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1915 

NEW  SERIES  NO.  91  MARCH  IS,  1010 


BULLETIN  OF  THE  STATE 


UNIVERSITY  OF  IOWA 


STUDIES  IN  SOCIOLOGY,  ECONOMICS 
POLITICS  AND  HISTORY 


VOLUME  IV  NUMBER  2 


THE  PROPERTY  CONCEPTS  OF  THE 
EARLY  HEBREWS 

BY 


MARTIN  ]OHN>AJjRlP,"V^*'y  <4  TgRfls 

**; APfl  mm 

LIBRARY 


■A     < 


C 

PUBLISHED  BY  THE  UNIVERSITY.  KXft'A  CITY 


ISSUED  TWENTY-ONE    TIMES    DURING   THE    ACADEMIC   YEAR;  "MONTHLY    FROM 

OCTOBER  TO  JANUARY,  WEEKLY  FROM  FEBRUARY  TO  JUNE.     ENTERED  AT 

THE  POST  OFFICE  AT  IOWA  CITY  AS  SECOND  CLASS  MAIL  MATTER 


IN  THE   SERIES  OF  RESEARCH   BULLETINS  OF   THE   UNIVERSITY 


STUDIES    IN     SOCIOLOGY 

ECONOMICS,  POLITICS 

AND  HISTORY 


PROFESSOR  ISAAC  ALTHAUS  LOOS,  LL.D.,  EDITOR 


THE  PROPERTY  CONCEPTS  OF  THE 
EARLY  HEBREWS 


BY 


MARTIN  JOHN  LAURe' 


PUBLISHED  BY  THE  UNIVERSITY.  IOWA  CITY 


THE  HISTORICAL  DEVELOPMENT  OF  ISRAEL'S 

WRITTEN  LAW  * 


Covenant  at  Sinai 


MOSES 

Traditions 

Customs 
Precedents 


About  1200  B.  C. 


J's  Decalogue 
Ex.  34:10-26 


C  Code 


E's  "Judgments" 
Ex.  21:1-22:17 


E's  "Words" 

Ex.  20;   22:18-23:19 


800  B.  C. 


D  Code 


Original  Deuteronomic  code:Dt.   12-26;  28  700  B.  C. 

Later  Deuteronomic  code :    Dt.  4-11 ;   27 

Supplemental    (D's)    additions  621  B.  C. 

Josiah's   reformation 


Ezekiel  's  code 
40-43 


Holiness  code 
Lev.  17-26 


Priestly  teaching 
Lev.  1-3;  5-7;   11-15; 
Num.  5;  6;  15;  19:14-22 


600  B.  C. 


P  Code 


Priestly  code  proper 
Histories,  precedents,  and  laws 


500  B.  C. 


Supplements  to  the  P  codes 
Precedents  and  laws 


400  B.C. 
Adoption  of  new 
law  book  of  Moses 


Oral  or  traditional  law 


300  B.  C. 

Completion   of 
canon    of  law 


Mishna  or  written  version  of  the  oral  law 


100  A.  D. 


Gemara : 


fPalestinian  Talmud 


i  Babylonian  Talmud 


400-600  A.  D. 


*  After  Kent,  The  messa/je   of   Israel's  lawgivers,    Tabular    frontispiece. 


CHAPTER  I 

INTRODUCTION 

Curious  and  interesting  is  the  fact  that  the  translators  who 
gave  us  the  English  Authorized  Version  of  the  Bible  did  not  find 
occasion  to  use  the  term  "property"  in  the  rendering  of  any 
word  occurring  in  the  Hebrew  Scriptures.  Scarcely  less  signifi- 
cant is  it  that  notwithstanding  the  flood  of  critical  literature  upon 
the  Hebrew  Scriptures,  one  looks  in  vain  for  a  treatise  definitely 
dealing  with  the  property  notions  among  this  ancient  people. 
No  article  under  the  heading  ' '  Property ' '  is  found  in  any  of  the 
standard  dictionaries  or  encyclopedias  of  the  Bible.  Nor  is 
there,  so  far  as  the  writer  has  been  able  to  learn,  a  single  work 
upon  this  subject  in  any  of  the  modern  languages.  The  enorm- 
ous critical  activity  expended  upon  the  Old  Testament  has  been 
confined  almost  entirely  within  historical  and  literary  lines, 
treating  the  facts  of  the  Hebrews'  social  life  and  economic  con- 
ditions more  as  an  incident  than  as  a  fundamental  factor  in  the 
development  of  their  great  religious  system.1 

Is  it,  then,  that  the  ideas  of  property  are  wholly  foreign  to 
the  Hebrews?  The  slightest  acquaintance  with  the  prophetic 
literature  at  once  prevents  such  a  conclusion.  This  literature  is 
absolutely  unique,  and  in  no  respect  more  so  than  with  reference 
to  the  property  notions  there  set  forth.2  Furthermore,  it  is  well 
known  that  the  outstanding  historical  characteristic  of  the  He- 
brew race,  second  in  importance  only  to  their  religious  life,  is 
their  "keen  appreciation  of  property."  3 

What  is  the  reason  for  this  dearth  of  material ?  "The  Israelites 
possessed  no  developed  theory  or  system  of  laws  in  regard  to  the 
possession  of  property. ' ' 4  This  is  undoubtedly  one  of  the  best 
answers  that  can  be  given  to  the  question,  especially  because  it 

1  Popular    and   Critical  Bible   Encyclopedia,    p.    861.      S.   v.    "Inheritance." 

2  Compare  the  interest  of  the  Hebrew  prophets  in  "the  poor  and  needy"  with  the 
sentiments  expressed  in  Plato's  Re-public   and  Aristotle's  Politics. 

3  McCurdy,   History,  prophecy,  and  the  monuments.  Vol.   2,  p.   208. 

4  Kent,    The   messages  of  Israel's  lawgivers,   pp.  152-153. 


4  UNIVERSITY  OF  IOWA 

indicates  that  "while  they  continued  in  the  land  of  Palestine, 
economic  and  social  conditions  among  the  Israelites  were  ex- 
ceedingly simple. ' ' 5  But  if  we  shift  the  emphasis  from  the 
theory  itself  to  its  development,  we  see  that  it  is  not  the  absence 
of  property  notions  that  accounts  for  the  lack  of  interest  in  this 
field,  but  the  condition  of  plasticity  or  flux  in  which  we  find 
these  concepts.  In  the  inquiry,  however,  into  the  genesis  of 
property  notions,  these  transitional  changes  which  precede  the 
final  crystallization  of  a  developed  theory,  are  precisely  what  the 
student  must  look  for.  Therefore;  this  field  ought  to  yield  as 
rich  a  harvest  as  any  other,  presenting  as  it  does  the  embryonic 
stages  in  the  evolution  of  the  concepts  of  property. 

Probably  the  most  effective  hindrance  of  a  truly  scientific  in- 
terest in  this  line  of  inquiry  is  to  be  sought  in  the  overwhelmingly 
theological  and  ecclesiastical  coloring  of  everything  connected 
with  the  Scriptures,  and  the  strong  bias  with  which  investiga- 
tions have  been  carried  on.6  Still,  while  this  has  been  going  on 
and  traditional  authority  has  suffered,  the  inherent  scientific 
value  and  the  intrinsic  merits  of  the  Hebrew  records  have  been 
revealed.7  This  is  evident  in  the  recent  interest  shown  in  the 
study  of  Hebrew  history  in  its  sociological  aspect,  where  we  are 
somewhat  more  fortunate  in  regard  to  available  material  than 
in  the  matter  of  their  economy. 

The  chief  source  of  information  in  regard  to  the  property  con- 
cepts of  the  Hebrews  is  the  Hebrew  Scriptures.  Such  monu- 
ments as  the  Mesha  Stone,  dealing  with  Hebrew  life  in  its  form- 
ative period,  are  valuable.  Assyriology  and  Egyptology,  in  such 
material  as  the  Code  of  Hammurabi  and  the  Tel-el- Amarna  let- 
ters, throw  light  upon  the  social  life  in  the  ancient  civilizations, 
but  afford  less  direct  evidence  on  the  actual  development  of  the 
property  notions  of  the  early  Hebrews,  and  carry  us  back  to  a 

5  Ibid. 

6  It  would  be  difficult  to  cull  a  more  striking  illustration  of  this  fact  than  this : 
"Christian  theology  -with  its  bible  has,  for  the  last  three  centuries,  been  the  worst 
enemy  of  science.  .  .  It  draws  life  on  with  a  dose  of  stupidity  not  sufficient  to  kill 
it."      Renan,   History  of  the  people  of  Israel,  p.  50. 

7  "The  din  and  smoke  of  battle  have  hitherto  almost  completely  concealed  the  con- 
tent and  true  significance  of  the  Hebrew  Scriptures.  Attention  has  been  focussed 
upon  questions  of  date  and  authorship  and  the  vital  messages  of  the  individual  laws 
have  been  overlooked."  Kent,  op.  cit.  Preface.  So  also:  "There  is  more  material 
for  biblical  Sociology  than  for  biblical  Theology."  Craft,  Practical  Christian  sociology, 
p.    30. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS    5 

point  where  it  is  less  easy  to  establish  the  exact  connection  be- 
tween economic  concepts  and  social  life. 

In  the  study  of  the  relation  and  the  interaction  between  social 
life  and  property  concepts,  it  is  absolutely  necessary  to  accept  the 
results  of  the  modern  critical  study  of  the  Hebrew  Scriptures. 
Needless  to  say,  without  some  hypothesis  for  use  as  a  critical  in- 
strument, to  attempt  the  study  of  the  development  of  the  prop- 
erty concepts  in  the  Hexateuch  would  be  worse  than  useless. 
With  such  an  instrument,  however,  the  task  is  not  impossible. 
This  instrument  is  afforded  by  the  developmental  or  documentary 
hypothesis.  Based  upon  the  generally  accepted  results  of  the 
so-called  "Higher  Criticism,''  this  hypothesis  embodies  the  re- 
search of  centuries.  Its  validity  is  therefore  assumed  in  the 
present  inquiry.8  Accordingly,  the  familiar  sign,  J.,  E.,  C,  D., 
and  P.,  indicative  of  the  different  document  and  codes,  are  adopt- 
ed. The  order  of  their  sequence  is  best  seen  in  the  accompanying 
chronological  chart.  The  period,  covered  by  this  study,  extends 
only  to  the  D  code,  which  it  touches  only  in  so  far  as  it  is  neces- 
sary to  substantiate  conclusions  not  otherwise  demonstrable. 

The  absence  of  a  fully  developed  property  system  among  the 
Hebrews  has  an  important  bearing  upon  our  study.  It  necessar- 
ily makes  the  investigation  more  fragmentary  and  elementary, 
but,  compensating  for  this,  also  more  fundamental.  There  is  little 
doubt  that  the  Hebrew  notions  of  property  take  us  as  near  the 
original  source  of  the  property  concepts  as  those  of  any  other  peo- 
ple of  which  we  know,  and  probably  a  little  nearer.  The  Hebrew 
records  and  codes  are  not  by  any  means  the  most  ancient,  since  we 
have  knowledge  of  codes,  such  as  the  "Code  of  Hammurabi," 
which  in  all  probability  antedate  the  Mosaic  code  by  a  thousand 
years.9  But  in  this  very  document  we  have  the  fact  clearly  re- 
vealed that  the  antiquity  of  a  code  is  no  guarantee  whatever  of 
its  primitivity.  The  Code  of  Hammurabi  is  very  old  in  history ; 
it  is  very  recent  in  the  civilizational  evolution.  The  Hebrew 
codes  are  late  in  history,  compared  with  the  Babylonian  codes, 
but  they  are  far  more  primitive  as  to  their  place  in  the  evolu- 
tionary process.  In  no  respect  is  this  more  evident  than  in  the 
property  concept.     With  the   Hebrews  we  find  it   at  first  ex- 

8  For  a  brief  yet  comprehensive  summary  of  this  hypothesis  see  Carpenter  and 
Battersby,  The  Hexateuch,  Vol.   1. 

9  Most  scholars  place  this  code   in  the  twenty-third  century  B.  C. 


6  UNIVERSITY  OF  IOWA 

pressed  only  in  a  custom;  in  Hammurabi  in  rigid  statute  law. 
The  social  usages  whence  that  law  sprang  had  been  crystallized  a 
long  time  before  the  compilation  of  this  code,  and  it  has  no  plas- 
ticity whatever.  The  legalistic  rigor  of  the  code  of  Hammurabi 
is  as  perfect  as  in  the  "twelve  tables"  of  Roman  law.  But  this 
is  not  all.  The  code  of  Hammurabi  shows  an  almost  absolute 
differentiation  from  ecclesiastical  authority  and  ceremonial  in- 
stitutions. And,  most  important  of  all,  theocratic  ideas,  so 
fundamental  in  the  truly  primitive  codes,  have  no  room  at  all 
in  the  pure  legalism  of  this  code.  The  presence  of  a  highly  de- 
veloped industrial  system  is  proved  by  its  rigid  laws  of  wages, 
iron  laws,  indeed,  which  are  as  noteworthy  as  they  are  conspicu- 
ous in  this  code.10 

The  few  volumes  available  on  the  subject  of  property  in  its 
genetic  aspect  deal  with  it  mostly  from  the  standpoint  of  physical 
and  legal  fact,  rather  than  from  that  of  its  psychic  origin  and 
development  in  the  social  milieu.  In  the  interest  of  such  a  dis- 
tinction the  subject  of  this  article  was  formulated ;  singling  out 
the  concepts  of  property,  rather  than  the  mere  physical  reaction 
to  economic  conditions,  which  does  not  necessarily  tell  us  much 
of  the  accompanying  mental  attitudes  toward  this  phase  of  hu- 
man activity. 

The  demand  is  for  an  elucidation  of  the  property  idea  itself  in 
early  Hebrew  society.  That  this  can  not  be  done  without  actual- 
ly tracing  the  owning-function  as  a  physical  fact  is  self-evident, 
but  our  aim  is  to  distinguish,  so  far  as  possible,  the  psychical 
elements  involved  in  the  property-practices  as  they  manifest 
themselves  in  the  sources.  This  has  long  ago  been  done  with 
reference  to  the  God-idea  of  the  Hebrews.  Why  should  not  the 
property  idea  found  in  the  same  sources  deserve  as  close  a  study, 
especially  since  present-day  civilization  discloses  to  us  the  start- 
ling fact  that  the  property-idea  tends  to  a  very  large  extent  to 
supplant  the  real  importance  of  the  God-idea  in  practical  life  ?" 

10  For  a  detailed  study  of  this  subject  and  the  code  in  full,  see  Hastings,  Dictionary 
of  the  Bible,  Extra  Vol.,  pp.   584-612. 

ill  Compare  with  this  the  two-fold  division  of  human  society  employed  by  Morgan 
in  his  Ancient  society,  the  kinship  and  the  territorial;  that  is,  the  bond  of  blood  in 
early  society  is  supplanted  by  the  bond  of  property  in  civilization.  This  is  his  esti- 
mate of  the  importance  of  the  property  concept :  "A  critical  understanding  of  the 
IDEA  of  property  would  embody  in  some  respects  the  most  remarkable  portion  of  the 
mental  history  of  mankind."  P.  6.  And  W.  Robertson  Smith  has  this  to  say  of  the 
property  idea,    viewed  from   the   standpoint   of  religion:     '"We  find     .      .      .     that    as 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS    7 

If  science  be  justified  in  tracing  the  mental  content  of  the  religi- 
ous concepts,  it  is  surely  its  plain  duty  to  try  its  hand  at  the 
disentanglement  of  one  of  the  greatest  problems  in  civilization, 
the  property  concept. 

Considering  the  fundamental  nature  of  this  subject  in  actual 
life,  it  may  be  well  to  give  a  concise  definition  of  this  concept. 
That  of  Professor  Giddings  is  very  satisfactory.  "The  idea"of\ 
possession,  which  originated  in  the  instinctive  assertion  of  own- 
erhip  exhibited  by  animals,  became  in  the  primitive  social  mind 
the  notion  of  property,  or  of  property  right,  which  is  thus  a  pro- 
duct of  two  factors;  namely,  the  assertion  of  possession  on  the 
part  of  the  individual  possessing,  and  the  tolerance  of  his  claim, 

or  acquiescence  in  it,  on  the  part  of  the  community."  12  

The  purpose  of  the  first  six  chapters  of  this  study  is  to  trace 
the  development  of  the  property  concepts  up  to  the  Deuteronomic 
code.  The  seventh,  or  concluding  chapter,  is  concerned  with  a 
correlation  of  this  development  with  the  changes  in  social  life 
which  occurred  during  this  time,  noting  especially  the  influ- 
ences exerted  upon  these  growing  property  concepts  by  changing 
social  conditions.  That  changing  economic  conditions  produced 
changes  in  social  customs,  traditions,  thought,  and  institutions 
is  not  denied,  but  our  chief  concern  is  to  show  the  influence  of 
the  complex  of  conditions  briefly  summarized  under  the  term 
"social  life"  upon  the  property  concepts,  the  belief  of  the  writer 
being  that  other  social  factors,  rather  than  the  economic,  play 
the  predominant,  part  in  the  production  of  changed  ideas  con- 
cerning property.18  This  "intellectual  factor''  in  the  institution 
of  property,  the  following  study  is  intended  to  illuminate.  No 
apology  is  offered  for  considering  the  concept  the  most  important 
element  in  this  institution,14  notwithstanding  the  fact  that  eco- 
nomic conditions  furnish  the  only  soil  in  which  a  property 
concept  could  develop,  for  "an  entire  science  of  abstract  econom- 

soon  as  the  notion  of  property  gets  firm  footing,  it  begins  to  swallow  up  all  earlier 
formulas  for   the  relation   of  persons    and  things."  —  Religion  of  the  Semites,   p.    391. 

12  Principles  of  sociology,  p.   243. 

W  In  this  position  the  writer  is  in  hearty  agreement  with  Professor  Giddings.  In 
his  criticism  of  the  phrase  "subjective  utility,"  defining  this  as  "pleasure  attributed 
to  an  external  cause,"  Giddings  says:  "Unless  this  intellectual  factor  is  included, 
the  whole  theory  of  utility,  which  has  been  constructed  with  so  much  labor,  falls  into 
ruin." 

14  "This,  then,  is  the  key  to  the  history  of  property  as  an  institution  —  the  growth 
of  knowledge."      Jenks,    History   of  politics,  p.  100. 


8  UNIVERSITY  OF  IOWA 

ies  cannot  be  regarded  as  precedent  to  sociology  as  a  whole. 
Initial  utility  is  antecedent  to  association,  but  association  is  ante- 
cedent to  marginal  utility,  subjective  cost,  and  subjective 
value. ' ' 15  Therefore,  the  tracing  of  the  idea  or  the  concept  in 
this  institution  is  of  primary  importance,  for  "whether  or  not 
notions  of  right  and  wrong  begin  to  dawn  in  consciousness  before 
any  social  relations  are  established,  their  development  is  the 
result  of  association."16 


15  Giddings,   op.    eit.    pp.   44-45. 

16  Ibid. 


CHAPTER  II 
THE  DIVINE  PROPERTY-RIGHT 

The  property  notions  that  we  meet  in  the  traditional  period  are 
rather  vague  and  obscure.  One  element,  however,  stands  out  in 
striking  relief.  This  is  the  conception  of  Yahweh's  property- 
right.  It  is  prominent  in  the  old  ' '  Song  of  Deborah. ' ' 1  Here 
we  find  it  asserted  as  the  right  of  the  victor  over  the  captured. 
But  the  clear  and  unequivocal  enunciation  of  this  right  we  meet 
in  the  Little  Book  of  the  Covenant,2  the  oldest  part  of  the  C 
code.  ' '  All  that  openeth  the  womb  is  mine  e  .  .  .  .  All  the 
firstborn  of  thy  sons  thou  shalt  redeem. ' ' 4 

This  seems  to  be  the  first  element  of  a  definite  property-right 
which  has  grown  sufficiently  articulate  in  the  consciousness  of  the 
people,  to  be  the  fundamental  stipulation  in  the  epoch-making 
Covenant  between  Yahweh  and  the  Hebrew  tribes.  Therefore, 
when  we  meet,  in  the  E  document,  this  divine  command  to  Abra- 
ham: "Take  now  thy  son,  thine  only  son  whom  thou  lovest, 
Isaac,  ....  and  offer  him  for  a.  burnt-offering, "  5  it  does 
not  necessarily  prove  a  universal  custom  of  the  sacrifice  of  the 
firstborn  6  but  it  does  prove  the  recognized  and  unquestioned  right 
of  the  deity  to  the  firstborn  of  men.  Hence  the  divine  ownership 
of  the  firstborn  is  the  most  conspicuous  element  of  the  property- 
concepts  and  will  serve  as  our  point  of  departure. 

The  development  of  Yahweh's  property-right  in  the  progeny 
of  men  may  be  traced  from  this  earliest  code.  Here  the  com- 
mand is  clearly  expressed  that  the  firstborn  child  belongs  to 
Yahweh.     It  is  probable  that  the  story  of  Jephthah's  sacrifice  of 

1  Judsr.    5:1    ff. 

2  Ex.    34:10-26. 

3  Note  the  simple  mode  of  expression,  "li,"  composed  of  the  preposition  with  the 
pronominal   suffix,   meaning  literally  "to  me." 

4  Ex.   34:19-20. 

5  Gen.  22:2. 

fi  This  is  the  view  of  Letourneau:  Property,  its  origin  and  development,  p.  206. 
"Jehovah  himself,  ....  long  exacted  the  sacrifice  of  the  firstborn  men,  as  well 
as  of   animals." 


10  UNIVERSITY  OF  IOWA 

his  daughter,7  the  slaying  of  the  firstborn  in  Egypt,8  and  the 
child  sacrifice  of  Ahaz  9  reflect  the  same  conception.  That  this 
is  a  conception  from  a  very  early  period  in  the  history  of  the 
Hebrews  is  evident. 

In  the  last  one  of  the  above  references,  however,  this  practice 
is  mentioned  with  reprobation.  This  change  in  the  conception 
is  further  emphasized  by  the  prophet  Micah.  ' '  Shall  I  give  my 
firstborn  for  my  transgression,  the  fruit  of  my  body  for  the  sin 
of  my  soul  ? " 10  This  question  reveals  two  facts  plainly.  The 
one  is  the  recognition  of  the  old  principle ;  the  other  is  the  em- 
phatic reaction  against  it.  Thus  it  proves  the  persistence  of  the 
practice  down  to  the  time  of  this  prophet,  and  also  the  active 
agitation,  on  the  part  of  the  religious  leaders  of  the  people, 
against  it.  A  little  later  the  prophet  Jeremiah  speaks  of  this 
practice  in  more  positive  terms:  "They  have  built  the  tower 
.  .  .  .  to  burn  their  sons  and  their  daughters  in  the  fire ; 
which  I  commanded  them  not ;  neither  came  it  into  my  mind. ' '  " 
This  is  an  entirely  changed  conception  of  the  function  of  the  sac- 
rifice of  the  firstborn.  Indeed,  the  development  has  proceeded  so 
far  that  the  consciousness  of  the  prophets  revolts  against  the 
idea  of  offering  to  Yahweh  any  sacrifice  whatever  in  the  old  an- 
thropomorphic sense.  Therefore,  we  can  say  that  the  develop- 
ment of  Yahweh 's  property-right  in  the  firstborn,  so  clearly  set 
forth  in  the  early  code  and  in  the  traditional  stories,  has  almost 
entirely  faded  out  by  the  time  of  the  pre-Deuteronomic  prophets. 

The  first  distinctly  expressed  reference  to  Yahweh 's  property- 
right  in  the  captives  of  war  and  the  devoted,  occurs  at  the  begin- 
ning of  the  conquest  of  Canaan.  In  a  J  document,  the  command 
is  given  by  Joshua,  in  the  name  of  Yahweh,  to  devote  (sherem,  to 
curse)  the  entire  city  and  all  that  it  contained  to  Yehweh,  with 
the  exception  of  one  family.12  A  vivid  description  of  the  execu- 
tion of  the  command  is  given,  and  it  is  concisely  stated  that 
"they  utterly  destroyed  all  that  was  in  the  city,  both  man  and 
woman,  young  and  old."13     In  the  same  connection  occurs  the 

7  Judg.  11:30   ff. 

8  Ex.  11:4  ff. ;  12:29  ff. 

9  2  Ki.   16:3. 

10  Mie.  6:7. 

ii  Jer.  7:31;  19:15.  For  a  treatment  of  the  Moleeh  worship  in  general,  see  Hast- 
ings,  Bible  Dictionary,  Vol.   3,  pp.   415-417. 

12  Josh.  6:17. 

13  Josh.  6:21. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   11 

J  narrative  of  Achan's  transgression  and  the  punishment  sub- 
sequently meted  out  to  him,14  which  gives  unmistakable  evidence 
of  the  deep-rooted  conviction  of  Yahweh's  right  to  the  captives 
and  the  spoil  in  war.  For  interfering  with  this  right  and  violat- 
ing it  Achan  himself  apparently  becomes  an  object  of  it,  and  is 
consequently  destroyed. 

In  the  period  of  the  monarchy  we  meet  the  same  fact.  The 
divine  command  to  the  king,  Saul,  is  even  more  explicit  than  the 
one  we  noted  above.  Here,  the  destruction  of  man  and  woman, 
" infant  and  suckling,"  is  distinctly  specified.15  Saul  spares 
King  Agag  and  a  great  deal  of  the  spoil  alive  and  is  therefore 
violently  rejected  from  his  kingship  by  Yahweh.  Agag  is  "hewn 
in  pieces  before  Jehovah,"  by  the  hand  of  Samuel.16  A  less 
drastic  but  equally  significant  reflection  of  this  same  right  is  seen 
in  Saul's  rash  vow,  which,  but  for  the  popularity  of  Jonathan, 
would  have  cost  the  latter  his  life.17  Another  illustration  of  this 
divine  right  is  found  in  the  narrative  of  the  death  of  the  seven 
sons  of  King  Saul.18  The  divine  oracle  places  the  responsibility 
for  a  famine  upon  the  sin  of  the  dead  Saul,  in  putting  to  death 
the  Gibeonites,  and  as  an  atonement  seven  of  his  sons  are  de- 
manded by  the  wronged  Gibeonites,  who  "hanged  them  in  the 
mountain  before  Jehovah. ' ' 19 

The  divine  right  to  the  captives  in  war  is  fully  conceded  by 
the  early  prophets,20  and  in  the  late  P  code  we  find  the  principle 
formulated  into  a  clearly  expressed  law :  "No  one  devoted  that 
shall  be  devoted  among  men,  shall  be  ransomed ;  he  shall  surely 
be  put  to  death."  21  This  would  seem  to  indicate  that  Yahweh's 
right  in  men,  captives,  and  those  devoted  increased  among  the 
Hebrews  during  our  period.  We  may  safely  assume,  however, 
that  the  clear  line  of  demarcation  between  the  Hebrews  and  the 
"nations"  is  operative  in  this  concept  so  that  the  devoted  person 
was  either  actually  or  fictitiously  an  alien.  This  is  plainly  indi- 
cated by  the  prophet  Isaiah  :  ' '  For  Jehovah  hath  indignation 
against  all  the  nations,     ...     he  hath  delivered  them  to  the 

14  Josh.  7:20-25. 

15  1  Sam.  15:3. 

16  1   Sam.   15:26-33. 

17  1  Sam.  14:24-45. 

18  2  Sam.  21:1-9. 

19  2  Sam.  21:9. 

20  One  exception  is  found  in  2  Ki.  6:22. 

21  Lev.  27:29. 


12  UNIVERSITY  OF  IOWA 

slaughter. "  —  "  For  my  sword  .  .  .  shall  come  down  upon 
Edom,  and  upon  the  people  of  my  curse.''23  Thus  the  "na- 
tions ' '  are  in  reality  devoted,  and  the  devoted  person  among  the 
natives  is  one  considered  as  "cut  off"  from  his  people  and  there- 
fore an  alien.  Besides,  the  enactment  of  the  P  code  in  this  re- 
spect may  owe  much  to  the  altogether  new  set  of  social  conditions 
after  the  exile,  in  which  the  Judicial  function  existed  apart  from 
the  property-right.  Thus  the  difference  between  the  develop- 
ment in  the  concept  of  the  divine  right  to  the  firstborn  and  to  the 
devoted  is  largely  one  of  nativity  and  depends  upon  the  growth 
of  the  national  consciousness.  The  firstborn  was  always  a  He- 
brew ;  the  devoted  a  gentile. 

The  divine  right  to  animals  is  asserted  in  the  Little  Book  of 
the  Covenant.24  The  firstborn  of  ox,  sheep,  and  ass,  and  all  the 
males  of  the  cattle  are  specified,  with  the  requirement  that  the 
firstling  of  an  ass  shall  be  redeemed  by  a  lamb  or  have  its  neck 
broken.  In  the  Judgments  of  E  24a  the  commandment  to  give  the 
firstborn  of  the  ox  and  the  sheep  to  Yahweh  is  repeated  with  the 
additional  regulation  that  it  is  to  be  given  first  on  the  eighth  day 
after  birth.  In  the  Words  of  E  25  this  right  is  referred  to  in  con- 
nection with  the  sacrifice  of  the  burnt-offerings.  This  burnt-offer- 
ing, with  its  implied  right  of  Yahweh  to  the  sacrificial  animal,  is 
stated  in  the  Noah  story  of  J  where  Noah  takes  of  every  clean 
beast  and  of  every  clean  fowl,  to  offer  for  a  burnt-offering ;  there- 
by causing  Yahweh  to  smell  a  sweet  savor,  and  also  to  abstain 
from  cursing  the  ground  in  the  future  on  man's  account.26  The 
same  idea  meets  us  in  the  miraculous  sanction  of  the  divine  prom- 
ise to  Abraham,27  where  the  patriarch  in  offering  simply  obeys 
the  divine  command  regarding  the  animal ;  so,  in  the  story  of  the 
sacrifice  of  Isaac,28  he  is  represented  as  doing  in  regard  to  his  son. 

At  the  opening  of  the  conquest  the  right  to  the  animals  is 
placed  in  juxtaposition  to  the  right  in  men.  The  ox,  sheep,  and 
ass  are  enumerated  as  the  animals  devoted,29  and  later  we  have 
the  camel  mentioned  in  addition  to  these.30 


22  Is.  34:2. 

23  Is.  34:5. 

24  See  chart,  p.  1. 

25  Ibid. 

26  Gen.  8:20-21. 

27  Gen.  15:9  ff. 

28  Gen.  22:1  ff. 

29  Josh.  6:21. 

30  1  Sam.  15:3. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   13 

When,  however,  we  pass  to  the  preexilic  prophets,  we  find  the 
conception  of  the  divine  right  to  animals  no  longer  obtaining  in 
its  old  sense.  Micah  inveighs  against  this  conception  in  the  same 
way  as  against  the  proprietary  right  in  the  firstborn.  "Will 
Jehovah  be  pleased  with  thousands  of  rams,  or  with  ten  thousand 
rivers  of  oil?"31 

The  same  conclusion,  therefore,  is  reached  in  thise  case  as  was 
noted  in  the  right  to  the  firstborn ;  namely,  that  a  change  had  in- 
tervened between  the  early  period  and  the  prophetic  age,  during 
which  the  anthropomorphic  property-right  had  faded  out.  A 
survival  of  this  concept  in  a  changed  form  is  seen  in  the  follow- 
ing :  "I  will  take  no  bullock  out  of  thy  house,  nor  he-goats  out 
of  thy  folds.  For  every  beast  of  the  forest  is  mine,  and  the  cattle 
upon  a  thousand  hills.  .  .  If  I  were  hungry,  I  would  not  tell 
thee;  for  the  world  is  mine  and  the  fulness  thereof."  32 

The  only  reference  to  Yahweh  's  ownership  of  the  land  in  the 
early  codes  is  in  the  form  of  a  command  to  let  the  land  lie  fallow 
every  seventh  year.33  The  vineyard  and  the  oliveyard  are  to  be 
treated  in  the  same  way.  This  refers,  of  course,  more  to  the  use 
of  the  ground  than  the  actual  possession  of  it.  Still  it  is  to  be 
noted  that  it  refers  to  soil  under  cultivation,  and  in  so  far  differs 
from  the  early  concept  of  pastoral  land  to  be  had  for  the  mere 
occupancy.34 

Land  in  the  sense  of  ' '  country ' '  is  stated  to  be  the  property  of 
Yahweh  in  the  early  traditions,  in  which  Abraham  is  represented 
as  receiving  the  promise  of  the  possession  of  the  land  of  Ca- 
naan.35 Later  it  is  referred  to  as  an  inheritance.36  That  Yahweh 
was  not  conceived  as  the  possessor  of  the  entire  earth  at  this  early 
period  is  seen  from  a  reference  to  another  deity  possessing  the 
land  but  being  driven  out  by  Yahweh.37  But  it  is  land  in  this 
general  sense  of  territory  rather  than  land  as  "real  property'' 
that  forms  the  conception  of  landed  values  in  this  early  period. 

The  C  code  remains  practically  silent  upon  this  subject,  but 
the  prophets  revive  the  conception  of  the  divine  right  in  land  in 
the  most  emphatic  manner.     But  it  is  no  longer  an  immediate 

31  Mic.  6:7. 

32  Ps.  50:9,  10,  12. 

33  Ex.  23:10-11. 

34  Gen.  13:9. 

35  Gen.  12:7. 

36  Gen.  15:8. 

37  Judg.  11:24. 


14  UNIVERSITY  OF  IOWA 

right  that  they  assert.  It  is  rather  a  sort  of  feudalistic  tenure 
idea  of  land-ownership  under  the  dispensation  of  Yahweh,  in 
favor  of  the  poor  and  the  needy.38  This  is  the  view  expressed  by 
Isaiah  who  refers  to  the  nation  and  the  country  as  the  vineyard 
of  Yahweh  and  pronounces  a  woe  upon  those  who  disregard  his 
supreme  dispensatory  right.39  The  prophet  Jeremiah  speaks  in 
the  same  strain,  referring  to  the  land  as  Yahweh 's  "heritage," 
his  "vineyard,"  and  his  "pleasant  portion."40  The  idea  of 
divine  ownership  has  developed  into  a  certain  right  of  control 
such  as  we  find  in  the  P  code :  ' '  The  land  shall  not  be  sold  in 
perpetuity ;  for  the  land  is  mine. ' ' 41  The  practice  of  private 
property  in  land  has  arisen  at  the  end  of  our  period,  sharply  con- 
flicting with  this  more  spiritualized  conception  of  the  divine  right, 
and  therefore  unsparingly  denounced  by  the  prophets. 

Aside  from  those  already  mentioned  the  things  and  objects  in 
general  which  are  specified  in  the  Little  Book  of  the  Covenant  as 
belonging  to  Yahweh  are  "the  first  of  the  first-fruits  of  the 
ground. "  42  A  more  comprehensive  property-right  in  things  is 
suggested  by  the  significant  sentence:  "None  shall  appear  be- 
fore me  empty. ' ' 43  The  first-fruits,  with  the  addition  of  liquors, 
are  again  mentioned  in  the  Judgments  of  E,  but  with  the  some- 
what broader  designation  of  ' '  first-fruits  of  thy  labors. ' ' 44 

Chiefly  in  connection  with  the  devoted  thing  is  the  divine  right 
to  personal  property  asserted.  The  city  of  Jericho  itself  and  its 
entire  contents  are  devoted.45  This  devotion  goes  so  far  as  to  in- 
clude the  man  who  should  attempt  to  rebuild  the  city.  "With 
the  loss  of  his  firstborn  shall  he  lay  the  foundation  thereof,  and 
with  the  loss  of  his  youngest  son  shall  he  set  up  the  gates  of 
it. " 46  A  similar  but  less  definite  right  is  set  forth  in  the  nar- 
rative of  Saul's  sin,  in  which  reference  is  made  to  "the  chief  of 

38  Cp.  McCurdy,  07).  rit.,  Vol.  2,  pp.  200-202. 

39  Is.  5:1  ff. 

40  Jer.  12:7-10. 

41  Lev.    25:23. 

42  Ex.  34:26. 

43  Ex.  34:20. 

44  Ex.  23:16. 

4.">  If  doubt  as  to  the  nature  of  this  content  should  persuade  one  to  exclude  personal 
property,  one  is  set  right  by  a  detailed  description  of  the  objects  that  caused  Achan's 
transgression.  A  mantle,  silver  and  gold  among  a  variety  of  the  spoil  are  specific 
objects  that  leave  little  room  for  doubt  as  to  Yahweh's  actual  right  in  things. 

46  Josh.  6:26. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   15 

the  devoted  things,"47   which   should   have  been  "utterly  de- 
stroyed."    The  right  appears  to  have  been  absolute. 

Little  is  said  of  this  right  during  the  monarchy,  but  the 
prophets,  while  rejecting  the  efficacy  of  "ten  thousand  rivers  of 
oil"  as  an  offering  still  insist  on  the  property-right  of  Yahweh 
to  the  things  in  their  possession.  ' '  I  will  devote  their  gain  unto 
Jehovah,"48  and  "Thy  treasures  and  thy  substance  will  I  give 
for  a  spoil  without  price."49  Yahweh 's  right,  to  things,  there- 
fore, did  not  fade  out,  but  assumed  the  form  of  a  control  rather 
than  of  an  actual  possession.  This  development  followed  closely 
the  development  of  the  ideas  of  the  attributes  of  the  deity,  from 
the  anthropomorphic  to  the  ethical  conceptions. 

In  the  earliest  period,  as  shown  in  the  book  of  Judges,50  pros- 
perity is  defined  as  success  in  war.  Later  it  becomes  synonymous 
with  property,  and  finally  we  find  the  conception  of  prosperity 
much  in  the  modern  sense.  Property,  in  its  earliest  form  among 
the  Hebrews,  was  attributed  to  Yahweh 's  blessing.  The  Cov- 
enant Code  is  silent  with  reference  to  it,  but  in  close  connection 
with  the  Words  of  E  the  following  occurs:  "He  shall  bless  thy 
bread  and  water ;  and  I  will  take  away  sickness  from  the  midst 
of  thee.  There  shall  none  cast  her  young  or  be  barren  51  in  thy 
land;  the  number  of  thy  days,  I  will  fulfill."  The  promise  af- 
fixed to  the  fifth  commandment  is  similar.52 

The  patriarchal  stories  are  full  of  these  references.53  In  these 
passages,  cited  below,  the  explicit  reference  is  to  property.  In 
all  these  cases  the  divine  favor  is  the  direct  source  of  prosperity. 
Hence  we  find  a  great  value  set  upon  the  parental  blessing  in 
Yahweh 's  name.54 

A  further  development  of  this  notion  is  seen  in  the  idea  enter- 
tained toward  the  close  of  our  period  of  a  time  when  it  should  be 
the  good  fortune  of  every  Israelite  to  sit  "under  his  own  vine  and 

47  1  Sam.  15:21. 

48  Mic.  4:13. 

49  Jer.   15:13. 

50  Judg.  4  :23. 

51  This  seems  to  be  one  of  the  most  important  elements  of  prosperity.  Note  the 
frequently  recurring  phrase  "Jehovah  opened  her  womb"  (Gen.  29:31,  30:2,  22  ff.). 
Especially  the  angry  retort  to  Rachel  by  her  husband:  "Am  I  in  God's  stead  who 
hath  withheld  from  thee  the  fruit  of  the  womb."  Compare  with  this  also  the  exclama- 
tion of  Eve:      "I  have  gotten  a  man  with   [the  help  of]  Jehovah"  (Gen.  4:1). 

r.2Ex.  23:25-26. 

53G*n.   12:2:  24:1,  35;  26:12;  27:27;   30:27. 

54  Gen.  27:12,  38. 


16  UNIVERSITY  OF  IOWA 

under  his  own  figtree. "  55  In  this  idea  the  emphasis  lies  in  the 
contrast  between  the  independent  possession  of  the  family  in- 
heritance and  the  amassing  of  large  private  possessions  which 
made  the  old  distribution  of  the  land  impossible.  These  indi- 
vidual fortunes  are  not  considered  as  having  their  source  in 
Yahweh's  blessing.  Instead,  they  are  summarily  condemned  by 
the  prophets.  They  are  no  longer  a  token  of  Yahweh's  favor; 
they  have  become  an  object  of  his  intense  displeasure. 

Amos  first  gives  expression  to  this  changed  view.  Appearing 
at  the  seat  of  the  royal  sanctuary,  probably  at  Bethel,  and  speak- 
ing of  the  confidence  which  the  people  have  in  Yahweh  as  the 
source  of  their  great  prosperity  in  war  and  in  wealth,  he  says: 
' '  Woe  unto  you  that  desire  the  day  of  Jehovah !  Wherefore 
would  ye  have  the  day  of  Jehovah?  It  is  darkness  and  not 
light. ' ' 56  The  reason  for  this  is  their  luxury  57  made  possible 
by  fraudulent  practices.58  Hosea  represents  these  financiers  as 
hurling  defiant  boasts  of  their  success  in  the  face  of  Yahweh.59 
Yahweh,  however,  analyzes  the  case  and  pronounces  sentence: 
"According  to  their  pasture,  so  were  they  filled;  they  were  filled, 
and  their  heart  was  exalted :  therefore  have  they  forgotten  me. 
Therefore  am  I  unto  them  as  a  lion ;  as  a  leopard  will  I  watch  by 
the  way;  I  will  meet  them  as  a  bear  that  is  bereaved  of  her 
whelps  and  will  rend  the  caul  of  their  heart ;  and  there  will  I  de- 
vour them  like  a  lioness ;  the  wild  beast  shall  tear  them. ' ' 60 
Isaiah  pronounces  a  curse  upon  the  wealthy  land-owner,61  and 
Jeremiah  hurls  the  charge  of  greed  in  the  face  of  priest  as  well 
as  prophet,02 

Thus  we  see  a  development  from  the  idea  that  Yahweh  pros- 
pers Israel  in  war  and  then  in  material  possessions  to  the  con- 
ception that  Yahweh  blesses  his  people  in  a  political  or  social  way 
rather  than  in  their  material  possessions. 


55  1    Ki.    4:25;    2    Ki.    18:31;   Mie.   4:4. 

56  Am.  5:18. 

57  Am.  6:4-6. 

58  Am.  8:5. 
59Hos.  12:7-8. 

60  Hos.  13:6  8. 

61  Is.   5:8. 

62  Jer.  8:10. 


CHAPTER  III 

SLAVERY 

The  most  prominent  institution  in  the  social  life  of  the  Hebrews 
was  the  family,  and  the  fundamental  element  of  the  family  was 
slavery.1  It  is  the  tap-root  of  the  economic  life,  and  serves  as  a 
cornerstone  for  the  Hebrew  civilization.  The  two  earliest  forms 
of  property  recorded  in  Hebrew  history  are  animals  and  men. 
Among  the  Hebrews  these  two  forms  of  property  existed  side  by 
side  with  very  little  distinction,  as  the  common  formula  for  prop- 
erty shows:  "Flocks  and  herds,  men-servants  and  maid-ser- 
vants. ' ' 2 

Keeping  this  in  mind,  we  can  trace  the  development  of  slavery 
from  its  early,  mild  form  in  the  nomadic  and  pastoral  period, 
through  the  increasing  harshness  with  the  rise  of  landed  prop- 
erty, to  the  reaction  under  the  preexilic  prophets  resulting  in  the 
legislation  of  Deuteronomy.3 

The  property-concept,  in  this  early  form  of  slavery,  was  not 
only  fundamental  but  also  comprehensive.  It  included  practical- 
ly every  person,  aside  from  the  heads  of  families,  in  the  Hebrew 

1  "The  vicissitudes  of  national  life  which  induce  and  perpetuate  slavery,  bring  us 
to  the  very  root  and  fibre  of  the  social  system  in  Israel."  McCurdy,  op.  cit.,  Vol.  2, 
p.   168. 

2  Gen.  12:16;  20:14;  24:35:  30:43;  32:5.  It  has  been  argued  that  slavery 
among  the  Hebrews  was  essentially  different  from  slavery  among  other  peoples,  upon 
the  ground  that  the  Hebrew  designation  of  a  slave  (ebed)  denotes  merely  a  laborer 
and  not  a  thing  bound  or  captured  as  the  Greek  doulos  or  the  Latin  mancipium 
implies.  (See  Spencer,  Descriptive  Sociology,  No.  7,  p.  4.)  But  this  view  is  un- 
tenable. The  annotation  may  differ,  but  the  connotation  of  the  concept  of  slavery 
has  been  identical  wherever  slavery  has  existed.  This  is  abundantly  proved  not  only 
by  the  treatment  of  captives  but  even  more  explicitly  by  the  legal  term  for  slave,  as 
expressed  in  the  C  code  (Ex.  21:21).  "He  is  his  money"  is  the  short  and  concise 
definition  of  the  relation  between  the  master  and  the  slave.  The  word  used  for 
"money"  is  keseph  which  means  "silver."  It  is  to  be  noted  that  this  definition  is 
given  in  the  case  of  a  master  killing  his  slave,  and  occurs  immediately  after  a  strict 
limitation  upon  the  master's  right,  thereby  establishing  the  fact  that  the  strong  hu- 
mane element  in  the  Hebrew  slave  regulations  had  other  sources  than  a  fundamentally 
different  concept  of  slavery  itself. 

3  If  this  late  reaction  is  placed  as  the  basis  of  the  Hebrew  conception  of  slavery, 
and  the  Deuteronomic  legislation  —  not  to  speak  of  the  Priestly  regulations  —  is 
viewed  as  prior  to  the  abuses  which  it  aimed  to  correct,  then  no  clear  idea  of  the 
property-concept  involved  in  the  Hebrew  institution  of  slavery  is  possible. 


18  UNIVERSITY  OF  IOWA 

population  under  the  principle  of  the  patria  potestas.  The  wife 
and  the  children  were  as  completely  a  property  of  the  husband 
and  the  father,  so  far  as  the  right  of  acquisition  went,  as  were  the 
hapless  captives  in  war.  Differentiation  with  respect  to  the 
right  of  use  and  of  disposition,  however,  was  early  introduced. 

In  this  period,  practically  all  the  labor  was  done  by  slaves.4 
In  the  early  stages  of  the  institution,  the  slave  was  a  member  of 
the  family,5  occupied  positions  of  trust,  and  could  even  possess 
property  and  reach  affluence.6  Thus,  slavery  was  looked  upon  as 
the  normal  condition  of  social  relations  and  involved  no  disgrace. 

The  first  method  of  acquisition  of  human  property  is  generally 
conceded  to  be  the  capture  of  human  beings  in  time  of  war.  The 
traditional  stories,  notwithstanding  their  idyllic  portraits  of 
patriarchal  life,  clearly  reveal  that  capture  in  war  is  one  of  the 
primary  methods  in  the  acquisition  of  property  in  men.  When 
Laban  hurls  the  strongest  accusation  possible  against  Jacob  for 
escaping  with  the  wives  which  he  had  bought,  he  has  no  stronger 
invective  to  use  than  that  Jacob  had  ' '  carried  away  his  daughters 
as  captives  of  the  sword."7  This  shows  that  the  captive  was 
considered  the  object  of  the  most  absolute  ownership.  The  rea- 
son is  not  far  to  seek.  The  captor  had  a  perfect  right  to  kill  his 
prey,  which  is  usually  done  among  savages,  and  we  find  abundant 
evidence  of  this  practice  among  the  Hebrews.  The  C  code  has 
not  one  line  of  regulation,  far  less  protection,  for  captives  taken 
in  war.  It  is  first  in  the  D  code  that  we  find  any  sign  of  such  a 
protection.8  Though  the  nomadic  and  pastoral  life  offered  less 
occasion  for  this  practice  than  the  conquest,  still  this  right  is  viv- 
idly reflected  in  such  stories  as  the  J  narrative  of  the  destruction 
of  the  inhabitants  of  Shechem.9 

At  the  period  of  the  conquest  Israel  exemplifies  the  fierceness 
of  this  destruction  of  the  captives  that  fell  into  their  hands,  just 
as  other  nations  have  done  at  that  stage  of  development.  The  en- 
tire people  is  represented  as  apprehending  this  fate  for  them- 
selves.10    Gaining  the  upper  hand,  however,  they  are  consistent, 

4Gen.    3:17;    18:7;    24:10,    20,    26:15,    19,   32. 

5  Gen.  24:2;  1   Sam.  25  :14-17. 

6  1  Sam.  9:7-8;  2  Sam.  9:9-10. 

7  Gen.  31:26. 

8  Deut.  21:10-14. 

9  Gen.    34:25   flf. 

10  Num.  14:3.  "Wherefore  doth  Jehovah  brin<r  us  unto  this  land,  to  fall  by  the 
sword?      Our  wives  and  our  little  ones  will  be  a  prey." 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   19 

and  deal  out  this  lot  in  full  measure  to  the  conquered.11  The  ex- 
ample set  by  Adoni-besek  12  is  taken  up  by  the  Israelites  and  vis- 
ited upon  himself.13  Joshua 's  treatment  of  the  five  kings  14  leaves 
no  uncertainty  as  to  the  conception  of  the  conqueror's  right  over 
the  captured.  The  J  narrative  of  Barak's  blessing  contains 
striking  evidence  of  divine  sanction  of  such  practices.15  It  is  in- 
teresting to  note  that  the  same  principles  are  followed  when  the 
Hebrew  tribes  clash,16  so  that  the  practical  wiping  out  of  a  whole 
tribe  is  referred  to  as  simply  a  "gleaning. "  17 

David's  raids,18  especially  while  he  dwelt  in  the  country  of  the 
Philistines,  and  his  later  treatment  of  the  Moabites,19  show  us 
that  this  right  did  not  decrease  but  rather  increased  in  severity, 
as  the  literal  interpretation  of  the  following  passage  indicates: 
"And  he  brought  forth  the  people  that  Mere  therein,  and  put 
them  under  saws,  and  under  harrows  of  iron,  and  under  axes  of 
iron,  and  made  them  pass  through  the  brickkiln :  and  thus  did  he 
unto  all  the  cities  of  the  children  of  Ammon.  "20  This  univer- 
sally acknowledged  right  is  well  formulated  in  the  words  of  Ben- 
hadad  to  King  Ahab:  "Thy  silver  and  thy  gold  is  mine:  thy 
wives  and  thy  children,  even  the  goodliest,  are  mine."  And  it 
elicits  from  the  king  this  answer:  "I  am  thine  and  all  that  I 
have."  21  As  a  terrible  example  of  what  this  right  meant,  even 
at  this  late  period  of  the  divided  kingdom,  the  atrocious  practices 
of  Hazael 22  and  Jehu  23  may  be  pointed  out. 

11  Josh.  6:21.  "And  they  utterly  destroyed  all  that  was  in  the  city,  both  man  and 
woman,   both  young  and  old." 

V2  Judg.  1:7.  "Threescore  and  ten  kings,  having  their  thumbs  and  their  great 
toes  cut  off,  gathered  their  food  under  my  table." 

1'3  Judg.  1:6.      "And  they     .      .      .      cut  off  his  thumbs  and  his  great  toes." 

14. Josh.  10:21,  26.  "Joshua  called  for  all  the  men  of  Israel,  and  said  to  the  chiefs 
of  the  men  of  war  that  went  with  him,  Come  near,  put  your  feet  upon  the  necks  of 
these  kings.      And  afterwards  Joshua      .      .      .      hanged  them   on  five  trees." 

15  Num.  24:8.      "And  he  shall  break  their  bones  in  pieces." 

16  Judg.  12:6.  "And  there  fell  at  that  time  of  Ephraim  forty  and  two  thousand." 
Judg.  20:42-44.      "And  there  fell  of  Benjamin  eighteen  thousand  men." 

17  Judg.  20:45.      Hebrew  word  olal :  used  in  the  same  sense  in  Jer.  6:9. 

18  1  Sam.  25:22,  34;  27:9-11.  "David  .  .  .  left  neither  man  nor  woman 
alive." 

19  2  Sam.  8:2.  "With  two  lines  measured  he  to  put  to  death  and  with  one  full 
line  to  keep  alive."      This  was  done  after  they  were  "down  on  the  ground." 

20  2  Sam.  12:31. 

21  1  Ki.  20:3-4. 

22  2  Ki.  8:12;  15:16.  "And  all  the  women  therein  that  were  with  child  he 
ripped  up." 

23  2  Ki.  10:7,  8,  14.  Jehu  piled  the  heads  of  seventy  sons  of  the  king  in  two 
great  piles  outside  the  city  gates. 


20  UNIVERSITY  OF  IOWA 

This  property-right  in  humanity,  as  an  object  of  absolute  own- 
ership, when  captured  in  war,  is  not  rejected  by  the  prophets. 
In  spite  of  their  agitation  against  other  forms  of  oppression, 
still  they  see  in  war  only  the  means  of  divine  retributory  justice. 
Clear  statements  of  this  fact  are  afforded  in  the  early  prophets, 
' '  They  shall  fall  by  the  sword ;  their  infants  shall  be  dashed  in 
pieces,  and  their  women  with  child  shall  be  ripped  up. ' ' 24  This 
is  the  sentence  against  Samaria,  because  "she  hath  rebelled 
against  her  God."  Hence  we  conclude  that  with  the  exception 
of  a  general  softening  of  this  right  in  the  case  of  an  Israelite,  this 
concept  has  become  strengthened  by  the  bloody  warfare  of  the 
Hebrews  on  Palestinian  soil. 

With  this  absolute  right  to  the  life  of  the  captive,  continuing 
unabated  as  we  have  seen,  the  property -right  in  captives,  when 
the  captor  spared  their  lives,  is,  of  course,  self-evident.  The  ex- 
ample of  Laban,  already  cited,  points  to  the  early  practice  of 
sparing  the  captives  suitable  for  replenishing  the  depleted  num- 
ber of  warriors.  A  very  ancient  example  of  this  is  undoubtedly 
the  words  put  in  the  mouth  of  Sisera's  mother  by  the  Hebrew 
prophetess  Deborah :  ' '  Have  they  not  found,  have  they  not  di- 
vided the  spoil  ?  A  damsel,  two  damsels  to  every  man. ' ' 25  The 
notable  element  of  the  capture  of  wives  among  primitive  people 
may  be  reflected  in  the  wholseale  capture  of  the  virgins  of  Jabesh- 
gilead:  to  provide  wives  for  the  remnant  of  the  tribe  of  Benja- 
min.26 Of  the  capture  of  wives  in  time  of  peace  we  have  the 
clearest  illustration  in  this  connection,  where  the  two  hundred 
Benjamites  that  were  still  left  without  wives  were  told  to  provide 
themselves  with  such  by  lying  in  wait  for  the  daughters  of  Shiloh, 
at  the  annual  harvest-festival,  and  to  "catch  every  man  his 
wife."27 

How  far  the  legislation  of  the  words  of  E  regarding  the  seduc- 
tion of  virgins  28  is  a  survival  of  such  a  practice  as  the  capture  of 

24  Hos.  13:16.      See  also  Amos  7:17  and  Jer.  15:2;   16:16. 

L'")  Tndcr.  5:30  The  rase  of  Abraham  is  in  point  here  as  showing  E's  conception  of 
the  property-right  in  a  captured  woman.  Abraham  receives  sheep,  oxen,  men-servants, 
and  maidservants,  and  one  thousand  pieces  of  silver  from  Abimelech,  of  whose  harem 
Sara  had  been  a  member  for  some  time.  Turning  over  this  payment  he  tells  Sara: 
"Behold  it  is  for  thee  a  covering  of  the  eyes  to  all  that  are  with  thee  ;  and  in  respect 
of  all  thou  art  righted."      (Gen.   20:14-16.) 

26  Judg.  21:12,  14. 

27.Tudg.  21:21,  23. 

28  Ex.  22:16-17. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   21 

wives  is  impossible  to  determine  definitely.  It  gives  us,  however, 
a  clue  to  the  almost  perfect  silence  as  to  this  form  of  acquiring 
possession  of  a  woman.  Let  it  be  noted  that  the  cases  discussed 
dealt  with  the  capture  of  Hebrews.  An  increasing  complexity 
of  settled  agricultural  life  made  woman  more  valuable.  So  also 
the  frequent  wars.  Hence  possessors  of  daughters  and  female 
slaves  naturally  guarded  their  own  so  far  as  possible  and  insisted 
upon  the  payment  of  a  mohar  later  to  be  noticed.  The  legal 
point  in  the  question  of  seduction,  it  will  be  noted,  is  just  the  re- 
muneration for  the  pecuniary  loss  suffered  by  the  father,  who 
was  the  owner  of  the  virgin,  whether  daughter  or  slave.  A  fur- 
ther helpful  suggestion  is  given  by  the  rule  that  the  money  was  to 
be  paid  whether  the  woman  was  given  to  the  seducer  or  not. 
This  law  is  evidence  of  the  fact  that  purchase  of  wives  had  super- 
seded a  still  older  and  more  antiquated  method  of  acquiring  the 
property-right  in  a  woman  by  simple  capture.  Moreover,  by  the 
time  of  the  Deuteronomic  legislation  it  is  plain  from  the  regula- 
tion concerning  the  treatment  of  a  foreign  woman,  captured  in 
war,  that  acquisition  of  property-rights  in  Hebrew  women  by  cap- 
ture had  practically  ceased.29  While  the  pecuniary  interest 
tended  to  discourage  such  a  practice  in  Hebrew  women,  it  was 
equally  strong  in  encouraging  the  practice  with  reference  to  for- 
eigners,^0 until  a  greater  enlightenment  and  a  growing  sensi- 
tiveness to  abuses  called  for  a  regulation  of  the  practice.  The 
silence  of  the  prophets  upon  this  subject  receives  an  explanation 
when  their  belief  in  the  justice  of  war  is  recalled.  The  facts  lead 
to  the  conclusion  that  the  practice  of  capturing  or  stealing  a  He- 
brew woman,  while  lingering  in  the  memory  of  the  early  writers 
and  instanced  in  a  few  sporadic  cases,  fell  into  disuse  during  this 
early  period,  and  only  the  foreign  captive  was  considered  a  prey 
without  price.  It  is  unthinkable  that  the  prophets  would  have 
passed  such  a  practice  as  wife-capture  of  Hebrew  women  by 
without  notice,  had  it  existed,  and  also  that  the  Deuteronomic 
legislation  would  have  protected  the  foreigner  while  paying  no 
attention  to  the  native  captive. 

Thus  we  see  this  practice  of  acquiring  women  from  among  the 

29  Deut.  21:10-14. 

30  Cp.  Num.  31:35-41.  Of  thirty-two  thousand  Moabite  virgins,  the  Levites  re- 
ceived three  hundred  and  twenty,  the  priests  thirty-two,  and  the  rest  were  divided  be- 
tween  the  warriors   and  the  congregation. 


22  UNIVERSITY  OF  IOWA 

Hebrews  by  capture  die  out  in  the  course  of  the  Hebrew  social 
history  covered  by  our  period,  and  a  softening  of  the  severity  in 
the  treatment  of  the  captured  foreign  woman. 

Very  few  male  slaves  were  needed  in  the  nomadic  and  pas- 
toral stage  of  society.  Therefore,  the  males  were  usually  ex- 
terminated, except  under  special  circumstances.  "While  prac- 
tically all  the  work  was  done  by  slaves,  this  work  was  limited  in 
extent.  A  rather  remarkable  instance  of  the  conception  of  task- 
work occurs  in  the  familiar  narrative  in  J  concerning  the  op- 
pression of  the  Hebrews  in  Egypt.31  It  will  be  noticed  that  the 
cause  of  this  oppression  is  not  pictured  as  a  result  of  war,  but 
conceived  of  as  planned  to  prevent  the  increase  of  the  tribes,  and 
thus  to  avoid  rebellion. 

With  the  successful  beginning  of  the  Conquest  we  see  these 
ideas  put  in  practice  by  the  Hebrews  themselves.  A  striking  il- 
lustration is  afforded  by  the  ruse  of  the  inhabitants  of  Gibeon. 
The  aim  of  their  repeated  pledge  of  submission  to  captivity  32  is 
only  to  avoid  extermination,  and  the  nature  of  the  covenant  made 
with  them  is  stated  by  J  in  the  words,  ' '  And  Joshua  made  a  cov- 
enant with  them  to  let  them  live. ' ' 33  Upon  discovery  of  the  de- 
ception, this  covenant  is  not  violated,  but  the  curse  of  perpetual 
bondage  as  " hewers  of  wood  and  drawers  of  water"  is  pro- 
nounced upon  them.34  This  evidently  proved  advantageous  to 
the  Hebrews  and  When,  owing  to  a  more  settled  life  for  the  He- 
brews after  the  Conquest,  the  enslavement  of  the  Canaanites 
proved  more  profitable  than  their  complete  destruction  the  males 
as  well  as  the  females  were  spared  and  enslaved.35  J  states  ex- 
plicitly that  this  was  the  case  especially  "when  the  children  of 
Israel  were  waxen  strong. ' ' 36 

We  look  in  vain  for  any  modification  of  the  lot  of  the  captive 
slave  in  this  period.  To  spare  the  life  of  the  captive  was  the 
height  of  clemency  and  the  task-work  was  left  to  the  individual 
owner's  regulation  and  according  to  his  interest.  In  the  D  code, 
following  this  period,  we  do  find  a  softening  of  the  lot  of  the 

31  Ex.  1:8  ff. 

32  Josh.  9:8,  9,  11. 

33  Josh.  9:15. 

34  Josh.  9:23,  27. 

35  Josh.  16:10,  Judg.  16:21. 

36  Josh.  17:13. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   23 

slave,  in  that  one  who  had  been  taken  as  a  wife  or  a  concubine 
could  not  be  sold.37 

The  next  important  form  of  acquisition  of  property-right  in 
human  beings  is  through  birth  within  the  "house"  or  family. 
Definite  evidence  upon  this  point  appears  at  first  sight  to  be  very 
meager  if  not  altogether  lacking.  The  chief  reference  is  found 
in  connection  with  the  household  of  Abraham,  in  the  designation 
of  his  chief  slave  and  steward  as  one  ' '  born  in  the  house. ' ' 38 
But  the  literal  rendering  is  "son  of  the  house"  (B en-bey ith) . 
This  leads  us  at  once  to  the  root  of  this  property  concept.  The 
child  of  the  master  and  the  chief  wife  was  subject  to  the  right  of 
ownership  as  well  as  the  child  of  the  slave.39  The  reason  is  that 
the  wife  herself  is  the  property  of  the  husband.  Keeping  this  in 
mind,  it  will  not  seem  strange  if  the  word  ' '  son ' '  is  used  in  the 
sense  of  offspring  upon  the  basis  of  property-right  in  the  mother, 
rather  than  upon  the  basis  of  direct  parenthood.40  This  is  clearly 
so  in  the  case  cited.  Dammesek  Eliezer  is  called  a  son  although 
the  context  proves  that  he  did  not  stand  in  blood-relation  to 
Abraham.  This  may,  therefore,  be  taken  as  the  primary  con- 
ception of  ownership  of  those  ' '  born  in  the  house. "  It  is  borne 
out  by  the  fact  of  the  legitimacy  of  the  children,  which  depended 
entirely  upon  the  property-right  in  the  woman.41  Of  course,  the 
idea  of  fatherhood  soon  comes  into  the  foreground  but  we  have 
abundant  evidence  of  the  property-right  in  the  woman  as  the 
primary  condition  for  the  legitimacy  of  the  child.  The  owner- 
ship of  a  "handmaiden"  gave  Sara,  Leah,  and  Rachel  legitimate 
offspring.42  A  distinction,  the  steps  of  which  can  be  seen  in  the 
cases  of  Jephthah  43  and  Hosea,44  in  this  respect  develops  before 
the  Exile,  with  respect  to  the  class  of  slaves  "bought  for  money." 

The  master's  property-right  over  the  members  of  the  household 
was  originally  as  absolute  as  the  right  over  captives.45    Abraham 

37  Deut.  21:10-14. 

38  Gen.  15:3. 

39  Gen.  19:8;  Judg.  19:24.  See  also  Smith,  Kinship  and  Marriag(^  pp.  291  ff., 
and  for  the  ancient  rigidity  of  the  paternal  power  compare  Mommsen,  History  of 
Rome,  Vol.   1,   pp.  88-92. 

40  See  Maine,  Early  Institutions,  pp.   310-311. 

41  Cp.  Robertson  Smith,  op.  cit.,  pp.  129-155. 

42  Gen.  16:2;  30:1  ff. 

43  Judg.  11:1  ff. 
44Hos.  1:2;  4:14. 

45  Dr.   Frants  Buhl  says:      "Der  Vater  ist  Herr  im  Hause.      Sein  Eigenthum  sind 


24  UNIVERSITY  OF  IOWA 

had  a  perfect  right  to  expose  his  son  with  the  bond-woman  46  and 
an  equally  absolute  right  to  sacrifice  the  son  of  the  principal 
wife.47  Likewise  Laban  disposes  of  his  daughters  and  the  price 
paid  for  them  as  well.48  So  firmly  rooted  is  this  right  that  Laban 
could  tell  Jacob  concerning  the  daughters  long  ago  sold :  ' '  The 
daughters  are  my  daughters  and  the  children  are  my  children. ' ' 49 
But  perhaps  the  best  illustration  is  the  matter  of  fact  way  in 
which  the  Judgments  of  E  treat  of  this  concept.  "If  thou  buy 
an  Hebrew  servant, " 50  "  and  if  a  man  sell  his  daughter, ' ' 51 
these  sentences  indicate  that  the  property-right  in  children  was 
so  common  and  generally  acknowledged  as  not  even  to  merit  a 
second  thought.  The  conclusion  drawn  from  the  language  used 
in  the  designation  of  Eliezer  finds  powerful  support  in  the  rule 
laid  down  in  these  Judgments:  "If  the  master  give  him  (t.  e. 
the  slave)  a  wife,  and  she  bear  him  sons  or  daughters;  the  wife 
and  her  children  shall  be  her  master 's. ' ' 52  Does  the  fact  need 
to  be  pointed  out  that  in  this  case  ownership  and  not  paternity 
serves  as  a  basis  for  the  child 's  relation  to  the  master  1 

An  interesting  emphasis  is  placed  upon  this  method  of  acquir- 
ing property  by  the  indemnity  put  upon  the  one  causing  the  de- 
struction of  an  unborn  child,53  clearly  pointing  to  an  actual  pe- 
cuniary value  even  before  birth. 

Aside  from  a  growing  differentiation  between  the  wives  of 
different  ranks  and  its  reflection  upon  the  children  born  from 
them,  the  property-right  in  those  ' '  born  in  the  house, ' '  whether 
children  or  slaves,  continued  strong  throughout  this  early  period. 
The  right  over  the  child's  life  is  reflected  in  Jephthah's  vow54 
and  in  the  attempted  execution  of  the  rash  vow  of  Saul,55  as  well 

Weib  und  Kinder,  wesshalb  er  seine  Frau  verstossen  und  seine  Kinder  als  Sklaven 
verkaufen  kann.  Urspriinglich  hatte  er  gewiss  auch  unbeschrankte  riehterliche 
Gewalt,  so  dass  er  seine  Kinder  mit  dem  Tod  bestrafen  konnte."  Die  socialeM  Ver- 
haltnisse  der  Israeliten,  p.  29.  And  McCurdy  draws  this  conclusion:  "We  have 
seen  that,  as  far  as  the  testimony  of  the  narrative  portions  of  the  Old  Testament  is 
concerned,  the  power  of  the  father  was  reckoned  to  be  absolute."  (Op.  cit.  Vol.  2, 
p.   69.) 

46  Gen.    21:14. 

47  Gen.  22:10. 

48  Gen.  29:19-30;   31:15. 

49  Gen.   31:43. 

50  Ex.  21:2. 

51  Ex.  21:7. 

52  Ex.  21:4. 

53  Ex.  21:22. 

54  Judg.   11:31,   34,   39. 

55  1  Sam.  14:44. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   25 

as  in  his  attempt  to  kill  Jonathan  because  of  his  friendship  with 
David.56 

This  extreme  right,  however,  is  not  countenanced  by  the  proph- 
ets who  arraign  the  people  for  "burning  their  sons  and  their 
daughters  in  the  fire."07  The  relation,  moreover,  is  fully  rec- 
ognized in  the  question:  "is  Israel  a  servant?  Is  he  a  home- 
born  slave  ?  Why  is  he  spoiled  ? "  58  pointing  to  a  differentiation 
between  the  slave  and  the  member  of  the  family  that  is  not  to  be 
spoiled.  It  is  interesting  to  note  that  speaking  in  the  name  of 
Yahweh  the  prophet  says :  "I  will  cause  them  to  eat  the  flesh  of 
their  sons  and  the  flesh  of  their  daughters, ' ' 59  implying  a  grow- 
ing sense  of  the  sacredness  of  the  life  of  one 's  own  child. 

This  development  and  perhaps  even  a  further  extension  of  it, 
is  to  be  traced  in  the  later  writers.  Joel  speaks  with  reprobation 
of  the  practice  of  disposing  of  boys  and  girls  for  the  purpose  of 
drunkenness  and  vice.60  And  the  Priestly  writer  clearly  dis- 
tinguishes between  the  son  and  the  slave  acquired  in  either  of  the 
two  ways,  ' '  born  in  the  house "  or  "  bought  with  money. ' ' 61 
This  concept,  therefore,  was  slightly  modified  but  did  not  fade 
out  entirely  during  this  period. 

The  third  form,  or  method,  by  which  property-rights  in  men 
were  acquired  was  by  purchase.  As  already  noted,  this  custom 
is  based  upon  the  rights  that  have  occupied  our  attention  in  the 
treatment  of  the  two  preceding  modes  of  acquisition.  It  will  be 
convenient  for  our  purpose  to  distinguish  between  men  and 
women  in  this  method  of  purchase,  especially  with  reference  to 
the  limitations  imposed  by  the  early  legislation. 

The  keynote  of  the  slave-trade  is  expressed  in  the  legal  defini- 
tion of  the  slave  referred  to  at  the  beginning  of  this  chapter: 
"he  is  his  money  [silver]."  62  The  right  to  trade  in  men  is  the 
cornerstone  of  the  first  legislation.     To  its  proper  regulation  the 

56  1  Sam.  20:33. 

57  Jer.  7:31;  19:5;  32:35.  This  prophet,  however,  recognizes  the  existence  of 
the  ancient  concept,  placing-  the  property  of  flocks  and  herds,  sons  and  daugthers  in 
the  closest  juxtaposition,  and  expresses  both  categories  of  pcssession  by  the  common 
phrase,  "labor  of  our  fathers"  (3:24).  Isaiah  speaks  in  the  same  strain,  implying 
the  prevalence  of  regarding  the  children  as  the  possession  of  the  parents  (13:16; 
14:21). 

58  Jer.  2:14. 

59  Jer.   19  :9. 

60  Joel  3:3. 

61  Gen.  17:12,   13,  27. 

62  Ex.  21:21. 


26  UNIVERSITY  OF  IOWA 

opening  paragraphs  and  the  larger  part  of  the  Judgments  of  E 
are  devoted.63 

The  only  specific  case  cited  as  an  occasion  for  a  compulsory 
sale  of  men  is  in  the  case  of  theft,  when  the  thief  "has  noth- 
ing." 64  The  implied  reason  for  perpetual  slavery  on  the  part  of 
the  liberated  slave  is  the  affection  for  the  family  which  the  master 
has  given  him  and  which  he  must  leave  if  he  goes  out.65  The  mo- 
tives for  the  sale  of  men  are  otherwise  not  mentioned  in  these 
Judgments,  but  must  be  inferred  from  actual  cases. 

Few  actual  sales  of  men  are  recorded  in  the  earliest  period. 
The  sale  of  Joseph  is  the  most  conspicuous.  He  is  sold  first  by 
his  brothers  66  to  the  Ishmaelites,  and  then  sold  by  the  latter  to 
the  Egyptian  courtier.67  From  the  detailed  account  given  of  this 
transaction  it  is  safe  to  assume  that  this  was  a  normal  condition 
of  a  legal  trade.  The  suretyship  entered  into  by  Judah  with  his 
father  as  a  pledge  for  the  safe  return  of  Benjamin68  points  to 
this  right,  and  his  willingness  to  be  sold  as  a  slave  when  put  to 
the  test  proves  its  validity.69  The  wholesale  purchase  of  prac- 
tically an  entire  nation  reflects  the  same  practice.  ' '  Buy  us  .  .  . 
for  bread,  aud  we  .  .  .  will  be  servants  unto  Pharaoh. ' ' 70 
"And  as  for  the  people,  He  removed  them  to  the  cities  from  one 
end  of  the  border  of  Egypt  even  to  the  other  end  thereof."  71 

The  motive  here  suggested  as  being  a  case  of  necessity  can  be 
traced  in  its  further  development  later  on.  We  are  told  of  a 
widow  who  is  complaining  that  the  creditor  is  about  to  procure 
her  two  sons  as  an  indemnity  for  the  debt  she  could  not  pay.72 
And  David  is  said  to  have  received  into  his  band  of  outlaws 
' '  every  one  that  was  in  debt. ' ' 73 

By  the  prophetic  period  two  elements  in  the  practice  and  the- 
ory of  Hebrew  slavery  have  become  distinct.  The  one  is  that 
the  love  of  gain  is  the  leading  motive  for  this  traffic ;  the  other 
that  the  ethical  consciousness  of  the  prophets  condemns  this  prac- 
tice.    Amos  proclaims  a  national  punishment  because  "they  sold 

63  Ex.  21:1-11,  20,  26,  27,  31,  32. 

64  Ex.  22:3. 

65  Ex.  21:4-5. 

66  Gen.  37:27-28. 

67  Gen.  39:1. 

68  Gen.  43:9. 

69  Gen.  44:33. 

70  Gen.  47:19. 

71  Gen.  47:21. 

72  2  Ki.  4:1  ff. 

73  1  Sam.  22:2. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   27 

the  righteous  for  silver  and  the  poor  for  a  pair  of  shoes. ' ' 74  Micah 
complains  that  "they  hunt  every  man  his  brother  with  a  net,"  75 
and  Isaiah  has  this  suggestive  phrase:  "I  shall  make  a  man 
more  precious  than  fine  gold ;  even  a  man  than  the  golden  wedge 
of  Ophir. "  76  It  is  to  be  noted,  however,  that  this  applies  only 
to  the  native  Hebrew.  Thus,  we  notice  a  powerful  reaction 
against  the  traffic  which  tended  to  modify  it  but  was  wholly  un- 
able to  abolish  it.  The  steps  in  the  development  of  this  trade  in 
men  seem  to  be  war,  theft,  necessity,  and  finally  the  love  of  gain 
or  profit  that  called  forth  the  denunciation  of  the  prophets. 

The  practice  of  buying  women  has  already  been  indicated. 
The  patriarchal  stories  describe  it  in  minute  detail.77  The  same 
principle  is  involved  in  the  gifts  of  precious  things  to  the  brother 
and  the  mother  of  Rebeckah,  as  well  as  the  gifts  given  by  Abim- 
elech  to  Abraham  as  a  "covering  of  the  eyes"  for  the  temporary 
possession  of  Sara.78 

It  seems  perfectly  safe  to  infer  that  at  first  it  was  only  the 
powerful  master  that  could  prevent  wife-capture  and  always  de- 
mand a  price.  Thus  Caleb  gives  his  daughter  as  the  price  of 
prowess,79  and  Saul  promises  his  daughter  to  the  one  who  should 
kill  Goliath.80  This  price  paid  to  the  father  then  came  to  be  re- 
garded as  a  dowry  {molmr)  which  in  reality  is  nothing  else  than 
the  original  price  of  purchase.  Therefore  David  reasons  with 
those  who  advise  him  to  become  the  son-in-law  of  the  king  thus : 
"Seemeth  it  to  you  a  light  thing  to  be  the  king's  son-in-law,  see- 
ing that  I  am  a  poor  man  and  lightly  esteemed. ' ' 81 

It  is  evident  that  this  purchase  in  the  case  of  the  wealthy  and 
powerful  soon  became  more  or  less  obscured,  while  it  still  con- 
tinued among  the  less  prosperous.  This  we  find,  indeed,  implied 
in  the  prophetic  agitation  against  economic  oppression.  Upon 
this  basis,  therefore,  we  may  look  for  an  incipient  differentiation 
during  our  period.  And  it  is  found  in  the  cases  already  alluded 
to  of  Jephthah  and  Hosea.  It  was  on  account  of  his  descent  on 
his  mother 's  side  that  Jephthah  was  driven  out  from  the  family. 

74  Amos  2:6. 

75  Mic.  7:12. 

76  Is.  13:12. 

77  Gen.  29:18,  23,  27,  28. 

78  Gen.  24:53;  20:16. 

79  Josh.   15:16. 

80  1  Sam.  17:25. 

81  1  Sam.  18:23. 

82  Judg.  11:1,  2. 


82 


28  UNIVERSITY  OF  IOWA 

Ilosea  is  twice  told  to  take  a  wife  of  whoredom  and  upon  the  sec- 
ond occasion  of  this  command  he  describes  the  purchase  as  fol- 
lows :  "  So  I  bought  her  to  me  for  fifteen  pieces  of  silver,  and  a 
homer  of  barley  and  a  half -homer  of  barley. ' ' 83  "We  are  not  in- 
formed of  such  a  case  elsewhere  among  the  people  at  this  time. 
It  would  also  seem  as  though  the  action  of  the  prophet  was  meant 
as  an  object  lesson  to  the  people.  It  is  therefore  probable  that 
the  practice  of  buying  the  actual  wife  had  been  abandoned  dur- 
ing our  period  and  that  the  dowry  was  paid  to  the  wife  instead 
of  the  father.84  This  would  only  mean,  however,  that  the  pur- 
chase for  the  purpose  of  offspring  had  faded  out;  not  that  the 
practice  of  selling  women  for  service  was  done  away  with,  still 
less  that  the  property-right  in  the  woman  was  abrogated.  In 
support  of  this  it  need  only  be  stated  that  the  Deuteronomie 
code  recognizes  the  right  to  sell  men  and  women.85  Important 
modifications  occur,  especially  in  the  Priestly  code  86  in  the  case 
of  the  sale  of  Hebrews,  although  the  right  is  recognized.  To 
deal  with  this  phase  of  the  subject,  it  is  necessary  to  trace  the 
development  of  limitations  from  the  beginning. 

The  first  two  modes  of  acquisition  have,  as  has  been  noted, 
practically  no  restriction  put  upon  them,  but  with  the  introduc- 
tion of  the  third  form  of  gaining  a  property-right  in  human  be- 
ings, that  is,  by  purchase,  the  first  limitation  appears.  Man 
had  an  actual  value  in  money  that  had  to  be  respected.  By  the 
time  of  the  composition  of  the  C  code  another  limitation,  an  eth- 
ical one,  is  imposed.  A  human  being  was  not  to  be  possessed  by 
mere  might,  or  by  simple  capture,  as  in  the  case  of  actual  war. 
In  contrast  with  the  practice  reflected  in  the  selling  of  Joseph, 
by  the  time  the  C  code  was  written  a  step  in  advance  had  been 
taken.  It  is  quite  remarkable  how  emphatically  this  is  laid  down 
in  E's  Judgments.  "He  that  stealeth  a  man  and  selleth  him,  or 
if  he  be  found  in  his  hand,  he  shall  surely  be  put  to  death. ' ' 8T 
Disrespect  for  ownership  and  disrespect  for  life  were  regarded 
as  identical  in  the  legal  punishment  meted  out  to  the  transgressor 
of  either  one.88     The  valuation  of  a  son  or  daughter  is  left  to  be 

83  Hos.  3:2. 

84  Cp.   Encyclopedia  Bibliea,  s.  v.    "Marriage,"   Vol.    3,  p.   2942. 

85  Deut.  15:12. 

86  Lev.  25:39. 

87  Ex.  21:16. 

88  Ex.  21:12. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   29 

agreed  upon  but  the  common  servant  has  a  legal  value  of  thirty 
shekels  of  silver.89 

Attention  is  called  to  the  significant  expression  of  Amos,  fre- 
quently repeated :  ' '  Selling  for  a  pair  of  shoes. ' '  It  requires 
no  stretch  of  imagination  to  detect  an  indignation  implied  in  the 
very  cheapness  of  the  price.  That  indignation  is  a  new  thing  in 
the  Hebrew  concepts  of  property.  That  the  principle  of  the 
price-value  maintained  itself  until  very  late  is,  however,  well  at- 
tested, not  only  by  the  transaction  of  Hosea  but  by  the  minute 
regulation  of  this  value  in  a  late  P.  document 90  and  also  by  the 
general  regulation  of  the  redemption  money.91 

With  respect  to  the  limitations  of  the  right  of  ' '  use  and  abuse ' ' 
the  Hebrew  legislation  of  slavery  stands  unique  in  the  annals  of 
antiquity.  The  primary  and  most  important  of  these  limitations 
is  included  under  the  idea  of  the  Sabbatical  Year:  "If  thou 
buy  an  Hebrew  servant,  six  years  shall  he  serve :  and  in  the  sev- 
enth he  shall  go  out  free  for  nothing. "  92  It  is  important  to  no- 
tice that  this  applies  only  to  the  male  slave.  The  female  slave, 
it  is  specifically  stated,  "shall  not  go  out  as  the  men-servants 
do."93  The  limitation  of  the  period  of  slavery  for  the  male 
would,  however,  affect  the  wife  also  if  the  marriage  was  consum- 
mated before  the  sale  into  slavery  occurred.  "If  he  come  in  by 
himself  he  shall  go  out  by  himself :  if  he  be  married,  then  his  wife 
shall  go  out  with  him."94  Evidently,  the  property-right  in  the 
woman,  which  the  man  exercised  prior  to  his  enslavement,  is  the 
reason  for  this  exception  to  female  slavery.  If  the  marriage  had 
taken  place  after  the  enslavement  the  limitation  is  null  and  void. 
The  wife  and  the  children  as  well  belong  to  the  master.95  But 
the  very  right  to  perpetuate  his  servitude  contains  a  limitation 
upon  the  master's  right  to  separate  him  from  his  family.  The 
statement  "If  the  servant  shall  plainly  say,  I  love  my  master,  my 
wife  and  my  children ;  I  will  not  go  out  free ' ' 96  seems  to  imply 
the  understanding  that  the  master  is  to  let  him  enjoy  this  sec- 

will  be  recalled,  is  represented  as  sold  for  twenty  pieces  of  silver  (Gen.  37:28),  while 
Hosea's  wife  is  procured  at  the  regular  rate  stipulated  in  the  C  code  (Hos.  3:2). 

89  Ex.  21:32.      Cp.   Hastings,   Dictionary   of  the   Bible,  Vol.    4,  p.   466.      Joseph,   it 

90  Lev.  27:1  ff. 

91  Lev.  25:51. 

92  Ex.  21:2. 

93  Ex.  21:7. 

94  Ex.  21:3. 

95  Ex.  21:4. 

96  Ex.  21:5. 


30  UNIVERSITY  OF  IOWA 

ondary  property-right  in  his  family.  Whether  the  words  ' '  he  shall 
serve  him  forever"  express  a  definite  limitation  upon  the  right 
of  the  master  to  dispose  of  such  a  bondman  is  difficult  to  deter- 
mine though  it  appears  very  probable.  No  actual  case  of  this 
voluntarily  perpetuated  bondage  is  cited  in  our  sources,  so  that 
the  only  clue  to  this  is  in  the  case  of  a  slave  represented  as  hav- 
ing a  family.  At  least  one  clear  case  of  this  kind  occurs,  that  of 
Ziba  who  is  said  to  have  had  "fifteen  sons  and  twenty  ser- 
vants. ' ' 97 

An  implied  limitation  is  to  be  found  in  the  fact  that  we  search 
in  vain  for  a  fugitive-slave  law  in  the  early  Hebrew  legislation. 
That  there  were  fugitive  slaves  is  well  attested,  as  is  seen  in  the 
answer  that  the  servants  of  David  receive  from  Nabal,  "there  be 
many  servants  now-a-days  that  break  away  every  man  from  his 
master."98  Another  instance  is  found  in  the  first  book  of 
Kings  99  where  the  growing  practice  of  escaping  slaves  and  the 
lack  of  an  adequate  slave  law  is  strongly  attested.  Shimei  lost 
his  life  because  he  had  to  fetch  his  runaway  slaves  back  in  per- 
son. We  may  assume  that  he  would  not  have  jeopardized  his 
life,  had  an  effective  law  for  the  retrieving  of  slaves  existed.  For 
the  most  part  this  limitation  upon  the  master's  right  was  made  in 
the  interest  of  the  male  slave,  though  there  is  one  example  for 
the  female  in  the  case  of  the  Levite's  concubine.100  However,  the 
Deuteronomic  legislation  against  the  return  of  a  runaway  slave 
shows  that  such  a  practice  must  have  come  into  existence  in  the 
period  between  the  rise  of  the  monarchy  and  the  formation  of  the 
D  code.  While  we  cannot  trace  the  development  in  detail,  we 
know  that  by  the  time  of  the  Deuteronomic  legislation  a  reaction 
against  such  a  practice  had  crystallized  into  a  definite  prohibi- 
tion.101 Whether  this  applied  also  to  female  slaves  we  do  not 
know. 

A  few  general  limitations  were  equally  valid  for  both  sexes. 
The  master  was  forbidden  to  kill  his  slave  outright ;  and  imme- 
diate death  caused  by  a  weapon  (rod)  involved  a  "sure"  punish- 
ment the  nature  of  which  is  not  specified.102     It  is  absurd  to 

97  2    Sam.    9:10. 

98  1   Sam.   25:10. 

99  1  Ki.  2  :39  ff. 

100  Judg.  19:2-3. 

101  Dt.  23:15.  "Thou  shalt  not  deliver  unto  his  master  a  servant  which  is  escaped 
from  his  master  unto  thee." 

102  Ex.  21:20. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   31 

think  that  this  punishment  was  death,103  and  we  need  only  read 
the  next  sentence  to  realize  how  little  this  limitation  meant. 
"Notwithstanding,  if  he  [the  slave]  continue  a  day  or  two,  he 
shall  not  be  punished. ' ' 104  The  very  indefiniteness  of  the  lan- 
guage—  "a  day  or  two"  —  is  eloquent  in  its  emphasis  upon  the 
fundamental  concept  of  the  property  value  of  the  slave,  in  show- 
ing that  when  death  was  not  inflicted  at  once,  for  example,  in  the 
heat  of  passion,  the  motive  for  protection  was  recognized  to  be 
the  pecuniary  investment  represented  by  the  slave,  as  is,  indeed, 
also  specifically  stated,  "for  he  is  his  money."  105 

An  apparently  more  important  limitation  is  found  in  the  case 
of  bodily  injury.  The  master  forfeited  his  investment  in  the 
slave  if  he  inflicted  permanent  injury.  The  loss  of  an  eye  or  a 
tooth  is  mentioned.  For  the  loss  of  either  one,  at  the  hand  of 
the  master,  the  slave  could  claim  his  liberty.106 

The  last  limitation  to  be  noted  in  the  C  code  is  the  seventh-day 
rest.  ' '  Six  days  thou  shalt  do  thy  work,  and  on  the  seventh  day 
thou  shalt  rest :  that  thine  ox  and  thine  ass  may  have  rest,  and 
the  son  of  thy  hand-maid,  and  the  stranger  may  be  refreshed. ' ' 10T 

It  would  be  intensely  interesting  to  study  these  limitations  in 
their  practical  application,  but  this  we  are  unable  to  do  for  the 
lack  of  concrete  material.  The  development  of  these  limitations 
is  also  obscure.  Besides  the  D  code,  already  touched  upon,  we 
have  one  illustration  of  a  practical  attempt  to  liberate  the 
slaves.108  This  emancipation  includes  the  women  as  well  as  the 
men,  and  thus  shows  Deuteronomic  influences.™9  But  the  im- 
portant part  to  notice  is,  that  even  at  this  late  date  of  Zedekiah 
these  limitations  are  extended  only  to  the  Hebrew  slaves. 

This  indicates  the  direction  of  the  development  of  these  limit  a- 

103  This  is  the  view  of  Wallon  in  his  three  volume  work,  Historie  de  Vesclnrape 
dans  I'antiquite.  He  says:  "lie  maitre  qui  a  tu§  son  esclave,  est  puni  de  mort." 
And  the  reason  he  gives  for  this  view  is  this,  "car  la  loi  qui  defende  de  verser  le 
sange  humain  compte  l'esclave  parmi  les  hommes."  The  important  exception  he  dis- 
misses with  a  footnote  thus:  "la  loi  exceptait  le  cas  ou  la  mort  n'etait  point  censee 
donnee  avec  intention."      Vol.  1,  p.   10. 

104  Ex.  21 :21. 

105  Ex.  21:21. 

106  Ex.  21:26-27. 

107  Ex.  23:12. 

108  Jer.  34:8,  9.  "Zedekiah  had  made  a  covenant  .  .  .  that  every  man 
should  let  his  man-servant,  and  every  man  his  maidservant,  that  is  a  Hebrew  or  a 
Hebrewess,  go  free;  that  none  should  make  bondmen  of  them,  to  wit,  of  a  Jew  his 
brother." 

109  "And  all  the  princes  and  all  the  people  obeyed,  that  had  entered  into  the  cov- 
enant,     .      .      .     they  obeyed,  and  let  them  go."      (Ibid.,  v.  10.) 


32  UNIVERSITY  OF  IOWA 

tions  and  shows  that  except  between  Hebrews,  among  whom  the 
conquest  and  the  national  life  had  developed  a  free  growth  of  the 
' '  consciousness  of  kind, ' '  the  property  right  in  slaves  maintained 
itself  intact  throughout  our  period.  The  outcome  of  the  case 
under  discussion  goes  far  to  prove  this.  The  release  was  tem- 
porary, ' '  under  the  influence  of  a  temporary  panic, ' '  as  McCurdy 
thinks.110  In  this  early  period,  therefore,  we  find  but  very  little 
progress  in  the  development  of  the  limitations  on  the  property- 
right  in  men.  A  more  fruitful  field  will  be  the  study  of  the 
bondage  of  women,  in  which  greater  progress  was  made ;  though 
this  progress  is  more  in  the  nature  of  a  distinction,  on  the  one 
hand  between  the  native  and  the  foreign  wife,  and  on  the  other 
between  the  wife  and  the  concubine  and  the  female  servant  rather 
than  a  fundamental  change  in  the  property-concept  itself. 

The  right  of  acquisition  of  female  property  was  limited  only 
by  the  cost  of  purchase  and  maintenance.111  "We  have  noted 
traces  even  of  a  time  when  the  woman  was  to  be  had  for  the  mere 
taking.  Up  through  this  period  she  is  the  chattel  of  man.  "It 
would  be  misleading  to  apply  the  term  'free  woman'  to  any 
Israelitess,  except  perhaps  a  widow. ' ' 11J2  It  is  important  to  no- 
tice that  in  the  Hebrew  terminology  of  the  early  period, 
"woman"  and  "wife"  are  identical  terms.  One  word,  ishshah, 
includes  both  concepts;  and  it  is  only  the  context  that  is  re- 
sponsible for  the  differentiation  by  the  translators  of  the  Bible. 
This  identity  of  terms  indicates  that  the  original  notion  of 
woman's  function  of  motherhood  was  the  fundamental  idea 
among  the  Hebrews.  While  treated  as  a  valuable  chattel,  woman 
was  not  altogether  regarded  from  the  point  of  working  efficiency. 
' '  Women  were  looked  upon  rather  as  potential  mothers,  destined 
to  give  the  tribe  the  most  priceless  of  all  gifts,  namely,  sons."  11S 
This  is  reflected  by  the  women  themselves.  "Give  me  children 
or  I  die,"114  strikes  the  keynote  of  the  deepest  emotion  of  a 

no  Op.   cit.,  Vol.  2,   p.    173,   footnote. 

"But  afterwards  they  turned,  and  caused  the  servants  and  the  handmaids,  whom 
they  had  let  go  free,  to  return,  and  brought  them  into  subjection  for  servants  and 
for  handmaids."      (Jer.   34:11.) 

ill  See  Hastings,  Dictionary  of  the  Bible,  s.  v.  "Family,"  Vol.  1,  pp.  846-850. 
Judg.   8:30;   9:2. 

112  Ibid.,  p.  847.  "His  [the  husband's]  wives  were  his  property,  and  absolutely 
subject  to  his  authority."  Cp.  instances  cited  in  footnote  115  below.  See  also  the 
article   "Familie  und  Ehe,"   in   Herzog,   Realm   Encyclopedic,  Vol.   5,  p.   738. 

113  Encyclopedia  Biblica,  p.  1500. 

114  Gen.  30:1. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   33 

Hebrew  woman.  In  so  far  as  this  conception  obtains,  it  is  a  limi- 
tation upon  the  property-right  of  man  in  the  use  of  woman.  It 
would  tend  to  limit  his  right  over  her  person  and  restrict  it  to 
association  for  the  purpose  of  offspring.  The  rich  terminology 
in  the  differentiation  of  degrees  of  the  marital  relation  points  to 
such  a  limitation.115  But,  recalling  what  was  said  about  the  right 
to  those  "born  in  the  house,"  we  are  cautioned  not  to  consider 
this  limitation  too  seriously. 

Hebrew  terminology  affords  another  term  that  sheds  light  on 
the  property-right  in  women.  The  husband  is  called  haul  which 
means  ' '  owner  "  or  ' ' possessor. ' '  This  emphasizes  -the  necessity 
of  caution  in  speaking  of  limitations  to  the  property-right  in 
women.116 

The  mohar  is,  in  the  strictest  sense,  also  a  limitation,  and  is 
but  another  name  for  ' '  price ; ' '  following  the  same  principle  in 
the  case  of  women  as  we  noted  in  the  case  of  men.  As  it  grad- 
ually grew  out  of  an  earlier  and  freer  mode  of  appropriation,  so 
it  gradually  gave  way  to  the  later  conception  of  ' '  dowry, ' '  when 
the  more  or  less  absolute  property-right  in  woman  faded  from 
sight. 

The  limitation  of  the  period  of  servitude  does  not  exist  for 
women  sold  into  slavery  during  this  early  period.  When  sold, 
they  are  sold  for  life.  Upon  this  point  the  C  code  is  explicit  and 
emphatic :  ' '  If  a  man  sell  his  daughter  to  be  a  maid-servant,  she 
shall  not  go  out  as  the  men-servants  do. ' ' 117  The  context,  while 
it  does  not  state  specifically  that  the  purchase  must  be  for  the 
purpose  of  wifehood  or  concubinage,  is  nevertheless  strongly  sug- 
gestive of  this  as  the  predominant  motive.  The  rules  and  regu- 
lations affect  only  the  woman  who  is  "espoused"  either  to  the 
master  himself  or  to  his  son.  No  law  protects  this  relation  be- 
tween slaves,  except  by  means  of  perpetual  slavery  voluntarily 
entered  into  by  the  male.118  But  if  the  woman  stands  in  the 
marital  relation  to  the  master  or  to  his  son,  she  is  protected 
against  ejection.     If  she  is  the  concubine  or  the  wife  of  the  mas- 

115  Among  these  are  amah,  "maid,"  shipshah,  "maidservant,"  pillegesh,  "concu- 
bine," qedeshah,  and  zanah,  "harlot."  Compare  with  this  the  dark  pictures  of  the 
husband's  right  as  painted  in  Judg.  19:25-30;  and  the  father's  right  as  seen  in  Gen. 
19:8,  and  Judg.  19:24. 

116  For  a  full  discussion  of  this  subject,  see  Smith,  Kinship  arid  Marriage,  pp.  73  ff. 

117  Ex.  21:7. 

118  See  p.  29. 


34  UNIVERSITY  OF  IOWA 

ter,  he  is  under  the  obligation  to  accept  a  redemption  price,  if  he 
should  become  displeased  with  her,  and  he  is  definitely  forbidden 
to  sell  her  "unto  a  strange  people."119  The  purchase  of  a 
maiden  for  a  son  entitled  her  to  treatment  as  a  daughter.120 

The  most  important  of  all  the  limitations  upon  the  owner  of  a 
woman  is  that  of  the  right  of  the  first  wife  upon  the  occasion  of 
the  man 's  purchase  of  a  second  woman.  "  If  he  take  him  another 
wife;  her  [that  is,  the  first  wife's]  food,  her  raiment,  and  her 
duty  of  marriage  shall  he  not  diminish.121  This  strict  injunction 
depicts  the  probable  practices  with  reference  to  an  ancient  "non- 
support"  in  colors  not  overbright.  The  restriction  of  abuse  is 
clinched  by  the  statement  of  a  specific  penalty  for  the  violation 
of  this  law,  namely  a  forfeited  property-right,  "And  if  he  do 
not  these  three  unto  her,  then  shall  she  go  out  for  nothing,  with- 
out money. ' ' 122 

Finally,  the  limitations  of  servitude  of  females  have  progressed 
so  far  during  this  period  that  in  the  laws  of  the  D  code,  the 
woman  is  entitled  to  the  same  privilege  of  emancipation  on  the 
seventh  year  as  is  the  male  slave.123 

The  development  we  have  traced  shows  the  woman  as  the  first 
to  be  enslaved  and  the  last  to  escape  from  the  rigor  of  bondage. 
It  shows  further  how  closely  woman 's  bondage  and  emancipation 
is  bound  up  with  the  social  purposes  of  the  family  relations,  and 
how,  both  in  its  origin  and  its  history,  female  slavery,  at  least,  is 
conditioned  upon  social  rather  than  upon  purely  economic  con- 
siderations. 


119  Ex.  21:8.  Here  is  practically  the  only  restriction  on  the  right  of  disposition 
that  we  find  in  this  period. 

120  Ex.   21:9. 

121  Ex.  21:10. 

122  Ex.  21:11.  It  might  be  in  place  here  to  notice  the  primary  right  of  the  first 
husband  as  indicated  in  the  case  of  David  and  Michal,  the  daughter  of  Saul.  After 
years  of  separation,  during  which  time  Michal  was  the  wife  of  Paltiel,  her  erstwhile 
husband,  David,  when  strong  enough  to  do  so,  demands  her  back;  and  she  is  taken 
by  force  from  her  last  husband.  (2  Sam.  3:14-16.)  The  case  of  Hosea  seems  to 
show  a  dissolution  of  this  right  as  he  had  to  buy  his  former  wife  back  again;  and  we 
find  conclusive  proof  of  the  change  in  this  practice  in  the  D  code,  by  which  the  return 
to  the  first  husband   is  positively  forbidden.      (Deut.   24:4.) 

123  Dt.  15:12-17. 


CHAPTER  IV 

PERSONAL  PROPERTY 

Ornaments  and  money  as  a  form  of  personal  property  are  con- 
sidered to  be  of  a  very  early  origin.  The  indications  are  that 
very  little  distinction  existed  at  first  between  these  two  forms  of 
property.  Indeed,  ornaments  were  at  first  the  only  coin  in  ex- 
istence, and  from  the  ornamentive  forms  of  metal,  used  as  a 
medium  of  exchange,  the  development  of  money  proper  took  its 
rise.  We  find  it  early  in  our  sources.  "Abram  was  very  rich 
in  cattle,  in  silver,  and  in  gold. "  1  No  statement  as  to  the  form 
is  made.  The  gift  of  Abimelech  is  described  as  pieces  of  silver,2 
a  term  employed  also  in  later  instances.3  But  this  is  merely  a 
gloss  of  translators,  as  the  original  has  only  the  plain  term 
keseph,  the  primary  meaning  of  which  is  "to  be  pale  or  white," 
hence  the  derived  meaning  of  "silver"  or  "white  metal."  The 
first  conception  of  the  form  in  which  metals  were  found  is  ex- 
pressed by  the  term  keli,  a  word  of  such  a  general  significance 
that  it  includes  almost  any  form  of  ornaments,  weapons,  or  im- 
plements. In  connection  with  ornaments  the  word  is  rendered 
"jewels"  by  the  translators.  This  is  the  conception  of  the  form 
of  the  silver  and  the  gold  in  Abraham 's  possession :  ' '  And  the 
servant  brought  forth  jewels  of  silver  and  jewels  of  gold."  4  The 
same  phraseology  is  used  to  denote  the  wealth  gotten  by  the 
Israelites  before  departing  from  Egypt.5  From  such  ornaments 
the  golden  calf  is  made.6  Of  the  extent  to  which  they  were 
used,  the  description  of  the  spoil  of  the  Midianites  gives  us  an 
indication.7 


1  Gen.  13:2. 

2  Gen.  20:16. 

3  Gen.  37:28;  45:22. 

4  Gen.  24:53. 

5  Ex.  3:22;   11:2. 

6  Ex.   32:2  ff. 

7  Judg.  8:26.  "And  the  weight  of  the  golden  ear-rings  that  he  requested  was  a 
thousand  and  seven  hundred  shekels  of  gold;  besides  the  ornaments  and  collars  that 
was  on  the  kings  of  Median,  and  beside  the  chains  that  were  about  their  camels' 
necks." 


36  UNIVERSITY  OF  IOWA 

The  only  development  that  can  be  determined  in  this  kind  of 
possessions  is  an  increase  of  varieties  in  the  form  of  these  orna- 
ments, plainly  indicated  by  the  prophets  —  one  of  whom  enumer- 
ates over  twenty  kinds  of  ornaments  and  apparel 8  —  and  then 
the  differentiation  of  ornaments  from  the  weighed  money.  Dif- 
ferentiation of  money  from  the  common  form  of  ornaments  ap- 
pears to  come  quite  early,  though  the  conception  of  the  identity 
of  the  two  is  indisputable  in  the  early  J  narrative.  It  is  note- 
worthy that  the  first  word  we  meet  in  the  sources  denoting  a 
currency  in  the  sense  of  "money"  takes  us  back  to  the  word 
keseph,  ' '  silver. "  9  It  is  rendered  literally  in  the  first  part  of  the 
J  and  E  stories  in  Genesis;10  later,  it  is  translated  "money." 
This  is  not  due  to  an  unwarrantable  arbitrariness  on  the  part  of 
the  translators,  but  to  the  setting  in  which  the  stories  occur. 
Hence  it  seems  probable  that  money  developed  first  from  silver 
ornaments  in  Israel.  Silver  was  more  common  than  gold,  which 
would  account  for  its  early  use  both  for  ornaments  and  as  money. 
The  first  time  we  meet  the  term  "money"  in  the  J  and  E  docu- 
ments is  in  the  E  narrative  of  the  complaints  of  Laban  's  daugh- 
ters that  their  father  had  quite  devoured  their  money.11  A  pe- 
culiar word  kesitah  is  used  at  its  next  occurrence,12  a  word  which 
means  "lamb,"  aud  which  has  given  rise  to  a  variety  of  infer- 
ences.113 The  famine  stories  seem  to  show  a  distinction  of  silver 
as  money  or  a  medium  of  exchange.14 

A  definite  proof  of  this  differentiation  is  the  word  shekel, 
which  occurs  only  twice  in  the  entire  book  of  Genesis,  in  the  late 
P  account  of  the  purchase  of  the  cave  of  Macpelah.15  In  the  J 
documents,  it  is  found  once  in  Genesis  but  in  a  different  form 
than  that  in  which  it  occurs  later.16 

In  the  C  code  the  two  terms  keseph  and  shekel  are  found  side 
by  side.  Here  the  distinction  of  money  as  an  equivalent  for 
other  forms  of  property  is  clear  and  concise.  It  is  very  sugges- 
tive that  the  word  keseph  is  used  in  the  legal  definition  of  the 

8  Is.  3:18-23;  also  Jer.  2:32. 

9  Gen.  13:2;  20:16,  etc. 

10  Gen.  23:15,  16;  24:35,  53. 
li  Gen.  31:15. 

12  Gen.  33:19. 

13  See    p.    59. 

14  Gen.  42:1  ff. 

15  Gen.  23:15-16. 

16  Gen.  24:22. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   37 

slave  and  the  word  shekel  in  specifying  the  exact  price  of  the 
slave.  This  justifies  the  inference  that  there  existed  the  con- 
cept of  a  medium  of  exchange  and  also  the  specific  pieces  of 
metal  of  a  certain  weight,  in  the  sense  of  a  coin. 

This  seems  to  be  as  far  as  the  monetary  system  proceded  in  the 
earliest  period.  There  is  no  evidence  of  any  coined  money  in  use ; 
the  system  of  counting  metal  by  weight  is  clearly  proved  by  the 
prophets.  Amos  speaks  of  dishonest  practices  in  the  nature  of 
"making  the  ephah  small  and  the  shekel  great,  and  dealing 
falsely  with  balances  of  deceit."17  And  Jeremiah  describes  in 
detail  the  weighing  out  of  the  price  of  the  field  that  he  bought.18 

Weapons  and  implements  follow  very  much  the  same  lines  of 
development  as  ornaments  and  money.  That  there  was  no  dif- 
ferentiation at  first  between  weapons,  tools  or  implements  we 
have  definite  proof  in  the  singular  fact  that  the  Hebrews  had 
but  one  word  for  both  forms  of  property.  Strangely  enough  this 
is  the  same  word  that  we  met  in  the  first  description  of  ornaments ; 
namely,  the  word  keli,19  which  points  unmistakably  to  the  sim- 
plicity of  this  concept  and  goes  far  to  prove  its  primitive  nature. 
Nearly  all  of  the  objects  of  personal  property,  enumerated  in 
this  chapter  are  by  the  early  Hebrews  termed  simply  keli. 

Undoubtedly  the  oldest  weapon  of  those  mentioned  in  our 
sources  is  the  sling,  which  is  a  great  improvement  upon  throwing 
the  stone  from  the  bare  hand.  We  find  indications  of  the  use  of 
this  weapon  in  war:  "There  were  seven  hundred  chosen  men, 
lefthanded ;  every  one  could  sling  stones  at  a  hair-breadth  and 
not  miss. ' ' 20  This  high  degree  of  skill  with  such  a  weapon  is 
significant,  and  indicates  some  importance  of  this  primitive  wea- 
pon, since  it  is  not  likely  that  men  would  have  become  experts  at 
handling  an  antiquated  weapon ;  nor  would  such  men  have  been 
noted  as  especially  important  in  actual  warfare  had  another  and 
more  effective  weapon  been  in  general  use.     Later,  we  find  this 

17  Am.  8:5. 

i8Jer.  32:9. 

19  Not  only  ornaments,  weapons,  and  implements  are  included  under  this  term,  but 
also  utensils,  vessels,  instruments,  clothing,  furniture,  armor,  harness,  yokes  (of 
oxen),  and  even  boats;  in  short  almost  every  form  of  equipment  for  the  hunt  or  for 
war,  as  well  as  for  domestic,  agricultural,  industrial,  or  commercial  pursuits  as  far  as 
each  existed.  The  best  rendering  of  the  general  idea  of  this  word  would  seem  to  be 
"things"  or  "belongings."  W.  E.  Barnes  renders  it  "movable  property,"  in  his  article 
"Armour."   in  Hastings,   Dictionary   of  the  Bible,  Vol.  1,  p.   154. 

20Judg.  20:16. 


UNIVERSITY  OF  IOWA 

weapon  restricted  to  the  shepherd's  use,21  and  its  appearance  in 
real  warfare  is  scorned.22 

The  how  and  quiver  play  a  conspicuous  part  in  the  J  narra- 
tives. Here  we  plainly  have  an  advance  in  the  direction  of 
weapons.  It  is  used  for  the  hunt  a  as  well  as  in  war.24  Kn: 
of  flint  are  mentioned  in  connection  with  the  rite  of  circumci- 
sion ; a  hut  it  is  impossible  to  determine  in  how  far  this  indi- 
cates the  absence  of  metal  knives  or  whether  it  merely  gives  a 
saered  significance  to  the  instrument  of  flint. 

The  most  typical  of  the  scanty  references  to  the  differentiation 
-n  weapons  and  implements  is  found  in  the  description  of 
the  conditions  of  Israel  just  before  the  decisive  struggles  with 
the  Philistines26  No  weapons  are  found  in  the  hands  of  the 
people. iT  nor  is  even  a  smith  left  them  for  fear  that  they  would 
make  for  themselves  such  things. :'  Being  short  of  weapons,  the 
people  naturally  used  whatever  they  could  lay  hold  of.  There- 
fore it  is  significant  that  agricultural  implements  are  mentioned, 
not  to  say  introduced,  at  this  point.  Shares,  coulters,  axes,  mat- 
tocks, forks,  and  goads  are  enumerated. -'*  And.  in  contrast  with 
these  implements,  swords  and  spears  are  said  to  be  lacking.  Hence 
the  people  could  have  used  nothing  eLse  than  such  implements 
and  tooLs  as  these  for  weapons  in  the  struggle  that  followed. 
When  we  read  of  ' '  six  hundred  men.  slain  with  an  ox-goad, 
this  phrase  is  apt  to  be  more  than  an  empty  figure  of  speech. 
Under  such  circumstances  weapons  possessed  an  inestimable 
value,  and  we  are  justified  in  drawing  the  conclusion  that  at  no 
other  time  in  the  history  of  the  Hebrews  did  this  form  of  prop- 
erty assume  a  more  important  aspect. 

Descriptions  of  the  ontfit  of  the  soldier  are  given  in  the  case  of 
Goliath31  and  of  Saul.32  Monarchical  rule,  with  its  standing 
army,  naturally  gave  a  strong  impetus  to  the  production  and 

Sam.  17    i 
22  1  Sam.  17:43.      'Am  I  a  dog  that  thou  eomest  against  me  with  stav- 
25  < --■       87    3. 
-    S3 
I   25      "     '-.  5:2-3. 
2*  1  Sam.  13:1   ff. 
:-  Ibid.,  t.  22. 
-•  .  19. 

2»  1   Sam.   13:20-21. 
"  .  .?     3:31. 
1    Sam.  17:5-1 
32  1  Sam.  17:3^-39. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   39 

specialization  of  weapons.  Conquest  of  other  armies  is  repre- 
sented as  introducing  new  weapons,  such  as  the  war-chariots,  of 
which  David  is  said  to  have  captured  one  thousand  from  the  king 
of  Zoba,33  and,  shortly  afterwards,  seven  hundred  from  the 
Syrians.34  The  prophets  speak  of  the  old  forms  of  weapons,  the 
sword  and  spear,  and  mention  also  the  care  taken  of  the  shield 
by  the  practice  of  "anointing"  it35  and  covering  it36  when  not 
in  use. 

In  like  manner  we  are  safe  in  assuming  that  implements  and 
instruments  increased  both  in  number  and  variety,  though  we 
do  not  have  any  special  enumeration  of  this  form  of  property. 
Practically  the  only  point  of  interest  in  the  prophetic  literature 
is  the  preference  shown  for  the  implements  as  over  against  the 
weapons.37 

The  utter  absence  of  the  commodity  of  dress  or  apparel  in 
primitive  society  is  too  familiar  to  need  elaboration.38  The  J 
writer  goes  a  little  further,  however,  and  describes  the  first  steps 
in  the  making  of  clothes.  "Aprons"  of  fig  leaves  sewn  together, 
and  then  ' '  coats  of  skin ' '  are  the  Hebrew  writer 's  conceptions  of 
the  origin  and  early  development  of  human  apparel.39  The  tex- 
ture of  the  garment  mentioned  later  by  the  same  writer  40  is  not 
specified,  though  it  may  indicate  an  early  date  of  this  notion 
that  the  word  used  is  not  the  regular  beged  but  simJah,  a  word 
which  occurs  only  infrequently  in  the  entire  Old  Testament. 

Throughout  the  patriarchal  stories  clothing  is  recognized  as  a 
part  of  valuable  property.  It  is  counted  along  with  precious 
metals  in  the  J  account  of  Abraham 's  possessions ; 41  the  dra- 
matic effect  of  Joseph's  "coat  of  many  colors"  is  familiar.42 
This  form  of  valuables  figures  prominently  in  the  "Babylonish 
mantle"  of  Achan's  theft.43 

The  C  code  takes  special  notice  of  this  form  of  property.     It  is 

33  2  Sam.  8:4. 

34  2  Sam.  10:18. 

35  Is.  21:5. 

36  Is.  22:6. 

37  Is.  2:4. 

38  Gen.  2:25. 

39  Gen.  3:7,  21. 

40  Gen.  9:23. 

41  Gen.  24:53. 

42  Gen.  37:3,  23,  31,  32. 

43  Josh.  7:21. 


40  UNIVERSITY  OF  IOWA 

spoken  of  as  being  used  for  a  pledge  in  their  system  of  borrowing 
and  the  lender  is  forbidden  to  keep  the  garment  thus  pledged 
over  night.44 

This  system  continued  practically  unchanged  during  this  early 
period,  though  the  law  was  grossly  violated.  ' '  They  lay  themselves 
down  upon  clothes  laid  to  pledge  by  every  altar, ' ' 45  and  ' '  pull 
off  the  robe  with  the  garment  from  them  that  pass  by  securely. ' '  46 

While  there  is  no  change  in  this  property-concept,  it  is  interest- 
ing to  note  the  height  to  which  it  has  attained.  Possession  of 
clothes  has  become  identical  with  wealth  and  power.  Isaiah  cites 
the  following  dialogue :  ' '  Thou  hast  clothing,  be  thou  our  ruler, ' ' 
and  the  answer:  "In  my  house  is  neither  bread  nor  clothing; 
make  me  not  a  ruler  of  the  people."  47  Thus  the  growing  import- 
ance of  apparel  in  the  property-notions  of  the  people  is  seen. 

The  possession  of  tents  is  the  earliest  element  of  property  in 
habitations.  We  find  no  provision  whatever  concerning  any 
habitation,  in  J 's  description  of  the  conditions  of  life  of  the  first 
pair.48  Later,  however,  we  meet  a  very  orderly  explanation  of 
the  introduction  of  this  commodity,  in  the  statement  that  Jabal 
' '  was  the  father  of  such  as  dwell  in  tents. ' ' 49  Noah 's  abode  is  a 
tent.50  So  also  the  dwelling  of  Abraham.51  It  would  be  interest- 
ing to  know  in  how  far,  if  at  all,  the  practice  of  the  Israelites 
of  the  conquest  —  making  themselves  ' '  dens,  caves  and  strong- 
holds in  the  mountains, ' '  when  reduced  to  the  necessity  of  hid- 
ing 52  —  reflects  a  primitive  mode  of  life  when  even  tents  were 
not  a  necessity.  But  the  mere  silence  of  the  J  story  of  creation, 
in  regard  to  dwellings  does  not  justify  any  such  inference,  al- 
though it  is  very  suggestive. 

That  the  tent  was  regarded  as  a  definite  part  of  personal  prop- 
erty is  proved  by  the  J  statements  of  Lot 's  possessions.  ' '  And 
Lot  had  flocks,  and  herds,  and  tents. ' ' 53  Notice  should  be  taken 
of  the  fact  that  in  this  reference  not  the  singular  but  the  plural 


44  Ex.  22:26,  27. 

45  Am.  2:8. 

46  Mic.  2:8. 

47  Is.  3:6,  7. 

48  Gen.  2:1-24. 

49  Gen.  4:20. 

50  Gen.  9:21. 

51  Gen.  12:8;  18:1-2. 

52  Judg.  6:2;  1  Sam.  13:6;  1  Ki.  18:4. 

53  Gen.  13:5. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   41 

number  is  used.  The  cases  cited  above  seem  to  imply  only  the 
one  common  tent,04  while  in  the  later  patriarchal  stories  this  com- 
modity has  differentiated  into  the  tents  of  the  master,  the  wives, 
and  the  servants.55  This  is  a  big  advance  beyond  the  one  com- 
mon tent,  and  has  an  important  bearing  upon  the  development 
of  this  form  of  property,  since  it  is  a  direct  result  of  the  in- 
creased number  of  wives  and  servants,  and  it  is  also  an  indirect 
testimony  to  their  importance  or  value. 

The  tent  as  a  dwelling  is  mentioned  throughout  the  Hexateuch, 
and  while  it  figures  even  as  late  as  the  time  of  the  Divided  King- 
dom,56 mention  is  rare,  and  the  prophets  have  only  a  few  refer- 
ences to  this  form  of  property. 

Development  of  habitations  among  the  Hebrews  in  the  form 
of  huts,  or  houses,  we  trace  first  in  the  stories  of  the  exodus  from 
Egypt,  where  the  two  side-posts  and  the  lintel  of  their  "houses" 
are  mentioned.57  Before  this  time,  however,  even  in  the  time  of 
Lot,  the  Canaanites  are  represented  as  dwelling  in  houses.  The 
abodes  in  Sodom  are  "houses"  with  "roof"  and  "door"  that 
could  be  ' '  broken. "  58  It  must  not  be  forgotten  that  the  Hebrew 
language,  even  to  a  greater  extent  than  the  Greek  and  Roman, 
uses  the  designation  ' ' house ' '  ( baijith)  for ' ' household "  or  "  fam- 
ily." Therefore,  we  find  the  "house"  mentioned  in  the  early 
stories  that  clearly  reflect  a  tent-dwelling  only.59 

References  to  houses  as  dwellings  increase  continually  from 
the  narratives  referring  to  the  Egyptian  civilization  60  down  to 
the  close  of  the  period  of  our  study.  No  specific  citations  are 
needed  to  point  out  the  descriptions  of  the  houses  in  the  walled 
cities  of  Canaan  at  the  time  of  the  conquest,  nor  the  fact  that 
these  were  occupied  by  the  conquerors,  in  so  far  as  they  were 
not  razed  to  the  ground,  after  the  people  became  accustomed  to  a 
settled  life.  The  building  activity  during  the  monarchy  is  quite 
familiar.  While  it  is  safe  to  assume  that  the  poorer  classes  had 
to  be  content  to  dwell  in  tents  and  huts,  long  after  the  more  well- 
to-do  lived  in  well-made  houses,  yet  early  legislation  is  concerned 

54  See  also  Gen.  18:6. 

55  Gen.  24:67;  25:27;  31:33. 

56  1  Ki.  12:16. 

57  Ex.  12:7. 

58  Gen.  19:3  ff. 

59  Gen.    19:2-3. 

60  Gen.  39:1  ff. 


42  UNIVERSITY  OF  IOWA 

only  with  dwellings  in  the  forms  of  houses.61  This  may  be  due 
chiefly  to  the  fact  that  this  legislation  was  primarily  concerned 
with  the  interest  of  the  wealthy.  There  is  no  direct  regulation 
of  this  kind  of  property,  though  it  is  clearly  implied  that  it  was 
an  object  of  ownership. 

In  the  time  of  the  prophets  it  is  different.  Amos  gives  us  a 
vivid  picture  of  what  property  in  houses  meant  in  his  time.  He 
mentions  different  kinds  of  houses,  showing  a  high  development 
of  this  form  of  property :  "I  will  smite  the  winter  house  with 
the  summer  house ;  and  the  houses  of  ivory  shall  perish,  and  the 
great  houses  shall  have  an  end. ' ' 62  We  gain  an  idea  of  the  cost- 
liness of  these  structures  from  such  passages  as:  "Ye  have 
built  houses  of  hewn  stone  but  ye  shall  not  dwell  in  them. "  63  It 
is  interesting  to  observe  that  the  divine  displeasure,  manifest  in 
the  mention  of  these  buildings,  depends  upon  an  abused  right  of 
private  property.  Two  counts  are  held  against  the  owners  of 
these  "palaces":  the  first  is  that  they  had  been  built  by  "un- 
righteousness, injustice,  and  oppression ; "  64  the  second,  that  the 
purpose,  for  which  they  had  been  built  and  made  to  serve,  was 
covetousness,  to  "store  up  violence  and  robbery  in  their  pal- 
aces."65 A  number  of  other  objections  against  the  practices  of 
the  aristocracy  owning  these  houses  are  brought  forth.  "They 
covet  ....  houses  and  take  them  away;"  and  "the  wo- 
men of  my  people  ye  cast  out  from  their  pleasant  houses. ' ' 66 

Thus,  we  have  a  development  clearly  traced  from  the  common 
tent  of  the  nomad  to  the  privately  owned  palace  of  the  Hebrew 
nobleman,  apparently  very  much  like  the  modern  capitalist. 

The  term  "stuff,"  or  furniture,  in  our  source  is  only  another 
rendering  of  the  Hebrew  word  keli.  At  first  it  denotes  the 
various  furniture  of  the  tent,  including  such  items  as  the  house- 
hold gods.67  The  simplicity  of  this  equipment  can  be  traced  in 
the  story  cited,   though  the   property-right  in  these  things  is 

61  Ex.  20:17;  21:6;  22:7-8. 

62  Am.  3:15. 

A3  Am.   5:11.      See    Spencer,   Descriptive  Sociology,    No.    7,    p.   104. 

64  Jer.  22:13  ff.  "Woe  unto  him  that  buildeth  his  house  by  unrighteousness,  and 
his  chambers  by  injustice  ;  that  useth  his  neighbor's  service  without  wages,  and  giveth 
him  not  his  hire;  that  saith,  I  will  build  me  a  wide  house  and  spacious  chambers,  and 
cutteth  him  out  windows;  and  it  is  ceiled  with  cedar,  and  painted  with  vermillion." 
See  also  verse  17  of  this  chapter. 

65  Am.  3:10. 

66  Mic.  2:2,  9. 

67  Gen.  31:30  ff. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   43 

clearly  shown.  Such  property  is  also  mentioned  in  the  J  ac- 
count of  the  removal  of  Jacob's  family  to  Egypt.88  It  is  also 
conspicuous  and  the  object  of  strict  regulation  in  the  C  code.09 
Still,  even  as  late  as  the  time  of  Elisha  the  comforts  do  not  appear 
to  have  been  many.  A  short  description  of  the  outfit  of  a  room 
of  that  time  mentions  a  bed,  a  table,  a  seat,  and  a  candlestick.70 
This  was  the  furniture  provided  not  by  the  poor  but  by  "  a  great 
woman, ' '  who  provided  it  with  great  care  for  the  ' '  man  of  God. '  '71 
Like  other  forms  of  personal  property  it  is  highly  developed  at 
the  end  of  this  period  when  imprecations  are  uttered  by  the  pro- 
phets against  those  who  ' '  store  up  violence  and  robbery  in  their 
palaces"  and  "that  lie  upon  beds  of  ivory,  and  stretch  them- 
selves upon  their  couches.''72  The  same  aversion  is  noticeable 
to  this  form  of  property  as  was  expressed  by  the  prophets  in  the 
case  of  costly  buildings. 

The  steps  along  the  line  of  the  development  of  food-stuff  seems 
to  fall  into  two  groups,  the  vegetarian  and  the  meat  diet.  The 
former  was  undoubtedly  the  staple  among  the  common  people 
throughout  this  period.73  It  figures  prominently  in  the  bargain 
between  Jacob  and  Esau,  one  of  the  first  commercial  transactions 
recorded  in  our  sources,74  and  forms  an  important  item  in  the 
transfer  of  property  under  the  form  of  gifts  and  presents.75 
Meat  and  other  animal  food,  such  as  milk,  butter,  and  cheese,  was 
early  used,  but  chiefly  on  festal  occasions.76  Of  the  development 
of  luxurious  habits  in  the  use  of  these  products  the  prophets  give 
us  ample  testimony.77  Among  the  more  noteworthy  facts  which 
they  reveal  is  this  that  strong  drink  is  one  of  the  articles  of 
consumption  at  the  banquets  of  the  aristocracy.78 

Property  in  animals  is  represented  as  very  important  in  the 
early  writings.  Flocks  and  herds  are  second  only  to  human  be- 
ings.    Abraham  is  thought  of  as  "  very  rich  in  cattle  ' '  and  Lot 

68  Gen.  45:9  ff. 

69  Ex.  22:7. 

70  2  Ki.  4:10. 

71  2  Ki.  4:8,  9,  13. 

72  Am.  3:10;  6:4. 

73  Gen.  2:9,  16;  3:17-19. 

74  Gen.  25:34. 

75  Gen.  43:11;  1  Sam.  9:7;  25:18;  30:11-12;  2  Sam.  16:1-2;  17:27-29;  2  Ki. 
4:39;  Jer.  7:18  ff. 

76  Gen.  27:6-8;  1  Sam.  28:24-25. 

77  Is.  7:22;  22:13;  Am.  6:4. 

78  Is.  5:11,  12,  22;  19:14;  Am.  4:1;  6:6. 


44  UNIVERSITY  OF  IOWA 

had  "flocks  and  herds."79  The  heirs  of  Abraham  are  repre- 
sented in  a  similar  way.80  The  price  paid  by  Jacob  for  his  wives 
was  service  in  tending  the  flocks  of  Laban.81  Increase  of  the 
flocks  under  his  care  was  the  only  capital  out  of  which  his  wage 
was  paid  afterwards.82  The  interesting  breeding  experiments, 
undertaken  by  Jacob,83  shows  that  cattle  was  the  most  important 
of  his  possessions,  aside  from  his  family.  The  words  of  the  sons 
of  Laban,  "Jacob  hath  taken  away  all  that  was  our  fathers"84 
emphasize  the  same  concept,  though  the  sons  undoubtedly  mean 
his  wives,  children,  and  servants  as  well  as  the  flocks.  Probably 
the  most  concise  expression  upon  this  point,  in  these  early  ac- 
counts, is  the  designation  of  this  sort  of  property  as  ' '  riches ' '  in 
the  mouths  of  Rachel  and  Leah.  "For  all  the  riches  which  God 
hath  taken  away  from  our  father,  that  is  ours  and  our  chil- 
dren 's. " 85  It  is  not  without  significance  that  the  word  for 
"riches"  here  employed,  is  first  used  and  occurs  only  here  in  the 
J  and  E  documents  of  the  Hexateuch,86  while  it  is  regularly  used 
in  the  later  writings. 

All  this  lends  weight  to  the  view  of  the  purely  pastoral  life  of 
the  ancient  Hebrews  expressed  in  answer  to  Pharaoh's  question 
regarding  their  occupation:  "Thy  servants  have  been  keepers 
of  cattle  from  our  youth  even  until  now,  both  we  and  our  fath- 
ers."87 In  this  connection  a  piece  of  valuable  information  is 
afforded  us  in  the  reason  given  why  sheep  are  not  mentioned. 
Joseph  instructs  his  brethren  to  avoid  the  mention  of  this  animal, 
since  "every  shepherd  is  an  abomination  to  the  Egyptians."88 
From  this  it  is  evident  that  flocks  were  considered  the  original 
as  well  as  the  most  common  property  in  animals.  But  it  is  not 
possible  from  our  sources,  to  determine  with  certainty  the  exact 
order  of  the  conceived  sequence  of  the  different  animals  in  their 
possession.  Sheep,  goats,  oxen,  asses,  and  camels  are  frequently 
referred  to  as  making  up  the  flocks  and  herds.     This  composition 

79  Gen.  12:16;   13:2,  5;  20:14. 

80  Gen.  25:5;  26:14;  30:43;  32:5. 

81  Gen.  29:18  ff. 

82  Gen.    30:32. 

83  Gen.  30:37-39. 

84  Gen.  31 :1. 

85  Gen.  31:16. 

86  It  occurs  in  another  form  in  a  P  document,  Gen.  30:15. 

87  Gen.  46:34. 

88  Gen.  46:34. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   45 

of  property  seems  to  have  remained  practically  stable  during 
this  early  period,  with  the  possible  exception  of  the  introduction 
of  the  horse,  originally  used  for  the  purpose  of  war,89  as  a  beast 
of  burden. 

It  is  interesting  to  note  that  the  only  definite  information  as  to 
the  actual  size  of  a  man 's  wealth  comes  to  us  in  terms  of  property 
in  animals.90  Nabal's  three  thousand  sheep  and  one  thousand 
goats  —  making  him  a  "very  great  man"  —  is  the  most  exact 
statement  of  the  size  of  the  fortune  of  one  individual.91  The  J 
enumeration  of  Jacob's  gifts  to  his  brother  Esau  is  also  sugges- 
tive. These  gifts  are:  "two  hundred  she-goats  and  twenty  he- 
goats,  two  hundred  ewes  and  twenty  rams,  thirty  milch  camels 
and  their  colts,  forty  kine  and  ten  bulls,  twenty  she-asses  and 
ten  foals."92  And  the  Israelites  are  said  to  have  left  Egypt 
with  "flocks  and  herds,  even  very  much  cattle."  93 

What  must  be  regarded  as  the  really  serious  fact  with  respect 
to  this  form  of  property  from  the  developmental  standpoint,  is 
its  relative  importance  in  the  early  stages  and  its  insignificance 
in  the  later.  The  value  of  the  produce  of  the  soil,  when  lacking,94 
is  specifically  mentioned,  but  nowhere  in  the  patriarchal  stories 
is  this  produce  put  alongside  of  property  in  animals,  or  even 
counted  as  property  in  the  same  sense.  This  observation  is  still 
more  pertinent  with  regard  to  real  estate.  With  respect  to  prop- 
erty in  animals,  therefore,  it  is  safe  to  draw  the  conclusion  that 
its  importance  gave  way  with  the  rise  of  an  agricultural  economy 
and  of  landed  estates. 

The  produce  of  the  soil  seems  to  follow,  and  in  part,  to  sup- 
plant property  in  animals  at  the  close  of  this  period,  while  in  re- 
gard to  the  time  of  its  rise  it  is  a  later  development  than  orna- 
ments and  weapons.  While  there  are  indications  of  an  agricul- 
tural activity  in  the  early  documents,  it  is  of  an  incidental  nature. 
Isaac  reaps  "an  hundredfold,"  but  this  produce  never  enters 
into  the  conception  or  statement  of  his  great  wealth.95  It  is  not 
even  stated  of  what  the  crop  consisted,  and  this  holds  true  of  the 

89Judg.  1:19;  2  Sam.  8:4;  1  Ki.  10:28-29;  4-26. 

90  Cp.  Judg.  8:30,  Gideon's  "three  score  and  ten  sons;"  also  2  Sam.  9:10. 

91  1  Sam.  25:2. 

92  Gen.  32:14.      Cp.  1  Sam.  30:26.      David's  gifts  of  spoil. 

93  Ex.  12:38. 

94  Gen.  42:1,  2;  43:1. 

95  Gen.  26:12,  14. 


46  UNIVERSITY  OF  IOWA 

references  to  the  "tilling  of  the  ground"  of  the  first  man  and 
woman  and  also  of  Cain  and  Noah.96  In  the  case  of  Noah  the 
planting  of  a  vineyard  is  mentioned,  yet  it  is  first  in  connection 
with  the  famine  in  Egypt  and  Canaan  that  explicit  references 
to  this  form  of  property  are  clearly  distinguished.  While  the 
' '  choice  fruits,  spicery  and  myrrh,  nuts  and  almonds, ' ' 97  are 
used  as  a  medium  of  exchange,  the  abundant  crops  of  corn  in 
Egypt  are  the  first  monopolized  property  by  which  Joseph  is  able 
to  bring  the  whole  kingdom  into  vassalage  to  Pharaoh.98  The 
definite  impression  of  agriculture  is  plainly  seen  in  the  narrative 
of  the  exodus,  for,  though  the  galling  bondage  is  the  most  con- 
spicuous element  of  their  lot,  yet  the  Israelites  are  not  only  pos- 
sessors of  flocks  and  herds  but  of  produce  of  the  soil  as  well. 
'  The  people  took  their  dough  before  it  was  leavened,  the  knead- 
ing troughs  being  bound  up  in  their  clothes  upon  their  should- 
ers. ' ' 99  How  far  this  reference  reflects  the  tradition  of  actual 
experiences  of  the  Hebrews  in  Egypt  and  how  far  their  later 
experiences  as  settled  agriculturists  in  Canaan,  scholars  are 
unable  as  yet  to  determine  with  certainty. 

The  report  of  the  spies  deals  only  with  the  fruit  of  the  land.100 
That  the  rise  of  Hebrew  agriculture  in  Canaan  was  gradual  is 
evident  from  the  nature  of  the  conquest.  At  the  compilation 
of  the  C  code  the  ownership  of  the  produce  of  the  field  and  the 
vineyard  is  not  only  recognized  but  protected  by  actual  legisla- 
tion. 'If  a  man  shall  cause  a  field  or  vineyard  to  be  eaten,  and 
shall  let  his  beast  loose,  and  it  feed  on  another  man's  field,  of  the 
best  of  his  own  field  and  of  the  best  of  his  own  vineyard  shall 
he  make  restitution.101  So  also,  if  fire  destroys  a  man's  "shock 
of  corn,  and  standing  corn,"  the  man  kindling  the  fire  is  held 
responsible  for  its  value.102 

With  the  increase  of  population,  cultivation  of  the  soil  natur- 
ally increased  and  its  produce  grew  in  value,  until  it  eventu- 
ally became  valuable.  This  is  clearly  set  forth  by  the  prophet 
Amos.     ' '  Your  treading  is  upon  the  poor,  and  ye  take  from  him 

90  Gen.  2:5  ff. ;   4:2;  9:20. 

97  Gen.  43:11. 

98  Gen.  41:47  ff. 

99  Ex.  12:34,   39. 

100  Num.   13:18-33. 

101  Ex.  22:5. 

102  Ex.  22:6. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   47 

burdens  of  wheat. "  103  Amos  even  gives  us  information  concern- 
ing men,  who  saw  the  advantage  of  a  "corner  in  wheat"  very 
much  in  the  modern  sense.  The  prophet's  words  touching  this 
phase  of  commercial  life  of  the  times  —  are  as  follows :  ' '  Hear 
this,  O  ye  that  Would  swallow  up  the  needy,  and  cause  the  poor 
of  the  land  to  fail,  saying,  When  will  the  new  moon  be  gone, 
that  we  may  sell  grain?  and  the  sabbath  that  we  may  set  forth 
wheat  .  .  .  that  we  may  buy  the  poor  for  silver  and  the 
needy  for  a  pair  of  shoes,  and  sell  the  refuse  of  the  wheat  ?  "  104 
Thus  we  see  a  concept  of  property  in  the  produce  of  the  soil 
which  is  about  as  highly  developed  as  it  can  be,  and  which  is 
totally  different  from  the  early  notion  of  a  purely  pastoral  life, 
in  which  this  produce  plays  no  part  in  the  conception  of  a  man's 
possession. 

An  interesting  phase  of  this  changed  notion  is  the  contrast 
afforded  between  the  ideals  of  these  two  different  occupations. 
To  the  J  writer,  the  representative  of  agriculture  is  the  fratricide 
Cain,  and  Abel  the  "keeper  of  sheep"  is  the  innocent  victim; 1)05 
while  to  the  mind  of  the  prophets,  the  coming  millenium  is  desig- 
nated by  ' '  swords  beaten  into  plowshares,  and  spears  into  prun- 
ing-hooks, ' ' 106  and  ' '  they  shall  sit  every  man  under  his  vine  and 
under  his  fig-tree. ' ' 107  From  this  it  is  evident  that  agriculture 
as  an  ideal  occupation  has  taken  the  place  of  the  earlier  pastoral 
ideal. 


103  Am.   5:11. 

104  Am.  8:4-6. 

105  This  story  probably  reflected  the  attitude  of  a  period  antecedent  to  that  of  the 
■writer,  who  probably  was  living  in  the  midst  of  a  civilization  in  which  property  in 
land,  although  dominant,  was  comparative])  recent  in  its  introduction,  and  he  reacted 
against  it. 

106  Is.  2:4.     Mic.  4:3. 

107  Mic.  4:4. 


CHAPTER  V 
REAL  PROPERTY 

The  absence  of  real  property  in  the  earliest  J  and  E  records, 
is  one  of  the  striking  facts  that  meet  us  in  our  study.  The  C 
code  itself,  though  it  clearly  reflects  a  settled  and  agricultural 
mode  of  life,  is  far  from  explicit  as  to  the  system  of  land  owner- 
ship that  obtained.  It  will  be  seen  later  that  the  only  safe  in- 
ference from  the  facts  is  that  the  ' '  community  system ' '  of  land- 
ownership  prevailed,  as  indicated  by  Fenton  in  his  Early  Hebrew 
Life.  Fortunately,  the  prophets  give  us  a  clear  insight  into  the 
general  principles  that  governed  the  possession  of  real  property 
before  the  exile.  But  leading  up  to  this  late  principle  of  private 
ownership,  we  are  able  to  trace  the  institution  of  property  of 
real  estate  from  its  very  beginnings,  so  far  as  it  is  reflected  in  the 
traditional  notions  of  the  people,  to  its  later  transformation  in 
accordance  with  the  changing  economic  and  social  conditions. 

The  notion  of  an  exclusively  pastoral,  and,  indeed,  a  nomadic 
ancestry,  obtained  among  the  early  writers,  as  was  noted  in 
the  preceding  chapter.  It  is  in  their  documents,  therefore,  we 
must  look  for  the  first  glimmerings  of  the  concepts  of  landed 
property.  There  is  no  indication  that  Abraham  was  thought  of 
as  engaged  in  agrarian  pursuits.  He  is  portrayed  as  a  true 
nomad,  or  Bedouin  sheik.  We  are  even  treated  to  a  definite 
conception  of  absolutely  free  land,  to  be  had  for  the  mere  occu- 
pancy :  "Is  not  the  whole  land  before  thee, ' '  are  the  words  of 
Abraham  to  his  nephew,  and  of  the  "well  watered"  region,  "Lot 
chose  him  all  the  plain  of  Jordan. ' ' 1  The  divine  promises,  given 
to  Abraham  at  this  period,  reveal  a  conception  of  the  land  in  the 
sense  of  country  for  the  purpose  of  a  tribal  possession,  and  are 
strictly  in  keeping  with  the  notion  of  free  land. 

Scarcely  any  doubt  can  be  entertained  as  to  the  genuine- 
ness of  these  lingering  reminiscences  of  actual  nomadic  exper- 
iences in  the  obscure  past  of  the  people.     They  cannot  be  re- 

l  Gen.   13:9,  11. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   49 

flections  of  conditions  existing  at  the  time  of  the  writer ;  indeed, 
that  the  actual  condition  of  free  land  was  present  at  this  time 
is  impossible  in  view  of  the  rich  civilization  of  the  Canaanites 
depicted  in  our  sources  as  obtaining  at  the  time  of  the  patriarchs 
and  testified  to  by  the  Tel-El-Amarna  tablets.2 

While  the  notion  of  free  land  runs  through  the  description 
of  the  lives  of  the  other  patriarchs  as  well,  important  observa- 
tions are  made  as  to  their  mode  of  life,  that  are  of  great  value 
to  our  study.  Isaac  pursues  the  same  nomadic  habits  as  his 
father,  but  we  read  of  him  that  "Isaac  sowed  in  that  land 
[Grerar]  and  found  in  the  same  year  an  hundred  fold."3  The 
J  narrator  to  whom  we  owe  this  interesting  notice,  gives  us  in 
the  same  connection  an  interesting  account  of  what  he  conceives 
to  be  the  most  primitive  of  all  forms  of  real  property  among  the 
Hebrews,  namely,  the  ownership  of  wells.4  This  is  observed 
and  admirably  treated  by  the  late  W.  R.  Smith  in  explanation 
of  certain  religious  phenomena  of  the  people.  "Property  in 
water  is  older  and  more  important  than  property  in  land.  In 
nomadic  Arabia  there  is  no  property,  strictly  so  called,  in  desert 
pastures,  but  certain  families  or  tribes  hold  the  watering-places 
without  which  the  right  of  pasture  is  useless.  Or,  again,  if  a 
man  digs  a  well  he  has  a  preferential  right  to  water  his  camels  at 
it  before  other  camels  are  admitted ;  and  he  has  an  absolute  right 
to  prevent  others  from  using  the  water  for  agricultural  purposes 
unless  they  buy  it  from  him. ' ' 5  This  writer  even  distinguishes 
between  private  and  joint  ownership  in  this  kind  of  property, 
citing  Judg.  1 :15,  in  support  of  the  former,  and  Gen.  29  :8,  in 
support  of  the  latter  form  of  ownership.6  To  Dr.  Smith  it  is 
in  reality  only  the  water  that  counts  in  the  matter  of  ownership 
and  in  that  case  its  bearing  upon  the  matter  in  hand  would  be 
less  apparent.  It  is  impossible,  however,  to  escape  the  impres- 
sion of  the  emphasis  laid  upon  the  labor  expended  in  the  digging 
of  these  wells  as  described  in  the  J  narrative.  While  the  water 
naturally  was  the  object  sought,  still  the  location  and  the  labor 
spent  in  obtaining  it  are  the  two  chief  elements  of  value  in  the 
elucidation  of  the  rise  of  landed  or  real  property.     That  these 

2  See  also  Paton,  The  early  history  of  Syria  and  Palestine. 

3  Gen.  26:12. 

4  Gen.  26:18-32. 

5  Religion  of  the  Semites,  p.   104. 

6  Ibid.,  p.  105,  footnote. 


50  UNIVERSITY  OF  IOWA 

elements  became  important  we  have  proofs  in  the  C  code :  "  If  a 
man  shall  open  a  pit,  or  if  a  man  shall  dig  a  pit  and  not  cover 
it,  and  an  ox  or  an  ass  fall  therein,  the  owner  of  the  pit  shall 
make  it  good. ' ' 7  That  the  land  rather  than  the  water  is  the 
most  effective  item  in  this  property  right  is  beyond  question. 

Aside  from  this  incipient  form  of  real  property  we  have  an- 
other reference  to  a  sporadic  agricultural  activity  during  the 
pastoral  period,  that  forms  the  real  basis  for  actual  ownership 
in  land  for  agricultural  purposes.  The  practice  attributed  to 
Isaac  of  sowing  and  reaping  on  soil  that  was  abandoned  directly 
afterwards  is  conceived  as  increasing  later  on.  "Behold,  we 
were  binding  sheaves  in  the  field, ' '  are  the  words  by  which  Joseph 
is  represented  as  describing  his  dream  to  his  brethren.8  No 
great  amount  of  psychology  is  needed  to  interpret  the  signifi- 
cance of  such  a  sentence  with  respect  to  the  notion  of  a  growing 
agricultural  activity. 

A  step  further  is  taken  in  the  E  document,  in  the  description 
of  Jacob 's  transaction  at  Shechem.  This  reflects  a  primitive  and 
elementary  yet  clear  notion  of  landed  values.  ' '  And  Jacob  came 
.  .  .  to  the  city  of  Shechem,  .  .  .  and  encamped  before 
the  city.  And  he  bought  the  parcel  of  ground  where  he  had 
spread  his  tent  .  .  .  for  a  hundred  pieces  of  money  [kesi- 
tah] . "  9  The  simple  manner  of  statement,  the  important  loca- 
tion, the  limited  extent,  and  the  moderate  price  tend  to  render 
this  passage  very  instructive  concerning  the  inception  of  landed 
property-values  among  the  Hebrews. 

That  the  idea  of  landed  property  in  the  mind  of  the  J  writer 
is  highly  developed  is  clearly  seen.  The  story  of  creation  by 
this  writer  reflects  the  same  view.  Man's  original  and  primary 
purpose  was  to  "till  the  ground;''  an  object  assigned  to  him,  as 
J  conceives  it,  even  before  his  creation ;  apparently  J  believes  it 
to  be  the  immediate  purpose  of  his  existence.10  A  garden  is  con- 
ceived as  literally  "planted"  by  Yahweh,  and  into  it  man  was 
put,  not  for  possession,  indeed,  as  the  subsequent  story  of  the 
"fall"  shows,  (where  this  point  of  actual  authority  based  upon 
the  principle  of  the  property  right  is  interestingly  developed) 

7  Ex.   21  :3.T. 

8  Gen.  37:7. 

f  Gen.  33:18-19. 
10  Gen.  2:5. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   51 

but  "to  dress  and  to  keep  it."u  The  thought  has  been  ex- 
pressed that  the  temptation  itself  represents  "the  awakening 
instincts  of  ownership."12 

The  J  stoiy  of  the  fratricide  places  the  two  functions  of  pas- 
toral and  agricultural  activities  side  by  side.  "Abel  was  a 
keeper  of  sheep  and  Cain  was  a  tiller  of  the  ground."13  The 
story  itself  is  full  of  significance  according  to  the  Jewish  folk- 
lore expressed  in  the  Agadah.  Here  the  story  of  Cain  and  Abel 
is  viewed  as  typical  of  the  fierce  economic  struggle  between  man 
and  man  with  its  brutal  theoiy  of  the  survival  of  the  strongest.14 

Clearer  evidence  of  the  rise  of  real  property  is  afforded  in  the 
later  J  records.  The  descriptions  of  the  famine  in  Egypt  and 
of  the  "high  finance"  of  Joseph  leave  but  very  little  doubt  of 
J's  notion  upon  this  point.  Joseph  gathered  up  the  money,  the 
cattle  and  the  people,  but  one  item  was  still  available,  according 
to  this  writer,  namely,  the  land.  The  people  are  represented 
as  saying:  "Our  money  is  all  spent;  and  the  herds  of  cattle 
are  my  lord's;  there  is  nought  left  .  .  .  but  our  bodies  and 
our  lands."15  The  principles  involved  in  the  transaction  are 
clearly  conceived  and  plainly  stated :  "So  Joseph  bought  all  the 
land  for  Pharaoh ;  for  the  Egyptians  sold  every  man  his  field, 
.  .  .  and  the  land  became  Pharaoh's."16  Notice  is  made 
of  the  exception  of  the  land  of  the  priests,  to  which  Pharaoh  did 
not  acquire  the  title."  The  nature  of  the  title  which  he  did 
acquire  is  of  a  truly  feudal  character.  The  former  owners  are 
permitted  to  hold  it  in  fief,  and  are  even  provided  with  the  neces- 
sary seed,  but  one-fifth  of  the  crops  were  to  accrue  to  the  benefit 
of  Pharaoh,  the  real  owner  of  the  land.18 

The  description  of  this  transaction  on  a  large  scale  is  so  vivid 

11  Gen.  2:15. 

12  Matheson,  Representative  men  of  the  Bible,  p.  33.  The  frequent  references  to 
the  land  in  the  early  patriarchal  records,  can  not  he  made  to  contribute  a  great  deal 
towards  the  elucidation  of  landed  property  concepts,  since  these  references  convey 
more  of  the  notion  of  a  divine  than  of  human  right  of  ownership.  The  only  clue  that 
we  might  glean  from  these  passages  would  be  that  they  show  a  communal  rather  than 
an  individual  right  to  land  in  so  far  as  the  promises  were  made  to  the  entire  posterity 
of  the   patriarchs. 

13  Gen.  4:2. 

14  Rosenberg,  Arena,  Vol.  28,  p.  37. 

15  Gen.  47:18. 

16  Gen.  47:20. 

17  Gen.  47:22. 
is  Gen.  47:26. 


52  UNIVERSITY  OF  IOWA 

and  realistic  that  one  is  led  to  believe  that  the  story  is  of  a 
rather  late  origin,  and  was  written  at  a  time  when  the  concept 
of  landed  property  had  made  considerable  progress  under  the 
monarchical  regime,  and  before  the  abuses  of  despotism  were 
deeply  felt.  At  any  rate,  the  feudal  form  of  tenure  is  the  form 
substituted  by  this  transaction  for  the  communal  possession, 
which  is  clearly  implied  as  the  original  mode  of  ownership  in 
this  narrative.  The  changes  thus  described  as  taking  place  in 
Egypt  within  a  few  years  are  undoubtedly  indicative  of  the 
gradual  and  slow  changes  in  the  concept  of  landed  property 
that  took  place  among  the  Hebrews  on  Palestinian  soil. 

As  we  proceed  in  the  narratives  references  to  this  form  of 
property  become  more  frequent  and  more  definite.  Thus,  we 
have  the  following  divine  charge  to  Joshua:  "Thou  art  old 
.  .  .  and  there  remaineth  yet  very  much  land  to  be  possessed. 
Now  therefore  divide  this  land  for  an  inheritance. ' ' 19 

Sufficient  evidence  has  been  adduced  to  show  that  the  J  and  E 
documents,  while  written  from  the  standpoint  of  a  developed 
concept  of  landed  property,  clearly  reflect  the  gradual  develop- 
ment of  the  same  in  the  order  stated.  It  need  scarcely  be  point- 
ed out  that  the  possession  of  cities,  towns,  and  villages  plays  a 
larger  part  in  the  early  stage  of  the  conquest  than  the  land 
itself.20 

Indications  of  real  property  in  the  codes  have  already  been 
cited  as  implying  a  settled  and  agricultural  life.  Too  much 
importance  can  not  be  ascribed  to  the  fact  that  while  these  codes 
regulate  in  minute  detail  the  property  rights  in  men,  animals, 
money,  and  other  stuff,  and  even  in  the  produce  of  the  field  or 
vineyard,  still  the  field  itself,  or  the  soil  as  an  object  of  owner- 
ship and  therefore  subject  to  regulation,  is  not  mentioned. 
Many  things  can  be  inferred  from  this  fact,  but  this  one  point  is 
established,  that  whatever  form  of  real  property  obtained,  the 
need  of  regulation  of  one  man's  right  to  the  land  as  over  against 
another's,  had  not  yet  demanded  the  legislator's  attention.  To- 
tally different  is  the  condition  as  depicted  by  the  prophets  and 
in  the  legislation  of  the  D  code,21  in  which  this  question  of  the 
ownership  of  land  plays  an  important  part.     The  only  possible 

19  Josh.  13:7. 

20  Num.   21:25;   32:39-42;  Josh.   6:20;  8:19   S. 
2i  Dt.  19:14. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   53 

explanation  of  the  initial  form  of  tenure  is  the  communal  form 
of  ownership,  with  which  all  students  of  English  land  tenure 
are  familiar. 

In  the  interim  the  development  of  the  principle  of  real  prop- 
erty is  well  described.  Measurement  of  the  land  meets  us  in  the 
first  book  of  Samuel.22  That  this  is  one  of  the  best  indications 
of  the  acknowledged  pecuniary  value  of  the  soil,  as  such,  scarcely 
needs  pointing  out.  With  the  monarchy  established  landed  prop- 
erty becomes  more  of  a  private  nature.  "Will  the  son  of  Jesse 
give  eveiy  one  of  you  fields  and  vineyards'?"  23  is  the  question  of 
King  Saul,  showing  the  headway  made  by  feudal  practices. 
Cities  are  likewise  given  away  as  gifts.24  David  announces  that 
he  has  delivered  over  the  possession  of  Saul  to  his  predecessor's 
son,  and  it  is  quite  clear  that  this  possession  consisted  of  land 
since  the  servant  of  Saul's  son  is  instructed  to  "till  the  land  and 
bring  in  the  fruits. "  25  A  later  reference  to  the  same  property 
makes  this  supposition  more  certain.  The  servant  of  the  son  of 
Saul,  conspiring  to  gain  possession  of  the  property  himself,  is  at 
first  successful  and  gets  it  all,  but  later,  when  this  servant's  per- 
fidy is  exposed,  the  annoyed  king  exclaims:  "Why  speakest 
thou  any  more  of  thy  matters?  I  have  said,  Thou  and  Ziba  di- 
vide the  land."26 

It  is  needless  to  cite  further  the  less  important  cases.  The  out- 
standing illustration  of  the  extent  to  which  the  practice  of  royal 
usurpation  of  the  established  communal  property-rights  in  land 
was  carried  is  the  crime  of  King  Ahab  in  getting  possession  of 
Naboth's  vineyard.27  This  account  reveals  the  fact  that  there 
was  an  established  system  of  family  ownership  of  land,  sufficient- 
ly strong  to  baffle  even  the  king  in  his  attempt  to  lay  hold  of  a 
part  of  it  that  belonged  to  his  subject,28  How  serious  this  viola- 
tion of  the  family  right  to  landed  property  is  considered  by  the 
recorder  is  shown  in  the  curse  pronounced  upon  King  Ahab  and 
his  wicked  queen,29  which  is  described  as  literally  fulfilled. 

22  14:14;  also  Is.  5:10. 

23  1  Sam.  22:7. 

24  1  Sam.  27:6;  1  Ki.  9:16. 

25  2  Sam.  9:9-10. 

26  2  Sam.  19:29. 

27  1  Ki.  21:1-16. 

28  See  Fenton's   Early   Hebrew   life,   pp.    32   ff. 

29  1    Ki.   21:19,    32-38. 

30  2  Ki.  9:24  ff.      Cp.  McCurdy,  op.  cit.,  Vol.  2,  pp.  200  ff. 


30 


54  UNIVERSITY  OF  IOWA 

The  testimony  of  the  prophets  that  this  abuse  and  the  rise  of 
private  ownership  of  land  became  rampant  among  the  wealthy- 
aristocracy,  is  clear  and  concise.  "And  they  covet  fields  and 
take  them  by  violence ;  and  houses  and  take  them  away :  so  they 
oppress  a  man  and  his  house,  even  a  man  and  his  heritage."31 
In  clarion  tones  that  leave  no  room  for  uncertainty,  the  prophet 
Isaiah  refers  to  the  same  fact.  "Woe  unto  them  that  join  house 
to  house,  that  lay  field  to  field,  till  there  be  no  place,  that  they 
may  be  placed  alone  in  the  midst  of  the  earth. ' ' 32  Such  an  ut- 
terance proves  that  family  rights,  formerly  considered  sacred 
and  inviolable,  were  ruthlessly  set  aside  as  the  concept  of  private 
property  became  more  and  more  definite. 

While  this  is  indicative  of  the  change  in  general,  we  have  a 
still  more  concise  statement  of  the  details  in  the  trade  of  landed 
property  by  the  prophet  Jeremiah.  He  describes  minutely  not 
only  the  actual  purchase  of  a  piece  of  land,  but  gives  us  also  in 
this  connection  the  first  description  of  a  "  bill  of  sale ' '  occurring 
in  the  Bible.  "And  I  bought  the  field  of  Hanameel  .... 
and  weighed  him  the  money,  even  seventeen  shekels  of  silver. 
And  I  subscribed  the  evidences  and  sealed  it,  and  took  witnesses, 
and  weighed  him  the  money  in  the  balances.  So  I  took  the  evi- 
dence of  the  purchase,  both  that  which  was  sealed  according  to 
law  and  custom,  and  that  which  was  open."  33 

In  no  other  kind  of  property  is  the  development  so  marked  as 
in  the  conception  of  real  property.  There  is  a  wide  difference 
between  a  purely  pastoral  view  of  the  land  in  patriarchal  times 
and  the  concept  reflected  in  the  C  code.  And  then  there  is  great 
progress  from  the  time  of  the  compilation  of  this  code,  altogether 
silent  upon  this  subject,  up  to  the  time  when  the  question  of  the 
right  to  landed  property  had  become  an  issue  of  national  im- 
portance. Were  the  forces  that  brought  about  this  development 
fully  known,  we  should  have  the  key  wherewith  to  unlock  prac- 
tically all  the  great  changes  in  the  history  of  the  Hebrew  People. 


31  Mic.  2:2. 

32  Is.  5:8. 

33  Jer.  32:9-11. 


CHAPTER  VI 

SPECIAL  CONCEPTS 

Inheritance  does  not  appear  to  have  been  as  definite  and  con- 
crete a  concept  as  is  generally  supposed.  That  Dammasek  Elie- 
zer  is  the  heir  of  Abraham  seems  to  point  to  Abraham's  good 
will,  fully  as  much  as  to  a  long  established  custom  of  the  slave 's 
right  to  inherit.1  The  sequel  of  this  J  and  E  account  of  the 
earliest  transfer  of  property,  appears  to  give  a  wide  latitude  to 
the  master's  pleasure.  The  right  of  the  first-born  is  one  of  the 
best  attested  facts,  and  yet  even  this  right  is  not  an  ironclad 
rule.  Ishmael  is  the  first-born  of  Abraham,  but  at  the  birth  of 
Isaac  the  right  of  inheritance  is  divided  between  the  two.2  And 
it  is  fully  within  the  power  of  the  patriarch  to  "hearken  unto 
the  voice"  of  the  chief  wife,  and  to  expel  the  first-born.3  The 
master's  right  over  the  disposition  of  his  property  at  will  is 
rather  emphatically  expressed  in  the  brief  observation,  "and 
Abraham  gave  all  that  he  had  unto  Isaac,"  *  an  expression,  it  will 
be  noted,  utterly  irrelevant,  had  this  power  of  the  master  to  dis- 
pose of  his  property  at  will  not  existed.  In  point  of  fact,  ac- 
cording to  the  patriarchal  stories  not  one  of  the  first-born  sons  of 
the  patriarchs  was  the  chief  heir  of  his  father's  property.  The 
most  prominent  example  of  the  right  of  the  first-born  is  the  ac- 
count of  the  sale  of  this  right  by  Esau  to  his  brother  Jacob.5 
And  in  spite  of  the  sale  it  required  the  paternal  blessing  to  be  of 
any  avail.6  Jacob  likewise  gives  the  precedence  not  to  the  first- 
born, whose  birthright  he  fully  recognizes,  but  to  the  fourth  son.7 
Hence  the  statement  that  parental  authority  scarcely  existed  in 

1  Gen.   15:2,  3.      Cp.  Underwood,   Distribution  of  ownership,  p.   26. 

2  Gen.  21:10. 

3  Gen.  21:11.  Since  descent  depended  on  the  master's  property-right  in  the 
mother,   there  is  no  more   difference   between   Abraham's   sons  than  Jacob's   sons. 

4  Gen.  25:5. 

5  Gen.  25:29  ff. 

6  Gen.  27:12. 

7  Gen.   49:3,  8. 


56  UNIVERSITY  OF  IOWA 

Arabic  society,  does  not  obtain  in  early  Hebrew  life  in  the 
desert.8 

It  is  not  merely  in  the  early  stages  that  we  find  the  "patria 
potestas"  extended  to  inheritance.  We  meet  the  same  fact  in 
the  period  of  the  established  monarchy.  The  case  of  Solomon's 
succession  to  the  throne  follows  the  same  principles  set  forth  in 
Isaac's  inheriting  the  wealth  of  Abraham.9  It  is  quite  remark- 
able that  the  C  code  is  silent  as  to  this  apparently  important 
matter  of  inheritance.  The  inference  is  analogous  to  the  case  of 
the  system  of  landed  property.  So  long  as  property  was  more 
personal  in  its  nature,  and  was  held  more  or  less  in  common,  it  is 
reasonable  to  expect  less  clearly  defined  laws  of  inheritance  than 
after  real  property  has  become  an  object  of  private  ownership. 

That  this  is  the  development  among  the  Hebrews  we  can  easily 
trace  in  the  prophetic  writings.  The  most  conspicuous  example 
is  the  violent  indignation  and  the  dreadful  curse  pronounced 
upon  King  Ahab  for  violating  the  right  of  inherited  property : 
"Jehovah  forbid  it  me,  that  I  should  give  the  inheritance  of  my 
fathers  unto  thee. "  10  In  the  view  of  the  prophet  this  crime  as- 
sumes an  importance  of  a  national  character,  and  involves  the  de- 
struction of  the  dynasty.  But  it  is  to  be  remembered  that  the 
object  of  inheritance,  in  the  case  cited,  was  family  property  in 
land  not  private  or  personal  property.  That  this  limitation  of 
the  rights  of  inheritance  increased  we  have  evidence  in  the  later 
prophets.  The  terrible  oppression  by  the  aristocracy  is  perpe- 
trated against  "a  man  and  his  house,  even  a  man  and  his  her- 
itage." lx  But  the  best  testimony  to  the  progressive  development 
of  this  concept  is  the  legislation  of  Deuteronomy,  where  the  mas- 
ter's power  to  bequeath  his  property  is  definitely  restricted  and 
regulated.12  The  parallel  development  with  landed  property  is 
obvious. 

Property  can  not  inherit  property;  hence  daughters  were  ex- 
cluded from  the  privilege  of  inheritance,  and  we  have  several 
cases  to  show  that  wives  were  inherited  along  with  other  prop- 
erty.13    No  development  is  discernible  during  the  early  period. 

8  Smith,  Kinship  and  marriage,  p.  68. 

9  1  Ki.  1:11-13. 

10  1  Ki.   21:3. 
n  Mic.  2:2. 

12  Dt.  21:15-17. 

13  Gen.    49:3   ff. ;   35:22;   2    Sam     3:7    ff.,    12:    8;    16:21   ff . ;    1    Ki.    2:13   ff. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   "»7 

The  early  divine  ownership,  reflected  in  the  patriarchal  promises, 
is  by  the  prophets  expressed  as  a  divine  right  of  inheritance.14 

Borrowing  and  lending,  and  a  system  of  pledges  and  damages 
are  mentioned  in  our  sources.  The  first  sanction  of  these  forms 
of  economic  activity  occurs  in  connection  with  the  exodus  where 
the  people  are  instructed  to  "ask"  of  their  neighbors  costly 
things  and  thus  "spoil"  the  Egyptians.1  r' 

In  the  C  code  borrowing  receives  minute  regulation,  showing 
that  it  was  extensively  practiced  and  in  such  a  way  as  to  need 
regulation.  Borrowed  animals  must  be  compensated  for,  if  they 
are  injured  or  die  in  the  hands  of  the  borrower,  unless  they  be 
hired  and  the  owner  is  with  them.10  The  lender  of  money  is  for- 
bidden to  be  to  the  borrower  "as  a  creditor."  17  Goods  held  in 
trust  could  be  required  by  the  owner  if  missing,  but  an  ordeal 
that  turned  out  favorably  to  the  holder  exempted  him  from  res- 
titution when  there  was  no  witness  to  prove  his  guilt.18  Another 
rule  is  shown  by  the  oath  whereby  the  holder  of  a  beast  may  rid 
himself  of  responsibility,  if  the  animal  "die,  be  hurt,  or  driven 
away"  in  secret,  but  if  it  be  stolen  he  is  liable  for  its  value.  If 
torn  in  pieces  he  is  guiltless.19 

In  the  monarchy  men  were  being  sold  for  debt.20  By  the  time 
of  the  prophets  the  custom  of  taking  usury  had  grown  up.21 
And  in  Deuteronomy  usury  is  specifically  forbidden  if  the  bor- 
rower is  a  Hebrew,  but  sanctioned  if  practiced  upon  a  foreigner.22 

A  pledge  seems  to  have  been  the  common  mode  of  indicating 
a  debt  and  of  securing  repayment.  Valuable  light  upon  this 
practice  is  afforded  by  the  fact  that  the  only  pledge  mentioned 
in  the  early  documents  is  the  only  garment  a  man  has  and  in 
which  he  sleeps.23  This  practically  proves  that  it  was  only  the 
direst,  necessity  that  drove  a  man  to  borrow  and  that  no  system 
of  credit  in  our  modern  sense  of  the  term  existed  at  that  time: 
credit  was  in  its  incipient  and  elementary  stage.     Its  complete 

l4.Ter.  12:7-10. 

lfi  Ex.  3:22. 

ifi  Ex.   22:14-15. 

17  Ex.  22:25. 

18  Ex.   22:7-9 

19  Ex.   22:10-13. 

20  2  Ki.  4:1. 

21  Is.  24:2:  Jer.  15:10. 

22  Dt.  23:19-20. 

23  Ex.  22:25-27. 


58  UNIVERSITY  OF  IOWA 

development  occurs  in  the  latter  part  of  the  early  period.  The 
pledge  is  still  in  vogue  in  the  latest  of  our  sources,  side  by  side 
with  the  practice  of  usury,  which  undoubtedly  was  one  of  the 
many  ways  in  which  the  wealthy  "ground  the  faces  of  the 
poor,"  and  gathered  the  "spoil  of  the  poor"  into  their  palaces.24 
To  this  practice  of  redemption  of  pledges,  the  recurring  phrase  of 
Amos,  "selling  the  poor  for  a  pair  of  shoes,"  undoubtedly  re- 
fers.25 For  in  this  same  connection  occurs  the  description  of 
how  "they  lay  themselves  down  upon  clothes  laid  to  pledge  by 
every  altar. ' ' 26  Though  not  mentioned  in  particular,  it  must 
have  played  as  large  a  part  in  the  systematic  oppression  of  the 
poor  and  needy  as  the  extortion  of  usury,  for  we  find  in  the  D 
code  a  close  regulation  of  this  system  of  pledges,  which  shows  a 
high  degree  of  development.27 

Damages  are  exacted  during  this  early  period  in  the  following 
cases :  loss  of  time,  cost  of  healing  a  personal  injury,  bodily  harm 
to  a  pregnant  woman,  and  the  case  when  an  ox  gored  another 
person  than  its  owner  or  gored  some  one's  else  beast.28  In  case 
of  theft,  damages  varying  from  the  reimbursement  of  the  value 
up  to  restitution  five-fold  is  commanded.  In  case  of  poverty  the 
thief  is  to  be  sold  into  slavery ;  and  in  case  of  burglary  the  pen- 
alty of  death  could  be  inflicted  by  the  owner  of  the  house,  if  he 
killed  the  intruder  before  the  sun  was  risen.29 

That  the  system  of  damages  increased  in  severity  under  the 
financial  oppression  of  the  rich  is  indirectly  attested  by  the  gen- 
eral condemnation  by  the  prophets  of  the  practices  of  the  ar- 
istocracy; and  indeed,  not  only  of  their  inordinate  greed  but  of 
their  very  possession  of  concentrated  wealth  itself,  a  condemna- 
tion which  pervades  all  the  prophetic  writings  at  the  close  of  the 
early  period. 

The  concept  of  trade  or  commerce  does  not  meet  us  in  the  early 
documents.  All  that  we  meet  in  these  are  a  few  scattered  refer- 
ences to  personal  barter  and  exchange,  reflecting  almost  all  the 
stages  through  which  the  primitive  evolution  of  money  and  trade 
passed.     One  of  the  first  "financial"  transactions  is  rather  in- 

24  Is.  3:14-15. 

25  Am.  2:6. 

26  Am.  2:8. 

27  Dt.  24:6,  10-13,  17. 

28  Ex.  21:19,  22-36. 

29  Ex.  22:1-8. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   59 

teresting.  The  commodity  that  changed  hands  was  a  birthright, 
and  the  price  paid  for  it  was  a  ' '  pottage  of  lentils. ' ' 30  The  pur- 
chase of  Laban's  daughters  for  the  price  of  labor  has  frequently 
met  us  in  our  study.  Jacob's  purchase  of  the  "parcel  of  ground 
where  he  had  spread  his  tent,''  is  done  by  means  of  a  medium 
called  kesitah,  a  term  that  means  ' '  lamb. ' ' 31  While  it  is  a  dis- 
puted point  if  animals  really  were  a  medium  of  exchange  at  that 
time,  we  have  a  specific  statement  that  a  kid  is  the  purchasing 
medium  of  a  harlot's  favor.32  The  stories  of  Joseph  reflect  de- 
veloped trade  in  which  silver  is  the  circulating  medium. 

The  C  code  takes  the  trade  in  men  as  a  matter  of  course ; 33  so 
also  trade  in  animals.34  It  is  somewhat  peculiar  that  so  far  as 
the  selling  and  buying  of  things  is  concerned  the  C  code  has  no 
regulations. 

By  the  time  of  the  prophets,  however,  the  practices  of  the 
trader  are  noticed.  Hosea  speaks  of  the  "merchant"  and  in- 
veighs against  him  for  "using  balances  of  deceit"  35  and  for  pro- 
curing ' '  riches ' '  and  ' '  substance. ' ' 36  False  weights  and  meas- 
ures, violence  and  robbery,  are  the  characteristics  of  the  profit- 
making  trader  of  the  latter  part  of  the  early  period.37  Primitive 
buying  and  selling  had  developed  into  a  definite  system,  appar- 
ently unregulated  and  held  in  the  utter  contempt  in  which  trade 
and  all  its  ways  were  held  by  the  ancients.  The  Hebrew's  la- 
tent commercial  capacity  wTas  asserting  itself,  but  it  received  very 
meagre  appreciation  in  our  period. 

We  find  an  instrument  of  sale  described  first  in  Jeremiah.  At 
the  close  of  the  previous  chapter  this  was  noticed.  It  reveals  a 
development  in  the  methods  of  commercial  transactions  which  is 
in  strong  contrast  with  the  simple  practices  set  forth  in  the  early 
documents. 

It  may  seem  somewhat  startling  to  many  that  the  notion  of 
spoil  has  one  of  the  richest  terminologies  in  the  entire  Hebrew 
Scriptures.     Young,  in  his  concordance,  distinguishes  not  less 

30  Gen.  25:29-34.  This  is  the  first  occurrence,  in  our  sources,  of  the  word  makar, 
which  means  "to  sell." 

31  See  Encyclopedia  Biblica,  s.   v.   "Kesitah"  for  the  best  explanation. 

32  Gen.  38:17,  20,   23. 

33  Ex.  21:2,  7,  8,  16. 

34  Ex.  21:34-36;  22:1,  4,  7. 

35  Hos.  12:7. 

36  Hos.  12:8. 

37  Am.  8:4-6;  Mic.  6:10-12. 


60  UNIVERSITY  OF  IOWA 

than  forty-three  of  these  designations  by  which  variations  of  this 
one  idea  of  spoil  are  expressed.  If  language  is  ' '  fossil  history, ' ' 
as  Trench  maintains,38  no  argument  is  needed  to  convince  us  that 
this  mode  of  acquisition  of  property  is  a  most  important  method 
of  gaining  possession  of  property.  It  does  not  surprise  us,  there- 
fore, to  find  that ' '  might  versus  right ' '  is  the  principle  practiced 
in  the  early  part  of  this  period  with  reference  to  both  Hebrew 
and  foreigner,  and  with  respect  to  the  latter  throughout  the  en- 
tire preexilic  history.  From  what  was  said  in  regard  to  captives, 
this  is  indeed  a  necessary  consequence.  Evidence  is  not  far  to 
seek.  In  the  two  oldest  codes  these  sentiments  are  the  funda- 
mental and  prevailing  elements.39  Nor  are  instances,  even  from 
the  apparently  idyllic  pastoral  period  lacking  in  this  respect, 
Abraham's  expulsion  of  his  first-born  son  was  at  bottom  justified 
by  this  principle.  So  also  Jacob 's  deception  of  his  old  father  40 
and  his  profitable  breeding  experiment 41  are  mentioned  with  tacit 
approval. 

The  ideal  character  of  Isaac  himself  as  described  by  the  J 
writer  portrays  the  elements  of  this  importance  of  power  as  well 
as  the  instances  cited  above.42  While  the  sons  of  Jacob  are  con- 
demned because  of  exercising  the  right  of  spoil  against  the  She- 
chemites,  it  is  not  because  they  did  not  have  the  right  to  do  what 
they  did,  but  because  Jacob  feared  that  he  might  not  be  strong 
enough  to  continue  this  policy.43  This  is  the  reason  why  their 
"wrath"  and  "anger"  are  cursed,  while  Jacob  himself  prides 
himself  upon  possessing  spoil  taken  "out  of  the  hand  of  the 
Amorites  with  his  sword  and  with  his  bow. ' ' 44  But  one  of  the 
clearest  illustrations  of  this  concept  is  the  divine  command  to 
"spoil  the  Egyptians,"  since  this  points  to  a  conception  more 
closely  allied  with  stealing  than  with  the  brute  force  exercised  in 
war.45 

The  subsequent  period  of  the  conquest,  presents  this  right  of 
spoil  in  such  glaring  light  that  little  need  be  said  about  it.  The 
thirtieth  chapter  of  the  first  book  of  Samuel  describes  the  di- 

38  Trench  on  words,  p.  23. 

39  Gen.   49.      Jud?.   5. 

40  Gen.  27:6  ff. 

41  Gen.  30:37  ff. 

42  Gen.  26:16,  20,  21,  29. 

43  Gen.  34:26,  30-31. 

44  Gen.  48:22. 

45  Ex.  3:22. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   61 

vine  sanction  of  this  practice  in  words  that  leave  no  doubt  as  to 
the  recognized  justice  of  the  principle.  Especially  the  twenty- 
sixth  verse  is  instructive  as  portraying  the  perfect  legitimacy 
and  acceptability  of  this  sort  of  property  as  gifts  to  the  elders  of 
Israel.  No  doubt  we  have  here  a  heightened  development  of  the 
original  right  of  spoil  intensified  by  the  exterminating  ware.  A 
slight  modification  of  this  warlike  concept  is  witnessed  in  the 
ideals  of  the  early  prophets,40  but  how  deep  this  goes  may  be  in- 
ferred from  a  prophetic  passage  in  which  the  joy  of  the  dawn  of 
millenial  Israel  is  described  in  terms  of  the  joy  men  feel  "when 
they  divide  the  spoil. ' ' 47 

Along  with  this  view  of  spoil  arises  the  notion  of  theft.  Theft 
is  but  a  subdivision  of  spoil,  and  this  spoil  was  at  first  as  legiti- 
mate between  the  tribes  when  they  fought  one  another  as  when 
they  fought  their  common  enemies.48  In  this  respect  we  are  able 
to  trace  a  development  even  in  the  principle  of  the  right  to  spoil. 
The  tracing  of  the  notion  of  theft  will  lead  us  up  to  it. 

The  first  theft  is  mentioned  in  connection  with  Jacob's  de- 
parture from  Laban.49  Apparently  only  the  thing  taken  from  a 
kinsman  is  counted  as  theft.  Furthermore,  it  seems  that  it  is 
only  the  subordinate  or  the  weaker  that  is  held  accountable. 
Laban  could  take  his  daughters  from  Jacob  by  force,50  but  the 
taking  of  the  teraphim  from  Laban  was  a  theft  which,  had  it 
been  discovered,  would  have  brought  about  the  punishment  of 
death.51  The  same  penalty  is  indicated  elsewhere.52  Still  these 
cases  are  mere  conjectures.  The  definite  illustration,  which 
brings  out  this  concept  in  bold  relief,  is  Achan's  theft,53  This 
was  indeed  a  theft  of  the  devoted  thing,  but  it  shows  a  definite 
concept,  and  a  working  principle  operating  among  the  people.54 

The  ideas  of  spoil,  robbery,  and  theft,  must  at  first  have  been 
identical,  since  spoil  includes  all  of  these  acts.     Spoil  was  pri- 

46  Mic.  4:4.      Is.  2:4. 

47  Is.  9:3.  2-7. 

48Judg.   12:4-6:   20:37,  44-49;    1   Sam.  25:13,    18-34;  2   Sam.   12:8;    16:21-23. 

49  Gen.  30:33;   31:19,  32,  39. 

50  Gen.  31:31. 

51  Gen.  31:32.  This  instance  probably  shows  that  the  concept  of  theft  sometimes 
arose  out  of  its  religious  connections. 

52  Gen.  44:9. 

53  Josh.  7:16  ff. 

54  This  is  in  all  likelihood  the  origin  of  the  established  regulation  of  the  practice. 
If  so,  it  would  follow  the  development  of  the  property-notion  itself,  which  begins  with 
the  idea  of  divine  ownership. 


62  UNIVERSITY  OF  IOWA 

mary.  Theft  came  next  as  a  differentiation,  chiefly  because  it 
violated  sacred  rights  of  the  divinity  and  then  of  the  kindred 
group.55  This  is  discernible  in  the  cause  of  Achan,  who  was 
punished  so  severely  because  he  had  "troubled"  the  tribes.56 
How  slowly  the  differentiation  worked  out  we  may  learn  from 
the  story  of  the  Danite  settlement.57  Here  the  act  of  theft  is  re- 
garded as  legitimate  spoil.58  Even  the  eleven  hundred  shekels 
stolen  by  Micah  from  his  mother  are  theft  only  as  being 
' '  taken, ' ' 59  and  no  punishment  is  imposed. 

The  C  code  furnishes  us  with  further  details  of  this  develop- 
ment. Spoil  is  not  mentioned,  for  by  this  time  it  was  clearly 
differentiated  from  theft,  and  this  was  done  chiefly  because  theft 
was  practiced  on  kinsmen,  while  spoil  was  limited  more  and  more 
to  declared  enemies.60  ' '  Thou  shalt  not  steal, ' '  is  the  command.01 
As  was  noted  under  "Damages,"  the  punishment  meted  out  for 
this  offense  varied  from  the  penalty  of  death,  if  the  thief  broke 
into  the  house  and  was  killed  in  the  dark  62  to  the  selling  into 
slavery,  if  he  was  too  poor  to  make  restitution :  from  restitution 
five-fold  to  the  compensation  of  the  actual  value. 

We  have  now  only  one  more  step  to  trace.  This  is  the  protest 
against  the  practice  of  spoil  where  formerly  only  theft  existed, 
that  is,  between  kinsmen.  The  consciousness  of  kind  has  grown 
until  the  financial  oppression  of  the  upper  class  is  viewed  as  true 
spoil  and  denounced  as  such.  It  is,  however,  only  the  "spoiling" 
of  the  Hebrew  that  the  prophets  condemn,  not  the  practice  in 
general.  The  later  codes  show  the  effects  of  this  prophetic  agita- 
tion by  extended  legal  limitation  on  the  practice  of  spoiling  a 
kinsman.63 

The  lack  of  material  in  our  sources  with  regard  to  wages  is 
strange.  No  regulation  exists  in  the  C  code.  It  is  not  even  men- 
tioned there,  hence  we  must  be  cautious  how  we  interpret  the 
scattered  references  to  wages  that  purport  to  be  prior  to  this 

55  No  word  is  translated  as  "robbery"  in  either  the  J  or  E  or  D  documents;  it  is 
to  be  found  only  twice  in  P  throughout  the  entire  Hexateuch  of  the  English  author- 
ized version. 

56  Josh.    7:25. 

57Judg.   17:1-13;   18:1  ff. 
58Judg.   18:18-25. 
59Judg.   17:2. 

60  Mic.  2:8. 

61  Ex.  20:15. 

62  Ex.   22:2-3. 

63  Dt.  23:19. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   63 

code.  It  is  hardly  possible  that  a  wage-earning  class  could  have 
existed  and  yet  not  a  word  of  regulation  be  found  concerning 
such  a  class.  This  is  emphasized  by  the  fact  that  the  prominent 
place  of  legislation  in  the  C  code  is  actually  given  to  the  regula- 
tion of  the  rights  in  human  property.  A  communistic  system 
of  land-holding  must  have  been  in  vogue  that  divided  the  popula- 
tion into  two  classes,  freemen  and  slaves.  When  the  sturdy  yeo- 
man disappeared  before  the  advancing  wave  of  military,  royal, 
and  economic  oppression,  the  freeholders  were  partly  reduced  to 
servitude  and  partly  became  wage-earners.  The  few  existing 
references  to  wages  we  find  in  the  haggling  between  Jacob  and 
Laban  64  and  between  Micah  and  the  Levite,05  and  the  stipula- 
tion of  hire  for  the  servants  of  King  Hiram.66 

In  the  prophetic  writings  we  find  references  to  the  hireling.67 
The  most  explicit  utterance  comes  from  Jeremiah  who  exclaims: 
"Woe  unto  him  ....  that  useth  his  neighbor's  service 
without  wages,  and  giveth  him  not  for  his  work. ' ' 68  This  does 
not  make  it  clear,  however,  that  these  neighbors  were  a  wage- 
earning  class,  although  such  is  the  most  probable  explanation. 

The  Deuteronomic  legislation  shows  the  development  of  this 
practice  and  regulates  it.  "Thou  shalt  not  oppress  the  hired 
servant,  that  is  poor  and  needy,  wrhether  he  be  of  thy  brethren, 
or  of  thy  strangers  that  are  in  thy  land  within  thy  gates ;  in  his 
day  shalt  thou  give  hirn  his  hire  neither  shall  the  sun  go  down 
upon  it ;  lest  he  cry  against  thee  unto  Jehovah,  and  it  be  a  sin 
unto  thee."69 

In  the  entire  category  of  the  Hebrews'  concepts  of  property 
there  is  no  more  interesting  development  than  the  change  in  their 
views  of  wealth.  This  change  involves  a  shifting  from  a  pos- 
itive to  a  negative  standpoint.  Wealth  in  the  sense  of  capital 
was  an  unknown  concept  in  the  earliest  stages,  when  trade  was 
at  a  minimum.  Property  in  the  form  of  natural  goods  goes  far 
back  of  this  period  and  may  be  eternal.  Capital  in  the  modern 
sense  of  the  word  does  not  exist :  it  is  inconceivable  in  a  strict 
patriarchate,  in  which  the  master  is  the  self-sufficient  entity  so 

64  Gen.  30:28:  29:15;  31:7,  8,  41. 

65  .Tuds:.  17:10. 

66  1  Ki.  5:6. 

67  Ts.    16:14;    01:16. 
68Jer.  22:13. 

69  Dt.   24:14-15. 


64  UNIVERSITY  OF  IOWA 

far  as  ownership  is  concerned.70  Differentiated  ownership  is  ab- 
solutely necessary  to  profit-making  capital. 

The  patriarchs  are  viewed  as  possessors  of  only  natural  goods. 
But  the  modern  definition  of  property  as  the  ' '  extension  of  per- 
sonality" is  traceable  in  the  very  terminology  of  the  concept. 
"Abraham  was  very  rich,"  literally  kabed,  that  is,  "heavy." 
In  the  stories  about  him  wealth  is  the  expression  of  personal 
worth  and  divine  favor.71  This  positive  attitude  does  not  stop 
with  merely  natural  goods.  It  is  an  exceedingly  interesting  de- 
scription of  capital  goods  that  the  J  writer  gives  us  in  the  stories 
of  Joseph.72  Here  also  the  attitude  is  the  same.73  Joseph's  plan 
is  the  expression  of  divine  wisdom.  The  account  of  the  spoiling 
of  the  Egyptians,  as  we  noticed,  describes  the  success  of  the 
people  in  this  respect  as  a  distinctive  mark  of  divine  favor.74 

If  we  follow  this  early  concept,  in  its  negative  aspect,  an  in- 
structive fact  meets  us,  namely,  the  idea  of  poverty,  considered 
in  the  strict  sense  of  the  term  as  a  lack  of  property.  This  idea 
nowhere  finds  expression  in  the  early  documents.  The  concept 
of  poverty  in  its  earliest  form  is  rather  that  of  one  ill-treated  and 
generally  miserable,75  a  victim  of  social  distress  rather  than  of 
economic  deficiency. 

In  the  C  code  we  have  practically  the  beginning  of  the  purely 
economic  concept  of  poverty.  The  three  original  words  used  to 
designate  the  ' '  poor, ' ' 76  occur  for  the  first  time,  so  far  as  our 
sources  are  concerned,  in  this  code  with  one  single  exception.77 
The  importance  of  this  remarkable  fact  can  scarcely  be  overesti- 
mated. It  proves  beyond  the  shadow  of  a  doubt  that  economic 
conditions  had  long  been  in  operation,  until  not  only  an  actual 
economic  differentiation  had  taken  place  in  society,  but  also  that 
the  distinction  between  social  distress  and  economic  deficiency 
had  begun  to  crystallize  in  the  consciousness  of  the  people.718  In 
other  words,  the  C  code  represents  to  us  the  inception  of  the  no- 

70  See   Lafargue,  Evolution  of  property,  p.   1  ff. 

71  Cp.  Chap.   1. 

72  Gen.  47:13-26. 

73  Gen.  41:38-39. 

74  Ex.  11:2-3. 

75  Gen.  16:6;  31:50:  Judg.  19:24-25. 

76  These  words  are,   ani,  dal,  ebyon. 

77  Dal  occurs  once  before,  Gen.  41:19,  but  the  other  terms  are  introduced  after- 
wards. 

78  Ex.  23:11. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   65 

tion  of  wealth  as  capital  goods.7''  Bui  it  is  only  a  beginning;  the 
old  notion  of  poverty  as  a  general  disability  is  still  predom- 
inant.80 

The  general  attitude  towards  wealth  reflected  in  this  code  is 
rather  difficult,  to  determine.  The  impression  is  of  restrictions 
only  in  case  of  the  more  flagrant  abuses,  while  the  theory  is  a 
sort  of  laissez  faire,  for  which,  however,  the  obscurity  of  the  con- 
cept may  be  largely  responsible.  On  the  whole,  the  attitude  is 
favorable  to  wealth,  as  was  noticed  in  the  regulation  for  restitu- 
tion and  theft,81  and  in  the  definition  of  slave.82 

With  the  rise  of  the  monarchy,  militarism,  and  a  landed  ar- 
istocracy the  attitude  toward  wealth  changes.  Traces  of  this  are 
found  in  the  case  of  Nabal,83  and  in  the  parable  of  the  prophet 
Nathan.84  Here  the  concept  of  poverty  is  clear  and  concise,  and 
the  attitude  toward  the  rich  less  favorable.  To  what  extent  the 
antagonism  against  oppressive  wealth  has  grown  is  indicated  by 
the  king's  condemnation  of  his  own  act,  though,  of  course,  un- 
known to  himself.85 

The  attitude  of  the  preexilic  prophets,  however,  comes  to  us 
almost  as  a  shock.  Wealth  is  practically  synonymous  with  op- 
pression. "The  rich  men  are  full  of  violence,"  and  "treasures 
of  wickedness"  constitute  their  possessions,  which  were  accumu- 
lated by  "wicked  balances  and  Avith  the  bag  of  deceitful 
weights. ' '  S6  On  nearly  every  page  of  the  prophetical  writings, 
we  find  evidence  that  in  the  mad  scramble  for  wealth  humanity 
is  trampled  under  foot  and  violence  runs  wild.87  The  most 
striking  feature  in  this  concept  is  the  implacable  hostility  to- 
wards the  representatives  of  wealth,  apparently  without  excep- 
tion, implied  throughout  these  writings.  And  the  vehemence  by 
which  these  sentiments  are  expressed  is  such  as  to  make  many  a 
radical  socialist  of  the  present  day  seem  rather  moderate. 

This  negative  attitude  towards  wealth  is  the  most  remarkable 

79  Ex.  22:25. 

80  Ex.  23:3,  6,  7. 

81  Ex.  21:22  ff. ;  22:1  ff. 

82  Ex.  21:21. 

83  1  Sam.  25:2  ff. 

84  2  Sam.  12:1-6. 

85  2  Sam.  12:5-6. 
86Mic.  6:10-12. 

87  Am.   8:4-6:    2:6-8;    3:10:    5:11-12;    6:4-6;    Mic.    2:2,    8-9:    3:3.    10-11;    7:2-3; 
Is.  1:15-17;  2:7;   3:14-15:  5:8-12;  Jer.  2:34;   7:6;  17:11;  Hos.   5:10;  12:7-8. 


66  UNIVERSITY  OF  IOWA 

as  well  as  the  most  important  fact  in  the  concepts  of  property 
among  the  early  Hebrews,  especially  because  it  reached  its  cli- 
max at  the  close  of  this  early  period  which  we  are  studying. 
What  an  enormous  development  is  manifested  in  this  complete 
change  of  front  from  the  attitude  of  the  J  author,  to  whom  the 
possession  of  wealth  is  a  distinguishing  feature  of  divine  favor 
and  personal  righteousness,  to  the  diametrically  opposite  view  of 
the  preexilic  prophets,  to  whom  the  possession  of  wealth  is  a 
synonym  for  all  that  is  evil  and  vile,  the  essence  of  wickedness. 
The  latter  view  is  the  significant  characteristic  of  the  writings 
of  the  Hebrew  prophets  and  makes  them  unique  in  the  annals  of 
antiquity.88  It  may  be  partly  explained  on  the  ground  that  the 
early  prophets  were  economic  conservatives,  champions  of  the 
older  and  simpler  economic  and  social  life  as  against  the  radical 
changes  in  social  position  and  economic  conditions  consequent 
upon  the  peace  and  prosperity  of  the  period. 

The  immediate  result  of  this  development  can  be  traced  in  the 
Deuteronomic  legislation  and  the  final  outcome  in  the  closing 
chapters  of  Hebrew  national  history.  But  the  ultimate  results 
are  to  be  seen  in  the  characteristics  which  have  made  the  Hebrew 
what  he  became  after  his  nation  ceased  to  exist,  what  some  have 
considered  him  ever  since,  a  ' '  money-grabber. ' '  The  voice  of  the 
eighth  century  prophets  made  him  the  ethical  and  religious  voice 
of  God  to  many  peoples,  even  more  than  a  money-lender  and 
financier. 


88  The   intimate  bearing  of  this  development  upon  present-day  problems  is  seen  in 
the  intense  modern  agitation  against  capitalistic  oppression. 


CHAPTER  VII 

THE  RELATION  OF  THE  CONCEPTS  OF  PROPERTY  TO 

SOCIAL  LIFE 

1.  The  distinction  between  the  function  of  ownership  and  the 

idea  of  property 

This  distinction  must  be  kept  in  mind  continually  if  "a  crit- 
ical understanding  of  the  idea  of  property"  is  to  be  gained. 
There  is  not  a  vestige  of  a  doubt  that  Morgan  was  right  in  think- 
ing that  when  the  searchlight  of  science  had  uncovered  this 
fundamental  concept  of  property,  ' '  the  most  remarkable  portion 
of  the  mental  history  of  mankind ' '  would  be  revealed. 

The  fashion  of  investigators  in  this  field  has  been  to  seek  the 
origin  of  the  institution  of  property  in  the  society  of  animals. 
No  distinction  whatever  is  made  between  the  unconscious  fact 
and  the  conscious  function.  As  an  apt  illustration  of  this  con- 
fusion the  views  of  Letourneau,  a  brilliant  writer  on  this  subject, 
may  be  cited.1  To  this  writer  a  society  of  ants  represents  not 
only  the  specialized  activities  of  civilized  man,  such  as  agricul- 
ture, architecture,  cattle-keeping,  and  slavery,  but  it  even  sur- 
passes human  society  so  far  that  "ants,  whilst  behaving  like  men 
have  never  allowed  themselves  the  abuses  of  force  to  which  men 
are  accustomed."2  To  such  extremes  has  this  argument  been 
carried  that  one  critic  calls  attention  to  the  fact  that  these  writers 
speak  of  an  institution  of  property  before  any  society  existed.3 
The  difficulty  arises  from  the  confusion  of  the  economic  function 
and  the  mental  concept,  the  practical  and  conceptual  elements 
in  the  institution  of  property,  and  serves  as  a  striking  example 
of  what  James  calls  "the  psychologist's  fallacy"  4  as  operating 

1  Letourneau,  Property,  its  origin  and  development. 

2  Ibid.,  pp.  12-13,   89.      Cp.    also  Romanes,  Animal  intelligence,  pp.  31-142. 

3  "Sa  methode  comparative  a  pour  objet  de  donner  au  concept  de  propriety  un 
extension  si  vaste  qu'on  puisse  deja  parler  de  propriete  quand  il  n'y  pas  de  societe." 
L'AnnS  Sociologique,  Vol.  10,  p.  446;  a  review  of  R.  Petrucci's  Les  origines  naturelle 
de   la   proprie'tS. 

4  Psychology,  Vol.  1,  pp.   196-198.     Note  two  variations  of  this  fallacy  pointed  out. 


68  ,  UNIVERSITY  OF  IOWA 

in  the  field  of  sociology,  namely,  the  confusion  of  the  student  and 
of  the  fact  under  investigation  and  the  assumption  of  an  equal 
degree  of  consciousness  in  the  two. 

Property  as  an  economic  fact  can  be  attributed  to  the  society 
of  animals.  So  that  we  can  talk  about  an  animal  "owning"  his 
nest  and  the  supply  of  food  he  has  gathered.  But  in  this  sense 
does  not  the  plant  "own"  the  soil  into  which  it  has  struck  its 
roots  and  from  which  it  draws  its  sustenance  ?  Again,  does  not 
the  sun  itself  "own"  the  planets  which  are  compelled  to  circle 
their  endless  orbits  in  obedience  to  the  sun's  "economic  func- 
tion" of  gravity?  Property  in  its  purely  biological  aspect  in- 
volves the  one  as  well  as  the  other  of  these  facts,  and  as  a  mere 
economic  fact  it  strikes  its  root  far  beneath  the  animal  kingdom. 
As  a  biological  function  we  must  trace  the  origin  of  property 
from  these  sources  and  take  into  account  not  only  the  society  of 
animals  but  man 's  animal  existence  in  his  struggle  for  survival. 
Biologically,  therefore,  man  "owns"  in  the  same  sense  as  the 
animal  "owns"  whatever  he  can  get  hold  of  and  is  able  to  retain 
until  its  utilities  are  exploited  to  his  satisfaction.5  Ownership 
in  this  sense  is  confined  to  the  elements  of  food-getting  and  the 
satisfaction  of  the  impulse  of  sex.  "We  are  fairly  well  assured 
that  it  was  gastric  juice  rather  than  brain-phosphor  which  gave 
the  reaction  to  the  mechanical  event  of  private  property.6  The 
sensuous  satisfaction  of  the  savage  was  his  best  guarantee  of 
ownership.  Still  not  all  the  data  in  the  world  on  the  biological 
function  of  ownership  in  this  sense  are  capable  of  explaining  the 
institution  of  property  as  we  know  it.  In  order  to  explain  this, 
another  element,  the  consciousness  of  ownership  as  an  abstract 
right,  is  absolutely  essential. 

This  element,  the  consciousness  of  ownership  as  an  abstract 
right,  is  uniformly  experienced  by  the  members  of  the  entire 
society  and  sanctioned  by  it.  Here  is  the  question  of  supreme 
importance:  Are  the  animal  and  the  savage  conscious  of  such 
psychic  reflex  as  a  notion  of  right  over  the  morsel  of  food  or  over 
the  mate  which  he  has  torn  from  a  weaker  being  or  an  enemy? 
Does  he  leave  it  in  plain  sight  depending  for  its  safety  upon  the 
acknowledged  fact  that  he  "owns"  it?     And  further  does  the 

■r>  See  Keller,  Homeric  Society,  p.   3  90. 

6  The  amoeba  shows  food-takins  reactions  "only  in  response  to  edible  substances." 
Washburn,    The  animal  mind,   p.   41. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   69 

entire  group  sanction  this  right  so  as  to  punish  violations  of  the 
same?  When  these  questions  are  answered  in  the  affirmative 
the  institution  of  property  can  be  said  to  exist,  when  they  must 
be  answered  in  the  negative  we  can  not  speak  of  that  institution. 
This  consciousness  of  a  property-right  is  nothing  else  than  the 
idea  or  concept  of  property.  When  this  is  present,  the  conditions 
above  noted  are  fulfilled.  For  when  such  a  concept  is  formed, 
customs  supporting  it  grow  up  pari  passu  with  its  development 
and  these  are  eventually  transformed  into  law.  Hence  this  con- 
cept or  consciousness  is  the  one  essential  in  the  institution  of 
property.  So  fundamental  is  this  concept  that  the  witty  Linguet 
tells  Montesquieu,  "L 'esprit  des  lois,  c'est  l'esprit  de  la  pro- 
prete. "  7  Another  scarcely  less  celebrated  writer  goes  even  fur- 
ther when  he  says:  "Where  there  is  no  property  there  is  no 
injustice. ' ' 8  We  are  reminded  of  the  words  of  a  later  student  in 
this  field,  ' '  This  then  is  the  key  to  the  history  of  property  as  an 
institution,  —  the  growth  of  knowledge. ' ' 9 

2.  The  origin  of  the  property-concept  is  social  and  rests  on  taboo. 

Clearly  enough  this  concept,  presenting  the  most  difficult  prob- 
lems with  which  the  human  mind  is  called  upon  to  grapple,  can- 
not be  attributed  to  animal,  or  to  savage  society.  All  that  we 
can  claim  to  know  about  this  phenomenon  in  such  a  realm  is  that 
of  conscious  function.  But  as  the  conscious  function  of  mating 
among  animals  never  developed  into  an  "institution  of  mar- 
riage" in  animal  society,  even  so  the  owning  function  never  de- 
veloped into  an  institution  of  property.  Individual  conscious- 
ness alone,  even  though  it  be  capable  of  conceiving  the  right  of 
owning,  is  inadequate  to  explain  this  concept.  An  individual 
might  claim  the  right,  but  what  would  insure  the  respect  for  his 
claim  as  a  right  ?  What  would  bring  about  the  universal  sanc- 
tion? 10  For  this  result  we  must  have  something  more  than  in- 
dividual consciousness,  we  must  have  a  group  of  individuals  with 
a  consciousness  of  kind  and  also  a  consciousness  of  their  like- 
mindedness  in  association.  It  is  precisely  at  this  point  where  the 
organism,  social-contract-imitation-and  suggestion-theories  of  so- 
ciety break  down  in  the  search  for  the  origin  of  the  institution  of 

7  Cited  by  Lafargue,  Evolution  of  property,  p.  58. 

8  Locke,  Essay  on  human  under  standing,  Book  4,  Ch.  3,  Sec.  18. 

9  Jenks.   History  of  politics,  p.   100. 

10  Cp.   Maine,   Ancient  law,   pp.   243   ff. 


70  UNIVERSITY  OF  IOWA 

property.  If  they  contained  all  the  truth,  individual  conscious- 
ness alone  would  suffice  to  explain  every  phase  of  the  facts,  but 
they  leave  out  the  very  important  element  which  alone  can  ac- 
count for  the  concept  of  property,  namely,  that  likemindedness 
which,  being  neither  instinctive  nor  rational  but  "formal"  or 
traditional  in  its  nature,  is  based  upon  unquestioning  acceptance 
of  customary  actions  and  ideas  without  discussion,  and  therefore 
alone  explains  the  universal  sanction  of  the  right  of  property. 
Hence  we  are  forced  to  commit  ourself  at  the  outset  to  the  theory 
of  "formal"  likemindedness,  if  we  are  to  obtain  any  light  at  all 
upon  the  origin  of  this  institution. 

Discarding  the  broad  field  of  genetic  psychology,  the  question 
of  origin  of  the  concept  of  property  is  narrowed  to  the  precise 
point  at  which  we  find  the  idea  of  property  appearing  in  the  de- 
velopment of  this  formal  likemindedness  in  human  association. 
Fortunately  sociology  has  advanced  sufficiently  to  establish  a 
certain  order  in  the  rise  and  development  of  the  ideas  involved 
in  the  different  social  institutions,  whether  these  be  religious, 
economic,  or  political.  This  generally  accepted  order  is  well 
summarized  by  Professor  Giddings  in  his  "primary,  secondary, 
and  tertiary  traditions."  X1  To  the  primary  tradition  belong  the 
initial  economic,  juridicial,  and  political  notions;  to  the  second- 
ary, the  animistic,  or  personal,  and  the  religious  ideas ;  and  to  the 
tertiary  traditions  belong  conceptual  thought,  metaphysical  phil- 
osophy, and  science.  That  these  groups  of  notions  overlap  and 
interpenetrate  each  other  need  not  be  stated,  though  the  tertiary 
traditions  are  confined  to  civilized  society. 

Quite  naturally  the  student  searching  for  the  origin  of  prop- 
erty ideas,  at  once  concludes  that  they  are  to  be  found  in  the  pri- 
mary traditions.  But  this  is  precisely  what  we  are  guarding 
against  by  the  distinction  between  the  function  and  the  concept. 
For  these  primary  traditions,  economic,  juridical,  and  political, 
embrace  the  entire  conscious  function,  irrespective  of  the  mental 
content.  Again,  the  basis  of  these  traditions  is  force,  not  right. 
And  no  amount  of  force  is  capable  of  creating  mental  structure. 
The  primary  traditions  furnish  the  soil  but  not  the  actual  germ 
of  the  concept  of  property.12 

For  this  potential  idea  we  must  turn  to  the  secondary  tradi- 

11  Elements  of  sociology,  p.   147. 

12  See    pp.   7-8,    footnotes. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   71 

tions.  The  first  notion  we  meet  there  is  the  idea  of  personality. 
This  is  the  germ  of  the  property-concept.  Giddings  defines  this 
idea  as  "the  sum  of  man's  beliefs  about  himself  and  other  beings 
as  consisting  of  body  and  soul."  13  Does  it  really  need  argument 
to  show  that  "economics"  would  be  unable  to  produce  an  institu- 
tion of  property  without  the  idea  of  personality  ?  Probably  the 
best  definition  of  property  ever  given  is  that,  "Property  is  the 
extension  of  personality."  14  But  we  must  take  a  further  step. 
In  this  group  of  secondary  traditions  we  find  the  religious  ideas. 
Indeed,  animism,  or  the  notion  of  personality,  is  in  its  rise  always 
of  a  religious  or,  if  preferred,  superstitious,  nature.  This  is  the 
vitalizing  element  in  the  notion  of  personality  that  is  ultimately 
responsible  for  the  rise  of  such  a  notion  in  human  society  as  a 
property-right. 

We  have  only  to  trace  the  different  steps  in  the  development  of 
these  religious  ideas,  so  far  as  known  to  us,  and  to  establish  the 
connection  between  these  ideas  and  the  function  of  ownership, 
and  the  theoretical  part  of  our  task  is  done.  In  this  sphere  we 
have  in  rising  genetic  order  fetich-worship,  totemism,  and  the 
taboo.  Fetichism  is  the  lowest  and  most  primitive  of  all  known 
superstitions,  apparently  utterly  irrational.  Totemism  is  the  ad- 
vanced conception  of  a  sacred  ancestry,  but  its  principle  is  found 
in  the  function  of  kinship  and  consanguinity,  and  sustains  only 
remote  relation,  if  any  at  all,  to  economic  factors.  The  taboo  on 
the  other  hand,  takes  definite  cognizance  of  personality,  both  in 
its  protective  and  prohibitive  function  and  in  its  mental  content. 
Furthermore  it  deals  explicitly  with  objects  of  economic  value. 
This  is  positively  the  first  point  in  the  development  of  the  formal 
likemindedness  where  we  can  demonstrate  the  actual  presence  of 
a  concept  which  beyond  all  question  involves  the  universal  sanc- 
tion. Since  this  is  also  precisely  the  point  at  which  the  vital 
connection  between  economic  function  and  the  mental  concept 
of  unchallenged  right  is  made,  the  working  hypothesis  is  com- 
plete :  Taboo  is  the  first  embodiment  of  the  concept  of  property 
and  the  origin  of  the  institution  of  property.  Anticipating  the 
conclusion  from  concrete  data,  the  most  powerful  and  conclusive 
proof  that  can  possibly  be  given  for  the  fundamental  truth  of 

1'3  Giddinsrs,  Elements  of  sociolorr?/,  p.   149. 

14  See  Underwood's  admirable  treatment  of  this  subject  in  his  definition  of  owner- 
ship in  Distribvtion  of  ownership,  pp.  10-15. 


72  UNIVERSITY  OF  IOWA 

this  statement  is  the  simple  fact  that  it  has  remained  such  to  the 
present  day.  The  age-long  struggle  of  society  in  the  rationaliza- 
tion and  socialization  of  the  institution  of  property  only  reveals 
the  dominance  of  the  taboo  in  the  establishment  of  the  property- 
concept  in  human  affairs. 

This  is  the  conclusion  drawn  from  the  study  of  the  develop- 
ment of  the  concepts  of  property  among  the  Hebrews.  It  is  the 
only  rational  explanation  of  the  clear  and  concise  ideas  of  the 
divine  property-right,  which  we  found  to  be  the  primary  as  well 
as  the  dominating  principle  in  the  development  of  the  concept  of 
property.  It  also  furnishes  us  with  a  key  to  the  well-known  fact 
that  the  best  proof  of  its  primitivity  that  we  possess  in  social  in- 
stitutions lies  in  the  prevalence  and  dependence  upon  ceremonial 
rites  and  theocratic  ideas.  The  student  finds  that,  in  spite  of  the 
advanced  legalism  of  the  Hammurabbic  code,  enough  survivals 
of  these  ideas  are  to  be  found  in  it  to  prove  the  religious  origin 
of  the  concept  of  property.15  But  probably  the  best  proof  of  the 
universality  of  this  origin  of  the  concept  of  property  is  the  con- 
clusion of  a  student  of  this  same  idea  among  the  Romans.  Fustel 
de  Coulanges  in  his  Ancient  city  thus  sums  up  the  evidences  of 
the  origin  of  the  property  concept  among  the  makers  of  the  mer- 
ciless "Twelve  tables":  "In  the  greater  number  of  primitive 
societies  the  right  of  property  was  established  by  religion ; " 16 
and  again:  "Religion  and  not  laws  first  guaranteed  the  right  of 
property. ' ' 17 

There  are  certain  supplementary  considerations  supporting 
the  taboo  origin  of  property.  If  the  origin  of  the  institution  of 
property  is  to  be  found  in  taboo,  What  of  the  apparently  opposite 
theories  that  this  institution  had  its  rise  in  the  social  practices  of 
seizure  by  force,  habitual  use,  or  production  ?  The  answer  is  that 
these  theories  instead  of  contradicting  the  taboo  origin,  simply 
pave  the  way  for  it  and  lead  up  to  it  as  its  inevitable  consequence, 
because  these  theories  have  explored  the  rise  of  the  primary  tra- 
ditions, or  the  origin  of  the  economic  function  only.  Seizure  by 
force  is  undoubtedly  the  primary  mode  of  acquiring  property. 
But  this  does  not  involve  any  right.     Its  basis  is  power  versus 

15  See  Code  of  Hammurabi,  Paragraphs  131,  132,  pertaining  to  the  sacred  oath 
and  the  ordeal. 

16  P.  85. 

17  P.  86. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   73 

right,  for  these  two  elements  arc  mutually  exclusive.  It  is  the 
rise  and  the  recognition  on  the  part  of  the  community  of  a  right 
opposed  and  superior  to  power  which  constitutes  the  property- 
concept.  The  phrase  ' '  right  of  the  stronger"  is  a  contradiction  of 
terms.  The  property-right  is  the  mental  force  which  established 
the  "owner"  versus  the  "stronger." 

In  like  manner  habitual  use  alone  shows  us  another  phase  of 
the  original  function  of  ownership  which  does  not  need  to  be 
even  a  conscious  function,  much  less  involve  any  mental  content. 
That  the  production  of  a  thing  should  involve  the  concept  of 
ownership  can  not  be  seriously  entertained,  since  we  are  aware 
of  a  general  rule  of  early  society  that  "those  who  work  cannot 
own  and  those  who  own  cannot  work."18  The  property-right 
based  upon  production  is  the  great  ideal  of  the  property  concept ; 
its  terminus  ad  quern  but  not  its  terminus  a  quo. 

These  different  theories  contain  more  or  less  truth,  however, 
in  so  far  as  they  answer  the  question  "how,"  that  is,  setting 
forth  the  method  of  the  incipient  practice  of  the  function  of  own- 
ership. The  point  in  which  they  fall  short  is  that  they  do  not 
tell  us  the  "what"  of  the  concept  of  property.  To  answer  this 
question  we  must  have  animism  and  the  notion  of  personality. 
And  this  personality  must  be  acknowledged  by  the  entire  com- 
munity with  a  sacred  significance.  Then,  when  these  practices 
become  pervaded  by  the  superstitious  sanction  we  have  the  insti- 
tution complete  but  not  before.  To  use  a  figure,  these  practices 
are  the  material  form  requiring  the  breath  of  the  notion  of  per- 
sonality to  make  them  living  institutions.  This  is  precisely  what 
we  have  in  the  taboo. 

In  the  writings  of  the  majority  of  recent  students  of  this  phase 
of  sociological  inquiry  we  meet  a  somewhat  instinctive  perception 
of  the  intimate  relation  between  the  taboo  and  the  notion  of  prop- 
erty. The  differences  of  opinion  appear  very  wide,  ranging  from 
the  view  that  the  taboo  itself  is  the  result  of  the  institution  of 
property  19  to  the  view  that  the  notion  of  property  is  of  a  very 
recent  origin,  far  removed  and  even  opposed  to  the  original  re- 
ligious ideas.20     The  point  of  value  in  this  divergence  of  opinion 

isVeblen,  The  beginnings  of  ownership,  American  Journal  of  Sociology,  Vol.  4, 
p.   360. 

19  Laf argue,  Evolution  of  property,  pp.   17  ff. 

20  Smith,  Religion  of  the  Semites,  pp.   140  ff. 


74  UNIVERSITY  OF  IOWA 

is  the  substantial  agreement  upon  two  facts:  first,  the  funda- 
mental importance  of  the  taboo  and  of  the  institution  of  prop- 
erty; and  second,  the  intimate  and  vital  union  of  the  two.  In 
these  two  essentials  the  most  conflicting  extremes  touch  each  other 
and  fuse  into  one.  Failure  to  distinguish  between  function  and 
concept  is  responsible  for  the  divergence. 

The  demand  at  this  point  of  our  inquiry  naturally  would  be  to 
trace  the  rise  of  the  mental  content  of  the  property-concept  to 
its  origin  in  the  same  way  as  we  have  indicated  the  rise  of  the 
function  of  ownership.  But  this  would  take  us  into  the  heart  of 
the  problem  of  the  origin  of  religious  ideas,21  which  is  obviously 
altogether  too  far  afield.  Therefore  wTe  are  forced  to  take  the 
taboo  as  the  fundamental  historical  fact  for  our  purposes.  Two 
elements  are  distinguished  in  this  concept,  the  notion  of  a  magical 
"charge"  inherent  in  things  themselves,22  and  then  the  notion  of 
a  deity  whose  will  is  to  be  obeyed.23  The  former  element  plainly 
shows  a  relation  to  fetich-worship,  while  the  latter  sustains  more 
of  a  relation  to  the  totemistic  notions.  Instead  of  viewing  these 
two  elements  as  different  varieties  of  the  taboo,  we  will  not  go  far 
wrong  if  we  take  them  to  be  logical  steps  in  the  development  of 
the  system  of  taboo.  The  view  here  entertained  is  that  the  taboo 
is  the  outcome  of  man's  innate  capacity  for  superstition,  the 
"awe  of  the  unknown,"  for  the  expression  of  which  environ- 
mental phenomena  can  show  a  series  of  rising  gradations,  but  for 
the  content  of  which  we  must  posit  man's  psychic  activity.24 

21  Compare  with  the  familiar  theories  of  Spencer,  Miiller,  Tiele,  Smith,  and  others, 
the  view  held  hy  King,  who  traces  the  origin  of  the  "religious  attitude"  to  a  "con- 
sciousness of  value,"  bearing  directly  upon  the  property-concept.  Development  of 
religion,   pp.    44   ff. 

22  "At  an  early  period  the  notion  [of  taboo  1  has  a  magical  content:  the  tabooed 
individual  or  object  is  possessed  of  a  certain  magical  awfulness  or  sanctity,  is  per- 
vaded with  a  dangerous  contaminating  influence,  is  charged  with  a  deadly  electricity 
which  may  be  automatically  set  free  by  physical  contact."  Webster,  "The  influence 
of  superstition  on  the  evolution  of  the  property-right."  American  Journal  of  Soci- 
ology, Vol.  15,  p.  795. 

23  "In  somewhat  advanced  states  of  culture  the  penalty  for  breaking  the  taboo  is 
commonly  regarded  as  the  vengeance  of  an  outraged  deity,  who  visits  with  sickness, 
disease   or  death  the  guilty  individual."      Ibid.,   p.    795. 

24  "Like  all  questions  of  the  derivation  of  institutions  it  is  essentially  a  question 
of  folk-psychology,  not  of  mechanical  fact."  American  Journal  of  Sociology,  Vol.  4, 
pp.  354-'5.  "When  these  f mental  forces!  are  once  developed,  they  lead  an  indepen- 
dent existence  and  constitute  a  superorganic  or  psychical  factor  as  distinguished  from 
the  purely  physical  or  the  biological  factors."  "The  Economic  Interpretation  of  His- 
tory," I.  A.  Loos,  American  Economics  Association,  Series  3,  Vol.  3,  p.  387.  "There 
is  no  property  until  foresight,  begins,"  Underwood,  Distribution  of  property,  p.  23. 
Cp.  James,  Psychology,  Vol.   1,  pp.   8-9,  the  relation  between  prevision  and  mentality. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   75 

The  taboo,  as  it  is  here  used,  is  the  developed  system  in  which 
both  the  magical  and  the  deistic  ideas  are  present, 

3.  Application  or  applicability  of  the  taboo  theory  of  the  origin 
of  property  to  the  social  conditions  of  the  life  of  the  Hebrews 

The  theory  of  the  taboo  origin  of  property  is  implied  in  the 
Hebrew  property-concept.  It  is  a  direct  result  of  the  religious 
phase  of  the  social  life.  Its  immediate  basis  is  the  consciousness 
of  kind.  Yahweh  reveals  himself  in  the  very  earliest  of  the  doc- 
uments, that  of  "the  little  Book  of  the  Covenant"  as  an  owner, 
speaking  in  definite  terms  of  proprietary  right,  "the  first- 
born ....  are  mine."  This  assertion  could  not  by  any 
means  be  an  economic  or  natural  right  since  the  subject  is  the 
idea  existing  in  the  likeminded  consciousness  of  his  worship- 
pers.25 This  fact  therefore  proves  to  us  the  social  nature  of  the 
first  property-right.  But  additional  proofs  of  this  meet  us  in 
the  forms  which  the  expression  of  their  worship  assumed.  These 
forms  were  the  conscious  articulation  of  their  community  life  ex- 
pressed in  terms  of  supernatural  content.  In  their  worship  two 
rites  stand  out  in  striking  relief.  These  are  the  sacrifice  and  the 
ban  or  curse.  Around  these  the  social  life  of  the  people  centered. 
It  is  in  connection  with  these  customs  that  we  are  able  to  trace 
the  property-notions  of  the  people.  It  is  therefore  necessary  to 
understand  the  principle  upon  which  these  customs  depend.  The 
ultimate  principle  of  the  customs  is  readily  seen  to  be  the  notion 
of  holiness  attributed  to  the  tribal  deity.  In  this  one  word 
"holiness"  we  have  summed  up  the  chief  mental  content  around 
which  were  arranged  the  ideas  involved  in  their  system  of  re- 
ligious observances.  Now,  we  find  that  this  central  idea  of  holi- 
ness contains  exactly  the  same  elements  as  the  taboo.  Even  more 
than  this,  in  the  miles  of  this  holiness  we  see  the  actual  taboo  in 
operation.  "We  have  not  only  the  developed  element  of  a  personal 
deity,  but  we  have  in  the  early  stories  the  primary  notion  of  an 
inherent  magical  content  in  things  themselves.  Therefore  we  are 
forced  to  draw  the  conclusion  that  the  two  notions  of  holiness 
and  taboo  are  in  the  last  analysis  inseparable  or  identical.26    Can 

25  Of  the  reality  expressed  by  this  idea  we  are  not  concerned  in  this  inquiry  of  a 
psychosocial  nature. 

26  "The  rules  of  Semitic  holiness  show  clear  marks  of  their  origin  in  a  system  of 
taboo.  .  .  It  is  impossible  to  separate  the  Semitic  doctrine  of  holiness  and  un- 
cleanness  from  the  system  of  taboo."      Smith,  Religion  of  the*  Semites,  pp.  450,  452. 


76  UNIVERSITY  OF  IOWA 

a  clearer  case  of  taboo  than  the  fruit  of  the  tree  of  knowledge  of 
good  and  evil  possibly  be  cited?  And  is  there  in  all  literature  an 
illustration  of  the  breaking  of  a  taboo  conceived  to  involve  more 
far-reaching  consequences  than  this  one?  It  played,  indeed,  a 
striking  part  in  the  development  of  Hebrew  ideas,  and  upon  none 
of  these  does  it  bear  with  greater  force  than  upon  the  concept  of 
property.  For  the  ' '  fall  of  man ' '  was  a  breaking  of  the  divine 
right  of  property  expressed  by  the  taboo,  and  this  principle  re- 
mains an  abiding  constant,  working  itself  out  in  practical  life  in 
the  development  traced  in  the  concept  of  the  divine  property- 
right.  The  ceremonies  of  sacrifice,  the  curse,  and  the  blood- 
revenge,  all  depend  upon  the  divine  right  to  which  the  worship- 
per owes  acknowledgment.  For  all  of  these  were  distinctly  re- 
ligious duties  with  specific  reference  to  the  deity  and  hence 
sacred. 

To  understand  the  real  meaning  of  the  divine  property-right 
we  need  only  call  to  mind  that  in  the  search  for  the  origin  of  the 
notion  of  property  it  is  not  the  things  owned  which  give  us  the 
clue,  but  it  is  the  answer  to  the  question,  "Who  was  the  first 
owner?"  that  will  take  us  to  our  goal,  for  it  is  seen  at  a  glance 
that  the  owner  is  the  exponent  of  the  concept  of  property. 
Among  the  Hebrews  we  find  Yahweh  the  first  owner  with  an  ab- 
solute right.  The  mode  of  expression  of  this  right  was  the  taboo 
involving  the  idea  of  holiness  in  the  two  forms  we  have  noticed, 
intrinsic  magic  and  divine  will.  At  first  Yahweh 's  right  was  ex- 
ercised only  for  his  own  sake,  later  this  right  was  utilized  by  the 
prophets  in  the  favor  of  the  poor  and  needy. 

The  facts  will  be  quite  clear  when  we  remember  that  at  this 
early  period  no  nice  distinctions  were  held  between  kindred  no- 
tions, such  as  we  have  in  our  text-books  of  to-day.  We  are  forced 
to  realize  a  sort  of  nebular  chaos  in  primitive  mental  life,  in 
which  superstition  suffused  every  relation  with  the  rays  of  sanc- 
tity, giving  a  religious  significance  to  every  phase  of  experience. 
"There  was  no  separation  between  the  spheres  of  religion  and 
ordinary  life.  Every  social  act  had  a  reference  to  the  gods  as 
well  as  to  man,  for  the  social  body  was  not  made  up  of  men  only 
but  of  gods  and  men."  27  It  is  in  society  thus  composed  that  we 
find  the  idea  that  the  tribal  god  was  the  first  real  owner.     This  he 

27  Smith,  Religion  of  the  Semites,  p.  30.  See  Ibid.,  Lecture  2,  "The  nature  of  the 
religious   community   and   the  relation  of  the   gods  to  their  worshippers,"  pp.  28  ff. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   77 

was  because  of  the  universal  respect  for  his  taboo. 2H  Appeal  was 
made  to  him  by  means  of  the  oath  and  the  ordeal.  He  was  the 
great  executive,  whose  mandates  were  carried  out  by  concerted 
action.29 

Here  is  the  basis  for  the  notion  of  theft  which  is  but  the  nega- 
tive phase  of  the  property-concept.30  Such  religious  origin  ex- 
plains the  universal  sanction  of  the  right  to  own,  or  the  respect 
of  property  even  by  those  whose  self-preservation  would  urge  a 
violation  of  it.31  This  would  seem  to  be  the  ultimate  answer  to 
Sir  Henr\'  Maine's  question  as  to  the  creation  of  this  respect,32 
for  in  the  god-idea  we  have  the  most  indisputable  evidence  of  the 
consciousness  of  kind  known  to  early  society  and  as  we  now  have 
seen  the  property-concept  is  inseparably  bound  up  with  it. 

4.  The  connection  oetween  this  idea  of  a  divine  owner  with  the 

things  owned  and  the  reciprocal  influence  of  the 

one  upon  the  other. 

This  interdependence  or  reciprocal  influence  can  now  be  shown 
on  a  basis  of  our  foregoing  analysis.  If  it  be  true  that  "nothing 
could  more  clearly  have  been  property  than  articles  given  by  the 
community  to  its  favorite  leaders, "  33  we  are  forced  to  add,  ex- 
cept the  articles  given  by  the  community  to  its  deity.  From  the 
standpoint  of  logic  no  escape  can  be  found  from  this  conclusion, 
or  from  the  synthesis  of  the  facts  of  early  Hebrew  history.  The 
monumental  institution  of  the  well-nigh  universal  ceremony  of 
sacrifice  among  practically  all  primitive  peoples  proves  the  funda- 
mental nature  of  the  notion  of  divine  ownership.  We  know  the 
elaborate  system  of  this  institution  among  the  Hebrews  well 
enough  to  preclude  the  necessity  of  enlarging  upon  it.34     Every 

28  Smith,  op.  cit.,  p.  456. 

29  Cp.  the  inscription  on   the  Mesha  stone,  lines  14-18. 

30  "In  the  oldest  type  of  society  impious  acts  or  breaches  of  taboo  are  the  only 
offenses  treated  as  crimes:  e.  fir.,  there  is  no  such  crime  as  theft,  but  a  man  can  save 
his  property  by  placing  it  under  taboo,  when  it  becomes  an  act  of  impiety  to  touch 
it."      Smith,  op.  cit.,  p.  163.      See  also  footnote  same  page. 

31  Cp.   Loria,  Economic  foundations  of  society,  p.    19,   footnote. 

32  Ancient  law,  p.  243. 

33  Giddings,  Principles  of  sociology,  p.  242. 

34  With  respect  to  the  explanation  of  the  sacrificial  theory  we  are  forced  to  take 
issue  with  the  late  W.  Robertson  Smith  whose  very  refutation  of  the  gift  theory  of 
sacrifice  fairly  bristles  with  facts  which  prove  the  powerful  influence  of  ideas  of 
property  in  the  sacrificial  system.  In  point  of  fact,  he  proves  their  presence  by  the 
controlling  influence  which  he  ascribes  as  a  veritable  "swallowing  up"  of  all  earlier 
formulas  for  the  relations  of  persons  and  things  (Religion  of  the  Semites,  p.    391)    to 


78  UNIVERSITY  OF  IOWA 

sacrifice  is  a  conclusive  acknowledgment  of  the  right  which  the 
votary  voluntarily  accords  the  being  to  whom  it  is  offered.  From 
the  offering  at  the  grave  of  ancestors  to  the  spirits  of  the  dead, 
shown  in  early  animism,  to  the  elaborate  sacrificial  system  of  the 
Hebrews,  this  principle  ruled.  When  this  right  is  absent  or  un- 
acknowledged, evidently  there  will  be  no  sacrifice.35 

However,  Yahweh's  right  to  the  firstborn  and  to  the  sacrificial 
animal  is  not  the  earliest  conception  of  his  right,  for  the  first- 
born child  could  be  redeemed.  We  see  this  also  in  the  later  mod- 
ification of  this  right  by  the  eighth  century  prophets,  when  this 
idea  breaks  down.  By  the  biological  law  which  causes  the  char- 
acteristic latest  acquired  to  be  lost  first,  we  are  led  to  believe  that 
sacrifice  of  children  to  Yahweh  was  an  imposition  upon  the  pre- 
Mosaic  religion  contributed  by  the  association  with  peoples  who 
practiced  it.  The  terrible  guerilla  warfare  of  the  conquest  and 
the  period  of  the  Judges  did  not  tend  to  create  respect  for  human 
life.  The  tribes  fought  each  other  with  the  same  zeal  that  they 
fought  their  common  enemies.  Established  in  the  land  and  in 
close  contact  with  the  Canaanites,  they  gradually  learned  to  rec- 
ognize their  own  identity  as  a  people.  In  other  words,  they  de- 
veloped a  deeper  consciousness  of  kind.36  The  very  core  of  this 
was  their  common  worship.  This  consciousness  reacted  against 
every  practice  interfering  with  the  welfare  of  the  people  as  a 
whole.  Sacrifice  was  questioned  as  a  meritorious  rite.  The  de- 
struction of  Hebrew  children  was  summarily  condemned.  Animal 
sacrifice  itself  and  even  the  sacrifice  of  foodstuff  is  deprecated. 

such  an  extent  that  "the  introduction  of  the  ideas  of  property  into  the  relation  be- 
tween men  and  their  gods  seems  to  have  been  one  of  the  most  fatal  aberrations  in  the 
development  of  ancient  religion"  (p.  395).  Had  these  ideas  not  been  present  in  the 
system  of  taboo  —  this  living  nexus  of  nascent  ideas  —  they  would  not  have  been  able 
immediately  upon  their  appearance  to  "play  a  leading  part  both  in  religion  and  social 
life"  (p.  390).  For  a  full  treatment  of  Professor  Smith's  view  respecting  this  prob- 
lem, see  Lectures  4,  p.  140;  11,  p.  388;  and  "Additional  Note  B,"  p.  446,  in  the 
work  cited. 

35  Cp.  Wundt's  chapter  on  "Das  Tabu  und  der  Ursprung  der  Siihnezeremonie," 
in  his  Vdlkerpsiicholofrie,  Mythus,  und  Religion,  Zweiter  Band,  Zweiter  Teil,  pp.  300- 
364. 

36  A  picture  of  such  a  process  in  a  religious  community  is  afforded  in  Dr.  Gillin's 
sociological  interpretation  of  the  Dunkers.  Aside  from  the  absence  of  warfare  the 
principles  here  outlined  offer  many  parallels  to  what  the  development  among  the 
Hebrews  inevitably  must  have  been.  "Proximity  emphasized  unlikeness  that  distance 
hid  from  view.  But  becoming  aware  of  the  fact  that  they  were  unlike  the  other 
social  elements,  the  Dunkers  became  conscious  of  a  social  likeness  among  themselves. 
This  contact  with  others,  thus,  developed  a  consciousness  of  kind."  The  Dunkers, 
p.  108.     Note  especially  the  conclusion,  pp.  226-232. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   79 

Yahweh  is  no  longer  the  tribal  deity.  He  is  the  national  God  of 
Israel  who  has  established  his  place  above  all  the  nations.  Every 
votary  of  his  is  valuable,  sacred.  The  poor,  the  needy,  and  the 
oppressed,  these  are  also  his  people.  Whatever  militates  against 
any  class  of  Yahweh's  people  militates  against  him.  The  wealthy 
oppressors  have  revolted  from  him.  They  oppress  the  poor,  Yah- 
weh's  people.  And  worst  of  all  they  have  robbed  the  people  of 
their  common  inheritance,  Yahweh's  land.  Hence  they,  the 
wealthy  aristocracy,  are  Yahweh's  enemies,  and  the  poor  and 
needy  are  the  ' '  righteous, ' '  his  friends.  Such  are  the  results  of 
this  consciousness  of  kind  among  the  Hebrews  and  its  influence 
upon  the  concept  of  property. 

Over  against  this  decrease  of  emphasis  on  the  divine  right  to 
native  sacrifice  we  saw  the  right  to  the  captive  and  the  devoted 
increase  during  the  period  of  our  study.  This  opposite  develop- 
ment would  seem  to  show  a  deeper  origin  for  the  right  to  the  cap- 
tive and  cursed  than  the  sacrificial  system.  The  explanation  of 
this  is  not  difficult.  Sacrifice  was  the  voluntary  expression  of  the 
votary 's  recognition  of  the  right  of  the  deity ;  a  right,  moreover, 
which  we  noticed  as  greatly  modified  hy  the  time  we  have  it  re- 
corded. Then  again  this  right  to  the  sacrifice  involved  only  the 
god  and  the  worshipper.  No  question  of  the  relative  right  be- 
tween man  and  man  entered  in  this  system.  In  the  matter  of  the 
divine  right  to  the  captive,  the  devoted,  and  the  spoil  we  enter 
into  a  different  and  more  primitive  situation.  Here  we  have  the 
entrance  of  the  idea  that  man  may  share  in  the  deity 's  rights  to 
these  things.  For  let  this  be  remembered,  that  while  the  first 
owner  was  the  deity,  no  deity  ever  exercised  such  a  function. 
The  function  arose  biologically  in  the  struggle  for  existence  be- 
tween living  beings  and  nature,  and  then  between  living  beings 
themselves.  So  When  we  come  to  search  for  the  first  glimmerings 
of  the  right  to  property  between  man  and  man  we  must  find  it 
where  man  conceives  that  it  is  his  privilege  to  share  in  Yahweh's 
right  to  property. 

The  bridge  over  which  the  Hebrew  was  enabled  to  pass  from 
the  conception  that  all  things  belonged  to  Yrahweh  to  the  concep- 
tion that  he  could  share  with  his  god  certain  goods  is  to  be  found 
in  the  second  great  ceremonial  institution  among  the  Hebrews, 
the  ban  or  curse.     This  curse  in  the  name  of  the  god  is  in  reality 


80  UNIVERSITY  OF  IOWA 

the  basis  of  the  almost  universal  practice  among  primitive  peoples 
of  the  blood-revenge.  It  is  easily  seen  to  be  also  the  primary 
element  in  the  taboo,  conveying  invincible,  utter  destruction  to  its 
victim,  either  by  its  own  inherent  deathly  magic  or  at  the  bidding 
of  an  outraged  deity.  The  fate  of  Uzza  who  was  struck  dead  be- 
cause of  merely  touching  the  ark  of  God  with  the  good  intention 
of  saving  it  from  falling  is  a  case  in  point.37  The  ark  was  holy, 
that  is,  taboo.  To  break  this  meant  instant  death.  The  two 
sons  of  Aaron  struck  dead  for  an  unintentional  break  of  a  simliar 
taboo  is  another  instance.38  And  at  the  giving  of  the  law  the 
express  command  given  is  "whosoever  toucheth  the  mount  shall 
surely  be  put  to  death. ' ' 39  Other  striking  instances  are  found 
throughout  the  period,  but  these  are  sufficient  to  show  the  nature 
of  this  primary  element  in  the  taboo,  the  deadly  electricity,  as  it 
were,  of  intrinsic  magical  holiness. 

It  is  to  be  noted,  however,  that  these  cases  show  immediate  su- 
pernatural interference.  The  curse  as  observed  in  operation 
during  the  early  period  of  the  invasion  is  exercised  by  man  in 
the  name  of  Yahweh,  that  is,  by  human  instrumentality.  Two 
elements  enter  into  this.  It  is  not  only  pronounced  by  man,  but 
it  is  also  carried  out  by  man.  Here  is  precisely  the  point  where 
man  began  to  share  the  divine  right.  He  Who  could  pronounce 
the  ban  in  the  name  of  Yahweh  shared  the  divine  right  in  so  far 
as  he  could  justify  his  action  to  the  community.  Hence  we  find 
it  used  by  the  judges,  prophets,  and  kings  against  their  enemies. 
It  is  difficult  for  us  to  grasp  its  enormous  importance ;  the  right, 
however,  was  never  questioned.  No  sooner  was  it  placed  than  its 
efficacy  was  proved.  It  brought  about  concerted  action,  as  no 
other  known  custom  was  able  to  do,  even  to  the  extermination  of 
an  entire  tribe  of  Israel  at  a  most  tremendous  sacrifice.40  If 
placed  upon  an  individual  or  a  nation,  a  native,  or  a  captive,  liv- 
ing beings  or  inanimate  objects,  its  effect  was  the  same,  utter  de- 
struction in  so  far  as  it  lay  in  the  power  of  the  people  to  accom- 
plish such  a  result.  No  right  could  possibly  be  more  absolute 
than  this  one.  "We  know  of  no  other  method  by  which  a  thing 
or  a  person  could  be  more  effectively  claimed  as  the  absolute  and 

37  2  Sam.   6:6-7. 

38  Lev.  10:2. 

39  Ex.  19:12. 

40  Judg.  20:1  ff. 


PROPERTY  CONCEPTS  OF  EARLY  EEBREWS   81 

exclusive  possession  of  Yahweh  than  this  ban  or  sacred  taboo. 
In  so  far,  therefore,  as  man  could  assert  h  over  against  his  fel- 
lows, this  right  rather  than  bruit'  force,  protected  his  possessions. 
This  arose  for  the  simple  reason  that  the  universal  sanction  neces- 
sarily outweighs  individual  interest,  as  is  shown  in  the  case  of 
the  defeat  of  King  Saul  in  the  face  of  the  attack  of  the  prophet 
Samuel  in  the  name  of  Yahweh.41 

We  have  an  important  development  to  notice  in  this  In  r<  m,  or 
ban.  While  in  the  early  period  it  means  only  destruction,  in  a 
later  period  it  means  a  separation  for  actual  service  of  the  sanc- 
tuary. As  such,  this  Hebrew  word  is  also  translated  "conse- 
crate" or  "devote."4-  Thus  the  original  deadly  influence  of 
the  inherent  magical  holiness  of  things  has,  under  the  influence 
of  an  intensified  consciousness  of  kind,  passed  into  a  conception 
of  divine  right  of  control  for  the  purpose  of  active  service.  The 
right  is  as  binding  and  as  absolute  as  ever,  but  it  does  not  always 
involve  utter  destruction  but  rather  life-long  service  to  the  deity. 
This  explains  the  difficulty  in  the  case  of  Jephthah's  daughter. 
Whether  she  was  actually  sacrified  as  a  burnt-offering  43  or  not 
is  immaterial;  she  was  devoted  to  Yahweh  whether  in  death  on 
the  altar  or  in  sacred  service,  and  this  conception  made  her  taboo 
to  men.44  Thus,  this  custom  explains  the  "vows"  as  being  noth- 
ing else  than  the  modification  of  the  original  divine  right  of 
taboo. 

We  have  now  traced  the  divine  right  as  far  back  as  we  can, 
and,  in  order  to  come  to  the  purely  "economic"  phase  of  our  sub- 
ject, we  must  direct  our  attention  to  the  connection  of  taboo  with 
the  fact  of  actual  possession. 

5.  The  function  of  ownership  in  early  society  leavened  by  the 
mental  concept  of  a  divine  right  thereby  creating  the  concept 
of  personal  property  including  the  private  ownership  of  per- 
sons and  things. 

Three  theories  of  the  function  of  ownership  were  mentioned, 
seizure,  use,  and  production.  Which  of  these  is  the  primary? 
The  sacred  custom  of  the  ban  renders  the  answer.  It  was  the 
captive    taken    in    war.      The    right    of    Yahweh    to    the    cap- 

41  1  Sam.   15:23. 

42  Josh.  6:18;  Mic.  4:13. 

43  Judg.  11:31. 
44Judg.   11:39. 


82  UNIVERSITY  OF  IOWA 

tive  actually  continued  and  even  increased  during  our  period. 
It  is  upon  this  practice  of  capture  by  force  or  "adverse  posses- 
sion ' ' 45  that  the  divine  right  first  sets  its  seal.  The  wars  of 
Israel  were  all  holy  wars.  The  captives  were  the  possession  of 
Yahweh,  for  they  were  under  his  curse  or  taboo.  There  is  noth- 
ing in  our  study  which  is  more  conclusive  and  well  attested  than 
this.  It  is  the  subject-matter  of  the  entire  historical  part  of  the 
early  records.  The  total  absence  of  any  effort  upon  the  basis  of 
this  divine  right  to  soften  the  light  thrown  upon  the  atrocious 
practices  of  the  Hebrews  is  eloquent.  So  deeply  ingrained  is 
this  original  divine  right  to  the  hapless  captives  of  war  that 
their  destruction  is  the  criterion  of  faithfulness  applied  by  Yah- 
weh to  his  people ; 46  and  so  powerful  is  it  that  when  King  Saul 
fails  in  its  enforcement  the  old  prophet  himself  wields  the  weapon 
of  destruction  in  defense  of  the  divine  right.47 

Acquisition  by  capture  or  adverse  possession  therefore,  is  the 
biological  fact  and  the  economic  function,  into  which  the  mental 
content  of  a  sacred  sanction  of  a  divine  right  breathed  the  spirit 
of  life,  and  henceforth  the  more  or  less  unconscious  function  be- 
came a  living  institution  of  property.  Its  expression  was  the 
taboo.  The  early  codes  testify  to  this  condition  for  without 
their  theocratic  power  they  would  mean  less  than  nothing,  be- 
cause the  divine  Will  is  their  only  basis  and  the  divine  power 
their  only  support.  That  this  was  in  reality  only  the  expression 
of  the  consciousness  of  kind,  of  concerted  will,  volition,  and  ac- 
tion in  terms  of  religion,  we  know  but  this  knowledge  was  not 
in  the  possession  of  society  three  thousand  years  ago.48  Man 
was  the  interested  actor,  and,  though  he  speculated  as  little 
about  his  ideas  concerning  the  deity  as  he  did  about  the  fact  that 
he  had  any  ideas  at  all,  the  notions  were  there  to  stay  and  to 
leaven  further  the  economic  functions  of  man  into  rational  in- 


45  See  Blackstone,  Book  2,   Ch.  1. 

46  1  Sam.   15:19  ff. 

47  Ibid.,   15:33. 

48  This  view  does  not  invalidate  the  "law  which  may  be  regarded  as  practically 
universal,  that  the  religious  conceptions  of  a  people  are  expressed  in  forms  which  are 
modelled,  in  large  degree,  on  those  political  and  social  institutions  which  the  econom- 
ical conditions  of  their  situation  have  produced"  (Barton.  Semitic  origins,  p.  82), 
but  it  exposes  the  half-truth  of  the  mechanical  economic  interpretation  of  society  by 
emphasizing  the  essence  of  mental  content  without  which  it  is  an  absurdity  to  talk  of 
an  '"institution"  in  human  society.  According  to  biology,  animal  society  has  been  in 
the  field  of  experimenting  with  "the  economic  condition  of  their  situation"  ages  before 
man.      Where  are  their  religious   conceptions? 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   83 

stitutions.  The  divine  property-right  to  the  captive,  the  de- 
voted, and  the  spoil,  became  exercised  by  human  agency  in  com- 
munion with  the  deity,  and  so  became  the  basis  of  man's  property- 
right. 

It  remains  only  to  trace  the  influence  of  the  sacred  taboo  on 
economic  concepts  by  showing  its  relation  to  particular  notions  of 
property.  In  this  development  we  have  to  take  into  account  not 
only  the  owner  but  the  objects  owned.  The  prevalent  opinion  is 
that  personal  property,  such  as  weapons,  ornaments,  and  imple- 
ments, were  the  first  objects  of  property.  This  is  not  necessarily 
the  case.49  As  will  be  shown  later,  so  far  as  Hebrew  history  is 
concerned,  the  contrary  is  time,  that  personal  property  grew  out 
of  property  in  human  beings.  Here  the  task  is  to  show  how 
property  in  persons,  that  is,  slavery,  grew  out  of  the  taboo. 

As  we  have  seen,  the  earliest  conception  of  the  "curse"  re- 
vealed in  our  Hebrew  sources  was  that  all  the  enemy,  young 
and  old,  were  to  be  slain,  as  "devoted,"  or  sacred  to  the  deity, 
and  therefore  were  taboo  to  men.  With  the  growing  Hebrew 
consciousness  of  one-ness  with  his  tribal  God,  Yahweh,  there 
developed  as  a  result  of  the  conflict  with  their  enemies,  the 
Canaanites,  and  later  with  their  stronger  and  more  dangerous  en- 
emies, the  Syrians  and  the  Assyrians,  the  feeling  that  they  wTere 
representatives  of  Yahweh  and  could  therefore  themselves  use 
some  of  these  devoted  persons.  This  feeling  had  a  basis  in  their 
communion  with  Yahweh  in  partaking  of  part  of  the  sacrifices,  a 
Semitic  practice  which  antedated  Hebrew  history  by  a  long 
period.  This  feeling  of  sharing  the  devoted  with  Yahweh  was 
helped  along  both  by  the  practices  of  primitive  magic  and  by 
some  of  the  most  fundamental  instincts  of  man,  some  of  them 
economic  and  others  biological. 

Primitive  magic  had  led  the  victor  to  kill  the  enemy  in  order 
that  his  deity  and  ultimately  himself  as  the  representative  of  his 
god  might  obtain  the  valor  of  the  slain  enemy.  But  to  the 
primitive  consciousness  the  living  enemy  appeared  to  be  an  even 
more  valuable  trophy  than  the  dead  enemy.  In  the  predatory 
life  of  the  primitive  horde  the  captive  served  to  solve  the  food 

49  See  Veblen,  "The  beginnings  of  ownership, "  American  Jourhial  of  Sociology, 
Vol.  4,  pp.  352-365.  "It  is  difficult  to  see  how  an  institution  of  ownership  could 
have  arisen  in  the  early  dars  of  predatory  life  through  the  seizure  of  goods,  but  the 
ease  is  different  with  the  seizure  of  persons."      P.  361. 


84  UNIVERSITY  OF  IOWA 

problem.  The  male  captive,  however,  was  dangerous  and  there- 
fore seldom  spared.  It  was  different  with  the  female.  If  spared, 
at  least  temporarily  she  could  supply  another  almost  equally 
necessary  demand  in  the  captor,  the  satisfaction  of  the  sex-  im- 
pulse, and  this  without  losing  her  food-providing  capacity.  She 
catered  to  the  desire  deeply  rooted  in  human  nature  for  novelty 
in  sexual  relations.50  Moreover,  if  spared  long,  she  could  add 
future  warriors  to  the  horde.  She  was  more  submissive,  less  dan- 
gerous, eminently  useful,  and  from  all  these  considerations  a 
much  more  valuable  trophy  than  the  slain  enemy.  Hence  we 
conclude  that  the  first  object  of  property  was  woman  taken  in 
war.51 

While  in  the  earliest  period  all  were  slain  for  the  reasons  just 
noted,  it  soon  came  to  be  a  practice  to  spare  some  of  the  "spoil." 
It  is  significant  that  it  was  not  women  in  general  but  maidens 
who  had  ' '  not  known  man  by  lying  with  him ' ' 52  that  were 
spared.  Of  a  piece  with  this  is  the  fact  that  the  sacred  harlots 
attached  to  the  temples  are  never  married  women.  Here,  then, 
are  the  elements  of  the  basis  of  property  in  persons:  (1)  the 
conception  that  all  captives  are  sacred  to  the  god  of  the  con- 
querors; (2)  the  strengthening  of  the  consciousness  of  kind  be- 
tween the  deity  and  the  votary;  and  (3)  the  recognition  of  the 
opportunity  thus  afforded  to  gratify  impulse. 

But  why,  it  may  be  asked,  was  it  the  virgin  rather  than  the 
matron  in  Hebrew  history  who  was  spared?  Because  of  the  in- 
fluence of  the  taboo  adapted  to  the  sex  relations.  What  was 
sacred  to  the  deity  was  taboo  to  man.  The  mystery  of  repro- 
duction gathered  about  it  the  mysterious  awe  of  primitive  peo- 
ples, and  the  sexual  relation  had  in  it  something  of  the  divine. 
It  was  easy  for  primitive  man  to  adapt  his  conception  of  the 
divine  right  in  certain  men  and  things  to  the  sex  relations,  es- 
pecially when  male  jealousy  developed  by  the  patriarchal  family 
inclined  him  strongly  in  that  direction.  What  was  sacred  to  one 
group  of  men  was  tabooed  to  another,  and  finally  what  was  sacred 
to  one  man  was  tabooed  to  every  other,  except  upon  the  exchange 
of  a  purchase  price.  Hence  arose  private  property  not  merely 
in  woman  captives  but  in  virgins. 

50  See  Westermark,  Origin  and  developvient  of  the  mo-ral  ideas,  p.  371. 

51  The  facts  noted  in  Ch.   3  prove  this  conclusion. 

52  "But  all  of  the  woman-children,  that  have  not  known  man  by  lying  with  him, 
keep  alive  for  yourselves."      Num.  31:18. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   85 

This  right  maintained  itself  unquestioned  throughout  the 
period,  so  that  it  is  first  in  the  P  code  that  we  find  it  implied  that 
she  who  had  been  humbled  could  not  be  sold.  Yet  upon  this  prac- 
tice we  are  forced  to  notice  the  effect  of  the  taboo  before  we  can 
talk  of  woman  as  the  actual  property  of  man.  For  where  this  is 
not  present  and  where  no  marriage  rite  makes  the  captive  woman 
taboo  to  some  men  in  favor  of  others  we  have  complete  promis- 
cuity which  is  the  ' '  sheer  negation  of  marriage ' ' 53  and  of  owner- 
ship as  well. 

With  this  sacred  marriage  taboo  we  have  the  ownership  com- 
plete. For  this  taboo  was  placed  only  upon  woman  — ■  man  was, 
as  we  well  know,  absolutely  free  from  any  restriction  on  its  ac- 
count —  branding  her,  figuratively  speaking,  as  the  property  of 
one  or  more  men  to  the  exclusion  of  others.  Such  taboo  placed 
upon  the  captive  woman  marks  the  first  recognized  property- 
right  between  man  and  man.  She  was  more  than  trophy  of  the 
dead  enemy;  she  was  a  distinct  personality  by  herself,  which 
could  not  by  any  magic  be  incorporated  with  the  captor's  per- 
sonality, except  by  an  abstract  right  of  the  taboo  placed  upon 
her  which  the  community  respected. 

This  taboo  placed  upon  woman  has  its  origin  in  the  divine  right 
to  the  captives.  Its  origin  is  prehistoric,  yet  we  possess  suffi- 
ciently clear  survivals  to  prove  the  case.  Even  so  late  as  in  the 
P  code  the  conception  of  Yahweh's  right  to  the  female  captives 
is  definite  and  concise.  Out  of  thirty-two  thousand  virgin  cap- 
tives, ' '  Yahweh  's  tribute  was  thirty  and  two  persons. ' ' 54  Fur- 
ther we  have  the  sacred  prostitutes,  kedeshah,  literally,  "conse- 
crated" or  "holy."  This  consecration  or  holiness  is  only  an 
illustration  of  the  consecration  spoken  of  above  for  service  at 
the  sanctuary.55  The  word  used  to  denote  such  a  woman  is  the 
same  word  that  expresses  holiness,  but  what  was  the  exact  rela- 
tion obtaining  between  the  deity  and  such  a  woman  we  are  unable 
to  determine.  Several  instances  of  these  survivals  occur,56  but 
bevond  these  we  have  the  well-attested  conviction  of  the  direct 


53  "Where  the  marital  relation  becomes  very  loose  we  approach  promiscuity,  or  the 
sheer  negation  of  marriage,  as  between  all  who  are  not  separated  from  each  other  by 
any  taboo.  If  such  taboo  also  fail  we  get  complete  promiscuity."  Hobhouse,  Morals 
in  evolution,  Vol.  1,  p.  14. 

54  Num.  31:40. 

55  "Semitic  temples  were  thronged  with  sacred  prostitutes."  Smith,  Religion  of 
the  Semites,  p.  455. 

56  Gen.   38:21-22;   1    Sam.   2:22;   Num.  25:1-3;   Hos.  4:14. 


86  UNIVERSITY  OF  IOWA 

dependence  of  pregnancy  upon  the  divine  influence,  and  finally 
the  divine  right  to  the  first-born,  all  of  these  things  lending  tre- 
mendous weight  to  the  explicit  reference  to  the  sexual  inter- 
course between  the  ' '  sons  of  God  and  the  daughters  of  men. ' ' 57 
In  general  it  is  noteworthy  that  in  our  sources  we  have  no  con- 
demnation of  sexual  immorality  which  does  not  violate  a  sacred 
taboo.  It  need  scarcely  be  pointed  out  that  the  whole  regulation 
of  "forbidden  degrees"  of  relation  for  intermarrying  and  the 
elaborate  system  of  "cleanness  and  uncleanness"  in  the  marital 
relation  are  distinct  taboos,  deriving  their  power  from  the  di- 
vine will  and  the  dread  of  divine  punishment.  "Without  these 
they  would  be  meaningless. 

Property-right  in  woman  by  means  of  the  sacred  taboo  took 
place  early,  in  the  prehistoric  society,  for  we  know  of  no  society 
where  absolute  promiscuity  without  any  sexual  taboo  has  at  all 
existed.  But  so  long  as  the  nomadic  life  continued  there  were 
strict  limitations  even  to  this  kind  of  property.  It  required 
the  functional  soil  of  economic  production  to  give  the  impetus  to 
the  concept.  When  captive  woman  could  be  put  to  productive 
work,  the  beginnings  of  actual  slavery  sprang  up.  Then  men 
and  women  alike  became  a  valuable  asset  and  were  spared  for 
the  work  that  they  could  perform.  We  witness  this  in  the  vic- 
torious conquest  of  Palestine  by  the  Hebrews.  There  was  a 
change  from  the  pastoral  to  the  agricultural  mode  of  life.  This 
made  profitable  the  system  of  slavery  not  only  of  women  for  pro- 
creative  purposes,  but  of  both  sexes  alike  for  agricultural  work. 
Such  is  the  real  import  of  the  C  code,  the  first  and  chief  part  of 
which  is  the  regulation  of  this  property-right  in  Hebrew  slaves. 

Another  element,  however,  is  inevitable  in  a  society  of  agri- 
cultural slavery.  This  is  the  armed  power  strong  enough  to 
quell  uprisings.  While  we  do  not  read  of  a  revolt  of  Hebrew 
slaves,  we  have  rather  ample  evidence  of  the  revolts  of  the  en- 
slaved Canaanites.  Militarism  marked  the  development  of  the 
property-right  in  human  beings.  The  popular  leader  at  first 
was  chosen  directly  by  the  deity,  and  this  power  gave  him  pres- 
tige. Warriors  were  at  first  the  entire  fighting  strength  of  the 
tribe,  but  with  the  rise  of  serfdom  society  was  divided  in  distinct 
classes  and  the  cleavage  of  society  began.  The  old  patriarchal 
household  with  its  small  distinction  between  wife  and  concubine, 

57  Gen.  6:2. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   87 

child  and  slave,  and  its  manorial  mode  of  life  which  it  was  the 
aim  of  the  armed  power  to  protect  and  perpetuate  soon  felt  the 
influence  of  the  power  it  had  created  for  its  protection.  The 
ownership  of  man  on  a  large  scale,  at  first  practised  on  the  basis 
of  the  divine  sanction,  gradually  developed  tendencies  of  antag- 
onism to  the  patriarchal  mode  of  life  and  to  theocratic  ideas. 
The  kingship  completed  the  breach.  Military  power  by  means 
of  the  ownership  of  men  became  a  menace  to  the  theocratic  in- 
stitutions. The  institution  of  the  kingdom  meant  the  rejection 
of  Yahweh.58  A  struggle  began  in  which  the  military  power 
only  gradually  made  itself  independent.  The  first  kings  were 
humbled  again  and  again  by  the  prophets.  The  institution  of 
the  right  of  ownership  developed  into  the  right  of  control  by 
means  of  this  property-right.  This  struggle  marks  the  passing 
of  the  divine  right  of  property  into  a  human  right.  One  of  the 
most  momentous  changes  in  economic  conditions  which  accom- 
panied this  change,  was  the  rise  of  cities  and  of  centers  of  pop- 
ulation. Along  with  this  and  the  subsequent  expansion  of  in- 
dustrial activity  the  ownership  of  men  by  means  of  the  owner- 
ship of  their  subsistence  entered  society,  and  the  idea  of  control 
by  means  of  industrial  slavery  Mas  developed.  The  dazzling 
reign  of  Solomon,  who  was  capable  of  fusing  the  old  and  the 
new  concepts  together,  marks  a  turning-point  in  the  development 
of  the  property-concept  in  Israel.  National  glory  blinds  the  nation 
for  a  moment  to  the  hopeless  chasm  between  the  military  nobility 
and  the  enslaved  serfs.  But  under  all  this  outward  grandeur  the 
population  is  being  robbed  by  the  aristocracy.  Reaction  comes 
against  the  boundless  property-right  assumed  by  the  nobility. 
Commercial  activity  with  the  idea  of  profit  finally  brings  its 
share  to  the  enhancement  of  the  institution  of  ownership,  and 
then  capping  all,  private  ownership  of  Yahweh 's  land  completes 
the  institution  of  property  among  the  Hebrews,  and  marks  the 
climax  of  the  development  of  the  practice  of  the  property-right. 
But  this  development  of  the  practice  does  not  represent  the 
actual  development  of  the  concept  of  property.  We  must  face 
the  element,  of  the  divine  right,  the  survival  of  the  origin  of  the 
property-right  itself.  For  it  is  precisely  in  the  indignant  reac- 
tion of  the  eighth-century  prophets  against  these  very  practices 

58  1  Sam.  8:7. 


88  UNIVERSITY  OF  IOWA 

of  the  private  right  of  property  that  we  find  the  actual  concept 
of  property  revealed.  The  extreme  function  of  private  property 
lacks  the  essential  element,  the  divine  sanction.  We  may  refuse 
to  believe  such  a  view  as  this,  but,  if  we  do  we  are  forced  to 
deny  the  facts.  For  so  fundamental  was  this  menace  of  unre- 
strained, unsanctioned  practice  of  the  private  property-right  that 
the  downfall  of  the  nation  stands  as  a  monumental  ruin  in  his- 
tory to  testify  to  the  destruction  it  wrought. 

The  ownership  of  Hebrew  slaves  recognized  in  the  early  code 
was  gradually  modified  so  that  in  the  following  D  code  woman 
enjoyed  the  limit  of  seven  years  servitude,  as  well  as  the  man, 
if  sold  into  bondage  as  a  free  woman.  With  the  rise  of  a  power- 
ful nobility  the  military  power  prevented  the  capture  of  wives, 
and  the  price  was  paid  which  later  developed  into  the  mohar, 
or  dowry.  This  naturally  made  a  greater  distinction  between 
the  chief  wife  and  the  concubines.  Yet  the  growing  national 
consciousness  recognized  the  native  individual,  and  to  a  certain 
extent  broke  down  the  property-right  in  Hebrew  slaves.  The 
right  to  the  captive  foreigner  is  as  absolute  as  ever,  and  the 
prophets  accord  it  unqualified  divine  sanction.  But  the  agree- 
ment of  the  nobility  in  the  reign  of  Zedekiah  to  liberate  all  the 
Hebrew  slaves  marks  the  change  which  was  occurring  in  the  prop- 
erty-concept of  the  time.  Hitherto  slaves  had  been  the  chief 
objects  of  ownership.  With  the  development  of  consciousness 
of  kind,  however,  that  form  of  property  had  begun  to  fall  into 
disrepute.  Now  a  new  social  cleavage  was  beginning  to  ap- 
pear, caused  not  by  social  differences  at  first  but  by  economic 
changes.  The  people  had  become  agricultural.  Property  in 
things  had  begun  to  come  in  as  a  substitute  for  human  chattels. 
Thence  came  commercial  pursuits  and  the  changed  concept  of 
property  which  challenged  the  attention  of  those  social  conser- 
vatives, the  prophets.  The  bulk  of  the  nation  was  with  them. 
The  newly  rich  were  the  innovators  and  as  such  both  they  and 
their  commercial  practices  call  forth  the  'fierce  denunciation  of 
the  prophets.  The  control  of  the  necessities  of  life,  ownership 
of  things  as  a  control  of  man,  has  its  strict  limitations.  Com- 
mercial activity  for  profit  is  looked  upon  with  disdain  as  con- 
temptible, and  the  private  ownership  of  land  is  summarily  con- 
demned by  the  Hebrew  prophets.     This  was  the  actual  property- 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   89 

concept,  and  the  divergence  between  it  and  the  practices  is  clear- 
ly seen  to  involve  the  original  element  of  the  right  of  ownership, 
divine  right.     This  was  the  basis  for  the  views  of  the  prophets. 

After  the  property-right  was  established  in  captives  we  can 
easily  understand  its  extension  to  things.  But,  as  noted  above, 
it  is  undoubtedly  false  to  believe  the  property-right  in  things 
prior  to  the  right  in  persons.59  Private  property  in  the  primitive 
horde  is  almost  unthinkable,  since  it  presumes  a  highly  developed 
and  clearly  defined  idea  of  the  individual,  and,  more  than  this, 
an  explicit  right  as  operating  between  these  individuals.  In  the 
absence  of  this  it  would  involve  speedy  and  inevitable  extinction, 
since  the  horde,  torn  by  the  dissension  wrhich  always  follows 
private  property,  would  prove  a  house  divided  against  itself. 
"When  we  know  that  association  itself  and  the  unity  of  concerted 
action  is  a  result  of  the  struggle  for  existence,  this  notion  of  an 
original  property-right  in  personal  belongings  falls  to  the  ground 
by  its  own  weight.  In  the  primitive  horde  the  individual  was 
merged  in  the  group.  The  horde  was  the  unit.  The  notion  of 
personality  was  hazy  and  vague.  Hence  the  view  of  personal 
belongings  as  being  a.  part  of  the  personality  of  the  captor  or 
user  is  undoubtedly  the  true  one,  when  we  remember  that  the 
question  is  of  the  concept  of  property  —  not  its  function.60 

"With  this  explanation  we  have  a  clue  to  the  historical  fact  of 
horde-communism.  If  the  group  was  the  unit  so  that  the  indi- 
vidual, to  all  practical  purposes,  disappeared  in  it ;  so  did  also  his 
personality  and  its  appendages.  For  any  thing  to  be  ''his"  the 
individual  had  to  be  pitted  against  the  whole,  and  we  know  what 
that  meant  in  savage  society,  instant  destruction.  Another  con- 
sideration of  conclusive  importance  in  regard  to  the  priority  of 
property  in  persons  or  things  is  that  while  we  have  an  abund- 
ance of  historical  evidence  for  communism  in  things,61  we  know 

59  "The  appropriation  and  accumulation  of  consumable  goods  could  scarcely  have 
come  into  vogue  as  a  direct  out-growth  of  the  primitive  horde  communism,  but  it 
comes  in  as  an  easy  and  unobtrustive  consequence  of  the  ownership  of  persons." 
Veblen,  American  Journal  of  Sociology,  Vol.  4,  p.  365. 

60  "It  is  a  question  as  to  the  light  in  which  the  savage  himself  habitually  views 
these  objects  that  pertain  immediately  to  his  person  and  are  set  apart  for  his  habitual 
use."      Ibid.,  p.  354. 

61  "It  is  commonplace  to  remark  that-  among  the  lowest  races  most  economic  goods 
belong  to  the  community  as  a  whole.  The  individual  has  only  a  right  of  user  which 
has  not  as  yet  passed  into  a  recognized  right  of  ownership."  Webster,  American 
Journal  of  Sociology,   Vol.   15,  p.   795. 


90  UNIVERSITY  OF  IOWA 

of  no  society  with  absolute  communism  in  women,  that  is,  with 
complete  promiscuity  and  a  total  absence  of  all  sexual  taboos. 

The  most  valued  of  all  personal  possessions,  the  trophy,  may 
have  a  different  meaning  from  what  we  usually  give  it.  In  a 
state  of  society  in  which  "life"  is  a  mere  annotation,  and  all 
its  connotations  or  elements  are  bound  up  in  the  nebulous  chaos 
of  magic  and  mystery,  lines  of  demarcation  between  men  and 
things  are  not  as  clear  as  they  are  to-day.  Might  not  the  death- 
dealing  weapon  in  the  hand  of  the  hero  appear  to  the  superstiti- 
ous mind  of  the  savage  as  a  part  of  the  hero  himself  ?  And  may 
not  this  view  obtain  in  regard  to  other  things  of  daily  use  as  well  ? 
In  all  probability  things  interred  with  the  dead  were  interred 
With  him  because  they  were,  to  the  minds  of  the  survivors,  an 
integral  part  of  the  dead  man  himself  rather  than  his  possession.62 
This  would  explain  the  trophy  as  a  share  obtained  by  the  votary 
in  the  divine  property-right.  The  weapon,  as  well  as  the  teeth 
or  the  scalp,  would  be  part  of  the  enemy  himself,  and  as  a  token 
of  prowess  or,  more  probably,  of  divine  favor  the  warrior  would 
possess  the  person  rather  than  his  belongings.  This  fellow-being 
himself  would  be  delivered  to  the  owner  by  magical  power  and 
be  possessed  by  the  divine  right  of  the  sacred  taboo.  In  this  way 
the  "zone  of  influence  of  the  individual's  personality,"  the 
"quasi  personal  fringe"  and  the  "penumbra  of  a  person's  in- 
dividuality ' ' 63  may  be  explained,  and  the  hero  would  not  only 
possess  the  others,  but  be  considered  to  have  increased  his  own 
personality  by  the  powers  of  the  other  persons  whom  he  had 
killed.  This  would  be  an  "extension  of  personality,''  the  rea- 
sonableness of  which  might  be  much  more  clear  to  the  savage 
than  the  conception  of  corporate  ownership  is  to  many  minds 
to-day.  If  this  was  the  belief  of  primitive  man,  we  have  an  ex- 
planation of  the  rise  of  personal  property  in  weapons,  ornaments, 
etc.,  in  the  fact  that  they  had  been  connected  with  a  person  who 
was  "devoted"  and  therefore  belonged  to  his  deity.  That  it 
was  persons  rather  than  things  which  constituted  the  first  objects 
of  the  proprietary  right  we  are  fairly  sure. 

62  "Weapons,  tools,  articles  of  ornament  and  clothing,  are  commonly  regarded  by 
early  man  as  an  Integral  part  of  the  owner's  personality;  they  are  HIM  almost  as 
much  as  his  bodily  members."  Webster,  American  Journal  of  Sociology,  Vol.  15, 
p.  799. 

63  Veblen,  "The  Beginnings  of  Ownership,"  American  Journal  of  Sociology,  Vol. 
4,  p.   360. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   91 

We  conclude  that  the  property  right  in  persons  is  the  basis  of 
the  later  property-right  in  things.  That  this  right,  like  the  own- 
ership of  persons,  should  be  based  upon  the  divine  right  of  the 
sacred  taboo  may  appear  absurd ;  yet  such  is  the  testimony  of 
facts.  In  the  communism  of  the  early  group  everything  belonged 
to  the  group.  As  soon  as  the  magic  had  advanced  sufficiently  to 
invest  things  with  a  supernatural  mysterious  power,  these  things 
became  taboo.  This  is  in  fact  the  taboo  as  we  know  it,  though 
we  have  failed  to  see  its  far-reaching  importance.  Then,  when 
animism  had  proceeded  far  enough  to  render  this  magic  the  ex- 
expression  of  a  divine  will,  we  have  the  holy  things,  which  are 
tabooed  to  the  people  and  set  off  from  the  common  things  by 
means  of  this  universally  respected  divine  right.  In  this  early 
communism,  therefore,  we  find  the  condition  that  "what  is  not 
taboo  is  common  and  in  this  antithesis  lies  the  germ  of  the  con- 
ception of  property  as  applied  to  many  persons  and  things.  Thus 
taboo  became  in  many  cases  merely  an  assertion  of  proprietary 
rights.  .  .  Isolation  was  the  first  object  of  taboo  and  this 
was  the  first  stage  of  owmership."  64  That  this  taboo  in  its  last 
analysis  invoices  the  divine  right  is  the  best  attested  fact  of  our 
entire  study  of  the  Hebrew  property-concept  from  Yahweh's 
right  to  the  first-born  among  men  and  animals,  his  right  to  the 
captives  and  the  spoil,  through  the  entire  list  of  objects,  to  its  in- 
fluence upon  the  view  of  wealth.  This  is,  as  we  have  seen,  their 
only  sanction  and  their  compelling  power.  The  curse  derives  its 
meaning  from  this  fact.  The  case  of  Achan's  breaking  of  this 
taboo  illustrates  the  divine  property-right  to  things,65  and  the 
curse  uttered  by  Micah's  mother  shows  this  right  exercised  by 
man.66  This  condition,  so  striking  in  the  social  life  of  the  He- 
brews, is  so  because  of  the  undeveloped  state  in  which  we  find 
the  concept  among  them.  But  it  is  seen  to  obtain  everywhere, 
when  investigated.  "Throughout  the  lower  culture  we  have 
abundant  evidence  that  the  private  property  of  the  living  is  fre- 
quently protected  by  the  imposition  of  taboos."67  Even  the 
advocates  of  the  old  theories  of  a  functional  origin  of  the  prop- 
erty concept  realize  this  predominating  influence  of  the  taboo. 

64  International  Enrijelopedia,  s.   v.   "Taboo." 

65  Josh.   7:1  ff. 
fie.Tude;.  17:1  ff. 

67  Webster,  "The  influence  of  siiperstition  on  the  evolution  of  the  property  ri»ht." 
American  Jnvrhtal  of  Socioloap,  Vol.  15,  p.  794. 


92  UNIVERSITY  OF  IOWA 

"Among  many  rude  peoples  the  statement  that  the  property  de- 
pends upon  the  user  must  be  qualified  by  the  exception  that  it 
may  also  be  secured  by  taboo.  Thus  the  legal  conception  of  user 
may  be  reinforced  by  the  magical  idea  of  taboo  as  a  basis  of 
property. ' ' 68  Westermark,  who  traces  the  development  of  the 
property-idea  by  means  of  the  legal  conception  of  theft,  fills  ten 
pages  with  illustrations  of  this  divine  property-right  as  it  has 
been  discovered  among  the  different  primitive  peoples.69 

In  early  group  life  personal  property  played  but  a  small  part. 
Among  the  Hebrews  it  was  chiefly  ' '  flocks  and  herds,  silver  and 
gold."  "Men-servants  and  the  maid-servants"  were  by  far  the 
most  important.  Yet  with  the  ownership  in  persons  established, 
the  settlement  in  a  fertile  country  with  comparatively  unlimited 
capacity  for  the  productivity  of  slave  labor,  property  in  things 
soon  acquired  prominence.  Moreover  the  military  power  pro- 
tecting the  right  in  persons  also  made  personal  property  more 
safe.  One  of  the  best  testimonies  to  the  fact  that  the  property- 
right  in  things  became  so  prominent  as  to  show  its  power  in  the 
control  of  men,  we  have  in  the  complaint  of  the  prophets  of  the 
eighth  century  concerning  the  corruption  of  the  leaders.  ' '  The 
heads  [of  Zion]  judge  for  reward,  and  the  priests  thereof  teach 
for  hire,  and  the  prophets  thereof  divine  for  money. ' ' 70  With 
the  rise  of  cities  and  industrial  activity  commercialism  marks  the 
culmination  of  the  property-right  in  things  by  the  well-attested 
idea  of  profit  condemned  by  the  prophet  as  plain  stealing.  Hence 
this  function  of  the  property-right  was  far  from  a  right  which 
had  gained  the  popular  sanction  and  cannot,  therefore,  be  said 
to  be  an  established  conception  of  the  property-right.  The 
prophetic  view  of  wealth  proves  this  contention. 

6.  Ownership  in  land,  or  real  property,  is  the  last  item  to  come 
into  the  hands  of  the  individual. 

Not  a  word  of  regulation  as  to  the  right  of  man  against  man 
is  spoken  in  the  early  C  code.  Yet  in  the  still  earlier  Covenant 
code  we  have  the  divine  right  to  the  land  intimated.  Conse- 
quently, any  objection  to  the  theory  set  forth  in  these  pages  that 
the  divine  right  was  a  derivative  from  individual  right  falls  to 

68  Hobhouse,  Morals  in  evolution,  p.  332. 

69  The   origin  and  development  of  the  moral  ideas,  Vol.  2,  pp.   59-69. 
70Mic.  3:11. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   93 

pieces.  The  fact  is  that  the  land  of  Canaan  was  conceived  to  be 
Yahweh's  land,  just  as  the  land  of  Moab  was  conceded  to  Che- 
mosh  71  not  only  by  the  Moabites  but  by  the  Hebrews  as  well.™ 
Another  fact  is  that  this  divine  right  maintained  itself  intact 
throughtout  our  period  with  this  modification  that  it  was  viewed 
as  a  divine  control  in  favor  of  the  common  people.  Private 
ownership  of  land  was  a  robbery  of  Yahweh's  land  held  in  fief 
by  the  people.73  Hence  the  popular  belief  of  the  fall  of  a  dynas- 
ty as  result  of  a  violation  of  the  family  inheritance,74  and  the 
actual  destruction  of  the  nation  by  this  unsanctioned  practice 
of  the  Hebrew  latifwndia,  the  large  landed  estates  privately 
owned. 

That  this  property-right  in  land  should  have  its  origin  in  the 
sacred  taboo  does  not  surprise  us,  since  we  find  that  in  this 
period  the  very  practice  of  private  property  in  land  is  unable 
to  gain  the  necessary  sanction,  and  common  family  ownership 
still  obtains.  The  conception  of  the  earliest  home  of  man  in  the 
garden  of  Eden  is  a  fact  which  can  only  be  explained  by  the 
principle  of  divine  ownership.  An  abundance  of  evidence  meets 
us  in  our  sources  that  places  where  theophanies  occurred  are 
considered  as  the  dwelling  places  of  the  deity  and  therefore  they 
are  holy,  or  taboo.75  At  these  places  altars  were  erected,  which 
we  know  were  taboo  in  the  very  highest  degree.  Nothing  could 
therefore  be  more  logical  than  the  idea  that  the  land  belonged 
directly  to  the  deity.  Other  natural  causes  tended  to  confirm 
this  view.  The  mysterious  force  of  fertility  seemed  to  prove 
it.76  So  also  droughts,  storms,  and  all  agents  of  devastations 
were  conceived  as  plagues  sent  by  the  owner  of  the  land  upon 
its  inhabitants.  Thus  it  came  about  that  the  first  owner  of  land 
was  not  the  man  who  was  able  to  see  the  advantage  of  owning  it 
and  therefore  persuaded  his  fellow  men  that  the  land  he  had 
fenced  in  was  his,  as  Rousseau  would  have  it,  but  the  first  owner 

71  See  inscription  on  Mesha   Stone.     Hastings,  Bible  Dictionary,  Vol.   3,  p.   404. 
72Judg.   11:23-24. 

73  Cp.  McCurdy,  History,  prophecy,  and  the  Monuments,  Vol.  2,  p.  201.  "He  as 
the  head  of  the  family   was  the  tenant  of  the  Owner   of  the   soil." 

74  1  Ki.  21:3. 

75  Gen.  22:2,  14;  12:7;  28:16-17;  31:48  ff . ;  32:30;  35:7.  See  further  Smith, 
Religion  of  the  Semites,   on  the  subject  of  "Holy  Places." 

76  Cp.  Smith,  Prophets  of  Israel,  who  holds  that  even  as  late  as  in  Hosea's  time 
the  conception  of  Yahweh  as  the  Baali,  "my  lord,"  "owner"  was  a  conception  of  the 
deity  as  a  principle  of  physical  fertility."      Pp.   170-174. 


94  UNIVERSITY  OF  IOWA 

of  a  piece  of  land  was  the  priest  representing  the  people  at  the 
altar  of  the  deity.  As  he  held  this  spot  by  the  taboo  which  by 
common  consent  forbade  popular  use,  so  the  clan  or  tribe  grad- 
ually came  to  regard  their  habitat  as  especially  sacred  to  their 
community,  and  the  deity  was  expected  to  interfere  in  their 
behalf  in  case  of  danger  to  its  own  possession  and  the  people's 
inheritance.  This  was  as  far  as  the  proprietary  right  in  land 
could  advance  in  the  pastoral  stage,  when  communism  perforce 
must  rule.  Only  with  increasing  population  in  an  environment 
of  pastoral  and  agricultural  activity  combined  could  modification 
of  the  communistic  occupation  pass  over  into  communal  property 
with  definite  limits.  Increasing  agriculture  caused  an  increased 
value  of  the  land,  and  this  necessitated  more  definite  division  of 
the  groups  to  which  a  certain  section  belonged,  and  more  precise 
boundaries.  In  Israel  we  know  that  at  first  the  land  was  the 
common  possession  as  a  future  home  for  all  the  tribes.  Later 
there  was  a  division  according  to  the  tribes  individually,  and 
then  finally  came  the  family  inheritance  which  at  the  close  of 
our  period  was  the  divinely  sanctioned  mode  of  ownership  which 
was  broken  down  by  the  powerful  but  unsanctioned  and  there- 
fore wicked  practice  of  private  ownership. 

7.     The  concept  of  theft. 

Of  the  special  concepts  the  rise  and  development  of  the  notion 
of  theft  is  the  most  important,  This  is  but  the  negative  side  of 
the  property-concept.  It  proves  conclusively  the  difference  be- 
tween the  function  of  property  and  the  universal  sanction  or  the 
proprietary  right.  The  notion  of  theft  in  other  words  takes  the 
function  as  it  exists,  but  while  it  sanctions  one  practice  it  con- 
demns another.  The  contention  of  this  interpretation  is  that  this 
sanction  and  not.  the  practice  constitutes  the  concept  of  property. 
Seizure,  use,  exchange  and  production  are  nothing  more  or  less 
than  the  function,  and  could  not  per  se  create  the  notion  of 
right,  the  negation  of  which  is  theft.  Imitation  and  suggestion 
of  the  individual  consciousness  is  inadequate  to  explain  the  facts 
of  a  generally  accepted  right,  Consciousness  of  kind  is  abso- 
lutely essential.  Imitation  and  suggestion  influence  action  and 
function,  but  are  as  incapable  of  creating  mental  content  in  hu- 
man society  as  they  are  in  the  society  of  animals. 


PROPERTY  CONCEPTS  OF  EARLY  HEBREWS   95 

This  notion  of  theft  goes  further.  In  early  society  the  only 
crimes  recognized  were  the  breaking  of  sacred  customs.  These 
customs  were  sacred  because  of  man's  belief  in  the  supernatural. 
They  were  protected  by  universal  sanction  based  upon  the  belief 
in  a  divine  will.  This  was  expressed  by  means  of  the  taboo. 
The  first  act  of  theft  therefore  could  only  occur  where  a  taboo 
was  broken.  And  it  could  be  theft  only  because  the  right  vio- 
lated was  a  sacred,  that  is1,  supernatural  or  divine  right.  It 
would  be  punished  only  in  so  far  as  the  members  of  the  group 
acted  in  unison  in  the  belief  that  they  were  executing  the  divine 
will.  The  divine  right  plays  the  same  part  in  the  origin  of  the 
concept  of  property  as  the  strong  arm  does  in  the  origin  of  the 
function.  Hence  we  can  understand  how  Dr.  Smith  could  labor 
so  hard  to  rule  out  all  ideas  of  property  from  the  system  of 
taboo  and  yet  make  this  statement,  which  expresses  the  facts  in  a 
nutshell:  "In  the  oldest  types  of  societies  impious  acts  or 
breaches  of  taboo  are  the  only  offences  treated  as  crimes;  e.  g. 
there  is  no  such  crime  as  theft,  but  a  man  can  save  his  property 
by  placing  it  under  taboo  ,when  it  becomes  an  act  of  impiety 
to  touch  it."77 

This  explains  how  the  same  act  is  in  one  case  a  crime  and  in 
another  case  a  merit.  We  noted  this  in  the  case  of  spoil.  To 
spoil  the  enemies  was  a  meritorious  act,  and  the  only  case  of 
stealing  which  was  recognized  as  such  was  the  appropriation  of 
the  tabooed  thing  and  later  the  things  used  by  a  kinsman  to 
which  the  community  had  a  common  right.  The  individual 
taboo  was  first  placed  on  the  captive  woman,  and  thus  the  corner- 
stone of  the  home  and  marital  fidelity  sustains  a  very  close  rela- 
tion to  the  institution  of  property.78  From  this  taboo  in  slavery 
of  women  arose  our  individual  property  in  human  beings.  This 
is  the  stage  of  the  C  code  where  we  find  that  to  steal  a  man  meant 
death,79  and  to  break  the  taboo  protecting  a  father's  property 
right  in  the  daughter  meant  paying  the  price  for  her.80  Along- 
side with  property  in  human  beings  the  taboo  on  things  came 
into  vogue  as  soon  as  their  value  became  sufficiently  important 

77  See  p.   77   footnote. 

78  Cp.  Sutherland,  Origin  and  growth  of  the  moral  instincts,  Ch.  9,  "The  Ideal  of 
Chastity,"  pp.  190-232.      See  also  Gen.  20:3  ff . ;  26:10. 

79  Ex.  21:16. 

80  Ex.  22:16-17. 


96  UNIVERSITY  OF  IOWA 

in  social  life  and  stealing  of  things  upon  which  a  neighbor,  that 
is,  a  kinsman,  has  placed  his  taboo,  is  forbidden.  Yet  while  this 
development  takes  place,  the  right  to  take  spoil  remains  and  is 
as  justifiable  in  the  estimation  of  the  prophets  as  it  was  by  the 
early  Judges.  It  is  only  when  the  nobility  begins  to  violate  the 
ancient  divine  right  to  Yahweh's  land  and  to  eject  Yahweh's 
people  from  it  that  the  crime  of  spoil,  or  robbery,  is  recognized 
because  it  is  perpetrated  against  Israel,  and  not  against  the 
"cursed"  nations. 

The  notion  of  inheritance  is,  as  we  noticed,  closely  connected 
with  the  paternal  blessing  in  the  name  of  Yahweh.  The  divine 
right  or  sanction  was  eagerly  sought,  as  the  intrigues  of  nearly 
every  one  of  the  wives  of  the  patriarch 's  in  favor  of  the  inheri- 
tance of  the  favorite  son,  abundantly  proves.81  In  this  paternal 
blessing  we  probably  see  one  of  the  clearest  cases  of  the  union  of 
the  divine  and  the  human  property-right.  The  father  was  the 
owner  of  his  household  in  the  name  of  Yahweh,  who  was  the 
real  and  actual  owner.82  For  only  thus  could  the  religious  form- 
ula of  the  blessing  carry  with  it  any  meaning.  Under  the  de- 
veloping ideas  of  property  as  new  situations  arose  through  the 
complexity  of  social  life  the  human  right  gained  the  ascendancy 
and  the  divine  right  had  to  be  emphasized  against  the  encroach- 
ment made  by  the  aristocracy  under  military  and  regal  power. 

Such  origin  and  development  must  lie  at  the  basis  of  the 
change  of  view  in  the  matter  of  material  possessions  which  is 
seen  in  our  sources.  The  function  of  property  in  human  society 
springs  from  the  elements  of  suggestion  and  imitation  on  the 
basis  of  the  struggle  for  existence,  but  the  concept  of  the  right  to 
own  and  possess  springs  from  man's  belief  in  magic  and  the 
supernatural,  which  has  its  basis  in  the  consciousness  of  kind. 
This  was  what  made  the  taboo  sacred  and  unquestionably  accept- 
ed and  what  constituted  its  binding  force.  The  right  of  the  deity 
could  not  be  violated.  Then  the  individual  who  could  impose 
these  taboos  by  devoting  or  cursing  things  in  the  name  of  the 
deity,  or  could  make  a  vow,  perforce  must  share  in  this  right. 
Therefore  great  posses^sions  and  divine  favor  went  hand  in  hand. 

But  this  process  had  a  limit.     The  right  was  used  to  the  detri- 

81  Gen.   21:10;  27:2  ff. ;  1   Ki.   1:15   ff. 

*2  Cp.  Smith,  The  prophets  of  Israel,  pp.   170-174. 


PROPERTY  CONCEPTS  OP  EARLY  HEBREWS   97 

ment  of  the  worshippers  so  far  that  what  had  been  a  means  of 
strength  in  the  struggle  for  survival  became  a  menace.  The  con- 
sciousness of  kind  has  developed  and  the  divine  will  is  seen  to 
have  changed.  The  sanction  which  gave  the  practice  its  life  as 
an  institution  was  withdrawn.  The  negative  side  of  the  right  of 
property  developed.  Theft  was  punished  as  an  act  of  impiety 
when  practiced  between  kinsmen.  Finally  the  wholesale  plund- 
ering of  the  masses  of  a  nation  by  a  certain  class  is  seen  as  a 
spoiling  of  Yah weh's  people.  This  class  constitutes  the  enemies 
of  Yahweh,  and  their  wealth  is  a  token  of  this  hostility. 

Thus  a  synthesis  of  the  facts  found  in  the  analysis  of  the  actual 
property  concepts  of  the  early  Hebrews,  shows  the  essential  dif- 
ference between  the  function  of  ownerhip  and  the  idea  of  prop- 
erty. It  establishes  the  fact  that  the  first  notions  of  the  right 
of  property  were  inseparably  bound  up  with  primitive  magic  and 
superstition  in  animistic  traditions,  so  that  the  first  " owner,' ' 
whose  right  could  command  universal  recognition  and  absolute 
respect  was  the  deity  of  the  tribe.  The  historical  fact  by  means 
of  which  this  right  was  expressed  and  its  power  exerted  was  the 
taboo.  The  basis  for  this  development  can  be  explained  only  by 
means  of  the  ' '  elementary,  generic  social  fact, ' ' 83  the  ' '  conscious- 
ness of  kind,"  or  "formal  likemindedness, "  since  an  actual  func- 
tion of  a  divine  ownership  never  could  have  been  exercised  and 
could  only  exist  in  the  conscious  likemindedness  of  the  group. 

In  a  society  where  men  and  gods  were  thought  to  be  akin  and 
to  stand  in  close  relation  to  one  another  with  the  divine  right 
usually  exercised  by  human  agency,  this  right  gradually  came 
to  be  shared  by  man,  chiefly  by  means  of  the  act  of  "devoting," 
or  tabooing  to  his  deity  the  object  over  which  control  was  desired. 
This  was  first  directed  against  enemies  for  the  purpose  of  de- 
struction ;  later  an  individual  taboo  was  placed  upon  the  female 
captive,  who,  being  spared  for  the  purpose  of  satisfaction  and 
service  to  the  captor,  became  the  first  object  of  the  human 
right  of  property  through  the  sacred  taboo. 

Personal  belongings  were  thought  to  be  an  integral  part  of  the 
owner's  personality,  and  became  objects  of  the  property-right 
for  the  first  time  when  the  proprietary  right  in  persons  was 
fully  developed,  and  the  control  of  man  by  moans  of  the  own- 

83  Giddinars,    Principles  of  Sociology,  p.    10,   Preface. 


98  UNIVERSITY  OF  IOWA 

ership  of  their  subsistence  came  to  be  understood.  This  gave 
rise  to  commercial  activity,  which  resulted  in  the  idea  of  profit 
and  the  practice  of  private  ownership  of  land,  which,  conflicting 
with  the  religious  origin  of  the  concept  of  property  is  opposed 
by  the  same  social  factor,  ' '  the  consciousness  of  kind. ' ' 


STUDIES  IN  SOCIOLOGY,  ECONOMICS 
POLITICS  AND  HISTORY 


Vol.      I.  No.  1-2.    Loos,  I.  A. 

Studies  in  the  politics  of  Aristotle.     1899 

Vol.     II.  No.  1.       Merritt,  F.  D. 

The  early  history  of  hanking  in  Iowa.  1900 

2.        Kawakami,  K.  K. 

The  political  ideas  of  modem  Japan.  1903 

Vol.  III.  No.  1.       Peirce,  P.  S. 

The  freedmen's  bureau.    1904 

2.       Plum,  H.  G. 

The  Teutonic  Order  and  its  secularization. 
1906 

Vol.  IV  No.  1.        Conner,  J.  E. 

The  development  of  belligerent  occupation. 
1912 

Vol.  IV  No.  2.       Laure,  M.  J. 

The   .property    concepts    of    the     early 
Hebreivs.     191.") 


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