely related to this is the
law for the wife who is found to be possessed with
a demon (Syr. seda). An inquiry is held in order
to determine whether the evil possession dates from
before or after the marriage. If the latter, she takes
on her divorce her marriage-portion and his settle-
ment ; otherwise, it is assumed that it must have
been known to her parents, and that the man has
been deceived, and the wife consequently receives
only her marriage-portion.2 These laws, as Bruns

1 Bruns and Sachau, op. cit. § 115. 2 Op. cit. § 114.

CHAP, v THE FAMILY 119

observed, contain scarcely more than an echo of the
corresponding Roman practices, which is not to be
wondered at, since it now becomes possible to con-
clude from the discovery of the Code of Hammurabi
that they are survivals of ancient custom, with the
introduction of slight modifications adapted to the
different conditions of the age. The relationship of
the law of separation from the sick wife to CH, § 148
sq.> is undeniable, although it will be noticed that the
latter says nothing about the settlement. Probably
it was an understood custom that the wife took this
also, since we find from other laws in the Code that
when the husband " has set his face " (pa-ni-su
i$-ta-ka-an) to put away the wife, she invariably
receives some additional compensation over and
above the marriage-portion which is returned to her.1
The laws in question (CH, §§ 137-140) presuppose
no offence on the part of the woman, and fall under
two heads. The wife or concubine who has borne
children receives her marriage - portion and the
usufruct (mu-ut-ta-af) of field, garden, and goods in
order to bring up the children. When they are
grown up these give her a share corresponding to
that of one son, and she can marry the " man of her
heart" (mu-tu li-ib-bi-sa}.2 On the other hand, if it

1 In one old contract the husband gives SaddaSu his divorced
wife a female slave, with full right to possess any children which the
latter may bear. He recognises Saddasu's daughter Zabinikbisa, and
undertakes that his sons shall have no claim upon her henceforth
(KB 447).

2 § 137 ; cp. the extract quoted by Meissner, op. cit. p. 150, where
the divorced wife is free to marry whomsoever she will.

120 THE LAWS OF MOSES CHAP, v

is a young wife1 who has not borne children, the
husband must give her the amount of her purchase-
price (tirkatu)) and her marriage-portion which she
has brought from her father's house, and shall put
her away (i-zi-zi-ib-si, § i38).2 If there was no
purchase-price he must give one mina of silver for
the divorce (uzubu), or, if he be a poor man,3 one-
third only (§ 139 sq.\

There are other divorce -laws to notice. If
the wife of a man who is living in his house has
set her face to go out, and has acted extravagantly,
"has wasted her house" (blt-za u-za-ap-pa-ak], and
has neglected her husband, one can bring her to
justice, and if her husband formally divorces her,
with the words " I repudiate her" (e-si-ib-sa), she
goes her own way and receives no uzubu. If the
husband does not pronounce this formula, and takes
another woman (zinnistu\ she remains in his house
as a maid-servant (§ 141). The wife, too, has the
right to claim divorce. If a woman hates her
husband4 and says, " Thou shalt not possess

1 Mrtu, "the elect" (Delitzsch). The verb used is aladu ("to
bear," not "to grant"; cp. p. 112, n. i).

2 One may compare Deut. 22 19, where the man who unjustly
charges his wife must pay twice the amount of the purchase-price ;
see p. 109 above.

3 muskmu, the name given to a class frequently mentioned in
CH, apparently between the freedman (amelu) and the slave (ardu) ;
cp. Johns, American Journal of Semitic Languages, 1903, p. 97 sq.
He seems to enjoy more rights than the early English villein.

4 mu-za i-zi-ir-ma, according to Winckler, " disagrees or quarrels
with " (" streitet mit ") ; see below, p. 125, n. 4. The husband divorces
his \vife\assatu), but it is the "woman" (sinnistu) who would

CHAP, v THE FAMILY 121

me,"1 an inquiry is held and her past behaviour ex-
amined, and if she has been thrifty and free from
fault, and it is her husband who has gone out and
neglected her, the woman is judged free from blame ;
she is allowed to take her marriage-portion and return
to her father's house. But if the blame is on her side
the woman is thrown into the waters (a-na me-e i-na-
ad-du-u-si] § 142 sq.). The law is expressed with
greater terseness upon a tablet in the British
Museum : 2 if a wife hates her husband and says,
"'Thou art not my husband' (ul mu-ti at-ta\ one shall
throw her into the river (a-na na-ar-u)" The
wife's attempt to divorce the husband is apparently
presumed to be due to some guilty reason, and thus
the same punishment is inflicted as for adultery
(§ 129). Another law allows for the possibility of a
woman plotting her husband's death : — " If the wife
of a man on account of a male has caused her
husband to be killed she shall be impaled" (§ 153).

Poverty arising from a lengthy enforced absence'
of the husband is regarded as a legitimate reason
for separation. If a man has been taken captive,
and his wife leaves his house and enters that of
another, the law has to decide whether he had left
sufficient to maintain her (lit. something to eat,
akalu}. If this be the case, "because that woman

divorce her husband. Perhaps there is just a suspicion of contempt
in the phraseology.

1 u-ul ta-ah-ha-za-an-ni. The verb is used elsewhere of " taking "
a wife ; cp. above, p. 92.

122 THE LAWS OF MOSES CHAP, v

has not guarded her body " (\_pa\-gar (?)- so), she is
put to judgment and thrown to the waters (§ 133) —
again the penalty for adultery. If, however, there
was no maintenance, the woman is free from blame
(§ 134). It seems most probable that the woman is
put to account by her husband's family, and not by
the man himself, since the possibility that the man
will regain his city comes under consideration in a
separate law. Here it is provided that if the wife
had entered into the house of another and had borne
children, in the event of the return of her first
husband she must go back "to her bridegroom,"1
and the children remain with their father, i.e. the
second husband (§ 135). On the other hand, the
rights of the deserted wife are protected : jf a man^
[eaves his wife and city, and his wife enters another
man's house, if he returns, he cannot seize (is-sa-
ba-af) her, and she remains with her second
husband " because he had hated his city and fled "
(§ 136). To forsake one's city is an inexcusable
offence, therefore, by which the deserted wife
benefits. The question of the woman's freedom to
marry again after the prolonged absence of her
husband engaged the attention of the later Jewish
doctors and the Mohammedan jurists. The former,
it may be observed, required the wife who had
married again to go back to the first husband on
his return,2 among the latter there were varying

1 ha-wi-ri-su ; cp. hirtu, p. 120, n. I above.

2 Talm. Jebamoth. 10 i sqq. Under ordinary circumstances, if
the wife was in great poverty she could appeal to the Rabbis, who

CHAP, v THE FAMILY 123

opinions : the Shiites, for example, allowed re-
marriage after an absence of four years, and if
the lost husband returned he had no claim upon
her.1

The conditions which these laws reveal are-,
illustrated by the contract-tablets, where the possi-/
bility of divorce is often taken into account. In
contemporary contracts the man provides for the
divorce of his wife with the formula " Thou art not
my wife," whilst in those of the New Babylonian

period it is more explicitly worded, "If takes

another wife," or " If leaves his wife." The

compensation appears to be generally i to i J mina
of silver; in one case it is as low as 10 shekels,2 in
another case as high as 6 minas.3 An old Babylonian
law from a fragment in the British Museum fixes it
at only half a mina.4 In one " letter of divorce " of
the old period the wife goes away with her ziku (?)
and uzubu — the latter being the compensation — and
the husband leaves the wife free to marry again.5
The liberty granted to the divorced wife appears •
notably in one instance where, as Peiser has shown
from a comparison of two contracts, a divorced
woman was eight months later married to another,
her first husband being still alive.6

sold the husband's estate and granted her alimony (Jewish Encyclo-
pedia, 1 399).

1 See the abstract in Kohler's Rechtsvergleich. Stud. (Berlin,
1889), p. 21.

2 Meissner, op. tit. no. 90. 8 Marx, op. tit. pp. 5, 7.

4 KB 4320. 5 Meissner, no. 91, KB 4 17.

6 Babylon. Rechtsleben, 2 13 sqq.

i24 THE LAWS OF MOSES CHAP, v

The result of the foregoing has been to shew
(that in Babylonia the husband is granted a greater
/facility of divorce than the wife. This is quite in
accordance with Semitic custom, wherever the ba'al
type of marriage prevailed. The frequence with
which divorce was practised in Israel is to be
gathered not only from the denunciations of the
Drophets, but more particularly from the Deutero-
nomic code, which makes no attempt to forbid the
practice, but humanely endeavours to restrict it.
The wife who had been unjustly slandered by her
liusband, or who had been taken in marriage by her
seducer in accordance with the law, could never be
divorced (Deut. 22 19, ap).1 With these exceptions
divorce could be freely obtained under certain
conditions. A properly attested bill of divorcement
(sepher kerlthutJi) must be drawn up and served
upon the wife, who becomes free to marry a second
time ; but if the second husband divorces her or
dies, the first husband is forbidden in the most
emphatic terms to take her again (Deut. 24 1-4).2
Similarly, according to Babylonian law, the husband
was forbidden to have intercourse with his divorced
wife.3 The Deuteronomic prohibition is in con-
formity with Jer. 3 i, and is probably to be regarded
as an innovation ; it is obviously aimed at existing

1 Later Jewish law, according to the Mishnah, adds the wife who
is insane (cp. CH, § 148 sq.\ a minor, or one who is in captivity.

2 The later law which forbids priests to marry a divorced woman
(Lev. 21 7, 14) is an extension of the standpoint in Deut. 244, and
indicates a further step in the development of morality.

3 Meissner, op. cit. p. 14 (after Bu. 88-5-12, 157).

CHAP, v THE FAMILY 125

practices.1 To understand the provision it is
necessary to notice that the divorced wife is not free
to marry again unless her husband has pronouncec
the divorce in accordance with the legal formula or
has given her the required permission.2 The power
which the husband has acquired over the wife by
paying the purchase - price is not annulled by any
ordinary act of repudiation or separation, and under
early Arabian custom the husband or the heirs
retain a claim upon her after her divorce. Not until
the formula has been repeated three times is the
dismissal complete, and a case is even cited where
after a year's interval the husband was indignant to
find that his wife was receiving other suitors.3 The
grounds upon which the man may divorce his wife
are not specified in detail by Hebrew law ; dislike
or unseemly, immodest behaviour are sufficient, and
the ambiguity of the terms gave free scope for legal
discussions in later Jewish times.4

Since the wife is entirely the husband's property,!

1 Cp. 2 Sam. 814 (i Sam. 2644), Hosea 2 sg., Judg. 192-4.
The possibility of the divorced wife being taken again by her
husband is contemplated also in Is. 54 6.

2 Cp. Josephus, Ant. xv. 7 10, and for modern times, Jaussen,
Revue Biblique, 1901, p. 596.

3 Kinship^ pp. 113 sqq.

4 CH, § 137, has only "if a man has set his face" ; Deut. 24 i is
no less loosely expressed. lerwath dabar is something short of
actual immorality, and was variously understood by the Rabbis (cp.
Driver's note, Deut. p. 270 sq.). Hatred (v. 3) is not necessarily a
violent aversion, but is simply the antithesis to love (e.g. Deut. 22 13,
Gen. 2931-33) ; cp. CH, § 142, where the woman hates her husband
(izir as opposed to ramu).

126 THE LAWS OF MOSES CHAP, v

she can scarcely be expected to have absolute
freedom in the way of obtaining divorce. She must
be divorced by the husband, with permission to marry
again, and only under special circumstances can
she force a separation. Salome's action in dissolving
her marriage with Kostobarus, as Josephus observes
(Ant. xv. 7io), was not in accordance with Jewish
law, which allows only the husband the right to send
the bill of divorce, and forbids the wife who has
deserted to give herself in marriage again unless she
has been legally put away (cp. Mark 10 12). The
wife who insists upon a separation forfeits the dowry
which would otherwise be hers (wholly or partly), or
must make some kind of compensation to the
husband. This is the general rule at the present
day : the woman who is divorced by her husband
receives part or whole of the mahr, but if it is at
her initiative it is retained or claimed by the
husband.1 The hot (" divestiture") of Moham-
medan law, as contrasted with the tatak (" dis-
missal"), was previously "a friendly arrangement
between the husband and his wife's father, by which
the latter repaid the dowry (purchase-price) and got
back his daughter";2 when the purchase-price had
passed into the hands of the wife in the shape of the
dowry or marriage -portion, the compensation was
naturally no longer paid by the father or the nearest
relatives, but by the wife herself. It was not other-

1 Burckhardt, Ar. Prov.™ no. 649; PEFQ, 1894, p. 134;
Revue Biblique, 1901, p. 596.

2 Kinship]® p. 1 1 2 sq. ; cp. Wellhausen, Ehe, p. 449.

CHAP, v THE FAMILY 127

wise in ancient Egypt ; the wife who repudiated her
husband and loved another returned the marriage-
settlement together with an additional payment as
compensation.1

Finally, as an example of the Semitic law of I
divorce modified by Roman usage, a glance may be I
taken at the Syro- Roman law-book. The general
regulation provides that the man who divorces his
wife without any blame on her side must return the
whole of the fapvrj and Scoped, but if the wife leaves
her husband without any lawful reason, she can take
neither. In every case a letter must be drawn up
stating the grounds of the divorce. The man is
allowed to divorce his wife if she has committed
adultery, has passed the night in the house of
another without his consent, or has gone to the
Qearpov, but under these circumstances she cannot
take her (f>epv^.2 The wife may claim a divorce when
she can prove ill-treatment, or such offences as
sorcery (Syr. harrasiitha), theft, adultery, or if the
husband has brought a whore into the house or has
set a concubine in her place, and on these grounds
she can recover her <pepvrj. No mention is made of
the Scoped, whereas in another law3 it is explicitly
stated that the wife who has sinned against her
husband receives the fapvij, whilst the husband
retains the Scoped on account of her offence (Syr.
saklutha).

1 Revue fLgyptologique, 2 270.
2 Bruns and Sachau, pp. 58 (§ 41 a), 67 (§ 64).
8 Ib. p. 57 (§ 38).

CHAPTER VI

THE FAMILY (concluded)

Parental authority — Old Babylonian family-laws — Adoption of
children — Special laws bearing on the same — Limits to disin-
heritance— Wills and division of property — Rights of concubines
and maid-servants — Position of the widow — Ability of women
to inherit — Laws for special classes — The votary — Law of
intestacy.

THE family system in Babylonia had reached a stage
of development which in some respects is strongly
reminiscent of ancient Rome. The father's authority
;over his children was not so despotic as that of the
pater familias, but it was far greater than that
exercised by the parent in Israel or Arabia.
) Parental authority is nowhere so weak as among the
(dwellers of the desert, and even where the community
jhas become more advanced it disappears when the
'sons have passed beyond childhood. Jacob had not
the means to restrain his grown-up sons (Gen. 34),
and even in the much-quoted illustration of paternal
power in Gen. 8824, it was a female and not a son
upon whom Judah proposed to inflict punishment.
Disobedience and contempt towards parents bring

128

CHAP, vi THE FAMILY 129

their own reward (Prov. 30 17), but they are not
offences punishable by law, and such legislation as
finds a place in the Hebrew codes can scarcely ever
have been put into practice.1

The relation between parents and children in old
Babylonian times is set forth with precision in four
so-called " Sumerian " laws.2

1. " If a son says to his father, ' Thou art not my
father ' (ul abl attd], one shall brand him, set a mark3
upon him, and sell him for silver."

2. " If a son says to his mother, ' Thou art not my
mother ' (ul umml atti), one shall brand his forehead,4
deny him (residence in) the city, and expel him from
the house."

3. "If a father says to his son, 'Thou art not
my son ' (ul marl atta), he shall leave house and
home." 5

4. " If a mother says to her son ' Thou art not my
son,' he shall leave house and goods."5

These laws, as we see from the oldest contract-}
tablets, applied also to adopted children.6 They do
not find a place in the Code of Hammurabi, probably

1 Robertson Smith, Rel. Sent.™ p. 59 sq., Kinship™ p. 68 ;
Doughty, Ar. Des. 1240 sq.

2 Meissner, op. cit. p. 15.

8 abbuttam, "shackles" (Meissner; cp. CH, § 146, p. 112, n. 2
above).

4 The same punishment was inflicted upon the slanderer (CH, § 127).

5 In no. 3, blti u igarum (lit. wall enclosure) ; in no. 4, biti u
unati.

6 Meissner, op, cit. nos. 93 sqq. Fr. Delitzsch, arguing that father
and son, mother and daughter, are paired (cp. Mi. 7 6), explains the
second and fourth of the above laws to apply to the daughters.

130 THE LAWS OF MOSES CHAP, vi

because they were too well known ; but they appear
to be presupposed by it, and have undergone a
certain amount of modification.

/ Until the children are grown up they are under
/the immediate care of the mother. They were often
handed over to a wet nurse (museniktum)? and it
is characteristic of the versatility of the Code that
it contains a law dealing with a crime which was
evidently not unfrequently practised by foster-
mothers. The law in question (§ 194) enacts that
if a child dies whilst with the nurse, and the nurse
without (the knowledge of) the parents procures
another, she shall be put to account and her breasts
cut off. Somewhat similar to this is the case which
was brought to Solomon for his decisidn (i Kings
3 16-27), although the simplicity with which the trial
was conducted stands in strong contrast with pro-
cedure in Babylonia. Not only does the mother
I rear the children, but she also takes them away with
I her when divorced. In such a case provision was
\made for them, and on reaching a certain age they
Jno doubt returned to their father's house (the father
(has the greater claim ; cp. § 135). The custom holds
good at the present day among the nomads, and is
also Mohammedan law, opinion differing only as to
the length of time the mother is entitled to retain

1 Cp. Meissner, op. tit. p. 15, n. 3, where a child is thus handed
over to the charge of a nurse, and an allowance of food, oil, and
clothing for three years is promised her. The Ass. term is the
Shaphel of enik, " to suckle," and corresponds to the Hebrew Hiphil
mcneketh (Gen. 358, etc.).

CHAP, vi THE FAMILY 131

the children under her charge.1 One late Babylonian \
contract,2 wherein a man promises his wife and son
a regular allowance of food, wine, sesame, salt, and
wool, is probably an example of alimony under
the provision of the Code (§ 137, above, p. 119).-
Further, provision is made for the child when the
father is an official away on the king's business and
his son is too young to manage the estate ; the
mother is allowed by the Code to take a third to
pay the expenses incurred in rearing him (§ 29).3

It has already been observed that the man whose
wife was childless could take a concubine, or his
wife could give him a maid-servant. As another
alternative, a child might be adopted, and the laws
and contracts shew that this practice was frequently
followed, the object being to obtain an heir, in order
that the estate might not pass over into the hands /
of strangers. A contract of the New Babylonian
period illustrates the issues which might depend
upon such a procedure. Bel-kasir, son of Nadin,
who had been adopted by his uncle, married a

1 Jaussen, Revue Biblique, 1901, p. 596; Kohler, Rechtsvergleich.
Studien, p. 70 sq. According to later Jewish law the children
remained with their mother, but the boys could be claimed by their
father when they reached the age of six (Jewish Encyclopedia, 4 628).
Doughty relates an instance of a chief of a nomad tribe who in
addition to his wife carried along with him a divorced wife, the
mother of his only son, and another cast-off wife, the mother of a
ward (Ar. Des. 1 222).

2 Marx, op. tit. p. 41 ; Kohler and Peiser, op. cit. 413 (1898).

J The estate in question is a benefice under the crown ; cp. pp.
184 sqq., below.

132 THE LAWS OF MOSES CHAP, vi

widow with one son ; he has no children, and pro-
poses to adopt the stepson. The uncle, however,
objects, since under this arrangement his property
would pass through Bel-kasir into the hand of
strangers, and it is accordingly agreed that if the
[marriage continues to be without children Bel-kasir
(must adopt his (own) brother as heir.1 Children
were adopted for other purposes. Sometimes the
man already had a family, and in this case the
probability is that the child was adopted as an
apprentice. Even slaves were taken, and under
\these circumstances they gained their freedom,
[which, however, they might forfeit if they failed to
carry out the provisions of the contract.2 The
adoption of a daughter, too, was not uncommon, and
a contract might be drawn to secure for her the
possession of any gifts or property which her new
parents might have given her.3

If a man adopted a child (a-na ma-ru-tim ilki\
and its parents objected, he must restore the infant

1 KB ±239 (cp. Sayce, op. tit. p. 28 sq., 37). The tablet is un-
fortunately broken at the end, and as there is some reference to a
sister, it is evident that we are not in possession of full details.

2 So, in a New Babylonian tablet (^^4245; Sayce, op. tit. p.
40 sq.\ IkiSa-aplu freed Rlmanni-Bil alias Rimut on the understand-
ing that the slave should nourish and look after him. But Rimut
does not perform his duty, and his master breaks the "tablet of
adoption " and gives him to his daughter-in-law.

3 Meissner, op. tit. no. 99; cp. Pinches, op. tit. p. 177, where
the adopted daughter whose blamelessness is attested (see p. 101,
n. 5, above) is promised a husband. In Egypt, also, a man might
adopt a female slave in order to marry her (Rev. Eg. 2 189-191,
temp, sixth cent.).

CHAP, vi THE FAMILY 133

to its father's house (CH, § 186). The Code does
not specify any reason, but since they usually
received some kind of compensation for the loss of
the child, it is obvious that the amount offered
might not always be considered satisfactory, and
disputes could easily arise. The law, accordingly, \
appears to be directed against forcible adoption.1]
If an artisan (mar um-mi-a) took a child to rear,
and taught him his handicraft, the child could not
be reclaimed (§ 188) ; but if he had neglected to
teach him, the child was free to return to his father's
house (§ 189). A young child who had been
adopted i-na me-e-su and had been reared up
could not be claimed (§ 185). The Assyrian phrase
is variously rendered "with his name" (Scheil,
Winckler), or "from his waters" (Johns). Now,— »
the child who was formally adopted into a family i
had certain claims which were ensured by his tablet /
of adoption or sonship (duppu aplutisu, marutisu), ;
and as long as this was not broken and the seal]
remained uninjured his position was secure. He
was recognised as the son of the father who had
adopted him, and if he had not been formally
acknowledged the law allowed him to return to his
father's house (CH, § 190). The crucial point of
§185 must lie in the fact that it has to do with a
child against whom no one could lay claim ; it is a

1 Scheil and Winckler understand the law to mean that the child
rebels against the parents who have adopted him. Johns, however,
has, " If . . . when he took him his father and mother rebelled,
. . ." and this gives a preferable sense.

134 THE LAWS OF MOSES CHAP, vi

babe taken " from the waters " upon which it had
been cast adrift. The motives need not be inquired.
Apart from the circumstance that there appear to
have been certain classes who do not appear to have
any legal claim to their children (see below), even
the great Sargon himself was cast upon the waters
by his mother, a vestal (emtu), and the parallel
story of Moses recounted by the Elohist in Ex. 2
only needs to be mentioned.

The classes of individuals upon whose children
no one has any claim are the palace favourite (?)
and the courtesan (§ I87),1 and if the son of one of
these should say to the father or mother that
brought him up, " Thou art not my father, thou art
not my mother," the tongue, the offending member,
is cut out (§ 192), and if he has found out his
father's house and has hated (i-si-ir-ma) the parents
who have adopted him, and goes to his father's
house, his eye is torn out (§ I93).2 The extreme
severity of these penalties, viewed in the light of
the old family-laws quoted at the beginning of the

1 NER-SE-GA mu-za-az e-kal . . . zinnisat zi-ik-ru-um. The
meaning is obscure, and Johns renders " a NER-SE-GA, a palace warder
or a vowed woman " ; see his discussion in the American Journal of
Semitic Languages, 1903, pp. 98 sqq., where he argues that the
palace warder was one of the royal bodyguard living in the palace
grounds (p. 103).

2 Again the offending member suffers (cp. § 195). Samson,
according to the Rabbis (Mishnah, Sotah, 1 8), lost his eyes because
he had sinned in following his eyes (Delilah) ; Winckler renders the
law rather differently : " If . . . he longs after (?) his father's house
and left his foster-parents and goes to his father's house."

CHAP, vi THE FAMILY 135

chapter, proves the exceptional character of these
classes.

The family-laws, in turn, appear to have been \
regarded as too harsh, since both in the contracts
and in the Code itself we find certain modifications. /
The adopted son who is repudiated does not always
leave house and home, but takes his share (zittii),
which sometimes consists of house and garden ;
even the son who repudiates his parents is allowed to
depart with his portion.1 The Code of Hammurabft
does not contain the laws for the repudiation of an I
ordinary adopted son by his parents or the reverse,2!
but two statutes have been framed in order to secure'
his position. The child who has been taken to
sonship and brought up, and has not been counted
among his father's sons, is allowed to return to his
(own) father's house (§ iQo).3 The man who has
adopted a child, and has afterwards " made a house
for himself and acquired children," cannot disinherit
(na-sa-hi-im) the child, but must give him one-third
of a son's share (lit. of his sonship, apluti-su) from
the household goods only, not of the estate (field,
garden, or house; § 191). These two laws pre-

1 KB 45 sq. (time of Rim-Sin) ; cp. Meissner, op. cit. p. 16, and
nos. 97, 98.

2 See, however, Scheil and Winckler's rendering of § 186
(p. 113, n. i).

3 The importance of the formula of recognition is illustrated by
the contracts, in one of which the man explicitly says of an adopted
child, " He shall be his son and inherit with his sons " (Meissner, no.
96). Cp. the similar formula employed by Jacob, " Thy two sons
. . . shall be mine " (Gen. 48 5, P).

136 THE LAWS OF MOSES CHAP, vi

suppose two distinct conditions. According to the
former, the son has been adopted into a man's
family, and no provision is made for his future ;
according to the latter, he is taken by a childless
man, and has the chance of becoming his heir.
When the man has sons of his own body, the rights
of the adopted son can be secured by the formal
recognition, but as this is not mentioned in § 191,
the presumption is that the man proposes to dis-
inherit him in favour of his own children. The law,
however, whilst forbidding this, restricts the adopted
son's portion to the goods ; the estate is to be
reserved for the sons of the man's body.

A father could not disinherit his son on his own
responsibility. If he has said to the judge, " I will
expel my son" (mari-i a-na-za-ah), an inquiry is
made into the case,1 and if the son has not committed
a grave crime that justifies expulsion, the son cannot
be cut off from sonship (§ 168). Further, even if
the son's conduct to his father has been sufficiently
base, a First Offender's Act was in vogue whereby
the judge " brings back his face" {pa-ni-m ub-ba-lu)
for the first offence, but for the second, the father
has the power of expelling him (§ 169). The penalty
(" cutting off from sonship "), according to Winckler
in his note on the law, does not go beyond disin-
heritance from participation in the estate ; absolute
expulsion from the familia, in his opinion, is not

1 wa-ar-ka-zu i-par-ra-su-ma ; the phrase recurs in §§ 18, 142,
172, and may be translated "inquire into his past."

CHAP, vi THE FAMILY 137

intended.1 With these laws one may compare the
Syro- Roman law-book, where neither sons nor
adopted sons (lit. "strange sons") are to be disin-
herited without good cause, but complete disinherit-
ance in the case of the former is forbidden.2

If a son strikes (im-ta-ha-as) his father his hand
is cut off (§ 195). The law reminds one of Ex. 21 15,
where the son who smites (kikkak) father or mother
"shall certainly be put to death"; Hebrew law
pronounced the same penalty for cursing the parents
(Ex. 21 17, Lev. 20 9 ; cp. Pr. 20 20, Mt. 15 4). The
stubborn and rebellious son (sorer, moreh) who pai
no regard to his parents, and though they ad
monished (yissar) him, heeded not their voice, i
brought before the elders of the city and is put t
death by the whole community (Deut. 21 18-21). The
Deuteronomic code, it will be observed, pronounces
a curse upon him who belittled his parents (27 16),
and in the later writings moral motives are urged
for honouring parents. It may have been necessary
to threaten evil-minded sons with the death-penalty,
but it rested with the parents to bring the charge
and with the elders to decide upon it, and it remains
questionable, therefore, whether these severe laws
were often carried out.3

1 Cp. apla kun-na it-ta-sah^ " he has disinherited a legitimate
son " (Muss-Arnolt, Ass. Diet. p. 700 a). But nasahu in Assyrian
seems to mean to pluck out, eradicate, to transplant (people) by force ;
cp. the Hebrew use of nasah in Deut. 28 63, Prov. 2 22.

2 Bruns and Sachau, op. cit. pp. 18 (§ 58), 47 (§ 4), 69 (§ 72),
1 88 sq.

3 Cp. above, p. 128. Herod the Great's treatment of the two sons

138 THE LAWS OF MOSES CHAP, vi

In Babylonia the sons possess property during
the father's lifetime, but probably only with his
consent (cp. CH, § 7), and at his death they share
the estate equally. Some kind of testament was
known, and we even find the testator handing over
his property to an heir, stipulating only that he shall
receive the usufruct of it.1 Where there were no
testamentary documents the father doubtless made
known his wishes in some recognised oral manner,
probably in the presence of witnesses (cp. Gen. 24 36,
2 Sam. 17 23, 2 Kings 20 i).2 The division of the
inheritance was made by the priests or by the eldest
son in the presence of the priests, and a contract was
drawn up to certify that the work had been accom-
plished to every one's satisfaction.3

The children share equally in the household
goods (§ 165), but it is possible that the landed
estate was held in common until some occasion
arose for partition.4 If the father had presented
(is-ru-uk) to a favourite son, "the first in his eyes"
(sa i-in-su mak-ru), field, garden, or house, and had
secured it by a sealed deed, the son was still entitled

of Mariamne was exceptional (Josephus, Ant. xvi. 11 2 sqq. ; cp.
generally Jos. ib. iv. 8 24).

1 Cp. Kohler and Peiser, Bab. Rechtsl. 4 18 sq. (1898).

2 In the two latter passages " set one's house in order," lit. " give
commands to one's house " (siwwah le-beth\

3 Cp. Meissner, no. 106, "... have divided the whole of the
property of their father from mouth to gold (bi-i a-na Aurdsi, from
slaves to money ?),... brother against brother shall not dispute."
A specimen of a contemporary account of the division of property
may be seen in KB 4 17-23.

4 As at the present day, PEFQ, 1894, p. 130.

CHAP, vi THE FAMILY 139

to take his share with the others in the division of
the property (§ 16s).1 Further, if the father had
taken wives for his children, with the exception of a
young son who was unmarried, when the division
was made, this son received over and above his
share the money for the purchase-price (kaspu tir-
ha-tini), and his brothers caused him to take a wife
(§ 1 66). A similar rule prevailed for the unmarried
sister (§ 184).

With these exceptions the Code does not favour
the rights of primogeniture, and this is the mor
remarkable since from other evidence it woul
appear that the eldest brother (ahu rabu) wa
entitled to a larger share. The superior rights of
the first-born are emphatically insisted upon in
Hebrew law,2 although there were occasions when
a younger son received the double portion or the
favourite wife endeavoured to obtain the benefit for
her eldest son. The latter act seems to have been
sufficiently common to require the law's interference,
and *the Deuteronomic code strictly forbids the^
father on the day he divides his inheritance to leave

1 So Esarhaddon was the favourite but not the eldest son of
Sennacherib (see the list of his presents, Sayce, op. cit. p. 35).
According to § 150 the mother also had this right, and in Meissner,
no. 39, two brothers buy property with the money which one of them
had received from his mother, and in no. 7 an heiress gives her
property to her daughter who is about to be married, but the
husband is also mentioned, and it is possible that he had to approve
of the transaction.

2 In Arabia, also, the law of primogeniture appears to be unknown
(cp. e.g. Jacob, Altarab. Parallelen, p. 13 ; Berlin, 1897).

140 THE LAWS OF MOSES CHAP, vi

the double portion (i.e. two sons' shares) to any
other than the first-born of his first wife (21 is-i;).1

The mother's marriage -portion (seriktu) and
! settlement (nudunnu) fall to the children.2 Sons
and stepsons share equally in the father's property,
but the seriktu of each mother is divided separately
among her own sons (CH, § 167). If, in addition to
a wife (hirtum)> a man has had a maid -servant
(amtu)? and has had sons by both, these share
equally in the goods of the father's house, provided
he had recognised the sons of his maid-servant by
calling them /'my sons" (mare-u-d), and had
reckoned them among his children, but the children
of the wife have a higher standing, and when the
goods are divided they obtain the first choice (i-na-
za-ak-ma i-li-ki, lit. they " choose and take ; § 1 70).
If the father has not recognised the children which
the maid -servant bore him, they have no share in
the goods, but receive their freedom along with
their mother, and the sons of the wife have no claim
upon them for service (§ 171).

Hebrew custom provided for the recognition of
the children of the maid-servant (Gen. 30 s),4 and

1 In a New Babylonian contract the mother leaves her dowry to
her eldest son (Sayce, op. cit. p. 34, n. i).

2 Or to grandchildren (so in the will cited by Sayce, op. cit.
p. 29). See above, pp. 87, 89.

3 It is not stated that the wife is dead ; contrast § 167, where the
second wife is taken after the first " has gone to her fate."

4 Adoption appears to have been rarely practised among the
Israelites (cp. EBi. "Family," § 14), although there may be a few
references to it in the later literature (e.g. Ps. 27 sq.).

CHAP, vi THE FAMILY 141

Ishmael according to the Elohist (Gen. 21 10) was
co-heir with Isaac. In the older narrative, on the
other hand, Isaac is the sole heir, and the sons of
the concubines are sent away with gifts (mattanoth ;
Gen. 24 36, 25 5 sq., J). There is a greater humanity
in the Elohist narratives towards the inferior wife
and her children, and when Jephthah was thrust
out of his father's house, his complaint implies that
the sons of concubines were entitled to certain rights
by custom (Judg. 11 7, E ; cp. v. 2, P).1 But even
where the children of inferior birth receive equal
rights of inheritance their social position must have
been below that of the sons of the well-born mother.
So in Arabia, Noldeke (ZDMG, 40 153, n. 3) cites
the case of a man whose father was one of the
noblest of the Fazara but his mother was a slave,
on which account he was unable to take a wife from
the tribe. Similarly, Jazid II., called Ibn Atika
after his mother, by reason of his superior birth
was selected above his step-brother Maslama, who
though of equal repute was the son of a slave.2

On the death of her husband the widow3 is
entitled to her marriage-portion and the settlement
which he had secured for her in writing,4 and is

1 The later law of Syria and Arabia required the children of
inferior birth to be recognised before they could obtain a share in the
inheritance (Bruns and Sachau, op. cit. p. 12).

2 Wellhausen, Arab. Reich u. sein Sturz, p. 194 sq. (Berlin, 1902).

3 A new law commences in the middle of § 171 (col. xii., 1. 78).

4 The rights of the wife to the nudunnu are laid down in § 150,
where the property which is given to her by deed cannot be disputed
by her sons (p. 89 above).

142 THE LAWS OF MOSES CHAP, vi

i allowed to live in her husband's dwelling-place
\(su-ba-af). She cannot dispose of them, however,
fand at her death they go to her children (§ I7I).1
If her husband had not given her a settlement she
takes a son's share of the goods (cp. § 137), and if
her sons would compel her to leave the home the
judge must examine into her past (wa-ar-ka-za), and
if the fault lies with them she need not go out of
her husband's house (§172). If the widow has
made up her mind to leave, she can only take with
her the seriktu (i.e. her own family's gift), the
nudunnu which her husband gave her must be left
for her sons, and she is now free to marry the " man
of her heart."2 If she has borne children by the
second marriage, her marriage-portion is divided
between the sons of both unions ; otherwise it re-
verts to those of her former husband (ka-wi-ru ;
i73^.).3

The widow's position is thus secured in so far as it

{ is compatible with her children's interests. She has

a home and a share in her husband's estate, and she

1 So, in one case a son recovers a slave which his mother had
sold (Marx, op. cit. p. 65, cp. p. 53). The marriage-settlement re-
verted to the sons in later Jewish times ; cp. Keth. 4 12 [10] : " The
sons that shall be to thee from me inherit the money of thy kethubta."
See pp. 87, sqq. above.

2 The last sentence in § 172 (col. xiii. 1. 27) forms a new law.

3 Sayce's observation (pp. cit. p. 22 s$.) that the children of the
first marriage received two-thirds and the others a third only, may
hold good for later times. In Meissner, no. 109, a mother gives to
three sons, and they have no claim upon whatever she or her other
children may possess. Whether the former are children by another
husband or the recognised sons of a concubine is not stated.

CHAP, vi THE FAMILY 143

is free to marry again.1 If the children are still
young, she cannot enter " a second house " (ana
bitim sa-ni-im) without the consent of the judge,2
An examination is made of the extent of her
husband's estate, and it is entrusted by deed to the
widow and her second husband, who act as trustees
and rear up the little ones. Not a vessel (u-ni-a-tini)
may they sell, and whosoever is found buying of the
property must return it "to its owners" (a-na be-
li-su) and forfeit his money (§ 177) — the punishment
for the seller is not stated.3 It is possible that
under certain circumstances the judge might refuse
his consent, and in one late contract-tablet a widow
promises not to enter into the " house of a male"
(bit zi-ka-ri), but to dwell with her sons and bring
them up, and it appears that as long as she does
this she enjoys an allowance.4

1 There is no law as to the length of time she must remain a
widow, but it was probably not very long (cp. p. 123). The Syro-
Roman law-book gave the widow who remained ten months in her
husband's house full possession of her linen and one-third of the
jewels ; the law is scarcely of Roman origin (Bruns and Sachau, pp.

63, 193).

2 Cp. § 137 (p. 119 above), where the divorced wife or concubine
may marry after her children are grown up.

3 In a contract of the time of Samsu-iluna, Hammurabi's suc-
cessor, the three sons of Namiatu dispute with their mother YaSuhatu
about the contents (? mi-im-ma nu-ma-af) of their father's house ; the
case is settled and the sons agree not to bring complaints against
YaSuhatu, Idin-Ramman (her second husband ?), and their children
(Meissner, op. tit. no. 100).

4 Kohler and Peiser, Bab. Rechtsleben^ 2 9 sq. (citing Cambyses,
no. 273); cp. Doughty, Ar. Des. 2 89 (the widow regarded as the
guardian of her sons' inheritance).

i44 THE LAWS OF MOSES CHAP, vi

The Code does not take into account the rights
(of the childless widow. A New Babylonian law,
however, enacts that if the marriage-portion (here
called nudunnu] had been taken by her husband it
was to be paid in full from his possessions (nikasi],
if her husband had given her a gift (seriktii) she
was entitled to claim it and leave, whilst if she had
received no nudunnu the judge, after an examination
of the estate, was to give her in proportion to its
extent.1

There are no traces in Babylonia of that wide-
spread objection to the re-marriage of a widow
which still lurks in Palestine and elsewhere,2 nor is
there any evidence for Delitzsch's suggestion that
the husband's next-of-kin had duties to perform
similar to those of the Hebrew goel? Babylonia
had passed far beyond that stage where the next-of-
kin inherits the widow and has the first right to her,4
and her position was a surer one than in Israel,
where widowhood was a reproach (Is. 4 1, 544).

1 ^£4323.

2 PEFQ, 1894, p. 138 sq. ; cp. Frazer, Paus. 3 198-200.

3 Babel and Bible, pp. 14, 92 sq. The evidence is founded upon
Sargon's statement that " his father's brother took no care for his
widowed mother." But as the widow is not childless, there can be
no possibility of a levirate, and the words are usually rendered other-
wise (EBi. col. 3207). Delitzsch's conjecture, if it could be proved,
would only serve to show that the Babylonians in Sargon's day were
sociologically more akin to the Israelites than they were sixteen
centuries later under Hammurabi.

4 Cp. EBi. " Marriage," § 8. The practice is still prevalent ; the
nephew will marry the widowed aunt, even when, as in one case, he
had murdered her husband, his uncle (Doughty, Ar. Des. 1 506, 2 26).

CHAP, vi THE FAMILY 145

Here, she either remained under the care of her
husband's family, or more often, perhaps, returned
to her own kin (Ruth) ; in neither case was her lot
a fortunate one, unless she was influential l or married
a second time. The original Book of the Covenant
does not interest itself on her behalf (Ex. 22 22 is
a later expansion), in marked contrast with the
humane exhortations of the Deuteronomic code.
Later Jewish law gave the widow certain rights o
inheritance (cp. Judith 8 7), and the husband might
insert a clause in the marriage-settlement giving her
the right to dwell in his house after him, and to be
nourished from his wealth all the days of her widow-
hood (Keth. 4 12 [10]). The Judaean custom, how-
ever, made this privilege depend upon the good-
will of the heirs who had the power to give her the
settlement (kethubta) and send her away (id.).

Primitive Semitic law does not recognise the \
ability of daughters to inherit. In Arabia all women
were excluded from inheritance previous to Mo-
hammed, whilst in Israel the law which allowed the
daughters to inherit in default of sons belongs to
the very latest part of the Hexateuch (Num. 27 36).
The Code of Hammurabi concerns itself with sons i
rather than with daughters,2 but there are sufficient/
indications to shew that the daughter's right, if re-/

1 Cp. Wellhausen, Ehe, pp. 456, 467, n. i. Tamar returned to
her father's house but was not free (Gen. 38 n); Abigail, notwith-
standing Nabal's wealth, comes to David with her servants only
(i Sam. 2542).

2 Orelli's suggestion that daughters are included in the sons does
not seem very probable (Gesetz Hammurabis, p. 44, n. i).

146 THE LAWS OF MOSES CHAP, vi

. stricted, was more generously regarded in Babylonia.
The Code insists, for example, that the daughter
of a concubine1 shall receive a marriage-portion
(seriktii), and if her father has given her one by
deed, and married her to a man (a-na mu-tim id-di-
is-si), she takes no share in the goods (§ 183).
Failing this, it is left for the brothers to give her a
portion according to the extent of the estate (e-mu-
uk bit a-ba ; § 184). The daughters of the high-
born mother were probably not treated so summarily,
but no doubt received a small share in the estate in
addition to the marriage-portion, and this is illus-
trated by a contract of the time of Sumula-ilu,
one of Hammurabi's predecessors, in which three
brothers record that they have given their sister
her share.2 It is not likely that the daughters in
such cases had full rights to dispose of their portion ;
like the daughters of Job, they held an " inheritance
in the midst of their brethren " — mentioned as an
exceptional piece of generosity on the part of the
father (Job 42 15) — and received the usufruct. From
Babylonia the custom passed to the Jews of the
post-biblical period, and a father could assure his
wife in his testament that " the daughters, females,
that shall be to thee from me shall dwell in my
house and be nourished from my wealth (nekaszm)
_until they are married."8 The care taken by the

1 marti-su Su-ge-tim^ according to Johns, "his (the father's)
daughter, a concubine."

2 Pinches, op. cit. p. 181 ; cp. Marx, op. cit. pp. 18-22.

3 Mishnah, Keth. 4 12 (10). When the father was no longer alive,

CHAP, vi THE FAMILY 147

Code to ensure the rights of a man's daughters by
his concubine finds an analogy in the Book of the
Covenant, which introduces laws relating to the
maid-servant (p. 166 below). Custom had already
established the rights of the well-born daughters, it
was only those of inferior birth who were likely to
suffer.

Further, the Code presents a group of laws pro-
viding for the class of women to which reference
has already been made — the votary and the courtesan
zinnisat zi-ik-ru-um). The rights of inheritance of
the daughter of this description who has received a
marriage-portion l from her father depend upon the
wording of the tablet or deed. If he has written,
" After her whatever is good to her to give " (wa-ar-
ka-za e-ma e-li-sa ta-bu na-da-nam), that is to say, if
she has full choice, she can leave it as she will and
her brothers can have no claim (§ 179). If this
clause is wanting, the brothers take her field and
garden — her share in the estate — and pay her corn,
oil, and wool according to its value, and if she is not
satisfied with this, she gives them to a cultivator
(irrisu) who shall provide for her. She enjoys the
usufruct as long as she lives, but she cannot sell it
for money nor dispose of it in any way, since her

if the heirs paid the minimum dowry (fifty zilzlm), the sister could
claim the balance when she attained her majority ; the court esti-
mated how much the father would probably have given her, or, if
they have nothing to guide them, she received one-tenth of the
estate {Jewish Encyclopaedia, 4 646^).

1 The question must be left open whether seriktu in this group
of laws should not be rendered simply by "gift."

148 THE LAWS OF MOSES CHAP, vi

"sonship" (ap-lu) belongs to her brothers (§ 178).
\ The daughter, whether a bride or a courtesan, who
has not received a marriage-portion, on the father's
death takes a share of the goods like one son, she
has the use of it as long as she lives, and when she
dies it is her brothers' (§ 180). If the father has
vowed to God (a-na i-li is-si-ma) a hierodule
(kadistii) or a virgin,1 but has not given her a
marriage-portion, she receives a third of a son's
share as long as she lives, which, as before, reverts
to her brothers (§ 181) ; if the votary of Marduk of
Babylon2 has not received a marriage-portion, she
is still entitled to one-third of a son's share, and can
leave it after her as she pleases (§ i82).3 Possibly
these receive less owing to the character of their
position.

The votary of Marduk is the god's wife 4 vowed
to perpetual chastity, and is therefore distinct from
the devotees of I star. Like the ordinary courtesan
(zinnisat zi-ik-ru-um), these formed a separate class 5
and enjoyed special privileges.

the translation follows Scheil and Winckler.

2 According to Winckler, this includes the two classes of temple
women in § 181.

3 The law also contains an obscure provision (il-kam u-ul i-il-
la-ak] which probably means that she shall pay no tax (so Johns).
As Jeremias observes (Moses ^l. Hamm. p. 17, n. i), she was perhaps
expected to leave her inheritance to the temple.

4 The ceremonies relating to the consecration of the god's couch
are given at length in K 164 (Beitr. z. Assyr. 2635) and K 629
(C. Johnston, Epistolary Literature of the Ass. and Bab. p. 1 5 5 J
Baltimore, 1898).

5 Cp. the similar class in Egypt, Burckhardt, Ar. Prov.(*} pp.

pltV J

CHAP, vi THE FAMILY 149

The statement of Herodotus (1 199) that a great
system of prostitution prevailed in Babylonia has
as yet failed to find support in the tablets, and the
presence of certain clauses in the marriage-contracts
to which reference has already been made 1 is decisive
for earlier times at least. No doubt to the foreigner
there was much that was unintelligible, and the
historian has probably exaggerated what at all events
was sufficiently common (Baruch 6 43). There are,
however, many indications which, considered in the
light of comparative custom, go to prove that
Babylonia legalised and sanctified immoral practices
which in the rest of the Semitic world higher ideals
gradually endeavoured to repress.2 The priestesses
of the temple, many of whom were of high rank,
carry on business, the profits of which doubtless
went to swell the temple funds ; one of these ladies
on a contract bears the characteristic name Amat^
Samas, " handmaid of Samas." 3

A curious law in CH, § no, threatens the votary,
who was not living in a convent (E-GI-A), who
dared to open a tavern (bit GES-TIN-UO) or to

173 sqq. The Heb. zanah, as the Arabic usage shews, was
originally used in quite a harmless sense (Wellhausen, Ehe, p. 472,
n. 2 ; cp. further Noldeke, ZDMG 40 155 and n. I ; Robertson
Smith, Kinshipf] p. 151).

1 P. 10 1, n. 5, p. 132, n. 3, above.

2 It is sufficient to recall the denunciations of the Hebrew
prophets (cp. EBi. "Harlot"). A contract referred to by Peiser
(Skizze d. babylon. Gesellsch. p. 13) illustrates the prevalence of a
practice against which Lev. 19 29 is urged.

3 KB 4 43, cp. pp. 29, 37 ; Scheil, Sippar, i. 1 107, 120, etc*

150 THE LAWS OF MOSES CHAP, vi

enter one to drink with death by burning, the same
penalty that was inflicted upon the man who com-
mitted incest (§ 157). It has been conjectured that
the votaries were Nazarites and were under the
Nazarite vow to abstain from wine. This, however,
seems hardly probable, and the term Nazarite is only
fitting to the extent that the Syriac nezir is applied
to the maidens who were consecrated to the service
of Beltis. The drinking-shop was kept by women,
sometimes by female slaves,1 and the Code imposes
upon the keeper the necessity of maintaining order,
]and condemns her to death if she does not drive off
iany riotous assemblers to the palace-guard (CH,
§ 109). In post-biblical times the lupanar and the
tavern are practically synonymous, and tradition
accordingly assumed that Rahab kept a iravboKelov?
The Babylonian wine-shop was probably a similar
institution, on which account the votary, owing to
her sacred office, was naturally prohibited from
associating with the frequenters of such houses of
ill-fame.

The absence of further material in the Code
makes it unnecessary for us to deal at greater length
with the rights of inheritance of women in Semitic

1 So in a contract of the sixth year of Cambyses referred to by
Sayce (op. tit. p. 72). In Meissner, op. tit. no. 35, Ibik-Istar buys
a beer-house with an underground cellar.

2 Cp. the references in Levy, Chald. Worterbuch, p. 271 sq. An
obscure allusion cited by Erman (Life in Ancient Egypt, p. 144)
may imply that the women of the harem in Egypt were not supposed
to enter taverns. Meissner (I.e.] cites from a collection of Ass.
precepts : " Sir (beluni) \ enter not into the drinking-house."

CHAP, vi THE FAMILY 151

law or with the laws of intestacy. The remarkable [
features of the latter as they appear in the Syro- '
Roman law-book do not require consideration, there-
fore, and it will be sufficient in concluding our survey
of the family to notice as briefly as possible their
bearing upon the present subject. The underlying
principles, as Bruns * has pointed out in the course
of his valuable investigation, are characteristic partly
of Jewish, partly of Roman law, but there is no
sound reason for the supposition that the fifth
century should have produced any artificial or
arbitrary combination of two such distinct systems^,
Under these circumstances he argues that the kernel
of the laws existed in old customary usage in Syria,
and the resemblance which they have with Jewish
law is naturally to be ascribed to the close relation-
ship between the peoples of Syria and Judaea^
The analogies with Roman law, on the other hand,
are not sufficiently characteristic to suggest borrow^
ing. It is in the nature of things that like laws
should take their rise under like conditions among
the most widely separated peoples, although Bruns
is careful to observe that here, as in certain othef
cases, the resemblances which were already in exist-
ence have doubtless been enhanced by jurists who
were well acquainted with Roman procedure. To"
this we need only add that analogies in the Syrian
collection with Babylonian law have been and will
be noticed in these pages from time to time, and
when it is remembered that the general principles

1 Bruns and Sachau, op. cit. pp. 303-316.

152 THE LAWS OF MOSES CHAP, vi

of the Babylonian family system are distinctly re-
miniscent of ancient Rome,1 it seems difficult to
resist the conclusion that the curious likeness of the
Syrian laws of intestacy to Jewish and Roman pro-
cedure is directly due to their Babylonian origin.
On this account, therefore, it is much to be regretted
that the Code of Hammurabi, in spite of the fulness
with which it deals with the family, has little to say
on the subject of intestacy.2

1 P. 128, above; cp. Meissner, op. cit. p. 15, n. i.

2 Peiser (Bab. Rechtsleben^ 2 16-18) has concluded that the estate
of the man who left no son would pass to the man's parents, brothers,
or sisters ; females, provided they had male descendants, could only
enjoy the usufruct.

CHAPTER VII

SLAVES AND LABOURERS

Slaves in Babylonia — Their protection — Rights of slave-owners —
Slavery for debt — Marriage-laws of slaves — Their position in
Israel — Laws for Hebrew slaves — Humane tendency of
Deuteronomy — Status and wages of hirelings — Responsibilities
of labourers — and of shepherds — General resemblance of laws
among pastoral folk.

SLAVERY in the East was not the institution that it
became in Italy and Greece or in the mediaeval and
modern world. The rights which a man could
exercise over his slave did not differ so widely from
those which he held over his family. The slave could
attain high positions, he could marry free women,
or be adopted into his master's family. He was not
debarred from holding private possessions or from
trading on his own account, and by this means he
was able, if fortunate, to purchase his freedom. In
a pastoral community where wants are few and
easily supplied there is little requirement for slave
labour, but with the growing strenuousness of daily I
life, with the pursuit of agriculture and commerce, J
and with the growth of luxury, there is the desire to !
avoid manual labour and to utilise the cheap services !

153

154 THE LAWS OF MOSES CHAP, vn

[ of slaves, and slavery becomes ultimately an in-
Ldispensable factor in the ancient social economy.

Slavery was the penalty for certain offences, it
was often the unfortunate climax of unsuccessful
commercial transactions, and it was frequently the
lot of captives taken in military expeditions. The
slave's standing was necessarily below that of the
hired servant, although the latter might easily sink
into slavery from which he might never emerge.
The glebcz adscripti were under an obligation to
perform a certain amount of work for their owners,
and a man's slaves were able to amass property
which remained — partly at least — in their own keep-
ing.1 A distinction is always maintained between
the labourer and the slave, but under the latter term
it is not infrequently difficult to determine the
degree of servility that is implied. In Babylonia
Ithe slave forms a distinct class, ardu, fem. amtu,
•corresponding to the Heb. *ebed, fem. amah, and
includes man (maid)-servant as well as male (female)
slave. That the Hebrew *ebed is often applied to
no more than a trusty retainer is familiar, and it
was not otherwise in Babylonia.2 The terms
servant and slave must, therefore, be regarded as
synonymous to some extent in these pages.
I In Babylonia slaves do not appear to have been
[very numerous, and as a rule the contracts only refer

1 But it was strictly forbidden to do business with a slave, except
with contracts and in the presence of witnesses (CH, § 7).

2 Thus CH, § 146 : the amtu whom the wife has given to her
husband in marriage is degraded and counted among the amdti
(female slaves).

CHAP, vii SLAVES AND LABOURERS 155

to two or three at a time. The relations betweem
master and slave were legally secured to a greater!
degree in Babylonia than in Israel. The servant
is the property of his owner (de-el ardi)? a valuable
asset whom it is his master's interest to protect, and
for whose loss his owner is entitled to compensation.
If through the negligence of another (e.g. a
physician or a builder) the servant dies, the offender
is ordered to render " servant for servant" (§§ 219,
231). If a servant dies through a distraint in the
house, " of blows or of want," or if he is gored to
death by an ox which should have been kept under
restraint, the compensation is one-third of a mina of
silver (§§ 116, 252)^ This is also the penalty for
the maid-servant who dies from a particular kind
of injury (§214). If the servant has been assaulted
or negligently doctored, and loses an eye or a limb,
the compensation is fixed at half his price (§§ 199,
220). The owner, for his part, was bound to regard I
the health of his slave, and pay his doctor's bill,[
though the fees in this case were considerably
reduced (two shekels, §§ 217, 223). The man who
hired a slave from his master was bound to feed and
clothe him, and according to one old Babylonian law,
if the hired slave died through overwork, fled, or
became enfeebled, the hirer was open to a penalty.3

1 He is entered in contracts as I SAG ardu, " one piece (head)
slave " ; cp. Gr. (rw/xa avSpetov (yvvaiKetov). As among the Greeks
and Romans, the Semitic slave has no genealogy.

2 The amount represents the average price of a slave (cp. Sayce,
op. tit, pp. 69 sq. 75 sq.}.

3 KB 4 340 : the ten KA of corn which the law fixes as the

156 THE LAWS OF MOSES CHAP, vn

One of the worst of crimes was to assist a run-
away slave. The man who brought a palace slave
(arade-kal, amat e-kat) or a poor man's slave out of
the city gate (abulli) was put to death (§ 15). The
penalty is the same as for theft, and the wording
of the law suggests that it applies to all slaves, from
those of the palace to those of the poor man inclusive.
The death-penalty was also inflicted upon the house-
owner who sheltered a slave from the palace or the
poor man, and refused to hand him over at the
command of the constable (nagiru ; § I6).1 The
civil authority probably had the power to search all
houses.2 Appeal could be made to them by the
owner of the lost slave, and in a letter of Abesu, the
eighth of the dynasty of Hammurabi, a man enlists
the aid of the officials in his search after a fugitive
female servant, and the king himself, having learned
of her whereabouts, gives orders for her to be
returned to Babylon.3 If a man found a fugitive
slave in the open country (i-na si-ri-im), and the
slave would not name (la iz-za-kar) his owner, he
was brought to the palace and an inquiry held into
his past (wa-ar-ka-zu), after which he was restored
to his owner (§ 18). If the fugitive was detained in
the house of the man who found him and was
caught in the man's possession, that man was to be

penalty appears to be paid daily until the length of time for which
the slave was hired had elapsed.

1 Probably an overseer or commander.

2 This could be done, also, in search of stolen property ; cp. p. 2 1 8,
below.

3 King, Letter s^ p. 134.

CHAP, vii SLAVES AND LABOURERS 157

put to death — a case of theft (§ 19), but if the slave
escaped from the finder, the man could swear (i-za-
kar-ma) by the name of God and be acquitted (§ 20).
Finally, the man who found a fugitive slave in the
open country and drove him back to his owner
became entitled to a reward of two shekels of silver
(§ 17). Laws relating to fugitive slaves are prac-
tically the same everywhere1 — with the notable
exception of the Deuteronomic code to be noticed
presently — the concealment of a runaway is regarded^
as theft, but the death-penalty is modified. Accord-
ing to the Syro-Roman law-book, a man who took
a slave that was not his, knowing that he was a
fugitive, was condemned to slavery, which, as Bruns
observes, is not in accordance with Roman law,
which only requires pecuniary compensation or a
restitution of one or more slaves.2

The slave was bought on approval, and the
Code lays it down that if he had not fulfilled his month
(arhu-su la im-la-ma] and sickness (bi-en-nif fell
upon him, he was to be restored to the seller and
the money returned (§ 278), and if a slave was
bought and a dispute (by a third party) arose, the
seller was to be held responsible (§ 279). These
laws are illustrated by the contracts,4 where it is

1 Dareste, Journal des Savants, 1902, p, 521, n. 2.

2 Op. cit. p. 215.

3 Scheil suggests paralysis. At a later date a hundred days was
allowed for the bennu to show itself. Mention is also made in
contracts of the tepitum for which one to three days was allowed (e.g.
KB 4 41, 45).

4 Cp. KB 4 41, and frequently.

158 THE LAWS OF MOSES CHAP, vn

guaranteed generally that no one has a prior claim
to the slave, that he (or she) did not belong to the
royal household, and had not been adopted by any
one. Thus the attempt to dispose of a slave who
suffered from an incurable disease was frustrated, and
the responsibility for any dispute that might arise
in case of contested ownership fell upon the right
shoulders. The system of purchase upon approval,
which, by the way, was not restricted to slaves,1
passed into the Syro- Roman law-book, where a slave
is taken for six months and the detriments consist
of disease, demoniacal possession, prior right, etc.2

If a merchant bought foreign slaves in another
land, and on his return these were recognised by
their former owner, the buyer swore " before God "
the price he had paid for them and restored them
to their owner, in return for which he received the
amount in question (§ 281). On the other hand, if
the slaves were natives (mare ma -tint), i.e.
Babylonians, and their former owner recognised
them, they must be given back without compensation
(§ 280). In the latter case it is presumed that the

1 Kohler, Beit. z. Assyr. 4 428, cites Cambyses, 153, where goods
are thus taken ; so in the Laws of Manu (8 222) property may be
purchased on ten days' trial. In China, too, the slave was usually
taken for a month on approval (Letourneau, Property, p. 166).

2 Op. cit. §§ 39, 113. The Babylonian phraseology is most
marked in the Jewish contracts (cp. Gitt. f. 86<z), where it is certified
that the slave is free from blemish, is not liable to emancipation, that
no one has a prior right, and that he is under no obligation to the
king or queen (see the quotations by Nathan, Orient. Litter atur-
zeitung, April 1903, col. 184; Pick, Assyrisches und Talmudisches,
p. 25).

CHAP, vii SLAVES AND LABOURERS 159

buyer should have known that they belonged to a
Babylonian owner and should have protected him-
self in the contract recording the sale. Both Scheil
and Johns understand that the buyer must grant the
slaves their freedom, but this would not benefit the
former owner, and is improbable in view of the laws
relating to fugitive slaves.1

The slave — not the servant — was branded with a
mark which usually appears to have been delible, in
order that it might be replaced by a fresh one when
he changed hands. Each owner probably had some
special mark to distinguish his property, similar to
the Arabian wasm or nar? which was placed upon
the slave's face or ear.3 If the brander (gallabu)*
without (the consent or knowledge of) the owner
branded an indelible mark, his hands were cut off
(§ 226) ; and the man who feloniously caused him to

1 ana du-ra-ar-u-su-nu is-ta-ak-ka-an ; cp. § 117 (p. 229 below),
where Scheil translates " to their first condition he shall restore them "
(of the freedom granted to a man's wife and children after three
years' enslavement for debt).

2 ReL Sem.W p. 480; Kinship® p. 247 sqq. The custom of
branding slaves was prevalent; cp. Herod. 7233 (Persia) and
Wiedemann, Herod, p. 183 (Leipzig, 1890).

3 Cp. Meissner, op. cit. p. 152, who cites Cambyses, 291, where
the slave has a brand-mark on the ear. Cp. also KB 4 167 and
Peisefs note. In a contract of the twenty-sixth year of Darius, two
female slaves have the name of their owner tattooed upon their wrist
(Sayce, op. cit. p. 185). In later Jewish times reference is made to a
seal upon the slave's neck or clothing (Talm. Bab. Shabb. f. 58^).

4 The Hebrew gallab is used of the barber; in a Phoenician
inscription from Citium (CIS 1 no. 86), \hzgallab figures among the
temple-servants. On the Ass. word, see Meissner, op. cit. p. 152.

160 THE LAWS OF MOSES CHAP, vn

make an indelible brand was killed and buried in his
own house, whilst the brander, by swearing, " I did
not brand him wittingly" (i-na i-du-u la u-gal-li-
bu-u), was acquitted (§ 227).1 The amputation of the
hands, and the specific mention of the burial of the
criminal, are features which recur elsewhere in the
laws dealing with theft (§§ 253, 21), and may be
reserved for later treatment.2 Branding was also
the punishment inflicted upon the man who unjustly
libelled a woman (§ 127), and upon the owner's
handmaid who arrogantly set herself upon an equality
with her mistress (§ 146). It seems to have been
regarded, therefore, as a sign of degradation3 which
reduced the bearer to a lower rank than the ordinary
servant, and since it was possible under ordinary
circumstances for a man to rise or even to receive
/ his freedom, the punishment for making the brand
indelible was naturally heavy. If this interpretation
be correct, the interests of the slave, as well as of his
owner, are protected by these two laws. The slave
who repudiated his owner with the words, " Thou art
not my master" (u-ul be-li at-ta), is charged, and his
master cuts off his ear (§ 282). The same punishment
is meted out for a particular kind of bodily assault
(§ 205), and it is possible that it was a mark of
perpetual slavery.

1 Cp. above, p. 61, n. i.

2 P. 212 sq. below. The subject of "accessories" is but rarely
handled in the older Semitic legislation (see the Jewish Encyclo-
pcedia^ s.v.).

3 In ancient Greece, it was inflicted upon slaves who stole or ran
away (cp. the S/oaTrerTys ecrrty^evos of Aristophanes).

CHAP, vii SLAVES AND LABOURERS 161

A man might pledge or sell his wife and children
for a debt,1 but at the end of three years they
were to be returned (§ 1 1 7). The slaves, on the
other hand, who were delivered over in order to
work off a debt, might be removed or sold by the
merchant (the creditor) at his will, and no objection
could be raised (§ 118). An exception, however,
was to be made in favour of the female servant who
had borne children for her master ; she must be
ransomed for the amount that her owner had
received for her (§ 119). The last-mentioned law is
extended by another which has survived in a British
Museum tablet of the New Babylonian age. Here,
if a man sold a female slave (a-mi-lu-ut-tt), and
reserved the right of repurchase, if children were
born, he could not buy the mother without the
children, and for the latter he must pay at the rate
of half a shekel of silver each.2 Other privileges of
the maid -servant who had become her master's
concubine have been noticed in previous chapters
(pp. 112, 140 above), and may be briefly recapitulated.
It is only when childless that she can be sold for
misdemeanour (§ 147), otherwise she is branded and
counted among the slaves (§ 146). Her children
share in the estate, provided they have been recog-
nised by the father, and under no circumstances have
the other sons claim upon her or her children for
servitude (§ 1 70 sq).

1 Under ordinary circumstances a woman could be seized by her
husband's creditor (CH, § 151); see below, p. 228 sq.

2 KB 4 320.

162 THE LAWS OF MOSES CHAP. VH

The slave might contract a marriage with a
woman of rank superior to his own.1 The Code
enacts that if the slave of the palace or the slave of
a poor man (i.e. any' slave) has taken in marriage
(i-hu-uz-ma) the daughter of a freeman (a-wi-lu) and
she has borne sons, his owner has no claim upon
them for service (§ 175). If the woman brought with
her a marriage -portion \(seriktu) from her father's
house, and they both acquire goods (property), when
the slave dies the woman takes for herself and for
her children the marriage -portion and one -half of
the goods which they acquired since their marriage,
and the owner of the slave takes the other half
(§ 176*2:). The same applies also to the woman who
had no marriage-portion (§ i76£).2 The children are
free, and the goods that have been amassed by the
slave and his wife are equally divided, doubtless
because the owner is entitled to a share of his slave's
profits. The slave did not always possess a house
of his own, and part of the expenses probably rested
upon the owner. A very similar principle is to be
observed in the Syro-Roman law-book,3 in the law

1 So in a Nabatacan inscription from the neighbourhood of
Damascus, Hani'u is both the freedman and husband of Gadlu ; their
sons are adopted by 'Abd-maliku, whose relation to the couple is not
stated (C.I.S. 2, no. 161 ; dated A.D. 94).

2 The identical wording of the two parts of this law is somewhat
perplexing. One expects the owner to be compelled to give the
woman an additional compensation. Possibly § 176^ is an after-
thought. At all events one may contrast the Hebrew method of
stating a similar case in Ex. 21 31.

8 The law relating to the marriage of a slave with a free woman

CHAP, vii SLAVES AND LABOURERS 163

dealing with the separation of a man and his wife.
If the wife brought female slaves or herds, and there
are young ones, the wife took with her all that she
brought and half of all that was born (children or
cattle), after the marriage ; the remaining half belong
to the husband " because they have been nourished
at his expense."1

If the slave's rights were less fully secured by law*,
in ancient Israel, his position at all events was morel
tolerable. In Israel, as in Babylonia, many of the '
slaves had grown up in their master's service and I
had become trusted servants, like Eliezer,2 who
was regarded as heir (Gen. 15 1-4) and acted in
Abraham's stead (Gen. 24), and that this was no
isolated case is clear from Prov. 17 2, 8623. So, too,
a man gives his daughter to a servant who was not
of his tribe (i Chron. 2 34 sq.), and the *ebed
accompanying the youthful Saul is really a guardian
who has money, and is treated as his young master's
equal (i Sam. 93-8, 22). Ziba, who belonged to Saul's
household, had twenty servants under him and was
perhaps a polygamist, and to him was entrusted
the duty of managing his young master's estate

in this collection is in accordance with Roman principle (Bruns and
Sachau, op. cit. p. 215, § 48). The children belong to the owner of
the slave, and according to later Mohammedan law, if the parents
were the property of separate owners these share them equally (Kohler,
Rechtsvergleich. Stud. p. 13).

1 Bruns and Sachau, § 105, p. 275 sq.

2 The retainer is also designated na ar, nddrah^ in the pre-exilic
literature, but the terms are by no means exclusively restricted (see
the details in Brown-Driver-Briggs, Heb. Lex. s.v.}.

164 ) THE LAWS OF MOSES CHAP, vn

\(2 Sam. 9). Even in the latest legislation it is

\assumed that the bond-slave could earn and save up
'money (Lev. 25 49), and a just master piqued himself
upon the regard he paid to the complaint (mispat,
lit. suit) of his servants (Job 31 13-15).

The roseate picture which we have drawn of the
.slave's position in ancient Israel — and it is not very

jdifferent in some primitive Semitic communities of
to-day — was not without its analogies in Babylonian

I life, but there is very good reason to believe that on
the whole it was less tolerable there. The Israelite
man-servant was of his master's religion and shared
in his master's cult. It is true he was lightly
esteemed ; he was his master's property, and his
master might be expected to take some care of him,

\ but beyond this his life was of little save monetary
value.

Early Hebrew law concerns itself with the
Hebrew slave only (Ex. 21 2 sqq.) : it is not the home-
born (yelid bayitJi) or one who is " bought with
money " (miknath kdsepti) from strangers,1 but the
native, probably one who has been sold or has sold
himself for a debt. \ He was to serve six years, and
in the seventh year he was to go free without
payment of any ranson.OHe was to go out as he
came in. If he was tHe^possessor of a wife (ba'al
issah\ his wife — and doubtless the children — go out

1 For the terms, cp. Gen. 14 14, Jer. 2 14, and Gen. 17 12.

2 Cp. the wording of CH, §117, the wife, son, or daughter given
for a debt, " for three years they shall work (i-ib-bi-ht) ... in the
fourth year they shall be free."

CHAP, vii SLAVES AND LABOURERS 165

with him, and if his lord (adonim) gave him a wife,
and she had borne him children, he must leave these
behind. In the latter case we must understand
either that the slave married with his master's
consent or that one of the female slaves was given
to him.1 Under these circumstances the slave might
prefer to remain with his master ; his helpless
position exposed him to every hardship, and it is not
until the introduction of the Deuteronomic Code that
the master is exhorted to send his slave away with a
liberal present. Accordingly he is brought by his
owner " before God" and his (right?) ear is bored
with an awl. The rite, in view of the Babylonian
law (above, p. 160), is peculiarly suggestive, and
one is led to conjecture that it is not to be associated
in any way with the sacredness of the door-post or
threshold, but is a modification of the mark of
perpetual slavery which the Code inflicts upon the
thief.2 The custom of boring the ear is too common,
at all events, to lead to the conjecture that the
Israelites borrowed the idea from Babylonia.3

1 Benzinger (EBi. col. 4655) unnecessarily supposes that the
Hebrew master either took the female slave himself or gave her to his
son, in which case the slave's wife would be a foreigner ; but see
below, p. 167, n. 2.

2 The usually adopted view that the slave's ear — his obedience — is
thus firmly nailed to the house and pledged to it for the future seems
to require some qualification. The door and the post would seem to
be mentioned only as typical places where the ceremony could be
performed.

3 Cp. inter alia Clermont-Ganneau, Rec. d? Archeologie Orient.

^. (1903). According to Kidd, 1 2, the slave who has

1 66 THE LAWS OF MOSES CHAP, vn

The Book of the Covenant has an important law
on the rights of the female slave (amak) who had
been married by her owner.1 The woman who is
sold by her father — no reason is offered — was not
Ito be treated like the men-servants, and if she no
Jonger found favour in her master's eyes, he was not
ipermitted to sell her to strangers. He might allow
her to be ransomed, or transfer her with a marriage-
portion to his son, or even retain her and take
another (maid-servant), without curtailing any of
her rights (clothing, food, marriage -rights). In
default of all these she goes out free (Ex. 21 7-n).2
Reading between the lines, we may suppose that
the law is a novelty. It raises the position of the
married slave rather nearer to that of the free
woman, and leads to the inference that the status
of the latter was correspondingly higher. It was
also good custom in Arabia not to sell the concubine
or to give her in marriage to another.3

Still more notable is the advance in the Deutero-
nomic legislation. The freedom of the Hebrew

undergone this rite becomes free at the year of Jubilee or at his
master's death.

1 Early Hebrew usage may have distinguished between the amah
and the sipkhah^ the latter perhaps occupying a more humble position
(cp. i Sam. 25 41 ?). This does not hold good for later times, how-
ever, where the former is preferred by E, the latter by J, respectively.
The ordinary female servant is also called nadrah, e.g. in 2 Kings
5 2-4, where the standing of a captive girl in the house of her mistress
(gebereth) is illustrated in a pleasing manner.

2 On the passage see Robertson Smith, Zeit. d. alt-test. Wissens.
1892, p. 163; Kinship^ p. in.

3 Cp. Dillmann and Ryssel, Exod. p. 253.

CHAP, vii SLAVES AND LABOURERS 167

slave after six years' service is now extended to the
female (Deut. 15 12, 17), and in recognition of the
length of time which he had served for nought,
the Code exhorts the master when he sets him free
to give him a share of the agricultural produce
(flocks, crops, and wine), adding as a promise that it
is well worth his while to be generous (15 is-is).1
That the rite whereby the slave became his master's
property perpetually is performed at the latter's
house and not " before God" follows from the
Deuteronomic system of centralisation. In addition
to the inclusion of women in the law of release, it is
also noteworthy that the rights of the foreign female
slave are not neglected — the statute in Ex. 21 7-11,
which finds no place here, being obviously presup-
posed.2 A month must elapse before the captive
may be taken to wife, and if her master afterwards
has no desire to retain her, she could be set free ;
but she was not to be sold, nor could she be dealt
with maliciously or masterfully (Deut. 21 10-14). The

1 A modern Arabian slave-owner, if a man of wealth, will after a
few years give his slaves their freedom, and will not send them away
empty, but will give them in marriage and endow them with some of
his own substance (Doughty, Ar. Des. 1 554 ; cp. 2 140, and Balden-
sperger, PEFQ, 1899, p. 134 *?.)•

2 No doubt the rights of the Hebrew concubine had now become
clearly established. Benzinger (EBi. col. 4657) infers that by this
time the custom according to which the female slave was her master's
concubine no longer prevailed. This seems to rest upon a misappre-
hension of Ex. 21 7-1 1, and is disproved by the regulation in the Law
of Holiness (Lev. 19 20). The old Law in the Book of the Covenant
relating to female slaves deals only with the concubine and not with
every slave as he supposes.

1 68 THE LAWS OF MOSES CHAP, vn

mourning rites (v. 12) are those of the widow,1 and
the month evidently corresponds to the Arab 'idda,
the length of time after divorce, or after the
husband's death, before the widow was allowed to
marry again. Naturally, for a woman who was a
slave, and was therefore of lower standing, the
length of time is shorter.2 Marriage by capture
had evidently become common. It was especially
prevalent in Arabia, although Mohammed en-
deavoured to soften some of the hardships of the
captured woman. It is to be observed that in
Arabia, too, a woman who had thus been taken by
her captor in marriage could be neither sold nor
ransomed, and her children, unlike those of the
. slave women, were both free and legitimate.3

Aliens — like the Gibeonites, Josh. 9 — and male
Captives were probably enslaved, although their
utter destruction was not forbidden, but even re-
quired, by the Deuteronomic law (Deut. 20 13 sq.), in
its ardent desire to remove as far as possible the
possibility of the introduction of heathen cults into
Israel. According to old Arabian custom, captives
who did not embrace Islam or were not redeem<
were put to death, and probably Israelite custoi

1 Robertson Smith, Old Test. Jew. Church f] p. 368 ; Kinship £
p. 209 sq. ; Wellhausen, Arab. Heidentum^] p. 171.

2 So, at least, in Mohammedan law i J to 2 months in the case of
slave, but 3 months for a free woman (Kohler, Rechtsvergleich.

p. 63 sq.}. But the length of mourning in Israel appears to
been regularly thirty days only ; so even for Aaron and Moses (Num.
20 29, Deut. 34 8 P).

3 Kinship^ pp. 89-91 ; cp. Kohler, op. cit. p. 15 sq.

CHAP, vii SLAVES AND LABOURERS 169

similarly allowed captives to turn proselytes.j In
default of this they were doubtless sold, at all events
the law was scarcely meant to be carried out
literally.1 To kidnap and sell an Israelite was a
capital offence (Ex. 21 16, Deut. 24 7), similarly in
the Babylonian Code the man who stole the son of
a freeman was put to death (CH, § 14).

The institution of the monarchy and the rise of
a luxurious court brought in its rear many calamities
for the people of the land. Under ordinary circum-
stances, when all men aid in the tilling of the soil,j
there is no need for absolute poverty ; the poor
man is helped by his brethren, and the tribe inter-
feres on his behalf against aggression from without.
The growth of the commercial spirit, the tendency
of land to fall into the hands of a few, and occasiona
disasters such as drought and famine effected serious
changes. Not only were parents reduced to such
straits as to sell their children to obtain money, bu
the children might even be seized by the creditor
who was unable to obtain his due (2 Kings 4 i, Am
2 e).2 Hunger compelled others to place themselves
under bondage in order to obtain bread (i Sam. 2 5)

1 As Driver points out, the law is only to be resorted to after
favourable terms have been offered and refused, and no sanction or
excuse is implied for such atrocities as those alluded to in Am. 1 3,
13, Hos. 13 16, 2 Kings 8 12, or for the torture of captives which was
practised by the Assyrians. In i Kings 20 39 sq. a captive is valued
at a talent of silver !

2 So, in the Amarna Tablets, 55 15 sg.t 6439^^., men give their
families to Yarimuta "for their sustenance" (i-na ba-la-at napisti-
su-nu\ Cp. above, p. 161.

i;o THE LAWS OF MOSES CHAR VH

(The Law, it is true, endeavoured to ameliorate the
lot of such by the regulation of a six years' servitude,
but it was far from being observed (Jer. 34s sqq.\
and the latest legislation prolongs the period to the
Jubilee and requires them to be treated not as slaves
but as hired servants (Lev. 25 39-55). Only foreigners

,fwere to be lifelong slaves.1

.x^The owner was required to treat his slave with

; humanity. If the servant died under his hand from

^ill-usage, " vengeance must certainly be taken"
(Ex, 21 20), but the punishment is only pronounced'
in a half-hearted manner when it is contrasted with
the penalty for killing a freeman (v. 12, "he shall
surely be put to death "). If death does not immedi-
ately ensue the owner is unpunished ; the slave is
bought with his money (v. 21), and it is to his interest
not to render his property useless. If the slave is
maimed in consequence of his cruelty (mention is
made of the loss of an eye or tooth) he is to be
freed (v. 26 sq.).2

4 Reserving these and other cases of assault for a
later chapter, we may next notice that the general
rule that slaves were to be treated humanely is

/characteristic of the Deuteronomic reform. The
harder stress of life had not only made slavery more

1 Later Jewish law laid it down as a fundamental principle that
no Jew could be a slave ; even the thief who was sold for his crime
was not to be regarded as a slave (Benzinger, EBi. " Slavery," § 5).

2 The Talmud enumerates six ways by which the slave might
obtain his freedom : redemption, letters of emancipation, testament
or will, tacit recognition, proselytism, and marriage with a free
woman (for the last-mentioned, see above, p. 162, on CH, § 17 5)-

CHAP, vii SLAVES AND LABOURERS 171

prevalent, but had increased its hardships. Runaway
slaves were no doubt never rare (cp. i Sam. 25 10,
i Kings 2 39), and under the old state of affairs would
find protection in other clans and tribes. The decay/
of the old tribal life and the growth of commercial
and mercantile habits had altered this, and the legisf
lation finds it necessary to insist that the fugitive wa$
entitled to his freedom. He was not to be delivered
over to his master (adomm), but might dwell where
he liked without fear of oppression (Deut. 23 16 sq.).1
The disabilities under which the slave suffered
were compensated to some degree by the fact that
he had a guardian. In this respect he was in a
better position than the hireling (saklr), on whose
behalf the law only intervenes in order to ensure
that he was paid promptly and in full (Deut. 24 14 sq.,
Lev. 19 13, etc. ; cp. Jer. 22 13, Mai. 3 s).2 The free
labourer was answerable to no one, and in return
there was no one to protect his interests. In primi-
tive organisations where land is common property
and all share in the produce, each man labours for
his neighbour and receives only his food. Such
was, and still is, the custom in Palestine,3 but from
the causes already indicated, it can scarcely have

1 Under the tribal constitution the refugee could count upon re-
ceiving protection from the tribe to whose tents he had fled. In the
society reflected in CH, §§15 sgg., the slave's position had evidently
become considerably worse than in Israel in the seventh century.

2 The prompt payment of the labourer is insisted upon in the so-
called " Sumerian farming-laws," see p. 1 90, below.

3 Cp. Talm. Baba Mesia^ 5 8 (n), and for modern times, Doughty,
Ar. Des. 2 n6.

172 THE LAWS OF MOSES CHAP, vn

been very prevalent in Israel after the monarchy
had been established. It is not until the time of
Deuteronomy that the law above referred to makes
its first appearance, and the biblical references to
labourers are neither extensive, nor of a kind that
require lengthy consideration in the light of the
Code of Hammurabi.1

The laws in the Code concern themselves with
the wages and responsibilities of labourers ; nothing
is said of their rights, although there are indications
from other sources that they were not to be treated
oppressively as slaves or captives. In one of his
letters Hammurabi deals with a case where certain
workmen have been negligent, and orders that they
are not to be put to forced labour.2 Labourers were
to be fed and clothed, and stood under the protection
of a patronus ; more important still, they were not
mere objects like the slave, but were designated
with the determinative amilu, "man."1

The Code enacts that the hireling (amil agruti]
is not to be paid at the same rate throughout the
year. From the beginning of the year (April) to
the fifth month, when the days are longer and the
harvest is on, he receives six SE of silver a day,
whilst for the rest of the year the payment is five
$E (§ 273).* The wages of the artisan (mar um-mi-a)

1 Reference may be made to the material collected by W. H.
Bennett, Expository Times, May 1902, p. 381 sq.

2 King, Letters, no. xxxix. (p. 85).

3 Meissner, op. cit. p. n.

4 1 80 SE made one shekel.

CHAP, vii SLAVES AND LABOURERS 173

vary ; the brick-maker (GAB- A) and the tailor (amil
KID] receive five SE of silver a day, whilst the
carpenter (nangar) takes four (§ 274). Owing to
the mutilation of a portion of the stele, the hire of
the stone-cutter (??) and the builder (amil banii) is
missing, as is also the class of the artisan at the
head of the list. Two kinds of farm -labourers
receive respectively eight and six GUR of corn a
year, and the fact that the payment is annual makes
it difficult to suppose that they can be engaged for
such temporary work as threshing or harvesting
(§ 257 •sy-)-1 The herdsman (na-kid)* for the cattle
and sheep receives eight GUR of corn a year (§ 261).

Among the scanty details in the Old Testament
we read of ten shekels a year for the young Levite
(Judg. 17 10), a drachma a day for the angel Raphael
(Tob. 5 14), and a denarius a day for the labourers
in the vineyard (Matt. 20 i sq.). Labourers were
usually paid by the day — whence the Deuteronomic
injunction (above) — in later times, at least, by the
year (Lev. 2553). In the latter case some kind of
agreement was doubtless required (cp. Job 41 4),
though whether it was in writing, as was the usual
custom in Assyria and Babylonia, may be doubted.

The laws in the Code relating to the responsi-

1 AK-SU (harvester, Scheil, Johns) ; SAB-GUD (thrasher, Scheil ;
ox-driver, Johns and Winckler). When the labourer is hired by
contract for a specified length of time, an instalment is sometimes
paid down at once (Kohler and Peiser, Bab. Rechtsleben, 2 52 sq.}.

2 Heb. noked, sheep-raiser or dealer (cp. Arab, nakad, a kind of
sheep with very woolly fleece).

174 THE LAWS OF MOSES CHAP, vn

bilities of labourers are not quite clear. If a labourer
has been hired to look after a field, and tools (?) l
and oxen have been entrusted to him, and he has
stolen grain or plants, and they are found in his
hands, his hands are cut off (§253). If he takes
the tools (?) or wears out the oxen, he must restore
the corn which he has received to sow (? § 254),2
If he lets out the oxen on hire or steals the grain
and has not caused the field to bring forth produce,
he is put to account and must pay 60 GUR of corn
per CAN (§255). If his prefect (bi-ka-zu) is unable
to make restitution, he is left on the field among
the cattle (§ 256). The last law is particularly
obscure, and Johns translates, " if his compensation
he is not able to pay, one shall remove the oxen
from that field." According to Johns, therefore, the
hireling suffers no penalty and the cattle are simply
taken away from his care. The law as otherwise
rendered by Scheil and Winckler expels the man
from the village and presupposes that the responsi-
bility for the labourer is undertaken either by a
superior official (Scheil)3 or by the community or
clan (Winckler).

1 al-da-a-am, seed ? (Winckler).

2 ta a-na seH sa im-ri-ru i-ri-ab, " from the seed which he has
hoed he shall restore " (Johns).

3 Cp. KB 4 49 (no. iii.), where a man hires himself out for a
month and gives the name of his guarantor (ga-ag-ga-di-su, lit. his
head). The phrase sum-ma bi-ha-zu a-pa-lam la i-li-i must be con-
sidered along with sum-ma stfam ri-a-ba-am la i-li-i^ § 54, and sum-
ma sar-ra-ga-nu-um sa na-da-nim la t-su, § 8, where it is certainly a
question of compensation ; apalu> "to answer for," as in §§ 152, 206.

CHAP, vii SLAVES AND LABOURERS 175 '

The responsibilities of the herdsman (riu) are;
laid down at greater length. if lie loses an ox or •
sheep he must restore to the owner ox for ox, sheep;
for sheep (§ 263).1 He is bound by a contract to
produce a specified number of young ones, and if he
has received his wage, whatever was arranged, and
was contented therewith, and has diminished the
number of the oxen and sheep, and decreased the
offspring (ta-li-id-tum), he must hand over offspring
and produce (bi-il-tum) according to the contract
(§ 264). Dishonest dealing, such as selling thej
cattle or making false returns, is punished by a|
tenfold restitution of what he has stolen (§ 265). If
in the sheepfold (tarbasii)* a disaster3 occurs, or a
lion kills one of the herd, the herdsman may clear
himself (u-ub-ba-am-ma) " before God," and the
owner of the sheepfold must face the misfortune of
the sheepfold (mi-ki-it-ti tarbasi ; § 266).4 On the
other hand, if the shepherd has been at fault, he
must make good the loss and restore (u-sa- lam-ma]
oxen and sheep to the owner (§ 267). The im-
portance attached to cattle- raising appears, also,

1 Of the preceding law (§ 262) only two out of nine lines have
survived : " If a man, an ox or a sheep to . . ." Jeremias (Moses
und Hamm. p. 33) has conjectured that it dealt with the theft of
cattle ; but this is dealt with in § 265, above.

2 Heb. rtbes (EBi. col. 713).

3 li-bi-it ili, lit. a stroke of God.

4 The law recurs in later times in Sm. 26, with z-/z instead of Hi
(see Delitzsch, Beit. 2. Assyr. 4 84). The same rule holds good in
the case of the hired animal (CH, §§ 244, 249). Note that the two
latter laws have here been combined to form one.

176 THE LAWS OF MOSES CHAP, vn

in the letters of Hammurabi, where we find the king
sending instructions to his officials to inspect the
royal herds of cattle and sheep, or to see that they
are properly tended and that their number is not
diminished, whilst, on another occasion, he forwards
a list of names of shepherds who are to be brought
into his presence in order that they may render
their accounts.1

, The Israelite laws relating to the shepherd are
pot unlike those in Babylonia. He is paid in coin
or in kind (Zech. 11 13, i Cor. 9 7), and the story of
Jacob and Laban (Gen. 30 31 sqq., 31 7 sq., 38 sq.)
probably presents no overdrawn picture of ancient
custom. The shepherd is asked what he requires,2
and in the episode in question the herd -owner
frequently changes the arrangements in order that
his shepherd's share of the flocks may not increase.
According to the law in the Book of the Covenant,
if a man has taken an ass, ox, sheep, or any beast,
to guard or herd (samar, cp. Hos. 12 12), and it dies,
is injured, or is carried off,3 and there are no

1 King, Letters, vol. 3, nos. xxx., xxxv., and xxxi. As among th<
more pastoral Hebrews and Arabs, sheep-shearing appears to have
been a function of some importance at which the governors of
other cities were present. It took place in the House of the Ft
of the New Year, but at various dates : Adar or Sebat (King, pp. 7.
162 sq. ; cp. Rel. Sem.(2) p. 254).

2 Cp. Doughty, Ar. Des. 2 242, where a young lad requires th<
usual wages, "four she-goats at the year's end and a cloak and
tunic," besides a fill of milk ; in a few years' time the young hei
man would thus possess a small flock of his own.

3 Holzinger rightly observes that " carried off" (nisbaK) can refe
only to whole herds, and suspects that it is a gloss. If not a corruj

CHAP, vii SLAVES AND LABOURERS 177

witnesses to support his statement, he must swear
the " oath of Yah we " that he has not put his hand
to the goods of the owner (be'alTm) and his word
is accepted, no restitution is made (Id yesallem ;
Ex. 22 10 sq.). Secondly, if anything is stolen from
the shepherd he must make restitution (v. 12) — pre-
sumably, ox for ox, sheep for sheep. It is a case of
presumed negligence as in CH, § 267. Finally, if a
wild beast has destroyed a beast the herdsman must
bring the mangled remains as evidence, in which
case no restitution is required (v. is).1 The last
case was probably a frequent one (i Sam. 17 34 sq.,
Is. 31 4, cp. John 10 12), and it was exceptionally
unfair for an owner to require his herdsmen to make
good the ravages of wild beasts (Gen. 31 39). There
is nothing to show that the Israelite shepherd was
under an obligation to increase the owner's flocks to
a specified extent, whilst, on the other hand, it is
remarkable that in CH, § 266, nothing is said of the
evidence which the shepherd, according to Hebrew
law, is required to produce. The solemn assevera-
tion appears in both, but whereas the Code applies
it to the case where a disaster or a lion has caused
the loss, ravage by animals receives separate treat-
ment in Ex. 22 13, and the oath of Yahwe is used in
general cases where neither witness nor evidence

repetition of nisbar it is probably inserted to cover such cases as the
robbing expeditions mentioned in Job 1 14 sq.y 17.

1 The Septuagint has "he shall bring him (the owner) unto (W)
that which was torn" ; but cp. Am. 3 12, Gen. 31 39. According to
a third interpretation, the shepherd was required to bring " witnesses
feel) of the tearing" ; so in later times (Jewish Encyclopedia, 2 4580).

178 THE LAWS OF MOSES CHAP, vn

were available.1 Apart from the fuller treatment in
Ex. 22 10-13 compared with § 266 sq. the underlying
principles are the same, and considering that cattle-
tending was so universal among the Semites the close
relationship is perhaps not remarkable. Aramaean
Bedouin, according to Sayce,2 tended the flocks of
the Babylonians, and their customary usages were
doubtless identical with those of the rest of the
Semites. In modern times, the herdsman is

held responsible for what is stolen,3 and the Mishnic
law required the shepherd to protect his flock from
tfhe wolf, and acquitted him for accidental loss.
Certain qualifications were made, however, in order
to cover all probable contingencies. Loss by the
attacks of brigands, or of dangerous animals (lion,
bear, tiger, panther, or serpent), was deemed un-
avoidable unless the shepherd had negligently led
the flock into dangerous or risky places. Natural
death was of course unavoidable, but if the shepherd
had injured it, he was not held free.4 Laws of this
nature must necessarily grow up in pastoral com-
[ munities where flocks are tended by paid labourers, '

1 See above, p. 175, n. 4. On the analogy of §§ 244, 249, ravage
by wild animals was the owner's loss, and the oath was only employed
in doubtful cases ("stroke of God;j) ; in either case the laws do not
agree absolutely with the Book of the Covenant.

2 Op. at. pp. 82, 86.

3 Doughty, Ar. Des. 1 345. Where a tribe send their flocks out
to pasture under the care of a tribesman (who is not a hireling) all
losses are shared (/<$.).

* Babel Mesia. 7 7. Cp. CH, §§ 244-249, injuries to hired beasts ;
p. 222 sq. below.

CHAP, vii SLAVES AND LABOURERS 179

and from the exigencies of the case there may be a
certain amount of resemblance between them which
is not in any way due to borrowing. So, when

we turn to India, it is interesting to find that the
Laws of Manu hold the herdsman responsible for
loss by day but not by night, provided they are in
the owner's house (8 230). If the cattle suffer injury,
and if he had not tried to prevent it, he must make
it good (ib. 232). If stolen by thieves, he must raise
the alarm at once and inform his master. Wolves
must be warded off, and if any of the flock die he
must bring their ears, skin, etc., as proof (ib.
233-236). l

1 On the laws relating to shepherds who allowed their flocks to
damage the crops, see below p. 200 sq.

CHAPTER VIII

LAND AND AGRICULTURE

Common lands among the Semites — Rise of individual property —
Lands on fief — Holders of crown-lands, their rights and duties
— Old agricultural precepts in Babylonia — Laws for farmers and
gardeners — Land on metayer — Israelite laws and usages — Irri-
gation— Miscellaneous Babylonian laws — Damage to crops by
animals or fire.

AMONG primitive peoples property in land is practi-
cally unknown. Each tribe has a district over
which length of custom has allowed it to wander
freely and all its members share in the possession.
" Property in water," Robertson Smith points out,
" is older and more important than property in land,"
and the digging of a well, without which the flocks
could not be pastured, brings with it a right of
possession. In settled communities, likewise, land
I is primarily the common property of the village or
1 township, and individual rights are only acquired by
. personal labour, such as the building of a house or
(jthe cultivation of land.1 Right of custom applies to

1 Rel. Sem.(2} pp. 95 sg., 104 sq., 144. Cp. Kohler, Rechtsvergl.
Stud. p. 75 ; E. Mercier in Journal Asiatique, 9th ser., 4 74 sq.
(1894); Jewish Encyclopedia, 1 395^. For modern Palestine, cp. Klein,

180

CHAP, vin LAND AND AGRICULTURE 181

agricultural as well as to pastoral people, and the
undisturbed possession of a piece of land gives the
occupier a prior claim.

Among village communities, side by side with
the possession of individual property there is
frequently to be found the practice of holding
common lands, which are parcelled out periodically
into a specified number of portions, and divided by
lot among those families or individuals of the village
who are capable of farming it. In spite of all the
attempts of the Turkish Government to repress it,
the same custom still prevails in Palestine at the
present day, and there are sufficient indications in
the Old Testament to make it extremely probable
that it held good among the Israelites,1 who no
doubt adopted it from the older Canaanite inhabi-
tants of the land. Nor need we suppose that the
Israelites were the only representatives of the
Semites who had their village communities.2

ZDP V, 4 72. The right of the first clearing has been very generally
recognised (cp. Laws of Manu, 9 44, and Letourneau, Property : its
origin and development, passim).

1 F. A. Klein, ZDPV, 475 sqq.\ J. Neil, Transactions of the
Victoria Institute, 24 154^. (1890-91) ; id., Pictured Palestine,^ pp.
252 sqq. (London, 1893); Bergheim, PEFQ, 1894, pp. 191 sqq. ;
Fenton, Early Hebrew Life (London, 1880); Buhl, American
Journal of Theology, 1 731 sqq. (1897) ; id., Socialen Verhdltnisse der
Israeliten, pp. 56 sqq. (Berlin, 1899); Driver and White, Leviticus,
pp. 98, 100 ; Bertholet, on Lev. 25.

2 The Arabs were pre-eminently agriculturists, although among
the nomads of historical times agriculture was not practised, and was
deemed to be unworthy of a man's attention (cp. Fraenkel, Aramai-
schen Fremdworter im Arabischen, p. 125 sq. ; Leiden, 1886).

i82 THE LAWS OF MOSES CHAP, vm

The growth of central bodies of authority and

Ithe institution of a monarchy are detrimental to the
older land systems. Mohammedan law, for example,
allows unclaimed land to be appropriated for pur-
poses of cultivation, but only with the consent of the
governors or chiefs, and if it has not been brought
into a satisfactory state by the end of three years it
is taken away and given to another. In course of
time, as agriculture advances and the population
t becomes more numerous, the land tends to become
the private property of individuals, or is added to
the estates of the sovereign, to be handed over to
the care of his officers, and the common lands are
thus curtailed and are to be found almost exclusively
in those districts which are removed from the larger
towns or villages. In Israel it was one of the dis-
advantages of the monarchy that the king seized the
lands which his subjects held and gave them to his
nobles (i Sam. 8 14), and the story of Naboth, which
long rankled in the hearts of the people, was no
doubt only one of many acts of injustice. The
spread of commerce destroyed the old simple agri-
cultural life, and the rapaciousness of those who
added field to field must have led to the disappear-
ance of many of the smaller land-owners and to the
gradual confiscation of the common lands.

Land in Babylonia had long been either private
property or under the control of superior authorities.

Even at the present day the true nomad Arabian, if he practises
agriculture at all, leaves everything to chance (cp. Palmer, Desert of
the Exodus -, 2 296 sq. \ 1871).

CHAP, viii LAND AND AGRICULTURE 183

There were land surveys, and the landed estates of
the inhabitants of villages were set down in registers
which were kept at the palace or at one or other of
the temples for inspection in case of dispute.1 In
one of Hammurabi's letters the king orders land to
be restored to its owner and remarks that " the
ownership of the land ... is ancient, for on a tablet
it is assigned to him."2 The extent of individual
holdings is set forth in great detail in the contracts,
the boundaries are defined by the owners of the
adjacent properties,3 and there are imprecations
against the man who removes the stone (abnu) or
landmark (kudur\r~\u) upon which are inscribed the
boundaries and extent. The landmarks are under
the patronage of the God Ninib.4 Individual '
property, as we have seen, was jealously kept in the
family as far as possible, and from the names of I
witnesses in the contracts it would appear that land/

1 Some of the Bab. terms for the different kinds of land are cited
by Peiser (Skizze d. babylon. Gesell., p. 21 sq.\ Several of the later
Talmudic and Targumic designations are of Babylonian origin (cp.
Jensen, Zeit. f. Assyr. 6175; Meissner, Beitr., p. 143). For the
Jewish terms in general, see Vogelstein, Landwirtschaft in Paldstina
zur Zeit der Misnah, 1 (1894) ; Jewish Encyclopedia, 1 267^.

2 King, Letters ) 3 no. xi. ; cp. p. 25.

3 Contrast the Palestinian practice of giving fancy names to the
plots of land, e.g. the fuller's or potter's field of olden times, or the
field of the partridge, the mound, or the road, of to-day (Neil,
Bergheim, //. cit.\ In late Jewish contracts, on the other hand,
landed property is defined by the boundaries on the east, south, west,
and north (Nathan, Orient. Litteratur-zeitung^ 1903, col. 183 ; Pick,
Assy rise hes und Talmudisches, p. 28).

4 bll ku-dur-ri-i-ti {KB 4 73, 1. 1 9).

1 84 THE LAWS OF MOSES CHAP, vm

could not be alienated without the sanction of the

/ various members.

It is probable that in Babylonia, too, land had

/once been held in common. Boscawen finds refer-
ences not only to a periodical distribution of land by
a council, but even distinct traces of village com-
munities.1 In an old contract- tablet referred to by
Meissner2 it appears that a man who had built a
house at his own expense upon another man's field
was entitled to live in it, or to let it, for a specified
period (? ten years), and it seems extremely probable
that this is a survival of the time when the man who
built a house gained a right to the land upon which
it stood. Other lands which had probably once
been common were the property of the king and
were entrusted by him to his officials, in return for
which they were expected to cultivate it and to
perform personal services. These are the ganger
(rid sale) and the constable (bctiru)? and the small
series of laws devoted to their duties and privileges
next claims our consideration.

If one of these officials has been sent upon a
royal errand (har-ra-an sar-ri-im) and hires a hire-

1 Transactions of the Victoria Institute, 24 184 sg.

2 Op. cit., p. 12 (quoting Strassmaier, Warka no. 103).

3 In the letters of Hammurabi the rid sabe appears to be an
overseer or captain of troops, perhaps the former, who would seem to
have held a position similar to Solomon's officers " over the people "
(rodim baam, I Kings 5 16 [30], 9 23 ; see King, Letters, 3 100 n. I ;
Delitzsch, Beit. 2. Assyr., 4 85 ; and Johns, Amer. Journ. Sem. Lang.,
1903, p. 171 sq., who regards the bdiru as a kind of pressgang
officer).

CHAP, vin LAND AND AGRICULTURE 185

ling (amil agurri i-gur-ma) in his stead, he is put to
death (id-da-aK] and his substitute takes his house
(§ 26). The same penalty is inflicted upon the
" governor " or " magistrate "J who sends substitutes
on a royal errand (§ 33). If he had been captured
and was ransomed by a merchant (dam-gar], and
was unable to pay back the amount of the ransom,
it must be paid from the funds of the temple of his
city (bit ili ali-su\ and, failing this, from the palace
(e-kal), "his field, garden and house cannot be
given for his freedom " (ip-te-ri-su ; CH, § 32).2 The
" governor " or " magistrate " who robs him, plunders
him of any gift (ki-is-ti), lets him out on hire like a
slave, or unjustly brings him to judgment, is put to
death (§ 34). Thus are the privileges of these
officials secured. The estate cannot be alien-

ated. No constable, ganger, or tax-collector (na-si
bi-il'timf may sell his estate for money (§ 36), and

1 PA-PA and NU-TUR; the meanings are not certain (see Johns,
Amer. Journ. Sem. Lang., 1903, p. 171 sq.}. In Letter Iv.
Hammurabi issues a warrant for the arrest of eight officers who had
not gone to their posts (King, op. dt. pp. 1 14-6, cp. Letter liv. p. 1 12
sq.}. From Letter xv. (p. 36 sq.} it would appear that some of these
officials were protected to such an extent that they were freed from
the unpleasant necessity of appearing in courts of law as defendants
in lawsuits arising out of debts.

2 So Winckler. Johns understands the law quite differently : " if
a ganger or constable is diverted on an errand of the king's " (sa i-na
har-ra-an sar-ri-im tu-ur-ru\ i.e. is named for foreign or garrison
duty, a merchant might buy him out ; if he had the means to pay the
merchant for this good office he must do so ; but his benefice must
not be used to raise money for the purpose (Amer. Journ. Sem. Lang.,
1903, p. 172).

3 Or " tributary," Johns, Winckler.

J 86 THE LAWS OF MOSES CHAP, vin

if any one buys it, the money is forfeited, the estate
returned to its owner (belu\ and the tablet recording
the sale is broken (§ 37). Similarly, the royal flocks
which are in the care of the ganger must not be sold,
and whoever buys cattle or sheep from him forfeits
his money (§ 35).

The estate cannot be written off to the holder's
wife or daughter, nor can he pledge it for a debt
(§ 38) ; but property which he has bought or other-
wise obtained he can of course dispose of as he
likes : it may be bequeathed to wife or daughter or
given for a debt (§ 39). On the other hand, the
holder is allowed to give his estate for money to
another official, and the buyer has full use (i-li-ik) of
it (§ 4O).1 The field and garden of the ganger or
constable may be entrusted to another during his
absence, and on his return it is restored to him (§
27). It may be thus taken over temporarily by his
son (§ 28), and if the son is too young, one-third
of it may be given to his mother to bring him up
(§ 29).2 The estate must be kept in cultivation,
and if the holder has allowed it to go to waste (ud-
da-ab-bi-ir) and is absent for three years, the man
who has had charge retains it, whilst if the original
holder has been absent for one year only, it is

1 The officials in question are royal merchants and others who
hold benefices under the state (Winckler, ad loc.).

2 This would be duly specified by a contract, as in the deed of
the second year of Nergal-sarezer, where a man's wife is taken into
partnership by her husband for as long a time as his brother is away
on his travels (Sayce, op. cit.t p. 130).

CHAP, vin LAND AND AGRICULTURE 187

restored to him on his return (§ 30 sq.). Evidently
the right to hold the land depends upon the man's
ability to reclaim it, and the law finds an analogy in
the Mohammedan custom already referred to, where-
by waste land which has been taken and remains
uncultivated for three years is seized by the
authorities and given to another.1 Finally, if the
estate has been alienated in the absence of the
ganger, constable, or tributary, it is restored to him
on his return (CH, § 41). The true meaning of
this law is rather obscure. According to Johns
(Amer. Journ. Sem. Lang., 1903, p. 173 sq.\ it is
bartered (u-bi-iK) and exchanges (ni-ip-la-tim) have
been given, and the latter become the official's
property along with the estate (cp. § 37, where the
buyer forfeits his money) ; Scheil and Winckler, on
the other hand, understand the estate to have been
fenced in, for which injury the holder is entitled to
receive compensation.

In Israel there were doubtless highly -placed
officials who held lands under the state,2 and the

1 Kohler, Rechtsvergleich. Stud., p. 75 (citing Hidaya, p. 610 sq. ;
transl. Hamilton, second ed. by Grady, 1870). Similarly in old Mexico,
where every member of the community had a right to the usufruct
of the common lands in proportion to his status, the holder who
neglected his allotment for two years running was admonished, and
if in the third year he had not improved the soil, his lot was taken
from him and handed over to another tenant (Letourneau, Property -,
P- 131)-

2 Cp. i Sam. 8 14. After the capture of Jerusalem David appears
to have given estates in the neighbourhood to members of his family
and court (2 Sam. 13 23, Absalom at Baal-Hazor; 14 30, Joab ;
i Kings 2 26, Abiathar at Anathoth).

1 88 THE LAWS OF MOSES CHAP, vm

Chronicler even ascribes to David a system of
administration under which the royal fields and
flocks were tended by appointed officers (i Chron.
27 25-31), but analogies for laws similar to the above
in the Code are looked for in vain. On the other
hand, the disinclination to alienate landed property
was exceptionally strong in Israel, and custom had
given the near kinsman a clear right of pre-emption
and also of buying back (Jer. 32, Lev. 25).1 The
land was a sacred possession ; it was Yahwe's, and
as such was to be held only by his people. In
Ezekiel's sketch of the restoration, crown -lands
presented by the " prince " to any of his officials
revert to the crown in the year of liberty ; only
gifts may be held and inherited to perpetuity (Ezek.
46 16-18 ; cp. CH, § 38 sq.).

In Babylonia, perhaps the most prolific of Semitic
lands, agriculture flourished from the earliest times,
and every care was taken to ensure that the ground
should yield the richest harvests. Some valuable
particulars regarding the details of cultivation in
ancient Babylonia are preserved upon an old muti-
lated tablet and throw interesting light upon early
prevailing conditions,2 and the kind of literature
already in existence at the time of the Code of
Hammurabi. From it we learn that the legal

1 Cp. Benzinger, EBi., "Law and Justice," § 15. Doughty
(speaking of the Bedouin of Kheybar, Ar. Des. 2 116) remarks that
when a man has to sell his inheritance for any immediate purpose,
it is bought by his tribesmen and not by the negro tenants.

2 The so-called " Sumerian farming-laws," translated with notes
by G. Bertin in the Records of tJie Past^ second series, 3 91-101 (1890).

CHAP, vin LAND AND AGRICULTURE 189

tenure began in the sixth month with the drawing
up of a contract. The field is enclosed, hedged,
ploughed, and raked, " for every sixty measures of
grain the farmer takes eight measures." For a
" field of half," the labourer works under the
proprietor's overseers, whereas in a " field of
partnership," proprietor and tenant are on equal
footing, " man as man, house as house, seed as
seed." At harvest-time the master supplies " a
long cart " and a threshing-ox. Another column,
incomplete, gives in detail the duties of the tenant.
" He fences with sticks the ground to be ploughed,
he ploughs and rakes it, he waters it once and
twice, he fixes hooks for the pails for drawing
water." At harvest -time he takes his share as
arranged in the contract. The division ranges
from a third to a tenth, and mention is made of a
tithe for the palace. The gardener marks the limits
of the garden with boundary stones,1 he plants date-
trees and waters the young plants. It would appear
that the tenure might cease at the end of the eighth
month : " at the time of drying the dates, at the
time of pulling up the palings, in order to quit him-
self he delivers to the lord of the plantation two-
thirds of the dates. He takes a fixed amount and
he sends in money the amount of the produce of
the date-trees." Finally, the tablet specifies the
other works which the tenant of a farm is bound to
perform. These comprise the strengthening of
doors and gates, and the building of a house for

1 Or, palings (Bertin).

1 9o THE LAWS OF MOSES CHAP, vm

the servants,1 whose wages he must pay " at the
time of the cessation of work," and if the house is
not properly constructed he is fined ten shekels.

Land was hired for a fixed amount, as specified
in the contract, or the tenant (trrtsu)2 undertook to
give the owner a certain proportion of the yield.
The Code orders that the man who has taken a
field to cultivate (a-na ir-ri-su-tim u-sa-si-ma) and
has not caused it to produce corn shall be put to
account for his negligence and shall pay over to
the owner of the field (be -el ekli) corn like its
neighbour (ki-ma i-te-su; § 42). It is estimated
that the field should have produced as much as
those in its immediate neighbourhood and the
cultivator is amerced to the extent of the amount
of their crops. The same ruling holds good, also,
if the man has left the field to itself, but he is under
a further obligation to hoe and harrow it before he
returns it to the owner (§ 43). A piece of waste
land (KI-GAL) 3 that has been taken on hire for three
years, but has been neglected, must be hoed and
harrowed in the fourth year, and the tenant, when
he returns it to the owner of the field, must measure
out (i-ma-ad-da-ad) corn at the rate of ten GUR per

1 The stipulation that the hirer must build a house upon the
field is often found in old contracts (e.g. Meissner, op. tit. no.
75 sq.).

2 Post-Bibl. arts; see Pick, Assyrisches u. Talmudisches, p. 23.
Specimens of such contracts have been published in KB 4 41, 127 ;
Meissner, op. cit. nos. 72-77.

3 Unreclaimed or land out of cultivation (Johns, Amer. Journ.
Sem. Lang.) 1903, p. 96 sq.\

CHAP, vin LAND AND AGRICULTURE 191

CAN (§ 44).1 The first two laws thus apply to corn-
land which has not produced the average amount
of corn, or has been neglected, whilst the last deals
with unreclaimed land which three years' labour
was expected to bring into proper condition (cp.
CH, § 30 above). The penalty in this case, it
would appear, consists not only of a specified pay-
ment of corn, but of an additional year's service by
the tenant.2 If the cultivator (ir-ri-sum) has given
over (to another ?) the field to cultivation (eklu e-ri-
$a-am ik-ta-bi) the owner has no right to complain
since his field has been cultivated, and at the harvest
(i-na eburi) — when all payments were made — he
takes his corn according to his bonds (ri-ik-sa-ti-su).
The law (§ 47) apparently refers to a field that has
been sublet, and a reason is given for the owner's
complaint which is not clear.3

The law is not always severe upon the cultivator.
If a man has given his field to a cultivator in return
for its produce (bilti), and has received his share,
and a thunderstorm (ilu Adad) has ravaged the
field and destroyed the crop (bi~ib-bu-lum), the loss
falls upon the cultivator (§ 45). If, however, the

1 One GUR of corn is worth one shekel of silver, and contains
300 KAJ it is properly a " camel-load " = 5 imir (ass-load), Peiser,
Skizze d. bab. Gesell. p. 22, n. The CAN is a land -measure of un-
certain extent.

2 Orelli, Gesetz Hammurabis, p. 60, finds in the three laws three
successive stages in the legislation.

3 as-sum i-na sa-at-tim mah-ri-tim ma-na-ha-ti-su la il-lu-u,
" because in the former year he did not set up his dwelling " (Johns),
did not go to his farm (Scheil), obtain sustenance (? Winckler).

i92 THE LAWS OF MOSES CHAP, vm

owner has not received the produce of his field,
and the field is let for one-half or one-third, the
cultivator and the owner divide the corn that is left
in the field (§ 46). In the former case, the cultivator
receives no compensation for the loss of his share
of the produce, whilst in the latter, the two share
proportionately according to the contract whatever
remains.

The laws relating to the gardener are analogous
to those for the farmer. The man who lets out a
plot of land to the gardener allows him four years in
which to plant and rear it, and in the fifth the
owner of the garden (be-el kiri) and the gardener
(NU kiri} share equally (§ 60). The plot is divided
and each takes his own produce, and if the gardener
has allowed a portion of it to lie waste (ni-di-tum
i-zi-ib\ he must include that portion in his own
share (§ 61). If- the gardener has not planted the
field as a garden, and it was corn-land, he must
measure out corn to the owner of the field "like its
neighbour" for the years in which it has been
neglected, and must put it in order before returning
it (§ 62 ; cp. § 43 sq.). If it was waste or unre-
claimed (eklu KI-KAL), he must set it in order and
measure out 10 GUR of corn for each CAN (§ 63, cp.
above, § 44).1

Another small group of laws which also apply to
the gardener is imperfect owing to the erasure of

1 The payment is made sa sa-at-tim is-ti-a-at, "for one year"
(Winckler), not for all the years that it has been neglected (as in
§ 62). Johns, however, has " for each year."

CHAP, vin LAND AND AGRICULTURE 193

five columns of the inscription. These do not
appear to refer to the planting of the garden, but to
the cultivation of one already planted.1 Here, the
gardener is to receive one-third of the produce and
give two-thirds to the owner, and if through his
negligence the yield is small, he must measure it out
"like its neighbour" (§ 64 sq.\ Finally, if a man
cuts down a tree (i-sa-am) without (the consent of)
the owner he must pay half a mina of silver (§ 59).

The system of farming on such conditions
as these is prevalent. The Babylonian Talmud
assumes that when land is taken on lease the tenant
must do all that is in accordance with the custom of
the country (as specified in the contract) ; if he does
not cultivate it, he must pay in proportion according
to the amount the field should produce, and if the
produce is destroyed by some wide-spread disaster
(locusts, fire), a deduction may be made.2 At
Kheybar, according to Doughty (Ar. Des. 2 114 sgq.),
the Bedouin are the land-owners and the villagers
husband the palms for half the produce ; they hold
half-rights which they may sell ; when necessary
they must plant new trees for which the owners
will compensate them. These holdings are quite

1 a-na ru-ku-bi-im, on the analogy of the Talmudic use of the
verb, is understood by Joh. Jeremias (p. 20, n. 3) to mean a grafting ;
Johns renders by " to farm."

2 B. Mes., 9 ; Pick, /. c. Cp. the specimen of a contract cited by
Vogelstein (pp. cit. p. 49, n. 15), where the tenant pays the expenses,
and gives the owner half the produce, and binds himself with the
following promise : " If I leave it waste and till it not, I shall pay
back according to the best." See below, p. 202, n. i.

i94 THE LAWS OF MOSES CHAP, vm

distinct from the open lands which the villagers
possess in their own right. In Palestine the amount
taken by the owners varies. Some Bedouin pro-
prietors take one-fifth only, but the fellahin pay all
the expenses ; more commonly the proportion is
one-fourth and the land-owner provides the seed.1

Of the agricultural laws of ancient Israel we
know but little, although all the evidence goes
to prove that there must have been numerous
customary usages in vogue. Canaan had been
under cultivation long before the Israelites entered,
and agriculture plays a very prominent part in the
history of the land. It is noteworthy that the
promises and threats associated with the observa-
tion of the Deuteronomic code are specifically
agricultural. They are as characteristic of Israel as
Hammurabi's Epilogue (chap. i. above) is of Baby-
lonia— not that agriculture was practised to a less
extent in Babylonia, but in Israel it was the people's
life, and it left its mark upon the language and
sentiment to a degree that finds no parallel in the
commercial powers of the Tigris and Euphrates.2

It is not until Deut. 19 14, 27 17 that it becomes
necessary to prohibit the removal of the neighbour's
landmark. The land-grabbing tendencies of the
rich and powerful was one of the curses of the
monarchy, and the numerous references to the

1 Post, PEFQ, 1891, p. 104; Jaussen, Revue Biblique, 1901,
p. 606.

2 A picture of later Jewish agriculture is presented by the writer
of the Letter of Arts teas, 107 sqq.

CHAP, vin LAND AND AGRICULTURE 195

offence in the later writings stand out in striking j
contrast to the silence of the Book of the Covenant.1
The landmark (gebul) was scarcely an inscribed
stone similar to the Bab. kuduru (p. 183 above). In
modern times, when the same plot is divided and
shared by several in common, division is indicated
by a furrow of double width, or more generally by
stones which are placed at each end of the boundary
lines.2 It is probable, therefore, that the Deutero-^
nomic law referred to the cases where land was
held in common, and not to the boundaries of
estates or properties which would naturally be of a
more permanent character.3 The same offence was
condemned in Assyria, and among a list of sins
which a man might commit we meet with such
questions as : " Has he set up a false landmark, or
has he refused to set up a true landmark ? Has
he removed bound, border, or landmark ? " 4

Further, the modern Palestinian custom which
compels a man to sow on his strips of land the same
seed as the rest, in order that all may harvest at the

1 Hos. 5 10, Prov. 22 28, 23 ioa (where read " the landmark of the
widow," cp. 1625), Job 24 2.

2 Neil, Viet. Inst. p. 159^. ; Bergheim, PEFQ, 1894, p. 195 sq.
The modern name, according to the former, is takhem, " limits," the
abstract for the concrete as in the case of the Hebrew ggbiil.

3 Trees are sometimes planted at the present day to mark
permanent boundaries (cp. Gen. 2 1 33 ?), and the fellahm dig a hole
wherein are placed egg-shells and charcoal, which, as they say, never
disappear, and can always be dug up as evidence (Clermont-Ganneau,
Recueil d^Archeol. Orient. 5 331 ; 1903).

4 King, Babylonian Religion, p. 219; from a seventh -century
tablet.

196 THE LAWS OF MOSES CHAP, vm

same time, suggests an explanation of the precept
directed against sowing a field with two kinds of
seed (Lev. 19 19, Deut. 22 9).* The reason preferred
by the Deuteronomist is obscure, but it seems not
unlikely that he is only giving effect to a survival of
ancient custom by clothing it with what in his day
was deemed a plausible explanation. In like

manner it can scarcely be maintained that the in-
junction in Ex. 23 10 sq. (cp. Lev. 25 3 sq.)t that
each plot should lie fallow in the seventh year, was
originally based upon the institution of the seventh
day of rest. In later times, according to the
Mishnah, a field was divided into portions, of which
one half was sown in the first year and the second
half in the year following, or the whole field was
sown for a few years and then allowed to remain
fallow for a length of time. Experience naturally
taught the necessity of letting the ground rest, and
it was enforced by a law which based itself upon
motives of humanity.2 Similarly, the law in Lev.
19 9, 2822, which exhorts the cultivator to leave the
corners of his field for the poor, is introduced solely
out of benevolent motives. A relic of an ancient
communistic life has already been suspected,3 but it

1 Here may be noticed the later post-biblical rule that a man
might not sow on his field seed of a different kind to that specified
in his contract (Vogelstein, Landwirtschaft in Paldstina^ 1 50, n. 20).

2 Ex. 23 ii. On the curious change in Lev. 25 20-22 (fallow in
the ninth year), see the commentaries of Driver and White (Haupt's
Sacred Books of the Old Testament), and Bertholet, ad loc.

3 Oort, Theologisch Tijdschrift^ 1900, p. 286 (Bertholet, on
Lev. 19 9).

CHAP, vin LAND AND AGRICULTURE 197

is more tempting to suppose that the rule took its
rise in ceremonies relating to the corn-spirit and the
last sheaves of corn which, as Mannhardt and
Frazer have shown, are to be found almost every-
where.1 As another example of the manner in
which an agricultural custom has been preserved in
Hebrew ritual, it is interesting to observe that the
Law of Holiness is doubtless only following ancient
practice when it forbids the fruit of newly planted
trees to be eaten before the fifth year (Lev. 19 23 sq.).
This is precisely the length of time which, as we
have already seen in CH, § 60, must elapse before
the gardener and owner are allowed to divide the
produce. Finally, if Hebrew law forbade the de-
struction of fruit-trees in war (Deut. 20 19), it is more
than probable that the offence of cutting down a
tree in the orchard of another (CH, § 59) was one
for which customary usage made some provision
(cp. Ex. 22 5 sq.)?

Circumstances combined to make artificial irriga-
tion in Babylonia a matter of the greatest necessity,

1 The modern Palestinian harvest-ceremony with the corn-spirit,
as related by Jaussen, Revue Biblique, 1903, p. 258, seems to be at
present the only known example of its kind from the Semitic field.

2 Cp. Fenton, Early Hebrew Life, p. 39, who also observes that
trees in the open country would be common property. This is no
doubt correct as regards all vegetation which required no manual
labour or care ; even Josephus remarks that whatever grows of itself
is for the use of the whole community (Ant. iii. 12 3). The usufruct
is free to all, only entire possession cannot be arbitrarily claimed.
So, the Deuteronomic law which allows the passer-by to take the
eggs or young ones but not the mother -bird is possibly only one
typical case in point (see Fenton, op. cit. p. 48).

198 THE LAWS OF MOSES CHAP, vm

and the watering of the fields sometimes forms one
of the clauses in the tenant's contract.1 Equal
attention was paid to it in Arabia,2 Palestine, and
Syria, although no traces of laws analogous to those
in the Code of Hammurabi appear to exist,3 and the
silence of the Book of the Covenant may be taken
as proof that artificial irrigation was not practised to
any great extent in ancient Israel.4

Babylonia was intersected with canals which re-
quired constant repair; they were cleaned out at
intervals, and the banks strengthened from year to
year.5 The responsibility for their maintenance
rested with the men who had land along the banks,
in return for which they appear to have held the
rights of fishing.6 If a man was too negligent to
attend to the banks of his canal, and a breach
opened itself and the fields (ugaru) were inundated,
the Code enacted that the man must make good
the corn which was destroyed, and in default of this
he and his goods (bi-sa-su) were sold and the pro-
ceeds shared by those who held the fields (mar

1 Meissner, op. cit. p. 12, n. 3.

2 See Rel. Sem.(2) pp. 96-104, for the distinction between land
requiring artificial irrigation by laborious methods and that which is
kept fresh by nature. Cp. also Barton, Semitic Origins, p. 124.

3 Cp. Anderlind's description of modern methods, ZDPV, 931-38,
48; Vogelstein, op. cit. pp. 13-18 (1894); Doughty, Arabia Deserta,
2 199.

4 Wellhausen, Israelitische und jiidische Geschichte^ p. 82, n. 2.

5 So also in Talmudical times (Pick, Assyrisches und Tal-
mudisches, p. 21 sg.).

6 King, Letters, pp. 14 sq., 121 sq.

CHAP, viii LAND AND AGRICULTURE 199

ugare; § 53 sq.).1 The water was conveyed through
the fields in trenches, and the Code provides that
the man who opened his runnel (a-dap-pa-su) for
irrigation, and negligently allowed the bordering
field to be inundated, must pay back corn " like its
neighbour" (§55; cp. § 42, above). If, through
such negligence, the crops (ip-se-tim) of the next
field were inundated, he was ordered to pay ten GUR
of corn per CAN (§ 56 ; cp. §§ 44, 63, above).2

Theft of a man's watering -wheel and bucket3
come under consideration in the Code (§ 259 sy.),
and a number of minor regulations relating to agri-|
cultural life are set down with great minuteness.!
The hire for a working-ox for one year is fixed at
four GUR of corn (§ 242); the milch-cow (?) was one
GUR less (§ 243). The payment for animals hired
for the purpose of threshing is twenty KA 4 of corn
for an ox, ten for an ass, and one for a lalu (young
calf or goat?; §§ 268-270). The ox and ass were
similarly used in Palestine ; 5 in Babylonia the lalu

1 Are these lands held in common ?

2 The Babylonian legislation reminds one of the Irrigation
Department in the kingdom of Asoka the Buddhist emperor, and
the analogous institution in Egypt.

3 One is reminded of the provision in the Laws of Manu for the
theft of a rope or watering-pot from a well (8 319).

4 A GUR of corn contained three hundred KA, and was worth one
shekel of silver.

5 EBi. "Agriculture," col. 82 ; Vogelstein, op. cit. p. 68 (where
the hire is 6 kab for an ox, 3 for an ass) ; cp. ib. n. 66 sq. (where
threshing-machines are worked by oxen, as in Assyria). The
"working-ox" (§ 242) may also have been used to turn the water-

200 THE LAWS OF MOSES CHAP, vm

may have been employed only by the poorest. For
oxen, wagon, and driver, one hundred and eighty
KA of corn per day is demanded (§ 271), but for the
wagon alone only forty (§ 272).

/ Here it will be convenient to notice the laws
/relating to crops damaged by the flocks. Accord-
ing to the Code, if a shepherd pastured (us-ta-ki-il)
his sheep upon the growing corn (sa-am-mi) with-
out coming to an agreement with the owner of
the field and without his (consent), at harvest-time
the shepherd must pay twenty GUR of corn per CAN
(§ 57)- The law is perfectly straightforward; the
[crops are less, owing to the depredations of the flock,
(and a compensation must be made. The law that
follows is less easy to understand. If, after the
sheep leave the pasture (ugart) and the whole flock
(? ka-an-nu ga-ma-ar-tim) has passed through the
city gate, the shepherd lays them upon a field and
pastures them there, the shepherd must attend to
(i-na-sa-ar-ma)1 the field, and at harvest-time he
must measure out sixty GUR of corn per CAN (§ 58).2
The heavier penalty presupposes that the crops are
in a more advanced state.

The additional labour imposed upon the herds-
man is not out of keeping with the spirit of the
Code,3 on which account the alternative rendering

wheel, as was and still is customary in Palestine {Jewish Encyclo-
paedia, 1 268$).

1 nasdru, used analogously to the Heb. samar.

2 The law was already familiar from Rm. 277, col. viii. 7-22 ;
cp. Delitzsch, Beit. 2. Assyr. 4 82 sq.

3 Cp. § 44, where the man who has taken a field for three years

CHAP, vin LAND AND AGRICULTURE 201

adopted by Johns ("the shepherd . . . one shall
watch") does not commend itself. A further
difficulty appears in the opening words, which seem
to presuppose that there were fields within the city
gates.1 In point of fact, it would appear from other
evidence that there were spaces inside the walls,
and both Babylon and Nineveh were full of such
"squares,"2 but the open ground outside, in front
of the gate, was used for pasture and was the
scene of periodical markets. Perhaps the mean-
ing is that the sheep have been allowed to tres-
pass on their way from the pasture-ground to the
gate.

The same topic comes under consideration in later
Jewish law,3 and according to the traditional interpre-
tation provision is made even as early as the Book of
the Covenant. Of the two laws in Ex. 22 5 sq.t the
former, according to the ordinary view, deals with
the man who allows his beasts to eat in another

and has neglected it must put in another year's labour and pay a
specified amount of corn.

1 So, for example, Delitzsch, loc. cit.

2 Sayce, op. cit. p. 112.

3 Baba kamma, 2. A distinction is drawn between domesticated
and dangerous animals, between those shut up in a stable and those
loose, and the shepherd is responsible for his flock even if he has
entrusted it to another; cp. Jewish Encyclopedia, 1 160. The
Laws of Manu distinguish two cases : for cattle that feed upon en-
closed crops a fine is demanded ; if the crops were unfenced, the
value of the crop must be restored (8 238, 240 sq.). Modern custom
allows the farmer to injure or kill the trespassing beast and at the
same time to demand compensation for the damage (Jaussen, Revue
Biblique, 1901, p. 600).

202 THE LAWS OF MOSES CHAP, vm

man's field, and orders restitution to be made of the
best in his own field. The law is given in a fuller
form in the Septuagint and Samaritan versions : "If
a man cause a field or a vineyard to be eaten and
shall let loose his beast and it feed in another man's
, field he shall surely make restitution from his own
field according to its yield, and if he cause all the field
\ to be eaten he shall make restitution from the best of
Lhis field and the best of his vineyard." * Here, the
words in italics are not found in the Massoretic
text. Apart from other objections to the rendering,
the interpretation of the verb hitiir and its deriva-
tive constitutes the difficulty. The verb is almost
everywhere used of burning, and Hoffmann, followed
by Baentsch and Dillman-Ryssel, accordingly brings
the law into connection with v. 6, where devastation
by fire is handled. Under these circumstances, the
first law will deal with a man who burns the refuse
in his field or vineyard 2 and negligently allows it to
spread to his neighbour's ground, whilst the second
is purely a case of vis major — fire has accidentally
spread and burnt the adjoining crops, — and the law
demands a restitution, but of an unstated character.3
Later Jewish times treated the subject with greater

1 In later times land was divided into three classes : best,
medium, and inferior ; damages by individuals or animals were made
good from the first ; creditors were paid from the second (Gift, 5 i ;
cp. Schwab transl. 9 17 sq.).

z Cp. Is. 5 24, 27 ii, Ezek. 15 4, 6, 19 12, Ps. 80 16 ; also Is. 5 5
(see RVms-)-

3 The usual interpretation of v. 5 (cp. EV) is, as the secondary
addition in LXX. and Sam. proves, undeniably old.

CHAP, viii LAND AND AGRICULTURE 203

precision,1 and if the fire passed from point to point
until it reached the adjoining fields, the man who
had kindled it was responsible ; whilst if the fields
were separated by a wall, stream, or road, the
spread of the fire was held to be due to uncon-
trollable circumstances and no restitution was to be
made.

1 Jewish Encyclopedia, 1

CHAPTER IX

TRADE AND COMMERCE

THE numerous contract-tablets from Babylonia and
Assyria and the survival of one or two old Baby-
lonian laws had for some years past led to the
conviction that business relations from the time of
the first dynasty must have been regulated with the
greatest precision, and not only is this entirely borne
out by the Code of Hammurabi itself, but we are
now introduced to a thoroughness of detail which
presupposes that the closest attention possible was
paid to the perfection of the machinery upon which
the successful prosecution of trade and commerce
depends. The Babylonians were past masters in
all that pertains to business, and many current

204

CHAP, ix TRADE AND COMMERCE 205

usages can be traced back to them through the!
Greeks and Romans ; and Kohler has justly re-
marked, in the course of one of his model studies
on the legislation of Babylon, /that the history of;
trade and money transactions cannot be written*
without reference to Babylonia.1 In agreement
with the scope of the present study, however, it is
not required for us to do more than note the laws in
the Code of Hammurabi which relate to business
dealings, and the numerous details revealed in the
contract-tablets from the earliest times onwards do
not call for consideration except in so far as they
illustrate the laws in question. In this department,
moreover, if the attempt were made to trace the
influence of Babylonia upon Israel, it would be to
the post-exilic, nay, rather, the post-biblical literature
to which we should have to turn. Trade and com-
merce as we understand it, and as it was understood
in Babylonia, was entirely foreign to the early
Israelites — to the primitive Semites. Commercial
cleverness is partly a matter of environment ; certain
communities have acquired an aptitude for acuteness
in business — to others it is abhorrent. Love of
money and the commercial spirit do not always go
hand-in-hand, and the varying degrees of business
talent found among present day Bedouin suggests
that things were not otherwise before the Christian
era.

The Israelites confess a latent objection to the
commercial spirit when they use the gentilic

1 Beitr. z. Assyr. 4 430.

206 THE LAWS OF MOSES CHAP, ix

" Canaanite " (Phoenician)1 as a specific term for
,all traders. The designation is correct, since the
Phoenicians were pre-eminently the traders of the
Mediterranean, and through their trading-journeys
were no doubt acquainted with Babylonian methods.
There were traders, of course, even in ancient
Israel, and great trade-routes crossed the country
along the Jordan valley or the maritime plain, and
smaller cross routes branched out and joined the
larger towns,2 but we can scarcely infer that the
traders left their mark upon the country to any
greater extent than, perhaps, the Gipsies of Europe,
and this inference is supported by a critical examina-
tion of the evidence.

The Book of the Covenant, although acquainted
[with money and deposits, makes no provision for
trade, whereas in Deuteronomy there are regulations
• for debts and interest, and the internal history
indicates that the lengthy reigns of Jeroboam II.
and^Uzziah saw a marked change in the economic
j conditions of the country. Thus arose the necessity
' for denouncing the sins of trade, avariciousness,
oppression, and, in particular, the frequent condem-
nation of unfair weights (Deut. 25 13-16 ; cp. Lev.
19s6, Ezek. 45 10-12, etc.).3 But the scantiness of

1 The earlier names are also tribal, e.g. Ishmaelite (Gen. 37 25
sqq. J), Midianites (Gen. 37 28, 36 E).

2 Cp. G. A. Smith, EBi. " Trade and Commerce," §§32 sqq.

3 Cp. in the list of sins from an Assyrian tablet of the seventh
century — " Has he used false scales ? . . . has he accepted a wrong
account, or has he refused a rightful sum ? " (King, Babylonian

CHAP, ix TRADE AND COMMERCE 207

evidence upon the Hebrew side still continues to be
remarkable, and it is an extremely significant fact
that the Hebrew terminology of trade in the Old
Testament contains comparatively few words of
Babylonian or Assyrian origin, and these, in turn,
are to be found chiefly in the exilic and the post-
exilic writings, — that is to say, subsequent to the
period when Israel had been brought into the closest
possible touch with Assyrian life and conditions.1

In Babylonia and Assyria all business was done^
by deed or bond before witnesses,2 not only between
strangers or kinsfolk, but even between members of
the same family — Babylonia was verily a Paradise
for the professional scribe. According to the Code,
"if a man has bought (is-ta-am) silver or gold,
man-servant (ardu) or maid-servant, ox or sheep or
ass or anything else, from the son of a man or the
man-servant of a man, or has received it on deposit
(a-na ma-sa-ru-tim im-hu-ur) without witness or
contract (ri-ik-sa-tim), he is a thief (sar-ra-ak) and
shall be put to death (id-da-ak)" (§7). It is
interesting to notice that the names of nearly all the
objects mentioned (kaspu, hurasu, alpu, immeru,
imeru, etc.) are also familiar in Hebrew or Phoe-
nician, but the technical terms are quite distinct.3

Religion, p. 2 1 9). From Amos 8 5 it may be perhaps inferred that
weights and measures were legally fixed by the eighth century.

1 G. A. Smith, EBi. "Trade and Commerce," § 82.

2 Each party often has a relative or two among his witnesses
(e.g. in KB 4 41, each has a brother).

3 On the Heb. terms for buying and depositing, cp. G. A. Smith,
EBi. col. 5198 (g\ and art "Deposit" (col. 1074).

208 THE LAWS OF MOSES CHAP, ix

The law is a just one, its evident aim being
to ensure that business was transacted with a
certain amount of publicity when one of the parties
was a minor or under the tutelage of a master.
Thus it was less easy for the servant or slave to
make dishonest use of his master's goods, and a
sharp -dealing trader was prevented from taking
advantage of the minor's youth and inexperience.
Accordingly the law is drawn up in the interests both
of the father and of the owner of servants.

The business transactions of the Israelites were

j performed in the simplest of methods. In P's long
account of the purchase of the Cave of Machpelah
(Gen. 23), the presence of witnesses is practically
the only important legal feature.1 The stipulated
price, four hundred shekels, the price which the
seller "had spoken in the ears" of the people,
required no contract. The plot is specified — the
field, the cave, and all the trees, — the wording is
not improbably in accordance with customary legal
usage in Israel, but as such is not Babylonian, nor
is it drawn up in accordance with the Babylonian
stereotyped formulae.2 From Jer. 32 6 sqq., however,

I it appears that towards the close of the seventh
century a more business-like practice was in use, at

"all events in the larger towns. The transaction was

iput in writing, witnesses were called and the money

1 So, in Ruth 4 10 sq., the solemn appeal is made to the testimony
of the elders who act as witnesses.

2 Pinches, The Old Testament, pp. 236-8. See p. 38 above, and
cp. Carpenter and Harford-Battersby, The Hexateuch, 1 64.

CHAP, ix TRADE AND COMMERCE 209

weighed out in their presence, and they signed their)
names. In this case the witnesses were court-
officials. The purchase-deed (sepher ham-miknaJi)
was sealed and preserved in a receptacle and,
according to the present text, a duplicate was drawn
up which was called the " open." 1 Notwithstanding
this, such primitive usages were retained as the
taking off of the shoe — symbolical of the transference.)
of rights (Ruth 4 7 sq.\ and the striking of hands asj
an indication of agreement (Prov. 6 i, 22 26).2

In the preceding chapter we have already had
occasion to notice certain laws dealing with the
responsibilities of labourers in so far as they pertain
to the protection of agricultural interests. These
now require to be supplemented, and it will be con-
venient in this chapter to classify the various usages
by means of which the Semites endeavoured to
further trade and commerce and to ensure due
respect for the property rights of individuals. The
greater the precision with which law or custom
handles the protection of property the more ad-
vanced must be the conditions of life in general
and trade and commerce in particular. The laws
which require to be noticed range over a great
variety of subjects and may be considered in the

1 The text in w. n, 14 is corrupt ; in the former verse " the com-
mandment and the stipulations " (RV " according to the law and
custom ") is probably a gloss ; see further the commentaries of
Giesebrecht and Bertholet, ad loc. In later Jewish times it was only
occasionally that a copy of a deed was put on record (Jewish
Encyclopedia, 1 395^: : Roman influence is suggested).

2 Cp. G. A. Smith, EBi. "Trade," col. 5196*).

210 THE LAWS OF MOSES CHAP, ix

following order : theft, hired goods, deposits, loans
and debts, agents and traders. The comparative
minuteness with which the Babylonian code deals
with these topics will be particularly prominent in
the course of the following pages, and it will be im-
possible to ignore the conviction that the trading
successes of the Babylonians and Assyrians — and
to these names we may perhaps add that of the
Phoenicians — was very largely due to the wise
counsels of the Babylonian monarch Hammurabi.
The care taken in his Code to place upon a firm
footing everything that tended to give security both
to individual property and to business relations
between a man and his neighbour do not fail to
move our admiration, and tend to exemplify in a
more striking manner than ever the essential
difference between the people of this ancient seat of
civilisation and the other Semites dwelling alone,
secure and unsuspicious, remote from strangers and
foreigners (cp. Judges 18;, Job 1519). Not only
do we find that Hammurabi has fixed the standard
of pay for agricultural labourers and workmen (p.
172 sq. above), and has settled the rate of exchange
(CH, § 51), he even interferes in the price of wine
and enacts two laws, the motives of which are no
longer perfectly intelligible. The wine - seller (a
female, p. 150 above) who sold drink, not by
corn, but by the " great weight," * and made its price

1 i-na abni ra-bi-tum, perhaps two-thirds of a shekel, as opposed
to the "little weight" (abnu sihritt), which was one-third (Johns,
Amer. Journ. Sem. Lang. 1903, p. 173).

CHAP, ix TRADE AND COMMERCE 211

less than the price of corn, was to be put to account
and drowned (§ 108). On the other hand, if she
gave sixty KA of U-SA KA-NI drink "for thirst"
(? di-ip-tim) at harvest-time, she was to receive fifty
KA of corn (§ in). Presumably at this thirsty
season drink might be sold at a cheaper rate.

The laws relating to theft of various kinds are
perhaps the most complete of their kind in the
whole of the Code. Theft of the first order involv-
ing entry deals with the goods of the temple (i-li)
or palace (e-kal) and condemns to death both the
thief and the receiver of stolen goods (§ 6). For
stealing an ox, sheep, ass, pig,1 or ship from the
temple or palace a thirtyfold restitution must be
made, but only tenfold if the thief is a poor man2;
and if he has nought to pay he is put to death (§ 8).
(In between these laws is sandwiched the require-
ment that business transactions with a minor or
slave must be done in the presence of witnesses
and with contract.)

Sacrilege, according to old Semitic belief and
custom, would be most severely punished ; the pro-
perty of the deity is taboo to common people, and the
god himself isexpected to intervene to protect hisown.
Achan's sin practically consisted in stealing property 1
that had been dedicated to Yahwe, and the death j
penalty for such an offence finds an analogy in Gen. i

1 The animals are tribute or revenue for the temple. Cp. King,
Letters of Hammurabi, nos. xxxii. sq. ; cp. p. 144.

2 A tenfold restitution is also required of the dishonest shepherd
$265).

212 THE LAWS OF MOSES CHAP, ix

31 32 (E), where Jacob, in answer to Laban's accusa-
tion that his goods have been stolen, declares that
with whomsoever Laban shall find them " he shall
not live." Primarily a man protected his own pro-
perty by placing it under a taboo or in a holy place
— i.e. under the protection of a deity, — and the
custom is still widely prevalent.1 Communities that
are susceptible to development soon outgrow such
trustful practices and severer measures are taken
against the thief either by the sufferer himself or by
the authorities.

[Two remarkable laws in the Code allow the thief
to be put to death summarily by the individual who
has been robbed. If a house is on fire and a man
comes to extinguish it and " lifts up his eyes " (i-in-
su i$-si-ma) towards the owner's property and takes
it, he is to be cast into the fire (§ 25). Again, if a
man has made a breach (ip-lu-us) in a house, " one
shall kill him before this breach (pi-li-si-im) and
bury him" (in it? § 2i).2 Similarly, the man who
caused another to brand a slave with an indelible
mark is killed and buried in his own house (§ 227)
—both instances apparently treated as an aggravated
kind of theft (p. 160 above). The summary treat-
ment of the house-breaker is familiar, but the obje<

1 Cp. Rel. Sew.™ p. 162 sq. (esp. n. 3), and Jewish Quarterly
Review^ 1902, p. 425. Dareste observes that the death penalty
for sacrilege was also customary in Egypt and India (Diod. 2 28
Manu, 9 270).

2 Cp. the Syro-Roman law-book (§ 81), where the Syriac h;
preserved an echo of the Babylonian wording : " Those who make
breaches (palesai piilsatha) are condemned to death."

CHAP, ix TRADE AND COMMERCE 213

of burying him in the breach is not clear. The
Assyrian kings on their death had the right to be
burned and buried in their own palaces, and it was
a privilege which was only granted to ordinary
people by royal permission.1 The theory that the
dead man's spirit would protect the house from
future burglary is not without analogy, but would
apply only to § 21, and one is forced to conclude that
burial in any other than the recognised place carried
with it some dreadful humiliation.2 The Book of)
the Covenant declares that the house-owner incurs
no blood-guiltiness if he kills a thief who is found
breaking in, provided it is before sunrise (Ex. 22 2),
and the provision finds analogies in other legisla-
tions.3 It was permissible, also, in Jeremiah's day
(2 34). In dealing with the theft of cattle another
distinction is made which is worth noticing. The
thief who is found stealing with the stolen cattle
alive in his possession must restore double, whereas
if he has killed or disposed of his booty he must
restore five times the number of oxen and four
times the number of sheep.4 If he has nothing

1 Sayce, op. tit. p. 65.

2 Dareste {Journal des Savants^ 1902, p. 521 n. 3) points out that
the interment of the thief on the spot is frequently met with in the
laws of the mediaeval age, and cites Grimm, Rechtsalterthiimer^ p. 686.

8 Solon, Plato, and the Twelve Tables ; cp. also the Syro-Roman
law-book (Bruns and Sachau, § 77). Modern custom requires an
idemnity even for the thief killed at night-time (Jaussen, Revue
Bibliquey 1901, p. 600). It is possible that Ex. 222, 3*2 belong
to a distinct series of laws on various forms of blood-feud (Baentsch).

4 Ex. 22 1-4. The ox is of course the more valuable animal ; cp
CH, §§ 268-270, where the hire of an ox is twice that of an ass.

214 THE LAWS OF MOSES CHAP, ix

wherewith to pay, he is sold for his theft (cp. Gen.
44 17), and, according to Josephus (Ant. iv. 8 2),
becomes the property of the robbed man (as in the
Twelve Tables). But the thief regained his freedom
after six years (cp. pp. 164, 170 above), although this
would hardly happen if, under the law introduced
by Herod, he had been sold to a foreigner (Jos.
Ant. xvi. 1 i).

Hebrew law does not order the thief to be killed,1
and the extreme severity of the Code may perhaps
find ,an explanation in the lawless state of Babylonia
at the time when Hammurabi ascended the throne.2
Death is the penalty for robbing a court official
(§ 34), for receiving stolen goods (§ 6 above, cp. §§
9-11), for kidnapping (§ 14), and for the man who
has carried on highway robbery (§ 22). If the last-
mentioned 3 has not been caught the victim declares
his loss " before God," and the city (alu) and governor
(ra-bi-a-nu-um) in whose district the robbery took
place must make it good (§ 23), and if it was a life
(na-bi-is-tum), they must pay one mina of silver to
his people (ni-si-su ; § 24). A Hebrew analogy for
the undiscovered murder will come up for considera-
tion later.4 In one case only does the Code order the

1 Gen. 44 9 is not a law but an emphatic protestation of innocence ;
cp. Gunkel, ad loc.

2 Or it may perhaps be more naturally explained from his strong
desire to put an end to every offence that might lead to a breach of
the peace ; cp. Lippert in Die Nation, 28th March 1903, p. 404*2.

3 He is distinguished from the ordinary thief by the term
7ia-ab-ba-tum.

4 At the present day the sheikhs may be held responsible

CHAP, ix TRADE AND COMMERCE 215

hands of the thief to be cut off (§ 253), a punishment
which was frequently inflicted in the East down to
quite modern times and is still not unknown.1
Finally, we come down to two cases of petty larceny : \
the theft of watering utensils or a harrow,2 the j
penalty for which is five and three shekels of silver 1
respectively (§ 259 sq.).

It will presently be noticed that the theft of jewels
by a carrier is punished by a fivefold restitution
(§ 112 ; see also § 12), whilst for misusing a deposit
apparently twofold is restored (§§ 124-1 26).3 Turn-
ing again to the Book of the Covenant, we are
reminded of the five, four, and twofold restitution
of Hebrew law (Ex. 22 i, 4), and of the fourfold
penalty in Nathan's parable (2 Sam. 12 6 ; cp. Lk. 19
s). It is true that the Septuagint here reads seven-
fold, and this is followed by all critics on the strength
of Prov. 6 31. David, it is urged, is more likely to
have thought of the proverbial " sevenfold" than
of the law, and the reading of the text is con-
sequently ascribed to a corrector.4 On the other
hand, it is perhaps reasonable to argue that the

for thefts committed by their tribesmen (Doughty, Ar. Des.
1 176).

1 Burckhardt, Ar. Prov. no. 550; Doughty, Arabia Deserta^ 2
318 j0., and Baldensperger, PEFQ-> 1897, p. 127 sq. (Old offenders
were put to death as late as the middle of the last century.)

2 The former, GlS-APUfvad GIS-APIN TUR-KIN^ perhaps correspond
to the modern watering-bucket and water-wheel (shaduf).

3 The twelvefold penalty of the unrighteous judge has already
been discussed (CH, § 5, p. 66 above).

4 Thenius Lohr Driver, H. P. Smith, Budde.

216 THE LAWS OF MOSES CHAP, ix

heavier penalty for theft belongs to a later time.1
At all events it is to be noticed that the " sevenfold "
does not happen to occur in the Babylonian Code,
nor has it survived in later Jewish law, where the
penalty is twofold if the thief has pleaded not guilty,
and four or fivefold if he has stolen an animal and
disposed of it. On these grounds, therefore, the
fourfold penalty is probably to be preferred in
Nathan's parable ; it was legal,2 and was fixed by
custom, and has survived to the present day in the
so-called murabbct?

In CH, § 6 we saw that the receiver of stolen
property was, like the thief, condemned to death,
and it now remains to glance at a small series of
laws which deal more closely with him. If a man
lost something of his and it was found in the hands
of another, the accused could defend himself by
saying " a seller sold it to me, before witnesses I
bought it " ; and the owner of the lost object could
say, " I can bring witnesses who know my lost

1 Wildeboer suggests that it has arisen from the "twofold" of
Ex. 224 with the addition of the " fivefold " of v. i ; but it is more
probable that it is used as a round number (cp. Gen. 4 24 ; so also
Frankenberg, Toy).

2 Naturally, the passage, whatever be its date, is not evidence of
the existence of written laws.

3 Jaussen (Revue Biblique, 1901, p. 600), observes that among the
modern Bedouin the stolen animal must be restored with three more
of the kind. As mares are more valuable, and less easily obtainable,
the stolen animal in this case must be restored together with a pecuniary
compensation. The fourfold restitution is familiar in Roman law,
and in the Syro-Roman law-book it is the penalty for men or women
who receive stolen goods from slaves (Bruns and Sachau, op. cit. § 79).

CHAP, ix TRADE AND COMMERCE 217

property " (mu-di hu-ul-ki-ya-mi\ The accused
brings both the man from whom he bought the lost
article and the witnesses to the purchase, and the
former owner brings his witnesses, and the judge
examines their evidence.1 The witnesses of the
purchase on the one side, and of the stolen property
on the other, declare all they know " before God,"
and the judge gives his decision. If the seller has
been the thief he is put to death, the former owner
receives his property, and the accused recovers from
the seller's house the money he had paid (§ 9).
Should the buyer, the accused person, be unable to
produce either the giver or the witnesses, whilst the
owner on his side has produced his witnesses, the
buyer is the thief and he is put to death, and the
owner takes back his property (§ 10). On the other
hand, if the owner cannot produce the men who can
testify to his property, for his malevolence and for
his attempted calumniation he is put to death (§ 1 1).2
This is followed by a rather obscure law whereby if
the seller has gone to his fate, the buyer takes from
his house fivefold " as the penalty of that case "
(ru-gu-um-me-e di-nim su-a-ti; § 12). The natural
presumption is that the buyer restores the property
to its rightful owner, but it is difficult to see why he
is entitled to recover so much, unless it be that the

) written evidence ; cp. Meissner's note, Beitr. altbab.
Privatrecht, p. 121.

2 Cp. the Laws of Manu, 9 31 sq.t where the owner must carefully
describe his lost property, and if he be suspected of making a false
accusation, he is liable to be fined a sum of equal value.

218 THE LAWS OF MOSES CHAP, ix

seller's death had placed upon him the onus of
proving his innocence. Finally, if the buyer has
not been able to produce his witnesses the judge
may adjourn the case not longer than six months,1
and if the buyer is still unsuccessful, his word is
disbelieved and he must bear the punishment (§ 13).

This group of laws, by reason of its completeness
and fulness of detail, throws considerable light upon
ancient Babylonian procedure. The opening words
of the first law (§ 9) lead to the inference that
house to house search was allowed (cp. § 16), and a
contract of the nineteenth year of Darius actually
illustrates such a practice. The temple of Sam;
was robbed of some wool, and Bil-iddanu, th<
guardian, in whose care it had been placed, obtaine<
permission to search every house. The suppose*
missing property was found in the house of a certaii
man, but as he was able to declare his innocence b]
proving that he had bought it in the presence oi
witnesses he was released.2

According to the old Hebrew law relating to lost
property found in the hands of another (Ex. 22 9), ii
every case where a man says "this is it," th<
accuser and the accused come "before God," anc
the one whom God condemns (after an oath 01
ordeal) pays double to his neighbour. The accused,
if guilty, makes the usual twofold restitution, the
accuser, for his false charge, pays twice the value of

1 According to the Laws of Manu (8 58, cp. 107) the defendant is
allowed three fortnights.

2 Kohler and Peiser, Babyl Rechtsl. 4 87.

CHAP, ix TRADE AND COMMERCE 219

the property as compensation.1 Any one who found
lost property was exhorted to return it, or, if he did
not know its owner, to keep it by him until it was
claimed. The owner might be expected to publish
his loss, and the finder was urged not to keep the
matter hid (Deut. 22 1-3 ; cp. Ex. 23 4). It was a
common custom for a man who had been robbed to
solemnly adjure any one who had knowledge of the
offence, and the offender in particular, to come
forward,2 and the Levitical law (Lev. 5 i), in touch
with the morality of Proverbs 29 24, requires the
man who has heard the voice of adjuration to make
known what he has seen and heard. The finder,
according to Josephus (Ant. iv. 8 29), may keep
what he has found if the owner cannot be dis-
covered, but must testify before God that he has
not purloined it. The Levitical code (6 1-7) requires
the man who has dealt falsely in the matter of a lost
thing (abedati), and has sworn a lie, to restore it in
full with the addition of a fifth part thereof, and to
make a guilt offering.3

The laws in the Code relating to property in
the hands of another, whether hireling, hirer, or
borrower, are characterised by the care taken to en-
sure its safety, and supplementing what has been
said above in chap. vii. (pp. 175 sqq.) of agricultural

1 The law is a general parenthetical case which does not appear
to come under the head of deposits. See below, p. 226, n. 3.

2 Cp. Judges 172; Zech. 5 3 ; Wellhausen, Arab. Held.® p. 192.

3 See further Num. 5 5-8, and cp. the Mohammedan laws (Kohler,
Rechtsvergleich. Stud. p. 74).

220 THE LAWS OF MOSES CHAP, ix

labourers, we may commence with the responsibilities
of the boatman. The boat-owner lets out on hire
three kinds of boats, for which he charges three $E of
silver, two and a half $E and one-sixth of a shekel a
day respectively (§§ 275-277). The last is called a
ship (elippu) of sixty GUR ; the second, ma-hi-ir-
turn, a fast sailer (Scheil, Johns), or rowing vessel
(Winckler), is evidently a small craft since its hire
is the smallest,1 and the kind of boat intended by
the first law is unknown owing to a lacuna. The
boatman (malaku) who navigates2 a ship of sixty
GUR is to be paid two shekels of silver for his fee
(a-na ki-is-ti-su ; \ 234). If he has not made it
strong, and it is damaged within the year, the boat-
man must exchange the vessel for another and give
the purchaser a strong one in its place (§ 23 5 ).3

If a boatman hires a vessel and through his
negligence it is damaged or lost,4 he must give the

1 Possibly the circular kufa made of rushes is intended ; the larger
boat may correspond to the modern kellek (cp. Lehmann, Babyloniens
Kulturmission, p. 63 sq.).

2 ip-hi; Scheil " calks " (calfater) ; Winckler renders the word
by "build."

3 The renderings differ. Winckler understands that the builder
must break up (i-na-kar-ma) the damaged vessel and build a new
one at his own expense. According to Scheil, the vessel is exchanged,
the builder repairs it at his own cost, and returns the repaired ship
to the owner ; finally, Johns takes it to mean (a) exchange (b) or
repair, and (c) a strong ship must be given to the owner. In a
contract of the twenty-sixth year of Darius we find the boat-builder
responsible for the management (?) of the ship which he has sold
(Sayce, op. cit. p. 185).

4 ut-te-bi u lu uh-ta-al-li-ik) " has grounded ... or has caused it
to be lost " (Johns).

CHAP, ix TRADE AND COMMERCE 221

owner another vessel (§ 236). If a boatman has
been hired to convey a cargo of corn, wool, oil,
dates, etc., and the vessel is lost through his
negligence, he must make good the vessel and all
that was in it (§ 237). If he has damaged it or run
it ashore, and has succeeded in refloating it, he
must pay half its price (§ 238). Presumably he was
ordered to make good the damage to a sum not
exceeding half its value, and, as his hire is fixed by
the Code at six GUR of corn a year (§ 239), the
owner could probably make him a slave in default.
One other law relating to boats comes under con-
sideration. The ship that runs down another at
anchor1 and sinks her is held responsible for the
loss, and the owner of the latter declares upon oath
(lit. " before God") what has been lost, and the
owner of the former must make complete reparation
(§ 240).

The extent to which the rivers and canals in
Babylonia were used for trading purposes, and the
frequent allusions to cargo -boats in Hammurabi's
letters and in later contracts,2 sufficiently explain
the insertion of the above laws in the Code of
Hammurabi. Outside Babylonia, the only other
Semitic race who would be likely to frame laws of

1 So Johns ; but it is possible that elippu sa ma-ht-tr-\tim~\ and
elippu sa mu-\iik~\-ki-el~bi-tim represent two distinct kinds of vessels.

2 King, Letters, pp. 61-67, 84, 121 sgg., 156; from p. 61 it may
perhaps be inferred that the captain made an inventory of his cargo
before starting on his journey. Other interesting details, chiefly from
later times, are given by Sayce, op. cit. pp. 183-186.

222 THE LAWS OF MOSES CHAP, ix

this nature were the Phoenicians,1 and of their laws
we are entirely ignorant. Even in the Talmudical
legislation marine insurance is almost unknown, and
the only notice is to the effect that ship-owners may
agree that if a man's vessel is lost they will give
him another, provided the loss did not arise through
any fault of his, or that he had not deviated from
his proper course.2

If a man hired (i-gur-ma) an ox or sheep and it
died through ill-usage or blows, ox for ox must be
returned to the owner (§ 245), and the same rule
applies also if the hirer severely injured it, either by
crushing its foot, or by cutting its nape (§ 246).
For destroying an eye the hirer paid half its price
(§ 247) ; for breaking its horn, cutting its tail, or
injuring its muzzle, one-quarter must be paid (§ 248).
If a lion killed it in the open field (si-ri-im) the loss
fell on the owner (§ 244), and if "God has smitten
it " (i-lum im-ha-zu-ma) and it died, the hirer swore
before God and was acquitted (§ 249).3

In Hebrew law the subject of injured animalsps
dealt with under four heads, (a) Injury to one
animal by another is compensated in a rough and
ready manner by dividing the carcase of the injured
animal and by selling the live one and sharing the

1 Even the Assyrians of the time of Sennacherib had recourse to
the Phoenicians (Sayce, p. 183 ; Canney, EBi. " Ship," § 4) ; for the
Israelites, see G. A. Smith, EBi. "Trade and Commerce," § 45.

2 Jewish Encyclopedia^ 4 194*2, from a commentary on Baba
Kamma, f. 1 1 6b.

3 Cp. § 266, p. 175 above.

CHAP, ix TRADE AND COMMERCE 223

proceeds (Ex. 21 35). It is the custom that holds
good even at the present day,1 although the post-
biblical legislation clearly recognised the injustice
that might arise in those cases where the injuring
animal was of little value (e.g. a goat) compared with
the one injured. If the ox was known to gore
(naggati) — the vicious ox is the typical animal
throughout — and the owner had not kept it under
restraint, he must pay ox for ox, and the dead beast
becomes his (v. 36). Similarly, (b) if a man left a pit
uncovered and an ox or ass fell into it and was
killed, the owner of the pit must make restitution
(yesallem, vv. 33-340), or, as the law proceeds to state
with greater explicitness, he must make pecuniary
compensation to the owner of the dead beast which
now becomes his (v. 34^). The amount would of
course be based upon the value of the live animal.
Curiously enough, neither of these laws finds a place
in the Code of Hammurabi ; it is possible that they
were too firmly established by customary usage to
require to be mentioned specially, (c) The Hebrew
customs relating to animals in the care of the shep-
herd or hireling have already been noticed in chap,
vii. (pp. 176 sg.\ and, as we have seen, the legal
principle qui facit per alium facit per se is not in
accordance with Semitic views, (d) When borrowed
animals are hurt (nisbar) or die in the absence of
the owner, compensation must be made ; the owner's
presence is a sufficient guarantee that his beasts
suffer no intentional or negligent injury (Ex. 22 14,

1 Doughty, Ar. Des. 1 351.

224 THE LAWS OF MOSES CHAP, ix

150). Later Jewish law understood by the words
"if the owner be with it," that the beast was
borrowed with his consent, and deals at greater
length with the contingencies that might arise. If
the animal, whether hired or borrowed, died in the
course of its accustomed work, there was no responsi-
bility unless the animal was overdriven. But com-
pensation had to be made if through the negligence
of the hirer or borrower the beast became thin or
ill-conditioned.1

It now remains to notice the provision relating
to the saklr appended to (d) : " if it (he) be a hired
thing (hireling) it is reckoned in its (his) hire "
(v. i5<5). Whatever rendering of saklr is adopted,
the hire is obviously an inadequate compensation
for a dead ox, and the true meaning of the enact-
ment is disputed. According to later Jewish law,
the borrower usually has the entire responsibility,
and since the hireling, too, was only acquitted when
his master's possession suffered injury from irresis-
tible causes, it would appear to be the general rule
that the beast which died from negligence or care-
lessness would have to be replaced. The most
probable conclusion, therefore, is that the above
words refer solely to the injured beast (as in CH,
§§ 246-248), the compensation for which would
naturally be smaller and more easily recoverable.

1 Jewish Encyclopedia, \ i6i£, 2 456^. Starting from the words
" if the owner was with it," the Jewish law of later ages held that if
an unmarried woman borrowed something, and afterwards married
without telling her husband, he could not be responsible (Maimo-
nides ; see Jewish Encyclopaedia, 2 4570).

CHAP, ix TRADE AND COMMERCE 225

The next group of Babylonian laws to be |
noticed deals with deposits. When a man puts
silver, gold, or anything else on deposit (ma-sa-ru-
tim) this must be done before witnesses and secured
by a contract (§ 122), and if the depositor was a
minor or servant, the failure to perform the trans-
action in the required legal manner stamped the
depositee as a thief and brought with it the death
penalty (§ 7). If any transaction has been made
without these requirements and dispute arises, there
is no legal redress (ru-gu-um-ma-am u-ul i-su ;
§ 123). The Talmudic rule is also against taking
deposits from women, slaves, and minors, the
presumption being that they are not the real
owners.1 In any dispute the depositee is brought
to account and must return the deposit (double?
§ I24);2 apparently this deals with the case where
the depositary disclaims the deposit.

If a man stores corn in the granary (ga-ri-tim)
of another — and the price is fixed at five KA for each
GUR of corn per annum (§ I2i)8 — and some accident
takes place,4 or the owner removes some of the corn,
or there is a dispute as to the amount of the corn,

1 Tosefta, 1 1 ; Gemara on Baba Kamma^ 9 7 (cp. generally B. Mes. 3).

2 us-ta-sa-na-ma i-na-ad-di-in here and in § 125 sq.^ perhaps
rather " pay double and return " ; the penalty is double the amount
of the deposit (Joh. Jeremias, Moses u. Hamm. p. 7, and n. i).

3 I.e. one-sixtieth (300 KA to the GUR}.

4 The ravages of mice not excluded (cp. Burckhardt, Ar. Prov.{^
no. 177). Post-biblical law required allowance to be made for loss
of stored grain through mice (Vogelstein, Landwirtschaft in Palds-
tina, 1 73 [i 894]).

226 THE LAWS OF MOSES CHAP, ix

the depositor, the owner of the corn (be-el $ei),
declares the amount of his corn "before God," and
the owner of the house (de-el blti) must restore
(double?) the missing corn (§ 120). If a man put
anything on deposit, and through burglary (bi-il-si-
im) or sedition (na-ba-al-ka-at-tim) some of his
property, together with that of the owner of the
house (be-el blti\ is lost, the latter must return it
(? double) to the depositor and recover the goods
from the thief (§ 125). The man who alleges that
part of his deposit has been lost, or exaggerates the
amount, is put on oath " before God," and he (the
depositee ?) must replace (? double) the loss (§ 126).
The meaning is obscure, and it is not absolutely
certain that it belongs to the law of deposits.1 It
might seem that it was entirely to the advantage of
any dishonest depositor, but since the latter is put
upon his oath the possibility of false swearing is
remote.2 The law, like § 120, is practically covered
by § 122 sq., and it is conceivable that both §§ 120
and 126 are survivals of earlier customs.

Old Hebrew law in such a case as § 125 required
the thief, if found, to pay double, otherwise the
owner of the house (bctal hab-bayitK) must go
" unto God " (el ha-elohlm) and swear that he has
not touched his neighbour's goods (Ex. 22 7 sg.)*

1 It comes at the end of the group and is immediately followed
by laws dealing with slander and adultery.

2 Cp. p. 63 above, and n. i, on the inviolability of the oath.

3 Ex. 22 9 [8], on the other hand, appears to relate to lost or
stolen property; see above, p. 218. If, nevertheless, it actually
belongs to the law of deposit, it may be compared with CH, § 124 ;

CHAP, ix TRADE AND COMMERCE 227

By the Levitical code, the depositee who deals
falsely in the matter of a deposit must restore in
full, together with one-fifth of the amount, and offer
a guilt-offering (Lev. 6 1-7). In Talmudic times,
the depositee who declares that the deposit is lost
may be required to take an oath, and if he assents
(by using the formula " Amen "), and it is found
that he has put it to his own use, he simply pays it
back in full ; but if he alleges that it has been stolen
by another, and it is proved that he himself has
stolen it, he pays back double.1 That, according to
the Code of Hammurabi, the depositee should be
called upon to make good the deposit when the loss
has not occurred through any negligence of his
(§ 125) is a harsh rule; the Laws of Manu (8189),
it will be remembered, acquit the bailee, provided he
has not taken any part of it to himself, and even the
Syro-Roman law-book (op. cit. pp. 40, 150) frees
him in cases of fire or brigandage. Some Hebrew
laws which would cover cases of deposit have been
dealt with above (pp. 177 sqq.\ but their comparative
simplicity will not pass unnoticed. At the present
day, among the Bedouin, the customary usages are
even simpler ; deposits are actually made without
witnesses ; they are preserved by the receiver as a
sacred trust, and may be laid up in order to be
restored to the heirs.2

in spite of the similar penalty in both, the procedure, it will be
noticed, is different.

1 Baba Kamma, 9 7.

2 Cp. Doughty, Ar. Des. 1 176, 280, 2 301, and the analogy in the
Levitical law, Num. 5 8.

228 THE LAWS OF MOSES CHAP, ix

Money matters in Babylonia were regulated with
the greatest precision. The money-lenders were
frequently priests or, more especially, priestesses
who used the temple -revenue.1 Coin itself was
scarce, and both principal and interest were often
paid in kind. The rate of interest varied ; sometimes
it was as high as twenty pef "cent per annum, and
in one case — from the New Babylonian period-
money was lent without interest, the only stipulation
being that it should be repaid when the borrowers
were in better circumstances.2

The laws in the Code relating to debt are marked
; by a conspicuous humanity towards the debtor. As
regards the responsibility of the wife for the debts
of her husband and vice versd^ two statutes are
framed which have the merit of being extremely
just. If a woman (zinnistu) is living in a man's
house, and her husband has bound himself that no
creditor (be-el hu-bu-ul-lim)* of his may seize her,
and has drawn up a deed (to this effect), she can-
not be held responsible, and is safe, provided the
debt was contracted before the marriage (§ 151).*

1 In the Code the money-lender is always called the merchant
(damgaru, i.q. Aram, taggar).

2 See generally Sayce, op. tit. chap, vii., and the numerous con-
tracts, especially in KB 4.

8 Lit. owner (holder) of a pledge or debt ; as opposed to mare
ha-ab-lum, debtors (King, Letters, no. x. p. 27 ; cp. ib. p. 24, note).

4 C. F. Lehmann (Babyloniens Kultur mission, Leipzig, 1903,
p. 54 sq.} suspects that the law is a modification of older usage
whereby the wife might be held responsible for all the husband's
debts ; cp. CH, § 1 17. For a law in later Jewish times, see above,
p. 224, n. i.

CHAP, ix TRADE AND COMMERCE 229

Similarly, the husband cannot be taken by his
wife's creditor if she had contracted a debt before
he took her (ib.). On the other hand, they share
the responsibility if they have run into debt since
"the woman came to (i-ru-bu) the man's house,"
and both of them must answer (apalu, § 152).

If a man contracted a debt (e-hi-il-tiim is-ba-zu-
mu) and sold his wife, son, or daughter, or gave
them over to work it off (a-na ki-is-sa-a-tim it-ta-an-
di-in), for three years they work in the house of
their buyer or exploiter (ka-H-si-su-nu} and in the
fourth year he (the latter ?) shall restore them to
their former condition 1 (§ 1 1 7). The male or
female slave handed over for a similar purpose
passed entirely out of his hands (§ 118), but if it
was a female slave who had been a concubine he
was obliged to redeem her (i-pa-dar) at the price he
had received (§ ii9).2

The creditor was not allowed to abuse his powers.
The man who took an ox on distraint (a-na ni-bu-tim
it-te-bi} 3 was condemned to pay one-third of a mina
of silver (§ 241), and he who unlawfully distrained
the corn of another was liable to the same penalty
for each offence (§ 114). Even if a man owed corn
or money, and the creditor, without (the consent of)
its owner, removed corn, he was to be put to judg-

1 dura™, cp. p. 159, n. i, freedom from service; cp. Heb. deror,
used of the liberty of the Sabbatical year for captives or men enslaved
through debt, and for the return of property to its original owner
(Lev. 25 10, Is. 61 i, Jer. 34 8, 15, 17, Ezek. 46 17).

2 Cp. above, p. 161.

3 nibutim, one taken away by force (nabil, to seize).

230 THE LAWS OF MOSES CHAP, ix

ment, and was compelled to restore all that he had
taken, and whatsoever he had given (i.e. the amount
of the debt) he forfeited (§ 113). If the creditor
had levied a distraint, and the distrainee died in his
house by a natural death (i-na si-ma-ti-sa im-tu-uf),
no claim could be made (§ 115); but if he died by
rough usage, the owner had a claim upon the dis-
trainer, and if it was the son of a free -man the
distrainer's son was put to death, or if a slave, one-
third of a mina of silver was paid as compensation ;
in either case the distrainer also forfeited the debt

(§»6>

The man who had a debt (hu-bu-ul-luni) upon

him, and lost the produce of his field by a storm (ilu
Adad) or through drought, was freed from paying
his creditor for the current year, his contract was
altered,1 and no interest (si- ib- turn) was due from
him (§ 48).

A law which probably once found a place in the
Code (in the lacuna between §§ 65 and 100), but is
now only known from later fragments, allows the
man who owes corn or silver but has not the where-
withal to pay, to produce his goods before witnesses
and to give them to the merchant for the debt, and

1 dup-pa-su u-ra-ad-da-ab) properly, his tablet is wiped out.
Strictly speaking, the tablet that was cancelled was broken in pieces
(§ 37), and Winckler suggests that the phrase in the above law is
symbolical of the cause which made it impossible for the debtor to
fulfil his contract. In the Syro- Roman law-book no allowance is
made for variation in the price of corn, etc., owing to an unfruitful
year, when the debt is in kind, unless provision had been made for it
in the contract (Bruns and Sachau, op. tit. p. 73, § 82).

CHAP, ix TRADE AND COMMERCE 231

the merchant must take them, doubtless at the
valuation which the witnesses had made.1 From
another missing law,2 it appears that a debtor could
not give his merchant a garden of dates for his debt,
but must pay the money and its interest from the
produce according to the wording of his contract.
The surplus of the dates naturally belongs to the
owner, and the law is presumably intended to pre-
vent the alienation of landed estate. A small
series of laws in the Code deal more closely with
securities for debts. According to § 49 a debtor
might hand over a field to be planted with corn or
sesame and require the merchant to cultivate it and
take to himself the produce. The field is thus
security for the debt, and at harvest-time the debtor
repays the merchant in corn or sesame for the money
and its interest, and pays an additional sum for the
expenses of the cultivator (ma-na-ha-at e-ri-si-im).
If the cultivator neglects the field and fails to grow
corn or sesame, the debtor's contract is not annulled
(§ 52) — that is to sav> neither the creditor nor the
debtor suffer in any way through his failure to per-
form his duty. If the field was already cultivated,
only the amount of the debt and its interest was to
be returned to the merchant, naturally there was
no need to make any additional payment for the
expenses incurred by the creditor in cultivating it
(§ 50). If the debtor is unable to repay in money,
the sesame (or corn) is valued according to the tariff

1 Scheil, p. 52 ; Winckler, p. 19 (c] ; Johns, p. 59 (z).

2 Scheil, p. 49 ; Winckler, p. 18 (a) ; Johns, p. 58 (x).

232 THE LAWS OF MOSES CHAP, ix

of the king (a-na pi si-im-da-at sar-ri-im) and given
to the merchant (§ 51).

The debts, it will be observed, are mostly for
money lent; the repayments are in kind. Money
does not appear to be in universal use, a state of
conditions which reminds us of the society reflected
in the Book of the Covenant. The debts are
usually repaid at harvest-time l and the creditor not
unfrequently holds prior right to the first-fruits.
The creditor cannot legally take a man's garden or
field for a debt, but he may hold it as security, and
as long as the debt is unpaid he remains in posses-
sion of it.2 Forcible seizure was not tolerated, and a
letter of Hammurabi shows the king intervening in
a case where a money-lender had taken the land and
crops of his debtor Lalum. The latter's right to
possession is proved by a tablet in the palace which
ascribes to him two 6^;vof land,3 and the king orders
an investigation to be made, and if the money-lender
took it on pledge (ik-bu-n[_l§, Lalum's pledge is to
be restored and the money-lender punished.4
• Money matters in early Israel were on a simpler
I scale, and the laws, few as they are, regard the

1 So also in later Babylonia when money was more generally used,
a survival of earlier times. Payment at harvest-time is still required
(Doughty, Ar. Des. 2 113).

2 CH, §§ 49 sqq. ; cp. Meissner, op. cit. p. 9. 183.

3 For the tabulation of land in registers, cp. above, p.

4 King, Letters, no. ix. p. 24 sq. Lalum is an official (KADUR\
and it is conceivable that his case would come under the laws relating
to the gangers (cp. CH, § 38, and above, p. 184 sqq.~). In no. x. there
is another case of the illegal detention of property by a money-lender.

CHAP, ix TRADE AND COMMERCE 233

debtor as the victim of misfortune and one who was
not to be treated oppressively. In spite of this
humane ideal the sale of defaulters was customary
even in Elisha's time (2 Kings 4 i), and fugitives
were doubtless numerous at all periods (cp. I Sam.
222). Under the Book of the Covenant the debtor
would be released in the seventh year (contrast CH,
§ 117 above), and the Deuteronomic code goes
further, and remits the debt at the same time (Deut.
15).1 The statute was naturally impracticable in
real life (cp. Jer. 34s sqq.\ and was replaced in the
post- exilic legislation by the institution of the
"Jubilee" (Lev. 25 35 sqq)? As is also the case
among the Bedouin of the present day,3 no usury was
to be taken by an Israelite from his countryman
(Ex. 22 25-27) ; the gratitude of the needy debtor,
explains Josephus (Ant. iv. 8 25 sq.), should be a
sufficient reward.4

1 The law is more ideal than practical, and the modern view
that the debt was merely suspended for one year (cp. CH, § 48) has
certainly inherent probability in its favour ; cp. the discussion of the
question in Driver, Deut. pp. 178 sqq. At all events we read of a
complete remission of debts in the time of Nehemiah (chap. 5 ; on
v. ii see Bertholet, ad loc.y and Buhl, op. cit. p. 102).

2 Cf. Benzinger, EBi. "Law and Justice," § 16, and " Jubilee."
In Egypt bodily distraint was forbidden under the code of Bocchoris
(Diod. 1 79).

3 Doughty, Ar. Des. 1 318.

4 Of the two words for interest, tarblth is the natural increase
whilst ntsek (lit. bitten off) might suggest an unfair additional
imposition (cp. Syr. tarbttha and tuka\ Buhl (Socialen Verhdltnisse d.
Israeliten, p. 98, n. 2) suggests that the latter is the discount upon the
money lent, " bitten out " of the principal ; this is supported by the
etymology of the Syr. term kesasa.

234 THE LAWS OF MOSES CHAP, ix

The creditor who ensured the repayment of a
debt by demanding a pledge1 must not abuse his
power. The laws attached to the Book of the
Covenant required the pledge, if a garment, to be
returned at nightfall (Ex. 2226^.; cp. Prov. 20 16,
27 13). The Deuteronomic code not only requires
the garment to be given back to the needy debtor
at night, but also forbids the mill for grinding the
daily corn to be taken as a pledge (Deut. 246, 12 sq. 17).
In all probability these are typical, and the code
understands therein all that serves for the preparation
of food or for the protection of the body.2 Common
custom had doubtless agreed what things it was
proper for the creditor to take, but usage had not
the authority of law, and whilst in Israel the
complaint was that the iniquitous "drive away the
orphan's ass," and "take the widow's ox for a
pledge " (Job 24 3), the Code of Hammurabi tersely
and pointedly orders that " if a man has distrained
an ox he shall pay one-third of a mina of silver"
(§ 241). Deut. 24io^. enacts further that the
creditor must not enter the debtor's house to take
his pledge ; presumably, therefore, he was also
obliged to accept whatever was offered.3 Land was

, Gen. 8817-20, the Canaanite term ; cd£d/(Deut 24 12 sq.)
may be of Aramaic origin (Wellhausen, Kleinen Prophelen, p. 168 sq.},
in which case it may be ultimately derived from Ass. sibittu. habal
perhaps means primarily to seize a personal object by force (cp. Buhl,
I.e. and Amer. Journ. of Theol. 1 728 sqq.\ and later, to pledge
(? through Assyrian influence).

2 Cp. Mishnah, Baba Mes. 9 ; Bruns and Sachau, pp. 34 (§ 112),
281 sq. 8 Cp., perhaps, the Babylonian law cited above, p. 230 sq.

CHAP, ix TRADE AND COMMERCE 235

also given as security, and the creditor probably had
the usufruct until the debt was paid, and with
rapacious creditors the unfortunate defaulters speedily
lost possession of their estates (Job 20 19, Neh. 5 ; cp.
Gen. 47). Securityship was common enough in late
times, to judge by the warnings in the Wisdom
Literature (Prov. 6 1-5, 11 15, 17 18, etc.), but it is
noteworthy that it does not appear to have been
based upon a written contract but was entered upon
by the striking of the hands.1 Finally, imprisonment
for debt was not a native institution but probably of
Roman origin (Matt. 625 sg.)2

The more prominent part taken by Israelites
in trade and commerce at a later day finds an
illustration in a recently edited Aramaic papyrus from
South Egypt, containing a legal document probably
of the Persian age.3 It relates to a debt, and from
the character of the names it is inferred that the
creditor is a Jewish banker or money-lender. The
interest is at the rate of two h-l-r per s-z per month,
and if not paid punctually, it was to be added to the
principal and both were to bear interest. A n-b-z
(receipt ?) was to be written out for all money and
interest received, and if the debt was not paid off by
a certain date, the debtor was to be held liable to
double the amount. Whether s-z is the Babylonian

1 Cp. above, p. 209.

2 In Arabia also it was due to foreign origin. — G. Jacob, Leben
vorislam. Beduinen, p. 165 (Berlin, 1895).

3 A. E. Cowley, Proceedings Soc. BibL Arch. 1903, pp. 202-208 ;
G. A. Cooke, North Semitic Inscriptions, pp. 404-407 (Oxford, 1903).

236 THE LAWS OF MOSES CHAP, ix

soss, and h-l-r the Babylonian kalluru,1 is uncertain,
and the correct meaning of n-b-z is quite obscure ;
at all events, it is worth noticing that the terms for
" principal" and " interest" are Canaanite.2

Money matters are naturally treated with greater
fulness in the legislation of the Mishna and the
Talmud, and, still later, in the Syro- Roman law-
I book. The last-mentioned has preserved a statute
of Babylonian origin, though with Roman analogies,
which is interesting enough to be quoted in full.8
" If a man give another a piece of land as a
pledge, and it is agreed that the lender shall take
the produce in return for the interest (Syr. rebbltha)
of his money, it is legitimate ; if a man give an ass or
mare as a pledge, the lender may agree with the
borrower that the animal may be worked for the
interest, but the young ones that are born belong to
the owner of the pledge ; if a man give a flock of
sheep or goats for a pledge, and it is agreed that the
produce of the flock shall be for interest, it is
legitimate ; the wool is for interest, the young ones
for the hire and maintenance of the hireling and the
sheep-dogs. The increase of the flock makes up for
those which die, and the number thereof remains for
the owner ; so, if a man gives his companion a
maid-servant for a pledge and there is a vo/j^j that
she shall work for him, this shall be in place of the
interest of the money which her master borrowed.

1 halluru (kaspi), some small amount : so Muss-Arnolt.

2 Viz. r--s, and m-r-b-th.
3 See Bruns and Sachau, op. tit. pp. 29 (§ 99), 274.

CHAP, ix TRADE AND COMMERCE 237

But if there shall be children to her, they are to be
her master's who borrowed (the loan). For a human
being is not like the earth, for the grace of God
causes fruits to spring forth from the earth for the
sake of mankind generally." The principle of the \
antichretic pledge was too familiar in Babylonia,
especially in the New Empire,1 to render it necessary [
to assume that the law was introduced from Rome. /

It is not until a comparatively late period that the
Israelites appear to have emulated the Phoenicians
by undertaking journeys for business purposes (Prov.
7 19 sq.j Tob. 9 2, Matt. 13 45), a striking contrast
to Babylonia,2 where the laws of the relations
between merchants and their agents presuppose the
long existence of trading by caravans or " travellers."
The agent3 takes with him money, for which he
must be security ; he must agree not to act on behalf

1 Cp. Kohler and Peiser, Bab. Rechtsleben, 1 15 (1890), and Kohler,
Beit. z. Assyr. 4427. (In Cyrus, no. 252, two slaves form the pledge ;
their labour pays for the interest, and their persons are security for
the debt.)

2 The Canaanite term is soker (Heb. and Punic), a trader or
merchant (e/xTropos), as contrasted with the moker^ seller (7rwA?/s) ;
cp. G. A. Smith, EBi. col. 5194 (b. i.) ; Clermont-Ganneau, Recueil
d? Archtologie Orient. 5 316 (1903). A more specific term is
sursur (pronunc. uncertain), upon a Phoenician inscription from
Citium, of the fourth century B.C., wherein we find a "chief of
the brokers," whose office was hereditary ; see G. A. Cooke, North
Semitic Inscriptions •, p. 70 sq.

8 SAGAN-LAL, explained elsewhere by nas $u sa abni, "he who
carries the bag (ktsu) of stones " (cp. Heb. use of kis and abanlm).
The ideogram is to be read samallu^ sawallil^ and appears to be the
Talm. and Mand. sewalya, " pupil," etc. (Beitr. z. Assyr. 4 83).

238 THE LAWS OF MOSES CHAP, ix

of any other merchant, and all profits are to be
shared according to the bonds.1 The laws in the
Code are incomplete owing to the erasure, and the
commencement of the first is missing. The agent
or trader is answerable to the merchant (dam-gar)
for the money he takes with him on his journeys
and the interest thereof (§ 100), and if in the course
of his travelling he has found no luck, he must pay
back the amount borrowed (§ 101). If the merchant
gave him money as a favour (? a-na ta-ad-mi-ik-tim),
and the agent suffers loss (bi-ti-ik-tum) in his journey,
he must return the sum (ga-ga-ad) to the merchant
(§ 102). The last-mentioned law presupposes actual
loss in the transaction, and the agent is therefore
bound to return the bonus which he had received,
together with the capital.2 The agent who is robbed
on the road (har-ra-nam) by an enemy can swear
(his innocency) by the name of God (ni-i$ i-lim i-za-
kar-ma), and goes free (§ 103). On the other hand,
when the merchant gives the agent corn, wool, oil,
or any other thing to sell, the agent must draw up
an invoice and hand it over to the merchant, and
take from the latter a receipt (ka-ni-ik kaspi ; § 104
sq)? If the agent receives money from the mer-
chant, and the latter disputes (the amount ?), the
merchant puts the agent to account before God and

1 Kohler and Peiser, Bab. Rechtsleben, 3 47.

2 That this is the true meaning of the law is not certain.

3 It is not clear what happens when the agent neglects to take a
receipt (§ 105) : a-na ni-ik-ka-az-zi-im u-ul is-sa-ak-ka-in, — according
to Johns, " he shall not put in his accounts."

CHAP, ix TRADE AND COMMERCE 239

witnesses, and the agent pays the money threefold
(§ 1 06). The merchant who wrongs an agent, and
disputes with him the amount he has received, is
dealt with in a similar manner and is condemned
to pay sixfold (§ 107). The double penalty is in
accordance with the graduated system of punish-
ment which prevails throughout the Code. It is
not easy to see how disputes could arise, when,
according to § 104 sq., the agent must give the
merchant a receipt, unless perhaps the last -men-
tioned laws are new.1 Finally, if the merchant is
away on a journey, and sends silver, gold, precious
stones, or " treasure of his hand " 2 by transport and
the carrier keeps them, he is put to account and is
ordered to return fivefold to the owner (§ 112).

According to the Talmudical law, all benefits
resulting from the execution of agency are shared
between the principal and the agent, and the latter
is responsible for damages and loss, except in the
case of vis major? In the Syro- Roman law-book,
on the other hand, it is laid down that if the agent
and the principal agree to share the profits equally,
the agent's responsibility, in case of loss, extends
only to half the amount received.4

1 The verbal evidence "before God" in § 106 sq., as opposed to
§ 104 sg., suggests that there is no written evidence.

2 bi-is ga-ti-su, i.e. a personal ornament.

3 L. M. Simmons, " Talmudical Law of Agency," Jewish Quarterly
Review, 8 614-631 (1896); for an abstract of the Mohammedan
principles, see Kohler, Rechtsvergleich. Stud. pp. 81 sqq.

4 Bruns and Sachau, op. cit. p. 73 (§ 82).

CHAPTER X

PROTECTION OF THE PERSON

The king — Kidnapping — Witchcraft and sorcery — Responsibilities of
the builder — Of the doctor and veterinary — Traces in Syrian
law — Principles of the jus talionis — Modifications — Assaults
upon men — Assaults upon women — Manslaughter and murder
— The unknown murderer — E volution of the talio — Stage reached
by the Code of Hammurabi — Individual responsibility.

A NUMBER of laws relating to damages of various kinds
have come up for notice in the course of the preced-
ing pages, and) it now remains to undertake a general
survey of the various methods by which the safety
of the person was secured. We shall find that the
Code of Hammurabi is particularly rich in this
respect, and that some extremely minute precau-
tions were taken to fix the responsibility for accident
or loss of life upon the guilty party. The king's
safety is secured in the well-being of his subjects,
but there is one statute which may probably be
regarded as aimed against high treason. The
taverns, as we have seen, were kept by women,
and evidently were not regarded as places to which
respectable people would resort (above, p. 150), and

240

CHAP, x PROTECTION OF THE PERSON 241

the Code orders that if rebels (sa-ar-ru-tim) have
collected in her house, the wine-seller must seize and
drive them off to the palace-guard, under fear of the
penalty of death (§ 109). Apart from this, the king
does not come under consideration, except in so far
as his interests may be said to be protected by
the laws relating to the royal messengers (pp. 184

Theft of persons, whether for enslavement or any"
other purpose, was a capital offence in Babylonia as
also in Israel.1 The Code (CH, § 14) applies the
law to the son of a freeman (mar a-wi-lim), whilst
the Book of the Covenant is wider in its scope, and,
uses the general term "man" (zs, Ex. 21 16). The
Deuteronomic code restricts the offence to Israelites
only (Deut. 24 7), a noteworthy illustration of the
changed conditions of its time. The earlier col-
lection in Exodus practically applies only to the
Hebrews, and the law therefore requires no ex-
planatory specification. By the end of the seventh
century, however, Israel's horizon had been con-
siderably extended, and dealings with foreign powers
and the growth of new conditions had made slavery
a recognised institution. The later code, realising
this, is forced to confine the prohibition to members
of the chosen race.

The man who tied a magical spell (u-ub-bi-ir-ma) }
and put a ban (ne-ir-tum) upon another and could/
not justify himself (la uk-ti-in-su) is put to death'
(§ i). If a man put a charm (ki-is-bi) upon another

1 Cp. also the Syro- Roman law-book, op. tit. p. 244 (§ 78).

242 THE LAWS OF MOSES CHAP, x

and could not justify himself the case is left for the
river-god (ilu naru) to decide. The man upon
whom the spell is cast — not the wizard — plunges
into the holy river, and if it overcomes him, the
weaver of spells takes over the victim's house, but
if the ordeal shows him to be innocent and preserves
him (is-ta-al-ma-am), the wizard is put to death and
his house is taken by the victim (§ 2).1 With these
laws the Code of Hammurabi commences, and their
prominent position is perhaps an indication of the
importance attached to them. To understand their
motive one has only to realise the prevalence of
magical practices in Babylonia. Pain, illness, and
even death itself were held to be due to the malig-
nant energy of spells worked by demons or human
beings. The latter, more commonly women, in-
flicted all kinds of ills by means of magical formulae,
by loathsome potions, or by the use of sympathetic
magic. The last-mentioned frequently took the form
of magical knot-tying, and it is possible that this is
intended in the first law (§ i). The second (§ 2)
evidently implies a more terrible form of enchant-
ment, but its precise nature can only be speculated.2
The evils which befall the unhappy victim may have
been sent as punishments for sins — whether of omis-
sion or commission, — and the lengthy list of cere-
monial and ethical transgressions preserved in a
seventh -century tablet is a striking illustration of
the advanced conceptions ruling in Assyria,3 and

1 Cp. above, p. 64. 2 Possibly a magical drug.

3 King, Babylonian Religion, pp. 218 sqq.j see below, p. 277 sq.

CHAP, x PROTECTION OF THE PERSON 243

suggests that the wizard even of Hammurabi's time
would find little difficulty in justifying his spells.

Laws directed against sorcery are general, and"
are not absent from the early Hebrew collections.
Among the exhortations accompanying the Book of
the Covenant is one aimed at the extirpation of /
witches (mekassephah ; Ex. 22 is), and the wording
("thou shalt not let live") may be taken to imply,
that the witch might be killed out of hand without
resort to judicial procedure.1 Deut. 18 10 sq. pre-
sents a full list of forbidden practices coming under
this head, and along with the sorcerer (mekasZepK)
includes the charmer, or weaver of magic spells
(hober htber). The absence of all mention of a
penalty severs the Deuteronomic code from both
Ex. 22 18 and the Law of Holiness, where stoning is
inflicted upon those who indulge in magical practices
(Lev. 2027).

That both Israel and Babylonia should have
endeavoured to protect individuals from sorcery
occasions no surprise, and the only question is to
what extent the punishments were actually put into
practice. That Saul expelled and "cut off" all
sorcerers from the land of Israel (i Sam. 283, 9, 21)
is a statement due to a writer who was at least
contemporary with, if not later than, the Book of
the Covenant. In Babylonia, too, death by burning/

1 Cp. Holzinger, ad loc. Josephus (Ant. iv. 8 34) finds in the
verse a prohibition against keeping drugs, fatal or harmful, and
assumes that the man who is caught is to be put to death and suffer
the pain he would have brought upon his victim.

244 THE LAWS OF MOSES CHAP, x

\
was regarded as the only appropriate penalty for

witchcraft, but Zimmern observes that it cannot yet
be clearly made out whether it was ever put into
effect.1 It seems certain, however, that the victim
might retaliate by burning the effigy of the witch
before the image of the deity whose help he implored;
but this is only sympathetic magic. The laws were
probably more ideal than practicable, and in spite
of condemnations magical practices were never up-
rooted in Israel but continued to flourish down to
Talmudical times.

A small group of laws relates to the responsi-
bilities of the builder (banu). Houses were let on
lease yearly or for a period of years up to eight.
They were to be kept in repair by the tenant, who
was responsible, also, for damage caused by fire or
any other accident.2 As was often the case in
paying salaries, a deposit was paid down, and the
rest became due at the expiration of the time agreed
upon. The Code of Hammurabi probably contained
a number of laws in the five erased columns applying
to tenants, but only one of them, from the time of
Asurbanipal, has been preserved complete.3 Here,
if the occupier (a-wi-lum as-6u-ta-[am]) has paid the
entire rent (kasap kisri-\_su~§ for the year, and the
owner of the house orders him to leave before the
days are fulfilled, the money which the tenant paid
him (he must restore). The tablet being imperfect,

1 Zimmern, EBi. " Magic," § 2b.

2 Sayce, op. cit. pp. 114 sqq. ; Meissner, op. tit. p. 1 1 sq.
3 Scheil, p. 51 ; Winckler, p. 18; Johns, p. 58 (Y).

CHAP, x PROTECTION OF THE PERSON 245

it is uncertain whether the landlord is required to
return the whole of the amount or only a portion
corresponding to the length of time which had still
to elapse.

For making and completing * a house the builder
receives two shekels of silver for each SAR (§ 228).2
If he had not made it strong, and it fell and killed
the owner of the house, he was put to death (§ 229).
If the owner's son died, the builder's son became
the victim (§ 230) ; if a slave, he must give slave
for slave (§ 231); and if the household goods were
destroyed, he must make good the loss (§232). In
the last-mentioned case the builder was obliged to
build up the ruined house ; no doubt this was always
understood in the preceding cases. If he had not
erected it (us-ie-is-hi-maf firmly and a wall fell down,
he must strengthen it at his own expense (§ 233).
The laws thus cover all damages and inconveniences
likely to arise from the negligence of the jerry-
builder. Parallels to these laws from the rest of
the Semitic field are wanting. The Deuteronomic
code enjoins the man who built a new house to
protect the roof with a parapet (mctakeh; Deut.
22 s), a provision which is on the same general lines
as the law in the Book of the Covenant which makes
the owner of an unprotected pit responsible for loss

1 saklilj cp. Bibl. Aram. Ezr. 5 3, n.

2 According to Sayce (op. cit. p. 266), "180 SE were probably
equivalent to i GIN [? CAN], 60 GIN to one SAR or 'garden,' 1800
SAR to i feddan or acre," but there was a smaller acre one-tenth of
the size. 3 " Jointed " (Johns).

246 THE LAWS OF MOSES CHAP, x

caused by animals falling therein (Ex. 21 33 sq.}. A
similar safeguard was required in post-biblical times,
and it is interesting to notice that the general regula-
tions applying to tenants are clearly framed upon
Babylonian models.1

(The dues of the physician and veterinary also
come under consideration in the Code. The state-
ment of Herodotus (1 197), that the Babylonians
brought their sick into the market-place in order to
enlist the help and advice of any passer-by who
might happen to have the necessary knowledge to
cure the complaint, probably does not refer to
skilled physicians.2 The cuneiform texts show that
the medical profession was firmly established under
the protection of certain deities, and that the doctors
ranked high socially and formed a corporation.3 The
medical literature of the Babylonians is not insigni-
ficant, and for the history of the science in classical
countries it is of the greatest interest. In one con-
tract— and apparently in one only — is there mention
of the doctor's fee (three shekels),4 and from the Code
it appears that it was arranged upon a sliding scale

1 H. Pick, Assyriscfes und Talmudisches, p. 27 sq. (Berlin, 1903).
The Syro-Roman laws relating to houses (op. cit. p. 37, § 120) do not
cover any of the above-mentioned details.

2 Cp. C. F. Lehmann, Babyloniens Kulturmission, p. 86 sq.

3 Dumon, Journal Asiatique, Qth ser. 9318-326(1897). Gula or
Nin-karrak was the goddess of nostrums ; Ea, the patroness of
doctors, was apparently figured with a serpent's head (cp. Num.
219); and Allatu — unkindly enough — was the goddess of the land
from which there is no return.

4 Dumon, op. cit. p. 326 (Strassmaier, no. 382, temp. Cyrus).

CHAP, x PROTECTION OF THE PERSON 247

according to the status of the patient. The doctor
(a-zu) who treats a man for a grievous wound (zi-
im-ma-am kab-tam) with a bronze knife and heals
him (ub-ta-al-li-it\ or cuts the film * of a man with
a bronze knife and heals it, receives ten shekels of
silver (CH, § 215), but only five if the patient is a
poor man (mar MAS-EN-KAK ; § 216), and two if it is
a man's slave (arad a-wi-lim / § 2 1 7). I f in operating
upon the wound the patient dies or his eye is lost,
the doctor's hands are cut off (§ 218) : the member
that caused the damage receives the punishment.2
This penalty, however, applies only to the (free-)
man.3 If it is a servant (slave) who dies under the
operation, the doctor must give the owner slave for
slave (§ 219), whilst for the loss of the slave's eye
pecuniary compensation (half his price) must be
made (§ 220). The doctor who makes whole (us-
ta-li-im) a man's broken limb or heals a diseased
bowel (ha-nam mar-sa-am) receives five shekels
(§ 221), or three in the case of a poor man's son,
and two for a servant (§222 sq.). The cow doctor
(a-zu alpi) or sheep4 doctor who treats a cow or
sheep for a grievous wound and cures it receives
one-sixth of a shekel as his pay (ID-SU\ but if it

1 ? " Cataract," na-gab-ti; perhaps " abscess " (Johns).

2 Cp. pp. 134, 249-

3 So, in Egypt, the doctor who was at fault was punished with
death (Diod. 1 25, 82).

4 So Johns, reading immeru. Scheil and Winckler agree in
rendering " ass " (imeru). The most natural combination is ox and
sheep ; cp. CH, §§ 262-265. The ass, however, is used for threshing
(§ 269) ; cp. also § 7 sq.

248 THE LAWS OF MOSES CHAP, x

dies he must pay one-fourth of its price to the owner
(§ 224 sg.).

Although these laws are without their parallel in
the Hebrew legislation, there is evidence which leads
to the assumption that they had not died out in Syria
by the time of the Syro-Roman law-book. Accord-
ing to this work, if a man has been taken in hand
by a physician (Syr. asya) in the TrepwSevo-i,? — the
reference is perhaps to a peripatetic surgeon — and
he gave him his pay,1 the patient cannot recover the
sum, whether he be healed or not.2 From the stand-
point of Roman law the principle is self-evident, and
Bruns remarks that the ruling datio ob causam is
grounded on the analogy of the treatment of advo-
cates, no special mention of doctors being found in
the old Roman codes. He finds it surprising,
therefore, that the law should pass from doctors
to advocates (cp. note below), and not vice versa,
and makes the happy suggestion that the Syrian
collection once contained other laws relating to
physicians. It seems highly probable that the law
under discussion was distinctly an innovation intro-
duced through Roman influence in order to put down
a practice which admits of explanation in the light
of the Babylonian code. Doubtless the severity of
the Code of Hammurabi had been modified in

1 The veterinary in the Code — like the doctor in Syria — receives
his "pay" (Syr. agra), whilst the house and shipbuilder receive
their " honorarium " (kistti).

2 Bruns and Sachau, op. cit. pp. 38 (§ 122), 289 sq. The Syriac
extends the principle of this law to prostitutes and

CHAP, x PROTECTION OF THE PERSON 249

course of time, and it may be conjectured that the
patient was formerly allowed to claim the return of
the doctor's fee if he had good cause to be dis-
satisfied with his treatment.

The principles underlying the laws relating to
the builder and the physician are thoroughly
characteristic of the Code. Just as the hand that
errs or steals (§§ 195, 218, 226, 253), or the tongue
that reviles (§ 192), is cut off,1 so the person guilty
of an assault upon another is punished precisely in
that part of the body where he injured his neigh-
bour. The old crude system of the talio prevails!
almost everywhere. In cases of damage to property
it is ship for ship (§ 235), goods for goods (§ 232),
ox for ox (§§ 245, 263), sheep for sheep (§ 263) ; and,
similarly, as regards persons, it is man for man
(§ 229), woman for woman (§ 210), son for son
(§§ 1 1 6, 230), slave for slave (§§ 219, 231), limb for
limb (§ 197), tooth for tooth (§ 200), eye for eye}
(§ 196), and whatever punishment a man tried to
bring upon another it is to be inflicted upon him
(§ 3 sq.\ The talio holds good in old Hebrew law,;
in the Koran, and is as characteristic of early Semitic!
legislation as of other ancient legal codes.2

1 So, in the Laws of Manu, he who raises his hand or a stick
shall have his hand cut off; he who in anger kicks with his foot shall
have his foot cut off ( 8 280). For examples of the practice among
the Israelites as applied to punishments, cp. Num. 5 19-22 and Gray's
note (Internat. Crit. Comm. p. 53 $<?•).

2 Ex. 21 23-25 ; Deut. 19 21 ; Lev. 24 17-21 ; cp. Job 2 4 ; Matt. 5 38 ;
Mish. Sotah 1 7 sqq., etc. ; Bruns and Sachau, op. tit. p. 70, § 75 ;
Koran, 2 173 sqq. (" free for free, slave for slave, woman for woman ").

250 THE LAWS OF MOSES CHAP, x

But certain modifications are to be observed.
The Code, for example, enacts that the talio is to be
enforced if one has caused the loss of a man's eye
(§ 196), or tooth (§ 200), or has broken the limb
(ner-pad-du) of another (§ 197). If the sufferer is
of lower standing a pecuniary compensation suffices.
Thus, the loss of the poor man's eye or the fracture
of his limb may be covered by a payment of half of
a mina of silver (§ 198), whilst his tooth is valued at
one-third of a mina (§ 201). Again, any injury to a
son or a slave is a detriment to his father or owner,
and in case of death the son of the guilty man is put
to death or the latter must render to the owner
slave for slave. If he has suffered an injury and
lost an eye or limb, one-half of his price must be
paid to the owner (§ 199), whilst for the slave who
died in the house of his distrainer from neglect or
cruelty, the compensation was fixed at one -third
(§11 6).

One obscure kind of bodily assault not only is
not punished by the talio, but is treated in three
distinct ways according to the status of the parties.
The man who struck the strength (li-e-it) of his
superior is struck in public (i-na pu-uh-ri-im) with
sixty strokes of the ox-hide (§ 202). If a freeman
(mar a-wi-lim) assaulted one of his own standing in
this manner he is ordered to pay one mina of silver,
or, if both are poor men (MAS-EN-KAK), the penalty
is ten shekels (§ 203 sg.). Finally, if it is a free-
man's servant (slave) who struck a freeman, he is
condemned to lose his ear (§ 205). The precise

CHAP, x PROTECTION O

meaning of li-e-it is uncertain,
rendered " crown of the head" (Scheil), "body"
(Winckler), or " strength " (Johns), and the last-
mentioned tentatively suggests that the reference
is to the genitalia.1 The perplexing variation in
the penalty gives no clue to the nature of the
offence, but if Johns's conjecture is well-founded,
the law would find a parallel in Deut. 25 n sq.y a
typical statute, especially noteworthy for the fact that
it is the only case where mutilation is prescribed.
Scourging in Hebrew law was introduced after the
time of the Book of the Covenant, and first appears
in the Deuteronomic code, apparently as the penalty
for several kinds of offences (25 1-3). That it is to
be regarded as an innovation in Israel is practically
certain.2

A small group of laws in the Code relating to
personal injuries by cattle is especially interesting
for the analogies in the Book of the Covenant. If
a wild bull (alap zu-ga-ani) gored a man in its charge
(i-na a-la-ki-su] and killed him, no claim could be
made (§ 250) ; but if the ox was known to gore (na-
ak-ka-pu-u], and its vice (ba-ab-ta-sii) had been made
known to its owner, and he had not cut or blunted
its horns (kar-ni-m la u-sar-ri-im)* or kept it under
restraint (la u-sa-an-ni-ik-ma\ compensation must

1 Johns, p. 83. 2 See above, p. 45 and n. i

3 In later times the horns were protected by a basket ; cp. Talm.
Bab. Berakh. f. 33^ (Schwab, 1 538, where a black bull is considered
particularly dangerous, especially in Nisan [April], " for then it has
the devil on the horns ").

252 THE LAWS OF MOSES CHAP, x

be made. For a freeman the owner must pay
half a mina (§ 251), and for a slave one-third (§ 252).
Hebrew law required the ox to be stoned,1 and
forbade its flesh to be eaten ; and under ordinary
circumstances the owner was free from guilt. If the
ox was wont to gore (naggah\ and its propensity
had been testified to the owner, and he had failed to
keep it under restraint (samar), the owner was put
to death (Ex. 2128 sqq.}. It is provided, however,
that if a ransom (kopher) was laid upon him he must
pay what was demanded. For a male or female
slave a payment of thirty shekels was to be made
to their master (vv. 30-32). The slave's life is thus
valued rather more highly than in the Babylonian
code.

• Another group of laws with distinct analogies in
/the oldest Hebrew law-book deals with assaults upon
/ women resulting in miscarriage. If the sufferer is a
freewoman the compensation is fixed at ten shekels
(§ 209), five shekels if a poor woman (marat MA$-
EN-KAK ; § 21 1), but only two if a slave (amat ; § 213).
If the woman herself dies from the injury the penalty
is made proportionately more severe. If a free-
woman, the man's daughter is put to death (§ 210);
if a poor woman, half a mina of silver must be paid
(§ 212), and if a slave, one-third of a mina (§ 214).
The scale of penalties for miscarriage agrees

1 Cp. Frazer, Pausanias, 2 370 sqq., and for mediaeval examples,
Baring-Gould, Curiosities of Olden Times^ pp. 57 sqq. (Edinburgh,
1895). At the present day the parents of the victim may lay claim
to the animal (Jaussen, Revue Biblique^ 1901, p. 600).

CHAP, x PROTECTION OF THE PERSON 253

curiously with the doctor's fees in §§ 215, 217, and
the monetary valuation for loss of life is identical
with § 251 sq. (above). In the Book of the
Covenant the relative law is confined to a single
verse which is embedded in the general laws dealing
with assault. It orders that miscarriage caused by
assault is to be compensated according to the
demands of the woman's husband (ba'al, Ex. 21 22).
The amount of the penalty is not specified, — it is
purely a matter to be adjusted between the offender
and the husband, and the reference in the present
text to the decision of the judges is due to a corrupt
reading.1 The agreement between the two legis-
lations is only superficial. Both handle the same
topic, both apply their own principles. In Baby-
lonia, the assault becomes an occasion for a judicial
enquiry, in Israel it is a detriment to the husband's
property. The Code treats the case with com-
parative minuteness, and applies it to three classes
of society, whilst the Book of the Covenant does
not speak clearly with regard to the punishment to
be inflicted if the woman should die from the
assault.2 The present arrangement of the laws of
assault is probably not original. The specification
of the talio in Ex. 21 23-25 preferably belongs to
some general law of assault, and should probably

1 Budde's emendation in v. zzb ("and he shall pay for the
foetus " : ntpkOlim) answers exactly to the Bab. a-na sa li-ib-bi-sa
i-sa-kal ("for what was in her body he shall pay"), and is in
accordance with the discussion in Baba Kamma^ 56; cp. also
Jaussen's account of modern custom, Revue Biblique, 1901, p. 598.

2 Josephus applies the talio^ " life for life " (iv. 8 33).

254 THE LAWS OF MOSES CHAP, x

follow after vv. 18, 19, where assaults between man
and man come under consideration.

Here, if as a result of a blow with the fist or a
stone — the instruments are typical — a man has been
forced to take to his bed (naphal le-miskab\ and is
lamed, the assailant is acquitted, but he must com-
pensate him for his loss of time (sdbeth, cessation),
and must certainly cause him to be healed. An
injury resulting in death is punished by the death of
the assailant, but the law distinguishes between
presumptuous murder and death arising from a
chance affray (vv. 12-14). It is not a capital offence
for the master to injure his servant mortally ; some
punishment is inflicted, but its nature is not specified,
and if death does not immediately ensue, the master
is free (y. 20 sq.}. Nor was the talio enforced for
a minor injury. The master who struck out his
servant's tooth or eye was only required to grant him
his freedom (v. 26 sq.\ and although it is not stated, it
is to be presumed that this was also the custom for
permanent injuries of other kinds.

In the Code of Hammurabi, the man who struck
another in a quarrel (i-na ri-is-ba-tim im-ta-ha-as-ma)
and caused a wound (zi-im-ma-am) can swear — "I did
not strike him wittingly,"1 but must answer for the
physician (a-zu i-ip-pa-al ; § 2o6).2 If the man dies
of his blows, the offender must swear (as before)
and make a compensation, half a mina for a freeman,

1 See above, p. 61 n. i

2 Similarly, in the Laws of Manu, the assailant must pay the
expenses of the cure (8 287).

CHAP, x PROTECTION OF THE PERSON 255

and if the victim was a poor man, one-third of a
mina (§ 207 sq.}. In other respects the principles of
Babylonian law are in agreement with the Hebrew.
The talio is enforced, but a pecuniary payment is
sufficient when the sufferer is on a lower footing.

Later usage was directed towards the modifica- j
tion of the talio. Josephus (Ant. iv. 8 35) states
that although maiming is avenged by the talio, the
sufferer may receive a compensation, and is allowed
by law to estimate the amount ; and so in post-
biblical times all petty assaults are generally dealt
with by fines varying according to the dignity of
the injured person1 — a class distinction that is
reminiscent of the Babylonian code. Modern
custom varies ; the loss of a hand may be valued at
half and an eye at one-fourth the price of a man, or
the case may be left to the sheikh's decision.2 In j
default of payment the guilty man and his nearest kin ?
may be exiled until they have the means to pay.3

The Code laid upon the city and its governor the
responsibility for brigandage carried on within its
limits (§ 23, p. 214 above), and "if it was a life"
(na-bi-is-tutn), the city and its governor were
required to pay one mina of silver to the people of
the murdered man (§ 24). The law has Semitic
analogies, and, as Dareste has pointed out, recurs

1 Baba Kdmma, 8 6 ; Jewish Encyclopedia, 2 225^. (As a means
of appraisement damage could be estimated at the difference between
a man's market value as a slave before and after the assault.)

2 Jaussen, Revue Biblique, 1901, p. 598.
8 Doughty, Ar. Des. 1 317 sq.

256 THE LAWS OF MOSES CHAP, x

not infrequently in ancient codes.1 In Arabia, the
responsibility for homicide, where the murderer was
unknown, was cast in the first instance upon the
nearest community, but under Islam, blood-money
in these circumstances was paid by the State.2
The Israelite ritual for the expiation of murder by
an unknown hand, although preserved only in the
Deuteronomic code (21 1-9), is evidently a reflection
of ancient usage. Primarily, it rested entirely in
the hands of the elders of the community, who are
required to profess their innocence and make atone-
ment for the blood that has been impiously shed by
placing the burden of the guilt upon an animal.8
The account covers only one aspect of blood
revenge,4 and it is noteworthy that nothing is said
of the part taken in the ceremony by the murdered
man's kin, for which reason it is to be inferred that
it relates only to the case where both the murdered
man and the murderer are unknown.

The introductory remarks made in chap. iii. on

1 Journal des Savants, 1902, p. 521, n. 4; cp. Fenton, Early
Hebrew Life, p. 45 sq. The Egyptian custom recorded by Herod.
2 90, whereby the nearest city was obliged to embalm and bury dead
bodies found in the district, can scarcely be cited as a close analogy ;
cp. A. Wiedemann, Herodots ziveites Buck, adloc. (Leipzig, 1890).

2 Robertson Smith, Kinship^ p. 64, n. 2 ; cp. Wellhausen,
Arab. Heid.® p. 188 sq. ; Dareste cities also Khalil, art. 1835-1837.

3 The judges (sophetini) are mentioned in v. 2, only to disappear
again, and the Levitical priests are named only in v. 5, which does
not seem to belong to the original ritual (Carpenter and Harford-
Battersby, Hexateuch, Bertholet, Steuernagel, ad loc.).

4 Possibly belonging to a group of laws dealing with the subject ;
cp. Ex. 22, 2, 3#, etc.

CHAP, x PROTECTION OF THE PERSON 257

the prevalence of blood - revenge among primitive
Semitic communities may now be supplemented by
a glance at the successive modifications and qualifi-
cations of the original system under the growth of
society. As long as the jus talionis prevailed with
its logical severity no advance could be made.
Justice repeats the offence, and every affair into
which it is introduced becomes endless. A step
forward is taken when the affair is restricted to the
families of the aggrieved and the aggressor, and the
weakening of the tribal solidarity which rendered
this possible cleared the way for further advances.
At the same time, when the affair is thus reduced to
a dispute between individuals, it is entirely a matter
of private arrangement, and the aggrieved have th
right to make their own terms. A distinction is
made between murder and manslaughter, and th
status of the slain is taken into consideration. Com-
pensation may be demanded or accepted, and the
amount, which at first is arbitrarily fixed by the
injured party (cp. Ex. 21 22, 30), is subsequently
controlled by customary usage (cp. 21 32). Gradually
there grow up fixed scales of fines and compensa-
tion which, by common consent, hold good among
specified tribal groups. The adjustment of these
tariffs one with another follows later when the
various groups are united under one head, or when
one group has become sufficiently powerful to impose
its scale upon all those with which it is brought into
contact. The last stage is reached when revenge isj
taken out of the hands of the individual by society,!

258 THE LAWS OF MOSES CHAP, x

and the penalty for the crime is a punishment
. determined by the constituted authorities and carried
\out by duly appointed officials.1

Old Hebrew law as early as the age of the Book
of the Covenant restricted the right of the slain
man's kin to exact revenge. Unintentional homicide
is distinguished from deliberate murder, and there
are other indications that the laws of murder had
passed beyond the primitive stage of blood - feud,
The slave's person is not valued as highly as that of
the freeman ; for the thief who meets his death at
night no blood-atonement is necessary, and a dis-
tinction is drawn between instant death after a blow
and the case where the victim lingers for a day or
two. The later legislation works out the laws with
greater precision. The rights of asylum are more
clearly defined, and rules are laid down by which
intentional homicide may be justifiably presumed
(Num. 35). Along with this, it is to be observed
that the exaction of the penalty rests with the
injured party, and after the enquiry the murderer is
handed over to the blood-avenger to be put to death
(Deut. 19 ii sg.). The state does not step in to
protect the interests of the aggrieved ; personal
honour and the unwritten laws of the tribe requires
the accuser to take the initiative and compels him to
carry out the penalty (cp. Deut. 17 7).

Mohammedan legislation, in like manner, dis-
tinguished between murder, fatal assault, and un-

1 Cp. Benzinger, EBi. " Law and Justice," § 1 1.

CHAP, x PROTECTION OF THE PERSON 259

intentional homicide, and whilst endorsing the talio,
recommends the aggrieved party to accept a fine.^
In Syria the Syro- Roman law-book forbids the,
blood-avenger to kill the man-slayer and requires the i
accuser to hand the guilty over to the authorities.2^
Naturally, different groups of communities reached
different stages. The lawless Trachonites of the
time of Herod the Great carried out the old law of
retaliation to the full (Josephus, Ant. xvi. 9 i).
Among the modern Bedouin usage varies. The
extreme penalty for murder may be exacted, and
the relatives of the murdered person may be com-
pelled to carry it out,3 or the death-sentence may
even be performed by the relatives of the murderer. !
Among those tribes where the were-gild is accepted,
either the amount of the ransom is left to the
decision of the kadi, or two or more tribes will
come to an understanding among themselves
touching the rate of assessment.5 Thus the road!
is paved for the formulation of a definite legal \
code.

The legal principles of the Code of Hammurabi
viewed in the light of the foregoing are particularly
striking. The primitive law of the talio has under-
gone certain modifications. It is rigidly enforced,

1 Koran^ 2 177, 4 94 sq. ; cp. Procksch, op. cit. p. 86 (and chap,
iv. generally).

2 Brims and Sachau, op. cit. p. 70, § 74.

3 Cp. Doughty, Ar. Des. 2 368.

4 PEFQ, 1897, p. 131 sq*

5 Doughty, 1 145 sq., 491 ; cp. 402, 476, 491 ; Jaussen, Revue
Biblique^ 1901, p. 599.

260 THE LAWS OF MOSES CHAP, x

and the exceptions are made chiefly in those cases
where the victim is on a lower standing than the
assailant. But revenge is not admitted ; every-
thing is under the supervision of the legal authorities,
and the rare occasions when the individual may
take the law into his own hands refer not to murder
but to theft (§§ 21, 25). The Code does not handle
murder, but the detailed punishments for various
kinds of assault suggest that if no mention is made
of it, it is only because the law was too firmly
established to require a specific statute. " The
people which killed my servants," writes Burraburias
to Naphururiaof Egypt, "kill them and avenge their
blood" (da-mi-su-nu ti-i-ir.)1 This was doubtless the
law at the time when the Code was promulgated,
and Hammurabi's chief concern was to make excep-
tions in favour of unintentional homicide (§§ 206-208).
Further, it is probable that when the victim was
lof inferior rank a fine was sufficient, whilst in the
case of a slave naturally the owner required some
pecuniary compensation.

In conclusion, although this tends to show that

I the Babylonians had reached the stage of penal

[law, and although we find that punishments were

inflicted by the State, and private individuals only

on the rarest occasions were allowed to avenge

themselves, it is very necessary to observe that certain

of the grosser features of the barbarous jus talionis

were retained in all their crudeness. When it is

remembered, for example, that the builder's son is

1 Amarna Letters, no. n, obv. 1. 4 sq. (KB 5 27).

CHAP, x PROTECTION OF THE PERSON 261

made a victim for the tenant's son (§ 230), or the
assailant's daughter dies to make atonement for the
woman who has died of an assault (§ 210), it is clear
that the people among whom these practices pre-
vailed were still a long way behind pure con-
ceptions of justice. And it is interesting to find
that the Code in this respect is quite in agreement
with the tenacious primitive Semitic theory of blood-
revenge, in accordance with which a man's guilty
was shared by the whole family, could be inherited
even by the unborn, and was only wiped out after
revenge had been taken upon some one member
or other of the guilty man's kin. Although this
was the prevailing tendency of early Israelite
thought, it is a characteristic feature of the Book
of the Covenant that it is only the actual manslayer
who is put to death (Ex. 21 12), and throughout
the following centuries the idea of personal re-
sponsibility was the prophetic ideal outstripping
the practice of everyday life.1 The Deuteronomic
code expressly says that the son is not to die for
the father or the father for the son (Deut. 24 16 ;
cp. 2 Kings 14 6, Jer. 31 30), and the climax is
reached by Ezekiel (chap. 18), who refuses to
recognise either transmitted guilt or transmitted

1 Contrast Deut. 7 10 with the Decalogue, where the extension
of the responsibility of guilt to the third and fourth generation is in
accordance with the Bedouin humsaj the ancestor with four genera-
tions forms a solidarity (cp. Procksch, op. cit. p. 24 ; Patton, loc.
tit. p. 705 sq. ; D. A. Walker, Journ. Bibl. Lit. 1902, p. 190. See
also below, p. 274).

262 THE LAWS OF MOSES CHAP, x

righteousness. The early restriction of the talio
and the gradual recognition of individual respon-
sibility give an ethical superiority to Israelite law
which counterbalances whatever deficiencies it may
possess in other respects.

CHAPTER XI

CONCLUSION

IT is true that the two main systems of legislation
which have been discussed in the course of the pre- J
ceding chapters have many noteworthy points in ,
common, but it is impossible not to have observed j
how striking are the differences between them. At -
the head of each there towers a mighty figure toj
whom the promulgation of these laws is ascribed ; I
behind each there looms the Deity, the ultimate
source of the laws which Hammurabi in the one
case, and Moses in the other, imparted to their^
people. Criticism, however, has not left un-^
challenged the tradition of the Mosaic authorship
of the Hebrew legislation] and closer study shows,
too, that the Code of Hammurabi was no ready-
made series of novelties, the production of a single

263

264 THE LAWS OF MOSES CHAP, xi

mind and time, but the climax of centuries of cus-
tomary usage, which, in the form it has come down
to us, is the result of modification, compression, or
addition, in accordance with the conditions that
prevailed at the time of its promulgation.1 So,
whilst written legislation in Babylonia takes its rise
in the reign of the greatest monarch of the first
Babylonian dynasty, in Israel written laws can
scarcely be carried back beyond the ninth century
at the earliest, and in their existing form represent
the latest stage of the Pentateuchal legislation in
the Old Testament, a thousand years later than
the great figure to whom tradition ascribed their
initiation.

Neither of these two systems can be called
pandects. Some important topics are either entirely
ignored or are handled with an incompleteness that
must have rendered them ineffective for everyday
purposes. In some cases we have to assume that
customary usage was too firmly established to
require the law to be mentioned in one or other of
the codes, in other cases the difference between the
state of society in Babylonia and Israel, or the change

1 Examples are to be found in the modification of the older
family laws (p. 135) and in the retention of the talio without blood-
revenge (p. 259 sq.}. Further, in the laws relating to cattle in
the care of another, it is ordered that if a lion ravages or a " stroke
of God " occurs, the man must swear his innocency, and the loss falls
upon the owner. But whereas in the case of the hired animal
these possibilities are treated separately (§§ 244, 249), in the laws
relating to the herdsman they have been combined, probably by an
editorial process (§ 266).

CHAP, xi CONCLUSION 265

of conditions in the various periods of Israelite
history, affords an explanation. Both systems are
marked by the prominence given to the needs of
agriculture and the protection of the person, and
the Babylonian code not only deals more thoroughly
than the Book of the Covenant with topics falling
under these heads but lays itself out to advance
industrial conditions, either indirectly, by paying
every heed to prevent any breach of the peace, or
directly, by means of statutes which tended to afford
greater security to business relations of all kinds. ^
In this respect the attention which is paid to prices,
wages, and rents, and to laws for such classes as
doctors, boatmen, innkeepers, courtesans, is especially
noteworthy.

There is a certain similarity in the legal formula-
tion in both systems, but it is questionable whether
it is of a kind to which any great weight may be
attached. The Old Babylonian formula is " when
(summa) a man," etc., which in the New Babylonian
period appears in the form of a statement.1 In
the Book of the Covenant the groups of laws are
similarly introduced by " when " (ki), but the sub-
divisions are indicated not by the repetition of the
introductory term as in CH, but by "if" (im). In
both, however, the verb is in the third person
(contrast Ex. 21 2).2 But, generally speaking, there

1 Observe the parallel laws cited above, p. 87, n. I.

2 The following comparison of CH, § 8 with Ex. 22 1-4 may serve
as an illustration : — " If a man (sum-ma a-wi-lum\ either an ox or
(lu) a sheep or an ass or a pig or a ship has stolen, whether of the

266 THE LAWS OF MOSES CHAP, xi

is considerable variation in Hebrew usage.1 The
simple statement appears notably in Ex. 21 12-17,
22 19 [18] sqq., of which the former probably, and
the latter almost certainly, did not fall within the
scope of the original Book of the Covenant.2 The
substitution of the impersonal law by a command or
prohibition in the second person, though not un-
known (21a; in a secondary clause, 21 23), is more
frequent in the miscellaneous statutes appended to
it (22 i8-23 g),3 and is more particularly characteristic
of the Decalogue, the Deuteronomic code, and the
Priestly legislation. The expression of the law in a
form of a statement also becomes more common in
ithe late codesjand although the introductory kl is
retained, particularly in the civil law, it is less
frequently followed by the secondary im. Fuller

temple (sum-ma sa i-lim\ whether of the palace, he shall give
(i-na-ad-di-in) thirtyfold ; if he is a poor man (sum-ma sa MA&-EN-
KAK] tenfold he shall return (t-ri-a-ab) ; if the thief has nought to give,
he shall be killed." Ex. 22 i sqq.\ "When steals a man (ki yignob is}
ox or sheep, and he kills it or sells it, five oxen shall he restore
(yesallem) for an ox, and four sheep for a sheep ; if (im) in the
breaking in the thief is found and is smitten and dies, there is no
blood-guiltiness ... if he has nought, he shall be sold for his theft ;
if there is found in the hand the stolen thing . . . twofold shall he
restore."

1 It may be observed that the fact that 22 6 [5] begins with kl and
not im tells somewhat against the view that the verse deals with
another case of the law of arson which ex hyp. commences in v. 5 [4]
(p. 202 above).

2 Cp. Carpenter and Harford - Battersby, The Hexateuch, 1
256 n.

3 Also in other Elohistic codes, e.g. Ex. 20 23-26, 23 10-19, but
more commonly in the singular.

CHAP, xi CONCLUSION 267

treatment of the subject is scarcely necessary here.1
The Syro - Roman law - book is marked by the
frequent use of the hypothetical en (if),2 but the
ordinary statement and the expression of the law as
the answer to a question are common.3

More remarkable is the agreement in phraseology
between CH, § 117 and Ex. 21 2, to which attention
has already been directed (p. 164). It is interesting
to find the same formula in use in Egypt, and the
question may be left open whether both Egypt and
Israel borrowed it from Babylonia! or whether it
is mere coincidence that the oracle from Buto as
quoted by Herodotus (2 133) should have expressed
itself in these familiar words — "six years only shalt
thou live upon the earth and in the seventh thou
shalt end thy days."4 The phraseological evidence
would have considerable weight if it could be proved
that Babylonian legal terms, also, had been taken
over into Hebrew. This, however, is not the case,
and, as we shall presently see, it is not until the
exilic age and later that the traces of this description

1 The synopsis in The Hexateuch, I 256-269, will be of most value
to the ordinary reader.

J The same form occurs also in the laws of the Twelve Tables
and in the Gortynian code from Crete.

3 E.g. "men who make breaches are liable to the death
penalty " ; " the law is asked, how long must a woman remain a
widow ? " or " the law does not allow a woman to enter a process,"
etc.

4 It is to be regretted that our information regarding Egyptian
law is too scanty to admit of our determining whether it was
influenced in other respects by the Babylonian code.

268 THE LAWS OF MOSES CHAP, xi

are unambiguous.1 Leaving the phraseological and
philological evidence, we may now consider briefly
the extent of the resemblances between the Code of
Hammurabi and the oldest Hebrew collection of
laws.

The Book of the Covenant contains a number of
groups of laws relating to slaves (male and female),
injuries (personal and to slaves), cattle (damage by
and to), theft, damaged crops, etc., and in several
instances each group is easily divisible into a
series of five ordinances. Viewing the Book of the
Covenant (BC) along with the Code of Hammurabi
(CH), we observe that whereas in CH (§ 117) the
enslaved wife and children are free in the fourth
year, in BC (Ex. 212) it is not until the seventh
year that the male Hebrew slave regains his freedom ;
but, on the other hand, in CH (§ 118) the ordinary
slave cannot be reclaimed. The owner has no
claim upon the slave's free wife and children in CH
(§ 176) and BC (21 3), but the latter applies only to
the man who had been married before he became a
slave. In BC (21 7-11) no slave concubine could be
sold to strangers, but in CH (§§ 119, 147), provided
she has borne children, she could not be sold as a
punishment, and if sold for a debt she must be
redeemed. To smite one's parents was punished
in CH (§ 195) by mutilation, in BC (21 15) by death.

1 The Hebrew terms for legal procedure may be gathered from a
variety of passages (Ex. 24 14, 2 Sam. 152, Is. 508, etc.), notably
from the Book of Job (9 19, 23 4, 31 n, 28, 33 10, 34 5), and need not
be discussed here.

CHAP, xi CONCLUSION 269

To kidnap the son of a freeman brought death in
CH (§ 14), but BC (21 16) exacts death for the
man-stealer whether the victim be recovered or not.
In CH (§ 206), for injury in a quarrel the culprit
must swear it was done unintentionally, and pay the
doctor; in BC (21 18 sq.), payment for loss of time
and healing is ordained. But if the man dies, CH
(§ 207) requires the oath of purgation and a fixed
compensation, whereas BC presumably exercises
the right of asylum (21 12-14). Where the injury is
specified, both CH and BC use the talio, but the
former allows a compensation if the victim is of
humble origin, and in the case of a slave BC
(21 26 sq.) gives him his freedom as compensation,
whereas CH requires an indemnity for the owner
(§ 199). Again, if the victim is a woman, and mis-
carriage ensues, in BC (21 22) the husband fixes
the fine, whereas CH has a tariff and takes into
account the possible death of the woman herself
(CH, §§ 209-214).

As regards damage by or to animals, neither CH
nor BC provides a remedy for the vicious ox ; but
if its owner had been warned, CH inflicts fines
(§§ 250 sqq., 30 shekels for a freeman, 20 shekels
for a slave), whilst BC orders death-penalty, or a
ransom, the amount of which is only specified in the
case of a slave (30 shekels ; vv. 28-32).

In both codes, the night-thief may be killed on
the spot, but the death-penalty in CH is inflicted
further for the brigand, for theft from temple or
palace, or at a fire, and the district is responsible

270 THE LAWS OF MOSES CHAP, xi

\ for the depredations caused by highwaymen (CH,
§ 23 sq.). The extent of the restitution in CH
ranges from thirty fold to twofold, in BC five for an
ox, four for a sheep, and double if the stolen thing
is found in his possession (22 1-4). In CH, § 8 the
sacrilegious thief who could not make restitution is
put to death; the cattle-lifter in Ex. 22s is sold.1
CH, § 57 sq. distinguishes two cases of damage to
crops by animals, but whether the topic is handled
in BC (Ex. 22 5) is uncertain ; one (or perhaps two)
cases of damage by fire are given in BC (22 5, [?]6),
but nothing is mentioned respecting damages to
crops by flood (CH, §§ 53-56). General cases of
lost or stolen property are treated at length in CH
(§§ 9~I3)> but with extreme brevity in the corre-
sponding law in BC (22 9). If a thief steals a
deposit, in CH the depositee must make restitution
and recover from the thief (§ 125), in BC he clears
himself by an oath (22 7 sq.). If property in charge
of another is destroyed by a lion, there is no re-
sponsibility, if by " stroke of God," oath of innocence
(CH, §§ 244, 249; cp. 267); but in BC, if torn by
lion, evidence must be brought (22 13), and if a case
of vis major, the man swears an oath (22 10 sq.). If
lost through negligence (§ 267) or theft (Ex. 22 12),
restitution is required in both CH and BC.

The differences between the two systems as
illustrated by this brief recapitulation are equally
striking when the later Hebrew legislation is con-
sidered. For example, CH, in dealing with seduc-

1 Cp. CH, § 54, the negligent irrigator, above, p. 198.

CHAP, xi CONCLUSION 271

tion, does not handle the case of the unbetrothed
virgin, whilst its treatment of the one who is be-
trothed (CH, § 130) differs notably from the Hebrew
laws (cp. above, pp. 100 sqq.\ For adultery and
incest CH inflicts a great variety of penalties, viz.
burning (mother, § 157), drowning (neighbour's wife,
§ 129, daughter-in-law, § 155), expulsion (daughter,
§ 154), and disinheritance (son with step- or foster-
mother, § 158). In the Old Testament, the punish-
ments are death (step -mother, daughter-in-law,
Lev. 20 ii sqq.\ burning (bigamy, marriage of woman
and her mother, Lev. 20 14), " cutting off" (sister,
Lev. 20 17), and even childlessness (wife of uncle or
brother, Lev. 202o^.).1

The Old Testament laws of slander relate to the
case of the newly married husband and wife, which
is not specifically treated in CH, and is silent on
the subject of slander of a wife by a third party
(CH, § 127). Provision is made, as in CH, § 23 sq.t
for the murdered man whose assailant is undiscovered,
but the procedure is different. The Old Testament

1 As regards the penalties in general, stoning, the old customary
mode of execution, seems to have disappeared from Babylonia, whilst
drowning, which comes up in §§ 108, 129, 133, 143, 155, came into
vogue in later Judaism. Burning appears thrice in the Code (§§ 25,
no, 157), but it was very rare in Israel (p. 106 sq.~). On impalement
(CH, § 153) and hanging, see EBi. "Hanging" and for the intro-
duction of scourging into Israelite and Mohammedan procedure, see
pp. 45, 251 above. Mutilation — apart from the talio (Ex. 21 24, CH,
§ 196, etc.) — is found only once as a legal penalty (Deut. 25 n sq.\
but was common in both Babylonia (CH, §§ 192, 195, 205, 218,
226, 253, 282) and Egypt (Spiegelberg, Studien u. Materialien zum
Rechtswesen d. Pharaonenreiches^ pp. 66 sq. — nose or ears).

272 THE LAWS OF MOSES CHAP, ki

forbids the judge to receive a bribe, whereas CH,
§ 5 has gone further and inflicted a penalty. It
required the house-owner to protect his roof or the
farmer his pit, but it has no laws upon the responsi-
bilities of the builder. That laws relating to trade
and commerce should fail to find a place in the
Hebrew legislation is not surprising when it is
considered how widely conditions in Israel differed
from those in Babylonia ; but it is when the same
topics are handled by both systems that a careful
comparison can be made, and how frequently the
treatment in the Old Testament diverges from that
in the Babylonian code must now be thoroughly
apparent.

The prohibition to shun the doings of Canaan and
Egypt (Lev. 18 3) — we miss a reference to Babylonia
— implies that the Israelities must have been brought
into contact with something more than the religions
of the surrounding nations, and it would be reason-
able to suggest that some of the Israelite laws,
if not borrowed, at least owed their initiation to
outside influence. Unfortunately, it is not easy to
lay one's finger upon certain examples.1 The as-

yumption that the parallels which have been in-
iicated above are directly due to the fact that at

1 It can scarcely be maintained that the law forbidding marriage
with a sister is aimed against Egyptian custom (Sayce, Early History
oj the Hebrew s, p. 209 sq.\ since such unions were common in
Israel and did not receive condemnation before the Deuteronomic
age. See above, p. 97, and note that Noldeke, too, suggests that
the use of "sister" in the Song of Songs to mean "wife" is a
survival of this marriage (ZDMG, 40 150).

CHAP, xi CONCLUSION 273

>»— ^^*^«
the time when the Book of the Covenant or the

Deuteronomic \code was drawn up, Hammurabi's
Code was well-known in Israel, would require an
explanation of the comparatively small use which <-•
has been made of it. Naturally, laws relating to
trade and commerce, to gangers and constables
and others, would not be applicable to Israelite
conditions, but it is difficult to understand why
the lot of the enslaved debtor was made harder,
why the rights of the concubine's children were
not established,1 and why the law required the
shepherd to produce the mangled remains of his
cattle whilst in Babylonia the loss fell upon the
owner (§ 266).

In the law of the vicious ox it will be remembered
that if its owner had been warned and the animal
had not been kept under restraint but had broken
out and gored a man, the penalty is death or blood-
money, and it proceeds to state most explicitly, that
"whether it be a son or a daughter, according to
this judgment shall it be done unto him " (Ex.
21 si).2 The distinction which is here made between
the members of the family and the slaves (v. 32)
may be later than the general law, and this finds
some support in the peculiar phraseology.3 When
it is remembered that in certain cases in the Code

1 The more humane treatment of the maidservant in E, con-
trasted with J, is scarcely due to CH. Cp. above, p. 117 sq., 166 sq.

2 With the last few words may be contrasted the Babylonian
method of stating a similar case (CH, §§ 176 a and b}.

3 The Hexateuch, vol. 2, ad loc.

274 THE LAWS OF MOSES CHAP, xi

of Hammurabi the son or daughter suffer death for
their father's negligence (§§ 116, 210, 230), it might
appear plausible at first sight to suppose that the
insertion in the Hebrew law is deliberately aimed
against Babylonian custom. Further consideration,
however, will show that this is impossible. That
particular phase of the law of retaliation, whereby
son for son or daughter for daughter was required,
was as familiar in Israel as it had once been in
Babylonia. In the latter country, as we have
already found, this talio was not always strictly
enforced, whilst in Israel the repeated protests
and denunciations of the prophets, as late as the
time of Ezekiel, are evidence of the tenacity with
i which this primitive Semitic usage clung to popular
custom. It is certainly a matter of great interest
that both legislations should have handled the same
topic, and the addition to the Hebrew law must
be regarded as a sign of the growing develop-
ment of humanity in Israel, but that the Israelite law
is under no obligation to the Code of Hammurabi is
undeniable, since the latter only takes into account
the death of the freeman or slave, and merely inflicts
a fine (CH, §§ 250-252). The Book of the Cove-
nant, here, at all events, is far behind the stage
reached by the Babylonian code.

It is extremely interesting, again, to observe
that the Deuteronomic law in favour of the fugitive
slave (Deut. 23 15 sq.) is in marked contrast with
the severe enactments in CH, §§ 15-20. But it can
scarcely be maintained that it is aimed against the

CHAP, xi CONCLUSION 275

Code. Had the lawgiver been acquainted with the
Code he might have been expected to betray some
knowledge of other statutes which, marked as they
are by their fairness and justness, would surely
have commended themselves. The statutes for the
protection of the unfortunate debtor (§§ 48, 114,
116 sq., 119, 241) remind us of Israelite injunctions
and prohibitions, but whilst the latter appeal to the
debtor's generosity and are not always practicable,
the humane laws in CH receive the stamp of
authority and are intended to be carried out by the
courts. Injustice towards the widow and fatherless
was forbidden and cursed (Deut. 2417, 2719), but
one may search in vain for specific laws analogous
to CH, §§ 172, 177. On the other hand, laws re-
lating to the protection of slaves and animals from
cruelty or injury (CH, §§ 245-248, etc.) are more
probably framed with the intent to ensure their
protection as property, whereas in the Hebrew
legislation the analogous injunctions spring rather
from feelings of pure kindness. The furtherance
of trade and commerce together with the protec-
tion of property and the maintenance of peace
have tempered the Babylonian laws with justice,
although the penalties for their infraction are fre-
quently severe and brutal.

Not the least important feature of the Code
of Hammurabi is its retention of legal principles
which are quite in accordance with primitive
Semitic thought.1 The Semitic stamp is plainly

1 Similarly in his edition of the Letters of Hammurabi, King

276 THE LAWS OF MOSES CHAP, xi

visible, although the difference between conditions
of life in Babylonia and in Israel is clearly re-
flected in their respective legislations. Equally
characteristic is the different setting of the Code
(the Prologue and Epilogue) compared with the
framework of the Book of the Covenant or of
the Deuteronomic law - book. The pri-

mitive tribal organisation, which has quite dis-
appeared in Babylonia, had already commenced
[^to decay in Israel. The home - born Israelite
and the sojourner (ger) under the protection of
the tribe enjoyed equal rights, and the emphasis
which is laid upon their equality betrays a decline
of old nomad customs — in the primitive tribal
society this would be too well assumed to require
any special mention.LjThe care taken by Israelite
law to protect strangers finds no parallel in Baby-
lonia. Here, there was not one law for the home-
born and one for the stranger — not because the
Code omitted to safeguard their interests, but because
society had reached that stage where all classes
come under the law and enjoy its protection.2
Class - distinctions, however, have arisen, and in
addition to the free and unfree, a special class —
the "poor man"-— has come into existence, and for

(p. xlix.) had observed that the Babylonians of the first dynasty
"still retained usages and customs which had come down to them
from a time when they were essentially a pastoral and nomadic
people and had no settled habitation."

1 Cp. W. M. Patton, Amer. Journ. of Theol 1901, p. 726.

2 For the evidence that foreigners enjoyed equal rights with
native Babylonians, see Sayce, op. tit. pp. 191 sqq.

CHAP, xi CONCLUSION

him the penalties are lighter and the compensations
less.

In comparing the Babylonian code with the
Pentateuchal legislation the observation is some-
times made that the former, by reason of the
absence of religion and religious motives, stands
upon a lower level than the latter. It is true
that the magical practices handled in § i sq., and
the laws relating to votaries and the like, only touch
the externals of Babylonian religion, and/the omission
of l^ws of cult_and ritual is noticeable5 when we
consider the amount of space devoted to them in
the legal literature of the Old Testament] strictly
speaking, however, (the comparison is not a fair one,
and the relation between them is analogous to
that between the Syro-Roman law-book and the
Koran. The Code of Hammurabi deals entirely"
with civil law, and in this respect is to be compared
most fitly with the original Book of the Covenant,
which is purely secular and does not_contemplate
subjects relating to religion. Besides,! Hammurabi
himself, as his Letters prove, paid trie greatest
heed to the due observance of religious rites and I
the proper maintenance of the worship of his gods,1 \
and the omission of religion in his Code must be I
regarded as intentional. "*! i

Babylonia had its ceremonial laws and ethical
codes, and the Assyrian seventh-century tablet, to
which reference has already been made, affords an
idea of the conceptions of sin prevailing at that

1 King, Letter S) no. in., and pp. xxxi-xxxiv.

278 THE LAWS OF MOSES CHAP, xi

age, if not earlier. Here we find, enumerated with
ceremonial faults, such offences as causing bad blood
between parents and children, relatives and friends,
refusing to loosen captives, sinning against gods
and goddesses, violence towards elders, hatred of
elder brother, contempt towards parents or sister,
unfair dealing in business, lying, use of false weights
and scales, injustice in inheritance, removal or un-
fair dealing in the matter of boundaries and limits,
and finally the question : " Has he entered his
neighbour's house, approached his neighbour's wife,
shed his neighbour's blood, stolen his neighbour's
garment ? " l

The mere existence of such lofty conceptions of
sin in Assyria at a period contemporaneous with
the Deuteronomic reformation, and at a time when
the Babylonian code was studied in a somewhat
different form as "the Judgments of Righteousness
which Hammurabi the Great King set up,":: is
naturally of extreme interest. But the general
similarity of Assyrian ethics to Deuteronomy, in
particular, the resemblance between the above-
quoted words and the Hebrew Decalogue should
not lead to hasty and far-reaching conclusions.3
Egyptian literature is not without its parallels, and

1 King, Babylonian Religion, pp. 218-220; Jastrovv, Babylonian-
Assyrian Religion, p. 291 ; Zimmern, EBi. "Magic," § 2&

2 Above, p. 41.

3 Delitzsch, Babel and Bible, p. 53 ; Joh. Jeremias, Moses u.
Hamm., p. 35 sq. The latter cites also from K 3364: "Towards
thy God thou shalt be of a pure heart, that is the ornament of
deity . . . against friend and neighbour speak nothing vile."

CHAP, xi CONCLUSION 279

Vclter has emphasised the fact that several of the .
commandments in the Decalogue find noteworthy./
parallels in Egyptian texts, particularly in chap. 12q
of the Book of the Dead, where the deceased deni
that he has been guilty of such offences as cursing,
•murder, adultery, theft, false witness, and covetous^]
ness. The Mohammedan parallels in the Koran
(Sur. 6, 17) are no doubt due to the influence of the
Old Testament, but to suppose that the latter's
ethical conceptions in their turn are borrowed,
whether from Babylonia and Assyria, or even from"
Egypt, is an assumption which is entirely un-
reasonable and without support.

At what period the Babylonian code first be- \
came known in Israel must be regarded as un- /
certain. Had Babylonia's influence over Canaan
been at all powerful before the entrance of the
Israelites, or even during the reigns of David and
Solomon, we should have expected to find the
clearest traces of the Code in the earliest literature.
Such, however, is not the case, and it must be
acknowledged that this result is of some importance
for the general questions considered in chap. ii.
The parallels which have been noticed comprise the \
treatment of the same topic and an agreement in
the employment of the same principles. But the
topics are treated upon different lines,1 and the
principles, e.g. the talio and the ordeal, are of too
general a nature to admit of the supposition that
they took their rise in Babylonia. A certain

1 So, especially, in the laws of the vicious ox, p. 273 sq. above.

280 THE LAWS OF MOSES CHAP, xi

similarity of structure in the formulae was also
observed, but the evidence was not conclusive.
When we came down to the Deuteronomic code

Iit was still impossible to discover unambiguous ex-
amples of borrowing. Owing to the much greater
scope of this collection of laws, further parallels
with CH were to be found, and the setting of this
Code — the introductory historical matter and the
concluding blessings and cursings1-— may possibly
imply that CH was not unknown to Israelite scribes
Iby the commencement of the sixth century.

The exilic age cannot have failed to make the
Jews thoroughly acquainted with the working of the
Babylonian code, and it is from this period onwards
that the indications tend to grow ever more un-
mistakable. In the first place, the tradition that
?ytheir father Abraham came from Ur of the Chaldees 2
now becomes prominent.3 Even Hammurabi him-
self must find a place in early Hebrew history,
and he accordingly appears as a contemporary of
Abraham, although merely to enhance the glory of
the latter.4 The age of the narrative (Gen. 14) is
unfortunately far from certain. It is a unique
chapter, whose fictitious character is very generally
recognised, but whether the name is derived from
eighth-century material (Kittel, Konig) or is due to a

1 P. 15 above. 2 See above, pp. 18, 41.

3 Gen. 11 31 (P); cp. Neh. 9 7, Judith 56, Jubilees 118, Jos.
Ant. i. 7 i, Acts 7 4. There are reasons for believing that in Gen.
11 28 (J), 15 7 (E), the name has been inserted by later hands.

4 The name Amraphel with initial aleph agrees with the alternative
spelling Ammurabi (King, Letters^ p. Ixv. sq. n. 4).

CHAP, xi CONCLUSION 281

post-exilic writer (so the majority of critics) l is an
open question. It is of greater importance to notice^
that it is not until the Exile that we find Assyrian |
words in the terminology of trade, and it is in the
literature of this period that features relating to
cult and ritual begin to betray a significant re-
semblance to Babylonian usage. Descending still
further, the minute precision of Talmudical legis-
lation shows signs of an acquaintance with Baby-
lonian law, and the Babylonian origin of the legal
phraseology becomes most clearly marked.2

In conclusion, the Code of Hammurabi is of no
little importance for the discussion of the general
extent of Babylonian influence over Canaan. The
evidence, it will have been noticed, does not suggest
that Israelite legislation was to any considerable
extent indebted to Babylonia, and the parallels and
analogies which have been observed are to be
ascribed most naturally to the common Semitic
origin of the two systems. But the view of Joh.
Jeremias,3 that the resemblance between them is
due to the fact that both come from Arabia, is not
entirely correct. The relationship can scarcely be
attributed to direct borrowing from Arabia — with
greater probability it may be affirmed that Arabia,
which has best preserved Semitic characteristics,

1 E.g. Kuenen, Stade, Wellhausen, Meyer, Kautzsch, Addis,
Cheyne, and G. F. Moore.

2 N. M. Nathan, Orientalistische Litteraturzeitung, April 1903,
col. 182; Hermann Pick, Assyrisches und Talmudisches, pp. 21-33
(Berlin, 1903).

3 Above, p. 30.

282 THE LAWS OF MOSES CHAP, xi

ontinued to retain the primitive principles of law
nd justice which the Semites of Babylonia and
anaan developed in different directions. It is to
the Arabia of the nomads — not to the little known
seats of culture and civilisation l — that we must turn
for Semitic legislation in its earliest form, and our
scanty evidence must be supplemented and illus-
trated by the customs of the equally primitive
fellahln and bedouin of modern Palestine.2

Primitive Semitic legislation, seen at its best at
the present day, advances through the earliest
Hebrew laws of the Book of the Covenant and the
Code of Hammurabi (now four thousand years old)
to the post-biblical legislation of the Jews, the Syro-
Roman law-book of the fifth century of this era, and
the later codes of Mohammedan schools. The
growth of Semitic law — as indeed of all law — is the
growth of culture and civilisation :

" Oppida coeperunt munire et ponere leges."
1 See pp. 30 sqq. above. 2 Cp. p. 39 sq. above.

ADDENDA

SINCE the preceding pages were sent to press the
literature of the Code of Hammurabi has rapidly
increased. It has been translated into Italian by
Dr. Francesco Mari, and new English translations
are promised by Prof. R. F. Harper (Chicago), and
Mr. Boscawen. Dissertations, lectures, and articles
continue to appear with regularity, and there is no
reason to believe that the interest which the Code
has aroused will diminish. In his Gesetze Ham-
murabis (Zurich, 1903) Georg Cohn draws attention
to analogies to the Babylonian code in the old
German laws, and doubtless similar analogies from
other quarters could be multiplied by students of
comparative custom. The present study, however,
apart from a few illustrations from the Indian Laws
of Manu, restricts itself to the Semitic field, and
even in this department the available material has
not been drawn upon so completely as could have
been desired. In particular, as regards the customs
of the more primitive representatives, there is room
for considerable development, and some idea of the
possibilities is to be obtained from the traces of
early law among the Abyssinian Bogos to which

283

284 THE LAWS OF MOSES

Hubert Grimme has directed attention (Das Gesetz
Chammurabis und Moses, Cologne, 1903).

As regards the main problem, the relationship
between the Code and the laws of Moses, it is not
sufficient to say that "a relationship is undeniable."
Whether the parallels and analogies are due to the
direct influence of Babylonia or to the common
Semitic origin of Babylonians and Israelites is dis-
puted. The latter of these views is the one urged
by the present writer,2 and he has found no sound
arguments as yet in favour of the former. Only
the theory that Palestine had long been under
Babylonian influence would render the former
reasonable, and if this be assumed it is difficult to
understand why Israelite law shows no signs of
Babylonian terminology. But the assumption is
one that is not to be made too readily. Signs are
not wanting of a certain impatience among Assyri-
ologists at the extent to which the theory of Baby-
lonian influence has been pushed, and at the manner
in which support has sometimes been claimed for it.
It is not unnecessary, therefore, to utter a warning
against the tendency to over-estimate the importance
of Assyriology for biblical study. Its value is un-
deniable, but the results must be viewed in their
true perspective. The " wand of cuneiform re-
search " has not caused all the difficulties of the
Old Testament to vanish ; it has brought fresh

1 The Guardian, 22nd April, p. 559.

2 Cp. also Fried. Kiichler in Die christliche Welt, no. 23, 5th
June ; and Grimme, op. cit.

ADDENDA 285

problems. Further, it has brought an accumulation
of material, with the result that Assyriology — like
the Arabic lexicon — can be used to support almost
any view. How prolific are its resources, how
inexhaustible its treasures, is excellently displayed
in Winckler and Zimmern's Keilinschriften und das
Alte Testament, which — though few will recognise
in it a new edition of Schrader's famous work — is
indispensable for the study of the cuneiform inscrip-
tions and the Bible. That there is room for
renewed research, for careful testing of older views,
will scarcely be denied, and perhaps it is in the
shape of monographs dealing with special inquiries
that the study can best be advanced. Thus, as
regards the absence of Babylonian legal terminology
in old Hebrew, to which reference has already been
made (see also below, note to p. 207), the philo-
logical argument is stronger than usual, and such a
study as that by Prof. R. D. Wilson, on a com-
parison of the leading ideas of Babylonia and Israel
based upon their vocabularies, is a type of the
monographs now most opportune.1

Page 65, n. I. Wellhausen's statement (Arab. Held.™ p. 189)
appears to relate to Christian and not to Mohammedan custom (see
G. Jacob, Altarab. Beduinenlebenj® p. 212).

Pages 72, 1. 2 ; 93, 11. 4-7. In the New Babylonian period,
however, the wife was no longer qualified to act as witness (Daiches,2
p. 19 ; on the position of woman, see also zV/., p. 85 sq.\

Page 91, n. i. InCH, §161, the lover is called be-el as-sa-tim^

1 Princeton Theological Review ', April 1903, pp. 239-255.

2 " Altbabylonische Rechtsurkunden aus der Zeit der Hammurabi-
dynastie," in Leipziger Semitistische Studien, vol. i. heft 2 (1903).

286 THE LAWS OF MOSES

with be-el as in § 129 (cp. p. 77). Johns renders " the claimant of the
wife," but the literal translation, "owner of the wife" (as in § 129) is
to be preferred. This use of assat suggests that in § 1 30 (p. i o i ) the
law may refer to the violation not of a man's wife, but of his betrothed.

Page 101. See notes on pp. 91, 114.

Page 112, n. 2. The rendering "shackles" (servitude) for ab-bu-
ut-tum seems improbable in view of § 226 sq. ; ab-bu-ti ardi la se-e-
im u-gal-li-ib (Daiches, op. cit., p. 98, n. 3).

Page 114, 1. 4 from end. "They shall shave off her hair." So
Pinches, but the original is u-ga-la-ab-si (Daiches, p. 95), and the
preferable translation is, " They shall put a mark upon her " ; see
above, pp. 102 (foot), 159. Daiches (p. 96 sq.) points out that
the maid's fidelity to her master and husband is not stipulated in
the contract, and observes that this throws some light upon the
episode of Reuben and Bilhah, etc. (see the references above, p. 97,
n. 4). The deeds of Reuben, Abner, Absalom, and Adonijah were
not crimes, but acts of presumption and offences against good morals.
David's concubines were not put to death, but simply placed in
confinement ; they received maintenance (cp. p. 1 18 above), but were
not free to marry again, at least during his lifetime. Cp. also § 158
(p. 10 1 d], where intercourse with the father's wife (not the man's
own mother) is lightly visited (contrast c).

Page 143, n. i, 1. 2. Cp. also p. 168 (head).

Page 157. § 279 is illustrated by a contract of the time of
Abesu, relating to the purchase of a female slave, wherein the
responsibility of the seller for any subsequent dispute is said to be
" in accordance with the king's law " (kima si-im-da-at sarriin) ; see
Daiches, pp. 91 sq., 94, n. 2, who refers also to § 51 (p. 231 sq.
above). For the phrase, it may be noticed that Hammurabi, in one
of his letters (King, p. 39), orders Sin-idinnam to give judgment
"according to the law" (ki-ma si-im-da-tiin).

Page 174, n. 3. On apalu, "to make compensation for," see
Daiches, p. 41.

Page 196 sq. My attention has been drawn to the fact that my
suggestion, that the law in Lev. 199, 23 22 took its rise in ceremonies
relating to the corn-spirit, has already been made by Fr. Schwally,
Semitische Kriegsaltertiimer, 186 sqq. (Leipzig, 1901).

Pages 207, foot, 265 sqq., 281. Grimme (p. 44), too, emphasises
the fact that had Israelite law borrowed from CH we should have

ADDENDA 287

expected to find Babylonian legal terms in use ; only dayyan (see
above, p. 55), "judge," and din, "judgment, suit," occur to prove
that both Babylonian and Hebrew are offshoots of the one original
Semitic tongue. So the use of bdal and its equivalent be-el in the
two legal systems (p. 77 above) is no proof of borrowing, and it is
worth noticing that the slave's master is not called bdal in Hebrew,
but a different term (adonlm) is used (pp. 165, 171).

Page 243, n. I. The Septuagint, too, thinks of magical potions ;
cp. the meaning of the root k-s-ph as suggested by Robertson Smith
(see EBi. « Magic," § 3 [2]).

Page 247 and n. 4. In § 224 sq. the veterinary is described as a
cow or ass doctor. " Sheep doctor," Mr. Johns informs me, is due
to a slip of the pen.

Page 253. The essential difference between the two codes, as
Grimme points out (p. 39), appears in the fact that CH deals with
an intentional assault upon the woman, whereas in the Hebrew law
she is the victim of an accident. See below.

Page 268 sq. The differences are worked out at greater length
by Grimme (pp. 36-43) who sums up: "Numerous cases which the
Book of the Covenant handles are wanting in the Code of Ham-
murabi ; frequently both deal with the same case but with different
results. Where the same case is treated in the same manner by
both, the common source is the customary Old Semitic law reach-
ing back to long before the time of Hammurabi. Direct influence
of the Code upon Mosaic penal law must be held to be out of the
question." In like manner, H. P. Smith (Old Testament History,
p. 174), speaking of the Book of the Covenant, observes: "its
simplicity when compared with the code of Hammurabi confirms its
independence. The points of resemblance, some of which are
striking, are features common to oriental society."

Page 280, n. 4. The final consonant of Amraphel has not yet
been satisfactorily explained. Hiising ingeniously joins it to the
following word and renders, " And it came to pass in the days of
A-m-r-ph, as Arioch king of Ellasar was over Shinar [Babylonia],
that Chedorlaomer," etc. (A. Jeremias, Im Kampfe um Bibel^ 13 ;
Winckler, Abraham ah Babylonier, 23, n. i). But the reading is an
awkward one, and it must be admitted that the failure to explain the
Hebrew form constitutes one objection to its identification with the name
Hammurabi (see also Johns, in the Expositor October, pp. 282-293).

INDEX TO THE CODE OF HAMMURABI

For -an abstract of its contents see above pp. 8-10. The more important
references (containing a translation, paraphrase, or abstract of the law in question)
ire printed in heavier type. Small inferior figures refer to the footnotes upon the
page cited.1

Section in the
Code.

Page.

Section in
Code.

Page.

241 sq. , 277

. 185, 214

64, 102, 242, 277

. 186

1 *. .

. 185

BBsq., 2153, 271 sq.

. 186, 230l

211, 214, 216

186 sqq.

138, 154, 207, 211,

. 186, 188

225, 2474

. 186

1743- 211, 2474,

. 187

2652, 270

. 190, 199

592,65, 214,217.??.

. 190, 192

9-13 .

270

. 190 sq., 192, 199,

10 sq. .

217

2004

215, 217

45-47

. 191

217

. 230, 233l, 275

169, 214, 241, 269

. 231

156

49 sqq.

• 2322

15-20 .

I7il5 274

. 231

156, 218

. 210, 231 sq.*

157

. 231

136, 156

53 sq.

. 198 sq., 270

157

55 sq.

. 199, 270

60, 157

• 77

160, 212 sq. , 260

57 sg.

. 200, 270

22 :

214

. 77, 193, 197

. 192, 197

23 sq. .

214, 255, 270

61 sq.

. 192

25 . .

212, 260, 27ij

. 192, 199

185

64 sq.

• *93

27 sq. .

186

Lacuna.3

131. 186

100-102

. 238

30 sq. .

186 sq. , 191

103

. 60, 238

32 sq. .

185

104 sq.

. 238 sq.

1 For other Babylonian and Assyrian laws (some of which probably belonged to the Code),
ee pp. 3, 832, 85, 87, io32, 121, 123, 129, 144, 155, 161, 1754. i888, 2003, 231, 244.
1 See the Addenda, p. 286 (to p. 157). 3 See p. 9, and n. i above.

289

290

THE LAWS OF MOSES

Section in the
Code.

Page.

Section in the
Code.

Page.

106 sq. .

. 60, 239

153

103, 121, 27ij

108

. 211, 27l!

154

100, 1743, 271

109

. 150, 241

155

74, 100 sq., 271

110

. 149, 27ij

156

753- 100

111

. 211

157

101, 107, 150, 271

112

215, 239

158

101, 271

113

. 230

159*/. .

80, 911

114

• 229, 275

161

ii'

115

. 230

162

116

155, 230, 250,

163 . .

82, 833, 87, 90

274 sq.

164

82, 87, 89 sq.

117

. 161, 1642, 2284,

165

89, 138 sq.

229, 233, 267^.,

166

74, 139

275

167

113, 140

118

. 161, 229, 268

168*7. .

136

119

. 161, 229, 268, 275

170

in, 140, 161

120

. 60, 77, 226

171

82, 89, 140 sqq.,

121

. 225

161

122 sq. .

. 225 sq.

172

753- 89. I36i> 1*2,

124 sqq. .

215, 225 sq.

275

125

. 270

173*7. .

88, 142

126

. 60, 225 sq.

175

162

127

. 102, 1294, 160,

176

162, 268, 273

27*1

177

143, 275

128

. 81

178

148

129

. 77, 101, 103, 105,

178 sqq.

89 !

121, 271

179

147

130

91, 101, 105, 271

180-182

148

131

• 60, 753, 102, 105,

183

146

1 08 sq.

184

139, 146

132

. 64, 102, 109

185

133

. 122, 271

186

133, 1352

134-136 .

• 75.3- 122

187

134

135

. 130

188 sg. .

133

137

. 753, 112, 119,

190

133- 135

1254, 131, 1432

191

135 sq.

138

. no, 119

192 sq. .

134, 271!

139-141 .

. 120

194

130

142

• 753, 103- 121,

195

134, 137, 268, 27ij

1254, 136!

196

2711

143

. 121, 27Il

196-198

250

144

. Ill

199

155, 250, 269

144 .w. .

. 113 sgg.

200-204

250 sq.

145

. Ill, II2J

205

160, 250 sq. , 271.,

146

112, 116 sq., 1293,

206

61, 1743, 254, 260,

154, 1 60 sg.

269

147

. 112, 142, 161, 268

207

254 sq. , 260, 269

148

. 113, 118 sq.

208

254 sq. , 260

149

. 75 3, 113, 118*7.

209

252

150

82, 89, 90, 139,

209-214

269

1414

210

252, 261, 274

151

. 228 sq.

211-213

252

152

. I74S, 229

214

155. 252

1 See the Addenda, p. 285.

INDEX TO THE CODE OF HAMMURABI 291

Section in the
Code.

Page.

Section in the
Code.

Page.

215

247, 253

250

251

216

247

250 sqq.

269, 274

217

155. 247, 253

251

252 sq.

218

247, 271 1

252

155, 252 sq.

219

247

253

1 60, 174,

220 . .

155, 247

2711

221 sq. .

247

254-256

174

223

ISS, 247

257^. .

173

224^. .

247 s?.1

259 j?. .

199, 215

226

159, 27ix

261

173

227

61, 159 s?., 212

262

1751( 262

228

245

262-265

2474

229

77, 245

263 sq. .

175

230

245, 261, 274

265

175, 2ii2

231

155, 245

266

61, 77, 175,

232^. .

245

2641, 273

234 sq. .

220

267

175, 177, 270

236-239

221

268-270

199, 2134

240

60, 221

269

2474

241

229, 234, 275

271 sq. .

200

242 sq. .

199

273

172

244

1754, 178^ 222,

274

173

264}, 270

275-277

220

245

77, 222

278 *?. .

157 x

245-248

275

280

158

246-248

222, 224

281

60, 77, 158

249

60, 1754, 178^ 222,

282

160, 27^

264^ 270

215.

177

1 See the Addenda, p. 287.

2 See the Addenda, p. 286.

19 a

INDEX OF BIBLICAL PASSAGES

The references are to the English Version throughout,
numbers refer to the notes on the page cited.

The small inferior

GENESIS

Page.

221-24

• "5

4l2

424.

! 216

1128, 31 .

2803

Il3o.

. 116

11 31.

. 28o3

12 10-20

. 106

14 .

. 280 sq.

14i .

. 7, IT sq.

149 .

. 17 sq.

14i4.

• i64l

15 1-4

. 163

15 7 .

. 28o3

16 .

II 6 sqq.

17X2.

. i64l

19 .

. 103

20i-i7

. 106

209 .

• 494

20i2 .

• 972

21 .

116 sq.

21 10 .

. 117. 141

21 21 .

• 74

2133 •

i953

23 .

. 38, 208

24 .

. 163

244 •

• 74. 99

2422, 53 .

8ij

2436 .

. 138, 141

24 50 sqq. .

• 74

24s8 .

• 75

25s sq.

. 141

266-n, 13 .

. 106

2635 •

. 76

2746 .

. 76

29i9 .

• 99

2925 .

. 81

2926 .

. 494. 81

GENESIS

Page.

29 31-33

2934 •

IIIo

30 1 sqq.

. 116

303 .

. 140

309 .

. 116

3022 .

ni2

8031 sqq.

. 176

31 7 sq.

. 176

31 14-16

- 83

31 32 -

. 211 sq.

31s8 J?.

. 176 sq.

31 50 .

. 86

33 19 .

• 38

104, 128

347 •

• 494

348 .

• 75

3430 sq.

. 104

3522 .

• 974

3725, 28,

36 . . 206 j

386 .

• 74

38 ii .

• 145

38 17 .

. 82

8824 .

. 107, 124

449 •

. 2I4l

44 17 .

. 214

47 13 sqq.

• 235

485 .

494 .

• 974

497 .

. 104

EXODUS

2i-io

. i34

620 .

. 97

• 19. 56

20 1-17.

. See below,

" Decalogue,

p. 301.

293

294

THE LAWS OF MOSES

XODUS

LEVITICUS

207 .

Page.

5i .

Page.

210

2023-26
21-23 .

. 2663
. See below,

6 1-7 .

65 .

y
. 219, 227
. 67

' ' Covenant,

17-26 .

. See below,

Book of," p.

" Holiness,

301.

Law of," p.

21 2 .

. 265 sqq. , 268

303-

21 2 sqq.

. 164 sq.

. 97

21 3 .

. 268

183 .

. 272

217-n .

1 66 sq., 268

186 .

. 98!

219 . •

• 83

18x8 .

• "Ss

21 12 .

170, 261

1823 .

. 1152

21 12-14

. 254, 269

. 46

21 12-17

. 266

193 .

. 72

21 «s .

. 722, 137. 268

199 .

. 196

21 16 .

169, 241, 269

19 13 .

. 171

21 17 .

• 722, 137

19 15 .

• 655

21 18 sq.

. 254, 269

19 16 .

102

2l2o sq.

. 170, 254

19 19 .

.196

2122 .

. 46i, 554, 253,

1920 .

. I67

257, 269

19 23*7.

. 197

2123 .

. 266

1929

149

2123-25

. 2492, 253

1936 .

2O6

2l24 .

. 271!

. 97

21 26 sq.

170, 254, 269

20g

• 137

2128-32

. 252, 269

20n sqq.

. 271

2130 .

. 461, 554' 257

20x4 .

ioo3, 106, 271

213i •

. i622, 273

20i5 sq.

IZ52

2132 •

. 257

20x7 .

. 271

2133-36

223, 246

2020 sq.

. 98, 271

22 1-4 •

. 213, 215, 2i61(

2027 .

. 243

2652, 270

21 1 sqq.

. 94

222 sq.

. 2564

21 2 .

223 •

270

21 7 .

. 103,1124,1242

225 sq.

197, 201 sq. ,

21 9 .

. 106

266lF 270

21 12 sq.

. 94

. 61, 226, 270

21 14 .

103, 112^, 1242

61, 218, 270

2322 .

196

22 io sq.

6i,ji77^. , 270

22 12 sq.

. 177, 270

. 188

22*4 sq.

. 223 sq.

253*.

. . 196

22i6j?.

. 461, 103

25xo .

. 229!

22x8 .

. 243

25 20-22

196

22x8-239

. 266

2535 sqq.

• 170, 233

22i9 .

IX5

2549 •

. 164

2222 .

. 145

25S3 -

• 173

222S-27

• 233 sq.

27i5, 19

. . 67

23 1 .

. 68

233 •

• 65s

NUMBERS

234 .

. 219

5 5-8 .

• 2193

236-8 .

65,5

. 67

23 io sq.

196

58 .

23 io- 19

. 266

611-31

. 108 sq.

24 14 .

. 268

5 19-22

. 249l

INDEX OF BIBLICAL PASSAGES

295

NUMBERS

DEUTERONOMY

Page.

. S62

2222 .

. 106

2029 .

. i682

2223 .

. 78

21 9 .

. 24635

2223-29

. 104 *.

2659 .

. 97

2224 .

. 91, 108

• 145

2228 *.

. 46!

81x7*.

IOI2

2229 .

. 84 j, 108 *.,

31 27 .

• 43 1

124

• 258

22 30 .

. 97

35 30 .

. 68

23 15 *.

. 171. 274

• J45

24 x-4 .

. 124 *.

246 .

. 234

DEUTERONOMY

247 .

. 169, 241

lg sqq.

. 56

24 xo sq. ,

12*., . 234

. 15,

24x4*.

. 171

442 .

. . 6i!

24x6 .

. 26l

56-21 .

. See below,

24x7 .

. 6sB> 234, 275

"Decalogue,"

25 x-3 .

. 251

p. 301.

25xx *.

. 251, 27^

521

. 72

25 13-16

. 206

7 10 .

. 261!

27x6 .

• 137

1232 .

• i58

27x7 -

. 194

15i-n .

• 233

27x9 .

- 65*

15l2-l8

. 167

2720, 22 *. . . 97

16 18-20

• 57

2721 .

• "52

16i9 .

- 65s

2863 .

• I37i

176 .

. 68

348 .

. i682

177 -

. 258

178-13.

• 57

JOSHUA

17i7 •

. 115

15x6 .

. 78

18 10*.
19 1 1 *.

• 243
• 258

JUDGES

19 12 .

• 57

122 .

. 78

19i4 -

• 194

5x4 .

• 55

19is .

. 68

8*. .

• 54

19i7*.

• 57. 63

830 .

. 115

19 19 .

. 67

83x .

. 76

1921 .

. 2492

92 .

. 115

207 •

. 78

112, 7 .

. 141

20 13 *.

. 168

14 x sqq.

. 76

20 19 •

. 197

15x .

. 77, 82j

21 1-9 .

. 256

172 .

219

21 a, 5 •

• S7i

17xo .

• 173

21 10-14

. 167

1725 .

; • 763

21i5-i7

1 1 6, 140

187 .

. 210

21l8-2I

• 137

. 103

22 x-3 .

219

192-4 .

. I2Sl

226 *.

• I972

21 *. .

IOT2

228 .

. 245

229 .

. 196

RUTH

22 13 •

• 1254

222 .

. 105

2213-21

107, 109

3I7 .

• 75i

22xs *.

• 57

42 .

• 59

22 19 •

. 46 j, 109, 120,

47 *.

. 209

124 4xo sq.

. 208

296

THE LAWS OF MOSES

i SAMUEL

CHRONICLES

Page.

12 .

. 116

234 sq.

. 163

16, 10

n6j

2725-31

. 188

2s •

169
61

CHRONICLES

7 16 sq. , 8

• 554' 58 sq.

• 57

814 •

182, 1872

EZRA

9 3-8, 22

. 163

5, TI

1734^-

. 177

*J Jt L L

4i>i

1825 .

. 78

NEHEMIAH

222

• 233

• 233l, 235

24 15 .

• 55

5« .

25 10 .

. 171

97 •

. 28o3

254i .

. 166

25 42 .

I45i

JOB

2544 •

I25i

24 .

. 2490

283, 9, 21

. 241

9 19 •

30 24 sq.

• 431

1326 .

• 654

1619 •

. 210

2 SAMUEL

20 19 .

. 235

234 .

268,

37 •

814 -

• 974
. 125

242 .
243 •

• i9Si
. 234

5 13 •
126 .

. 215 sq.

29 7 sqq.
31 ii .

• 59
io62, 268

13 12 .

• 972
. 494

31i3-i5
3128 .

164
. 268,

1323 .

• i872

3135 .

. - 6s/

\£?q\

152 .
1622 .

. 56
. i872
. 56, 268a
• 974

33 to, 34s
41 4 •
42iS .

• 173

. 146

1723 -

. 138

PSALMS

2424 .

27 sq.

. 1404

2 10 .

• 55

i KINGS

685 .

• 55

222 .
226 .

• 974
. i872

80 16 .

1015 -

. 2022
IO2

239 •

. 171

PROVERBS

816-28

. 56, 130

2 17 .

. 86

831 sq.
9x6 .

. 63
. 86

222 .

59 .

• J37i
• I053

11 1-3 •

115

61 .

209

143i, 152

20 39 sq.

• 99
. 169!

6 1-5 •

631 •

• 235
. 215

• 55

634 sq.

2 KINGS

7 19 sq.
11 15 .

• 237
• 235

4i .

. 169, 233

1525 .

r95i

52-4 .

. i66x

172 .

. 163

812 .

• 169!

17 18 .

• 235

146 .

261

20 16 .

• 234

149 •

• 75

2020 .

137

15s •

2226 .

209

20 1 .

; '. 138

2228, 23 10

• *95i

INDEX OF BIBLICAL PASSAGES

297

PROVERBS

HOSEA

Page.

27 13 -

. 234

2*7. .

I25i

2924 .

219

5 10

195!

30 17 .

. 129

77 -

• 55

3023 .

. 163

812 .

. 44

12 12 .

. 176

CANTICLES

13x6 .

169

4 12, etc.

272j

AMOS

13, 13

. i69j

ISAIAH

26 .

. 169

27 .

ioo3

lag

3 n

J77i

36 sq.

• SSi

8s •

. 2063

4i .

. 144

5s, 24

. 202o

MlCAH

163 ,

• 553

Ix4 .

. 862

223 •

• SSi

3i .

• 55

27 ii .

. 2022

39 .

• 55 sq.

81 4 •

. 177

76 .

49 15 .

722

508 .

. 268!

ZECHARIAH

544 .

. 144

53 •

. 219

546 .

. II24, 125!

11 13 •

. 176

6613 .

. 722

MALACHI

2i4 .

. 86

JEREMIAH

3s •

. 171

2x4 -

234 •

. 213

TOBIT

3i .

. 124

614 .

. 173

34 .

7i4, 821

. 86

21 1 1 sq.

i : ss1

92 .

• 237

22 13 .

. 171

31 30 .

. 261

JUDITH

326 sqq.

. 188, 208

56 .

. 28o3

32n, 14

209 j

87 .

348 sqq.

. 170, 229!, 233

BARUCH

EZEKIEL

643 •

. 149

154l 6.
168

. 2O22

. 86

MATTHEW

1633 •
1640 .

. 82l

. 106

625 sq.

538 .

• 235
. 2492

19 12 .

. 47, 261

2O2 g

1345 •
154 •

• 237
• 237

22 ii .
40 sqq.

4422 .

• '972
. 46

. H24

18x6 .
20 1 sq.

266o .

. 68

• 173
. 68

45 10-12

. 206

46i6-i8

. 188

MARK

46 17 -

. 229l

10 12 .

126

298

THE LAWS OF MOSES

198

85 .

10l2

LUKE

JOHN

ACTS

Page.
215

106
177

. 280

i CORINTHIANS

Page.

. 176

2 CORINTHIANS

i TIMOTHY
619 . . . .68

or "
UNIVERSITY

£AL»FQJL™

GENERAL INDEX

The small inferior figures relate to the notes upon the page cited. The
following abbreviations have been used : Ar. —Arabic, Aram. = Aramaic, Bab. =
Babylonian or Assyrian, Heb. = Hebrew, Syr. =Syriac. For a general rtsumi
see above pp. 8 sqq. , and the references in the Index to the Code of Hammurabi
(pp. 289-291).

a, thinning to i, 233

Abatement of rent, \gzsq. ; of interest,
230

Abesu, letter of, 156, 286

Afiot (Heb. ), pledge, 234 j

Abraham, traditional contemporary of
Hammurabi, 18, 41, 280 ; purchase
of cave of Machpelah, 38, 208. See
Hagar

Abit (Bab.), husband, father, I2X

Abuttals, 183

Accad, ii ; Accadians, 49 1

Accessory, 160

Accidental loss, 175, 177 sq., 191 sqq.,
225 sq. , 230

Achan, sacrilege of, 211

Act of God. See God

Adad, 14, 191, 230

Adjournment of case, 218

Adjuration, 63 sq. , 219

Adoption of children, 131 sqq. ; in
Israel, 1404 ; their rights of inherit-
ance, 135 sq.

Adultery in Babylonia, 103, 114, 121 ;
in Israel, 104 sq. , 108, 271 ; later
Jewish law, 109. See Slander

Agents, relation to merchant, 237 sqq.

Agriculture, among nomads, i8i2;
in Babylonia, 188 sqq. ; in Israel,
194 sqq.

Ahi-wadum, 26

Ai (divine name), 27

Akbaru (Heb. 'akbor?), 23

Alimony, i222, 131. See Mainten-
ance

Allotment. See Benefice

Allowance. See Abatement, Alimony

Alphabet, Semitic, 32 sqq.

Alteration of contracts, 230 1

'Am (Heb.), "family," 21

Amah (Heb. ), maid-servant, 116, i66j ;
Babylonian amtu, in, ii22

Amarna tablets, evidence of Babylonian
influence, 35 sq. ; cited, 273, 56 lf 78,
1693, 260

Amat-samas, " maid of Samai, " 149

"Amen," formula in oaths, 623, 227

Ammi-saduga, 21

Ammi-saduka, 22

Ammi-Satana, 22, 35 sq.

Amraphel = Hammurabi, 18, 28o4, 287

Amtu. See Amah

'Anath, 26

Anu, 71

Anunnaki, the, 15 a

Approval, slave bought on, 157; goods
on, 158 ; land on, 186 sq.

Arabia, research in, 2 ; A. and Israel,
19 ; A. and Babylonia, 21 sqq.,
29 sq. ; home of Semites, 29 sq.,
281 sq. See Minean, Sabean

Arabian origin of dynasty of Ham-
murabi, 19 sqq. , 34 sq.

Arad-Elali, 26

Arad-Samas, marriage of, 113 sq.

Aramaeans, 22 sqq. , 28; shepherds,
178

Aramaic, dialects, 22 sq., 25,
legal papyrus, 235

Arioch, 17

299

3oo

THE LAWS OF MOSES

Arson. See Burning

Artisans, adopt children, 133 ; wages,

172 sq. See Labourers
'ASdm (Heb. ), blood-guiltiness, 106
Ass, 199, 211, 2474, 287. See Cattle
A ssat (Bab.), wife = betrothed, 91^ 286
Assaults, upon slaves, 155, 250, 254 ;

upon free men, 249 sqq. ; upon

women, 252 sq.
Assessment of damage, for assault, 255,

259 ; for damage by cattle, 200 ;

for destruction of trees, 193. See

Average yield, Neglect
Assignment for debt, of family, 161,

164, 229 ; of fields, 231
Assur, earliest mention, 8
Asurbanipal, library, with fragments

of Babylonian laws, 6 (cp. ^l)t 41,

244. See above, p. 289, n. i
Asylum, 258

Attachment, 198. See Assignment
Aunt, marriage with, 97 sq.
Average yield as assessment for damage

or negligence, 190 sq., 192 sq. , 199.

See Assessment

Baal (Heb.), Bab. be-el, owner, hus-
band, 77, 92, 286 sq. ; Baal- mar-
riage, 73 sq., gosq., no, 124

Bab (Bab.), gate, seat of judgment,
42 sq.

Babylon, n, 16

Babylonia, culture and laws, 3 ; society
in, contrasted with Semites, 48 sq. ;
influence over Canaan, 19, 35 sqq. ,
279

Bairu (Bab.), officer, 1843

Banishment. See Exile

Bars to marriage, 97 sqq.

Bastinado, 45, 251, 27ij

Beasts, wild, damage by. See Lion

Bedouin, retention of primitive customs,
39^,282; illustrations, 52,60,63,70,
783, 79, 81, 92 sqq., g82, 992. 104
sq., 107, io8lf ii6lf 1253, I26, 13*11
1434, 1444, 167^ 1713, 1783, 181,
i88lf 193 sqq., 197^ 1983, 201 3,
2133, 2144, 2islt 2163, 223, 227,
2321, 233, 2521( 2S3V 255, 259,
26 1 j. See Custom, primitive

Bel, 5, 7, 10 sq., 13, 16, 26

Bel-kasir, marriage of, 131 sq.

Belti, 13

Benefices, under the state, 1313, 184
sqq., 187 sq.

Bennu (Bab.), sickness, 157

Betrothal, 80 sq. See Breach of

Promise

Betrothed maiden, residence of, with
father or father-in-law, 91^ 101,
286

Bigamy, in Babylonia, in sqq. ; in
Israel, 115 sqq.

Bil-iddanu, guardian of temple of
Samas, 218

Blessings upon the law-abiding, 12 sq.,
15 sq.

Blood, sacredness of, 50 sq. ; blood-
revenge, 50 sqq., 104, 257 sqq. \
blood-money, 255 sq.

Boats, laws relating to, 220 sqq.

Bond, for legal purchase, 207 ; mar-
riage, 81 sq. , 101 ; deposits, 225.
See Alteration, Contracts

Boundaries. See Abuttals, Land-
mark

Branding, 102, 129 ; of slaves, 159^.,
212

Breach, of promise, 79 sqq. See
House-breaking, Neglect

Breasts, mutilation of, 130

Bribery, 65 sq., 271 sq.

Bride, purchase of. See Mahr, Pur-
chase-price, Tirhatu

Broker, 2373

Brothel, 150

Builder, of house, responsibility for
accidents, 155, 245 sq. ; payment
of, 245 ; boat-builder, 220

Bull, injury by, 251 sq., 273 sq.

Bunu-Anati, 26

Burglary. See Theft

Burial in house, 160, 212 sq.

Burning, as a penalty, 106 sq., 150,
212, 243 sij. ; burning of crops,
202 ; theft from burning-house, 212 ;
in sympathetic magic, 244

Business, 3, 38, 204-239, 265, 272 sq.

Canaan, Babylonian sway over, 17 sq. ;
culture of, 53 sq. ; Canaanite origin
of Hammurabi's dynasty, 18 sqq.,
34 sq. See Babylonia

Canals in Babylonia, 198 sq., 221

Capital suit, 67 ; capital crimes, see
Death penalty

Cappadocia, contract-tablets from, 24

Captives, 121, 154, 167 sqq.

Carrier, responsibilities of, 215, 239

Cattle, general laws relating to, 174
sqq., 213, 222 sqq. ; damage by
251 sq., 273 sq. ; injury to, 222,^.;

GENERAL INDEX

301

hire of, 199 sq. ; royal cattle, 176,
186

Centralisation of justice, 44 sq.

Ceremonial laws, 277 sq.

Changeling, 130

Charming, prohibited, 241 sq.

Chastity in Babylonia, 101 sq. ; Israel,
103 sqq.

Childlessness, in sq. , 116

Children, of slave-birth, 140 sq. , 162,
165 ; sold for debt, 169 ; improve
status of mother, 94 sq., in, 161 ;
relations between children and
parents, 128 sq., 137. See Adop-
tion, Childlessness, Concubine,
Courtesan, Disinheritance, Inherit-
ance, Mother

Code of Hammurabi, discovery, 4 ;
other fragments, 3, 6 (see p. 289, n.
i); Prologue, 6 sq. ; contents of Code,
8 sqq. ; Epilogue, 10 sqq. ; later
history, 41 ; origin, 42, 264, 281 sq.

Collision, 221

Commerce. See Business

Common lands, 171, 180 sqq. ; in
Babylonia, 184, iggl

Compensation, for death of distrainee,
230. See Neglect, and cp. chap.
x.

Concubine, in sq. , 114, 161 ; in
Israel, 116 sqq. ; children of, rights
of inheritance, 140^., 161

Constable (Bab. ba'iru], laws relating
to, 184 sqq.

Contracts, 3, 61, 65, 75, 81 sq. , 84
sqq. , 89, 101, 123, 141, 204, 207,
225, 231. See Alteration, Bond

Corn, 190 sqq., 211 ; storage, 225 sq. ;
as payment, 173 sq., 199 sq. , 221,
230 sqq.

Corn-spirit, 197, 286

Corporate liability, 214, 255 sq.

Courtesan, children of, 134 ; inherit-
ance rights, 147 sq.

Courtship. See Betrothal, Breach of
promise

Cousins, marriage of, 98 sq.

Covenant, Book of (Exod. 21-23),
43 ^., 55, 206, 241, 258, 268 sqq.

Cow. See Cattle

Creditor. See Debt

Crops, given for debt, 231 sq. ;
damaged by storm, 191 sq. ; in-
undation, 199, 270; cattle, 200 sqq. ;
fire, 202 sq. , 266, 270

Crown-lands, 184 sqq.

Curse, 63 sq. \ upon the lawless, 13

sqq. , 1 6

Custody of children, 130 sq.
Custom, primitive, i sq. , 42, 49, 60,

181, 234, 263 sq., 275 sq. See

Bedouin
Cuthah, 7

Dagon, 7, 25 sq.

Damage feasant, 200

Damages. See Assaults, Cattle, Com-
pensation, Crops

Daughter, inheritance rights of, 145
sq. ; source of wealth, 77. See
Marriage

Daughter-in-law, 91, 100

Dayydn (Heb. ), judge, 55, 287

Death penalty, for adultery, 103 sq. ,
106, 114; lack of filial regard, 137;
theft, 156, 211 sqq. ; illegal branding,
1 60 ; receiving stolen property, 217;
illegal business, 225 ; inflicted upon
animals, 252. See Burning, Drown-
ing, Execution, Impalement, Stoning

Debt, hostage for, 161 ; laws relating
to, 228 sqq. , 275

Decads in legal codes, 10

Decalogue, the, 44, 106, 26ij, 266,
278 sq.

Defamation. See Slander

Degradation from office, 66

Deity, giver of decisions, 58. See God

Deposit, laws of, 225 sqq. ; deposit on
payments, 173!, 244

Desertion of wife, 121 sq. ; of adopted
parents, 134. See Repudiation

Deuteronomy, 45 sq., 206, 241, 266,
278 ; "blessings and cursings," 15,
194, 280

Dilbat, 8

Dinah, seduction of, 104

Dishonesty, of labourer, 174 sq. ; in
trade, 206 ; in lost property, 216 sqq.

Disinheritance of sons, 101, 136 sq. ;
of adopted sons, 135

Distraint, 229 sq. , 234

Divorce, freedom of, for the man, 109 ;
in Israel, 124; Arabia, 125 sq. ,
Syria, 127; for adultery, 109 : child-
lessness, in ; extravagance, izosq.,
forbidden, 105, 109; claimed by the
woman, 120 sq. , 126; children of
divorced woman, 130^. See Separa-
tion, Uzubu

Doctor. See Physician

Donatio ad causam, 248

302

THE LAWS OF MOSES

Donatio propter miptias, 77. See

Nudunnu

Dowry. See Marriage-portion
Drink, price of, 210 sq.
Drowning, 27 ij. See Water, ordeals

by
Durdru (Bab.), 159^ 229 x

Ea, ii, 13, 16, 58

Eabani, story of, 963, 115

Ear, cutting off of, 160 : boring of, 165

E-barra, 15

Egypt, influence over Canaan, 37 ;
law and custom of, references to, 45 -,,
54, 58, 62, 68 sqq., 983, 1035, 127,
iSo2, 2I2l, 233, 2473, 2561( 267, 27i1(

273lf 279

El, ii

Elali-wakar, 26

Elamites, 6, 73, 9, 17

Elders, 54 sqq. , 107, 256. See Sheikh,
Sibutv, Ztkentm

Eliezer, slave of Abraham, 163

Ellasar, 7

Emancipation of slaves, 170

Epilogue of the Code, 10-15

'£ras(Heb.), to espouse, lit. to pay, 78

Eri-aku, 17

E-sag-gil, ii sq.

Ethical laws, 443, 463, 277 sq.

'Ethnan (Heb. ), gift, 82

Evidence, how taken, 65 sqq., 217

Execution of sentence, 52 sq., 257, 259

Exile, penalty for murder, 51 ; incest,
100 ; negligence, 174. See Disin-
heritance

Eye, torn out, 134 ; disease of, 247 ;
loss of, by assault, 249 sq. , 254

Fallow, 196

False swearing, 63 sq., 69, 219;

judgment, 66 sq. ; evidence, 67 ;

accusation, 102, 107 ; claims, 226
Family laws of old Babylonia, 129 sq. ;

modification of, 135
Farm, tenure of, 189, 193 sq.
Father. See Abu
Favourite of palace, 134 ; favourite

son, 89, 138 ; wife, 139
Fees. See Boats, Hire, Physician,

Wages

Fields, names of, 1833
Fines, 45 sq. ; for seduction, 100,

103 sqq. ; slander, 107 sqq. ; injury

to slaves, 155 ; negligent labourer,

174 ; injury to cattle, 222 ; negli-

gence of doctor, 247 ; for assaults,

250 sqq.
Fire, damage to crops by, 202 sq. ;

theft at, 212.

First-born, rights of, 116, 139 sq.
Fishing-rights, 198
Flood, damage by, 198 sq.
Forbidden degrees. See Bars to

marriage
Forfeit of purchase money, 143, 186 ;

of debt, 230
Foster-parents, 130 sqq.
Fruit, fruit-trees, 197. See Gardener
Fugitive slaves, 156 sq. , 274

Gallabu (Bab. ), brander, 159; cp. 102,

286

Ganger, laws of the, 184 sqq. , 2324
Gardener, laws relating to, 192 sq.
" Gate," seat of judgment, 39, 58 sq.
Gebtreth (Heb.), mistress, 116, i66j
Gideon, marriage of, 115
Gillah kdndph, 'erwdh (Heb.), uncover

the skirt, etc. , 98 1
Girsu, 8
God, giver of decisions and laws, 4 sq. ,

42, 58, 263 ; in ordeals, 64 sq. ; wife

of the god Marduk, 148 ; act of God,

175 3, 191 sq. , 222, 230, 270 ; oath

before, see references on p. 60 sq.
Gael (Heb.), alleged Bab. equivalent,

144

Goring ox. See Bull
Government, in Babylonia, 3 ; among

nomads, 52 sq. ; in Canaan, 54 sqq.
Governors, responsibility of, 214, 255 ;

act as judges, 57. See Magistrate
Granary, storage in, 225 sq.
Guardian, of young children, 130 sq.,

143 ; of labourers, 172, 174. See

Wall
GUR (Bab. ) = i shekel of silver = 300

KA, i9ilf 1994, 2253

H m Bab. for Heb. 'ain, 21 j
Hdbal (Heb.), to pledge, 234 j
Hagar and Sarah, 116 sqq.
ffalluru (Bab.), 235 sq.
Hammurabi, age of, 3 ; history, 17 sq. ;

dynasty, 18-34 ; name, 21, 2804287;

letters of, 17, 56, 66, 172, 176, 183,

i851( 1985, 2iilf 22i2, 232, 277,

286. See Code
Hand of God. See God, act of
Hands, amputation of, 137, 159 sq.,

215. 247

GENERAL INDEX

303

Harvest, festivals, 197 ; price of drink
at, 2ii ; repayment at, 232

Henotheism, distinct from monothe-
ism, 28

Herdsmen, laws relating to, 175 sqq.,
200 sq.

Herodotus, 1199, 149; 1197, 246; 2133,
267

Hierodule, 148

Highway robbery, 214

Hilal, 26

Hire, of labourers, 172 sq. ; cattle, 199.
See Lease, and below

Hired goods, cattle, injury to, 174,
219 sqq.

Hireling, 171, 184 sq. , 224. See
Labourer

Hirer, duties of, 155

girtu (Bab.), young wife, 120; cp.
122, 140, 142

Holiness, law of, 46 sq.

Homicide. See Manslaughter

Horse, theft of, 216 3

House, 189 sq. , 244 sq. ; house to
house search, 156, 218 ; house-
breaking, 212 sq.

Hulwdn (Ar. ), marriage-gift, 82

Humanity, 274 sq.

flumsa (Ar. ), tribal unit, 26 ix

Husband, purchases wife, 73 sqq. See
Baal, Marriage

Hypothecation of corn-field, 231

lamlik-ilu, 21

larbi-ilu, 21

la-u, li-u-um-ilu, 26

'Idda ( Ar. ), period of enforced widow-
hood, 1 68

Ignorance, pleas of, 61, 160, 254

Ilu, 7

Iluna, in Samsu-iluna, 21 sq.

Impalement, 121

Imprisonment, 235

Incest, 97 sqq. , 100 sq.

India. See Manu, laws of

Inheritance, laws of, 87 sqq., 90,
135 sq. , 138 sqq. , I522. See Children,
Concubine, Courtesan, Widow

Injury to persons, cattle, etc. See
Assaults, Cattle

Innocence, oath of, 60 sqq.

Interest, 231, 235 sq., 238; rate of,
228 ; forbidden, 233

Intestacy, 151 sq.

Intimidation of witnesses, 67

Irrigation, regulation of, 197 sqq.

Islam. See Mohammedan custom
Israel, entrance into Canaan, 53 sq. ,

Israelite law, 42 sqq. and passim
Istar, 8, 11, 14, 72, 96, ioo3, 148

Jealousy, ordeal of, 64, 108 sq.

Jerry-builder, 245

Jephthah, son of a concubine, 141

Jethro, 19, 56

Jewish law, later, reff. to, 47, 62 3, 671,
84, 88V 122, i241( laij, i42j, 145,
1463, 1583, 1593, i70lt 2, I771( 178,

i831( 3, 1932' I96, I985« 2O1' 222>

224 sq., 227, 239, 246, 2513, 255,

281
Josephus, reff. to, 1253, 126, 1973,

214, 219, 233, 243^ 2S32, 255, 259
Josiah, reforms of, 41, 45
Jubilees, Book of, reff. to, 8i4, 972,

107, 28o3
Judge, 253, 271 sq. ; in Israel, 54 sqq.;

Egypt, 70 ; Babylonia, 57 sq. ; on

circuit, 58 ; laws relating to, 65 sqq.
Judgment, procedure, 50, 52 ; false,

66 sq. ; by default, 217
Jus talionis. See Talio

KA Bab.=*for GUR, 191, 1994. 2253

Kallatu (Bab.), bride, ioo2

Kasin (Heb. ), ruler, 55

KSthubtd (Targ.), dowry, 82 2, 142,

145

Kidnapping, 169, 241
KI-GAL (Bab.), unreclaimed land, 1903
King, 240 sq. ; appeal to, for justice,

56, 66. See Hammurabi, letters of
King's standard, 231 sq.

La-ah-bu-um (Bab.), wasting sickness

(?), us,
Labourers, 154 ; wages, 171 sqq. ; re-

sponsibilities, 174. See Artisans,

Hireling
Lalu (Bab.), young animal for thresh-

ing, 199 sq.

Land, 180 sqq. ; hire of, 190 sq.
Landlord. See House
Landmarks, 183 ; removal of, 194 sq.,

278

Larsa, 73, 17
Laws, take their rise in tribal custom,

i sq. , 49 sq. See Bedouin, Jewish

law, Mohammedan custom, Syro-

Roman law-book, Legal terminology
Lease, 189*?., 193^/7., 244 sq.
Legal terminology, 207, 265 sqq., 281

3°4

THE LAWS OF MOSES

Levirate marriage, 144

Leviticus, legislation of, 47

Libel. See Slander

Li-e-it (Bab.), strength (?), 250 sq.

Lion, ravage by, 175, 177, 222

Lost property, 216 sqq.

Lying. See False

Magical practices, 241 sqq.

Magistrate, laws for, 185. See
Governor, Judge

Mahr (Ar. ), 77, 82. See Purchase-price

Maid -servant, 154 ; taken as wife,
in sq. , 114, 116, 161, 166 ; viola-
tion of, 105. See Concubine

Maintenance of wife, 119, 121 sq. See
Alimony

Maknubi-ilu, 23

Manslaughter, distinguished from
murder, 254, 257 sq. See Murder

Manu, laws of, 65, 87^ 179, i8o1(
1993, 20i3, 2i21( 2173, 218, 227, 249

Marduk, 7 sq., 10 sqq., 16, 28, 59;
votary of, 148

Marine insurance, 220 sqq.

Marriage, types, 73 sq., 76, 90 sqq. \
bars, 97 sq. ; with near relations, 97
sqq. ; in Israel, 166. See Bigamy,
Concubine, Incest, Monogamy,
Separation, Widow

Marriage-portion, 84 sqq. , 87 sqq. , go
sg., 118-121, 126. See Seriktu

Marriage settlement, 89 sqq., 118 sq.
See Nudun(n}u

Merchant, 185, 228 j, 237 sqq.

Mthokek (Heb.), ruler, 54

Mtkirtd (Syr.), the "sold one," 78

Mice, loss caused by, 2254

Minean inscriptions, 24, 31 sq.

Minor, 143, 208, 225

Miscarriage, 252 sq.

Mishnah. See Jewish law, later

Mohammedan custom, reff. to, 75, 78 lf
84^ 90, 93, 98, ioi3, no3, in,
123, 126, 1392, 145, 1623, 166,
i682, 182, 187, 2193, 256, 258 sq. ,
279

Mohar (Heb.), 77. See Purchase-price

Monarchy in Israel, 53, 182

Money, 232 ; money-lending, 228 sqq.

Monogamy in Israel, 115

Monotheism in Babylonia, 18, 27 sqq.,
34 ; among other Semites, 28 sq.

Morals, laxity of, 96, 115

Moses, 42, 134, 263

Mofa, type of marriage, 76, 91

Mother, marriage with, 97 sq. , 101 ;

has care of children, 130 sq. See

Children

Mourning, 94, 168

Murabbd (Ar.), fourfold restitution, 216
Murder, 50 sqq. , 214, 254 sqq.
Muskinu (Bab.), a special class of

society, 1203, 276. See "Poor man"
Mutilation, 251, 27 ix. See Breast,

Ear, Eye, Hand, Tongue

Nabatsean illustration, i62j

Naboth, story of, 55, 182

Nabu-apla-iddina, inscr. of, 42) 52* !6j

Nadan (Heb. ), marriage-gift, 82 j

Ndru (ilu). See River-god

Nasdhu (Bab.), to eradicate, expel, i37j

Nazarite, 150

Nedeh (Heb.), marriage gift, 82

NSdiinyd (Heb.), i.q. Nudun(n}u

Neglect, on the part of physician, 155,
247; shepherd, 175, 177 sq. ; culti-
vator, 182, 186 sq., 190 sq., 231;
gardener, 192 sq. ; irrigator, 198 sq. ;
boatman, 220 sq. ; hirer or borrower,
224; builder, 245; cattle-owner,
251 sq.

Nergal, 14

Nergal-itir, marriage of, 99

NER-SE-GA (Bab.), I34j

Ndsek (Heb.), interest, 2334

Nin-a-zu, 7 sq.

Nineveh, 8

Ninib, patron of landmarks, 183

Nin-karak, 15

Nin-marki, gate of, 59

Nin-tu, 7, 14

Nippur, 16

Nudun(n)u (Bab.), husband's gift to

wife, 77, 82 sq., 141 sq. ; i.q. New

Bab. seriktu, 83, 852, 144
Nun-gal, gate of, 59
NU-PAR (Bab.), virgin, 148!
Nurse, 130

Oath. See references on p. 60 sq.

Offenders, first, 136

Operations, fees for performing, 247

Oracles, 64 sq.

Ordeals by water, 64 sq., 102, 108 sq.,

242

Outlawry. See Exile
Ox. See Bull, Cattle

Palace, favourites of, 134 ; slave of,

GENERAL INDEX

3°5

156 ; court of inquiry, 150, 156 ;

theft from, 211 ; ransom by, 185
Pa-la-samas, 22
Parental authority, 128, 137
Patria potestas, not among Semites, 93
Penal law, growth of, 257 sq.
Penalties, restitution, 67, 213, 215 sq.

See Death penalty, Fines, Mutilation,

Stoning, and cp. p. 271 1
Pentads in legal codes, 10, 268
Perjury, 63
Philology, bearing on the problem of

Hammurabi's dynasty, 24 sqq.
Phoenician, 273, 206, 210, 222, 2373
Physician, fees and responsibilities, 155,

246 sqq. , 254
Pledge, for debt, 232, 234, 236 ; of

betrothal, 81
1 ' Poor man. " See Muskinu. Receives

special treatment in §§8, 140, 198,

2OI, 204, 2O8, 211, 2l6, 219, 222

Polyandry, 982
Polygyny. See Bigamy
Pre-emption, 188

Pregnant woman, assault upon, 252 sq.
Price of drink, 210 sq.
Priestesses of temple, 148 sq., 228
Promise, breach of. See Breach
Property in common, 1972
Prostitution in Babylonia, 149 sq.
Purchase-price, 77 sq. , 84, 103 sqq. ;

disputes, 79 sq. ; used as dowry,

82 sq., 90

Rahab, a taverner, 150

Rameses IX., law-suit of, 69

Ransom of captives, 161, 168, 185 ; of

murderer, 252, 259
Rape. See Seduction
Receipt, for deposits, etc., 225, 238 sq. ;

for wife's dowry, 84 sq.
Receiver of stolen property, 216 sqq.
Religious laws, 277 sq.
Re-marriage, 753, 88 sq., 119, 121 sqq.,

124 sqq. , 142 sqq. , 168
Remission of penalty, 103 ; debt, 230,

233

Rent, of house, 244. See Land, Lease

Repudiation, of parents by children,

129, 134 ; of children by parents,

129, 135 sq. ; of master by slave,

160 ; of husband by wife, 103, 114,

120 sq. ; of wife by husband, see

Divorce, Separation

Restitution for theft, 215 sqq., 270;

loss of deposit, 225 sq. ; injury to

cattle, 175, 222 ; injury to slave,

245. 247

Retaliation. See Restitution, Talio
Reward for capture of fugitive, 157
Rimanni-Bil, adoption of, 1323
River-god, 64, 102, 242
Roman law, 93, 128, 151 sq. See

Syro- Roman law-book
Runaway slaves, 156 sq. , 171

Sabean inscriptions, 24, 31 sq.
SAB-GUD (Bab. ), i73j
Sacrilege, 211 sq.
Saddk (Ar. ), marriage gift, 82
Sadika (Ar.), a marriage type, 76,
IJ5

SAGAN-LAL (Bab.), 2373

Sale of persons, 161, 164, 170^ 198,

214, 270

Salome, divorce of, 126
Samas, the sun-god, 4 sq. , 13 sq. , 16,

58 sq., 218. See Amat-Samas
Samas- nuri, purchase of, 114
Samson, marriage of, 76
Samsu, 21
Samsu-iluna, 7, 21
Sarah and Hagar, 116 sq.
Sargon, 134
Scandal. See Slander
Scourging. See Bastinado
SE (Bab.^y^ shekel, 1724
Security, 234 sq.

Seduction, 100 sq. , 103 sqq., 271
Seed, mixture of, forbidden, 196 ; pro-
vided by landlord, 194
Separation of man and wife, 753, 100,

102, 113, 118 sq., 121 sq. ; division of

property, 163
Seriktu (Bab.), gift, marriage-portion,

78, 82 sq., 140, 142, 146 sq., 162.

See Nudun(n)u

Settlement. See Alimony, Nudun(n}u
Sevenfold restitution, 215 sq.
Shaduf, water-wheel, 2i52
Sheep, shepherd, laws relating to, 175

sqq. , 200 sq. See Cattle
Sheep-shearing, 176 j
Sheikh, "elder," duties of, 52 sq.
Shinar, 18
Ship. See Boats
Sibittu (Bab.), pledge, 234!
Sibutu, witness, 58!, 69 1
Sin, moon-god, 26
Sin-mubalit, 8

Siphhah (Heb. ), servant, 1661
Sippar, 5 sq., 15,3, 16, 66

306

THE LAWS OF MOSES

Sirritu (Bab. = Heb. sdrdh], fellow-
wife, 1 15 3

Sister, marriage with, 97 sq., 100, 272^
Slander, 81, 102, 107 sq., 271
Slave, adoption of, 132 ; protection of,

155, 170; purchase of, 157 sq. ,
emancipation of, 170 ; marriage,
162 ; in Israel, 163 sqq. ; fugitive,

156, 274

Slavery, 153 sqq.\ as a penalty, 75,
112, 161, 169, 214

Softer (Heb.), trader, 237,3

Sopket (Heb. ), an official title, 55, 2563

Sorcery, 241 sqq.

Soter (Heb.), a military official, 54

Stepmother, marriage of, 97, 101

Stolen property, receiver of, 216 sqq.

Stoning, 106, 108

Storing of corn, 225 sq.

Strangers, 276

Strangulation, 106

"Strength" of man, assault upon,
250 sq.

Subletting of fields, 191

Suicide in Egypt, 45

Sumer, Sumerians, 49, 72 sq. , 129

Sumu-abi, 17, 23

Sumula-ilu, 8

Sursur (Phcen. ), broker, 2372

Surveys of land, 183

Susa, 4, 6

Sutruk-Nahunte, 6

Syria, legislation in, 41 sq.

Syro- Roman law-book, 68 sq. , 79
sqq., 85, 88 sq., 93, 983, 1034,
118 sq., 127, 137, 141!, I43lf 151
sq., 157 sq. , 162 sq. , 2i22, 2133,
2163, 227, 2301( 236;?., 239, 248,
259, 267, 277

S-z (Aram.), soss(?), 235 sq.

Tablet. See Alteration, Bond, Con-
tracts

Taboo, 211 sq.

Talio {Lex talionis], 44 sq., 249 sqq.,
255 sqq. , 274. See Restitution

Talmud, legislation of, 41. See Jewish
law, later

Tamar, 107

Tarbzth (Heb.), interest, 2334

Taverns, 149^., 240^. See Wine

Tax-collector, 185 sq.

Temple, at the gate, 60 ; priestesses
of, 149; theft from, 211; ransom
by, 185

Tenant, 188 sqq., 244, 246

Testament, or will, 138

Theft, laws, 165, 211 sqq., 226; of

slaves, 156 sq. ; of irrigation utensils,

199. See Kidnapping
Threat. See Intimidation
Threshing with animals, 199
Tirfcatu (Bab.), purchase -price, 77,

783, 84, 120
Tongue, cut out, 134
Tooth, loss of, 249 sq.
Toroth (Heb.), decisions, 43, 47
Torture, 70. See Mutilation
Trachonites, blood-revenge among, 259
Trade. See Business
1 ' Travellers. ' ' See Agents
Treason, 240 sq.
Tribes, custom among, 49 sqq.
Tributary, 1853
Tribute, 21 ij
Trustee, 143

Ur, 7, 18, 41, 280

Uruk, 8

Usury. See Interest

Uzubu (Bab.), compensation for divorce,

114, I2O, 123, 126

Veterinary surgeon, 246 sqq. , 287
Village communities, 180 sqq.
Votary, 102, in, 147 sqq.

Wadd, god, 26

Wages of hireling or labourer, 172 sq. ,

176 ; boatman, 220 sq.
Wall (Ar. ), guardian, 75
Wasm (Ar. ), property-mark, 159
Water, ordeals by, 64 sq. , 102, 242.

See Drowning
Watering utensils, 199, 215
"Weight, the great," 210
Widow, inheritance rights, 141 sqq.,

J45i 275 I taken by heir, 97, 101,

144. See Mourning, Re- marriage
Wife, not of husband's kin, 93 sq. ;

responsible for his debts, 228 sq.

See Adultery, Marriage, Slander
Will. See Testament
Wine, selling of, 150, 210 sq.
Witchcraft, 65, 207 sqq., 241 sqq.
Witnesses, 59, 64, 67 sqq., 225
Woman, position of, 71 sqq., 92 sq. ,

nosy. ; restricted freedom to marry,

74 sq. ; inheritance rights, 145 sqq.,

152,3. See Marriage
Working expenses, 231
Wounding. See Assaults, Cattle

GENERAL INDEX

307

Ya, Yahu, Yahwe, in Babylonia, 26 sq.
Yezidi, custom of, jjl

Zadug, 22

Zamama, n 13

Zar-pa-nit, 12

Zikenlin (Heb. ), sheikhs, 54, 57,

Ziba, slave of Saul, 163

THE END

Printed by R. & R. CLARK, LIMITED, Edinburgh

WORKS BY THE LATE

W. ROBERTSON SMITH, M.A. LL.D.

PROFESSOR OF ARABIC IN THE UNIVERSITY OF CAMBRIDGE

KINSHIP AND MARRIAGE
IN EARLY ARABIA

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NOTES BY THE AUTHOR AND PROF. GOLDZIHER.
EDITED BY STANLEY A. COOK

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epoch-making study of early society in Arabia with its bearing upon the primitive or-
ganisation of the Israelites, and at the time of his death he had made preparations for a
new edition of " Kinship and Marriage." Fresh material had been collected and sifted,
and he had marked out for himself fresh lines of investigation. This material has now
been incorporated, together with a number of notes by Professor Goldziher, Professor
Bevan, and the Editor, Mr. Stanley A. Cook, who also contributes a short introduction.

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