Origin and History of Hebrew Law

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THE ORIGIN AND HISTORY

OF HEBREW LAW

THE ORIGIN AND HISTORY OF HEBREW LAW By

J. M. POWIS SMITH

THE UNIVERSITY OF CHICAGO PRESS

The University of Chicago Press, Chicago 37 The University of Toronto Press, Toronto 5, Canada Copyright 1931 by The University of Chicago All rights reserved. Published1931. New Impression 1960 Printedin the United States of America

THE ORIGIN AND HISTORY

OF HEBREW LAW

THE ORIGIN AND HISTORY OF HEBREW LAW By

J. M. POWIS SMITH

THE UNIVERSITY OF CHICAGO PRESS

The University of Chicago Press, Chicago 37 The University of Toronto Press, Toronto 5, Canada Copyright 1931 by The University of Chicago All rights reserved. Published1931. New Impression 1960 Printedin the United States of America

PREFACE The modern, historical method of Old Testament interpretation is of relatively recent origin. The text of the Pentateuch attributes the origin of the complete law to Moses who received it direct from Yahweh upon Mount Sinai. Not until A.D. 1521 was the Mosaic authorship of the Pentateuch for the first time in modern days brought into question.' Doubts of Mosaic authorship had been expressed by Ibn Ezra. But no serious consideration was given to them until modem times when Spinoza presented them in formidable array. Today the Mosaic origin of the Pentateuch is a view generally abandoned by historical critics. The aim of the present work is to trace the history of Hebrew law as it is found in the Old Testament. The tradition of Mosaic origin is not to be entirely ignored. The origin of the primitive Decalogue is ascribed to him in chapter i. The succeeding chapters discuss the Covenant Code, the Deuteronomic Code, Ezekiel's Code, the Holiness Code, and the Priestly Code in their historical order. The appendixes take up first the tradition of the Mosaic authorship of the Pentateuch and examine it carefully. Then the Code of Hammurabi is presented in a new translation by my former colleague Professor Daniel D. Luckenbill which has been carefully edited and emended by my colleague Professor Edward Chiera. To these two scholars I am indebted for this generous service more I See Carlstadt, De scriptor. Canon. § 85.

PREFACE than words can tell. Similar service has been rendered in the case of the Assyrian Code, the rendering of which by Professor Luckenbill has been edited and revised by my colleague Dr. Frederick William Geers. To him I would record my deep gratitude and great appreciation. Appendix IV presents the Hittite code of laws. This has been translated into English for the first time by Dr. Arnold Walther of the Oriental Institute of the University of Chicago. The Hittite language has but recently been made intelligible to modern minds. Dr. Walther has spent much time and labor upon this translation and has solved many of its difficulties. But there are still several obscure points which must wait until new light is shed upon the Hittite language. Meantime it is with great gratitude that I acknowledge the service of Dr. Walther and his contribution to the history of law. The publication here of these translations of the Babylonian, Assyrian, and Hittite laws brings together within one volume the records of the legislation of all the great peoples of Western Asia. Thus the contents of this volume make possible a close comparison of the laws of these various peoples and a discovery of the extent to which the laws of one influenced the legislation of another. We find here a vivid background for the study of Hebrew law. In the light of these related codes it becomes evident that Hebrew legislation was on a far higher moral and religious level than any of the neighboring codes of law. Hebrew legislation was not ideal from the start, but its history is a story of progress; and that progress was greatly influenced by the course of history. Per aspera ad astra.

J. M. UNIVERSITY OF CHICAGO

PowIs SMITH

CONTENTS PART I. THE HISTORY OF HEBREW LAW PAGE

CHAPTER

I. The

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DECALOGUE

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THE COVENANT CODE

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III. THE DEUTERONOMIC CODE

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THE HOLINESS CODE .

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AN IDEAL CODE .

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VI. THE PRIESTLY CODE

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PART II. APPENDIXES I. DID MOSES WRITE THE By J. M. Powis Smith II.

PENTATEUCH?

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THE CODE OF HAMMURABI

Translated by the late Professor Daniel D. Luckenbill Edited by Professor Edward Chiera .

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III. THE AssYRIAN CODE

Translated by the late Professor Daniel D. Luckenbill Edited by Dr. Frederick William Geers .

THE HITTITE CODE......

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Translated by Dr. Arnold Walther INDEX

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PART I THE HISTORY OF HEBREW LAW

CHAPTER I THE DECALOGUE For many centuries the view was unchallenged in Judaism and in the Christian church that all Hebrew legislation came from the mind and hand of Moses himself. This view is still held by many people, especially those in the Catholic and Lutheran churches, and in the more reactionary portions of the Protestant and Anglican groups, as well as by members of the orthodox Jewish synagogues. Modem scholars have given up this view because of the overwhelming weight of evidence that can be brought against it.' In general, it may be said that legislation does not precede the conditions of life with which it is intended to deal, but arises out of actually existing conditions and situations which it seeks to guide and control. For example, there were no laws for the regulation of automobile usage and traffic until some time after automobiles had come into common use upon our roads and streets. Legislation for the control of aeroplanes and for the use of the air by wireless stations is still in its infancy, if not unborn. Laws and customs do not come into being until the existing conditions of life in any given community have demonstrated their utility and necessity. Indeed, in some cases laws lie far behind the prevailing needs of society. The law against child labor is a case in point. There is as yet no national law on this subject I This evidence is summarized in Appendix I, "Did Moses Write the Pentateuch?" 3

4

ORIGIN AND HISTORY OF HEBREW LAW

operating throughout the United States, because certain states steadfastly refuse to ratify it. It works against the interests of certain industries which wage unceasing war against it. The general principle which holds true today, that laws and customs do not come into being until the conditions of life demand them, was no less true in antiquity than it is now.' This being the case, it is important to recognize clearly what were the conditions of life for the Hebrews in the days of Moses. According to the oldest traditions, Moses led the Hebrews out of slavery in Egypt, through the desert, and to the border of Canaan, the promised land. Not only so, but all the adults of the generation of those who were in Egypt died, with the exception of Joshua, the son of Nun, and Caleb, the son of Jephunneh (Num. 29-35), before the entry into Canaan. Consequently, the legislation given by Moses can have been only such as would have been suited to the conditions of life prevalent in the desert. If the Hebrews had learned any of the arts of civilization while in slavery in Egypt, that knowledge and skill would have perished with the death of the elders, for the children living in the desert with no opportunity to practice the arts of civilization or to learn its customs would speedily forget such things and would rapidly adjust themselves to nomadic ways and customs. If Moses had talked to them in the terms of the legislation found in Leviticus, Numbers, and Deuteronomy, he would have been talking over their heads and his message would have fallen upon deaf ears. 14:24,

Then did Moses initiate any laws at all? If not, how ' For a good statement upon the question of the gradual growth of law see J. G. Frazier, Folk-Lore in the Old Testament, III (918), 93 if.

THE DECALOGUE

5

did the tradition ever arise to the effect that all Hebrew law came from Moses? The difference between tradition and myth is this: that tradition rests upon a substratum of fact, while myth concerns itself with intangible, speculative things for which no solid basis can be found. In view of this characteristic tradition it is altogether improbable that Moses should ever have been given credit for the entire bulk of Hebrew legislation, if he had never originated a single law, as some writers would have us believe. In looking for the Mosaic germ out of which the fullgrown tradition originated, the natural place to turn is to the Decalogue, which is to be found in Exodus, chapter 20, and in Deuteronomy, chapter 5. There are three different recensions of the original Decalogue.' That neither one of them is the Decalogue in its original form is practically certain. The differences between them are many, and in some cases very significant. For example, the reason for the observance of the fourth commandment in Exod. 20: i1 is found in the fact that God rested from his creative activity upon the seventh day; hence men should likewise rest upon that day and hallow it; in Deut. 5: 14 fthe reason lies in the fact that God delivered Israel from slavery in Egypt, and especial stress is laid upon Israel's duty to give its own slaves rest upon the Sabbath. In the tenth commandment the order of clauses in Exod. 20: 17 is first the home, second the wife; in Deut. 5: 21 the I Two of these are in Exodus, chap. 20, and Deuteronomy, chap. 5; the third is to be found upon a recently discovered fragment of papyrus. The text of the papyrus fragment sometimes follows Deuteronomy and sometimes Exodus; but in four cases it goes its own way. The Nash Papyrus,

as it is called, will be found in text and translation in PSBA for in the Jewish Quarterly Review for January, 1903, PP. 5 4 ff.

1902;

and

ORIGIN AND HISTORY OF HEBREW LAW

6

order is just the reverse, and the fields are added to the list of things not to be coveted. These and several other variations show quite clearly that the Decalogue was changed either deliberately or accidentally in the course of its history. Another fact pointing in the same direction is indicated by the name "Decalogue." This is a translation of a Hebrew phrase meaning "the ten words." The Hebrew term dabar, rendered "word," is sometimes used where we should speak of a phrase (Job 5:3; Judg. 13:9); but neither "word" nor "phrase" is applicable to such commands as the second, fourth, and fifth. On the other hand, such commands as the sixth, seventh, eighth, and ninth could quite literally be described by such a term. The Hebrew language differs radically in its word formations from English; so that while "thou shalt not kill" requires four words in English, in Hebrew it is said by means of but two, and one of these is a mere negative prefix. Consequently, the term "words" or "phrases" would fit a group of laws such as the sixth, seventh, eighth, and ninth perfectly. That the original code was made up wholly of concise laws like these is suggested not only by the name, but also by the tradition that they were engraved upon two stone tablets (Exod. 32: 15 f., 19; 34: 14, 28; Deut. 5:22). The lapidary style inevitably becomes

brief and concise. The original form of the Decalogue therefore was probably after this order: i. I Yahweh am your God.

You shall have no other gods. 3. You shall not invoke the name of your God for evil. 4. Remember to keep the Sabbath holy. 2.

5. Honor your father and mother.

6. You must not commit murder.

THE DECALOGUE 7. 8. 9. io.

You You You You

must must must must

not not not not

7

commit adultery. steal. bear false witness. covet your neighbour's house.

This is the form of the primitive Decalogue accepted by some scholars. So, for example, B. W. Bacon, The Triple Tradition of the Exodus, page II3; G. Wildeboer, Die Literaturdes Alten Testaments, page i9; C. A. Briggs, The Higher Criticismof the Hexateuch, pages 18o f.; R. H. Charles, The Decalogue, page xlviii; T. K. Cheyne, The Expositor, February, 1892, page io; S. R. Driver, An Introduction to the Literature of the Old Testament, pages 30-34; Ewald, History of Israel, II, 18 f.; J. P. Peters, The Religion of the Hebrews, pages 97 f.; W. P. Paterson, Hastings' Dictionary of the Bible, I, 581. But even so, the Decalogue in such a reduced form is denied to Moses by the majority of modern scholars., I So, e.g., Wellhausen, Skizzen und Vorarbeiten,I, 68; Composition des Hexateucks, pp. 332 f.; also Cornill, Einleitung in das Alte Testament, p. i6; Kuenen, Origin and Composition of the Hexateuch, p. 244; Stade, Die Erzhlung des Hexateuchs, p. 18o; Smend, Biblische Theologie des Alten Testaments, pp.

249

f.; Marti, Die Religion des Alten Testaments, pp.

22 f.,

68; G. F. Moore, The Literature of the Old Testament, p. 31; W. E. Addis, Encyclopedia Biblica, Vol. I, col. 1050; Wildeboer, Die Literaturdes Alten Testaments, p. ig; Kittel, Die Religion des Volkes Israel, p. 36; W. R. Harper, Amos and.Hosea, p. lxi; H. P.'Smith, Religion of Israel, p. 46; George A. Barton, Religion of Israel,pp. 69, 8o; B. Baentsch, Exodus und Leviticus, p. 178; J. A. Bewer, Literature of the Old Testament, pp. 30 f;

A. Dillmann, Alttestamentliche Theologie, p. 58; K. Budde, Religion of Israelto the Exile, p. 32.

Several of these scholars select a different form for the second commandment, viz., "You must not make any graven image." But imageworship was not forbidden in the time of Moses, or for a long time there-

after. Hence those who include this prohibition in the Decalogue are very likely to make the Decalogue of late origin. And such a conclusion seems almost inevitable; yet Ewald, Charles, Cheyne, Driver, Briggs, K6nig, Peters, Riehm, and others assign the Decalogue to Moses notwithstanding.

8

ORIGIN AND HISTORY OF HEBREW LAW

And if the Decalogue at its beginning must be given the same force and scope that it has in the modern world, this negative position is well taken. But this is not the only alternative. If we regard the Decalogue as originally having had not absolute, world-wide scope of operation, but only relative and intertribal application, the decision may be quite different. We can hardly suppose that the leader of a group of escaped slaves would be legislating for them in terms of world-wide significance. The problems and conditions which confronted the Hebrew clans at that time were not universal and cosmopolitan; they were rather interclannish and intertribal. The laws required by the situation were such as would enable the clans to live together in amicable relations. The Hebrew immigrants were a conglomerate group made up of various different elements. The task of Moses was to bind them together in a close union of clans. It was his work to organize these loosely related clans into an embryo nation. In the Hebrew group were such independent elements as the Kenites, the Kenizzites, the Jerahmeelites, various clans from around Sinai, and probably representatives of Israelites already in Canaan. The situation was very much like that which confronted Hammurabi when he issued his code of laws. The various city communities throughout the great Babylonian Empire had each its own customs and laws. Hammurabi saw the desirability of unifying his widely scattered empire and so drew up a law code which should become operative throughout the empire from the Euphrates to the Mediterranean. Thus the varying peoples were brought closer together and the Babylonian Empire set upon a much firmer foundation.

The case was very much the same with Moses and his

THE DECALOGUE

9

"

Hebrew clans. The great need was co-operation and mutual understanding. Hence Moses lays down certain simple, elemental, and fundamental principles for the guidance and control of his people. He pledges them all to the worship of Yahweh as the only God of their group. He forbids the use of the divine name for any malicious purposes. He orders the observance of the Sabbath by all the members of the mixed community. He impresses upon them the duty of reverence for parental authority. He prohibits murder, adultery, theft, and slander. And he forbids any desire or attempt to seize the property of another. These principles were probably not new among the Hebrews. No community, however small, can hold together and perpetuate itself that does not have a certain minimum of custom or law controlling the members of the community in their relations one with another. Ben Jonson's remark, as reported by Boswell, is much to the point here: "Without truth there must be a dissolution of society. I remember this remark of Sir Thomas Browne's, 'Do the devils lie? No, for then Hell could not subsist.' This is, perhaps, putting too much emphasis upon one single virtue; but no community could exist without some degree of truth, honesty, courage, justice, and loyalty. The laws of nomadic groups among the Semites even today are simple and elemental, lacking in the complexity and finesse which so frequently characterize the laws of civilized nations. But simple as they are, nevertheless they are upon a relatively high level. M. H. Doughty, who spent several years in close contact with the Arabs of the desert, in speaking of their sense of justice says: Their justice is such, that in the opinion of the next governed countries, the Arabs of the wilderness are the justest of all mortals.

io

ORIGIN AND HISTORY OF HEBREW LAW

Seldom the judges and elders err, in these small societies of kindred, where the life of every tribesman lies open from his infancy and his state is to all men well known. Even their suits are expedite, as all the other works of the Arabs. Seldom is a matter not heard and resolved at one setting. When the accusation is grave and some are found absent that should be witnesses, their cause is held over to another hearing. The nomad justice is mild, where the Hebrew law, in this smelling of the settled countries, is crude. In the desert there is no human forfeit; there is nothing even in homicide, if the next to the blood withhold not their assent, which may not be composed, the guilty paying the amends (rated in heads of cattle). The Hebrew law excised the sores in the commonwealth, and the certainty of retaliation must weigh and prick in the mind of evil doers. The Bedawy has no more to fear before him than a fine afar off; he may escape all if his evil heart sufficeth him, only going from his own kin into perpetual exile.' Similarly in early Israel among the loosely related clans, the morality within each clan may well have been upon a relatively high level. There is nothing in the original form of the Decalogue, as suggested above, that may not have been generally accepted within the limits of each clan. This does not mean that in their relations with other clans and peoples they felt under the slightest obligation to apply the same principles which they observed among themselves. Indeed, even in a relatively late period of their own history the Jews drew a clear line of distinction between themselves and foreigners (Deut. 14:21; 15:2, 3). Hence in the primitive Decalogue it would be unreasonable to expect to find laws intended to be of universal scope. They were rather sharply restricted in their operation. The first commandment, for example, prescribed the recognition of Yahweh as the only God for

the group at large. Undoubtedly, nothing was implied I Travels in Arabia Deserta (3 d ed., 1923), I, 249.

THE DECALOGUE

II

as to the recognition or non-recognition of other deities within the circles of family and individual interests. The Decalogue's interest is in seeing that the Hebrew clans as a whole shall recognize no other divine leader than Yahweh. He and he alone is to be the God of the community at large. What Moses did in the field of legislation was to expand the area within which the laws of the Decalogue were to function. Whereas heretofore the members of any one clan had agreed among themselves that they would not steal from one another, now under the terms of the newly accepted Decalogue it is agreed that no member of the united clans shall steal from any individual within the circle of the united clans. Similarly, no one within the enlarged circle of the united clans shall kill any person within the same circle. And so with each of the commands of the Decalogue. The sphere of operation of these commands is still limited; but as compared with the previously existing situation, the sphere of operation for each of these laws is greatly enlarged. On a small scale Moses did for his people through the Decalogue just what Hammurabi did for Babylonia through the establishment of his code of law. When Hammurabi came to the throne of Babylonia he found the great commercial centers of the country each operating under its own system of customs and laws. He thereupon had a code of laws drawn up which should be authoritative throughout the area of the great Babylonian Empire. Hamnturabi's Code was not composed of entirely new laws, but included old laws already well known which were revised and made authoritative for the kingdom at large. This we know to be a fact, because we have now at hand fragments of the old

12

ORIGIN AND HISTORY OF HEBREW LAW

Sumerian laws upon which Hammurabi's Code was based. And yet, Hammurabi claims to have received this code of laws direct from Shamash, the god of justice, even as the Hebrew tradition represents Moses as having received his laws directly from Yahweh on Mount Sinai. This was quite a general attitude in the ancient world. The Cretans attributed their laws to Jupiter; the Spartans to Apollo; the Romans said that Numa wrote their laws at the dictation of the goddess Eg6rie; the Etruscans claimed to have derived theirs from the god Tages; and for the early Sumerians the laws were conceived of as coming from the god and goddess Hani and Nisaba.' The ancient Sumerians also, gave credit to the gods for the origin of their laws; Urulta-gina, king of Lagash, for instance, says that he received his laws from the god Ningir-Sin.2 The ancient Egyptians, on the other hand, constantly represent the king as the source of law; but the king himself was quite generally represented as a god; whether or not there was a clear distinction between deified kings and unseen gods is open to question; but to some degree, at least, the law in Egypt was given divine authority. These claims are to be understood as implying the help of the god in question in the compilation of the code under discussion. They are to be taken literally in no sense. Hammurabi, for example, used a well-known code of law as the basis of his new code; and yet he claims the authority of Shamash for his new code. Everybody knew when the I A. T. Clay, Miscellaneous Inscriptions in the Yale Babylonian Collection (1915), pp. i8 f.; De Coulanges, La citd antique (W 3 th ed., 18go), p. 221. 2 See Thureau-Dangin, Die sumerischen und akkadischen Kdnigsinschriften, p. 51; George A. Barton, The Royal Inscriptions of Sumer and

Akkad

(1929),

p. 81.

THE DECALOGUE

13

new code was issued that it rested upon and was a mere revision of the old Sumerian code. Hence Hammurabi could not have thought that he was deceiving the people; the evidence was too obvious. He merely meant to imply that he had been inspired and aided by Shamash in the compilation and organization of his new code. The same point of view must be presupposed to have lain behind the Hebrew claims in behalf of Moses. The desire was to ascribe the honor for the origin of the law to Yahweh, and so to lend weight and authority to the law itself. In ancient Israel Yahweh was given credit for the inspiration of men. There was no clear distinction between the religious and the secular. The world at large was the product of the activity of the will of the gods. Everything that men considered good they credited to the good will of a deity; and everything which seemed to them to be evil was charged up by them against evil spirits and demons-beings who in the last analysis were subordinate to the will of the gods. In the course of time, late in Hebrew history, these evil spirits and demons were placed under the control of Satan, the supreme devil. In a world like that there was no difficulty in admitting the authority of a new god. The world at that time was full of gods. Each nation had its own god; and it was no uncommon thing for a nation to exchange one god for another. It would seem that the Hebrews in the time of Moses accepted Yahweh as their group God. Having done so, it followed as a matter of course that he would be thought of as laying down a new law for them. The great need of their day was that the various clans which had recently come together politically should be bound more closely together socially and religiously. The Deca-

14

ORIGIN AND HISTORY OF HEBREW LAW

logue supplies just that need. It recognizes Yahweh as the one supreme God of the new league and binds the members all together in the exclusive acceptance of him as the God of the group. It then places all the members of the new league upon one common plane, making them all accept as the law of the league those principles which had doubtless been in force for some time as the controlling principles within the limits of each of the various groups. This was the great work of Moses. He bound the league firmly together in undivided allegiance to Yahweh; and he created in the league a brotherly feeling among the members so that they could all live together in peace and co-operate for the promotion of the common cause. This was no small or insignificant undertaking. It is quite natural that later generations should have looked back to this great leader with ever increasing admiration and have accredited him with actions and attributes to which he really had no claim. This was always the attitude of the ancient Orient toward its great leaders.

CHAPTER II THE COVENANT CODE The next bit of Hebrew legislation to be considered is the Covenant Code. This exists in two forms, one very short, viz., Exod. 34:17-26; the other more extended, viz., Exod. 20:23-23:33. This Code is incorporated in two of the documents which compose the Hexateuch: Exod. 34:17-26 in the J document, and Exod. 20:23-23:33 in the E document. These two documents arose in the latter part of the ninth century or the early part of the eighth century B.C., J being probably a half-century or so older than E. The Covenant Code, utilized by both documents in differing degrees, was quite probably, if not certainly, in existence already before the documents were written. The Hebrews first entered Palestine, as it would seem, in the fourteenth century B.C., since they are probably to be identified with the Habiri of the Tell-el-Amarna letters. A later contingent may have come in under Moses and Joshua at some time in the latter part of the thirteenth century B.C. This group seems to have settled in the south, while the early comers probably settled in the north and in the central part of the country. It is altogether improbable that they remained very long in the new home without some laws and customs controlling their social, economic, and religious life. It is not unlikely, therefore, that they began to formulate laws

I So Baentzsch, Das Bundesbuch (1892) Leviticus und Numeri (1903). 15

and Handkommentar zuExodus,

16

ORIGIN AND HISTORY OF HEBREW LAW

for themselves at least as early as the twelfth century B.C., They were naturally under the necessity of learning the arts of civilization from their Canaanite neighbors. They themselves having had experience only of desert and nomadic life would be helpless in this new and strange environment. By observation of Canaanite ways of life and work, and through co-operation with the Canaanites, they rapidly acquired the arts and crafts of civilized peoples. That this is not mere theory, but is in close harmony with the actual facts, becomes quite evident from a close study of the Covenant Code itself. The Mediterranean coast of Palestine and Syria had long been a prize coveted by the great powers of the ancient world. It has been aptly called the "bridge" between Asia and Egypt. The great power in ancient Asia was Babylon. Babylon and Egypt were for centuries rivals for world-dominion. Sometimes Egypt was in control of the bridge and sometimes Babylon. One of the great rulers of Babylon was Hammurabi, who reigned from 2123 to 2083 B.C. 2 One of Hammurabi's outstanding achievements was the issuance of a code of laws for his empire. This Code was in force throughout his broad domain. At that time Palestine was a part of the Babylonian empire and the Code of Hammurabi was in operation within its borders. The Hebrews, of course, having no extensive and inclusive code of their own, naturally 'A discussion of the dates of the various parts of the Covenant Code will be found in the following works: J. Morgenstern, The Book of the Covenant, I (1928), II (1930); and R. H. Pfeiffer, "The Transmission of the Book of the Covenant," Harvard Theological Review, XXIV, 99-109. 2F. X. Kugler's date in his Sternkunde und Sterndienst in Babel; cf. Olmstead, History of Assyria, p. 192.

THE COVENANT CODE

17

adopted the Canaanite Code, gradually changing, modifying, and supplementing it as their experience and needs dictated. This will be seen at once upon an examination and comparison of the two codes. That the Code of Hammurabi was heavily drawn upon by the makers of the Covenant Code has been known for years. One scholar writing in A.D. 1912 said, "It has been calculated that out of 45, or possibly 55, judgments preserved in this old Hebrew law [i.e., the Covenant Code] 35 have points of contact with the Hammurabi Code, and quite half are parallel."' The Covenant Code is arranged in five decalogues, each of which falls into two pentads. These five decalogues are (i) Exod. 21: 1-1i,laws regarding male and female slaves; (2) Exod. 21:12-27, laws concerning personal injuries; (3) Exod. 21: 28-22:4, laws regarding injuries by oxen; (4) Exod. 22:5-15, cases of arson and breach of trust; (5) the last decalogue as found in Exodus lacks its first pentad, which is preserved, however, in Deuteronomy, the later expansion and revision of the Covenant Code.3 The Code is concerned with sins against the family in its first pentad (Deut. 22:13-19) and in the second pentad with some sexual offenses (Exod. 22: 16-19). There are two hundred and eighty-two laws in the Code of Hammurabi, and only fifty in the Covenant Code. It is at once evident, therefore, that if the makers of the Covenant Code did make I So C.

H. W. Johns, The Relations between the Laws of Babylonia and 1912) (1914), P. 49; cf. S. A. Cook, The Laws of Moses and the Code of Hammurabi (903); George A. Barton, The Bible and Archaeology (1916), pp. 34o-68. 2 See L. Waterman, "Pre-Israelite Laws in the Book of the Covenant,"

the Laws of the Hebrew People (Schweich Lectures,

AJSL, XXXVIII, 36-54. 3 So L. B. Paton, JBL, XII (1893), 79 ff.

18

ORIGIN AND HISTORY OF HEBREW LAW

use of the Code of Hammurabi, they did not take it over as a whole, but merely made selections from it of such laws as met their needs. Furthermore, it is clear that the Code of Hammurabi was legislating for a much more advanced stage of civilization than was the Covenant Code. The statutes of the latter are much simpler than those of the former. The state of society for which Hammurabi legislated was much more complex than that for which the Covenant Code was prepared. In Hammurabi's Code at least three classes were recognized in society, viz., the noble, the freeman, and the slave. For each of these there was a separate standard of value and responsibility. In the Covenant Code the only distinction is between the slave and his owner. Furthermore, the provisions in the case of each law in Hammurabi's Code are much more detailed and elaborate and presuppose a much greater experience with the practices of an advanced social and economic order than is the case with the precepts of the Covenant Code. The laws of the two codes may now be compared. The decalogue regarding male and female slaves (Exod. 21:2ii) makes the following provisions. The male slave taken in payment of a debt goes free after six years' service. He shall go just as he came in, whether single or married. If he received a wife from his master and she bore him children, he must leave them all behind, if he goes free; he may, however, stay with them, if he so desires, in perpetual slavery. A female slave shall not go free as males do; but if her master does not like her, he may let her be redeemed, but may not sell her to aliens, since he has not I For the text of the Code of Hammurabi see the translation in Appendix II at the close of this work.

THE COVENANT CODE

19

treated her fairly; if he gives her to his son in marriage, he must treat her like a daughter; if he himself marries another, he must not diminish her food, clothing, or conjugal rights; if he fails in these respects, she must be released free. This evidently presupposes that such a slave is the owner's consort, or secondary wife. In the Code of Hammurabi there are twenty-one laws concerning slaves, as compared with a total of fourteen laws in the Covenant Code. The most striking difference between these is that the Hebrew law calls for six years' service from the male slave, letting him go free in the seventh year, while Hammurabi frees the male and female slave alike and after only three years of service (§ 117). The later Hebrew legislators realized keenly the severity of this rule, for when they reaffirmed the law in Deut. 15: 12-18 they called attention to the fact that the Hebrew should not begrudge freedom to his slave, for the latter "has worked six years for you at half the cost of a hired laborer." There is nothing said in either law about the amount of debt for which a man or woman might be sold into slavery; but the value of a slave was probably very well known in both cases, and in all probability the lender did not grant a loan of more worth than the man himself would bring if put on sale in the market. It would seem, therefore, that wages for service were higher in Hammurabi's day than when the Covenant Code was drawn up. The economic order in Hammurabi's time was on a higher scale than it was in Canaan when the Hebrew law was written. The scale of living was higher in the twenty-first century in Babylon than in the ninth or tenth century in Israel. The difference in the slave law at this point does not necessarily involve a higher estimate of personality on

20

ORIGIN AND HISTORY OF HEBREW LAW

Hammurabi's part than on the part of the Hebrew lawmakers. It simply means that in the fertile Babylonian plain the means of existence were more abundant than among the stony hills of Palestine, to say nothing of the differences in living costs that may have been brought about by a thousand years of time. It does not in any way reflect a more humanitarian attitude in Hammurabi's Code than in the Covenant Code. As a matter of fact, the situation in the two codes as a whole is precisely the reverse. The Code of Hammurabi is much the more severe of the two and uses the penalty of capital punishment to a much greater extent. In the case of the woman sold into slavery or seized for debt there was no release under ordinary circumstances. The reason for this was that she by becoming a slave automatically became a consort or secondary wife of her master and so became a part of his family. She would probably bear children to her master. In any case, at the end of six years of service, she would be so far along in years as to have little chance of marriage, especially since she would have no dowry. Hence to release her from slavery would be to send her out into the world with no means of support and to subject her to the fate of a woman of the street. The law, therefore, is in reality thoughtful and considerate of the female slave, if we take into account the conditions of life to which she was subject. Hammurabi's Code, on the other hand, releases the woman slave after three years of service just as in the case of the man. The shorter term of service as compared with the Hebrew rule makes this release a desirable thing in the case of a young woman without children. But that female slaves were often treated as concubines is clear

THE COVENANT CODE

21

from some of Hammurabi's laws which provide for maidservants with children (§§ i19, 137, 144, 145, 146, 170,

Another phase of the slave laws in the Code of Hammurabi, which is not represented at all in the Covenant Code, is the legislation regarding runaway slaves. From the number of laws of this sort in Hammurabi's Code it is clear that the escape of slaves was a common experience (§§ 15-20, 280, 281). The absence of laws of that kind in the Covenant Code is hard to explain. It is hardly likely that slaves did not attempt escape in Palestine; and if they did there surely must have been some customs or laws providing for the handling of them in such cases. The probability seems to be that the Covenant Code as it is preserved is not complete. There are other phases of the Hebrew life not entering into the Code that strengthen this conclusion. The marked absence of the ritualistic element is a case in point. The Hebrews of the ninth and tenth centuries B.C. certainly had ritualistic practices and officials, even though they are not mentioned in this Code. It appears, therefore, as though the writers of the J and E documents incorporated into their narratives only such elements of the Code as were of immediate interest and concern to them. The fact that they omitted certain sections of the recognized law and custom would in no way affect the continued observance of such laws and customs. The writers of these documents were mere historians, not legislators. The second decalogue of the Covenant Code (Exod. 2 1 : 12-27) deals with personal injuries. The Code of Hammurabi deals with the same class of offenses (§§ 195-214). The greater number of the laws in Hammurabi's Code is

22

ORIGIN AND HISTORY OF HEBREW LAW

due in part to the fact that the fine or penalty is graded according to the social and economic rank of the one injured. The first law of this group in the Covenant Code provides for the death of a man who strikes another a

fatal blow (Exod.

21:

i2).

If, however, he did not delib-

erately plan the murder, he may flee and find immunity at a sanctuary (Exod. 21:13); while if he did the deed with malice aforethought, nothing can save him from paying the penalty with his life (Exod. 21: 14). Hammurabi's Code provides for the same cases (§§ 206-8). If a man injures another unintentionally, he must provide the services of a physician; if the injured one die, the offender shall pay one-half mana of silver in case the victim was a noble, and one-third mana if he was only a freeman. No provision is made in the Babylonian Code for wilful murder. The Covenant Code also provides for the care of an injured man, arranging that the offender shall pay him for his loss of time while an invalid and shall "have him thoroughly restored to health" (Exod. 21: i8, i9). The Hebrews were probably not so familiar with the use of

physicians as the more highly civilized Babylonians, hence no reference is made to them; but the law is designed to provide against an injured man being compelled to go to work before he had completely recovered from his injury. The Covenant Code then inflicts the death penalty upon a son who strikes his father or mother (Exod. 21:15). The Babylonian law does not include the mother and limits the penalty to cutting off the son's fingers (§ 195), whether on one or both hands not being stated, though probably only on the hand that struck the blow. This reveals a greater regard for the mother in Hebrew law than in Babylonian, but on the other hand a

THE COVENANT CODE

23

more drastic and inconsiderate punishment of the son. The Covenant Code likewise imposes the death penalty upon anyone who kidnaps a man (Exod. 21: I6). The Code of Hammurabi has two laws on this subject, one providing the death penalty for the theft of a man's minor son (§ 14); the other imposing one-third mana of silver upon anyone who seizes a man for debt on false pretenses (§ 114). The Hammurabi Code goes into more detail and is more rational on this point. At this point in the Covenant Code as it now stands there occurs a law imposing the death penalty upon one who reviles his father or mother (Exod. 21:17). There is no parallel for this in

the Code of Hammurabi; and it appears probable that his law was added later to the Covenant Code.' It reflects Lev. 20:9; it is located differently in the Septuagint where it comes before verse 16, and it is superfluous in the structure of the pentad here. The next law in the Covenant Code is directed against the brutal treatment of slaves, declaring that if a master strikes his slave so as to produce death on the spot, the slave must be avenged; but that if he lingers for a day or two, he need not be avenged; the loss of his property is sufficient punishment for his owner (Exod. 21:20, 2i). There is no parallel to these laws in the Code of Hammurabi. Hence the Hebrew law here may be taken as a conscious attempt to improve upon the Code of Hammurabi, and the indefinite character of the penalty for the immediate slaying of the slave seems to point to a lack of definite experience with many such cases. The purpose of the law seems to have been a desire to restrain outbursts of temper against slaves. 1 So A. H. McNeile, Westminster Commentary on Exodus, ad loc.; Waterman, oP. cit., p. 37.

24

ORIGIN AND HISTORY OF HEBREW LAW

The present form of the Covenant Code continues with the case of the injury of a pregnant woman so that a miscarriage occurs and adds to this the general principle of lex talionis. In this case the husband of the injured woman fixes the fine to be paid by the offender. The Code of Hammurabi has six laws dealing with cases of this sort (§§ 209-14). They differ from the Hebrew law in that the penalty in each case is definitely fixed according to the rank of the injured woman. In case the injured woman dies, if she belong to the nobility, the daughter of the offender must also die; but if the injured woman belong to a lower rank, a cash penalty suffices for her death. The Hebrew law here also seems to be in part a later expansion of the Covenant Code.' The law regarding the pregnant woman may well have belonged to this pentad, but the expansion through the general statement of the lex talionis hardly seems in place, and it overburdens the second pentad of this decalogue. Dillmann, Budde, Baentzsch, Holzinger, and Driver in their commentaries on this passage all agree that verses 23-25 should follow verse 19 instead of verse 22. Would it not be simpler to eliminate verses 23-25 from the original text of the Covenant Code, and so restore the original decalogue form to this section of the Code? 2 The last provision of this decalogue is to the effect that the slave-owner who causes the loss of an eye or a tooth to his slave must free his slave on that account (Exod. 21:26, 27). The Code of Hammurabi does not contem-

ISo

Waterman, oP. cit., p. 37. The principle of the lex talionis finds frequent application in the Code of Hammurabi (§§ I6, 1g6, 197, 200, 210, 219, 229, 230, 231, 235, 2

263, 267).

THE COVENANT CODE

25

plate the possibility of a man doing damage to his own property, but does provide that a man who destroys the eye or breaks a bone of another man's slave shall pay the owner half of the slave's cash value (§ 199). The third decalogue of the Covenant Code deals with injuries by and to oxen (Exod. 21: 28-22:4). The Code of Hammurabi has three laws on this subject (§§

250-52).

These laws provide that if an ox kills a man there is no penalty for the first offense; but if the ox be known to be vicious and the owner has not tipped his horns, or tied him up, then the owner shall pay a half-mana of silver if the victim be the son of a noble; and one-third mana of silver if the victim be a slave. The Covenant Code likewise excuses the owner of the ox for a first offense, except that the ox itself is to be stoned to death and its flesh is not to be eaten. This seems to be a carrying-over of the practice of blood revenge into the animal realm. If, however, the ox is known to be vicious and its owner has been warned and has taken no heed, then both ox and owner must be put to death. The owner may, however, ransom himself by the payment of whatever fine may be imposed upon him. If the ox gores a slave, then the owner of the ox must pay the slave's master thirty silver shekels and the ox must be stoned (Exod. 21:28-32). The Hebrew law takes the female as well as the male under its protection, and is on the whole more severe upon the offending owner of the ox than Hammurabi's Code. While both codes agree that there is no penalty for the first offense, the Hebrew in reality does impose a penalty in that it demands the death of the ox, which would be a heavy loss to a poor man. Further, even in the case of a vicious ox the Babylonian law stops at a fine, while the Hebrew law

26

ORIGIN AND HISTORY OF HEBREW LAW

demands the death of both ox and owner, though it permits the owner to buy himself off. The Babylonian law does not demand the death of either ox or owner. The Covenant Code in its next law provides that if a man leaves a cistern uncovered and an ox or ass falls into it, the owner of the cistern must reimburse the owner of the animal with cash, but he may keep the carcass of the animal himself (Exod. 21:33, 34). The Code of Hammurabi has no such regulation, though the same principle is applied in case a man hires an ox and causes its death through neglect (§ 245). The Covenant Code then takes up the case of one ox goring another. If one man's ox kills another man's ox, the surviving ox is to be sold, and the proceeds divided between the two owners; and the carcass of the slain ox is also to be divided between them. But if the surviving ox was known to be vicious and its owner had not tied it up, then he shall replace the slain ox with a live ox, and keep the carcass of the slain ox himself. This, too, has no parallel in the Code of Hammurabi. The last law of this decalogue deals with cattle-stealing. If a man steals an ox, ass, or sheep and either kills it or sells it, he must restore five oxen for an ox and four sheep for each sheep. If he cannot do so, then he is to be sold as a slave in payment for his theft. If he keep alive upon his own premises that which he stole, then he shall restore twofold, whether ox, ass, or sheep (Exod. 22: I, 3b, 4).' The Code of Hammurabi has only one law covering such

I The law in Exod. 22:2, 3a concerning the killing of a burglar caught in the act is probably a later addition supplementing the law in vss. 1, 3 b; so Budde, ZAW, i8gi, pp. xo4-6; Holzinger,McNeile, and Driver, Comm., ad loc.

THE COVENANT CODE

27

matters, viz., this: "If a man steal ox or sheep, ass or pig, or goat-if it be from a god or a palace, he shall restore thirty fold; if it be from a freeman, he shall render tenfold. If the thief have nothing wherewith to pay, he shall be put to death" (§ 8). The fourth decalogue of the Covenant Code deals with cases of responsibility for loss of property (Exod. 22:515). The first and second cases deal with fire spreading from one man's field to another, in which case the man who kindled the fire must make restitution to his neighbor from the best of his own field for whatever damage has been done (Exod. 22:5, 6). The same principle is applied in the Code of Hammurabi in the case of damage by flood: "If a man neglect to strengthen his dyke .... and a break be made in his dyke and the water carry away the farm-land, the man in whose dyke the break has been made shall restore the grain which he has damaged. If he be not able to restore the grain, they shall sell him and his goods, and the farmers whose grain has been carried away shall share (the results of the sale)" (§§ 53, 54; cf. also H 55, 56). But Hammurabi makes no reference to damage by fire. The Covenant Code then takes up the case of goods which are intrusted to a man for safekeeping but disappear, in which case, "if the thief be not found, the owner of the house must be brought into the presence of God to determine whether he himself has not laid hands upon the other's property. In every case of breach of trust, whether it concerns ox, or ass, or sheep, or clothing, or any article at all that has disappeared, concerning which claim is made, 'This is it,' the case of both parties shall come before God; he whom God convicts must make twofold restitution to the other" (Exod. 22:7-9). The

28

ORIGIN AND HISTORY OF HEBREW LAW

same principle and method of procedure obtain in case of animals which are intrusted to another's keeping, but are stolen, or die, or are injured. The keeper takes oath of his innocence and need make no restitution; but if it were really stolen from him, he must make restitution; if it were torn by wild beasts, he need only exhibit the pieces of flesh (Exod. 22: 10-13). The last law of this group deals with the case of a hired animal for which, if it dies or be injured, its owner not being hired along with it, restitution must be made by the man who hired it; if the owner was also hired, no restitution need be made, but the hire must be paid in full (Exod. 22: 14, 15). The Code of Hammurabi has eleven laws dealing with agents and trustees. In general the agent, guardian, or trustee is held responsible for that which is in his care. In one case where the agent fails to deliver what was intrusted to him and takes possession of it himself, he must pay fivefold the amount given to him (§ 112). In the storage of grain, if the trustee seize the grain or raise a question as to the amount stored, the owner of the grain shall make affidavit in the presence of a god and the trustee shall double the amount of the grain he received and deliver it to its owner (§ 120). This method of leaving the decision to a god is employed in at least six cases in the Code of Hammurabi (§§ 20, 103, io6, 107, 120, 126, 249, 266). There are four cases of the same thing in the Covenant Code (Exod. 22:7, 8, 9, i1). In Hammurabi's Code, if an agent receives money from a merchant for trading purposes, he reckons the interest for the amount of time he holds the money and returns money and interest to the merchant (§ ioo). This was probably the general rule in such cases in Babylonia. If he is unsuccessful in his trade,

THE COVENANT CODE

29

he returns double the money to the merchant (§ ioi). If he meets with reverses, he returns the principal without interest (§ 102). If he is robbed of the money on the road, he takes oath to that effect and pays back nothing (§ 103). The agent must take receipt for the money he hands over to the merchant, and if he has no such receipt, the merchant need not credit him with the amount ( 104, 105). If the agent deny having received funds from his merchant, the latter can swear to the amount before God and witnesses and then the agent pays three times as much as he received (§ io6). If the merchant deny receiving from his agent, the agent can follow the same procedure and collect six times the amount from his employer (§ 107). When one man deposits valuables with another, he must take a receipt. If he does not, he has no recourse against the one with whom he deposited (§§ 122, 123); but if he can prove his claim against one who denies it, he shall collect double from the offender (§ 124). If a man deposit with another whose place is robbed, involving loss to both depositor and owner of the house, the latter must make good to the depositor what he has lost and shall then search for the thief and recover if he can (§

125).

If a man makes false claim of loss, he shall de-

clare his loss before a god and pay double the amount for which he made claim (§ 126). "If a man hire an ox and a god strike it and it die, the man who hired the ox shall take an oath before a god and go free" (§ 249). If a man lose ox or sheep intrusted to him, he shall restore ox for ox and sheep for sheep (§ 263). A shepherd who receives into his pasture oxen or sheep and is satisfied with his pay must see to it that the animals are kept in good condition and produce the normal increase; if not he must make

30

ORIGIN AND HISTORY OF HEBREW LAW

good the loss (§ 264). A dishonest shepherd shall pay back to the owner of the sheep or cattle tenfold the loss for which he is responsible (§ 265); but if a stroke of a god or a lion cause damage, he may assert his innocence before a

god and go free of penalty (§266).

The principle con-

trolling these cases is essentially the same in both codes. The fifth and last decalogue of judgments in the Covenant Code lacks its first pentad, which is preserved in

Deut.

22:13-25.

This group of laws deals with violations

of chastity on the part of husbands and wives. If a man marries a virgin, only to find that she is not a virgin, he shall prove his charge and she shall be stoned to death. If, however, his charge is unfounded, he shall pay a fine of one hundred shekels of silver to the girl's father and must keep his wife as long as he lives, having no power to

divorce her (Deut.

22:13-21).

This is without exact

parallel in the Code of Hammurabi. But this Code does handle the case of a woman being charged with adultery by her husband "and lets her off free of guilt if she takes oath to that effect in the name of a god" (§ 13'). If others than her husband make similar charges, for her husband's sake "she shall throw herself into the river" (§ 132). Further, "if a man point the finger at a priestess or the wife of another and cannot justify it they shall drag that man before the judges and they shall brand his forehead" (§ 127). The next law condemns to death both man and woman in the case of a man committing adultery with a married woman (Deut. 22:22). The Code of Hammurabi has the same law, except that it permits the husband to save his wife and the king to pardon the man (§ 129). The third law condemns to death both man and woman when a man and a betrothed virgin commit adul-

THE COVENANT CODE

3P

tery within a city (Deut. 22:23 f.). If, however, the attack upon the woman was in the open country where nobody was within reach of the woman's voice, the man only must die (Deut.

22:25).

The Code of Hammurabi

provides for the death of the man only, and does not differentiate between a case of this sort in the city and one in the country. The Code of Hammurabi, on the whole, is quite as severe on women as the Covenant Code, if not more so. The second pentad of this decalogue (Exod. 22:16-20) deals with sexual irregularities, sorcery, and worship of other gods. The first law compels a man to marry an unbetrothed girl whom he has violated and to pay the father the regular marriage price (Exod. 22: 16). If the father will not permit the marriage, the man must pay the regular marriage price just the same (Exod. 22: 17). There is no parallel in Hammurabi's Code to these two laws. The third law of this pentad condemns a sorceress to death (Exod. 22: 18). In the Code of Hammurabi it is decreed that if a man be charged with sorcery and the charge cannot be proved, the supposed sorcerer shall throw himself into the river, and if he drowns, his accuser shall seize his estate (§ 2). It is evident that such a law as this would make accusers exceedingly cautious before preferring charges, if they were at all conscientious. The fourth law of this final pentad in the Covenant Code condemns to death anyone having sexual intercourse with an animal (Exod. 22: 19). This has no parallel in the Code of Hammurabi; nor does the fifth and final law, which prohibits sacrifices to any god but Yahweh on penalty of death

(Exod.

22:20).

From this point on the Book of the Covenant changes

32

ORIGIN AND HISTORY OF HEBREW LAW

to adjurations or precepts, i.e., to commands and prohibitions to which no penalties are attached. The foregoing laws are probably the oldest elements in the Book of the

Covenant (Exod.

20: 23-23:33).

These precepts seem to

represent more advanced and more humane standards and also differ from the preceding judgments in that the religious interest now plays a dominant part in the text of the book. It is also noteworthy that aside from the injunctions regarding false witness (Exod. 23: 1) and bribery (Exod. 23:8), the admonitions of this section of the Book of the Covenant have no parallels in the Code of Hammurabi. For these two exceptions the Code of Hammurabi furnishes close parallels. False witness which involves capital punishment of the falsely accused person is punishable by death ( §§ i and 3). If a man bribes a witness in a case, he shall himself bear the penalty imposed in the case (§ 4). If a judge changes his decision, evidently through bribery, he shall be called to account for the change, and if he does not give a satisfactory reason, he shall be condemned to pay twelve times the penalty involved in the case and shall lose his seat as a judge (§ 5). The Covenant Code does not fix any penalty for these offenses, but is content merely to forbid them. The spirit and tone of this supplement (Exod. 22:2123:33) to the Covenant Code proper are distinctly those of the prophetic writers." There is a deep sympathy with the poor and a distinct effort to protect their interests. This expresses itself in various provisions regarding the ' On the date of this material cf. Wellhausen, Composition des Hexateuch (1893); Baentzsch, Handkommentar zu Exodus, pp- 5 7 f.; Holzinger, Kurzer Hand-Commentar (9oo); Dillmann, Exodus (i88o); McNeile, Exodus (go8); and Morgenstern, The Book of the Covenant (1928).

THE COVENANT CODE

33

oppression of resident aliens (22:21; 23:9) and widows and orphans (22: 22-24), the prohibition of interest on a poor man's debt (22:25), the taking of a poor man's coat in pledge and keeping it overnight (22:26, 27), and the perversion of justice in a poor man's case (23:6). Religious interests also are cared for. Respect for God and for rulers is enjoined in Exod. 22:28. Sacrifices and offerings are insisted upon (Exod. 22:29, 30), and the observance of three annual feasts is prescribed for all Hebrew males (Exod. 23:

14-17).

In the regulation regard-

ing sacrifice one provision raises an interesting question: "You must give me the first-born of your sons; you must do the same with your oxen and your sheep; for seven days it may remain with its dam; on the eighth day you must give it to me" (22:30). In the case of oxen and

sheep, "giving unto Yahweh" meant slaughter and sacrifice. Did the same practice obtain in the case of first-born sons? There is no indication here in the text itself of any difference in the treatment of the various types of firstborn. It is not improbable, indeed, that in relatively primitive times first-born sons were actually offered up to Yahweh as burnt-offerings. This is made altogether probable by the story of Abraham's intention to sacrifice Isaac (Gen.

22:

1-14). Even if this is not actual history

it is hardly likely that tradition would have attributed to Abraham an intention to do something wholly at variance with the established procedure of his day. Indeed, the story is told, in all probability, in order to bring out the fact that human sacrifice is not desired by Yahweh, since on a well-known occasion he intervened to prevent it and furnished an animal substitute. Though it probably was

34

ORIGIN AND HISTORY OF HEBREW LAW

an ancient custom among the Hebrews,' it is quite improbable that the writer of such humane and merciful in-

junctions as are in Exod.

should ever have

22: 21-23:33

included such a barbarous practice in his admonitions. As a matter of fact, this same provision as it appears in the J document distinctly permits the redemption from sacrifice of first-born sons (Exod. 34: 20). It is thus more than probable that for first-born sons the practice of sacrifice had fallen into abeyance and some other form of dedication had taken its place. Other religious precepts call for the observance of the Sabbath (Exod. 23: 12), the prohibition of the worship of other gods than Yahweh

(Exod. 23:13), the offering of first-fruits (Exod. 23: 19a), and the prohibition against boiling a kid in its mother's milk (Exod. 23: 19 b). The philanthropic spirit of these precepts rises to its highest level in Exod. 23:4, 5: "If you come across your enemy's ox or ass going astray, you must be sure to take it home to him. If you see the ass of one who hates you lying prostrate under its load, you must refrain from deserting him; you must be sure to help him get it up." There is nothing approximating this in the Code of Hammurabi, or in the judgments of the Covenant Code itself. A similar spirit manifests itself in the statement of the purpose of the Sabbath observance, viz., that the ox, ass, slave, and resident alien may rest and recuperate (Exod. 23: 12b). It also appears in the exposition of the purpose of the sabbatical year, viz., "that the poor of your people may eat of it and what they leave the wild animals may eat" (Exod. 23: i1). It is quite evident that the judg-

ments of the Covenant Code (Exod.

21: 1-22:

I Cf. the story of Jephthah's daughter (Judg.

I1: 29-40).

19)

are the

THE COVENANT CODE

35

oldest elements in the Book of the Covenant (Exod. 20:23-23:33). The religious and the humanitarian ele-

ments alike are conspicuously lacking here as they are in the Code of Hammurabi also. This earliest part of the Book of the Covenant was probably more or less directly influenced by the previously existing Code of Hammurabi. The material common to the two codes would seem to warrant this conclusion. Not that the Covenant Code was in any sense a mere slavish copy of the Code of Hammurabi. This is at once evident when it is noted how much material in the Code of Hammurabi does not appear at all in the Covenant Code. The makers of the Covenant Code made an eclectic use of the Code of Hammurabi. They selected from it such laws as they needed and could use effectively. They modified them to suit the situation in their own day and among their own people. In course of time they supplemented them with religious and philanthropic principles and practices of their own. Some of the later Hebrew supplements of the earlier nonreligious part of the Covenant Code are contained in Exod. 20: 23-26 (from the E document) and in Exod. 34:14-26 (from the J document). The laws in Exodus, chapter 34, originally seem to have formed a decalogue of their own. It is commonly known as the "Older Decalogue." This title implies that it is older than the Decalogue of Exodus, chapter 20, and Deuteronomy, chapter 5. But, as I have pointed out in chapter i, this opinion is open to serious question. This so-called "Older Decalogue" may be reconstructed thus: i. You must worship no other god [Exod. 34: 141. You shall make no molten gods [Exod. 34:17=

2.

20:231.

3. You must keep the feast of unleavened bread [Exod. 34: 18= 23:15].

36 4. 5. 6. 7.

ORIGIN AND HISTORY OF HEBREW LAW All that opens the womb is mine [Exod. 34:19=22:30. You may redeem your first-born sons [Exod. 34: 20b]. You must observe the Sabbath day [Exod. 34:21= 23:121. You must not offer the blood of my sacrifice with leavened bread [Exod. 34: 25= 23:18].

8. The sacrifice of the Passover must not remain over night [Exod. 34: 25= 23:181. 9. Your first fruits must be brought to the house of Yahweh [Exod. 34:26= 23:19a]. io. You shall not boil a kid in its mother's milk [Exod. 34:26= 23:19I].

This "Older Decalogue" is variously constructed by different scholars; but all agree upon the first two and the last four commandments as having belonged to it. It was first discovered in A.D. 1773 by Goethe. That it was not formulated until after the occupation of Palestine by the Hebrews is clear from the third and ninth commandments. These clearly show that the makers of this Decalogue were familiar with agricultural conditions and were legislating for them. When this Decalogue was incorporated in the J and E documents and in the Book of the Covenant, it was broken up and supplemented in various ways so that its original decalogue form was hidden from sight. That some of its legislation goes back to very early times appears from the closing command and from the eighth and fourth also. Some of the nomadic rites and customs were doubtless adhered to long after the Hebrews had left the desert behind them. The same sort of primitive practice appears in the law regarding the altar in Exod. 20:24-26. The altar of Yahweh must be of earth, not stone. But if stone be used, it must not be profaned by a chisel. The old idea evidently was that the Deity inhabited the rock or stone, and hewing of the

THE COVENANT CODE

37

stone was therefore prohibited. Likewise the altar must be without steps for the sake of decency. This shows how scant the clothing was in those early times. When the Covenant Code achieved its present and final form, it was in most of its regulations far ahead of the Code of Hammurabi, so far as religious and humanitarian qualities go. The Prologue of Hammurabi's Code makes great claims for the king himself. He describes himself as "Hammurabi, the exalted prince, the worshiper of the gods," whom the gods called "to cause justice to prevail in the land, to destroy the wicked and the evil, to prevent the strong from oppressing the weak, to go forth like the Sun over the black head race, to enlighten the land and to further the welfare of the people." He is the one "who brought about plenty and abundance"; and "filled the city of Ur with plenty"; he is also "the divine protector of the land, who collected the scattered people of Nisin; the exalted one who was untiring for the welfare of Ezida; who provided a hiding place for the people of Malka in their misfortune; who founded dwelling places for plenty; who helps his people in time of need; who made justice prevail and who ruled the race with right" and "caused light to go forth over the lands of Sumer and Akkad." He also says, "I established law and justice in the land and promoted the welfare of the people." Hammurabi continues in the same strain in the Epilogue to the Code, making great claims for himself and generously recognizing the contribution of the gods to his success and glory. But these philanthropic qualities and deeds which he not only claims for himself but also urges upon his successors do not find a large place in the Code. Nor does the religious spirit manifested in the Pro-

38

ORIGIN AND HISTORY OF HEBREW LAW

logue and Epilogue find expression in the Code to any extent. It must also be borne in mind that these praises of Hammurabi are praises sung by himself. Judging from the nature of some of them, it is safe to infer that Hammurabi's claims for himself far exceed reality. Furthermore, they are expressed in the most general and vague terms and cannot be pinned down to actual facts and interpreted in terms of action as can the precepts of the Covenant Code. The provisions attached to the Covenant Code are not laudatory epithets of any one person applied by him to himself, but are specific duties urged upon everybody as moral and religious obligations of primary importance. That they were taken seriously, and not as mere bombast, as in the case of Hammurabi's Code, is evident from the fact that these humanitarian and religious behests are handed down to later generations in Hebrew codes.

CHAPTER III THE DEUTERONOMIC CODE The next stage in the development of Hebrew law is represented by the Deuteronomic Code (Deuteronomy, chaps. 12-26). This is imbedded in the Deuteronomic document, viz., that element of the composite Hexateuch which was contributed by the Deuteronomic school of writers from which the Book of Deuteronomy came. The date of the Book of Deuteronomy has long been a matter of eager discussion. The modern historical school of interpreters is practically unanimous in assigning the Deuteronomic Code to the seventh century B.c., regarding it as having been the code of law discovered in the temple in the eighteenth year of King Josiah's reign (i.e., 621 B.c.) and as having been the law upon which Josiah's great reform was based (II Kings 22:3-23:27). This is

still the dominant view.' In recent years there have been some who have sought to make it the basis of Hezekiah's reform (II Kings 18:4), though admitting that it received additions at a later date.' A. C. Welch has worked hard to establish the origin of the Deuteronomic Code

I So, e.g., Carpenter and Battersby, The Hexateuch, I, 85-97; S. R. Driver, Introduction to the Literature of the Old Testament (1914), PP. 69-103; George F. Moore, The Literature of the Old Testament (1913), PP. 57-63; J. A. Bewer, The Literature of the Old Testament in Its Historical Development (1922), pp. 121-35; C. H. Cornill, Einleitung in die kanonischen Biacher des Alten Testaments (1913), P. 353; G. B. Gray, A Critical Introductionto the Old Testament (1913), pp. 31 f.; Lucien Gautier, Introduction d l'Ancien Testament (2d ed., 1914), I, 168 f.; A. R. Siebens, L'origine du Code Deuteronomique (1929). 2 E. Sellin, Introduction to the Old Testament (1923), pp. 741i. 39

ORIGIN AND HISTORY OF HEBREW LAW

40

in the tenth century B.C.' On the other hand, a few schol-

ars have sought to bring down the origin of this Code to an even later date than the seventh century B.C., making it a post-exilic production. These variations from the generally accepted point of view of Old Testament scholars have been adequately met already' and need not detain us now. Nor is it necessary to our subject that we should concern ourselves with the question as to the date of the various sections of the introduction to this Code, viz., Deuteronomy, chapters 1-11. 4 We may pass at once to the consideration of the contents of the Code itself.

I A. C. Welch, The Code of Deuteronomy (1924); idem, "The Two Descriptions of the Sanctuary in Deuteronomy," Expos. Times, XXXVI (1925), 442-44, and XXXVII (1926), 215-19; idem, "When Was the Worship of Israel Centralized in the Temple?" ZAW, XLIII

(1925),

250-55;

idem, "On the Method of Celebrating the Passover," ibid., XLV (1927), 24-29. Welch was preceded by T. Oestreicher, Das deuteronomische Grundgesetz (1923); idem, "Deut. 12: 13 f. im Licht von Deut. 23: 16 f.," ZAW, XLIII (1925), 246-49; and W. Staerk, Das Problem des Deuteronomiums (1924). 2 So G. Hlscher, "Komposition und Ursprung des Deuteronomiums,"

ZAW, XL (1922), 161-255; idem, "Das Buch der K6nige: Seine Quellen und seine Redaktion," Eucharisterion (1923), pp. 158-213; L. Horst, "Etudes sur le Deut6ronome," Revue del'histoiredes religions, XVI (1887), 28-65; XVII (1888), 1-22; XVIII (1891), 320-34; XXIII (1891), 184-200; XXVII (1893), 119-76. So R. H. Kennett, "The Date of Deuteronomy," Journal of Theol. Studies, 1906, pp. 481-500; idem, Deuteronomy and the Decalogue (1920). See also G. R. Berry, "The Code Found in the Temple,"

JBL, XXXIX (192), 44ff.; F. Horst, Das Privilegrecht Yahwesrechtsgeschichtliche Untersuchungen sum Deuteronomium (1930). 3 See William C. Graham, "The Modern Controversy about Deuteronomy," Journal of Religion, VII (1926), 396-418; J. A. Bewer, L. B.

Paton, and George Dahl, "The Problem of Deuteronomy," JBL, XLVII (1928), 305-79; K. Budde, "Das Deuteronomium und die Reform K6nig

Josias," ZA W, XLIV (1924), 177-224; J. B. Harford, "Since Wellhausen's Deuteronomy," Expositor, IX (1925), 323-49. 4

See the commentaries on Deuteronomy by Driver (1895), Steuer-

nagel (1898), Bertholet (1899), and Kbnig (1917).

THE DEUTERONOMIC CODE

The Code as a whole (Deut.

12:1-26:

41

15) may be out-

lined as follows: I. Religious Laws [12:2-17:7] i. The one lawful shrine [i2: 7-28] 2. Against the worship of other gods 3. Against pagan mourning practices

[12:29-13:

18]

[I4:1-2]

4. Clean and unclean animals [14:3-20]

5. Food improperly killed

[14:21a]

6. A kid cooked in its mother's milk [1 4

7. Tithes

[4:

:2ib]

22-29]

8. Release of debts and slaves [15:1-18]

9. Sacrifice of firstlings of cattle and sheep io. Three annual feasts [16: 1-17] ii. The Asherah and pillar [16:21, 22] 12. Sacrifices to be without blemish [17:1]

[15: 19-231

13. Against the worship of pagan gods [17:2-7]

II. Authorized officials [16: 18-20; 17:8-18:22] i. Judges [16:18-20; 17:8-13] 2.

The king

[17:14-20]

3. Rights of the Levites [18: 1-81 4. The prophets [18:9-22] III. Judicial methods [chap. 19 and

21: 1-9]

i. Murder and cities of asylum [19:1-131 2.

An untraced murder

[21: 1-9]

3. Landmark [19:141 4. The law of removal of witnesses [19:15-21]

IV. Military rules [chap. i.

The chaplain

20]

[20:1-4]

Exemption from service [20:5-8] 3. The captain [20:9] 2.

4.

The conduct of war

[20:10-20]

V. Family laws [21: 10-21] i. Marriage of female prisoners 2.

Primogeniture

[21:15-17]

3. Disobedient sons

[21:18-21]

[2

:10-I4

42

ORIGIN AND HISTORY OF HEBREW LAW

VI. Miscellaneous laws [21:22-22:12] i. Treatment of impaled criminals [21: 22-23] 2. Lost property [22:1-3] 3. Aid to fallen animals [22:41 4. Mother-bird to be spared [22:6, 7] 5. The battlement [22:8] 6. Mixtures prohibited [22:5, 9-12] VII. Laws against unchastity i. The bride [22:13-21]

[22:13-30]

Adultery [22:22] 3. A betrothed virgin [22: 23-271 4. An unbetrothed virgin [22: 28, 29] 5. Marriage with father's wife prohibited 2.

[22:30]

VIII. Exclusion laws [23: 1-8] i. Final-eunuchs, bastards, Ammonites, and Moabites [23:1-6]

2. Relative-Edomites and Egyptians [23:7-8] IX. Miscellaneous ritual and philanthropic laws [23:9-25:4] i. Ritual cleanliness of camp [23:9-141 2. Runaway slaves [23:15 f.]

3. Prohibition of religious prostitution [23: 17 f.] 4. Interest may not be taken from Israelites [23: 19 f.] 5. Payment of vows [23:21-23]

6. Grapes or corn of others [23: 24 f.] 7. Divorce and remarriage [24: 1-41 8. Newly married exempt from draft [24:51 9. Against seizure of millstone [24:6] io. Against man-stealing [24:71 ii. Against carelessness in leprosy [24:8 f.] 12. Receiving and restoring pledges [24: 10-131 13. Wage-earners [24: 14-151

14. Individual responsibility [24: 16] 15. Rights of foreigner, orphan, and widow [24:17-22] 16. Flogging of criminals [25: 1-31 17. Against muzzling a threshing ox [25:41

THE DEUTERONOMIC CODE

43

X. Miscellaneous laws [25:5-19]

Levirate marriage [25: 1o] Modesty in women [25:1', 12] 3. Just weights and measures [25: 13-16] 4. Amalek to be destroyed [25:17-19] i.

2.

XI. Ritualistic formulas [26:1-15] i. First-fruits [26:1-1I] 2.

Tithes

[26:12-151

Upon a closer examination of the contents of this Code it becomes evident at once that it is not a collection of wholly new laws. It is rather a revision and expansion of a previously existing code. That code was the Covenant Code which we have studied in the foregoing chapter. One-half of the subjects legislated upon by the Deuteronomic Code had already been treated in the Covenant Code. But in very few of these cases is the legislation identical in the two codes. In most of them the Deuteronomic Code shows marked divergence from the Covenant Code. The identical laws are the following: (i) the prohibition against cooking the kid in its mother's milk (Deut. 14: 2ib

= Exod.

23:

1 9 b and 34:26b);

(2)

the prohibition of kid-

napping (Deut. 2 4 :7=Exod. 21:16); (3) the duty of justice toward strangers, widows, and orphans (Deut. 24:17 f.=Exod. 22:21-24 and 23:9); (4) unleavened bread must be eaten for seven days during and after a feast (Deut. 16:3, 4, 8= Exod. 23:15 and 34: 18); (5) the flesh of the Passover must not be left over until the next morning (Deut. 16:4b=Exod. 2 3 :18b and 3 4:25b); (6)

the lex talionis (Deut. 19:21= Exod. 21:23-25). A comparison of the laws dealing with the same subject in the two codes will show the differences that have come in with the progress of time. At least two hundred years

44

ORIGIN AND HISTORY OF HEBREW LAW

passed after the adoption of the Covenant Code before the Deuteronomic Code was accepted by the people at large. Meantime much had happened and the prophets had done their best to interpret the course of events in such a way as to impress typon their hearers the need for a more spiritual religion and for a juster and more generous social behavior. They had made the social injustice of Israel responsible for most of its troubles. This preaching persisted in by prophet after prophet left its mark upon the legislation of Israel. In Exod. 22:31 the eating of flesh of an animal torn in the fields is forbidden; it must be thrown to the dogs. no animal that had died a Similarly in Deut. 14:2ia, natural death may be eaten; but it may be given to a resident alien, or sold to a foreigner. The year of release is provided for in Exod. 23:10, 11 and in Deut. 15:1-18. In the Covenant Code it applies only to the land which must be allowed to lie fallow every seventh year. In the Deuteronomic Code it has a much wider scope. Every creditor must forego what is due him in the seventh year. He may exact it of a foreigner, but not of his fellowcountryman. He is also warned not to shut his heart against a poor man, because the seventh year is at hand. This warning seems to point conclusively to the actual remission of debts in the seventh year,' and not merely to a postponement of payment for a year, as some interpreters would have us believe. This type of legislation, 'So in the Mishnah (Shebi'ith x. i), Philo de septenario (par. 8); Luther; Wellhausen, Prolegomena, p. 117; Bertholet, Deuteronomium, p. 47; Steuernagel, Deuteronomium, ad loc.; H. W. Robinson, Deuteronomy, ad loc.; G. A. Smith, Deuteronomy, ad loc.; and others. I The view that the seventh year provided merely a moratorium, a suspension of payment of debts for one year, has been held by John

THE DEUTERONOMIC CODE

45

of course, argues for a state of society not very far advanced in economic development. The loans referred to were probably not at all of the type familiar to the business world of today. They seem rather to have been charitable loans to the poor, and probably not of any great commercial value. Later Judaism found it necessary to devise ways and means of escaping the literal fulfilment of the requirements of this law.' Furthermore, while the law regarding fallow land, according to the Covenant Code, could be interpreted so as to allow the fields to lie fallow in rotation, one or more fields lying fallow each year in turn, this year of release, as worked out in the Deuteronomic Code, seems to have been a fixed period, coming once in every seven years. Otherwise there would be no point to the admonition not to allow the near approach of the seventh year to check their liberality and generosity toward the poor. In the Covenant Code the seventh-year remission as applied to land may have meant and probably did mean that each piece of land should lie fallow once in seven years, and not that all land should lie fallow at the same time, though the later law does presuppose this latter view. It is Calvin, Harmony of the Pentateuch, III, 154; Rosenmtiller, Scholiain Vetus Testamentum (1828); Dillmann, Commentary on Deuteronomium, ad loc.; Kanig, Das Deuteronomium, p. 130; Volz, Biblische Alterthitmer, p. 503; Oehler, Old Testament Theology (par. IV5, n. xo); Orelli, Herzog's Realencykloperdie (2d ed.), XIII, 168; S. R. Driver, Deuteronomy, ad loc.; and many others. ' See Mishnah (par. 8): Debts contracted on the basis of a pledge were exempt from remission in the seventh year; creditor would formally refuse to accept payment, but would relent and accept money as a gift. Hillel, in the first century B.c., instituted the itTTEI (Trpoo13oXj); the creditor and debtor signed an agreement before a judge in which the creditor was given the right to call in his loan at any time.

46

ORIGIN AND HISTORY OF HEBREW LAW

more than doubtful whether this Deuteronomic law calling for the release of debts every seventh year was ever anything more than a paper law, at least as far as ordinary commercial loans were concerned. In this connection it is noteworthy that in Jeremiah's time, only a little later than the adoption of the Deuteronomic Code, the slaveholders in Jerusalem wholly disregarded the duty of releasing slaves in the seventh year, releasing them only under the strain of a shortage of food brought about by the siege of Jerusalem, but at once reclaiming them when the siege was temporarily raised (Jer. 34:8-11). Hence it is quite probable that the law calling for the remission of debts in the seventh year was likewise ignored. The Deuteronomic Code requires that all firstlings of cattle and sheep shall be sacrificed to Yahweh (Deut. 15:19-23; cf.I7:i). The Covenant Code calls for the same thing (Exod. 22:29, 30; 34:19). But whereas the Covenant Code calls for the sacrifice on the eighth day after birth, the later code extends the period to a year. This is doubtless due to the fact that all sacrifices must now be made at the Temple in Jerusalem, a requirement which would be impracticable if a trip to Jerusalem were required within eight days after the birth of every firstling of cattle or sheep. The Deuteronomic Code also makes the further provision that no work may be done with any firstling ox and no wool be shorn from any firstling lamb, and that blemished animals may not be sacrificed, but must be eaten at home. The three annual pilgrimages or feasts are provided for in both codes (Deut. 16:1-17 and Exod. 23:14-17; 34: 18-20; 22-24, 25). In the Covenant Code the feasts are called the Passover, the Feast of Unleavened Cakes, the

THE DEUTERONOMIC CODE

47

Feast of First-Fruits, and the Festival of Ingathering. In Deuteronomy the feasts are the Passover, the Festival of Weeks, and the Festival of Booths. The Deuteronomic Code seems to combine the Passover with the Feast of Unleavened Cakes, making one feast out of the two. This also was doubtless due in part to the single sanctuary rule and was intended to decrease the necessity of so much travel. On the other hand, while the Covenant Code is content to call upon only the males to present themselves at the festivals, Deuteronomy requires the presence at the central sanctuary of the man, his sons and daughters, his male and female slaves, the Levites, the resident aliens, the orphans, and the widows. The old law is repeated verbatim (Deut. 6: 16) with reference to the necessity of the males presenting themselves at the sanctuary three times a year, but in the case of the second and third appearance the presence of practically everybody is required. The Passover victim may be a lamb or an ox, and it must be slain and eaten in the evening of the first day of the feast, nothing being allowed to remain over. In the morning the sacrificers may return to their homes, where no leavened bread may be eaten for six days, and the seventh day is to be a Sabbath in which no work may be done. Here appears the first trace of the effort to give the festivals historical significance. The Festival of Weeks is to remind them that they were once slaves in the land of Egypt, and the Passover is to be held on the new moon of Abib, since that was the date of the departure from Egypt. The Deuteronomic Festival of Weeks and Festival of Booths seem to be essentially the same as the Covenant Code's Festival of First-Fruits and Festival of

48

ORIGIN AND HISTORY OF HEBREW LAW

Ingathering. They came at the same season in both codes and call for the same sort of observance. Both codes prohibit the worship of pagan gods (Deut. 17:2-7 and Exod. 22:20; 23:13; 34:14). The punishment for such apostasy is in both codes alike-the offender loses his life, whether he worships the sun, moon, and stars, or gods of any other sort. Yahweh alone is to be worshiped. He brooks no rivals. The second section of the Deuteronomic Code deals with officials of various kinds, civil and religious (Deut. 16:18-20; 17:8-18:22). Judges are the first to be mentioned (Deut. 16: 18-20). The Covenant Code deals primarily with the giving of evidence and stresses the duty of justice to the poor. It impresses upon the court the

duty of judging justly and impartially for both rich and poor; and it prohibits bribery. The Deuteronomic Code has the same ideal in mind and adds nothing new, except the duty of appointing fair-minded judges for every community, and a provision that a doubtful case for which there is no precedent shall be carried up to the sanctuary in Jerusalem where it shall be laid before the priests. The decision of the priests is final and authoritative. Any man setting it aside or modifying it is to be put to death. The temple ministry is to be the supreme court of the land. Then come regulations regarding the king, the Levite, and the prophet, which are without parallel in the Covenant Code and will be taken up here later. The third section of the Deuteronomic Code deals with

judicial procedure (Deut.

19:1-21:9).

The first case to

be treated is that of murder (Deut. 19:1-13). In the Covenant Code the law regarding murder differentiates between accidental or unintentional manslaughter and

THE DEUTERONOMIC CODE

49

deliberate murder and vaguely refers to a place to which the innocent manslayer may flee for refuge (Exod. 21: 1214). The Deuteronomic Code presupposes the same distinction and accepts the Covenant Code's death penalty for deliberate murder; but it proceeds at once to arrange for three cities of refuge, situated at convenient points and distances throughout the land, and provides that when the boundaries of the promised land are extended the number of cities of refuge shall be doubled. It also provides for the expiation of a murder the author of which cannot be traced (Deut. 21: 1-9). In such a case the elders of the city nearest to the spot where the body was found must take a heifer that has never done any kind of work and break its neck in a valley with running water that has never been cultivated. Then the elders of the city in question, in the presence of the priests, shall wash their hands over the body of the heifer and take oath that the murder was not committed by them. An isolated law now appears forbidding the removal of a neighbor's landmark, such boundary marks having been taken over from the earlier inhabitants. This crime, of course, is equivalent to land-stealing. There is no reference to it in the Covenant Code. The method of procedure in the hearing of testimony is next considered (Deut.

19:

15-21). Here the Covenant

Code prohibits false, hearsay, and malicious testimony and warns against being wrongly influenced by the opinion of the majority or by the rich (Exod. 23:1-3). The

Deuteronomic Code declares that no single witness is sufficient to condemn a man of wrongdoing; there must be two or three. Then the case of a malicious plaintiff is taken up and the rule made that when there is suspicion

50

ORIGIN AND HISTORY OF HEBREW LAW

of such malice, the plaintiff and the defendant shall appear before the priests and the judges and undergo a thorough investigation. If his charge is shown to be false, then he shall undergo the penalty that would have been imposed upon the defendant had he been proved guilty. This is summarized by a statement of the lex talionis, which is carried over from the Covenant Code (Exod. 21:23-25).

The next section of the Deuteronomic Code deals with military affairs (Deuteronomy, chap. 20). There is no parallel to this in the Covenant Code. The next subject treated in both codes is the case of a refractory son. The Covenant Code decrees death for the son who strikes his parents or reviles them (Exod. 21:15, 17). The Deuteronomic Code does not consider such a case, but deals only with the stubborn and disobedient son, who will not heed his parents' instructions even when enforced with the rod. In such a case the parents must take him before the elders of their home town and make affidavit that he is disobedient, "a ne'er-do-well and a drunkard." Then the citizens of the town shall stone him to death (Deut. 21:18-21). It is a foregone conclusion that parents, knowing what complaint before the elders involved for their son, would resort to this court only in the most desperate and exceptional cases. In the sixth section of the Deuteronomic Code (Deut. 21:22-22:12)

there are incorporated half-a-dozen mis-

cellaneous laws, only two of which are represented in the Covenant Code. These are the provision that a straying animal must be taken up and returned to its owner, and if a beast has fallen under a burden, the passer-by must aid the owner in raising it to its feet again (Exod. 23:4,

THE DEUTERONOMIC CODE

51

5). The Deuteronomic law is a little more detailed and elaborate in both cases. The principle that a lost or straying animal should be restored to its owner is restated and elaborated to include lost articles in general and to provide that if the finder does not know the owner, he shall take care of it until the owner appears (Deut. 22:1-3). Nothing is said either in the Covenant or in the Deuteronomic Code about the question of defraying the cost of an animal's keep during the period of waiting. The law regarding the loaded animal is essentially the same in both cases. The only difference is that whereas it is "the ox or ass of one who hates you" in Exodus, in Deuteronomy it becomes that of "your fellow-countryman." That is to say, the regulation becomes more general and inclusive. The older law seems to take it for granted that under ordinary circumstances help would be forthcoming and treats therefore only the cases in which it would be withheld. The Deuteronomic law makes it obligatory upon everybody and leaves nothing to chance or good will. The next parallel in the two codes is the law against adultery and seduction. Adultery is prohibited, of course, in the Decalogue. This seems to be taken for granted in the Covenant Code, which deals only with the case of the seduction of an unbetrothed maiden, in which case the girl's father must be paid her worth in money. The Deuteronomic Code takes up the case of adultery and decrees death to both participants (Deut. 22:22). It also follows the Covenant Code in dealing with seduction; but it differentiates sharply between the case of a betrothed maiden and that of one not betrothed. In the case of the betrothed girl a further distinction is made: if the offense was committed in the city, the man and woman are both

52

ORIGIN AND HISTORY OF HEBREW LAW

put to death, the man for adultery (a betrothed girl being regarded as already a wife) and the woman because she could have saved herself from violation by calling for help but failed to do so. If the offense took place in the country, the man alone is put to death; the girl was beyond the reach of aid and could not save herself. In the case of the girl who is not betrothed the man must pay the girl's father fifty shekels of silver and keep the girl as his wife for life, not being allowed to divorce her (Deut. 22:23-29). These laws, it is clear, take no account of the girl's feelings; as long as she is unmarried she is treated merely as a piece of property belonging to her father, whose property rights must be protected; upon marriage she becomes her husband's property. The law prohibiting interest being charged on loans to Hebrews is the same in both the Covenant Code and the Deuteronomic Code (Deut. 23:19, 20=Exod. 22:24). But the Covenant Code limits the prohibition to loans to a poor Hebrew, while the Deuteronomic Code makes no such restriction. Further, the Deuteronomic Code specifically authorizes the taking of interest from foreigners. In the matter of taking pledges as security for a loan, the Deuteronomic Code goes beyond the Covenant Code. The latter merely prohibits keeping a man's cloak overnight, since otherwise he would have nothing with which to cover himself during his sleep (Exod. 22:26 f.). The Deuteronomic Code reiterates this precept, but also prohibits the taking of a handmill or upper millstone in pledge, since that would leave the family without means of preparing food (Deut. 24:6). It also shows delicacy of feeling in that it orders the maker of a loan to stay outdoors while the borrower enters his house to obtain the

THE DEUTERONOMIC CODE

53

necessary pledge for the loan (Deut. 24: 10, I). Such laws as this prove that the economic status of the average Hebrew was on a very low level at this time. There was a very narrow margin between him and starvation. The duty of treating resident aliens, orphans, and widows with justice, mercy, and generosity is emphasized by both codes (Deut. 24:17-22; Exod. 22:21-24; 23:9). But the Deuteronomic Code goes into more detail, and adds a prohibition against taking a widow's garment in pledge. It also decrees that the gleanings of grain field, olive orchard, and vineyard shall be left for these three groups to gather and enjoy. Thus in so far as the two codes cover the same ground, the Deuteronomic Code in general shows a greater hostility to foreigners, a greater elaboration of details of legislation, a more solicitous attitude toward the poorer classes, a readjustment of legislation to the new idea of the centralization of worship at Jerusalem, an increasing recognition of the authority of the priesthood, and a greater interest in the details of ritual. We may now turn to a consideration of the wholly new legislation in the Deuteronomic Code. The most important of the new laws is given the first place in the Code. It is the law requiring that all public worship and sacrifice shall be carried on at the central shrine, viz., the Temple in Jerusalem (Deut. 12: 2-28). The three annual feasts shall be celebrated there and the Levitical priests shall all have the right to function there. This reformation of worship was put through under the auspices of King Josiah in 621 B.C. It was apparently a fatal blow aimed at the worship of the Baalim. The local sanctuaries scattered throughout the land were originally

54

ORIGIN AND HISTORY OF HEBREW LAW

old shrines at which the local Baalim had been worshiped. The greatest fight that the prophets had to wage was against the continuance of the worship of the Baalim. The Hebrews coming into Canaan from the desert knew nothing of the practice of agriculture and had to learn it from the Canaanites. The Canaanites could teach it only as they themselves knew it; and with them it was always associated with the worship of the Baalim. Consequently, when the Hebrews learned it either by observation and imitation, or by being directly taught, they learned the practice of the Baalism which went hand in hand with it. This was all the more natural and easy because they had never thought of Yahweh, their own God, in terms of agriculture. He was the God of the desert and the nomadic life. It was the task of the prophets, therefore, to broaden and expand the idea of Yahweh in the people's minds, so that he might displace the Baals and take upon himself the functions of blessing the labors of agriculture. That this was no easy or simple matter is shown by the fact that the prophet Hosea, speaking in the middle of the eighth century B.C., from four to six hundred years after the entry of the Hebrews into Canaan, found it necessary to denounce Baalism and plead the cause of Yahweh as over against the Baalim (see Hos. 2:2-23). To turn the people away from their old Baalistic shrines and lead them to frequent the shrine of Yahweh in Jerusalem was the main purpose of the Deuteronomic Code. The closing of the local shrines all over the country was a great step and required an extraordinary situation to make it feasible. The requisite situation was brought

about by the invasion of Sennacherib in

701 B.C.

Sen-

THE DEUTERONOMIC CODE

55

nacherib tells us himself that in his invasion of Judah he besieged and took "forty-six of his strong walled cities, as well as the small cities in their neighborhood, which were without number.", This means that in every one of these cities all over the land the local sanctuary was desecrated or destroyed and its idols carried captive. This was a fatal blow at the prestige of these shrines and deities and prepared the way most effectively for the later reform. Not only so, but the city of Jerusalem escaped such treatment and the prestige of its Temple was correspondingly enhanced. The Deuteronomic Code did but legalize what had been largely accomplished by Sennacherib's invasion. This centralization of worship at Jerusalem was a most significant step in the life of the Hebrews. It was one of the marked successes of the ministry of the prophets. Not only so, but it involved significant changes in the life of the people. It was a very distinct move in the direction of unification of the various communities. The necessity of going to Jerusalem three times a year would do much to eliminate narrow provincialism. At the capital citizens from all over the country would meet and exchange experiences and observations. So the pilgrimages would do much to educate the people and unify them. Not only so, but centralization of worship also brought increased business and wealth to Jerusalem. The Temple staff was greatly increased. The priesthood at Jerusalem was given a monopoly of the control of worship and became with the progress of time exceedingly powerful and arrogant, being a segregated and privileged class. The ' See D. D. Luckenbill, Ancient Records of Assyria and Babylonia (University of Chicago Press, 1927), II, 120.

56

ORIGIN AND HISTORY OF HEBREW LAW

prestige of the Temple itself was tremendously enhanced. The town would become a central market for the purchase and sale of sacrificial animals, and business in general would be greatly stimulated by the coming of so many visitorsto the town. Moreover, the closing of the local shrines and the prohibition of all public worship outside of the Jerusalem Temple would deprive the countryside in general of all facilities for public worship. It meant the secularizing of the rural population. In taking away from the people the opportunity for frequent recourse to the local sanctuary, the danger was that religion would lose its hold upon the population at large. On the other hand, it furnished opportunity for the cultivation of an increasing inwardness of religious experience on the part of the genuinely religious people, who learned thereby to keep up their devotions without the stimulus of constant ceremonial worship. In this respect the reform was a preparation for the conditions of exile. There the people were deprived of all the old ceremonial surroundings and were on pagan soil. They were dependent upon themselves alone and upon their own inner resources for religious inspiration and instruction. This fact doubtless had much to do with enabling the Exilic community to maintain its high idealism and spirituality through the long trying years of their absence from home. The law of the single sanctuary is followed by a full statement of the prohibition of pagan worship in all its forms. Any teacher of such worship who tries to lure Israel away from Yahweh must be stoned to death (Deut. 12:29-14:2).

One statement in this prohibition is wor-

thy of note: If any pagan teacher offers a miracle in sup-

THE DEUTERONOMIC CODE

57

port of his false message and the miracle comes to pass, yet Israel shall not yield to his allurements and forsake Yahweh (13: 1, 2). Even a miracle, however extraordinary, cannot validate a lie. This is a remarkably brave statement and reveals penetrating insight for that day and age. It shows how loyal to Yahweh the Hebrew priests and prophets were, when we take into account that that was a time when miracles were whole-heartedly accepted and held in high repute. All the thought of that day was dominated by the supernatural tone. Yet even so, not even a miracle can prove a non-Yahwistic teaching or practice to be right. There follows in Deut. 14:3-20 a long list of clean and unclean animals. This is the first appearance of such a list in the history of Hebrew legislation. That is not saying that there never had been such practices before in Israel. In fact, it is practically certain that the usage of clean and unclean was of great antiquity. It merely means that the usage had long been taken for granted, but that now in order to establish uniformity throughout the kingdom an official list of clean and unclean is issued that all may know what the standard usage is. Whether or not there were any significant changes in the list introduced at this time we cannot say, since this is the first time the list appears. It is probable that this list was incorporated in Deuteronomy bodily from some older source, now lost. There is no single controlling principle discoverable in accordance with which an animal is classified as clean or unclean. It is probable that the list rests upon a group of principles among which would be sanitary considerations based upon a bird's, or animal's, repulsive appearance, or habits, and a fear of them as possible carriers of demons,

53

ORI GIN AND HISTORY OF HEBREW LAW

or evil spirits. No modern scientific sanitation or dietetics may be expected or found. Another important matter legislated upon in Deuter-

onomy is the payment of tithes

(14: 22-29).

This, again,

is a new thing in the land. Not that we may suppose that tithes were now required for the first time. As a matter of fact, the prophet Amos (4:4) refers to the practice of paying tithes; Jacob, also, is represented by tradition as volunteering to give Yahweh a tithe of everything Yahweh bestows upon him (Gen. 28:22= E); and the prophet Samuel is made to warn the Israelites that the king they ask for will take tithes of their flocks, etc. (I Sam. 8:15, 17).' Thus, it is clear that tithing was an ancient custom in Israel. The Deuteronomic Code makes it a legal matter for the first time. The law calls for the delivery of the tithes at the central sanctuary; but recognizing the inconvenience of driving live stock a long distance and transporting heavy loads, it permits the sale of the tithes and first-fruits; but the money received for them must be brought to the central shrine and there exchanged for anything the offerers desire, which must then be eaten at the shrine, the occasion becoming a family feast. On this occasion the Levite is not to be forgotten. Another new thing in the Code is the prohibition of the worship of the Asherah and the sacred pillar (Deut. 16:21, 22). These were part and parcel of Canaanitish Baalism. The Asherah was a tree or a pole, planted or set up beside the altar; it was a common element in Semitic worship, I The date of this chapter in Samuel is open to question; but that it reflects some experience with the monarchy is a foregone conclusion. IOn the Deuteronomic tithe see J. M. Powis Smith's article in the American Journal of Theology, XVIII (1914), 119-26.

THE DEUTERONOMIC CODE

59

the word having been found in Phoenician and old Babylonian. The pillar, or massebah, was likewise a Canaanitish object (cf. Exod. 23: 24; I Kings 14: 23; II Kings 3:2; 10:26 f;I7:I0; 18:4; 23:14). Several of these pillars have

been found at Canaanitish sanctuaries: ten of them were still standing when Gezer was uncovered by excavators; four were found at Tell-es-safi; others have been found at Beth-Shemesh, Taanach, and Megiddo.' It is as relics of Baalism that had been taken over into the Yahweh worship that these two things, pillar and Asherah, are condemned by the Deuteronomic Code. The "pillars" had already evoked the disapproval of Hosea (10: 2), and possibly of Micah (5:12).? But this is the first official, legal edict against them. It is one more evidence of the influence of the prophets upon the development of Hebrew law. In Deuteronomy, chapters 17 and 18, most of the legislation is new. The first new thing is the law regulating the conduct and attitude of the king. Quite evidently it is based upon experience, and that experience seems to have been derived from the reign of Solomon. At least, most of the things the king is warned not to do are the very things that Solomon did. The king must be a native Hebrew; he must not have many wives; he must not indulge in the horse trade with Egypt; nor must he pile up silver and gold. But he must be a diligent and constant student of the Deuteronomic law "as approved by the ' See P. S. P. Handcock, The Archaeology of the Holy Land, pp. 320, 334 f., 338 f.; George A. Barton, Archaeology and the Bible, pp. 185, 189; R. A. S. Macalester, Excavation of Gezer. 2Whether or not chaps. 4 and 5 were Micah's work is an open question; see "Micah," ICC.

6o

ORIGIN AND HISTORY OF HEBREW LAW

Levitical priests." These priests, in turn (Deut. 18: 1-8), are to have no land or property, but are to live upon the tithes and first-fruits and firstlings brought to the Temple. The priests' share in every animal sacrificed shall be "the shoulder, the two cheeks and-the stomach." Furthermore, any Levite may leave his local community and settle in Jerusalem, being entitled to share with the Jerusalem priests in all their rights and privileges. A postscript, as it were, to the law gives the Levitical priest also "his gratuities," whatever they were-a matter concerning which there has been much discussion.' The law regarding the prophet (Deut. 18:9-22) starts with the prohibition of magic, divination, sorcery, and Molech-worship (18:9-11). This is an expansion of the Covenant Code's edict against the sorceress who must be put to death (Exod. 22: 18). The Deuteronomic law prohibits the practice of these black arts, but names no specific penalty for the offender. But it goes on to define the work of the prophet of Yahweh. The law decrees death for the false prophet and the prophet of an alien god. Then in answer to the inevitable question "How are we to distinguish between the true and the false prophet?" it proceeds to furnish an answer that is of no value at all -to wit, the prophecy that is not fulfilled is not a prophecy inspired by Yahweh. This is a most surprising thing. The kind of prophecy here in the legislator's mind and in that of the questioner is predictive prophecy. But the purpose of such prophecies is to guide and determine

I See, e.g., Driver, Bertholet, and Steuernagel in their commentaries ad loc.; cf. Ehrlich, Randglossen, ad. loc., who regards 083W0 by as a gloss and to be read 1 b ,i.e., "concerning sorcery"; so also T. J. Meek, The Old Testament-An American Translation (1927).

THE DEUTERONOMIC CODE action at the time they are uttered. The people must decide either to do as the prophet advises or not to do so. They must act at once; they cannot await the outcome of the prediction. If they do, the prediction fails of its purpose and is wholly useless. Such a procedure practically puts the prophet out of business. It leaves nothing for him to do that is worth doing. Deuteronomy, chapter 20, is composed of rules regarding matters of war. A priest is to address the army prior to an engagement with the foe and encourage the soldiers by the assurance of Yahweh's co-operation. Then the officers shall excuse from participation in the battle four classes of soldiers, viz., (i) any who have built a new house and have not yet occupied it, (2) any who have planted a new vineyard and have not yet enjoyed its fruitage, (3) any who have become betrothed and have not yet been married, and (4) any who are afraid. All such may return home. Then the commanders of the army shall take the lead, at its head. The chapter closes with rules for the conduct of war. In the case of the siege of a city, it must be offered a chance to surrender. If it accepts, then its entire population shall become the slaves of the Hebrews. In case it refuses and is captured, every male shall be put to death, and the women, children, animals, and property shall become the spoil of the Hebrews. This is the procedure with cities far removed, but if close at hand, the entire population must be put to the sword in order that they may not be a constant temptation to Israel to accept their idolatrous worship. Two new laws appear in chapter 21. The first deals with the marriage of female prisoners of war

(21: 10-14).

If a man wishes to marry such a woman, he shall take her

62

ORIGIN AND HISTORY OF HEBREW LAW

to his house, where she shall discard her prison garb, bare her head, and cut her nails. She shall then mourn her parents for a full month, at the end of which she may be taken as his full wife. If he loses interest in her, she must be allowed to go absolutely free. Such an abandoned wife would be, so to speak, on the street, without any means of support and with an outlook anything but bright. However, the law makes no provision for her. She is a foreigner, left to the mercy of an unsympathetic public. The second law has to do with primogeniture (21: 15-17). Incidentally, it recognizes the legitimacy of polygamy. If a man has two wives, of whom one is much more beloved than the other, and if they both have children, but the first-born son belongs to the less beloved wife, that son, nevertheless, shall receive the heritage of the first-born to which he is entitled, and in no case shall it be given to the son of the beloved wife as long as the real first-born son is alive. The first-born son as such receives two-thirds of his father's estate. In section vi of the Deuteronomic Code there are four new laws. The first of these prohibits the leaving of the body of an impaled criminal unburied overnight (21: 22 f.). The second prohibits the seizure of the motherbird with the young ones; the offspring may be seized, but the mother must be released (22:6 f.). The third prescribes that when a new house is built, a parapet shall be built around the roof, so as to prevent falls (22:8). The fourth prohibits the mixing of alien elements; men and women may not interchange garments, a vineyard may not be sown with two kinds of seed, an ox and an ass may not be yoked together, a garment may not be made of wool and linen, and tassels must be worn on the four

THE DEUTERONOMIC CODE

63

corners of one's cloak (22:5, 9-12). The motives behind this group of laws are various. In the first case, it was probably to avoid polluting or cursing the land at large that the impaled body was ordered to be buried. Why the mother-bird should be released while the nestlings were seized is a difficult question. Certainly sympathy for the mother-bird played no part; perhaps the practical consideration that the mother-bird could go on laying and raising offspring had something to do with the case; or again, some ancient superstition may be responsible for the decision. A humanitarian motive evidently dictated the requirement of a parapet upon the square, flat roof of a house. The prohibition of exchanges in the case of men and women's clothing may have been due to a desire to discourage certain licentious pagan practices current among neighboring peoples. The refusal to permit yoking of ox and ass together, or the mingling of different kinds of seed, is another law with no known reason behind it." The same thing is true of the wearing of tassels. In section vii of the Code (Deut. 22:13-30), dealing

with questions of chastity, there are but two new laws, the first and the last. The section opens with the case of the bride (22: 13-21). If her husband makes the charge against her that she was not a virgin when he married her, and fails to prove his charge, then he must pay her father a hundred shekels of silver and keep the wife as long as she lives. If, however, the charge against the wife be proved, then she must be taken out by the men of the city to the door of her father's house where she shall be stoned to death. The law closing the section forbids a man marrying one of his father's wives. This again pre' Cf.

Ort, Theologisch Tijdschrift, 1898, p. io9; ibid., 1900, p. 286.

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ORIGIN AND HISTORY OF HEBREW LAW

supposes polygamy, and, of course, excludes the son's own mother. It applies only to families sufficiently well to do for the father to have two or more wives. In the case of such families the father often took on a young wife after his first wife had become somewhat advanced in years. Hence it not infrequently happened that the new wife and the son of the first wife would be of approximately the same age and would prove mutually attractive. Hence this prohibition. Section viii of this Code takes up the question of the right to membership in the Hebrew community through marriage (Deut. 23: 1-8). This right is denied to eunuchs, bastards, Ammonites, and Moabites down to the tenth generation. In the case of Edomites and Egyptians, however, their children of the third generation may marry into the community of Yahweh, the Edomites being kinsmen of the Hebrews, and the Egyptians because Israelites were once resident aliens in their land. This feeling of estrangement or hostility toward foreigners in general is evinced in several cases in the Deuteronomic Code and seems to have been characteristic of the age in which it was produced. Section ix of this Code (Deut. 23:9-25:4) contains seventeen laws, of which twelve appear here for the first time. The section is composed of a miscellany of ritualistic and philanthropic laws. The first law, a new one, arranges for the ritualistic cleanliness of the camp (23:914). Any man who has incurred uncleanness by night must remove himself outside of the camp when he arises and stay outside until sundown, when, after bathing, he may return to the camp. Furthermore, all human excrement must be deposited in one place and buried there.

THE DEUTERONOMIC CODE

65

Only if the camp be thus kept "clean" can the co-operation of Yahweh be counted upon. The next new law commands Israel to receive and treat kindly any runaway slaves that may come to them from other countries (Deut. 23: 15 f.). They are not to be

surrendered to their owners, nor shall they be oppressed. This reflects some consideration for the slave; but two other motives, probably, also entered in, viz., the desire to get something for nothing and the feeling of hostility toward foreigners in general. In Deut. 23: 17 f. the practice of religious prostitution is prohibited for Israel. Religious prostitution is for us, of course, a contradiction in terms. The one excludes the other. But it was not so in the ancient world. The very words for "prostitute" used in this enactment are qadsh and qedishdkh. These two words are the masculine and feminine adjectives, respectively, made from the Hebrew root qdsh, from which the words qddesh, "holiness," and miqdash, "holy place" or "sanctuary," are derived. A qadish, or qedishah, then, is a man or woman dedicated to the service of the god or his shrine. The kind of service rendered by these people was in gratifying the lust of men and women who came to the shrine for the purpose of obtaining such service. This was a common thing at the Baalistic shrines, and was a recognized element in the nature worship of the East. Against this sort of thing the Deuteronomic Code sets itself firmly and forbids bringing any of the gains of such service as votive offerings to the temple of Yahweh. Such offerings were all too well known in the shrines of non-Hebraic deities. This again is one of the practices that the eighth-century prophets had denounced (see Amos 2:7, 8; Hos. 4:14).

66

ORIGIN AND HISTORY OF HEBREW LAW

Then come brief laws enforcing the necessity of the prompt payment of vows (23:21-23), permitting the plucking of a little fruit or grain in a neighbor's vineyard or field (23:24 f.), forbidding a husband who has divorced a wife from ever taking her back again, if she has meantime married another man and he has divorced her or has died (24: 1-4). The law earlier in the Code (Deut. 20:7)

exempting a betrothed, but unmarried, man from war service is now modified or supplemented so that the newly married man is exempt for a full year from service in war (24:5). This doubtless has in mind the poor or average man who has to be satisfied with but one wife, and hardly applies to the man who can afford three or four wives. Interest in public health is displayed in Deut. 24:8 f. Here stress is laid upon the necessity of conforming to the rules laid down by the Levites for all cases of leprosy. Solicitude for the needs of the poor man is shown in 24: 14 f., where the employer is directed not to cheat his

employee, but to pay him wages for his day's work before the sun sets, whether he be a Hebrew or a resident alien, that he may have wherewith to provide for his bodily needs. In 24: 16 the principle of individual responsibility is recognized: There can be no such thing as a father being put to death for his son, or vice versa; each one must bear his own penalty. This law was in all probability one of the latest additions to the Deuteronomic Code.' Ezekiel seems to have been the first to formulate and give expression to the principle of individual responsibility

I So Bertholet,

Deuteronomium, p. 76; Hesekiel, p. zoo; Carpenter and

Battersby, op. cit., II,

284;

Problems (1914), chap. vii.

cf. J. M. Powis Smith, The Prophet and His

THE DEUTERONOMIC CODE (Ezek.

3:16-21; 14:12-23; 18:4-20).

67

The origin of the

Deuteronomic law probably lies in his preaching, which fact points once more to the influence of the prophetic preaching upon the progress of legislation. The last two laws of this section of the Code are humanitarian and merciful. If a guilty man receives a sentence of flogging, it shall be executed in the presence of the judge. The number of strokes shall be in proportion to the seriousness of the offense; but in no case shall more than forty strokes be inflicted (25:1-3). Kindness to animals is expressed in the requirement that the ox used in threshing shall not be muzzled, but be left free to snatch a mouthful as he may (25:4). The last section of the Code (25:5-19) contains four

laws dealing with as many different subjects, three of which appear in legislation here for the first time. The first law handles Levirate marriage (25:5-10). In a case where one of two brothers dies leaving a widow but no son, the surviving brother must marry the widow and name the first son born of this marriage after his deceased brother. If, however, the surviving brother refuses to enter into this marriage, he shall be haled before the court and reasoned with; in case he still persists in his refusal, the widow shall pull the sandal off his foot in the presence of the elders, and shall spit in his face; and the memory of this churlishness shall be perpetuated as long as the man lives. This is followed immediately by a law directed against immodest action on the part of women (25: ii f.). The Code proper closes with a law prohibiting

any juggling with weights and measures (25: 13-16). This law, certainly, was not enacted for the first time as late as the Deuteronomic reformation. The exigencies of trade

68

ORIGIN AND HISTORY OF HEBREW LAW

and business would bring up the need of this kind of a law very early in the course of a business experience, and doubtless something of this sort must have been written or unwritten law long before the origin of Deuteronomy or its Code. This law appears also in the Holiness Code (Lev. 1 9 : 3 5 f)It should always be borne in mind that codification is the final stage in the history of any law. Codes as a rule do not spring into existence overnight. It is not until individual laws have become so numerous and so conflicting that the necessity for an ordered code arises. The individual precepts are the outcome of experience and of custom. Repeated cases of the same type establish a precedent which becomes law. Firmly established customs are also elevated into laws. The code is the finished product of years, and perhaps generations, of experience. Consequently, much of the Deuteronomic Code probably was the established law of the land long before it was organized into a code. Those changes which were evidently due to the centralization of all worship at Jerusalem were, of course, not conceived of until that centralization had taken place. The Deuteronomic Code is a revision and expansion of the Covenant Code. It reflects in some degree the progress in the social, economic, and religious life of Israel through the centuries which intervened between the two codes. This Code itself is given a homiletic setting and background. It is presented in the form of an address or a sermon. The introduction (chaps. i-ii) is homiletical from start to finish in both spirit and style. This homiletical manner is carried over, in some parts particularly, into the body of the Code. Many of the laws have a dis-

THE DEUTERONOMIC CODE

69

tinctly homiletical setting. The motive or reward of obedience is persuasively stated, or the threat of penalty for disobedience or negligence is forcefully presented. The underlying theory of this Code as also of the whole history of pre-Exilic prophecy is that piety brings prosperity, and that adversity and disaster are brought about by disobedience and sin. The law has behind it the divine sanction; to do as the law requires is to merit the favor of Yahweh; to set the law at naught or to ignore it is to be disobedient to or neglectful of Yahweh, and will bring upon Israel his wrath. Prosperity and adversity therefore are directly traceable to the people's character and conduct. They will get what they deserve. This was an exceedingly simple and easy diagnosis of a nation's experience. But the progress of events in the course of time brought forward many new facts which were hard to classify under these headings. This was especially the case with the history of individuals. Consequently, it became necessary to search for a new interpretation of the problem of suffering. Such an attempt is made first of all by the authors of Isaiah, chapters 40-55, in the "Servant Songs," and later by the author of the Book of Job. But the controlling principle in legal provisions has remained essentially the same down to the present day. Conformity to the law is commendable; violation of law is an offense against social well-being and must be punished.

CHAPTER IV THE HOLINESS CODE The name "Holiness Code" is applied to the body of laws contained in Leviticus, chapters 17-26; Exod. 31: 13-I4a; and Num. 10:9; 15: 3 8b- 4 i. This name was

first given to this group of laws by Klostermann in A.D. 1877, though it had been recognized as a separate group for some time previously. The evidence pointing to its one-time separate existence as a code is quite convincing. The summary in Lev. 26:46 clearly indicates that this is the end of a presentation of the so-called "Sinaitic laws." The preceding passage, Lev. 26:3-45, is of the same sort as the concluding exhortation of the Deuteronomic Code (Deuteronomy, chap. 28), and also like that concluding the Covenant Code, viz., Exod. 23:20-33. The opening of the Code in Leviticus, chapter 17, deals with the same question as the opening of the Deuteronomic Code and that of the Covenant Code. All three codes take up first of all questions having to do with the altar and sanctuary. Furthermore, there are within these chapters themselves (Leviticus, chaps. 17-26, etc.) certain characteristics which tie them together and mark them off from the rest of the materials in the P document. The Code gets its name from the fact that the dominating idea of the whole law is that of the holiness of God. Repeatedly is emphasis laid upon the importance and necessity of Israel's preserving and guarding this holiness (Lev. 18:2-5, 24-30; 19:2-4,36;20:22-26;22:31-33). The phrase "IamYah70

THE HOLINESS CODE

71

weh" is frequently repeated, though it does not appear elsewhere in the laws of the P document with anything like the same frequency. Many words and phrases which do not occur elsewhere in the legal literature are found in the Holiness Code.' The fact that this Code repeats not infrequently laws found in other codes, especially the Covenant Code and the P Code, is also indicative of its independent character. The fact that there are several repetitions within the Code itself seems to point to its having been compiled from previously existing groups of law. The question of the relationship between Ezekiel, chapters 40-48, and the Holiness Code must also be considered. The identity in some cases and close similarity in others of both expression and idea in this Code with corresponding expressions and ideas in Ezekiel have long been recognized. That each arose in complete independence of the other is wholly improbable. Which exercised the formative influence upon the other? This question will be dealt with in more detail when we come to the presentation of Ezekiel, chapters 40-48. But, in general, we may now say that, upon the whole, the Holiness Code seems to have been first in the field. There are several laws in this Code that bear the marks of antiquity and cannot be accounted for as having first arisen in exile. Not only so, but it is also true that Ezekiel himself belonged to the priestly class and was therefore in a position to be thoroughly acquainted with all the laws current in his time. His interest in this sort of thing is quite evident See S. R. Driver, Introductionto the Literatureof the Old Testament, pp. 40 f., and Carpenter and Battersby, The Hexateuch, I,

thirty such phrases are listed.

220

f., where about

72

ORIGIN AND HISTORY OF HEBREW LAW

from the fact that his ideal scheme for the future is presented in the form of a body of legislation intended for that ideal time (chaps. 4o-48). It is altogether probable, therefore, that he had become very familiar with the Holiness Code as it existed in his time and that his thinking and preaching were strongly colored by it in both form and thought. Ezekiel, having been brought up in priestly circles, was soaked in the priestly atmosphere and environment. This appears throughout his message and comes to full expression in his legislative program. The date of the codification of the Holiness Code is unknown. But that it was later than the Deuteronomic Code appears certain. It assumes everywhere throughout its body of laws that all worship and sacrifice are carried on at the central sanctuary, as is required for the first time by the Deuteronomic Code. Yet that there are old materials incorporated in the Code is also true. For instance, the Feast of the Passover and the Feast of Unleavened Bread are regarded as two distinct festivals, following close upon each other, and are not combined into one feast as is done in the Deuteronomic Code. The priests are described as "the sons of Aaron" and not as "the sons of Zadak" as is done in Ezekiel, nor as "the sons of Levi" as is done in Deuteronomy. Not only does this Code contain old materials, but it also has been added to by late hands, perhaps at the time when it was incorporated into the P document as a whole. These matters will be pointed out in detail as the Code is examined more closely.

The contents of the Code may be classified as follows: i. All sacrifice must take place at the sanctuary [Lev. 17: 1-9] 2. No one may eat the blood of an animal or bird [Lev. 17: io-i6;

cf. 19-26]

THE HOLINESS CODE 3. The control of sexual relations [Lev.

73

18:6-23; 20:10-21]

4. Miscellaneous moral and religious laws [Lev. 19: 2-36]

5. Prohibitions of Molech-worship, etc. [Lev. 20: 1-9] 6. Rules to be observed by the priests [Lev. 21:1-23;

22:

1-16]

7. Regulations regarding sacrificial animals [Lev. 22: 18-3o] 8. Laws for the fixed festivals of Yahweh [Lev. 23:10-20, 39-431 9. Capital crimes, etc. [Lev. 24:15-22] io. The law for the sabbatical year [Lev. 25:2-7, 17-22] ii. The prohibition of idolatry and Sabbath-breaking [Lev. 26: 1-2; Exod. 31: 13, 14a (?)] 12. Tassels must be worn on the corners of garments [Num. I5:38b41]

The one thing that stands out as the distinctive characterization of this Code as a whole is its predominantly religious quality. Of its twelve sections, only two, the third and fourth, deal with the secular aspects of life in any degree, and these two present these secular interests from a religious point of view. The rest of the sections handle exclusively religious matters, and a large percentage of these matters may be called ritualistic, formal, or ceremonial. In section i of this Code (Lev. 17: 2-9) the law is laid down that all killing of animals for food is in essence sacrificial and must take place at the central sanctuary. It is freely acknowledged that heretofore the people had been "accustomed to sacrifice in the country at large," and to "offer sacrifices to satyrs." Henceforth all such practices are prohibited, the penalty for the violation of this prohibition being excision of the offender from the Hebrew community. The Deuteronomic Code had specifically exempted the slaughter of animals for food from the sacrificial requirement here insisted upon (Deut. 12:15). This, therefore, would seen to be a tightening-up of the Deuteronomic requirement. Apparently, when slaughter of

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animals for food had been permitted throughout the country, certain pagan practices had crept in and become a part of the action, and this law seeks to eliminate those practices (17:7). Sacrifices to the satyrs had been abolished in Josiah's reformation (II Kings 23:8), but seem to have come back again into the popular worship. Apparently, the lawmakers did not lay much stress upon the question of the convenience or inconvenience to the public in general. It would, certainly, have been impractical for Jews from far-distant parts of the land to have brought all their animals to the central sanctuary for sacrifice, before they could use them for food. Apparently, at the time this law was issued the community was confined to a small area in immediate proximity to Jerusalem. Even so, such a requirement would be a heavy burden upon the householder in the country. The last two verses of this passage demand that every burnt-offering or sacrifice, brought by Hebrews or resident aliens, shall be offered at the central sanctuary, with the same penalty for nonconformity to this requirement. Closely related to this law is that expressed in section ii (Lev. 17:io-i6). This requires that the blood of every bird or animal slain for food shall be sacrificed to Yahweh. If it be slain at the sanctuary, in accordance with the foregoing law, the blood is to be placed upon the altar; but if it be slain in hunting, then the blood must be poured out and covered with dust. The blood belongs to Yahweh, and makes atonement to him; no one who wishes to remain a member of Yahweh's community may eat it. What is meant by "eating blood" seems to have been the custom of eating flesh before the blood had been drained out of it; it is sometimes called "eating the flesh with the

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blood." This is an old, long-established law (see Gen. 9:4; Deut.

12:

16-2 3 f. - 14:32-34; I Sam. 15:23).- Anyone who

eats an animal that has died a natural death or has been slain by another animal becomes unclean till evening, when if he washes himself and his clothes in water he becomes clean again. The third section of this Code (18:6-23; 20:10-21) lays down the limits of family relationship within which a man may not marry. We are given the list of forbidden connections twice over. The two lists are almost, but not quite, identical. The prohibited relations common to both are (i) any one of one's father's wives, (2) a sister,

(3) a half-sister, (4) an aunt on either side of the family, (5) an uncle's wife, (6) a daughter-in-law, (7) a sister-inlaw, (8) a step-daughter while her mother is living. In addition to these, the first list includes (9) one's mother, (io) an illegitimate sister, (ii) a grandchild, (12) a mother and her granddaughter as well, (13) one's wife's

sister while the wife is alive. This last rule is in striking contrast with the precedent set by Jacob, who married the two sisters Rachel and Leah, who caused him plenty of trouble. The main difference between the two lists lies in the fact that in chapter 18 such marriages are simply forbidden, whereas in chapter 20 they are not only forbidden, but also severely penalized. In most of the cases the penalty is the death of both man and woman. If the marriage is with an uncle's wife or a brother's wife, they shall die childless. The rabbinical tradition interprets the term "childless" as meaning, not that no children will be born of the marriage, but rather that the children will die before their parents do. The law apparently means that ' It is repeated in this Code in

19:

26.

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ORIGIN AND HISTORY OF HEBREW LAW

a man may not marry his brother's wife or widow, or the wife or widow of his uncle. That means conflict with the Deuteronomic law of Levirate marriage, which enjoins upon a man the duty of marrying his brother's widow, if the brother has died childless; and of giving the first child born of this marriage the brother's name. The probable motive behind this prohibition was the desire to root out every trace of ancestor worship, which the Deuteronomic law, by its provision for Levirate marriage, encouraged. This is not the only case in which the Holiness Code advances upon the Deuteronomic Code. Unnatural sexual relations, between one man and another, and between animals and human beings, are also forbidden on pain of death to both participants. The only addition to the prohibitions of the first list that is made by the second is the prohibition of cohabitation with a menstruating woman. In this case both participants are to be "cut off from their people," whatever that may involve (21: 18). The duplication of this section seems to point to the composite character of the book. It is not at all likely that one writer would so closely repeat himself. It would seem rather that the editor or editors gathered collections of laws from various sources and incorporated them into this Code. Why the editor should have incorporated two bodies of material so much alike is an open question. Perhaps it was to propitiate two separate groups; or it may have been due to a desire to obtain all that was in each document, on the one hand, and, on the other hand, a shrinking from the task of dissecting the two documents and reconstructing a new document out of the remains. In 20: 25 there is a reference to the usage of clean and

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unclean. This, probably, presupposes lists of clean and unclean animals such as we have in Leviticus, chapter i i, knowledge of which is taken for granted. At any rate, no such list appears in the Holiness Code as it now stands. The fourth section of the Code presents various moral and religious laws (19: 2-36). This section likewise points to the composite character of the Code. The heterogeneous nature of the contents and the variations from singular to plural and vice versa alike point to origin from different and various sources. The first paragraph includes four of the laws of the Decalogue in its later form, viz., the first, the second, the fourth, and the fifth. The next law (19:5-8) declares that the thanksgiving sacrifice must be eaten on the day that it is offered and the day after. Whatever is left over until the third day must be burned. Anyone eating it on the third day shall be "cut off from his people." This regulation resembles the requirement of the Deuteronomic law for the Passover, except that that law permits no flesh to remain from the sacrifice overnight (Deut. 6:4). It also carries on the tradition of the Covenant Code (Exod. 23: I8), which forbids leaving the fat of any sacrifice over till the next morning. Experience had evidently shown them that cooked meat could be preserved for twenty-four hours. The tradition of the Covenant Code and the Deuteronomic Code is carried on by the Holiness Code through its provision for the poor and the resident alien in Lev. 19:9, io. The particular kind of aid to them arranged for here is precisely the same as that provided for in Deut. 24:1921, though more concisely expressed here. In Lev. 19:1113 theft, false swearing, lying, and cheating are prohibited, just as the first two offenses are forbidden in the Deca-

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logue (cf. also Exod. 23:7); and the same care for the workingman as here exhibited is found also in Deut. 24: 14 f. Care for the infirmities of the deaf and blind is shown by Lev. 19:14 (cf. Deut. 27:18). In Lev. 19:15 absolute impartiality in the administration of justice is insisted upon, favor being shown to neither rich nor poor. The same duty has been stressed previously in the Covenant Code (Exod. 23:3-6) and in the Deuteronomic Code (Deut. 16:19; 27:19). In Lev. i9: 16-18 is found a group of laws in which the altruistic note is firmly struck. Malicious slander is prohibited, and in particular it is forbidden to a man to save himself by fastening the blame upon somebody else. It is further urged that none should hate his fellow-countryman, or bear a grudge, or seek revenge; but that each should love his fellow-countryman as himself. This is practically the same principle as that of Jesus (Matt. 19 :1 9 - 22: 3 9 ; Mark 12: 3 1; Luke 10:27). It is the noblest single expression of philanthropy to be found in Hebrew law, or anywhere else in the Old Testament. It does not quite rise to the heights of the gospel principle in that in its application it is limited to Jews, while the principle of Jesus took in mankind at large. This sort of thing was not a new discovery for the Holiness Code. Analogous things had already been said in Exod. 22:21-27, 23:9 and Deut. 24:17 (cf. also Deut. io:i9 and Lev. 19:34). But nothing had quite reached the level of this saying. The law against improper mixtures already found in Deut. 22:5, 9-11 is again expressed in the Holiness Code (Lev. 19: 19). It is less extensive in application here than in Deuteronomy, being applicable only to cattle of different species, different kinds of seed, and different textile

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materials in garments. This was, probably, a very old usage; but it does not seem to have been rigidly observed. We know, e.g., that mules were used in pre-Exilic and post-Exilic Israel (see II Sam. 13:29; 18:9; I Kings 1:33; 10:25; 18:5; Ezek. 27:14; Isa. 66:20; I Chron. 12:40; Ezra 2:66). It is altogether improbable that these

forbidden animals were all imported; and if they were, it would have been breaking the law in spirit at least. It is quite likely that some of the older laws were more and more ignored in the light of increasing experience, at least in so far as they were seen to rest upon no better basis than traditional usage, or to be contrary to the realities of experience. In Lev. 19: 20-2 2 the Holiness Code takes up the case of a man who has sexual intercourse with a female slave who is betrothed to another man. This is an exception to the law regarding adultery, because the woman is a slave and her death would be her owner's loss. Hence they are not put to death; but the man must bring a ram to the sanctuary as a guilt-offering to be offered by the priest. Then he goes free. There is no penalty whatsoever upon the woman and no compensation of any sort to her betrothed husband. The law forbidding anyone to eat the fruit of a tree until the tree reached the fifth year of its age (Lev. 19:2325) was probably based upon an old Canaanitish practice. If so, it most probably was a part of the Baalistic usage, the fruit of the tree being left for the first three or four years for the use of the Baalim or field-gods. Now, being incorporated in Yahweh worship, all reference to the earlier practice has disappeared, and in the fourth year the fruit of the tree is offered as a sacrifice to Yahweh.

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ORIGIN AND HISTORY OF HEBREW LAW

The fruit of the tree is to be treated as if it were an uncircumcised male for the first three years. It is worthy of neither God nor man. A pentad of laws is presented in Lev. 19: 26-30. Four of them are prohibitions that have long been in force. Eating with the blood is forbidden once again, even as it was in Lev. 17:10-12 and in Deut. 12:16, 23 f.; 15:23. This repetition within the Holiness Code itself is another indication of the Code's composite character. The prohibition of auguries and soothsaying is also found in the Deuteronomic Code (Deut. 18: io). The prohibition of shaving the head (probably so as to leave merely a tuft of hair on the center of the cranium) and of shaving off the corners of the beard is probably directed at certain customs taken over from the outside, or Canaanitish, religions. The Arabs, e.g., used to practice both of these

customs (Pliny vi. 32; Herodotus iii. 8; W. R. Smith, Religion of the Semites [2d ed.], pp. 323 if., 481 ff.; Wellhausen, Reste arabischen Heidentums [2d ed.], p. 124). The shaving of the head is prohibited also in Deut. 14: 1, where it is associated with mourning. Another old practice that is forbidden is that of making incisions in the body and of tattooing the body, which also were mourning customs prohibited in Deut. 14: 1. This sort of thing was common among crude, half-civilized peoples (cf. Herodotus iv. 71; Snouck Hurgronje, Mekka, II, 120 f.). These practices are proved in Israel by the record in Jer. 16:6 and 41:5. The same things are forbidden to the priesthood in Lev. 21:5.

The next law forbids the parent making his daughter a harlot; in Lev. 21 :9 it is decreed that a priest's daughter playing the harlot must be burned to death. The last law

THE HOLINESS CODE of this pentad enjoins upon Israel the keeping of the Sabbath, which was already ordered in 19:3, and rever-

ence for the sanctuary. This law is repeated verbatim in 26:2.

The last pentad of this chapter (Lev. 19:31-37) forbids the use of mediums and magicians and enjoins reverence for the aged, love for the resident alien, and the use of just weights and measures. The first of these precepts occurs in two other places in this Code, viz., 20:6, 27; but sentence of death is passed upon those who act as mediums and magicians in these last two references. It is also a repetition of Deut. 18: 11 f. The fact that the consultation of departed spirits is forbidden three times in the Holiness Code seems to indicate that it was a very popular practice at the time. Magic and spiritism are here coupled together, being very closely related. That the practice was ancient appears from the story of the witch of Endor (I Samuel, chap. 28). It is also forbidden in Deut. 18:11. It was a common usage in the Semitic world," and is referred to and denounced by the prophets.' Soothsaying and divination have always been in vogue with the ignorant and are by no means extinct even in this enlightened age. The rule that younger people should stand in the presence of the aged is not mentioned elsewhere in the law, though the general principle of respect for one's elders was recognized (especially for one's parents, see Exod. 20:12; Deut. 5:i6; Prov. 18:9, 6:20, etc.; and for the

I See W. R. Smith, "The Forms of Divination and Magic in Deut. 18: II f.," Journalof Philology, XIII, 273 ff.; XIV, 113 ff.; J. Wellhausen, Reste arabischen Heidentums, pp. 135-53; P. Garnault, "Ventriloquie, n6cromancie, divination," Revue scientifique, 9oo, pp. 641-55. 2See Isa. 8:19, 19:3, 29:4; II Kings 21:6, 23:24.

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aged in general, see Eccles. 8:6, 9). In Egypt this precept to stand is specifically mentioned., Solicitude for the resident alien, to the extent of loving him as much as though he were a fellow-Hebrew, is the burden of 19:33 f. This same care for aliens has appeared

in the Covenant Code (Exod.

22:21; 23:9)

and in Deut.

io: 19; but this law intensifies the obligation more than its predecessors. The pentad and the chapter close with a repetition of the demand for just weights and measures (cf. Deut. 25: 13-16). The closing verse of this chapter seems to imply the end of a collection or little code. The fifth section of the Holiness Code is concerned primarily with Molech-worship (20: 1-5). Anyone who sacrifices his child to Molech is to be stoned to death. This seems to be a composite law, for in verse 2 the offender is to be stoned to death; while in verse 3 he is to be cut off by some visitation of Yahweh himself. This law is a fuller statement of Lev. 18: 21. For the existence of this practice see II Kings 23: 10 and Jer. 32:35. The name Molech is in reality a distortion of the name Melech, meaning "king"; the vowels for the word bsheth, meaning "shame," having displaced its own vowels. This section closes with a sentence of death upon anyone cursing his father or mother. This is a perpetuation of the law of the Covenant Code upon this subject (Exod. 2 1: 17). In section vi of this Code the rules for the regulation of the priests are set forth (Lev. 21:1-23; 22:1-16). The priests in this Code are always "the sons of Aaron," whereas in the Deuteronomic Code they are always called ' See Ad. Erman, Literature of the Ancient Egyptians, p. 238, and Herodotus ii 8o. "Sit not while another stands who is older than you."

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"the priests, the Levites," i.e., the Levitical priests. The full expression, "the priests, the sons of Aaron," occurs only here (21: 1). The first paragraph of this section applies to the priests in general (vss. 1-9). These must keep

themselves "clean," not defiling themselves by contact with a corpse, except in the case of most intimate relatives, viz., mother, father, son, daughter, brother, and unmarried sister. (It is noteworthy that the wife is not included in this list of exceptions.) Nor may they carry out any of the mourning practices prohibited in 19: 27. They may marry none but a virgin. If a daughter plays the harlot she must be burned to death. The next paragraph deals with the high priest (21: 1o15). For him the rule is much more rigid. He may not defile himself by contact with the corpses of even his own parents. He may not tear his clothes, or let his hair hang loose in mourning for them; nor may he leave the sanctuary to accompany the body to burial. He may not marry any woman who is not a virgin, and she must belong to his own group. The third paragraph of section vi lists the physical defects which bar a man from serving as a priest (vss. 1723). No one who is blind, or lame, or harelipped, or has legs of unequal length, or has a fractured foot or hand, or is a hunchback, or has any defect of vision, or has scurvy, or scabs, or crushed testicles, may function as a priest in the offering of sacrifices. A similar rule in Babylonia kept priests with bodily defects from active service? Such members of the priestly order may participate in the sacred food of the priests, even though they do not officiI See Paul Haupt, "Babylonian Elements in the Levitical Ritual," Journalof Biblical Literature, igoo, p. 57.

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ORIGIN AND HISTORY OF HEBREW LAW

ate as priests. The same privilege was granted Babylonian priests.' This sort of precaution is taken in order that the crippled or defective member of the priestly order may not profane the sanctuary of Yahweh. The regulations regarding sacrificial animals are dealt with in section vii (Lev. 22: 18-30). The first requirement is that sacrificial animals, like the priests themselves, must be free from physical blemishes, defects, and deformities. The same rule applies to sacrifice in general in Deut. 17: 1 and to the sacrifice of first-born animals in Deut. 15:1. "Anything blind, or maimed, or mutilated, or suppurating, or scurvy, or scabbed," or with injured testicles, is unacceptable as a votive or voluntary sacrifice. Yet a sheep with a long, or a short, leg may be offered as a voluntary offering, but not in fulfilment of a vow. A calf, lamb, or kid may not be sacrificed until it is eight days old. The same rule was applied in the Covenant Code (Exod. 22:30) to the sacrifice of first-born animals. Nor may the mother-cow or mother-sheep be slain and sacrificed on the same day as its calf or lamb, a reaffirmation of Deut. 22: 6. The praise-offering must be eaten upon the same day that it is sacrificed (cf. Exod. 23: 18). The fixed festivals of Yahweh are arranged for in section viii (Lev. 23:10-20, 39-43, and Exod. 31:14a). That chapter 23 is a composite production is clear from the fact that we have five separate introductions (viz., Lev. 23: 2, 4, 9, 23, 33); the fact that the treatment of the festivals is twofold in character (in one case the festivals are closely tied up to the agricultural processes and seasons; in the other they are presented as "holy convocations" and are part of a great system, the purpose of

x See ibid.

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which is to present the Law of Moses in its entirety); and the further fact that verses 33-43 fall into two different sections, viz., 33-38 and 39-43, which are quite different from each other in point of view. One strand of the material shows close affiliation with the Holiness Code; the other strand reflects the point of view of the Priestly Code. Consequently, it is clear that the redactor had before him two bodies of material which he combined and modified as he saw fit. To the Holiness Code belong Lev. 23: 10-20 and 23:39-43. The rest of the chapter belongs

to P and Rp. i.e., the Priestly Code and the Priestly Redactor. In Lev. 23: 10-20 two festal occasions are prescribed. The first is an offering of the first-fruits of harvest. A sheaf must be waved before Yahweh by the priest on the day after the Sabbath. A burnt-offering must be made consisting of a perfect, yearling male lamb and it must be accompanied by an offering of one-fifth of an ephah of fine flour mixed with oil and a libation of a fourth of a hin of wine. The second feast is to occur seven weeks after the foregoing feast. Then on the day after the Sabbath a cereal-offering of the new grain must be brought to Yahweh. Two loaves of bread must be accompanied by seven perfect yearling male lambs, one young bullock, and two rams, offered as a burnt-offering. Besides these, a thanksgiving sacrifice of two yearling male lambs must be offered.' This was the Feast of Weeks for which orders were laid down also in the Covenant Code (Exod. 34:22) and in the Deuteronomic Code (Deut. 16:9-12). The Feast of Booths is arranged for in Lev. 23:39-43. ' The inclusion of the sin-offering in the text of vs. 19 seems to be a gloss due to Num. 28: 27-29. H knows nothing of a sin-offering.

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ORIGIN AND HISTORY OF HEBREW LAW

This feast is to be observed at the close of the harvest in the seventh month. It is to continue seven days, begin-

ning with a Sabbath and being followed by a Sabbath. No specific details are given for the celebration of the feast except that Israel is to live in booths made of boughs and branches of palm trees, leafy willows, and the like. The Holiness Code adds practically nothing to the Deuteronomic Code on this feast (Deut. 16: 13-15), except that the feast is to begin "exactly on the fifteenth day of the seventh month"; and this requirement may be an addition by the Priestly editor. The ninth section of the Holiness Code is found in Lev. 24:15-22. The twenty-fourth chapter of Leviticus is even more influenced by P than the twenty-third. The reasons for assigning 24: 1-14 to the Priestly document, as a section inserted into the Holiness Code by an editor, may be found stated in any good commentary.' The first crime listed in this section is that of blasphemy. The blasphemer, whether foreign or native born, must be stoned to death by the community as a whole. This is a continuation of the usage of the Covenant Code (Exod. 22:28), though the penalty is not indicated there, and the offense itself is not precisely the same; yet there is no essential difference in the nature of the sin (cf. Deut. 28:58). Other offenses incurring the penalty of death are collected in this section. Murder comes first (24:17); this crime is also listed in the Decalogue in both of its editions (Exod. 20:13; Deut. 5:17). In the case of a man's killing an animal he must replace the slain animal or pay its full value I See, e.g., Chapman and Streane, Leviticus in "Cambridge Bible," ad

loc.; and Bertholet, Leviticus in "Kurzer Hand-Kommentar zum Alten Testament," ad loc.

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to the owner (24: 18, 21). If one man injures another, the aggressor must be injured in exactly the same way as the one he has injured (24: 20). Thus the lex talionisis carried forward from the Deuteronomic Code (Deut. 19:21). There must be no discrimination between native-born and resident alien; both must be treated alike. The tenth section of this Code is devoted to the law of the sabbatical year (Lev. 25: 2-7, 17-22). The twentyfifth chapter of Leviticus is a very difficult one to analyze. It has been edited and revised to the point where it is hard to distinguish the original element within it. It is dominated as it now stands by the law of the jubilee year, but it seems improbable that the Holiness Code had any reference to such a year in its original edition. The chapter, however, has been through the hands of the Priestly school of lawmakers and has been supplemented by such a law, thus being brought into harmony with the later Priestly Code.x The law for the sabbatical year is contained in 25:1-7,

18-22. In between these two sections of the law there has I The elements of the Holiness Code in Leviticus, chap. 25, have been analyzed by various scholars as follows: Kayser, Jahrbuch der prot. Theologie: H=vss. 1-7, 14, 17, 18-22, 35-38, 39-4oa, 41-49, 53, 55Horst, Lev. XVII-XXVII und Hesekiel (881), H=vss. 1-7, 14, 17, 18-22,

35-38, 39b, 40-43, 46a, 53, 55. Baentsch, Heiligkeitsgesetz (1893) 17, 18-22, 23, 24, 35-38, 39, 4oa, 43, 46b, 53, 55. Carpenter and Battersby, op. cit.: H=vss. 2-7, 24, 17-22, 24, 25, 35-40a, 43-47, 53, 55b. Bertholet, Commentar: H=vss. 2-7, 18-22.

and Commentar, H=vss. 1-7, 14,

35-38, 39, 40a, 42, 43, 47, 53, 55 H2=vss. 8a, gb, Ioa, 13, 14-16, 17, 24, 25.

Cornill, Einleitung;H=vss. 1-7, 18-22. Kuenen: H=vss. 1-7, 18-22, and traces in vss. 8-17, 23-54. Holzinger, Einleitung; H=vss. 1-7, 19-22 and traces in vss. 8-18, 23-28. Chapman and Streane, op cit.: H=vss. 1-7, 17-22 (24-28 H and P mixed), 35-38 (H with slight admixture of P), 39-46 (H and P mixed, with H predominating), 47-55 (Hwithlarge admixture of P).

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ORIGIN AND HISTORY OF HEBREW LAW

been inserted a section dealing with the year of jubilee

(25:8-16). This is the work of the P school. The sabbatical year is to be a year of complete rest for land, slaves, hired laborers, serfs, and animals. The problem of existence during the seventh and eighth years is to be solved by Yahweh, who will send a miraculously large crop in the sixth year, so large as to be three times as great as the normal crop. Thus they will have provision in the sixth year sufficient to support them during the seventh and eighth years. Here one difficulty presents itself. The law says, "In the eighth year you shall sow, but live on the old crop, eating the old crop until the ninth year's crop comes in." The last crop to be reaped was that of the sixth year. The seventh year produces no crop. But the eighth year reverts to the normal procedure; sowing and reaping go on as usual. Why wait until the ninth-year crop comes in? Wetzstein' suggests that this is to be explained by the fact that the land had to be plowed three times before the seed was sown. Accordingly, since no work could be done upon the land in the seventh year, it would not be ready for sowing until relatively late in the eighth year; so nothing but a light summer crop could be raised in that year. There may also have been some confusion of figures caused here by the fact that at this period the calendar was changed. Whereas in olden times the year had begun in the autumn, now the new year was placed in the spring, in accordance with the Babylonian calendar. Thus the harvest of year 8 by the old calendar would come in year 9 by the new calenda.. Rashi in his commentary, ad loc., explains the matter in this way: The sixth year's cyop would provide for the I In Delitzsch, Jesaja2, pp. 389 f.

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latter half of the sixth year, for the whole of the seventh year, and for the first half of the eighth year, i.e., until the harvest of the eighth year's crop. This would cover actually two and a half years, which, being parts of three years, might easily be spoken of as three years. But this does not explain the waiting until the ninth year. Or again, chapter 25 has been much edited by the-P school and it may be that this section has been revised so as to cover the jubilee year as well as the sabbatical year. This would involve the resting of the land for two years, and would make a triple crop in the sixth year necessary. This law was first laid down in the Covenant Code (Exod. 15: 11) where it deals with the land as it does in the Holiness Code. It was taken up again by the Deuteronomic Code (Deut. 15:1 ff.), where the emphasis was laid upon the release of debts and of slaves. But whereas in the Covenant Code the law seems to have permitted the farmer to let his fields lie fallow one at a time, each one resting for one year once every seven years, here the law presupposes that the entire land will lie idle at once and consequently proposes a miraculous remedy for the situation. Clearly the Code at this point is dealing not with real conditions and facts just as they are, but with an ideal and imaginary situation. Lev. 25:35-38 forbids the taking of interest upon loans to the poor. This is exactly the same as the corresponding law in the Covenant Code (Exod. 22: 25) and in the Deuteronomic Code (Deut. 23: 19 f.) except that the latter permits the taking of interest from foreigners. The laws closing the Holiness Code prohibit idolatry and image worship and enjoin the observance of the Sabbath and reverence for the sanctuary of Yahweh (26:1, 2).

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ORIGIN AND HISTORY OF HEBREW LAW

The similar injunction in Exod. 31: 13, 14a perhaps belonged to the Holiness Code also. The Sabbath law has already appeared in the Holiness Code (Lev. 19:30), and is, of course, a repetition of the fourth commandment of the Decalogue. Another fragment that may once have formed part of the Holiness Code is now found in Num. 15: 38b-4i. This is a reaffirmation of the law in Deut. 22: 12.

The Hebrews are commanded to fasten tassels

upon the corners of their garments, using a violet string for the fastening. These are to remind them constantly to keep the laws of Yahweh. Before leaving the Holiness Code we must ask ourselves what was the meaning of the word "holiness" as it was used in this Code. Some of the elements that seem to have been inconsistent with holiness may seem strange to us men of today. Why should a crippled animal not be an acceptable sacrifice to Yahweh? In the light of such restrictions, and many other similar ones, it is at once clear that the holiness of Yahweh was not primarily an ethical quality. No more convincing proof of that claim could be desired than the use of the Hebrew root of the word meaning "holiness." That root is composed of the three consonants q d 1.1 These three consonants are found in the Hebrew word qddel, and this word is regularly used for a male temple prostitute (see Deut. 23: 18; I Kings 14: 24; 22:47); and the feminine noun qedeldh denotes a female temple prostitute (Deut. 23: 18) and also a harlot in general (Gen. 38: 21, 22). The prostitute, male or female, was certainly no more a model moral character in that day than in this. They were named by these two words because they were a part of the staff at the local sanctuI The consonant § has the value sh.

THE HOLINESS CODE

91

aries, and the word for "sanctuary" was V1u, i.e., miqdrsh. Anything or anybody closely connected with the sanctuary was by that very connection classified as a "holy" person. Holiness itself was the very essence of deity. It was that which made deity. We have one illustration of the early thought of holiness in the story of Uzzah and the ark. As David was bringing the ark into the city of Jerusalem on a cart drawn by oxen, the roughness of the road imperiled the safety of the ark at one spot. Uzzah instinctively put forth his hand to save the ark from falling and fell dead the instant his hand touched the holy ark. This story, whether historical or not, shows that holiness was thought of somewhat in the same terms as we think of a live electric wire. It was a dangerous thing to deal with. The only way in which a man might venture into contact with a holy thing was to render himself immune in certain prescribed ways. Another piece of evidence that "holiness" was a dangerous thing to human beings is the conviction that no man could see God and continue to live. This view appears in the story of Gideon (Judg. 6:22 f.): "So Gideon perceived that it

was the angel of Yahweh. 'Alas, 0 Lord Yahweh,' said Gideon, 'inasmuch as I have seen the angel of Yahweh face to face.' But Yahweh said to him, 'You are safe; have no fear; you are not to die.' " In like manner, Samson's father, realizing that he had been talking to the angel of Yahweh, said to his wife, "We shall certainly die; for we have seen God." It is expressed again, centuries later, in the vision of Isaiah in which he received his call (Isa. 6:5): "Then said I, 'Ah me! I am cut off. For I am a man of unclean lips, And I dwell among a people of un-

92

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"

clean lips, Yet my eyes have seen the king, Yahweh of hosts.' It is quite clear from all this that the ancient view looked upon deity and humanity as representing two totally different orders of being, the natural and the supernatural. These two orders could have no contact one with the other except on the basis of the strictest rules and precautions. For a human being to neglect such measures was to incur the risk of sudden death. This is the conception of holiness which dominates the Holiness Code. While this conception of holiness rules in the Code, it is significant that it is turned frequently to the furtherance of philanthropic and humanitarian aims. Men may not steal, plunder, slander, or oppress their fellows because such conduct is offensive to the holy God and will involve terrible penalties at his hand. The poor and weak are also special objects of his solicitude, and their abler and richer fellows must therefore co-operate with them and relieve their distress, and especially must they refrain from exploiting them or taking advantage of their weakness in any way whatsoever. As compared with the Deuteronomic Code, the Holiness Code gives philanthropic and humanitarian interests a much smaller place. Form and ceremony have the right of way here; the interests that lay so close to the heart of the prophets are almost crowded off the road. This was the great difference between the prophets and the priests. And yet, though the priesthood, through the temple and the law, had a tremendous advantage over the prophet, the hearts of men were won by the prophets and their ideals have made a place for themselves in human minds that should never be lost.

CHAPTER V AN IDEAL CODE (EZEKIEL, CHAPS. 40-48) Only within relatively recent years has the unity of the Book of Ezekiel been called in question. The first scholar to raise this question was Zunz,' in A.D. 1873, who denied the whole book to Ezekiel and dated it from 440 to 400 B.C. In A.D. 1902, Hugo Winckler2 threw doubt upon the unity of the book. In 1909 C. C. Torrey declared the book to be a pseudepigraphon written in the Greek period.3 The same position was tentatively taken by Millar Burrows a little later. 4 Hermann in his commentary (1924) decided that some parts of the book were later than others; but he accounted for the differences by supposing that Ezekiel added these later portions himself in his old age. George R. Berry, A.D. I915,s declared Ezekiel, chapters 40-48, to have been written after the Exile, at different periods between 320 and 222 B.C.; and that the whole was united to Ezekiel, chapters 1-39, shortly be-

fore

200 B.C.

I In Zeitschrift der Deutschen Morgenlindischen Gesellschaft, Vol.

XXVII. I In Altorientalische Forschungen, Vol. III.

3 See "Notes on the Aramaic Part of Daniel," Transactions of the Connecticut Academy of Arts and Sciences, Vol. XV; and Ezra Studies (igio), p. 288. 4 The

Literary Relations of Ezekiel

(1925).

s In "The Authorship of Ezekiel 40-48," Journalof Biblical Literature,

XXXIV, 17-40. 93

ORIGIN AND HISTORY OF HEBREW LAW

94

In

Berry came to the conclusion that Ezek. 45:i-8a and 47:18-48:35 originated after 129 B.C. in the reign of John Hyrcanus;' and since these chapters were written in the Maccabean period, probably the whole of chapters 40-48 belonged to the same age. Finally, in 1930 Berry seeks to overcome the difficulties with the Maccabean origin of chapters 40-48 urged by H6lscher, who puts Ezekiel, chapters 40-48, before P and regards the editing of Ezekiel as completed in the fifth century B.C., by suggesting that the author of Ezekiel, chapters 40-48, was later in actual time than P, "but earlier than P in his assumed standpoint. Hence he was quite at liberty at some points in accordance with his actual time, to give laws actually later, more developed, than P, and at other points, in accordance with his assumed standpoint, to ignore the regulations of P. Such a mixture of standpoints is entirely in accord with the nature of pseudepigraphic writings."2 The latest work thus far upon Ezekiel has been done by C. C. Torrey.3 He comes to the conclusion that the Book of Ezekiel was originally composed about 230 B.C.; and that this original work was later still supplemented by editorial additions. If this were true, it remains to be explained how the Book of Ezekiel found its way into the group of the major prophets, and escaped the fate of Daniel and the rest of "the writings" which constitute the third and closing section of the canon. In this chapter we shall take essentially the position A.D. 1921

I "The Date of Ezekiel 45: i-8a and 47:13-48:35," ibid., XL, 70-75.

2 G. R. Berry, Journal of Biblical Literature, XLIX, 803. 3

Pseudo-Ezekiel and the Original Prophecy.

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95;

represented by G. Holscher.' We cannot follow H61scher in all the minutiae of his analysis (see footnotes on pp. 101 and 107). We shall treat all the text as representa-

tive in general of the fifth century B.c., noting only such portions of the text as seem to be in conflict with the rest. The details of the analysis are too uncertain to be made the basis of a detailed historical treatment. They may be grouped together and taken as the product of the period in general. Ezekiel had no part in the composition of chapters 40-48. These chapters are a composite work, the product of several minds; but they were all brought together into a unified work not later than the fifth century B.C. The regulations are later than those of the Holiness Code, but not so late as the legislation of Pg, or the Priestly Code. Ezekiel, being a priest himself, though his preaching as a whole did not unmistakably brand him as such, nevertheless furnished an unrivaled opportunity to priestly minded editors and redactors for the addition of priestly and legalistic material to his book. His use of visionary experiences opened the way for them to cast their additions in the same visionary form and so to acquire a prestige and authority for their writings that otherwise would have been beyond their reach. The visionary code presented in Ezekiel, chapters 4048, may be analyzed and summarized as follows: i.

The dimensions of the temple, and its equipment

[40: 1-42:

201

Rules for the use of the temple and the altar [43:5-271 3. Rules for the priests and their service [44: 1-31] 4. The allotment of land for the temple and for each of the tribes [45: 1-8; 47: 13-48:351 2.

I Hesechiel, der Dichter und das Buck

(1924).

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ORIGIN AND HISTORY OF HEBREW LAW

5. The practice of justice [45:9-12] 6. Rules for sacrifices and offerings [45:13-25; 46: 19-241 7. Rules for the offerings of the prince, and the disposal of his estate [46: i-i8j A close scrutiny of the table of contents of this legal program reveals at once the slight amount of legislation for the practical needs of everyday life. The ordinary matters found in a code of law scarcely appear in this law. Its interests are prevailingly religious and indeed ritualistic and ceremonial. The first thing in this vision of the future is a description of the temple of the future (40: 1-42: 20). In this respect this code follows the Covenant Code and the Deuteronomic Code, both of which put the place of worship first. It was located on the top of a very high mountain and was surrounded by a wall. This was about six cubits" high by six cubits wide. The east gate of the building was also six cubits in width. The three guardrooms on each side of the gate within were of the same dimensions, each six cubits long and six cubits wide. A space of five cubits in width separated each guardroom from its nearest neighbor. In front of each guardroom was a small platform, one cubit square. The distance from the rear of one guardroom to the rear of the one opposite was twenty-two cubits. After passing between the guardrooms the path led to the threshold of the inner gate. This threshold also was one cubit wide. The vestibule between the threshold and the inner gate was ten cubits deep and twenty cubits wide. So the complete length of the gateway "from the outside front of the gate I There was one cubit of eighteen inches and another of twenty-one; the longer cubit is probably meant in these measurements.

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to the inside front of the vestibule was fifty cubits," i.e. about eighty-seven and a half feet. The outer court of the temple place into which the gateway opened had two other gateways leading into it, one on the north and one on the south. All three gateways were of the same size and structure. All around this outer court on its four sides ran a pavement of the same width as the depth of the gateway, viz., fifty cubits. Upon this pavement opened thirty rooms. On each of the east, north, and south sides of the court apparently were eight rooms; and upon the west side, six rooms. The court itself was one hundred cubits deep, i.e., it was one hundred and seventy-five feet, from the inside of each of the three outer gates to the outside of the inner court. The inner court likewise was entered through three gates, one on the east, one on the north, and one on the south. These inner gates were of the same size and structure as the outer gates. Just as the outer court was elevated above the surrounding level and had to be approached by seven steps so also was the inner court elevated about the level of the outer court and approached by eight steps, one more than in the case of the outer court. Opening into the vestibule of one of the gates was a chamber in which the burnt-offerings were to be washed, and eight more tables, half of which were located in the vestibule and half outside, were on hand to serve as slaughtering blocks for the sacrificial animals. There were also four small tables, each a cubit and a half square and a cubit high, i.e., about thirty-one and a half inches square and twenty-one inches high. Upon these were to be laid the instruments for the slaughtering of the sacrificial animals. Pegs on which the sacrificial flesh was to

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be hung were fastened into the walls of the vestibule. Inside of the inner court were two chambers, one by the north gate and one by the south gate. The one was for the use of the priests in charge of the temple; the other for the priests in charge of the altar and the sacrifices. The inner court itself was one hundred cubits long and one hundred cubits broad, i.e., an exact square of a hundred and seventy-five.by a hundred and seventy-five feet. In the center of this court stood the sacrificial altar. Just across the western line of the inner court stood the temple itself. This was likewise elevated above its surroundings, and was approached up ten steps from the inner court. The vestibule of the temple was entered through a gate fourteen cubits wide. The short sections of the wall, forming a square corner on either side of the gate, were three cubits each; thus making the length of the vestibule north and south amount to twenty cubits. The thickness of the wall on either side of the gate was five cubits. The depth of the vestibule, east and west, was twelve cubits. There were also two pillars, one on either side of the gateway. The vestibule opened into the nave. The doorway into the nave was ten cubits in width. The jambs of the wall were six cubits wide on each side. The nave itself was forty cubits long and twenty cubits broad, i.e., seventy by thirty-five feet. In front of the nave was "the most sacred place." This was entered from the nave through a doorway six cubits wide. The jambs, one on either side of the door, were each two cubits thick. The room itself was twenty cubits long and twenty cubits wide, i.e., thirty-five by thirty-five feet. The outside wall of the temple was six cubits thick,

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i.e., ten and a half feet. All around the outside of the house, or temple, ran a platform which was six cubits and six handbreadths high. Upon this platform rested three tiers of side-chambers, each one four cubits broad. These side-chambers were thirty in number for each story. They increased in breadth with each story, and the wall of the temple decreased proportionally in thickness. The sidechambers rested in part upon rebatements in the temple wall, which grew deeper with each story. The doors of the side-chambers opened to the outside on an open, unoccupied space of the platform, which space was five cubits wide. Behind the temple on the west was another building seventy cubits broad, with a wall surrounding it that was five cubits thick and ninety cubits in length. The purpose and function of this house are not indicated. The whole temple area is thus divided into three squares, each one hundred cubits by one hundred cubits, i.e., one hundred and seventy-five feet square. The inner court with its altar before the temple forms the first square. The temple itself with the open space on north and south forms the second square. And the building to the north of the temple with the open space between it and the temple forms the third. The whole temple building, including vestibule, nave, and the holy of holies, was roofed over and provided with latticed windows throughout. The inside walls were all paneled with wood from floor to roof. Over all the inner walls were carved cherubs and palm trees alternating one with the other. The cherubs had each two faces, one that of a man looking toward the palm tree, the other that of a lion looking to the palm tree on the other side. The wall

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of the shrine, or most holy place, was a perfect square, and in front of it was a wooden table three cubits high, two cubits long, and two cubits wide. Outside of the temple, in front of the vestibule, was a wooden canopy upon which were carved cherubs and palm trees, as in the interior. In the inner court,' on the north side, stood a row of chambers, one hundred cubits long and fifty cubits broad. On one side of this row facing south, and on the other side facing north on to the outer court, galleries rose three stories high. The chambers on the top floor were smaller than those on the first and second since the galleries in some way reduced their size. Before these chambers and galleries ran a path, ten cubits wide and a hundred cubits long, on to which the doors of the chambers opened on the north. The length of the row of chambers seems to be problematical. According to 42: 2, it was one hundred cubits; but 42:8 declares it to have been one hundred and fifty cubits, viz., one hundred cubits parallel with the temple and extending fifty cubits farther into the outer court. But the text of this section is in very bad shape, and what it may have said originally seems to have been badly corrupted. Possibly we should read, "And they [i.e., the chambers]--opposite them, the whole was one hundred cubits." This would remove the conflict of statement as to length between verses 2 and 8. On the south side of the temple was another row of chambers of I So with G; the Hebrew text reads "outer court." The Greek text seems to be right. Going through the inner court into the outer court and coming back to the site of the chambers would be the longest way around, which is a very unlikely route for the guide to have gone. 2 See the commentaries of Smend, Kraetzschmar, Bertholet, Cornill, and Davidson; and Ehrlich, Randglossen, ad loc.

AN IDEAL CODE

Tol

the same order and size as those on the north. These chambers were for the use of the priests; in them they were to eat the most holy sacrificial offerings, and to lay them down; and they were also to be used as dressingrooms by the priests, in which they laid aside their garments before going out to mix with the people. The measurements for the whole temple area, including the outer court, are now given as being five hundred cubits square. The whole area was inclosed within a wall five hundred cubits from east to west and also from north to south. This was to protect the holy ground and mark it off sharply from the secular land. The second main section of this code or vision deals with the regulations for the temple and its worship (Ezek. 43: 5-46: 24).' The first paragraph emphasizes the necesI This section is analyzed by Halscher, op. cit., pp. 195 ff., into the following portions: () 43: 1-12, a later addition as shown by (a) the fact that it separates 42:20 and 43:11, which belong together; (b) the

thought that the graves of the kings were a defilement of the temple precincts, a new thought appearing nowhere else in Book of Ezekiel; (2) 43:13-27, which is from another hand than that of the description of the temple in 40: 5-42: 20, as appears from the facts that (a) the right place

for the description of the altar would have been right after 40:47; (b) the fiction of the vision is lacking here, in that Ezekiel is not led to the altar by the guiding angel; (c) the instructions regarding the altar do not fit in the simple description of the building, and especially the command to turn over the administration of the sin-offering to the Zadokite priests (43: 19); (d) there is no mention in 40:5-42:20 of the Mffl p7YJ (43:21); (e) the peace-offering (43:27) is not mentioned in 40:542:20; (f) the mention of the Zadokite priests (43:i9) anticipates and forestalls the formal recognition of them in 44:15 f.; (3) 44: 1-3, which presupposes 43:1-1I, but is from another hand, for (a) the closing of the east door would otherwise not be stated as a mere fact, but would be explained in connection with 43:4, but 43: 1-11 seems to know nothing of it; (b) 43: 2-5 speaks of "the glory of Yahweh" or "of Israel's God," but 44:2 of "Yahweh, the God of Israel"; (c) 43:7, 9 speaks of "kings," but

1o2

ORIGIN AND HISTORY OF HEBREW LAW

sity of keeping the temple from being profaned or polluted by idolatrous practices, or by having royal cemeteries built alongside of the temple as they had been in the past (43: 7-9). This is summed up in "the rule for the house," viz., "the whole territory round about the top of the mountain shall be most sacred" (43: 12). The dimensions of the altar are given in 43: 13-17. The altar is to rest upon a pedestal, which shall be one cubit high and one cubit wide, with a rim around its edge that is one span, or half a cubit, wide. It would seem that this must mean that the pedestal should extend out beyond the structure of the altar itself by a margin of one cubit all around, since so large an altar certainly could not stand upon a foundation that was only one cubit wide. The bottom section of the altar, which is to rest directly upon the pedestal, is to be two cubits thick and to extend one cubit out beyond the edge of the stratum above it. In the same way the second layer of the altar is to be four 44:3 of "a prince"; (d) the strange expression in 44:1, "the outer gate of the sanctuary"; (e) and the use of 71I in 44: 1, instead of the verbal suffix; (4) 44:4-17, ig, which is the original continuation of 40:1-42: 20. This is not from Ezekiel himself, since (a) it makes circumcision the distinguishing sign of a Jew, which Ezekiel never did (cf. 32: 19); (b) the author delcares that the Zadokites of Jerusalem had never gone astray after pagan practices, a statement that the author of Ezekiel, chap. 8, could never have made; (5) 44: 18, 20-31, is a varied collection of fragments by later hands standing in very loose relationship to 44:4-17, 19; (6) 45: 1-8, which is from another author than that of 40: 1-42:20, 44:4-17, 19, for (a) it contradicts 42: 20 which makes the temple wall the dividing line between sacred and profane, while 45: 1-8 establishes a sacred area of 25,000 by 20,000 cubits extending far beyond the temple wall; (b) Yahweh does not speak here as he did in 44:6-17, 19; (c) a distinction is made here between priests and Levites, not made in 44: 10, 15; (d) it differs from 44:28 which makes Yahweh the priests' only property, in that here they are given real estate; (e) it is later also than 48: 1-8, 23-29, for 45:7, 8 pre-

AN IDEAL CODE

1o3

cubits thick, and to extend out one cubit all round beyond the top layer. The top layer, or altar hearth, is to be also four cubits thick. Four horns, each a cubit high, shall rise from the altar hearth. The altar is to be a square one, the top layer, or altar hearth, measuring twelve cubits by twelve; the lower section is to be fourteen cubits by fourteen. Nothing is said as to the size of the bottom layer resting on the pedestal. But that must have been sixteen cubits by sixteen. Apparently the dimensions of the bottom layer have been skipped by the copyist., The pedestal of the altar would be eighteen cubits by eighteen. The height of the altar from the ground to the tips of the horns is to be twelve cubits. The steps up to the altar must be on the east. The regulations for the dedication and consecration of the altar are given in 43: 18-27. The first sacrifice is to be that of a young bullock as a sin-offering. Some of the blood of the bullock shall be applied to the four horns of the altar, to the four corners of the projectsupposes that measuring of the individual tribal portions; (7) 45:9-12 is

a marginal comment on 45: 13 ff.; (8) 45: 13-15 is not a continuation of 45:9-12, for it has another subject and has nothing to do with 45:9-12; it is from another and earlier hand than 45:1-8, 9-12; (9) 45: 16-17a is a later addition to 45:13-15, as is shown by the closing formula of vs. 15 and by the introduction of the prince in vss. 16 f.; with these verses go also 45:21a, 22, 23a, 24, 25 and 46:4-7, II; (1o) 45:18-2oa and 46:13-15 belong together and may be from the same hand as 43:18-27, for the prince does not function in these verses and the address is in the second person plural, and these five verses are the oldest portions in this group; (ii) the latest elements in the text are 46: 1-3, 8-io, 12, which resemble 44:1-3 and are perhaps from the same hand; they presuppose the existence of 46:4-7[II] as already in the text; (12) 46: 16-18 is a supplement to

45:8; and (13) 46:19-24 is a supplement to the description of the temple, both of which additions are very poorly placed. I So Bertholet, and Kraetzschmar, ad loc.

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ORIGIN AND HISTORY OF HEBREW LAW

ing ledge, and to the rim all around the altar on its pedestal. Then the body of the bullock is to be taken and burned at the proper place on the temple area, but outside of the temple itself. On the next day an unblemished goat must be offered as a sin-offering. This will complete the cleansing of the altar. After that the priests shall sacrifice an unblemished bullock and an unblemished ram as a burnt-offering. For seven days in succession the priests shall offer a sin-offering of a he-goat and a burntoffering of an unblemished bullock and an unblemished ram. Then from the eighth day onward the priests may offer burnt-offerings and peace-offerings for the people, with the assurance that Yahweh will accept them. The eastern gate of the temple through which Yahweh had come back to his temple is to remain closed. The prince alone may enter the vestibule and may there eat sacrificial food, and he shall retire in the same way (44:2, 3). Apparently, the prince will enter and return by some other gate and so enter the vestibule without opening the eastern gate. In the next section the rules and regulations regarding the priesthood are set forth (Ezek. 44:5-31). In this new shrine no aliens may function, as they had evidently done in the old temple. The Levites who had ministered as priests at the local sanctuaries throughout the land and so had participated in semi-pagan practices are debarred from offering sacrifice in the new temple; they now become an inferior order having charge of the house in general and slaughtering the burnt-offerings and sacri-

fices for the people and ministering to the people. The only Levites who may offer the fat and the blood to Yahweh are the sons of Zadok, who now become the only

AN IDEAL CODE

,o5

fully authorized priests. These Zadokites when they enter the gates of the inner court to perform their priestly duties shall put on linen garments, wearing no wool of any sort; and when they leave the inner court they shall lay aside these linen garments in the priestly chambers before they go out to mingle with the people. Should they not do so, they would render the people taboo through their holy garments. It is also necessary that they neither shave their heads nor let their hair grow long; but they must clip it. Nor shall they drink any wine while on duty. They may not marry any but a virgin of the pure Hebrew stock or the widow of a priest. Their function is to teach the people the distinction between sacred and profane, between clean and unclean, to act as judges in court, and to see that the rules and regulations for the observance of the Sabbath and of feasts are faithfully observed. No priest may defile himself by contact with a dead body except in the case of his father or mother, son or daughter, brother or unmarried sister. If he becomes defiled in this way he remains unclean for seven days, during which he may not enter the inner court of the temple. Then he becomes clean and must offer a sin-offering for himself before resuming his priestly function. He may own no property. He shall live upon the meal-offerings, the sin-offerings, and the guilt-offerings and everything that is devoted to Yahweh in Israel. He is to have the best of all the offerings made to Yahweh, the best of the groats (i.e., dried and cracked grain) and of the firstfruits. He may eat of nothing that has died a natural death or been torn to pieces. The assignment of land to each of the tribes and to the city and the temple is given much attention (Ezek. 45:

io6 ORIGIN AND HISTORY OF HEBREW LAW 1-8; 47:13-48:35). In the present arrangement of the text the allotment of land for Yahweh himself (45: 1-8) is put first and is isolated from the section describing the allotment of the land as a whole (47: 13 fl)., To Yahweh is assigned as a sacred territory a stretch of land twentyfive thousand cubits long and twenty thousand cubits wide. The priests as a group are to have the most holy strip, twenty-five thousand cubits long and ten thousand cubits wide. Here they are to live in their own houses and on their own grounds. In this section the temple is to have a square block, five hundred cubits in each direction, with a free margin of fifty cubits all around it. This priestly land occupies half of the sacred allotment. The other half is to be occupied by the homes of the Levites. Alongside of this allotment to the priests and Levites is to run the land assigned to the city, twenty-five thousand cubits long and five thousand wide. This is to be the property of Israel as a whole. Alongside of this sacred allotment on both east and west shall run the property of the prince. It shall extend east from the sacred allotment to the Jordan and west from that allotment to the sea. The exact area is thus not precisely measured; it will be twenty-five thousand cubits from north to south and on east and west of irregular proportions. This is clearly indicated in 48:21-22. The allotments of territory to the IEzek. 45:1-8 is from another pen than 40: I-42:20 and 44:4-17, ig. For it disregards the boundary line between sacred and profane established in 42:20; the speaker is not Yahweh as in 44:6-17, 19; and 45: 1-8 distinguishes sharply between priests and Levites. It also differs from 44: 28 which declares that Yahweh is the priests' only inheritance, in that it gives them certain property rights; and it seems to presuppose the existence of 48: 1-8 by its description of the limits of the prince's land.

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tribes are given one by one in 47: 13-48:35.' Each is to have exactly the same amount of land, except that Joseph is to have a double portion. The northern boundary of the land is to run from the Mediterranean Sea to Hazarenon on the north of Damascus and on to Ziphron on the north and the border of Hamath. The Jordan and the Dead Sea form the eastern border. The southern border runs from Tamar, south of the Dead Sea, to the waters of Meribath-Kadesh, thence along the brook to the Mediterranean. This territory is to be divided up among Jews and resident aliens alike, no discrimination to be made against the interests of the latter. The tribes are to be located in the following order, beginning at the northern boundary and going south: Dan, Asher, Naphtali, Manasseh, Ephraim, Reuben, Judah, the prince's portion and the sacred allotment, Benjamin, Simeon, Issachar, Zebulon, and Gad. Nothing is said about the size of these tribal allotments, except that they extend from east to west across the country, are all to be of equal size, and to reach from the Mediterranean to the Jordan. The sacred allotment (48:7) is to be of the same size. The dimensions and subdivisions of the sacred allotment already given in 45: 1-8 are given again in detail in 48: 9-22. This seems to be a later modification of the 'This passage, 47:13-48:35, is analyzed by H6lscher, op. cit., pp. ff., into the following subsections: (i) the oldest elements are 47:13-20, 21-23; 48: 1-8, 23-29 which are older than all pieces referring to the prince, since the sacred area according to 48: 8 reaches from the sea to the Jordan and is not limited toan area 25,000 by 20,000 cubits, on both sides of which, east and west, runs the land of the prince; (2) 48:922, an interpolation, conflicting with 48:8, and conflicting with the geographical order from north to south which is followed in 48: 1-8, 23-29; 205

this is a duplicate of 45:1, 3-8; (3) 48:30-35, which is an addition to 48: 15-19.

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specification, for the figures in 48:9 f. do not conform to the statement in 48:8. This land is to belong to Yahweh in perpetuity. It may never be sold. The size of the city is here indicated for the first time. It is to be forty-five hundred cubits square. It has also a margin of land two hundred and fifty cubits wide on all four sides. The rest of the city's land is to be cultivated by the workers in the city for the purpose of obtaining their food supply therefrom. The city itself is to be provided with twelve gates, three on each side. On the north side shall be the gates of Reuben, Judah, and Levi; on the east, the gates of Joseph, Benjamin, and Dan; on the south, those of Simeon, Issachar, and Zebulon; and on the west, those of Gad, Asher, and Naphtali. The city shall be called Yahweh-Shammah, i.e., "Yahweh is there." It is quite obvious that these arrangements were purely ideal. No attention is paid to facts. The tribes are located in this arrangement without much reference to their actual location in Palestine. All twelve are now put west of the Jordan, and Zebulon and Issachar are transferred from the north to the south. Not only so, but no attention is paid to the topography of the land. Palestine, of course, grows wider as we go southward. It also varies greatly in the character of its soil. The plain of Esdraelon, the plain of Sharon, and the maritime plain in general are far more fertile farming territory than the hilly land of Judah and parts of Ephraim. Yet apparently no consideration is given to such vital facts as these. If an allotment falls in a fertile part of the land, the people therein would be fortunate. If, however, it should fall, as some inevitably would, in a hilly region and in the narrow portion of the land, its inhabitants would be far from happy.

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1o9

In 45:9-12 occurs practically the only legislation dealing with affairs of the everyday business world. Here the princes are bidden to refrain from violence and spoil, to practice justice and right, and to cease the practice of evicting their brethren from their homes. The use of just scales, ephah, and bath is also commanded. The bath and the ephah are to be of the same capacity, each equaling the tenth of a homer. The scale of the shekel is also fixed; twenty gerahs make a shekel and twenty shekels make a maneh, or minah. The provision for the maintenance of the regular sacrifices is contained in 45:13-17. All the families of Israel shall contribute the sixth of an ephah out of every homer of wheat and the same amount out of every homer of barley; the tenth of a bath out of every cor of oil (a cor containing ten baths); and one sheep out of every flock of two hundred sheep. These proportions shall all be turned over to the prince; and it shall be his duty to provide therefrom the burnt-offering, the meal-offering, the sinoffering, the drink-offering, and the peace-offering at all the festivals, including new moon and Sabbath. The regular sacrifices are listed in 45: 18-25. Apparently these should all be provided by the prince, though this duty is definitely assigned to him only in the case of the Passover (vss. 22 f.) and on the fifteenth day of the seventh month (vs. 25). On the first day of the first month the priest must make a sin-offering of an unblemished bullock and with its blood he must sprinkle the doorposts of the temple, the four corners of the ledge of the altar, and the post of the gate of the inner court. The same thing must be done on the first day of the seventh month that the temple may be purified of any sin connitted

iio ORIGIN AND HISTORY OF HEBREW LAW through error or ignorance. On the fifteenth day of the first month the Passover must be celebrated and unleavened bread be eaten for seven days. The prince is to provide a bullock as a sin-offering for himself and all the people; and on each of the seven days he shall provide seven unblemished bullocks and seven unblemished rams as a burnt-offering, and a he-goat each day as a sin-offering. He shall also provide an ephah of meal with each bullock and with each ram and a hin of oil for each ephah. On the fifteenth day of the seventh month and during the seven-day feast he shall make the same provision for sinoffering, burnt-offering, meal-offering, and oil. Further sacrificial responsibilities of the prince are treated in 46: 1-15. The eastern gate of the inner court must remain closed except on the Sabbath day and the day of the new moon. The prince on these days must enter the vestibule of this gate and remain standing by the post of the gate while the priests offer his burnt-offering and his peace-offerings; he shall worship at the threshold of the gate and then go out by the same way, though the gate shall remain open till evening. The common people, too, shall worship at the door of this same gate on the same days. The prince shall furnish, on the Sabbath, six unblemished lambs and one unblemished ram, with an ephah of meal for the ram and as much as he can afford for the lambs, and a hin of oil for each ephah. On the day of the new moon he shall provide an unblemished bullock, six unblemished lambs, and one unblemished ram, with an ephah of meal each for the bullock and the ram and as much as he can afford for the lambs, and a hin of oil for each ephah. While the prince goes out of the east gate even as he came in, the common people shall enter by the

AN IDEAL CODE

III

north gate and the south gate and shall not turn back, but shall continue on through the court, going out by the gate opposite the one by which they entered. Prince and people shall come in together and go out together. This would seem to imply that they all came in for the sacrifices and remained while they were being offered, not leaving until the sacrifice was complete. Whenever the prince makes a voluntary offering, the eastern gate shall be opened for him, and after he goes out it shall be closed again. He must provide the daily burnt-offering, viz., an unblemished yearling lamb every morning. With it he shall give the sixth of an ephah of fine flour and the third of a hin of oil. The last regulation for the prince is in regard to the disposition of his property. He may will property to his son, and it shall be his to dispose of as he will; but if he gives any to a servant, it shall return to the prince in the year of release. The prince has no right or power to take any part of the people's property. All this legislation for the prince's rights and duties is unique. The prince does not function in any other code or system of Hebrew law. This is ordinarily regarded as a case of idealism, an example of Ezekiel's disregard of things as they are and his readiness to revolutionize the social and religious orders of his day. But this is by no means certain. There actually was a prince in the postExilic period. Witness Zerubbabel and his activity in connection with the building of the temple. The Elephantine papyri also testify to the presence of a prince in Palestine among the Jewish community. In 408 B.C. the Assuan colonists wrote to Bigvai, governor of Judea, regarding the destruction of the temple at Assuan and their

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desire for permission to rebuild it. In this letter they refer to a previous request addressed to the governor, "and to Johanan the high priest and his colleagues the priests who are in Jerusalem, and to Ostanes, the brother of Anani, and the nobles of the Jews. They have not sent any letter to us." This Ostanes was almost certainly the secular head, or the prince, of the Jewish community. Ezra 1:8 and 5:14 also speak of Sheshbazzar, prince of Judah. Hence this code is almost certainly dealing here with the rights and responsibilities of a real person. How far the code is dealing with imaginary or wished-for functions which it would like to have the prince perform we cannot say. But perhaps since there was a real prince, he also had real duties, and therefore the obligations here laid upon him were probably not wholly imaginary or impracticable. Upon the prince is laid the whole responsibility for supplying the animals, flour, and oil for the sacrificial worship of the temple. The people are to bring these animals to the prince; but there is no machinery or method enabling the prince to enforce this demand upon the people. He is at their mercy. That imagination was not lacking in the composition of this program appears from 47:1-12. This passage (47: 1-12) describes a vision as seen by Ezekiel of a stream of water which rises beneath the temple, flows out on the east side, passes around to the south side, and then eastward to the Dead Sea, ever increasing in volume and depth until it becomes a great river, the sides of which are lined with many trees. When the river's waters enter the Dead Sea, they carry new life into its brackish waters. It becomes alive with fish and its shores will be filled with fishermen spreading their nets. The marshes and swamps

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of the river shall remain salty, and so furnish the necessary supply of salt. But the river's banks shall be covered with fruit trees, whose leaves shall not wither, nor their fruit fail, but they shall bear fresh fruit every month, and their fruit shall serve for food and their leaves for healing, since the water that feeds them flows from the sanctuary. Quite evidently this vision was not intended to be taken literally. It is rather an allegory. From the temple of Yahweh is to go forth the stream of true religion bearing inspiration and power wherever it goes. Since the stream ends at the Dead Sea which it kindles into new life, it would seem that Ezekiel did not dream of Yahwism working any great revolution of life and thought outside of Israel, but he certainly looked for a new and ideal Israel. It is part of the scheme that the new Israel shall be created by the impartation of a new spirit within Israel. There is no expectation that any great betterment of the nation will arise from its own efforts. Israel is thought of, rather, as hopelessly weak and wicked. The only way in which Israel can be made what it ought to be is by divine intervention. When Yahweh creates a new heart and a new mind within Israel, then it will do what is right, and only then. Consequently, this whole scheme for the future does not deal with the actual Israel as it was, but with the ideal Israel that is hoped for and believed in. The things in this system that did not find a place in previous codes of law may be summarized here. One of these is the incorporation of the sin-offering in the ritualistic program. This is mentioned in 40:39; 42:13; 43:925; 44:29; 45:17, 19, 22 f., 25; and 46:20. The sin-offering was not created by Ezekiel's imagination, for it was

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in existence and in popular use generations before his time and was an offering of money made to the priest.' But in Ezekiel it is constantly appearing and has become one of the leading sacrificial functions. This increased emphasis in Ezekiel and in the later law is easily explicable. The Exile and all the accompanying and ensuing misfortunes drove home to Israel the consciousness of the national sin. The standing doctrine was that piety brought prosperity and sin involved disaster. In the face of the overwhelming disaster of this age the only possible conclusion from such a situation was that the sin of Israel had brought it about. Consequently, every possible effort was made by the religious leaders to make atonement for the nation's sin. An essential part of this effort to appease the wrath of Yahweh was the stress now laid upon the sinoffering as an act of atonement. This state of mind, the beginnings of which we see in Ezekiel, grew in intensity with the progress of time and the continuance of misfortune, so that in the later Priestly Code it becomes the dominant idea. Another new feature in the Ezekiel program is the ruling that the Levites shall be denied the highest rank in the priestly order, and that this shall be reserved for the sons of Zadok (40:46; 43: 19). Whereas the Deuteronomic Code constantly speaks of "the priests, the Levites," making the two identical, Ezekiel explains that the Levites must be deposed from their full priestly rights and be made mere attendants upon and servitors of the priests, because as priests of the local shrines in days gone I It also appears in Lev. 23: 19 now incorporated in the Holiness Code. But this is probably a later addition to that Code, made under the influence of the Priestly editor.

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by they had participated in idolatrous practices and so had disqualified themselves for the discharge of the full priestly responsibilities. This apparently meant that the priests who had ministered at the central sanctuary in Jerusalem in pre-Exilic days should hold their posts, and all other Levites should be denied the priestly rights guaranteed to them by the Deuteronomic Code. Ezekiel himself was a member of one of the priestly families in Jerusalem. The Ezekiel program in this respect did not commend itself to the makers of the Priestly Code. They perpetuated the distinction between priests and Levites, but they changed the personnel of the priesthood. A third major distinction of the Ezekiel program was the arrangement placing all responsibility for the upkeep of the sacrificial service upon the shoulders of the prince (45:13-17). He should receive all the supplies and animals

brought in by the people at large for the sacrifices and pass them out to the priests as needed for the sacrifices. This makes the prince a clearing house, or an intermediary between priests and people. There is nothing like this in the earlier law, nor does the later law perpetuate it. Indeed, in no other body of law does the prince function in any such significant way as he is made to do here. In the earlier codes an occasional reference is made to the real king, chiefly in the way of limitations of his power and warnings of the things he must not be permitted to do. But here in the idealized community the ideal prince is made the center about which the whole ceremonial system revolves. The temple of Ezekiel, chapters 40-48, also went its own way in some particulars. As compared with Solomon's Temple, which stood until destroyed by the Bab-

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ORIGIN AND HISTORY OF HEBREW LAW

ylonians and must have been well known in Ezekiel's day, the inner and the outer courts of the shrine of Ezekiel, chapters 40-48, are new features. The dimensions of the temple itself are the same in both temples. The sidegalleries and side-chambers are common to both temples, and the communicating passage from first to third story belongs to both. The two pillars before the door of the temple (Ezek. 40:49) were a part of Solomon's Temple, but were not reproduced in the later temples. The new thing about this temple is the effort made to distinguish sharply between the holy and the profane. The two courts and the surrounding wall and the three grades of elevation above the surrounding land are all intended to serve the purpose of setting the holy temple off by itself and above contaminating contacts with the profane world.

CHAPTER VI THE PRIESTLY CODE One of the significant facts in connection with the history of the Pentateuch -is that its constituent documents accord an ever increasing amount of space to the legal element within them. In the J document, the only legal material is that contained in "the lesser Book of the Covenant," which is contained in Exodus, chapter 34; and in this chapter the legislation is confined to verses 17-26. In the E document, the legislation is found in "the Greater Book of the Covenant," which is composed of Exod. 20: 23-23:33. The Deuteronomic Code fills Deuteronomy, chapters 12-26, the greater part of the Book of Deuteronomy. The Priestly Code, including the Holiness Code which is absorbed by it, is spread through the books of Exodus, Leviticus, and Numbers. The Priestly Code proper, apart from the Holiness Code, is found in the

following passages: Exod.

25:1-27:20;

28:1-29:43;

30:1-31:11, 14b-18a; 35:1-40:38; Lev. 5:7-19; 6:130; 7:i-38; 8:i-36; 9:I-0:20;

11:9-23,

41-44a;

12:1-

8; 13:47-59; 14:9-53, 55; 16:1-34; 24:I0-15a; 27:1-34; Num. 1:1-54; 2:1-34; 3:1-51; 4:1-49; 5:1-31; 6:1-27; 7:1-89; 8:1-26; 9:1-23; 10:1-8, II, 13-28, 34; 15:1-36; 17:1-18:32; 19:1-22; 25:6-16; 26:1-27:23; 28:131 :54;34:I-36:13. The Priestly Code constitutes the larger part of the P document. Like that document, the Code itself is composite. It seems to have been based upon several previous "17

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small codes; see, e.g., the closing summaries in Lev. 7: 3 7 f.; 16:34; 18:26-30; 19:37; 22:31-33; 23:44; 24:23; 26:46; 27:34; Num. 36:13. The constant use of such phrases as "Yahweh said to Moses," "Yahweh said to Aaron," and "Yahweh said to Moses and Aaron," introducing new subject matter, rendered it very easy to add new material at any point where it seemed desirable. The oldest element in the Priestly Code is the Holiness Code, which we have already considered (see chap. iv). To that were added, in the course of the generations, three other layers of material. These are known as P', i.e., the groundwork of P; Pt, i.e., the priestly teaching (or torah); and P', i.e., supplementary material.' The Priestly Code is associated with the name of Ezra. It is recorded in Ezra, chapters 7-10, that Ezra gathered

a group of priests and Levites and temple servants in Babylonia and with them came to Jerusalem, and that there he instituted a reform involving the annulment of all marriages between Jews and aliens. In Nehemiah, chapters 8 and 9, we are told of a great assembly in Jerusalem at which Ezra read his law brought from Babylon and that on the second day of the reading he came to the law of the Feast of Booths, which they proceeded to celebrate at once. This law is found in Exod. 34:22b for the first time in the reading of the text of the Pentateuch and again in Lev. 23:40 ff. It is quite evident, therefore, that the law read by Ezra was not the Pentateuch as a whole in its present form. For the reader could not have read that far in the four or five hours of public reading, espeI On the composition of the Priestly Code reference may be made to Carpenter and Battersby, The Hexateuch, I, 121-57; Brightman, The Sources of the Hexateuch, pp. 203-383; Eissfeldt, Hexateuch-Synopse, pp. 1-88; K. Budde, Geschichte der althebraischen Litteratur, pp. 183205.

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cially when it is born in mind that the reading was accompanied by interpretative and explanatory comments. It could hardly have been the Deuteronomic Code, for that had already been publicly read and adopted in Josiah's day, and it is not probable that it was read again and adopted publicly in Ezra's day. Furthermore, the other actions taken by the people under Ezra's inspiration do not all conform to the Deuteronomic law. For example, the people in Nehemiah's day resolve not only to observe the remission of debts in the seventh year, but also to allow the land to lie fallow, which latter provision is not recorded in the Deuteronomic law of the seventh year (Deuteronomy, chap. i5). They also fix the annual tax for the upkeep of the temple at one-third of a shekel a head (Neh. 10:38), whereas no definite sum is mentioned in Deut. 14:25, 26. Likewise, the provision for firewood for the burnt-offerings which was made according to Neh. 10:34 is not mentioned in Deuteronomy; and the agree-

ment regarding tithing in Neh. 10:37, 38 differs radically from the provisions made regarding it in the Deuteronomic Code (14 :28 f.; 26:12-15), where the tithe is taken but once every three years. This seems to rule out the possibility of the Deuteronomic Code having been adopted a second time, and leaves the door open only for the Priestly Code. But, even so, the report in Nehemiah, chapters 8-ia, does not fit the Priestly Code exactly in its present form. For the annual poll tax in the Priestly Code is half a shekel per man (Exod. 30:13; 36:26; Matt. 17:24), and not one-third of a shekel as in Nehemiah. Therefore it seems probable that while the Priestly Code in the main seems to accord with the situation at Ezra's time, the Code as introduced by Ezra was in an earlier form than that in which we now have the Priestly Code.

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Since Ezra seems to have followed Nehemiah rather than to have preceded him as tradition claims, it is probable that the completed Priestly Code is not to be thought of as having come into existence until somewhere between 400 and 350 B.C. We may consider it, therefore, as representing the legalistic point of view of the priestly school as it was held in the first half of the fourth century B.C. Much of the legislation of the P Code undoubtedly originated in the earlier days of the temple's existence, but as it assumed its final form, it was pruned and trained so as to fit in better with the advancing ideas of the times. We shall not reconsider here the legislation of the Holiness Code (Leviticus, chaps. 17-26), which has already been taken up (in chap. v), but which did not wholly escape re-working over at the hands of the final editor of the Priestly Code, into which it was incorporated. This fact will weaken somewhat the effect upon the reader's mind of this presentation of the Priestly Code in that what is here presented will be but later materials which were added to the Holiness Code from time to time in order to keep it in accord with the changing point of view of the passing years. These materials will thus lack the unity and completeness characteristic of the Code as a whole. They will, however, represent the last stage of development to which the thought of the legalistic, priestly mind attained during the Old Testament period. What was thought of such treatment of the old laws is reflected in a question raised by the prophet Jeremiah. In 8:8 he asks: How can you say, "We are wise And the law of Yahweh is with us"? When lo! the lying pen of the scribes Has turned it into a lie!

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It is quite clear from this comment that Jeremiah recognizes the claims of the later lawmakers for the ancient Mosaic origin of their new laws as unhistorical and false. Yet notwithstanding the criticism and opposition of such influential persons as Jeremiah, the authority of the law gained recognition and became the dominating idea in Hebrew religion. The t~rah, or law, was the first part of the Hebrew scripture to receive canonization, and has continued to, hold first place, the place of honor, in the Hebrew Bible. In considering the statutes of the Priestly Code we shall take up the secular matters first. These occupy a very small portion of the Code, the great bulk of which is devoted to distinctly religious and, in particular, ritualistic or ceremonial affairs. The secular interests represented are those connected with the family, persons, property, judgment, and rule. In family matters the law of adultery is supplemented by a provision for the case where a husband suspects his wife of having committed adultery and wishes to discover the truth of the matter. In such a case he must take his wife to the priest, bringing with her as her offering a tenth of a measure of barley meal without oil or frankincense. The priest will then have her come up and take her stand before Yahweh. Then the priest must take some holy water in an earthen jar, put some of the dust from the floor in it, loosen the woman's hair as she stands before Yahweh, put the cereal-offering for suspicion in her hands, and make her take the oath of execration. Then he shall call down the curse upon her of a womb easily fertilized, but making her have miscarriages, in case she is guilty of the accusation made against her. To this she must then give assent. The priest is then to write the curses in a

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book, and wash them off into the "water that produces pain." The woman is then made to drink the water. The priest thereupon takes the cereal-offering from her hand and waves it before Yahweh, and burns a handful of it upon the altar. After that time will show whether or not the woman is guilty, in which case she will become an execration among her people (Num. 5: 11-3 '). It is noteworthy that whether the wife is guilty or not no penalty rests upon the man for bringing a false charge. Only the wife suffers. In such matters she is wholly at the mercy of her husband. It is probable that this procedure was an ancient practice which was only taken up into the Priestly Code at the last minute as it were. The only other regulation affecting family life is that in Num. 31: 15-i8. There it is provided that though all men and married women taken in war shall be put to death, yet all captured virgins shall be kept alive. This, of course, implies that they shall be taken as concubines by their captors. This is directly contrary to the effort of Ezra-Nehemiah in opposing mixed marriages so as to keep the blood of Israel free from contamination. Evidently there were conflicting ideas upon this matter of intermarriage in this period. The rights of aliens with reference to the Passover are taken up in Exod. I 2:43-45. No uncircumcised foreigner may eat of it; but if circumcised he is permitted to share in it. No serf or hired laborer may eat of it; presumably because they were non-Israelites. Proselytes and nativeborn have the same rights as to the Passover (Num. 9: 14; 15: 14-15). Native-born, proselytes, and serfs alike may avail themselves of the protection of the cities of refuge, of which six are now provided by the law (Num. 35:9-34;

THE PRIESTLY CODE

Josh.

20:

1-9)

12,3

as compared with three such cities in the

Deuteronomic Code (cf. Deut.

19:7-10;

4:41-43).

Property rights are well protected. A thief must make atonement to God by a guilt-offering of a perfect ram of the proper value. In addition to this he must restore to the one whom he has wronged the full value of that which he has taken, and he must add one-fifth of its value to it. This applies to any lost article that he finds and falsely claims as his own. It is significant that this law assumes that the offender becomes conscious of his sin and repents of it, after which he must make the offering, and restore the property or its value and add one-fifth of the value (Lev. 6: 1-7). This law is repeated in Num. 5:5-9, with the additional provision that if the one wronged is dead and has no next of kin as heir to whom restitution may be made, then restitution must be made to Yahweh, i.e., to the priest. The right of inheritance is clearly stated in Num. 27:8ii. Daughters may inherit the father's property when there is no surviving son. Daughters being lacking, then the order of succession is (a) the brothers of the deceased, (b) uncles of the deceased on the father's side, (c) the nearest male relative. Daughters who inherit real estate must marry a member of their ancestral tribe so that no real estate shall be transferred by marriage to another tribe (Num. 36:1-12). Several cases are treated in connection with the administration of justice and government. In the case of manslaughter, when one man slays another accidentally and without malice, the community as a whole shall serve as the court, and shall protect him from the avenger of blood, sending him to the city of refuge where he shall re-

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ORIGIN AND HISTORY OF HEBREW LAW

main until the death of the high priest, at which time he shall be free to return home in safety (Num. 35:22-28). A witness under oath who withholds information incurs guilt and must make confession of it and offer a she-lamb or goat as a sin-offering (Lev. 5: 1, 5-6). The old law insisting upon more than one witness (Deut. 17:6; 19: 15) is reaffirmed in Num. 35:30, for cases of murder. The procedure to be followed in case of war is very carefully and fully described. All male foes and married women are to be slain. The soldiers who have taken part in the battle are unclean for seven days and must stay apart from the community as a whole for seven days. On the third and seventh days they must go through a process of purification, together with their captives and every article made of skin or wood. Everything made of metal must be put through fire and also go through water prepared for cleansing from impurity, and everything that cannot stand fire must go through a process of washing in the same kind of water. All their clothing must also be washed on the seventh day, after which they may resume their normal manner of life (Num. 31 1-54). The booty

taken in war is to be divided equally between the soldiers themselves and the community at large. The soldiers must pay a tax to the priest of one in five hundred of men, cattle, asses, and flocks; while the community from its half of the spoil shall give one in fifty of men, cattle, asses, flocks, and all live stock to the Levites who have charge of the shrine of Yahweh. This legislation seems rather unreal and idealistic. The Priestly Code was the product of the post-Exilic period, during which Judaism was scarcely in a position to wage aggressive or defensive warfare. The Jewish people dur-

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ing this age were continually under foreign domination and, with the exception of the brief Maccabean period, were compelled to behave themselves and be submissive to the will of their overlords. This narrative reads like a magnified record of events long since past, in which conditions are pictured not as they really were, but as the author would like to have had them be. A great deal of attention is bestowed upon the matter of the census. In Num. 1: 1-46 a census is ordered by Yahweh of all the tribes, conducted by Moses and Aaron together with the leader of each tribe. The census was limited to the males twenty or more years old who were capable of taking the field in war. The sum total, not including the Levites, was six hundred and three thousand five hundred and fifty. In Exod. 30: 11-16 it is decreed that each Israelite who is listed in the census must pay a half-shekel into the funds of the sanctuary as atonement money for himself. In Num. 3:14-30 a census of the

Levites is ordered and taken at Sinai, the total number of the Levites a month or more old being twenty-two thousand. A second census taken in the plains of Moab revealed twenty-three thousand Levites a month or more old (Num. 26:57-62). A census of all Levites between

thirty and fifty years of age is ordered and taken in Num. 4: 1-49. Their total is eight thousand five hundred and eighty. In Num. 3:40-51 a census of all the Hebrew

first-born males a month or more old is ordered and taken. The total is twenty-two thousand two hundred and seventy-three. The Levites are to be counted as substitutes for the first-born; and since the number of the first-born exceeded the number of the Levites by two hundred and seventy-three (see Num. 8: 14-30), these

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surplus first-born must be atoned for by a payment of five shekels a head, which money goes to the priests. Another census of the Israelitish men, twenty or more years old and capable of participation in war, is recorded in Num. 26: 1-5 1, as having been taken in the plains of Moab. The grand total was six hundred and one thousand seven hundred and thirty. This was less than the similar census of Numbers, chapter i, by one thousand eight hundred and twenty. In Num. io: i-i0 the order is given to make two trumpets of beaten silver. These are to be blown when setting out on the daily march. They are also to be used to call the people together, and when an alarm is sounded by them, it is a signal for battle. They are to be blown to insure the aid of Yahweh in battle; and they are also to be used to announce festivals and holy days and on the first of each month in connection with the sacrifices and burntofferings. Only the priests, the sons of Aaron, may blow them. The last of the secular legislation, if any of the legislation can be called wholly secular, is the direction for the division of the land among the tribes (Num. 26:52-56; 33:54; 34:1-29; and Joshua, chaps. 13-21). The first passage decrees that the land is to be apportioned among the various groups in proportion to their respective numbers, the larger groups receiving the larger portions. The second passage declares that the apportionment is to be made by lot, clan by clan. This is also affirmed in 34:13. In Numbers, chapter 34, the boundaries of the land are given in detail. The southern boundary is to run "from the desert of Zin along the side of Edom," and "from the lower end of the Salt Sea eastward." It is to turn south

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of the ascent of Akrabbim, run past Kadesh-barnea to the river of Egypt, and end at the sea. The Mediterranean is to constitute the western frontier. The northern line runs from the sea to Mount Hor, then to Hamath and Zedad, and on to Ziphron and Hazar-enan. The eastern boundary runs from Hazar-enan to Shepham, then down to Riblah, east of Ain, then on down to the spur east of the lake of Chinnereth, on to the Jordan and the Dead Sea. The land beyond the Jordan is not included, since the tribes of Reuben, Gad, and half of Manasseh are said to have received their portions over there already. The boundaries here given extend on the north and south far beyond the area ever occupied by Israel. They represent a wish, an ideal, rather than reality. The distribution of this territory, tribe by tribe and clan by clan, is given in great detail in Joshua, chapters 13-21. The distinctly religious portion of the Priestly Code far exceeds in quantity the rest of the Code. The religion it presents and legislates for is predominantly ritualistic or ceremonial. It deals with institutions, rites, officials and their duties, equipment, and the like. The first offense condemned in this sphere is that of the person who takes an oath rashly, without stopping to think what it involves. He shall confess his guilt and bring a guilt-offering for his sin-a female lamb or goat (Lev. 5:4 f.). A more serious offense is that of the blasphemer; the penalty for this is death by stoning at the hands of the community as a whole (Lev. 24: io-i6). The institution of clean and unclean receives detailed attention (Lev. 3:14-17; 5:2-6; 7:19-27;

10:10;

11:1-

48; 12:1-8; 13:1-59; 14:1-53, 55; chap. 15; 16:1-34; Num. 9:1-13; 19: 1-22; 22:18-28). First of all, lists are

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given of the animals, fish, birds, and insects which are to be looked upon as unclean and not to be eaten. The general principle determining their fitness as food is that they must both chew the cud and have the hoof completely divided. The possession of only one of these two characteristics does not qualify them as food. Of those excluded by this rule the camel, the rock-badger, the pig, and the hare are listed. None of these may be eaten, nor may their carcasses be touched, since they are unclean (Lev. II: I-I8). The rule as to fish is that everything in the water not having both fins and scales is unclean; their flesh may not be eaten, nor may their carcasses be touched. This rules out eels and all shellfish (Lev. i1 :9-12). No general principle is given for birds. But the objectionable species are definitely named. They are the griffon vulture, eagle, buzzard, kite, raven, ostrich, hawk, nighthawk, sea mew, screech owl, eagle owl, horned owl, cormorant, jackdaw, carrion vulture, stork, heron, bittern, and bat (Lev. i i: 13-19). Winged insects that walk on all four feet are excluded from the clean foods, with the exception of those having joints in their legs above their feet. Such clean insects are the common locusts of all sorts, the flying locusts of all sorts, and all kinds of grasshoppers (Lev. I1: 20-23). No swarming insects may be eaten, nor anything that crawls upon its belly, or on four or more legs (Lev. I 1:4144) .' A comparison of the list of clean and unclean foods

I These verses seem to contain a later addition modifying somewhat the law as expressed in vss. 20-25. It would seem to be an effort to rule out locusts and grasshoppers.

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with the corresponding list in Deut. 14:3-21 shows but

slight variations. In Deuteronomy all winged insects without exception are unclean. Also, everything that has died a natural death is unclean in the Deuteronomic law. The rules for clean and unclean pass on from the consideration of food to that of childbirth (Lev. 12: 1-8). The birth of a boy renders the mother unclean for seven days, while she must remain continent for thirty-three days longer, touching nothing holy, nor entering the sanctuary until her season of purification is complete. If a girl be born, however, the mother must remain unclean for two weeks and keep herself continent for sixty-six days. When the period of purification for the birth of either boy or girl is over, the mother must bring to the priest at the doorway of the tent a yearling lamb as a burnt-offering, and a young pigeon or turtledove as a sin-offering. If she cannot afford so much, she may substitute two turtledoves or two young pigeons, one for the burnt-offering and one for the sin-offering. This regulation as to childbirth is unique, being without parallel in either of the other codes. No person may touch the carcass of an unclean animal, whether wild or domesticated, or touch any human uncleanness without becoming unclean, even if he is unaware of having made the contact (Lev. 5:2-6). He must make atonement by a guilt-offering of a female lamb or goat, and must also make confession of his guilt. Any person who touches any unclean thing or is in a state of uncleanness incurred in any way and then eats of the flesh of the thanksgiving sacrifice must be "cut off from his people" (Lev. 7: 20, 21). Anyone touching the carcass

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of an unclean animal must remain unclean till evening: and if he carries a carcass of an unclean thing, he must wash his clothes and remain unclean till evening (Lev. II:24-28). The same penalty applies to anyone who touches a clean animal that has died a natural death (Lev. 11:39, 40). A list of the unclean reptiles is given in Lev. 11: 29-48. They are the weasel, mouse, all kinds of lizards, the agama, the gecko, and the chameleon. Whoever touches any of their dead bodies must remain unclean till evening. Anything upon which one of their carcasses falls must be put in water and remain unclean till evening. Any earthen vessel into which a carcass falls must be broken and whatever may be in it, even edible food if it has had contact with water, shall become unclean; and all drinkable fluid in it shall become unclean. If their dead bodies fall upon anything, it becomes unclean, and if upon an oven or a firepot, it must be broken in pieces. But a fountain or a cistern for collecting water is not made unclean thereby. Anyone touching one of their carcasses becomes unclean. If one of their carcasses falls upon seed grain that is to be sown, it remains clean; but if water has been put upon the seed, it becomes unclean upon contact with a reptile's carcass. This is all new material, not to be found in any other code. A special privilege is accorded those who are unclean through contact with a corpse at the time of the regular Passover and are therefore unable to participate in it; they are permitted to observe the Passover just one month later (Num. 9: 1-13). Such uncleanness calls for a special kind of purification. This is provided for in Num. 19:1-13. A red cow that is free from all defects and has

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never been worked is to be brought to the priest, taken outside of the camp, and slain in his presence. It is then to be completely burned, and the priest must throw cedarwood, hyssop, and a scarlet string into the fire with the body of the cow. Its ashes are then to be gathered up by a clean man and deposited in water "in a clean place outside the camp." Anyone who becomes unclean by contact with a human corpse must have this water thrown over him on the third day and on the seventh day after the contact; otherwise he remains unclean and is "cut off from Israel." All those who participated in the burning of the red cow, including the priest, must wash their clothes and bathe themselves in water and remain unclean till the evening of that day. If a man dies in a tent, then all who live in the tent or enter it shall become unclean for seven days and every open vessel in the tent shall also become unclean. Likewise anyone out of doors who touches a corpse, or a human bone, or a grave shall be unclean for seven days. To obtain purification a clean man must take some of the ashes of the red cow, put them in fresh water, dip a bunch of hyssop in the water, and sprinkle it upon the tent and its furnishings and upon the unclean persons. In the latter case the persons must be sprinkled with the purifying water on the third day and on the seventh day, and must then wash their clothes and bathe themselves, so that they become clean on the evening of the seventh day (Num. 19:14-22). If a clean animal die, anyone touching the carcass is unclean till evening. One who eats of it or carries it must wash his garments and remain unclean till evening. Flesh that has come in contact with anything unclean must be burned up. Anyone eating of the thanksgiving sacrifice

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while unclean is to be "cut off from his people" (Lev. II: 3 9 f.). The old prohibition against eating blood or fat is here repeated. The fat and the blood belong to Yahweh (Lev. 3:14-17; 7: 22-27; cf. Gen. 9:4). If a person unconsciously touch anything unclean, when he does come to know of it he shall incur uncleanness; and to rid himself of his guilt he must bring to the priest a sin-offering (Lev. 5: 2 f.). Elaborate instructions are given for the handling of cases of bodily discharges, running sores, and the like (Leviticus, chap. 15). If a man has such an affliction, it renders him unclean. Every bed on which he lies and every chair upon which he sits shall become unclean. Anyone touching such a bed or sitting upon such a chair, or touching the unclean person himself, shall wash his clothes, take a bath, and remain unclean till evening. If the man with the discharge spits upon a clean person, that person must wash his clothes, take a bath, and remain unclean till evening. Every seat upon which the one with the discharge may ride is rendered unclean. Whoever touches anything that has been under the man with the discharge becomes unclean till evening. Whoever carries any such things, or is touched by the man with the discharge before the latter has washed his hands, must wash his clothes and bathe himself and remain unclean till evening. Any earthenware pot that the man with the discharge touches must be broken in pieces, and every wooden article that he may touch shall be rinsed with water. The process of purification of the man with the discharge will require seven days. On the seventh day he shall wash his clothes, take a bath in fresh water, and become clean. On the eighth day he must bring an offer7:19-21;

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ing to the priest of two turtledoves or two young pigeons, which the priest shall present to Yahweh, one as a burntoffering and one as a sin-offering (Lev. 15: 1-15).

If a man has an emission of semen, he must bathe his whole body in water and remain unclean till evening; and every garment or skin upon which there is semen must be washed in water and remain unclean till evening. If a man and woman have sexual intercourse, they must bathe themselves in water and remain unclean till evening (Lev. 15:16-18). A woman in her menstruation period shall be unclean for seven days. Her uncleanness is imparted to anyone who touches her, everything upon which she sits or lies, and anybody who touches her bed or chair. Such persons must wash their clothes, bathe themselves in water, and remain unclean till evening. Any man who has intercourse with her becomes unclean for seven days and imparts his uncleanness to every bed upon which he lies (Lev. 15:I9-24). If a woman has a discharge of blood when she is not menstruating, or if her menstruation is prolonged, she is unclean as long as the discharge lasts and she affects things and persons in just the same way. To purify herself after such an experience she must allow seven days; on the eighth day she must take two turtledoves, or two young pigeons, to the priest, who shall offer one as a sinoffering and the other as a burnt-offering (Lev. 15:2530).

Leprosy likewise occupies a large place in the P legislation. It is almost ignored in the earlier codes, a general reference to it occurring only in Deut. 24:8. Here two long chapters are devoted to it (Lev. 13:1-59; 14: 1-53).

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Great care must be taken to distinguish cases of real leprosy from cases where it is only apparent. The proof of the real thing is twofold; if the hair on the affected spot has turned white and if the inflamed spot itself is clearly deeper than the skin, then it is a case of leprosy and the priest must declare the victim unclean. However, if the inflamed spot does not seem to be deeper than the skin and if the hair upon it has not turned white, the victim shall be put in quarantine for seven days and then be brought to the priest again. If the inflamed spot is unchanged, the victim must submit to another quarantine of seven days. If the priest finds that the inflamed spot has not spread, but has grown dim, it is not leprosy; the victim may wash his clothes and be clean. But if the eruption has spread upon the skin, when the victim undergoes his third scrutiny, it is a case of leprosy and he must be declared unclean. If a man is brought to the priest for examination and he finds a white swelling with white hair in it, and quick, raw flesh in the swelling, the priest shall at once declare it leprosy and pronounce him unclean. If the leprosy covers him all over, so that his flesh has turned white from head to feet, he must be pronounced clean. But if raw flesh appears on him again at any time, he must be declared unclean at once. But, should the raw flesh turn white again, he must be brought to the priest and declared clean again (Lev. 13:1-17). The next paragraph gives the method for determining whether or not leprosy has followed a boil. If the boil has healed and left a white swelling or a reddish-white inflamed spot and the priest finds that it appears to be deeper than the skin and that the hair is turned white,

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he shall declare the person unclean and leprous. But if it has no white hair and is not deeper than the skin and has become dim, the priest shall put him in quarantine for seven days. If at the end of the period the priest finds that the spot has spread, he shall declare him a leper; if it has not spread, but remains unchanged, it is but a scar, and the priest shall pronounce him clean (Lev. 13: 18-23). Similarly, if after a burn on the body the raw flesh becomes an inflamed reddish-white or white spot, and the priest finds that the hair on the spot is white and that the inflamed spot is deeper than the skin, he shall declare it to be leprosy. But if the priest finds no white hair and discovers that the inflamed spot is not deeper than the skin, he shall put the suspect in quarantine for seven days. Then if it has spread over the skin, the priest shall declare it leprosy; if, however, the spot is unchanged except that it has become dimmer, it is only the scar from the burn, and the priest shall pronounce the man clean (Lev. 3:24-28).

The following paragraph (Lev. 13: 29-37) takes up cases of ringworm. If a sore on the head or the beard appears to be deeper than the skin and has a thin yellow hair upon it, the priest shall pronounce the individual in question unclean, for he has ringworm, "a leprous disease of the head or beard." If it does not appear to be deeper than the skin and has no black hair on it, the individual in question shall be placed in quarantine for seven days. On the seventh day, if the ringworm has not spread, has no yellow hair, and does not appear to be deeper than the skin, the individual in question shall shave himself, but not shave the ringworm, and shall be quarantined for another seven days. If at the end of the second period of

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quarantine the ringworm has not spread and does not appear to be deeper than the skin, the priest must pronounce the person clean, and he shall wash his clothes and be clean. But if after he has been declared clean the priest finds that the ringworm has spread, he need not look for yellow hair; the person is unclean. If the ringworm is unchanged in color and black hair has grown upon it, the ringworm has healed, and the priest must pronounce the person clean. If white inflamed spots appear on the skin, the priest shall look at them, and if they are but a dull white, the disease is only tetter, and the person is therefore clean

(Lev. 13:38, 39). Baldness does not make a person unclean; but if there appear a reddish-white mark on the skin of the bald head or bald forehead, it is leprosy breaking out and the priest shall examine it, and if he finds the swelling reddishwhite, he must be sure to pronounce him leprous and unclean (Lev. 13:40-44). The general rule applying to every unclean person then follows (Lev. 13:45, 46). His clothes must be torn, he must cover his mustache, the hair on his head must be worn loose, he must live alone and apart from the community as long as he is unclean, and he must cry "Unclean! Unclean!" everywhere he goes. When an individual who has suffered from leprosy is pronounced clean, he must go through with quite an elaborate ritual (Lev. 14: 1-32). He must be examined by the priest, and if the priest finds him cured, the priest shall order two clean live birds, some cedarwood, scarlet string, and hyssop to be procured for the cleansed leper, and shall have one of the two birds killed over fresh water in

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an earthen vessel. The priest shall then take the live bird, the cedarwood, the hyssop, and the scarlet string and dip them all in the blood of the slain bird, and he shall sprinkle that blood seven times upon the man to be cleansed and pronounce him clean, setting the live bird free in the open country. The applicant for cleansing shall then wash his clothes, shave off all his hair, and take a bath. He may then re-enter the camp, but he must stay outside of his tent for seven days; on the seventh day he must shave off all the hair on his head, his beard, and his eyebrows; then he shall wash his clothes, take a bath, and become clean. On the eighth day the applicant shall take two perfect male lambs and one perfect yearling ewe lamb, along with three-tenths of an ephah of fine flour mixed with oil as a cereal-offering, and one log of oil. Then the priest shall set the applicant and these materials before Yahweh at the doorway of the tent of meeting. The priest shall then offer one male lamb as a guilt-offering, along with the log of oil, and wave them as a wave-offering before Yahweh. He shall then take some of the blood of the guilt-offering and put it on the tip of the right ear, the thumb of the right hand, and the big toe of the right foot of the applicant. He shall then pour some of the log of oil into his own left hand, dip his right finger in this oil, and sprinkle some of it seven times before Yahweh; while of the rest of the oil the priest shall put some on the tip of the right ear of the applicant, some on the thumb of his right hand, and some on the big toe of his right foot, on top of the blood already put on these parts of the body. The remainder of the oil shall be put by the priest upon the head of the applicant for cleansing. The priest shall then offer

138 ORIGIN AND HISTORY OF HEBREW LAW the sin-offering and shall slay the burnt-offering victim and offer up the burnt-offering and the cereal-offering upon the altar. Thus shall the one seeking reinstatement be atoned for and become clean. If, however, the applicant for reinstatement is poor and cannot afford so much expense, he may take one male lamb as a guilt-offering, one-tenth of an ephah of fine flour mixed with oil as a cereal-offering, and a log of oil, and two turtledoves, or two young pigeons (whichever he can afford), the one for a burnt-offering and the other for a sin-offering. On the eighth day he must bring them for his cleansing to the priest at the doorway of the tent of meeting before Yahweh, when the priest will take the lamb of the guilt-offering and the log of oil and wave them as a wave-offering before Yahweh. The priest shall then slay the lamb and put some of its blood on the tip of the right ear, the thumb of the right hand, and the big toe of the right foot, just as in the regular ceremony already described. The use of the oil and the pigeons (or doves) is also carried through in the same way as that already described. Personal uncleanness receives but little more attention. Uncleanness contracted unwillingly must be atoned for and purged by a sin-offering when realized (Lev. 5:2). It is one of the functions of the priesthood to point out and emphasize the distinction between the clean and the unclean (Lev. io: io). The priests may eat of the holy food only when they are ceremonially clean (Num. 18: 1113). Leprosy in garments is treated in Lev. 13:47-59. If any garment (woolen or linen, woven or knitted) or skin has a greenish or reddish affection, it must be brought to the

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priest, who shall isolate it for seven days. On the seventh day the priest shall look at it, and if the affection has spread upon the garment, he must burn it up, for it is a malignant leprosy. But if the affection has not spread, he shall order the garment washed and isolated for another seven days. If after that he finds that the affection has neither spread nor changed its color, it is leprous and must be burned. If he finds, however, that it has become dim, he shall tear it out of the garment, or skin, or woven or knitted material. If it reappears on the garment or other materials, then it is leprous and must be burned up. If, however, it does not reappear, the garment shall be washed again and shall be clean. Not only men, animals, and garments may be unclean, but also houses. To their case another paragraph is devoted (Lev.

14:34-53).

If a house has green or reddish

patches upon its walls and these appear to be deeper than the surface of the wall, the house shall be quarantined for seven days. If, when the priest re-examines the house on the seventh day, he finds that the affection has spread, he shall order the stones affected to be pulled out and thrown into an unclean place outside the city. He shall also have the inside of the house scraped all round, and the mortar thus scraped off shall be likewise thrown into an unclean place. Fresh stones shall be procured and put in place of the old stones, and the house shall be replastered with fresh mortar. If the affection reappears in the house, the priest shall examine it and declare the house unclean; it is malignant leprosy. Then the house must be pulled down and all its materials taken to an unclean place outside the city. If anyone enters the house while it is in quarantine, he shall be unclean till evening.

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If anyone eats or sleeps in it, he shall wash his clothes. If the affection cdoes not spread in the house while it is in quarantine, and after the house has been replastered, the priest shall pronounce the house clean. To complete the cleansing he shall take two birds, and treat the house exactly as the leprous man is treated in Lev. 14: 1-3 2. Having cleansed the house with the blood of the slain bird, the string, the cedarwood, and the hyssop, along with the live bird, he shall set the live bird free in the open country and the house shall be clean. Nearly all of the material in the Priestly Code on clean and unclean is brand new, not being found in the older codes. Not that the institution or idea itself is new. There are references to clean and unclean outside the codes which demonstrate that the institution dates back to early times. The only question is how much of this new legislation is actually new and how much of it is of relatively early origin. Evidently, the interest of the Priestly Code in this institution was far more keen and vital than was that of any of the previous codes. It is also clear that the terms "clean" and "unclean" represented a combination of practical and religious interests that are hard to differentiate. The term "leprosy," for example, covers a multitude of sins. It is hardly likely that modern science would apply the same term to diseases of men and animals, defects of linen and woolen goods and skins, and growths on the walls of houses. In that period the day of specialization in the sciences had not yet come, nor had the need of more exact terminology yet been sufficiently realized. Closely related to the institution of clean and unclean is the rite of circumcision. This is mentioned in earlier

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times; see Exod. 4:24-26; Josh. 5:2-9. But the first law regarding it occurs in the Priestly Code (Lev. 12:3; Exod. 12:48; cf. Gen. 17:10-14; 21:4). The new things here are the requirement of the circumcision of all Jewish males, including slaves, on the eighth day after birth. All proselytes must be circumcised before partaking of the Passover. All newly planted fruit trees are to be regarded as uncircumcised for the first three years; the fourth year's fruit is to be wholly devoted to God; and only in the fifth year for the first time may the fruit be eaten (Lev. 19:23-25).

In the Priestly Code more space is devoted to sacrifices than to any other single subject. The offerings attributed to the orders of Moses are listed in Lev. 7:37 as follows: burnt-offering, cereal-offering, sin-offering, guilt-offering, installation-offering, and thanksgiving sacrifice. Four of these, the burnt-offering, the sin-offering, the cereal-offering, and the installation-offering, are prescribed and described in connection with the installation of Aaron and his sons in the priesthood (Exod. 29:1-46). This installation is described in detail in Leviticus, chapters 8 and 9. In obedience to the divine command Moses assembled Aaron and his sons, together with the priestly vestments, the anointing oil, the bullock of the sin-offering, the two rams, and the basket of unleavened cakes, and all the community at the doorway of the tent of meeting. Moses then brought forward Aaron and his sons and washed them with water. He then put the twine on Aaron, girded him with the sash, clothed him in the robe, put the apron on him (girding him with its girdle and fastening it around him), placed the pouch on him, putting the Urim and Thummim in the pouch, and set the turban on his head,

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placing the gold diadem, or sacred crown, on the front of the turban, as ordered by Yahweh. Moses then consecrated the dwelling by anointing it and everything therein with the anointing oil. He also consecrated the altar by sprinkling it with oil seven times and by anointing the altar with oil, together with all of its utensils and the laver with its base. Finally, he poured some of the oil on Aaron's head and so consecrated him. He then brought forward Aaron's sons whom he clothed with tunics, girded with sashes, and put caps upon. Moses then brought forward the bullock of the sin-offering and had Aaron and his sons lay their hands upon its head. He then slew the bullock and smeared its blood all around the horns of the altar with his finger, pouring out what was left at the base of the altar. He then took all the fat on the entrails, the lobe of the liver, and the two kidneys with this fat and burned them on the altar, while the bullock itself, with its hide and offal, he burned outside the camp. Next he brought forward the ram of the burnt-offering upon the head of which Aaron and his sons laid their hands. Moses slew it and dashed its blood all around the altar, washed the entrails and the legs, and burned the entire ram on the altar as a burnt-offering. Moses then brought forward the installation ram, and had Aaron and his sons lay their hands upon its head. He then slew it and put some of its blood on the tips of the right ears, the thumbs of the right hands, and the big toes of the right feet of Aaron and his sons. He then dashed the rest of the blood all around the altar. Thereupon he took the fat of the ram, the fat tail, all the fat on the entrails, the lobe of

the liver, and the right thigh and adding to them one

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unleavened cake, one loaf of bread made with oil, and one wafer, he laid the whole in the hands of Aaron and his sons and then waved them before Yahweh as a waveoffering. Taking them back into his own hands, he burned them on the altar as an installation-offering to Yahweh. He then took the breast of the ram as his own portion, first waving it before Yahweh as a wave-offering. He finally took some of the anointing oil and some of the blood and sprinkled them on Aaron and his sons and on their clothing, thus consecrating them to their service, whereupon he ordered them to boil the flesh at the doorway of the tent of meeting and eat it there together with the bread left in the installation basket. What was left of flesh and bread they must burn up. For seven whole days and nights they must stay at the doorway of the tent, for the installation required seven days and nights. The installation ceremonies continue to be described in the ninth chapter. After the seven-day vigil, on the eighth day, Moses is represented as summoning Aaron and his sons and the elders of Israel and ordering Aaron to sacrifice a bull-calf as a sin-offering and a ram as a burnt-offering while Aaron must command the people to sacrifice to Yahweh a he-goat as a sin-offering; and a calf and a lamb, both a year old and unblemished, as a burntoffering, together with an ox and a ram as a thank-offering, and also a cereal-offering mixed with oil. This is all to be done that the glory of Yahweh may appear unto them. Moses then orders Aaron to ascend the altar and offer his sin-offering and burnt-offering as well as the people's offerings. So Aaron did as commanded and offered his sin-offering first. When he had slain it, his sons brought its blood to him and he dipped his finger in it and

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smeared the horns of the altar with it and then poured out the rest of it at the base of the altar. Its fat, kidneys, and lobe of the liver he burned upon the altar, but the rest of the victim he burned up outside of the camp. The next step was the slaughter of the burnt-offering ram, the blood of which he dashed all around the altar. He washed the entrails and the legs and burned them with the other pieces of the ram upon the altar. He then presented the sacrifices of the people, offering the sinoffering, the burnt-offering, and the cereal-offering as prescribed. After these, he sacrificed the thank-offering of the people, consisting of an ox and a ram. The blood he dashed all around the altar, while "the fat pieces of the ox and ram, the fat tail, that covering the entrails, the kidneys, and the lobe of the liver, these fat pieces they added to the breasts, and he burned the fat pieces on the altar, while the breasts and the right thigh Aaron waved as a wave-offering before Yahweh." Then Aaron blessed the people and came down from the altar. He then went into the tent of meeting with Moses, and when they came out they blessed the people. Whereupon the glory of Yahweh appeared to all the people. Fire also came forth from the presence of Yahweh and consumed the burnt-offering and the pieces of fat upon the altar. When all the people saw it, they shouted and fell upon their faces. This phase of the story shows dearly that we are not dealing with historical facts, but with ideals of the imagination. This conclusion is based, not upon the supernatural elements in the story, but upon the contradiction in the statement of facts. In Lev. 9: 16, 17 we are told that Aaron offered the special burnt-offering as pre-

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scribed and that he burned the morning burnt-offering, and in Lev. 9: i8 f. that he burned the pieces of fat, save only the breasts and the right thigh. Yet in 9: 24 we are told that the fire from the presence of Yahweh "consumed the burnt-offering and the pieces of fat upon the altar." The burnt-offering and the pieces of fat could not well be burnt twice over, even by a divine fire.' This twentyfourth verse may be a later addition, as Bertholet suggests, but even so it would not be historically trustworthy. The regular burnt-offerings for every day are prescribed in Num. 28: 2-8. One perfect male lamb is to be sacrificed as a burnt-offering every morning and one also at every twilight. Each of these sacrifices must be accompanied by a cereal-offering of a tenth of an ephah of fine flour mixed with a fourth of a hin of oil from crushed olives, and by a libation of a fourth of a hin of liquor to be poured out to Yahweh in the sanctuary. The procedure of the man who brings an animal to the priest for a burntoffering is detailed in Lev. 1: 2-3: 17. If it be an ox, it must be a perfect male without blemish and he must bring it to the doorway of the sanctuary. He must lay his hand on the ox's head, then slay it and flay it, and cut it in pieces; whereupon the priest shall take it and complete the sacrifice. It if be a sheep or a goat, he shall slay it before Yahweh on the north side of the altar, cut it in pieces, and deliver it to the priest. If it be a bird, he must bring a turtledove or a young pigeon and the priest will slay it and sacrifice it. If a man would offer a cerealoffering it must be of fine flour upon which he must pour olive oil and put frankincense. The priest will take a I Cf. A. Bertholet, Leviticus erkldri (igo), ad loc., Chapman and Streane, Leviticus in "Cambridge Bible" (1g4), ad loc.

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handful of it and offer it as a sacrifice; the remainder will go to the priests themselves. If the cereal-offering is baked in an oven, it must consist of unleavened cakes of fine flour mixed with oil or unleavened wafers smeared with oil. If it be baked on a griddle, it must be of unleavened flour mixed with oil and must be broken in pieces and have oil poured upon it. If it be prepared in a pan, it must be of the same constituent elements. No cereal-offering niay be offered with leaven or honey or without salt. If the cereal-offering is to be of first-fruits, it shall be young ears of grain roasted in the fire with oil poured upon them and frankincense put on them. If it be a thanksgiving sacrifice and be an ox, whether male or female, it must be a perfect animal without blemish and he shall lay his hand upon its head and then slay it at the doorway of the sanctuary. He must present to Yahweh the fat covering the entrails, the two kidneys with the fat on them near the loins, and the lobe on the liver; and the priests shall offer these as burnt-offerings. If it be a sheep, whether male or female, it must be presented and slain in the same way and the same parts, plus the fat tail, shall be burned by the priest upon the altar. The same proceeding must be followed if the thanksgiving sacrifice is a goat as is prescribed for the ox. The perpetual law is laid down that the fat and the blood must never be eaten, since they belong to Yahweh. The law for the burnt-offering provides that the priests shall keep the fire burning on the altar day and night perpetually. The priest must put fresh wood on the fire every morning, arrange the daily burnt-offering upon it, and burn the fat of the thank-offering upon it. The evening burnt-offering shall remain on the fire all night. In

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the morning the priest must put on his linen vestments, including his linen breeches, and then remove the ashes of the burnt-offering to a place beside the altar. After removing his linen garments and putting on others in their place, he shall take the ashes from beside the altar to a clean place outside the camp (Lev. 6:8-13). On each holy day, in addition to the regular daily offerings, special sacrifices must be made (Num. 28:931). On the Sabbath the special sacrifice must be a burntoffering of two perfect yearling male lambs, with a cerealoffering of two-tenths of an ephah of fine flour mixed with oil, and its libation. On the new moons the special offering must be a burnt-offering of two young bullocks, one ram, and seven perfect yearling male lambs, along with a cereal-offering of three-tenths of an ephah of fine flour mixed with oil for each bullock; a similar offering of twotenths of fine flour mixed with oil for the ram; and an offering of one-tenth of an ephah of fine flour mixed with oil for each lamb. The libations with these offerings are to be half a hin of wine for each bullock, a third of a hin for the ram, and a fourth of a hin for each lamb. In addition to this burnt-offering there must also be a sin-offering of one he-goat. On the fourteenth day of the seventh month, which is the Passover, and on the fifteenth day, which is a festival, a burnt-offering of two young bullocks, one ram, and seven yearling male lambs, all perfect, must be made. With them cereal-offerings of fine flour mixed with oil must be made-three-tenths of an ephah for each bullock, two-tenths for the ram, and one-tenth for each lamb. One he-goat must also be sacrificed as a sin-offering. These special offerings must be made each day of the seven days

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of the feast. The same offerings are to be made on the day of first-fruits with the same libations as on the newmoon festivals. On the first day of the seventh month, and also on the tenth day of the same month, a burnt-offering of the same proportions as on the fourteenth day, except that one bullock siffices instead of two, must be offered with the same cereal-offerings and the same sin-offering. This is in addition to the special new-moon offerings and the regular daily offerings. On the fifteenth day of the seventh month an exceptionally large burnt-offering is prescribed, and this continues for the following eight days except that the number of bullocks decreases one each day, from thirteen on the fifteenth day to seven on the twenty-first day, and down to one on the twenty-second day of the month. Two rams and fourteen yearling male lambs are sacrificed along with the bullocks on each day until the twenty-second, when the number of rams is reduced to one and the lambs to seven. This emphasis upon the ritual of the third week of the month would seem to be evidence of the practice of moonworship at some time or other among the Hebrews. The fifteenth day, or middle of the month, suggests the appearance of the full moon. It falls into line with the newmoon festival on the first of the month. An additional fact pointing in the same direction is the arrival of the fugitives from Egypt in the Wilderness of Sin on the fifteenth day of the second month after they left Egypt (Exod. 16: 1). Now Sin is the name of the Babylonian moon-god. Not only so, but Sinai, a name formed from Sin, was near the Wilderness of Sin, and the region of Sinai was entered on the third new moon after the de-

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parture from Egypt (Exod. 19: i). The Passover likewise fell upon the middle of the month, at the time of the full moon (Exod. 12: 1-28). All this may be traces of ancient practice; but more probable is the suggestion that it is due to the experience and observation of the exiles in Babylonia. The ancient Oriental world was one, not many. The practices and ideas of one part were likely to be known also throughout all parts. It is altogether likely, therefore, that into the later Yahweh ritual there crept some parts of the cult of the moon which was widespread throughout the Orient. This was incorporated into and made a part of the Yahweh ritual itself, though it bears clear traces of its origin in the sphere of the moon cult. If any person sins against Yahweh unwillingly by withholding his dues to Yahweh, or by cheating his neighbor in regard to some deposit or pledge, or by robbing his neighbor, or by lying about some lost article that he has found; when he becomes conscious of his guilt, he must confess his guilt and restore the full value of the property involved, and he shall add one-fifth of its value and hand the whole over to the priest or to the neighbor wronged as the case may be. The priest shall then make atonement for him with the ram of the guilt-offering which the offender must bring to Yahweh; and he shall be forgiven (Lev. 5:14-19; 6:1-7; Num. 5:6-8). If the one to whom restitution should be made has died and left no heir, the restitution must be made to the priest. If a man violate a betrothed slave girl, since she is a slave they shall not be slain; but he shall bring a ram as a guilt-offering to the doorway of the tent of meeting and the priest shall make atonement for him (Lev. 5:20-22). Every guilt-offering

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belongs to the priest; likewise every sin-offering, every cereal-offering, every wave-offering, all the first-fruits of the vines and grain of all kinds of fruit-trees and olivetrees, and all the first-born of human beings and domestic animals. These latter, including all unclean animals, must be redeemed. The redemption price of the first-born of men shall be five shekels a head paid to the priest when they are one month old (Num. 18:9-19). An incense-offering must be made by the priest every morning and every evening when the lights are lit. This offering is to be made on an altar of acacia wood wholly plated with gold. The incense to be burned shall be compounded of spices-stacte, onycha, galbanum, and pure frankincense in equal quantities. This shall be used for no other purpose (Num. 30: 1-1o, 34-38). Nothing but

this unique incense shall be offered upon this altar, except that once a year the high priest shall make atonement on its horns with the blood of the sin-offering. When any person makes an offering to Yahweh, whether it be a burnt-offering, or a special votive offering, or a voluntary sacrifice, or an offering at the stated festivals, a cereal-offering must be brought along with it. For each lamb the cereal-offering shall be one-tenth of an ephah of fine flour mixed with a fourth of a hin of oil and accompanied by a libation of a fourth of a hin of wine. For a ram two-tenths of an ephah of fine flour mixed with a third of a hin of oil and a libation of a third of a hin of wine are required. For a bullock three-tenths of an ephah of flour mixed with half a hin of oil and a libation of half a hin of wine are required (Num. 15:2-16).

Certain cereal-offerings cooked in oven, baking pan, or griddle are reserved for the priest who offers them (Lev.

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7:9), while the very next verse (probably added later) declares that every cereal-offering of whatever kind "shall go to the sons of Aaron, to all alike." This later rule agrees with Num. 18: 9. The old rule prohibiting the use of leaven with any of the sacrifices to Yahweh is reasserted in the Priestly Code (Lev. 2:ii; 6:17; 10:12); but leavened bread may be

offered as a thanksgiving sacrifice, though not to be burned upon the altar (Lev. 7:11-14). The priests must

eat their share of the cereal-offerings without any leaven being added (Lev.

10:13).

Whenever a thanksgiving sacrifice is offered, the fat and the breast must be brought to the priest, who shall burn the fat upon the altar. The breast shall go to the priests as their due, and the right thigh shall be given to the officiating priest as his due (Lev. 7: 29-36; 10: 14 f-)The sin-offering receives much attention in the Priestly Code. If a man or the congregation as a whole withhold evidence, swear a rash oath, touch an unclean thing, or violate unwittingly any of the ceremonial law, a sin-offering is prescribed, along with confession of the offense, in order that pardon may be obtained. The sinoffering shall consist of a female lamb or goat. If the offender cannot afford so much, he shall bring to the priest two turtledoves or two young pigeons, the one to serve as a sin-offering, the other as a burnt-offering. The one for the sin-offering must be sacrificed first. Some of its blood must be sprinkled on the side of the altar, while the rest of the blood shall be drained out at the base of the altar. The other bird shall then be sacrificed as a burntoffering in the prescribed manner. If this should be more than the offender can afford, he shall bring to the priest

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the tenth of an ephah of fine flour without any oil or any frankincense since it is a sin-offering. The priest shall take a handful of it and burn it upon the altar to make atonement, while the rest of it shall go to the priest himself (Num. 5:1-13). Special regulations controlling the function of the sinoffering are given in Lev. 6:24-29. The sin-offering victim must be slaughtered at the same place as the victims for the burnt-offering. The priest who offers it shall eat it in the court of the tent of meeting. Anything touching its flesh shall become taboo, and if any of its blood is sprinkled upon a garment, the part sprinkled must be washed in a sacred place. If boiled in an earthen vessel, that must be broken; but if in a bronze vessel, that need only be scoured and rinsed with water. Any male priest may eat the sin-offering; but if any of its blood has been brought into the sanctuary to make atonement, the flesh may not be eaten, but must be burned up. If the community or its representatives should err inadvertently in obeying Yahweh's commands, the community must bring one bullock, with the necessary cerealoffering and libation, as a burnt-offering, and one he-goat as a sin-offering. The priest shall with these make atonement for the whole community (Num. 15: 22-26). The priests only may eat the sin-offerings of the people, as well as the guilt-offerings and the cereal-offerings (Num. 18:9). But no sin-offering, the blood of which is brought into the sanctuary, may be eaten; it must be burnt (Lev. 6:30).

The annual sin-offering is provided for in Lev. 16: 1-28. The priest may enter the holy place only provided he has a young bullock as a sin-offering and a ram for a burnt-

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offering. He must bathe his body in water and put on the sacred vestments. He must procure from the community two he-goats as a sin-offering and one ram as a burntoffering. He must first sacrifice the sin-offering bullock and make atonement for himself and family. Having slaughtered the bullock, he must fill a pan with coals of fire from off the altar, fill his hands with finely ground incense, go inside the veil and put the incense on the coals of fire, so that the "clouds of incense may cover the propitiatory that is over the decrees, that he die not." He must then sprinkle some of the blood of the bullock with his finger over the east side of the propitiatory and then sprinkle some of the blood with his finger seven times in front of the propitiatory. Then he shall take the two goats and place a lot upon each of them, one for Yahweh and the other for Azazel. The goat for Yahweh shall be sacrificed as a sin-offering for the people. Its blood shall be brought inside the veil and sprinkled just as the blood of the bullock was. Thus the sanctuary shall be atoned for. The priest shall do the same thing for the tent of meeting. When he goes into the tent to make atonement for himself, his family, and all Israel, there shall be no one else in the tent. He shall then go outside to the altar and make atonement for it. He shall take some of the blood of the bullock and of the goat and put it all around the horns of the altar, and he shall sprinkle some of it upon the altar with his finger seven times to cleanse it from the uncleanness of Israel. He shall then bring forward the live goat, lay his hands upon its head, confess over it all the sins of the Israelites, and then send it off into the desert loaded with the sins of the community, in charge of a man standing ready for that

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purpose. The goat shall be set free in a desolate region. Aaron shall then return within the tent, remove his vestments and leave them in the holy place, bathe his body in water at a holy place, put on his ordinary garments, and come out and sacrifice a burnt-offering for himself and one for the people, while he burns the fat of the sin-offering upon the altar. The man who led the goat away must wash his clothes and bathe himself before he may re-enter the camp. The bullock of the sin-offering and the goat of the sin-offering, the blood of which was used to sprinkle the altar, shall be taken outside the camp and their hide, flesh, and offal burned up. The one who burns them shall wash his clothes and bathe his body before he may reenter the camp. This is to be a perpetual ordinance which is to be carried out on the tenth day of the seventh month. This is the only reference to the scapegoat in the entire Old Testament. While it occurs only in the Priestly Code at this one place, it is practically certain that it was an old rite dating far back in early Hebrew history. The Priestly Code by its very nature was especially interested in old rites and ceremonies and made every effort to preserve and perpetuate them. The primitive conception that sins could be loaded upon an animal and literally carried off into the wilderness would seem of itself to put the stamp of antiquity upon this institution. Before leaving the subject of sacrifice, let me say a word as to its general significance and purpose. There has been much written upon this phase of the matter. The point of view first presented by W. Robertson Smith' has dominated scholarly thought upon this question until recently. That view was that sacrifice was a rite of comI Religion of the Semites (1889), pp. 236 ff.,

462.

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munion with God. This communion was effected by both God and worshiper partaking of the same sacrificial meal and so being bound together. Another interpretation of sacrifice made it out to be in the nature of a substitutionary offering. Man by his sins had brought upon himself the penalty of death. By slaying an animal and presenting it to the Deity as a substitute for his own life, the Deity was placated and appeased. Still a third view was that the sacrifice was a gift to Yahweh from the offerer, who sought thereby to buy the favor of Yahweh as it were and so protect himself from the wrath of God. Another way of looking at sacrifice has recently been formulated., Sacrifice is said to be primarily a charm exercised upon the god through the sacrificial animal which has certain divine characteristics which in turn cause the god to exercise a magical activity upon the sacrificer. It is significant that nothing much is said in the Priestly Code about the meaning or purpose of sacrifice. Stress rather is laid upon the ritual itself, and the sacrificer is left free to put whatsoever meaning he will into his sacrificial act. It is quite possible that in cases where a group joined in a sacrifice there were as many ideas of its nature and significance as there were individuals in the group. In two recent books on sacrifice2 it has been clearly recognized that no one single motive will explain all sacrifice, but that it is based upon a variety of motives and beliefs. W. R. Smith rightly emphasized the idea of sacrifice as involving commuI Wundt, Vdlkerpsychologie IIIIz (go), 675; similarly also Hubert et Mauss, L'annge sociologique. 2 G. B. Gray, Sacrifice in the Old Testament; Its Theory and Practice (1925), and A. Wendel, Das Opfer in der alt-israelitischenReligion (1927); and also A. Bertholet, "Zum Verstandnis des alt-testamentlichen Opfergedankens," Journal of Biblical Literature, XLIX (1930), 218-33.

156 ORIGIN AND HISTORY OF HEBREW LAW nity of being with the Deity;' but as is common with the promoters of new ideas, he carried it too far and saw it in operation in some places where it did not function at all. G. B. Gray has rightly stressed the place of the gift theory in sacrifice, while recognizi ng also the legitimacy of the communion idea. This was a relatively late development in the history of sacrifice. Wundt, Hubert and Mauss, and Bertholet likewise are on the right track when they would have us recognize the existence at many points of the conviction that in some mysterious way the sacrifice brought the power of the Deity into direct touch with the person of the one who presented the sacrifice, thus imparting to him new vigor. This certainly was a survival of early ideas which sometimes persisted in the ritual until a very late date. The dues belonging to Yahweh and his priests may now be listed. In Exod. 13:2 the command is given that all the first-born shall be sanctified to Yahweh. In Num. 18: 15-19 this is interpreted as meaning that the first-born shall be given to the priests, but that the first-born of man and the first-born of unclean animals shall be redeemed; while the first-born of clean animals (the cow, the sheep, and the goat) may not be redeemed but their flesh shall belong to the priests, after they have been sacrificed as peace-offerings. Every devoted thing in Israel shall go to the priests. All the first-ripe fruits shall go to the priestly families. The redemption price of human beings, to be paid when they are a month old, is five shekels. The redemption price of unclean animals is to be set by the priest in each case, and one-fifth of its value must be added to the price (Lev. 27:27). In Num. 18:12 ff. all the

1 Op.

Cit. pp. 236 if., 442.

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best of the oil, the wine and grain, and the first-ripe fruits are bestowed upon the priests. All the dues which the Israelites pay to Yahweh are to be turned over to the Levites, since these have no heritage among the Israelites (Num.

18:21-24).

All the tithes of grain and fruit, of

herd and flock, are sacred to Yahweh, and anyone wishing to redeem them for himself must add a fifth of their value to the price paid (Lev. 27:30-33). The Levites to

whom the tithes shall go must pay one-tenth of them to Aaron, the priest (Num. 18:25-32). When anyone makes a vow to Yahweh in terms of a person (i.e., presumably, a slave), the valuation of persons shall be as follows: males from twenty years old up to sixty are worth fifty silver shekels; females of the same age are worth thirty shekels. If they run from five years up to twenty, males are worth twenty shekels, and females ten. Males from a month old up to five years are worth five shekels, females only three. Males over sixty years old are valued at fifteen shekels. If the one who makes the vow be too poor to pay these prices, the person vowed shall be set before the priest, who shall value him proportionally to what the maker of the vow can afford. If it is a clean animal that is vowed to Yahweh, no other animal may be given in its place. If a man tries to change the animal vowed, then both the original animal and the attempted substitute shall become taboo (Lev. 27: 10, 33). If it be an unclean animal, and so unfit for an offering to Yahweh, the priest shall estimate its value, and if the owner wishes to redeem it, he shall add a fifth to the valuation. If a house be vowed to Yahweh, the priest shall evalu-

158 ORIGIN AND HISTORY OF HEBREW LAW ate it at an average price, and if the owner wish to redeem it, he must add a fifth to its valuation. If a field or part of a field be vowed, its value shall be determined by the amount of seed required for sowing it. If it takes a homer of barley seed, for example, then the price shall be fifty shekels, i.e., a shekel for each one of the fifty years until the jubilee. If it be vowed after the jubilee, then the value shall be estimated by the number of years intervening before the next jubilee. If the owner wishes to redeem the field, he must add a fifth of its value to the price. If instead of redeeming it he sells it to another man, then it may not be redeemed; but at the jubilee it shall revert to Yahweh and become the property of the priests. If one vows to Yahweh a field that he has bought, the priest shall reckon its value on the basis of the number of years remaining before the jubilee, and the owner shall pay the price at once as a sacred gift to Yahweh. At the year of jubilee the field shall revert to the original owner from whom it was bought. Nothing that belongs to Yahweh may be vowed. If it belongs to the unclean animals, it may be bought in at its valuation, plus one-fifth, and if not thus redeemed, it must be sold at its valuation. Nothing that is vowed to Yahweh may be sold or redeemed; it is taboo. If any man is devoted, i.e., pledged, to Yahweh, he may not be ransomed; he must be put to death. All tithes of grain or fruit are sacred to Yahweh; if one wishes to redeem them, he must add a fifth of their value to the price. Likewise is it with all tithes of herd and flock (Lev. 27: 1-32). At the time a census is taken every Hebrew must protect himself from plague by paying half a shekel to Yahweh, to be used in support of the service in the tent of

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meeting. No matter how poor or how rich they may be, each one must pay the half-shekel, no more and no less (Exod. 30: 12-16). Nothing could show the ignorance of scientific laws in that age more than a regulation like this. Apparently, it was felt that to take a census was a sign of national pride and that atonement must be made for so sinful an act lest the Deity send a plague upon the nation to reduce it to a proper state of mind. Much attention is given in the Priestly Code to the sacred seasons and fixed festivals of Yahweh. These are listed as the Passover, the Feast of Unleavened Bread, Pentecost, the Feast of Trumpets, and the Feast of Booths. The Passover is to be observed on the fourteenth day of the first month at twilight. On the fifteenth day of the same month begins the Feast of Unleavened Bread. On the first day of this feast they must hold a religious assembly, and also on the seventh day likewise. On neither of these days may any work be done. For these seven days unleavened cakes are to be eaten and sacrifices offered each day (Lev. 23:4-8). On the fiftieth day following the bringing of the sheaf of the wave-offering the Feast of Pentecost must be observed. A religious assembly must be held on that day and no hard work of any kind may be performed (Lev. 23:21). In like manner the Feast of Trumpets is to be held on the first day of the seventh month, i.e., New Year's Day, when the trumpets must be blown, a religious assembly is to be held, no hard work may be done, and a sacrifice must be offered to Yahweh (Lev. 23:24). On the fifteenth day of the seventh month is to be held the Feast of Booths, which is to continue for seven days. On the first and eighth days a religious assembly must be held, a sacrifice offered, and no hard

16o ORIGIN AND HISTORY OF HEBREW LAW work may be performed. On each of the intervening days a sacrifice must be offered to Yahweh (Lev. 23:33-36). A sacrifice must be offered to Yahweh every morning and every evening (Num. 28: 1-8). A special burnt-offering of twice the amount of the regular daily offerings is to be offered to Yahweh every Sabbath, in addition to the regular daily burnt-offerings (Num. 28:9, io). An especially costly burnt-offering and a sin-offering must be offered on every new moon throughout the year in addition to the daily offerings (Num. 28: 11 -15). On the fourteenth of the month the Passover must be celebrated with offerings, and for seven days thereafter expensive offerings are commanded in addition to the regular daily offerings (Num. 28: 16-21). On the seventh day of the festival a religious assembly is prescribed. On the day of first-fruits equally expensive offerings are prescribed as well as a religious assembly (Num. 28:26-31). The seventh month is particularly well provided for. On the first day no hard work may be done, but a religious assembly is prescribed, and a burnt-offering of one young bullock, one ram, seven perfect male lambs, with the appropriate cereal-offerings and libations, and a sin-offering, in addition to the regular daily offerings and the prescribed offering for the new moon (Num. 29: 1-6). On the fifteenth day of this same month a festival lasting eight days is prescribed, with exceptionally heavy sacrifices, in addition to the regular daily offerings. The offering for the first day of the festival calls for thirteen young bullocks, two rams, and fourteen yearling male lambs together with the necessary cereal-offerings and libations and a goat as a sin-offering. This is to be kept up for seven days, the number of bullocks decreasing by one each day. On the eighth and

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closing day the number of bullocks to be offered drops to one and the number of lambs to seven, with the cerealofferings, libations, and the sin-offering prescribed (Num. 29:12-40).

In addition to all the foregoing feasts and holy days every Sabbath is to be rigidly observed; no kind of work may be done, and no fire may be lit on the Sabbath (Exod. 35:1-3). The Sabbath idea is extended by the Priestly Code to the land itself. Every seventh year the land shall lie idle, there being no seed time and no harvest. Whereas originally but a portion of the land lay idle each year, now the whole land is required to rest every seventh year. To make this possible it is promised that the sixth year shall produce a crop sufficiently abundant to provide food for the eighth year and carry them over until the harvest of the ninth year. Nothing could more clearly demonstrate the idealistic and impractical nature of much of this legislation than this law and its extension in the law prescribing the

jubilee year (Lev. 23:8-17, 23:34, 40-42,

47-55). This prohibits any use of the land in the fiftieth year. The crop of the forty-eighth year must provide not only for the forty-ninth year, but also carry over till the harvest of the fifty-first year comes in. Palestine is a relatively poor land, so much of its surface being covered with hills and mountains. This law therefore does but accentuate the impracticability of the priestly legislators. Not only is the land to rest in the jubilee year, but it must also be restored to its original owner. Houses in walled cities may be sold outright, and may be redeemed only within the first year after the sale. The property of the Levites is exempt from this limit, and may be redeemed at any time; and houses belonging to them in a

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city that are sold, if not redeemed must be released in the year of jubilee; but their possessions in the open country may never be sold (Lev. 25:32-34). Likewise, Hebrew slaves must be released at the jubilee, if they are not redeemed earlier (Lev. 25:39-46). The month of the exodus from Egypt is to be the first month of the year, and the paschal lamb for each household must be selected on the tenth of that month in preparation for the Passover on the evening of the fourteenth (Exod. 12:1-13). No leaven may be kept in any house during the period of the Passover (Exod. 12: 15). The law regarding the place of worship reaches its climax in the Priestly Code. In the Covenant Code a plurality of sanctuaries is presupposed. In the Deuteronomic Code great stress is laid upon the necessity of one sanctuary and only one. In the Holiness Code the existence of several sanctuaries is recognized, but they are threatened with destruction (Lev. 17:1-9; 26:31). But in the Priestly Code a single and exclusive sanctuary is presupposed throughout. The actual temple at the time the Priestly Code was drawn up was that built in the days of Haggai and Zechariah. But this Code represents the law for its erection and construction to have been given to Moses by Yahweh and a movable shrine or tabernacle, known as the "tent of meeting" or the "dwelling," to have been erected and used in the wilderness (Exod. 25:827:19; 35:4-40:33). The instruction, for the erection of the sanctuary are most minute and detailed. The idealistic and unreal character of the legislation is quite evident. Where could a body of nomads, and especially escaped slaves, have obtained all the gold, silver, and jewels called for in the construction of the tent of meet-

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ing? The gold amounted to twenty-nine talents and some hundred shekels (Exod. 38:24); and the sum of the silver was one hundred talents and seventeen hundred and seventy-five shekels (Exod. 38: 25). These sums amount to $842,626 and $203,660, respectively, or a total of $1,046,286. The precious stones used to adorn the apron of Aaron and the pouch in which the Urim and Thummim were carried and the fine linen for the vestments of the priests would add several more thousand dollars to the cost of the tabernacle and its equipment. It should also be borne in mind that the purchasing power of money was far higher in that period than it is today. So that it would be perfectly safe to double the foregoing amount from that point of view. Then, too, it should be noted that the record declares that the people were so generous that they brought in for the construction of the tabernacle more than was needed, and they had to be told to stop their gifts (Exod. 36:1-7). This is quite manifestly part and parcel of the scheme to glorify the past which played such a large part in the Book of Chronicles and in much of the later writings of the Hebrews. The ark is likewise provided for and made in the desert (Exod. 25: 10-22); and also an altar of acacia wood overlaid with brass (Exod. 27: 1-8). The dedication of this altar is sumptuously performed and elaborately described (Num. 7: 1-88; 16:36-40). It is rather strange that in all the laws regarding the place of worship in the Priestly Code no allusion is made to the actually existing temple with which everybody in Israel was familiar, but everything is placed back in the time of Moses or the tabernacle, which actually ceased to be (if it ever actually existed) soon after the entry into Canaan. The detailed

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ORIGIN AND HISTORY OF HEBREW LAW

plans for the construction, erection, and equipment of the sanctuary are found in Exod. 35:4-40:33. The regulations for the priesthood, its functions and vestments, its revenues and property, must now be considered. The membership of the priesthood is confined to Aaron and his sons (Exod. 29: 9 b). This is reaffirmed in connection with Phinehas, the grandson of Aaron, who is promised that the priesthood shall perpetually be in the hands of his descendants (Num. 25:10-13). The distinctly priestly functions are to be confined to the priests proper, while the Levites are to be their attendants or servants, assisting them. The Levites are to perform none of the higher priestly services, and they may not come near the sacred vessels or the altar on pain of death; but they shall perform all the menial services for the priests. They are a sort of high-class janitors working under the supervision of the priests (Num. 3:5-10; 4: 1-49). The high priest is placed under most rigid restrictions. He must not let his hair hang loose, nor tear his clothes, nor approach any corpse, not even that of his father or his mother. He must never leave the sanctuary or profane it in any way. He must never marry a widow, or a divorced woman, or a woman who has been violated, or a harlot. His wife must be a virgin of his own class (Num. 21:10-15), i.e., probably of the same tribe or clan. The consecration of the high priest and his investiture with the breastplate of judgment, in which the Urim and Thummim were carried, are accompanied by sacrificial offerings, including a sin-offering and a burnt-offering. For the sin-offering a bullock is prescribed, and for the burnt-offering two rams, one of which is completely devoted to Yahweh on the altar, while only the breast and

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the right thigh of the other ram go to the priestly order, and the rest of it is burned on the altar as an offering to Yahweh (Exod. 28:1-29:42; Lev. 8:1-36; 9:1-14). The sacred vestments of the high priest and the priests in general are fully described in connection with the installation of Aaron and his sons (Exod. 28:1-29:6; Lev. 16:4-23; Num. 20:25-28). The pouring of the anointing oil upon Aaron's head is one of the most important procedures (Exod. 29:7; Lev. 6:20-22; 8:12; 16:32). In the older strata of the Code this is confined to Aaron only; but in the later accessions the sons of Aaron, i.e., the whole priestly order, are included (Exod. 28:41; 29:21; 40:13 b, I5).

By reason of the sanctity of their calling, special restrictions are imposed upon the priests. They may not defile themselves for any dead person, not even for those related to them by marriage. The only exceptions to this rule are in the case of father, mother, son, daughter, and an unmarried virgin sister. Nor may they shave any part of their head bald, or shave off the corners of their beards, or make incisions in their bodies. They may not marry a harlot, or a divorced woman, or a woman who has been violated. If a priest's daughter plays the harlot she must be burned up (Lev. 2 1: 1-9). No member of the priestly family who has any physical defect may function as a priest. The disqualifying ailments listed are blindness, a cataract, defective eyesight, a limb that is too long, scurvy, scabs, crushed testicles, a broken hand or foot, and any sort of perforation., Such a person may eat the food I The Hebrew word for this is :Iiff, which occurs only here. This root means "to perforate," "to break through." If the text is correct it means, perhaps, "a harelip" or "a cleft palate."

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allowed the priests, but he may not approach the altar or the veil. If a priest becomes unclean through any source he may not eat of the priestly food so long as he remains unclean. This eliminates lepers, anyone with any sort of bodily issue, anyone who has touched a person made unclean by contact with a corpse, anyone who has had an emision of semen, and anyone who has touched an unclean insect. These last three sources of uncleanness may be removed at sundown by bathing in water. No priest may eat of any animal that has died a natural death, or been torn by some other animal (Lev. 21 :16-24; 22: 1-8). A priest's daughter who marries a layman is debarred from eating the priestly food; but if she is divorced and has no child and has returned to her father's house, she is again entitled to partake of the priestly viands (Lev. 22:12,

13).

The priests while on duty must refrain from drinking wine (Lev. 10: 8). They must also wash their hands and feet before entering the sanctuary or approaching the altar (Exod. 30:18-21). They must likewise wear linen breeches (Exod. 28:42; Lev. 6: io) while in performance of their temple duties. When his duties require him to go outside of the camp, he must change his garments. The duties of the priests, in addition to their obligation to offer all sacrifices, are (i) to blow the silver trumpets summoning the people to a common assembly (Num. 10: i-i0) or to a festival occasion, and on the first of every month; (2) to cover up the sanctuary and all its contents before they are handed over to the Levites who shall carry them; (3) to be responsible for the oil for the lights, the incense, the perpetual cereal-offering, and the anointing oil (Num. 4:5-16).

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The duties of the Levites are (i) to function as janitors and porters for the priests in transporting the tabernacle and performing minor functions in connection with it (Num. 18: 2-7); (2) to serve as substitutes for the firstborn (Num. 3:5-1o, 12, 41, 46-48). Their period of service extends from their twenty-fifth birthday to their fifty-first (Num. 8:23-26). The revenues of the priests seem to have been quite liberal. They are, to be sure, denied any permanent heritage in the land (Num. x8: 20-24); but, on the other hand, the priest receives all but a single handful of every cerealoffering (Lev. 2: 1-13; 6: 14-18); also the breast and thigh of all thanksgiving sacrifices (Lev. 7:29-36; Exod. 29: 27 f.); likewise all of the sin-offering and the guilt-offering except the kidneys and the fat, which must all be burned upon the altar (Lev. 6:25-7: 10). If any man gets hold of another's goods or property by fraud and becomes conscience smitten, he must restore the ill-gotten goods and add one-fifth to their value; and if the one wronged be dead and has left no heir, then the restoration must be made to the priest whose property it becomes (Lev. 5: 15 f.). The memorial bread also becomes the priest's (Lev. 25:4-9). All gifts to Yahwdh that are not burned upon the altar become the possession of the priests; e.g., the wave-offerings, all the first-fruits of wine, oil, and grain, and all firstlings of animals (Num. 18:8-19). They also get the redemption money for all first-born males and firstlings of unclean animals (Num. 18:15 f.). They are even given the skin of the animals offered as burnt-offerings (Lev. 7:8-1o), though in Exod. 29:14 and Lev. 8:17 the sin-offering animal is wholly burned up outside of the camp. In addition to these perquisites they are also to

168 ORIGIN AND HISTORY OF HEBREW LAW receive a tenth of the tithe which the Levites are given (Num. 18:8-32). The Levites are given the possession of forty-eight cities, six of which shall be the cities of refuge. In addition to the towns themselves the Levites shall also receive the use of the pasture lands around each of the forty-eight cities. The measurements of this land are rather confusing. The account in Num. 35: 1-8 first tells us that the breadth of the pasture-land outside the walls is to be one thousand cubits all around the city (vs. 4). The next verse provides that the width of the strip of land shall be two thousand cubits on each of the four sides of each city. Whether the fifth verse is a gloss upon the fourth intended to put more land at the disposal of the Levites or whether the text needs correction is an open question.' The Levites I The LXX reads 2,000 instead of i,ooo in vs. 4. The total length of each side of the city and its adjacent pasture land according to vs. 4 would be 2,000+X cubits (x representing the unknown length of each side of the city in turn). If the figure of LXX be correct, the total length of the pasture land on each side would be 4,000+x cubits. These figures, of course, pre-suppose that the corners were filled out so that there was a continuous block of land all around the city, which was I,ooo (or 2,000) cubits wide. The total length of the pasture land on all four sides would thus be, if LXX's 2,000 be correct, 16,ooo+4x cubits. If we assume that each city was rectangular, with x= average length of side for all sides of all the 48 cities, and that each city with its pasture lands likewise formed a rectangle, but one 4,000 cubits larger in each dimension than the city alone, then, since each cubit= iI or 1, feet (18 or 21 inches, as described on p. 96) and there are 43,560 square feet in an acre, the area of the pasture lands assigned to each Levite city would be [(4,ooo+x)2-x2]X12 or

1F

43,560

i.e., .41327(2,000+X) or .56244(2,ooo+x) acres, according to which cubit was used. For all 48 cities the total pasture area would then be i9.837 (2,00o+x) or 26.997(2,000+x) acres. Since the minimum possible total, assuming the cities to be infinitesimal, is about 40,000 acres, it is safe to say that, on the whole, good provision was made for the Levites.

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also are given the tithe of all the crops and fruits, minus the tithe of their tithe that they must hand over to the priests (Num. 18:8-32). If a man takes the vow of the Nazirite, which lasts for a certain period which he sets for himself, he must refrain during the period of his vow from the use of all wine and liquor, and grape juice and also from eating grapes, or tendrils of the grapevine. Nor may he cut his hair or shave his head. Nor may he defile himself by contact with a corpse-not even that of his father or mother. If somebody should suddenly die alongside of him, he must shave his head on the seventh day thereafter, and on the eighth day he must bring two turtledoves or two young pigeons, offering one as a sin-offering and the other as a burntoffering. That same day he must reconsecrate his head and bring a yearling male lamb as his guilt-offering. The time he has served thus far on his vow becomes void, and he must start the fulfilment of his vow afresh. When his vow is fulfilled, he must come to the doorway of the sanctuary and present a perfect yearling male lamb as a burnt-offering and a perfect ram as a thank-offering, together with a basket of unleavened bread, cakes of fine flour mixed with oil, unleavened wafers smeared with oil, and their cereal-offering and libations. After these sacrifices have been offered, he shall then shave the crown of his head at the doorway of the sanctuary and lay the hair thus cut off upon the fire under the thanksgiving sacrifice. Then the priest shall place the shoulder of the ram when cooked, one unleavened cake, and one unleavened wafer in the hands of the Nazirite; and finally the priest shall wave these elements before Yahweh before taking them for his own use. After that the Nazirite may drink wine (Num. 6:2-21).

PART II APPENDIXES

APPENDIX I DID MOSES WRITE THE PENTATEUCH? The narrative regarding Moses and his activities as it is found in the Pentateuch is constantly written in the third person. It is a narrative about Moses, and does not claim to be by Moses himself. But the nature of the narrative is such that if it is to be taken as meaning actually what it says, Moses himself must have been the source of the writer's information. Over and over again the conversations between Moses and Yahweh are reported verbatim. "Yahweh said to Moses," "Moses commanded the people," "Moses said to Yahweh," "Yahweh said to Aaron," and similar expressions are scattered all through the Pentateuch. Thus the impression is left that we have here the verbatim reports of the conversations between Yahweh and various individuals. Either that, or some later writers have used their imaginations and put such things upon the lips of Yahweh, Moses, Aaron, and others as seemed to them fitting and desirable. In seeking a solution of this problem we would call attention to certain facts which render the personal participation of Moses as portrayed in these narratives very improbable, if not impossible. The fact that the narrative strives to make it appear that the people of Israel were living in the desert when the law originated is only a literary device created to embody the tradition that the law came from Moses. The fact of this tradition itself seems to imply that there was some 173

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historical basis for the view that Moses laid the foundation of Hebrew-law, as we have tried to show in chapter i. The practice of a writer speaking of himself in the third person, however, is not known in ancient Hebrew. Xenophon's Anabasis and Caesar's Gallic War are too late in history to prove anything as to the existence of a similar usage in ancient Israel. There is no such uniformity of style and harmony of thought and contents in the Pentateuch as would be required if the work were a perfect unit. It is a composite work, made up of different and divergent sources, reflecting widely different literary styles and much inconsistent and contradictory narrative material. There is no such change of style in the narrative after the death of Moses (Deuteronomy, chap- 34) as might naturally be expected if Moses had written the narrative up to the time of his death, and it had been then carried on by another hand. The same sources are discoverable in the Book of Joshua as in the Book of Deuteronomy, and Joshua is quite commonly grouped by scholars with the five books of the Pentateuch, and the group thus formed is called the

"Hexateuch." We learn also from Josh.

24:26

that Josh-

ua himself added to the law. Yet the whole law finally came to be called "Mosaic" in the time of the Chronicler (II Chron. 33:8; 34:15; 35:6, 12).

It is hardly likely that Moses should have written the record of his own death and burial, as recorded in Deut. 34:5-12. Nor is it at all probable that Moses should have described himself in such flattering terms as appear in Exod. 11:3; and it is even less probable that a modest man should have recorded the estimate of himself found in Num. 12:3. It is also difficult to see how Moses, who

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never crossed the Jordan, could have written the phrase "beyond the Jordan," meaning thereby east of the Jordan and presupposing the writer's standpoint as being west of the Jordan (e.g., Deut. I:I, 5; 4:46). A further difficulty is furnished by the presence of anachronisms. The name Hebron, for example, occurs in the narrative in Gen. 13:18; 23:2, 19; 35:27; 37:14 and Num. 13:22 in connection with the stories of Abram, Isaac, Joseph, and Moses. Yet Hebron was called Kiryath-arba in those days, and its name was not changed to Hebron until after its capture by Caleb (Josh. 14: 1315: 17). In like manner, Abraham is said to have pursued his foes as far as Dan (Genesis, chap. 14) before "Dan" was so named; and Joseph is said to have been stolen out of the land of the Hebrews before the Hebrews had any land (Gen. 40: 15). Then, further, the phrase "unto this day" in such passages as Deut. 3:14 occurs in an address assigned to Moses and presupposes the perpetuation of the name Havvoth-jair for a long period, though the events thus commemorated are said to have occurred within the lifetime of Moses himself. In the same way, in Deut. 2:10 ff. the conquest of Canaan is spoken of as an accomplished fact, although the Hebrews had not yet crossed the Jordan. In Gen. 36:31 the kingdom of Israel's existence is presupposed though the narrative is dealing with events and situations in the time of Jacob. In Gen. 20:7 Abraham is called a "prophet," and yet we are told in I Sam. 9:9 that the old name for "prophet" was "a seer." In Lev. 18:24-29 the conquest of Canaan is presupposed

as an accomplished fact though the narrative itself is placed upon the lips of Yahweh in his address to Moses.

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Another obstacle in the way of Mosaic authorship of the Pentateuch is the narrative in Deut. 27: 2-8 and that in Josh. 8:30-35. It is there said that the entire law given by Moses was written upon some stones; in Deuteronomy the stones are used for this purpose only; in Joshua they are built into an altar also. In either case it is extremely improbable that the whole law as contained in the Pentateuch should have been written upon these stones. The amount of legislation recorded in Exodus, Leviticus, and Numbers would have been too great to have been transcribed upon the stones of an altar, since the lettering must have been very large in order that the law might be read easily by the passer-by. In Deuteronomy the stones are to be set up on Mount Gerizim, and the laws are to be inscribed thereon very distinctly and legibly. Such instructions can have applied only to a brief code like the Decalogue, or possibly the Covenant Code, but certainly not to all the legislation of the Pentateuch. An altar large enough for the latter purpose would have been incredibly large; and a stone wall long and high enough to have held all the codes would have taken too much time for the Hebrews to have spared just after they had crossed the Jordan. Another difficulty with the theory of Mosaic authorship is the presence of conflicts in the codes. Three cities of refuge are prescribed in Deut. i9: 1-3; but in Num. 35:9-34 six such cities are called for. Slaves are freed after six years of service according to the Covenant Code (Exod. 21: 1-6) and the Deuteronomic Code (Deut. I5: 2); but the Priestly Code postpones their liberation

till the year of jubilee (Lev.

25:39-42).

The Code of

Hammurabi frees slaves after three years of service, and

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the Book of Jeremiah seems to reveal the fact that in Jeremiah's day the freeing of slaves was as a rule ignored; only under the stress of the lack of food caused by the siege of Jerusalem was freeing of slaves thought of; and when the siege was temporarily discontinued the slaves

were again put under bondage (Jer. 34:8-22). Again, in Exodus, chapters 25-29, the tabernacle is located in the center of the camp, but in Exod. 33:7; Num. 11:24-30; 12:4; and 10:33, in order to reach the tabernacle or tent of meeting one must go outside of the camp. Also in Deut. 1:9-13 Moses proposes a scheme for the selection of assistant judges, and the people select the assistants, Jethro not being mentioned; while in Exod. 18:13-26 Jethro proposes the scheme and Moses makes the selections. In Deut. x: 22 f. the people propose the sending-forth of the spies into Canaan and Moses approves of the proposition; while in Num. 13: 1-3 Yahweh makes the proposal and the people have no part in the transaction. In Deut. 1:37 f. Yahweh forbids the entry of Moses into Canaan because the people had been filled with fear when the spies reported what they had seen; while in Num. 20: 12 Yahweh's prohibition of the entry of Moses into Canaan is based upon the fact that Moses had struck the rock at Meribah and so failed to "honor

God." The treatment of the tithe also differs in the codes. In

Deut.

14: 22-29

the tithe belongs to the farmer himself,

who must use it for a feast for himself and family and for the neighboring Levite; every third year he shall invite the stranger, the Levite, the widow, and the orphan to the feast; while in Num. 18: 21-32 the whole tithe is given to

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the tribe of Levi as their legal right, out of which they must give a tithe to the priests.

Still another kind of difficulty raised by the hypothesis of the Mosaic origin of the whole Hebrew law consists of the inaccurate and inexact statements purporting to come from the pen or mouth of Moses, who was by hypothesis a participant and eyewitness of these conditions and events. In Exod. 12:37 we are told that there were "about 6oo,ooo on foot that were men, besides women and children," and "a mixed multitude" that went up from Egypt. But in Num. 2:32 the number is given as 603,550 men, plus women and children and Levites. Incidentally, it may be noted that about a century ago Goshen supported only 4,000 people; and now, though improved by agriculture and irrigation, the land supports only about 12,000.

Still further, according to Num. 3:43 there were among the Israelites who left Egypt only 22,273 first-born boys. If we add an equal number of first-born girls, then we get the number of families that had any children as 44,546. This shows that only i man out of every 13 had any children. Nevertheless, the Hebrews in Egypt who went down as 70 in number are said to have increased to about 2,000,000 in three generations (though the actual time covered really equaled that of four generations). According to the first four chapters of the Book of Numbers, the number of male Levites was almost equal to the number of first-born males of all the other tribes (viz., 22,000 Levites vs. 22,273 first-born). The average ' For further details see my study of the Deuteronomic tithe in the American Journal of Theology, XVIII (1914), 119-26.

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179

family was scarcely 12 in number; hence the Levites were at least one-twelfth of the people. These figures suggest that the number of children in an average family was 50.' The last obstacle in the way of the view that Moses originated the whole Hebrew law is the fact that the religious practice of early times does not accord with the requirements of the so-called Mosaic law. The Book of Deuteronomy (chap. 12) insists that all sacrifice shall be offered at the central sanctuary; but Samuel, who was a prophet and had functioned in the sanctuary at Shiloh as a boy, is reported to have sacrificed at Ramah in the land

of Zuph (I Sam.

9:12-14),

at Gilgal (I Sam. io:8), and

at Bethlehem (I Sam. 16:2-5). Other places of worship

in his day were Shiloh, Bethel (I Sam. 10:3), and Mizpah (I Sam. io: 18). Elijah sacrificed on Mount Carmel (I Kings 18:30 ff.). David, who was no priest and did not possess priestly powers, offered sacrifice himself (II Sam. 6:12 ff., 17 f.). Samuel is reported to have slept in imme-

diate proximity to the ark of Yahweh (I Sam. 3: 1-9), the sort of thing which the later law prohibited on pain of death (Lev. 16:2, 34). David also consulted the ephod when he desired to learn the will of Yahweh (I Sam. 23:9-12; 30:7 f.), though the later form of the Decalogue forbids the use of images in worship. He also had in his own house an image called the "teraphim" (I Sam. 19: 13I7). This was probably an image of some departed ancestor, a survival of the ancient ancestor worship. It is unnecessary to multiply evidence upon this phase of the history of Hebrew law. Indeed, if Moses did actually dictate all the Hebrew law, there was no history of Hebrew law whatever. The only sort of history that - See G. B. Gray, Sacrifice, p.

214.

18o ORIGIN AND HISTORY OF HEBREW LAW could have been written would be a history of the actual administration of the law, concerning which as a matter of fact we know very little. If the foregoing history of Hebrew law be at all in line with the actual facts, that

history itself makes the Mosaic origin of the four codes wholly impossible.

APPENDIX II THE CODE OF HAMMURABI Translated by D. D. LUCKENBILL, PH.D. Late Professor of Assyriology, University of Chicago and Edited by EDWARD CHIERA, PH.D. Professor of Assyriology, University of Chicago INTRODUCTION

When the lofty Anu, king of the Anunnaki, and Enlil, lord of heaven and earth, who determines the destinies of the land, committed the rule of all mankind to Marduk, the first-born son of Ea, and made him great among the Igigi; when they pronounced the lofty name of Babylon, made it great among the quarters of the world and in its midst established for him an everlasting kingdom whose foundations were firm as heaven and earth-at that time Anu and Enlil named me, Hammurabi, the exalted prince, the worshiper of the gods, to cause righteousness to prevail in the land, to destroy the wicked and the evil, to prevent the strong from plundering the weak, to go forth like the sun over the black-headed race, to enlighten the land and to further the welfare of the people. Hammurabi, the shepherd, named by Enlil am I, who increased plenty and abundance; who made everything complete for Nippur, the bond of heaven and earth; the exalted supporter of Ekur; the wise king, who restored Eridu to its place; who purified the sanctuary of Eabzu; who stormed (?) the four quarters of the world; who made the fame of Babylon great; who rejoiced the heart of Marduk his lord; who in his day served in Esagila; of the seed royal, whom Sin begat; who filled the city of Ur with plenty; the pious and suppliant, one who brings abundance to Ekishshirgal; the wise king, obedient to Shamash; the mighty one who refounded Sippar; who clothed with green the holy places of Aia; who made great Ebarra, which is like a heavenly dwelling; the warrior, the protector of z81

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ORIGIN AND HISTORY OF HEBREW LAW

Larsa; who rebuilt Ebarra for Shamash his helper; the lord who gave life to the city of Uruk; who supplied the water of abundance to its inhabitants; who raised the turrets of Eanna; who heaped up riches to Anu and Innanna; the protecting shadow of the land; who collected the scattered people of Isin; who supplied Egalmakh with luxurious abundance; the monarch of kings, the brother of Zamama; who laid the foundations of the settlement of Kish; who surrounded Emete-ursag with splendor; who set in order the great rites of Innanna; the patron of the temple of Harsagkalamma, the house of the court of the foreigners; whose wishes Irra his helper fulfils; who extended the limits of Cutha; who enlarged Meslam in every way; the mighty bull who gores the enemy; the beloved of Tutu; who made the city of Borsippa rejoice; the exalted one who was untiring for the welfare of Ezida; god of kings, wise and intelligent, who extended the settlements of Dilbat; who stored up grain for the mighty Urash; the lord adorned with scepter and crown, whom the wise goddess Mama has clothed with complete power; who defined the confines of Kesh; who made sumptuous the splendid banquets in honor of Nintu: the wise and perfect one who determined the pasture and watering places for Lagash and Girsu; who provided large sacrifices for Eninnu; who seizes the enemy; the favorite of Telitu; who put into execution the oracles of Hallap; who makes glad the heart of Ishtar; the illustrious prince, whose prayer Adad recognizes; who pacifies the heart of Adad the warrior in Karkara; who re-established the appointments in Eugalgal; the king who gave life to Adab; the benefactor of the temple of Emakh; supreme ruler of kings, the warrior who has no equal; who presented life to the city of Mashkanshabra; who poured out abundance over Mishlam; the wise, the energetic, who carries out every plan, who provided a shelter for the people of Malgu in their misfortune; who founded dwelling-places for them in plenty; who determined for all time the pure sacrifices for Ea and Damgalnunna, who had extended his dominion; who subdued the settlements along the Euphrates, through the strength of Dagan, his creator; who protected the people of Mera and Tutul; the exalted prince, who makes the face of Innanna to shine; who established pure banquets for Ninazu; who helps his people in time of need; who establishes in security their portion in Babylon; the shepherd of the people, whose

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deeds are pleasing to Ishtar; who installed Ishtar in Eulmash in Akkad the spacious; who made justice prevail and who ruled the race with right; who returned to Ashur its gracious protecting deity; who overpowered the incendiary (?); the king who made the name of Innanna glorious in Emishmish in Nineveh; the exalted one who makes supplication to the great gods; the descendant of Sumulael, the powerful heir of Sinmuballit, the ancient seed of royalty, the powerful king, the sun of Babylon, who caused light to go forth over the lands of Shumer and Akkad; the king who caused the four quarters of the world to render obedience; the favorite of Innanna am I. When Marduk sent me to rule the people and to bring help to the land, I established law and justice in the language of the land and promoted the welfare of the people. I

If a man accuse a man, and charge him with murder, but cannot convict him, the accuser shall be put to death. 2

If a man charge a man with sorcery, but cannot convict him, he who is charged with sorcery shall go to the sacred river, and he shall throw himself into the river; if the river overcome him, his prosecutor shall take to himself his house. If the river show that man to be innocent and he come forth unharmed, he that charged him with sorcery shall be put to death. He who threw himself into the river shall take to himself the house of his accuser. 3

If a man, in a case (before the court), offer testimony concerning deeds of violence, and do not establish the testimony that he has given-if that case be a case involving life, that man shall be put to death. 4 If he offer testimony concerning grain or money, he shall himself bear the penalty imposed in that case. 5 If a judge pronounce a judgment, render a decision, deliver a sealed verdict, and afterward reverse his judgment, they shall

184 ORIGIN AND HISTORY OF HEBREW LAW prosecute the judge for reversing the judgment which he has pronounced, and he shall pay twelve fold the damages which were (awarded) in said judgment; and publicly they shall expel him from his seat of judgment, and he shall not return, and with the judges in a case he shall not take his seat. 6 If a man steal the property of god or palace (i.e., church or state), that man shall be put to death; and he who receives from his hand the stolen property shall be put to death. 7 If a man purchase silver or gold, manservant or maidservant, ox, sheep, or ass, or anything else from a man's son, or from a man's servant without witnesses or contracts, or if he receive (the same) for safekeeping, that man is a thief, he shall be put to death. 8 If a man steal ox or sheep, ass or pig, or boat-if it belonged to god or palace, he shall pay thirty fold; if it belonged to a common man, he shall restore tenfold. If the thief have nothing wherewith to pay, he shall be put to death. 9

If a man who has lost anything find that which was lost in the hand of another man; and the man in whose hand the lost property is found say, "A man (lit., a seller, "giver") sold it to me, I purchased it in the presence of witnesses"; and the owner of the lost property say, "I will bring witnesses who know the lost property"; if the purchaser produce the seller who has sold it to him and the witnesses in whose presence he purchased it, and the owner of the lost property produce witnesses who know his lost property, the judges shall look into their matters. The witnesses in whose presence the purchase was made and the witnesses who know the lost property shall declare what they know in the presence of God. The seller shall be put to death as a thief; the owner of the lost property shall receive his lost property; the purchaser shall take from the estate of the seller the money which he paid out.

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I0

If the alleged purchaser do not produce the seller who sold it to him, and the witnesses in whose presence he purchased it, and if the owner of the lost property produce witnesses who know the lost property, the purchaser is a thief, he shall be put to death; the owner of the lost property shall receive his lost property. II

If the (alleged) owner of the lost property do not produce witnesses who know his lost property, he is a mischief-maker, he has stirred up strife, he shall be put to death. 12

If the seller has died, the purchaser shall recover damages in said case fivefold from the estate of the seller. 13 If the witnesses of the man be not at hand, the judges shall grant him a delay of six months; and if he do not produce his witnesses within the six months, that man is a mischief-maker, he shall bear the penalty imposed in that case. 14 If a man steal a man's son who is a minor, he shall be put to death. 15 If a man aid a male or a female slave of the palace, or a male or a female slave of a common man, to escape from the city, he shall be put to death. 16 If a man harbor in his house a runaway male or female slave of the palace or of a common man and do not bring him forth at the call of the commandant, the owner of the house shall be put to death. '7 If a man catch a runaway male or female slave, in the country, and bring him back to the owner, the owner of the slave shall pay him two shekels of silver.

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18 If that slave will not name his owner, he shall bring him to the palace, his past shall be looked up, and they shall return him to his owner. 19 If he detain that slave in his house and later the slave be found in his possession, that man shall be put to death. 20

If the slave escape from the hand of his captor, that man shall make declaration under oath, to the owner of the slave, and shall go free. 21

If a man make a breach in a house, they shall put him to death in front of that breach, and they shall bury him there. 22

If a man practice brigandage and be captured, that man shall be put to death. 23

If the brigand be not captured, the man who has been robbed shall establish the amount of his loss before the god, and the city and the governor, in whose land or border the robbery was committed, shall compensate him for whatsoever was lost. 24

If there were loss of life, the city and governor shall pay one mana of silver to his heirs. 25

If a fire break out in a man's house and a man who goes to extinguish it cast his eye on the household property of the owner of the house, and take the household property of the owner of the house, that man shall be thrown into the fire. 26

If either an officer or a constable who is ordered to go on an errand of the king do not go, or if he hire a substitute and he (the hireling) carry out his task, that officer or constable shall be put to death. His hired substitute shall take to himself his house.

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27

If an officer or a constable in a campaign of the king be captured, and afterward they give his field and garden to another and he perform his (feudal) service, if he return and reach his city, they shall restore to him his field and garden, and he himself shall perform his

service. 28

If an officer or a constable who is in a fortress of the king be captured, and his son be able to perform his service, the field and garden shall be given to him and he shall perform the service of his father. 29

If his son be a minor and be not able to perform the service of his father, one-third of the field and of the garden shall be given to his mother, and his mother shall rear him. 30

If an officer or a constable abandon his field, his garden, and his house along with his service, and leave them uncared for and another after him take his field, his garden, and his house, and perform service three years; if he return and ask for his field, his garden, and his house, they shall not be given to him; he who has taken them and performed his service shall (continue to) perform (the service).

31 If he leave them uncared for but one year and return, his field, his garden, and his house shall be given to him, and he shall perform his service. 32

If a merchant ransom either an officer or a constable who has been captured on an errand of the king, and enable him to reach his city; if there be in his house wherewith to ransom him, he shall ransom himself; if there be not in his house, by the temple of his city he shall be ransomed; if there be not in the temple of his city wherewith to ransom him, the palace shall ransom him. His field, his garden, and his house shall not be given for his ransom.

188 ORIGIN AND HISTORY OF HEBREW LAW 33 If a governor or a magistrate get a dismissed soldier, or accept and send a hired substitute on an errand of the king, that governor or magistrate shall be put to death. 34 If a governor or a magistrate take the property of an officer, plunder an officer, let an officer for hire, betray an officer in a judgment to a man of influence, take the gift which the king has given to an officer, that governor or magistrate shall be put to death. 35 If a man buy from the hand of an officer the cattle or sheep which the king has given to that officer, he shall forfeit his money. 36 The field, garden, and house of an officer, constable, or taxgatherer shall not be sold for silver. 37 If a man purchase the field, garden, and house of an officer, constable, or tax-gatherer, his deed-tablet shall be broken and he shall forfeit his money. The field, garden, and house shall revert to the owner. 38 An officer, constable, or tax-gatherer shall not deed to his wife or daughter the field, garden, and house which are his feudal holding, nor shall he assign them for debt. 39 He may deed to his wife or daughter the field, garden, and house which he has purchased and acquired or he may assign them for debt. 40

A priestess, merchant, or other holder of fiefland may sell his field, his garden, or his house; the purchaser shall perform the feudal service of the field, garden, and house which he has purchased.

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41 If a man have exchanged (some property of his) for the field, garden, and house of an officer, constable, or tax-gatherer and have given money to boot, the officer, constable, or tax-gatherer shall return to his field, garden, and house and he shall take to himself the money which was given to him to boot. 42

If a man rent a field for cultivation and do not produce any grain in the field, because he has not performed the necessary work on the field they shall convict him, and he shall give to the owner of the field grain on the basis of the adjacent (fields). 43 If he do not cultivate the field but neglect it, he shall give to the owner of the field grain on the basis of the adjacent (fields); and the field which he has neglected he shall break up with the spade, he shall harrow, and he shall return to the owner of the field. 44 If a man rent an uncultivated field for three years to develop it, and neglect it and do not develop the field, in the fourth year he shall break up the field with the spade, he shall spade and harrow it, and he shall return it to the owner of the field and shall measure out ten KOR of grain for each ten GAN-measures (of field). 45

If a man rent his field to a tenant for rent and receive the rent of his field and later Adad (i.e., the storm-god) inundate the field, or carry away the produce, the loss is the tenant's. 46 If he have not received the rent of his field whether he had rented the field for one-half or one-third (ef the crop), the grain which is in the field the tenant and the owner of the field shall divide by shares. 47

If the tenant offer a cultivated field into the charge of another because in a former year he had not made his expenses, the owner

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of the field need not permit him (to do so). He is his cultivator, and his field shall be cultivated and at the time of harvest he shall take grain according to his contracts. 48 If a man owe a debt and Adad inundate the field or the flood carry the produce away, or, through lack of water, grain have not grown in the field, in that year he shall not make any return of grain to the creditor, he shall alter his contract-tablet and he need not pay the interest for that year. 49 If a man obtain money from a merchant and give (as security) to the merchant a field prepared for grain or sesame, and say to him, "Cultivate the field, and harvest and take to thyself the grain and sesame which is produced"; and the cultivator raise grain or sesame in the field, at the time of harvest the owner of the field shall receive the grain or sesame which is in the field and he shall give to the merchant grain for the loan which he had obtained from him and for the interest and for the expenses of the cultivation. 50

If he give (as security) a field planted with (grain) or a field planted with sesame, the owner of the field shall receive the grain or the sesame which is in the field and he shall return the loan and its interest to the merchant.

51 If he have not the money to return, he shall give to the merchant (grain or) sesame, as their market value according to the scale fixed by the king, for the loan and its interest which he has obtained from the merchant. 52

If the tenant do not raise a crop of grain or sesame, he shall not change his contract. 53 If a man neglect to strengthen his dike, and do not strengthen his dike, and a break be made in his dike and he let the water carry away the farmland, the man in whose dike the break has been made shall restore the grain which he has damaged.

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54 If he be not able to restore the grain, they shall sell him and his goods, and the farmers whose grain the water has carried away shall divide (the results of the sale).

55 If a man open his canal for irrigation and neglect it and he let the water carry away an adjacent field, he shall measure out grain on the basis of the adjacent fields. 56 If a man open up the water and he let the water carry away the preparations of an adjacent field, he shall measure out ten KOR Of grain for each GAN-measure (of field).

57 If a shepherd have not come to an agreement with the owner of a field to pasture his sheep on the grass, and if he pasture his sheep on the field without the consent of the owner, the owner of the field shall harvest his field, and the shepherd who has pastured his sheep on the field without the consent of the owner of the field shall give over and above twenty KOR of grain for each ten GAN to the owner of the field. 58 If, after the sheep have gone up from the meadow and have crowded their way through the gate into the public common, the shepherd turn the sheep into the field, and pasture the sheep on the field, the shepherd shall oversee the field on which he pastures and at the time of harvest he shall measure out sixty KOR Of grain for each ten GAN to the owner of the field. 59 If a man cut down a tree in a man's orchard without the consent of the owner of the orchard, he shall pay one-half mana of silver. 6o If a man give a field to a gardener to plant as an orchard and the gardener plant the orchard and care for the orchard four years, in the fifth year the owner of the orchard and the gardener shall share equally; the owner of the orchard shall choose his share and take it.

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61 If the gardener do not plant the whole field, but leave a portion uncultivated, they shall assign the uncultivated portion to his share. 62

If he do not plant as an orchard the field which was given to him, if it be a cultivated (field) as rent for the field for the years during which it has been neglected, the gardener shall measure out (grain) to the owner of the field on the basis of the adjacent fields, and he shall perform the required work on the field and he shall restore it to the owner of the field. 63 If the field be an uncultivated one, he shall perform the required work on the field and he shall restore it to the owner of the field and he shall measure out ten xon of grain per GAN for each year. 64 If a man give his orchard to a gardener to manage, the gardener, as long as he is in possession of the orchard, shall give to the owner of the orchard two-thirds of the produce of the orchard; he himself shall take one-third. 65 If the gardener do not pollinate the orchard, and he diminish the yield, the gardener shall measure out the yield of the orchard on the basis of the adjacent orchards. [NOTE:-Five columns have been erased from the stela, but part of the gap has been filled by clay tablets containing duplicate text.] 66 If a man borrow money from a merchant, and his merchant foreclose(?) on him, if he have no money for repayment, but give his orchard, after (it has been) pollinated, to the merchant, and say to him, "The dates, as many as there (are produced) in the orchard, take for your money," that merchant shall not agree. The dates, as many as there are in the orchard, the owner shall take (gather) and shall pay the merchant the money and its interest according to the wording of his tablet; and the remaining dates which are in the orchard the owner shall take (for himself).

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67 If a man build a house and his neighbor(?).............

....................

70(?) he shall give to him.

If he pay grain, silver, or personal property for a fief estate which is of the estate of his neighbor which he is purchasing, he shall lose everything which he paid; the estate shall return to its holder. If that estate have not vassalage obligation (resting upon it), he may buy it; for that estate he may pay grain, silver, or personal property. 72 (?) If a man .

.

. without the consent of neighbor(?) make(?) in his

own(?) house he may make(?) ...... neighbor he may not)................

but to the (house of his

76(?) "strengthen the (lit., thy) damage which they did to thy house." To the owner of a ruined (house): "(Re)build the (your) ruin(ed house) which they dig out of your.

".....

78(?) If a man who is a tenant have paid the full amount of money for his rent for the year to the owner of the house, and he (the owner) say to him before "his days are full," "Vacate," the owner of the house, because he made the tenant move out of his house before "his days were full," shall lose the money which the tenant paid him. 86 If a merchant put out money (grain meant) at interest, for one KOR he shall receive one hundred sila of grain as interest. 87 If he put out money at interest, for one shekel of silver he shall receive one-fifth of a shekel (lit., one-sixth of a shekel plus six sHE) as interest.

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88 If a man who owes (money at) interest have no money (silver) wherewith to repay, but have grain, according to the regulation of the king (he shall measure out grain) for his interest, (and the merchant) shall receive it. 89 If a merchant increase the interest (on grain beyond one hundred SILA for) one KOR, (for the interest on silver beyond) one-sixth shekel plus six SHE (= one-fifth shekel) and take (this interest), he shall lose whatever he put out (at interest). 90

If a merchant put out grain or silver at interest, the interest ... . .

. the grain or

.

.

of grain or silver . . . . he received(s) . he shall not..... ... 92

(If a merchant put out grain or silver at interest) but do not deduct the grain or silver which he received and do not write a new document, or if he add the interest to the principal, that merchant shall pay back double the grain (or silver) which he received. 93 If a merchant put out grain or silver at interest and when he puts it out at interest he give silver by the small stone and grain by the small measure but when he receives (it) back he receive silver by the large stone and grain by the large measure, that man shall lose whatever he put out. 94 If a merchant put out (give) .

est, and ..... .give ...... (gave).

,

. .

. (grain or silver[?]) at inter-

he shall lose whatever he put out

96(?) If a man receive grain or silver from a merchant and do not have grain or silver to repay, but have personal property, whatever there is in his hand, when he brings it before witnesses, he shall give to the merchant. The merchant shall not refuse (it), he shall receive (it).

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97 shall be put to death.

98 If a man give silver to a man for a partnership, they shall divide equally before God the profit and the loss, whatever there is (of either). 99 If a merchant give money at interest to a peddler for trading and send him out on the road and the peddler, on the road ...... I0O

If he (the peddler) made money (lit., saw profit) where he went, he shall write down the interest on all the money he received, and he shall count up his days, and make his return to the merchant. I0I

If he made no money where he went, the agent shall double the amount of money obtained and he shall pay it to the merchant. 102

If a merchant give money to an agent as a favor, and the latter meet with a reverse where he goes, he shall return the principal of the money to the merchant. 103

If, when he goes on a journey, an enemy rob him of anything he was carrying, the agent shall take an oath in the name of God and go free. 104

If a merchant give an agent grain, wool, oil, or goods of any kind with which to trade, the agent shall write down the money (received) and return it to the merchant. The agent shall take a sealed receipt for the money which he gives to the merchant. 105

If the agent be careless and do not take a receipt for the money which he has given to the merchant, the money not receipted for shall not be placed to his account.

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If an agent obtain money from a merchant and have a dispute with the merchant (i.e., deny the fact), that merchant shall call the agent to account in the presence of God and witnesses for the money obtained and the agent shall give to the merchant threefold the amount of the money which he obtained. 107 If a merchant lend money to an agent and the agent return to the merchant anything of what the merchant had given him; and if the merchant deny that the agent has given to him anything, that agent shall call the merchant to account in the presence of God and witnesses; and the merchant, because he has had a dispute with his agent, shall give to him sixfold the amount which he obtained. io8 If a barmaid do not take grain in payment of drink, but if she take money by the great stone, or make the measure of drink smaller than the measure of grain, they shall prosecute that barmaid, and they shall throw her into the water. log If outlaws hatch a conspiracy in the house of a wine-seller, and she do not arrest these outlaws and bring them to the palace, that wine-seller shall be put to death. IIO

If a priestess or a nun who is not resident in a convent open a wineshop or enter a wineshop for a drink, they shall burn that woman. III

If a barmaid give sixty KA of pihu-wine on credit(?), at the time of harvest she shall receive fifty KA of grain. 112

If a man be on a journey and he give silver, gold, (precious) stones, or his portable property to a man, delivering them to him for transportation, and if that man do not deliver that which was to be transported where it was to be transported, but take it to

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himself, the owner of the transported goods shall call that man to account for the goods to be transported which he did not deliver, and that man shall give to the owner of the transported goods fivefold the amount which was given to him. 113 If a man hold a debt of grain or money against a man, and if he help himself to grain without the consent of the owner from the heap or the granary, they shall call that man to account for taking grain without the consent of the owner from the heap or the granary, and he shall return as much grain as he took, and he shall forfeit all that he has lent, whatever it be. 114

If a man do not hold a debt of grain or money against a man, and seize (him or his family as) his pledge, for each pledge seized he shall pay one to three mana of silver. "15 If a man hold a debt of grain or money against a man, and seize his pledge, and the pledge die a natural death in the house of him who seized him, that case has no penalty. 116

If the pledge die of a blow or bad treatment in the house of him who seized him, the owner of the pledge shall call his merchant to account; and if it be a man's son, they shall put his son to death; if it be a man's servant, he shall pay one to three mana of silver and he shall forfeit whatever amount he had lent. "7 If an obligation of a man mature and he (give) his wife, his son, or his daughter, or bind them over to service, for three years they shall work in the house of their purchaser or master; in the fourth year their freedom shall be given (them). 118 If he bind over to service a male or female slave, and if the merchant transfer or sell such slave, there is no ground for a suit.

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119 If an obligation of a man mature and he sell for silver his maidservant who has borne him children, the owner of the maidservant (i.e., the man in debt) shall repay the money which the merchant paid, and he shall redeem his maidservant. 120

If a man pour out his grain in the house of another for storage and a loss happen in the granary, or the owner of the house open the granary and take the grain or he raise a dispute about the grain which was stored in his house, the owner of the grain shall declare his grain in the presence of God, and the owner of the house shall double the amount of the grain which he took and restore it to the owner of the grain. 121

If a man store grain in the house of another, he shall pay, per year, a storage charge of five KA of grain per KOR. 122

If a man give to another silver, gold, or anything else for safekeeping, whatever he gives he shall show to witnesses and he shall draw up contracts and then give it for safekeeping. 123

If a man give for safekeeping without witnesses or contracts, and at the place of deposits they dispute with him, that case has no penalty. 124

If a man give to another silver, gold, or anything else for safekeeping in the presence of witnesses and the latter dispute with him (or deny it), they shall call that man to account and he shall double whatever he has disputed and repay it. 125

If a man give anything of his for safekeeping and at the place of deposit either by burglary or by pillage his property along with the property of the owner of the house be carried off, the owner of the house who has been negligent and has lost whatever was given to him on deposit shall make good (the loss) and restore (it) to the

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owner of the goods; the owner of the house may institute a search for what has been lost and take it from the thief. 126

If a man, nothing of whose has been carried off, say, "Something of mine has been carried off," alleging he sustained loss when nothing of his had been carried off, he shall declare his (alleged) loss in the presence of God, and he shall double and pay the amount for which he had made claim for his (alleged) loss. 127

If a man point the finger at a nun or the wife of a man and cannot justify it, they shall drag that man before the judges and they shall cut the hair of his forehead. 128

If a man take a wife and do not draw up a contract with her, that woman is not a wife. 129

If the wife of a man be taken in lying with another man, they shall bind them and throw them into the water. If the husband of the woman spare the life of his wife, the king shall spare the life of his servant (i.e., subject). 130 If a man force the (betrothed) wife of a man, who has not known a male and is living in her father's house, and lie in her bosom, and they take him, that man shall be put to death and that woman shall go free. 131 If a man accuse his wife and she have not been taken in lying with another man, she shall take an oath in the name of God and she shall return to her house. 132 If the finger have been pointed at the wife of a man because of another man, and she have not been taken in lying with another man, for her husband('s sake) she shall throw herself into the sacred river (i.e., she shall submit to the ordeal).

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133 (PARTLY RESTORED) If a man be taken captive and there be something to eat in his house and his wife go out of her house and she do not protect her body and she enter into another house, because that woman did not protect her body and entered into another house they shall convict that woman and they shall throw her into the water. 134

If a man be taken captive and there be nothing to eat in his house and his wife enter into another house, that woman has no blame.

135 If a man be taken captive and there be nothing to eat in his house, and his wife enter into another house and bear children; if later her husband return and reach his city, that woman shall return to her husband; the children shall go to their father. 136 If a man desert his city and run away, and afterward his wife enter into another house, if that man return and seize his wife, because he hated his city and fled, the wife of the fugitive shall not return to her husband. 137

If a man set his face to put away a concubine who has borne him children or a wife who has presented him with children, they shall return to that woman her dowry and shall give to her part of field, garden, and goods, and she shall bring up her children; from the time that her children are grown up, from whatever is given to her children they shall give to her a portion corresponding to that of a son and the man of her choice may marry her. 138 If a man put away his wife who has not borne him children, he shall give her money to the amount of her marriage settlement and he shall make good to her the dowry which she brought from her father's house and then he may put her away. 139 If there were no marriage settlement, he shall give to her one mana of silver for a divorce.

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140

If he be a common man, he shall give her one to three mana of silver.

141 If the wife of a man who is living in his house set her face to go out, playing the fool, ruining her house, and belittling her husband, they shall convict her; if her husband announce her divorce, he may put her away. (For) her journey (home) no alimony shall be given to her. If her husband do not announce her divorce, her husband may take another woman. That woman (the first wife) shall dwell in the house of her husband as a maidservant. 142

If a woman hate her husband and say, "Thou shalt not have me," her past shall be inquired into for any deficiency of hers; and if she have been careful and be without past sin and her husband have been going out and greatly belittling her, that woman has no blame. She shall take her dowry and go to her father's house. 143 If she have not been careful, have been going out, ruining her house and belittling her husband, they shall throw that woman into the water. 144 If a man take a wife and that wife give a maidservant to her husband and cause him to have children, if that man set his face to take a concubine, they shall not countenance him. He may not take a concubine. 145 If a man take a wife and she do not present him with children, and he set his face to take a concubine, that man may take a concubine and bring her into his house. That concubine shall not take precedence of his wife. 146

If a man take a wife and she give a maidservant to her husband, and she bear children and afterward that maidservant would take precedence of her mistress; because she has borne children, her mistress may not sell her for money, but she may reduce her to bondage and count her among the maidservants.

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147 If she have not borne children, her mistress may sell her for money. 148

If a man take a wife and disease seize her, and he set his face to take a concubine, he may do so. His wife whom disease has seized he may not put away. She shall dwell in the house which he has built and he shall maintain her as long as she lives. 149

If that woman be not willing to dwell in her husband's house, he shall make good to her the dowry which she brought from her father's house and she may go her way.

150 If a man make his wife a present of field, garden, house, and goods and deliver to her a sealed deed, after (the death of) her husband her children may not make any claim against her. The mother after her (death) may give (them) to her child whom she loves, but to a brother she may not give (them). 151 If a woman who is living in the house of a man make a contract with her husband that his creditors may not seize her (for his debts) and have him deliver a written agreement; if that man were in debt before he took that woman, his creditors may not seize his wife, and if that woman were in debt before she entered into the house of the man, her creditors may not seize her husband. 152 If they contract (var., if her husband contract) a debt after the woman has entered into the house of the man, both of them shall be answerable to the merchant. 153 If the wife of a man bring about the death of her husband because of another man, they shall impale that woman. 154

If a man have sexual intercourse with his daughter, they shall expel that man from the city.

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155 If a man have betrothed a bride to his son and his son have had sexual intercourse with her, and if he (the father) afterward lie in her bosom and they take him, they shall bind that man and throw him (text reads, her) into the water. I156

If a man have betrothed a bride to his son and his son have not had sexual intercourse with her, and he (the father) lie in her bosom, he shall pay her one to two mana of silver, and he shall make good to her whatever she brought from the house of her father and the man of her choice may take her.

157 If a man, after (the death of) his father, lie in the bosom of his mother, they shall bum both of them. I8 If a man, after (the death of) his father, be taken in the bosom of his (father's) chief wife who has borne children, that man shall be driven away from his father's house. 159 If a man who has brought a present to the house of his father-inlaw and has given the marriage settlement look with longing upon another woman and say to his father-in-law, "I will not take thy daughter," the father of the daughter shall take to himself whatever was brought to him.

16o If a man bring a present to the house of his father-in-law and give a marriage settleAent and the father of the daughter say, "I will not give thee my daughter," he (the father-in-law) shall double everything which was brought to him and return it. 161 If a man bring a present to the house of his father-in-law and give a marriage settlement, and his friend slander him and his father-in-law say to the "lord of the wife," "My daughter thou shalt not take," he (the father-in-law) shall double everything which was brought to him and return it, but his friend may not take

his wife.

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ORIGIN AND HISTORY OF HEBREW LAW 162

If a man take a wife and she bear him children and that woman die, her father may not lay claim to her dowry. Her dowry belongs to her children. 163 If a man take a wife and she do not present him with children and that woman die; if his father-in-law return to him the marriage settlement which that man brought to the house of his father-inlaw, her husband may not lay claim to the dowry of that woman. Her dowry belongs to the house of her father. 164 If his father-in-law do not return to him the marriage settlement, he may deduct from her dowry the full amount of the marriage settlement and return (the rest of) her dowry to the house of her father. 165

If a man make a present of field, garden, and house to his son who is first in his eyes and write for him a sealed deed; after the father dies, when the brothers divide, he shall take the present which the father gave him, and over and above they shall divide the goods of the father's house equally. 166

If a man take wives for his sons and do not take a wife for his youngest son; after the father dies, when the brothers divide, they shall give from the goods of the father's house to their youngest brother, who has not taken a wife, in addition to his portion, money for a marriage settlement, and they shall enable him to take a wife. 67 If a man take a wife and she bear him children and that woman die, and after her (death) he take another woman and she bear him children and later the father die, the children shall not divide (the estate) according to mothers. They shall receive the dowries of their (respective) mothers and they shall divide equally the goods of the house of their father. 168

If a man set his face to disinherit his son and say to the judges, "I will disinherit my son," the judges shall inquire into his past,

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and if the son have not committed a crime sufficiently grave to cut him off from sonship, the father may not cut off his son from sonship. 169

If he have committed a crime against his father sufficiently grave to cut him off from sonship, they shall condone his first (offense). If he commit a grave crime a second time, the father may cut off his son from sonship. 170 If a man's wife bear him children and his maidservant bear him children, and the father during his lifetime say to the children which the maidservant bore him, "My children," and reckon them with the children of his wife; after the father dies the children of the wife and the children of the maidservant shall divide the goods of the father's house equally. The child of the wife shall have the right of choice at the division. 171 But if the father during his lifetime have not said to the children which the maidservant bore him, "My children," after the father dies the children of the maidservant shall not share in the goods of the father's house with the children of the wife. The maidservant and her children shall be given their freedom. The-children of the wife may not lay claim to the children of the maidservant for service. The wife shall take her dowry and the gift which her husband gave and deeded to her on a tablet and she may dwell in the house of her husband and enjoy (the property) as long as she lives. She may not sell it. Her residue belongs to her children. 172

If her husband have not given her a gift, they shall make good her dowry and she shall receive from the goods cf her husband's estate a portion corresponding to that of a son. If her children keep plaguing her, to drive her out of the house, the judges shall inquire into her past and place the blame on the children. That woman need not go out from her husband's house. 172A If the woman set her face to go out, the shall leave to her children the gift which her husband gave her; she shall receive the

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dowry of her father's house, and the husband of her choice may take her. 173 If that woman bear children to her later husband into whose house she has entered, and later that woman die, the earlier and the later children shall divide her dowry. 174

If she do not bear children to her later husband, the children of her first husband shall receive her dowry. 175 If either a slave of the palace or a slave of a common man take the daughter of a gentleman and she bear children, the owner of the slave may not lay claim to the children of the daughter of the gentleman for service. 176 But if a slave of the palace or a slave of a common man take the daughter of a (gentle)man, and when he takes her she enter into the house of the slave of the palace or the slave of the common man with the dowry of her father's house, whereupon they join hands and acquire property, and later the slave of the palace or the slave of the common man die, the daughter of the man shall receive her dowry; and they shall divide into two parts whatever her husband and she had acquired from the time they joined hands; the owner of the slave shall receive one-half and the daughter of the man onehalf for her children. 176A If the daughter of the man have no dowry, they shall divide into two parts whatever her husband and she acquired from the time they joined hands; the owner of the slave shall receive one-half and the daughter of the man shall receive one-half for her children. '77 If a widow whose children are minors set her face to enter another house, she may not enter (it) without the consent of the judges. When she enters another house, the judges shall inquire into the condition of the estate of her former husband and they shall intrust the estate of her earlier husband to the later husband and that

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woman, and they shall require them to furnish a receipt. They shall administer the estate and rear the minors. They may not sell the household goods; the purchaser who purchases household goods belonging to the sons of a widow shall lose his money. The goods shall revert to their owner. 178 If to a nun, a priestess, or a palace woman her father have given a dowry and written a deed; if in the deed which he has written for her he have not granted her (permission) to give her inheritance to whomsoever she may please-have not granted her full discretion; after the father dies her brothers shall take her field and her garden and they shall give her grain, oil, and wool according to the value of her share and they shall make her content. If her brothers do not give her grain, oil, and wool according to the value of her share and they do not make her content, she may give her field and her garden to any tenant she may please and her tenant shall maintain her. She shall enjoy the field, garden, and anything else which her father gave her as long as she lives; she may not sell (them) or transfer (them). Her heritage belongs to her brothers. 179 If to a nun, a priestess, or a palace woman her father have given a dowry and written a deed; if in the deed which he has written for her he have granted her (permission) to give her inheritance to whomsoever she may please-have granted her full discretion; after the father dies she may give her inheritance to whomsoever she may please. Her brothers may not bring any claim against her.

18o If a father do not give a dowry to his daughter who is a cloister nun or a palace woman, after her father dies she shall receive as her share in the goods of her father's house a portion as of a son, and she shall enjoy it as long as she lives. After her (death) it belongs to her brothers.

181 If a father devote (his daughter) as a nun, sacred prostitute, or temple woman to a god and do not give her a dowry, after her father dies she shall receive as her share in the goods of her father's

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house one-third of the portion of a son and she shall enjoy it as long as she lives. After her (death) it belongs to her brothers. 182

If a father do not give a dowry to his daughter, a priestess of Marduk of Babylon, and do not write for her a deed, after her father dies she shall receive as her share with her brothers one-third the portion of a son in the goods of her father's house, but she need not render any feudal services pertaining thereto. A priestess of Marduk after her (death) may give to whomsoever she may please. 183 If a father present a dowry to his daughter who is a concubine and give her to a husband and write her a deed, after the father dies he shall not share in the goods of her father's house. 184

If a man do not present a dowry to his daughter who is a concubine, and do not give her to a husband; after her father dies her brothers shall present her a dowry proportionate to the value of her father's estate and they shall give her to a husband. 185

If a man with his (father's[?]) consent take a young child for sonship (i.e., adopt him), and rear him, one may not bring claim for that adopted son. 186

If a man take a young child for sonship and, when he takes him, he use undue influence upon his father and mother, that adopted son shall return to the house of his father. 187 One may not bring claim for the son of a chamberlain who is a palace servant or the son of a palace woman. 188 If an artisan take a son for rearing and teach him his handicraft, one may not bring claim (for him). 189 If he do not teach him his handicraft, that adopted son may return to his father's house.

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190

If a man do not reckon among his sons the young child whom he has taken for sonship and reared, that adopted son may return to his father's house. '9' If a man who has taken a young child for sonship and reared him establish a house and later have children; if he set his face to cut off the adopted son, that son shall not go away empty. The father who reared him shall give to him of his goods one-third the portion of a son, and then he shall go. He need not give to him of field, garden, or house. 192

If the (adopted) son of a chamberlain or the son of a palace woman say to his father who has reared him or his mother who has reared him, "Thou art not my father," "Thou art not my mother," they shall cut out his tongue.

193 If the (adopted) son of a chamberlain or the son of a palace woman identify his father's house (i.e., discover his parentage) and hate the father who has reared him and the mother who has reared him and go back to his father's house, they shall pluck out his eye.

194 If a man give his son to a nurse and that son die in the hands of the nurse, and without (the knowledge of) his father and mother the nurse come to an agreement (with some other family to substitute) another son, they shall convict her, and because she has made an agreement (to substitute) another son without the consent of the father and mother, they shall cut off her breast. 195 If a man strike his father, they shall cut off his hand. 196 If a man destroy the eye of another man, they shall destroy his eye. 197 If he break a man's bone, they shall break his bone.

21o

ORIGIN AND HISTORY OF HEBREW LAW 198

If he destroy the eye of a common man or break a bone of a common man, he shall pay one mana of silver.

199 If he destroy the eye of a man's slave or break a bone of a man's slave, he shall pay one-half his price. 200

If a man knock out a tooth of a man of his own rank, they shall knock out his tooth. 201

If he knock out a tooth of a common man, he shall pay one-third mana of silver. 202

If a man smite on the cheek a man who is his superior, he shall receive sixty strokes with an oxtail whip in public. 203

If the son of a gentleman smite the son of a gentleman of his own rank on the cheek, he shall pay one mana of silver. 204

If a common man smite a common man on the cheek, he shall pay ten shekels of silver. 205

If a man's slave smite the son of a gentleman on the cheek, they shall cut off his ear. 206

If a man strike (another) man in a quarrel and wound him, that man shall swear, "I did not strike him intentionally," and he shall be responsible for the physician. 207

If he die as the result of the blow, he shall swear (as above), and if it were the son of a gentleman, he shall pay one-half mana of silver. 208

If it were a common man, he shall pay one-third mana of silver.

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209

If a man strike the daughter of a man and bring about a miscarriage, he shall pay ten shekels of silver for her miscarriage. 210

If that woman die, they shall put his daughter to death. 211

If through a blow he bring about a miscarriage to the daughter of a common man, he shall pay five shekels of silver. 212

If that woman die, he shall pay one-half mana of silver. 213

If he strike the maidservant of a man and bring about a miscarriage, he shall pay two shekels of silver. 214

If that maidservant die, he shall pay one-third mana of silver. 215

If a physician make a deep incision upon a man (i.e., perform a major operation) with his bronze lancet and save the man's life; or if he operate on the eye socket of a man with his bronze lancet and save that man's eye, he shall receive ten shekels of silver. 216

If it were a common man, he shall receive five shekels. 217

If it were a man's slave, the owner of the slave shall give two shekels of silver to the physician. 218

If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eye, they shall cut off his hand. 219

If a physician make a deep incision upon a slave of a common man with his bronze lancet and cause his death, he shall substitute a slave of equal value.

212

ORIGIN AND HISTORY OF HEBREW LAW 220

If he operate on the eye socket with his bronze lancet and destroy his eye, he shall pay silver to the extent of half his price. 221

If a physician set a broken bone for a man or cure a sprained tendon, the patient shall give five shekels of silver to the physician. 222

If it were a common man, he shall give three shekels of silver. 223

If it were a man's slave, the owner of the slave shall give two shekels of silver to the physician. 224

If a veterinary surgeon (lit., physician of an ox or an ass) make a deep incision upon an ox or an ass and save its life, the owner of the ox or ass shall give to the surgeon as his fee one-sixth of a shekel of silver. 225

If he make a deep incision upon an ox or an ass and cause its death, he shall give to the owner of the ox or ass one-fourth its value. 226

If a barber without, (the consent of) the owner of the slave cut the hair of the forehead of a slave (making him) unrecognizable, they shall cut off the hand of that barber. 227

If a man deceive a barber and he cut the hair of the forehead of a slave (making him) unrecognizable, they shall put that man to death, and they shall cover him up by his gate. The barber shall swear, "I did not cut his hair knowingly," and he shall go free. 228

If a builder erect a house for a man and complete it, he shall give him two shekels of silver per SAR of house as his wage.

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229

If a builder erect a house for a man and do not make its construction firm, and the house which he built collapse and cause the death of the owner of the house, that builder shall be put to death. 230

If it cause the death of a son of the owner of the house, they shall put to death a son of that builder. 231

If it cause the death of a slave of the owner of the house, he shall give to the owner of the house slave for slave. 232

If it destroy property, he shall restore whatever he destroyed, and because he did not make the house which he built firm and it collapsed, he shall rebuild the house which collapsed from his own property (i.e., at his own expense). 233 If a builder erect a house for a man and do not surround it with walls of proper construction, and a wall fall in, that builder shall strengthen that wall at his own expense. 234 If a shipbuilder (lit., sailor) construct a boat of sixty-GUR ca-

pacity for a man, he shall give to him two shekels of silver as his wage. 235 If a shipbuilder construct a boat for a man and he do not make its construction trustworthy, and that boat develop structural weakness the same year (and) have an accident, the shipbuilder shall dismantle that boat and he shall strengthen it at his own expense and he shall give the strengthened boat to the owner of the boat. 236

If a man hire his boat to a boatman and the boatman be careless and sink or wreck the boat, the boatman shall replace the boat to the owner of the boat.

214

ORIGIN AND HISTORY OF HEBREW LAW 237

If a man hire a boatman and a boat and freight it with grain, wool, oil, dates, or any other kind of freight, and that boatman be careless and sink the boat or lose its cargo, the boatman shall replace the boat which he sank and whatever portion of the cargo he lost. 238

If a boatman sink a man's boat and refloat it, he shall pay (the owner) one-half its value. 239

If a man hire a boatman, he shall give him six GUR of grain per year. 240

If a boat going forward (i.e., up or down stream) strike a boat going across stream, and sink it, the owner of the boat whose boat was sunk shall establish, before God, what was lost in his boat and (the owner) of the boat going forward which sank the boat going across stream shall replace his boat and whatever he lost. 241

If a man carry off an ox as security for debt, he shall pay onethird mana of silver. 242, 243

If a man hire (cattle) for a year, he shall give to the (its) owner GUR of grain

four GUR of grain as the hire of a plow ox (and) three as the hire of a ... . cow. 244

If a man hire an ox or an ass and a lion kill it on the plain, (the loss) is the owner's affair. 245

If a man hire an ox and cause its death through neglect or abuse, he shall restore ox for ox to the owner of the ox. 246

If a man hire an ox and break its foot or cut its neck tendon, he shall restore ox for ox to the owner of the ox.

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247

If a man hire an ox and destroy its eye, he shall pay the owner of the ox half its value. 248

If a man hire an ox and break its horn or cut off its tail, or pull out the flesh of its ring (i.e., the flesh of the nose), he shall pay onefourth of its value. 249

If a man hire an ox and a god strike it and it die, the man who hired the ox shall take an oath before God and go free. 250

If an ox when passing through the street gore a man and bring about his death, that case has no penalty. 251 If a man's ox have been wont to gore and they have made known to him his fault of goring, and he have neither cut off his horns nor tied him up, and that ox gore the son of a man and bring about his death, he shall pay one-half mana of silver. 252

If it were the servant of a man, he shall pay one-third mana of silver. 253

If a man hire a man to oversee his farm and hand over to him implements and intrust him with oxen and contract with him for the cultivation of the field; if that man steal either the seed grain or the fodder and it be found in his hand, they shall cut off his hand. 254 If he take the implements and weaken the oxen, he shall restore the stand(?) of grain which he sowed(?). 255 If he hire out the oxen of the man, or steal the seed grain and do not raise (anything) in the field, they shall convict that man and he shall measure out sixty GUR of grain per ten(?)

GAN.

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ORIGIN AND HISTORY OF HEBREW LAW 256

If he be not able to meet his obligation, they shall leave him in that field with the oxen (i.e., make him do the work). 257

If a man hire a plowman, he shall pay him eight year.

GUR

of grain per

258

If a man hire an ox herder, he shall pay him six GUR of grain per year. 259 If a man steal a plow in a field, he shall pay five shekels of silver to the owner of the plow. 260

If a man steal a plow point(?) or a beam (of a plow), he shall pay three shekels of silver. 261

If a man hire a herdsman to pasture oxen or sheep, he shall pay him eight GUR of grain per year. 262

If a man, an ox or a sheep to ......................... 263

If he lose an ox or sheep which is given to him, he shall restore to their owner ox for ox, sheep for sheep. 264

If a shepherd to whom oxen or sheep have been given to pasture be in possession of his hire and his heart be satisfied, and he let the cattle or sheep decrease in number, or lessen the increase (i.e. birth-rate), according to the word of his contract he shall hand over (both) increase and his share. 265

If a shepherd to whom oxen or sheep have been given to pasture become unfaithful, alter the brand, or sell them, they shall convict him and he shall restore tenfold to their owner the oxen and sheep he has stolen.

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266

If a visitation of God happen to a fold, or a lion kill, the shepherd shall show himself innocent before God, and the owner of the fold shall accept the loss of the fold. 267

If a shepherd be careless and allow disease (the "whites," leucorrhea) to develop in the fold, the shepherd shall make good in cattle and sheep the loss through the disease which he allowed to develop in the fold, and give them to their owner. 268

If a man hire an ox to thresh, twenty KA of grain is its hire. 269

If he hire an ass to thresh, ten KA of grain is its hire. 270

If he hire a young animal to thresh, one

KA

of grain is its hire.

271

If a man hire oxen, a wagon, and a driver, he shall pay of grain per day.

18o

KA

272

If a man hire a wagon only, he shall pay forty KA of grain per day. 273 If a man hire a day laborer, from the beginning of the year until the fifth month he shall pay six

SHE

Of silver per day; from the sixth

month till the end of the year he shall pay five SHE of silver per day. 274

If a man hire an artisan (skilled laborer), the wage of a .... is five SHE of silver; the wage of a baker(?) is five SHE of silver; the wage of a tailor(?) is five SHE Of silver; the wage of a lapidary is . . . . SHE of silver; the wage of a . . . . is . . . . . SHE of silver; the wage of a smith is . . . . SHE of silver; the wage of a carpenter is four(?) SHE of silver; the wage of a leather worker is . . . . SHE of silver; the wage of a basket-maker is . . . . SHE of silver; the wage of a mason is . . . . SHE of silver; so much per day shall he pay.

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If a man hire a ........ day.

275 its hire is three

SHE

of silver per

276

If he hire a ....... .he shall pay two and one-half silver per day as its hire. 277

SHE

Of

If a man hire a boat of sixty GUR (tonnage), he shall pay one-

sixth of a shekel of silver as its hire per day. 278

If a man buy a male or female slave, and the slave have not completed his month when epilepsy attacks him, the buyer shall return him to the seller and shall receive the money which he paid. 279

If a man buy a male or female slave of a man in a foreign country, and there be a claim against him, the seller shall be responsible for the claim. 280

If a man buy a male or female slave of a man in a foreign country, and if when he comes back to his own land the (former) owner of the male or female slave recognize his male or female slave, if the male or female slave be natives of the land, their freedom shall be granted without money. 281

If they be natives of another land, the buyer shall declare before God the money which he paid (for them), and the owner of the male or female slave shall give to the merchant the money which he paid out, and shall (thus) redeem his male or female slave. 282

If a male slave say to his master, "Thou art not my master," his master shall prove him to be his slave and shall cut off his ear. CONCLUSION

The righteous laws which Hammurabi the wise king established and (by which) he gave the land a firm support and a gracious rule. Hammurabi the perfect king am I. I was not careless nor was I

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neglectful of the black-headed (people), whom Bel presented to me and whose care Marduk gave to me. Regions of peace I spied out for them, grievous difficulties I overcame-caused light to shine forth for them. With the powerful weapon which Zamama and Innanna intrusted to me, with the breadth of vision which Ea allotted to me, with the might which Marduk gave me, I expelled the enemy north and south; I made an end of their raids; I promoted the welfare of the land; I made the peoples to rest in habitations of security; I permitted no one to molest them. The great gods have named me and I am the guardian shepherd whose scepter is righteous; my beneficent shadow is spread over the city. In my bosom I have carried the peoples of the land of Shumer and Akkad, under my protection I brought their (its) brethren into security; with my wisdom I covered them; that the strong might not oppress the weak, and that they should give justice to the orphan and the widow, in Babylon, the city whose head Anu and Enlil raised aloft, in Esagila, the temple whose foundations stand firm as heaven and earth, to pronounce judgments for the land, to render decisions for the land, to give justice to the oppressed, my weighty words I have written upon my monument, and in the presence of the image of me, king of righteousness, have I set it up. The king who is preeminent among kings am I. My words are precious, my wisdom is unrivaled. By the command of Shamash, the great judge of heaven and earth, may I make righteousness to shine forth on the land; by the word of Marduk, my lord, may there be none to set aside my statutes; in Esagila which I love may my name be remembered with favor forever. Let any oppressed man who has a cause come before the image of me, the king of righteousness! Let him have read to him the writing on my monument! Let him give heed to my weighty words! And may my monument enlighten him as to his cause and may he understand his case! May it set his heart at ease. "Hammurabi indeed is a ruler who is like a real father to his people; he has given reverence to the word of Marduk, his lord; he has obtained Marduk's victory north and south; he has made glad the heart of Marduk, his lord; he has established prosperity for the people for all time and has led the land aright," let him proclaim aloud and let him pray with his whole heart before Marduk, my lord, and Zarpanit, my lady, and may the protecting deities, the

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gods who enter Esagila, the walls of Esagila, make (his) thoughts acceptable daily before Marduk, my lord, and Zarpanit, my lady! In the days to come, for all time, let the king who arises in the land observe the words of righteousness which I have written upon my monument! Let him not alter the judgments of the land which I have pronounced, the decisions of the country which I have rendered! Let him not efface my statutes! If that man have wisdom and be able to guide his land aright, let him give attention to the words which I have written upon my monument! And may this monument enlighten him as to procedure and administration, the judgments of the land which I have pronounced, and the decisions of the land which I have rendered! And let him guide aright his black-headed (people); let him pronounce their judgments and render their decisions! Let him root out the wicked and evildoer from his land! Let him promote the welfare of his people! Hammurabi, the king of righteousness, to whom Shamash has presented (these) laws am I. My words are weighty, my deeds are unrivaled -(too) lofty for the fool, without difficulty for the intelligent, sent forth to (bring) honor. If that man give heed to my words which I have written upon my monument, do not efface my judgments, do not suppress my words, and do not alter my statutes, may Shamash prolong that man's reign as he has mine, who am king of righteousness. If that man do not give heed to my words which I have written upon my monument; if he ignore my curses and do not fear the curses of God; if he blot out the judgments which I have formulated, suppress my words, alter my statutes, efface the writing of my name and write his own; (or if) on account of these curses he commission another to do so-as for that man, be he king or lord, viceroy or gentleman, by (whatever) name called, may the great Anu, father of the gods, who foreordained my reign, take from him the glory of sovereignty, may he break his scepter and curse his fate! May Enlil, the lord, determiner of destinies, whose word cannot be altered, who has enlarged my kingdom, kindle against him in his dwelling a revolt which cannot be controlled, the misfortune of his ruin! May he determine as his fate a reign of sighs, days few in number, years of famine, darkness without light, sudden death! The destruction of his city, the dispersion of his people, the wrestingaway of his dominion, the blotting-out of his name and memory

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from the land may he order with his potent command! May Belit, the august mother whose command is potent in Ekur, the lady who looks with gracious favor upon my plans, in the place of judgments and decisions make his words evil in the presence of Enlil. May she put into the mouth of Enlil, the king, the ruin of his land, the destruction of his people, and the pouring-out of his life like water! May Ea, the great prince whose degrees take precedence, the leader of the gods, who knows everything, who prolongs the days of my life, deprive him of knowledge and wisdom, and bring him to oblivion! May he dam up his rivers at their sources! May he not permit corn which is the life of the people to grow in his land! May Shamash, the great judge of heaven and earth who rules all living creatures, the lord, my refuge, overthrow his dominion; may he not grant him his right! May he make him to err in his path, may he establish for him at the divination an evil omen of the uprooting of the foundation of his sovereignty, and the ruin of his land! May the blighting curse of Shamash come upon him quickly! Above (i.e., upon the earth) may he cut him off among the living! Below, within the earth, may he deprive his spirit of water! May Shamash, the lord of heaven, my divine creator, whose brilliance shines among the gods, take away from him the crown and throne of sovereignty! May he lay upon him heavy guilt and great punishment which will not depart from him! May he bring to an end the days, months, and years of his reign with sighing and tears! May he increase the burden of his sovereignty! May he determine as his fate a life like unto death! May Adad, the lord of abundance, the ruler of heaven and earth, my helper, deprive him of the rains from heaven and the water floods from the springs! May he bring his land to destruction through want and hunger! May he break loose furiously over his city and turn his land into a ruin of the flood! May Zamama, the great warrior, the first-born son of Ekur, who goes to my right hand, shatter his weapons on the field of battle! May he turn day into night for him and let his enemy stand upon him! May Innanna, goddess of battle and conflict, who makes ready my weapons, my gracious protecting deity who loves my reign, curse his dominion with great fury in her wrathful heart, and turn good into evil for him! May she shatter his weapons on the field of battle and conflict! May she create confusion and revolt

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for him! May she strike down his warriors, water the earth with their blood! May she cast the bodies of his warriors upon the field in heaps! May she not grant his warriors mercy! May she deliver him into the hands of his enemies, and may they carry him away bound into a hostile land! May Nergal, the mighty among the gods, the warrior without an equal, who grants me victory, in his great power burn his people like a raging fire of swamp reed! With his powerful weapon may he cut him off, and may he break his members like an earthen image! May Nintu, the exalted mistress of the lands, the mother who bore me, deny him a son! May she not let him have a name, among his people create no heir! May Ninkarrasha, the daughter of Anu, who commands favor for me, in Ekur, cause to come upon his members a grievous malady, an evil disease, a dangerous sore which cannot be cured, which the physician cannot diagnose, which he cannot allay with bandages, and which like the bite of death cannot be removed; and that he, until he brings his life to an end, may lament the loss of his vigor! May the great gods of heaven and earth, the Anunnaki in their totality, the protecting deity of the temple and the walls of Ebarra, curse him, his seed, his land, his army, his people, and his troops with an evil curse! May Enlil, with his word which cannot be altered, curse him with powerful curses and may they (i.e., the curses) come upon him speedily!

APPENDIX III THE ASSYRIAN CODE Translated by D. D. LUCKENBILL, PH.D. Late Professor of Assyriology, University of Chicago and Edited by FREDERICK WILLIAM GEERS, PH.D. Instructor in Semitic Languages, University of Chicago

PART I, I

If a woman, whether the wife of a man, or the daughter man, enter a temple, in the temple steal anything from a bin(?), it be found in her hand, whether they prosecute her, or convict the one(?) prosecuting(?), before the god they shall inquire. cording as he orders to be done, they shall do unto her.

of a and her, Ac-

2

If a woman, whether the wife of a man or the daughter of a man, utter vulgarity or indulge in low talk, that woman bears her own sin; against her husband, her sons, or her daughters they shall have no claim (not draw nigh). 3 If a man be sick or dead, and his wife steal anything from (in) his house, to a man or to a woman or to anybody else give (it), the wife of that man and those who received (the stolen goods) they shall put to death. And if the wife of a man whose husband is in good health steal from the house of her husband, to a man or to a woman or to anybody else give (the stolen goods), the man shall prosecute his wife and shall impose a penalty. And the recipient (of the stolen goods) who received (them) from the hand of the wife of the man shall give (up) the stolen (goods) and a penalty like I The cuneiform text of this Code is published in Keilschriftiexte aus Assur verschiedenen Inhalls, No. I. 223

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that which the man imposes upon his wife they shall impose upon the recipient of the stolen goods. 4 If a male or a female slave from the hand of the wife of a man receive anything, the nose of the male or the female slave (and) their ear(s) they shall cut off. The stolen (goods) they shall restore in full. The man shall cut off the ears of his wife. But if he pardon his wife, do not cut off her ear(s), they shall not cut off (the ears) of the male or female servant; the stolen (goods) they need not restore in full. 5 If the wife of a man from the house of another man steal anything, (and the value of the goods) exceed five manas of lead, the owner of the stolen goods shall take oath, "Verily, I did not cause her to take anything, saying, 'Steal from my house.' " If her husband be willing, he may return the stolen (goods) and ransom her. He may cut off her ear(s). If her husband be not willing to ransom her, the owner of the stolen (goods) may seize her and cut off her nose. 6 If the wife of a man place a deposit on the outside, the receiver holds stolen (property). 7 If a woman bring her hand against a man, they shall prosecute her; thirty manas of lead she shall pay; twenty blows they shall inflict on her. 8 If a woman in a quarrel injure the testicle of a man, one of her fingers they shall cut off. And if a physician bind it up and the other testicle which is beside it be infected thereby, or take harm; or if in a quarrel she injure the other testicle, they shall destroy both of her eyes. 9 If a man bring his hand against the wife of a man, treating her like a little child, and they prove it against him, and convict him, (one) of his fingers they shall cut off. If he kiss her, his lower lip with the blade of an ax they shall "draw down," they shall cut off.

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I0

If a man or a woman enter the house of a man and kill a man or a woman, the avenger of blood (lord, owner of life), if he wish, shall kill the murderers. If he spare (them), he may take (their property?) ...... the murderers ..... anything ...... either ...... from the house(?) ........ II

....

he shall perform..... 12

If the wife of a man be walking on the highway and a man seize her, say to her, "I will surely have intercourse with thee"; (if) she be not willing and defend herself, and he seize her by force and have intercourse with her (rape her), whether they catch him with (upon) the wife of a man, or whether at the (word of) the woman whom he has raped, the elders (witnesses) prosecute him, they shall put (that) man to death. There is no punishment for the woman.

13 If the wife of a man go out from her house and visit a man where he lives, and he have intercourse with her, knowing that she is a man's wife, the man and also the woman they shall put to death. 14 If a man have intercourse with the wife of a man either in a lodging-house(?) or on the highway, knowing that she is a man's wife, according as the man, whose wife she is, orders to be done, they shall do to the adulterer. If not knowing that she is a man's wife he have intercourse with her (rapes her), the adulterer goes free. The man shall prosecute his wife, doing to her as he likes. 15 If a man catch a man with his wife, they shall prosecute him, they shall convict him; both of them they shall put to death. He (the husband) is not to be blamed. If the two be caught and brought before the king or before the judges, they shall prosecute him, they shall convict him. If the husband of the woman put his wife to death, he shall also put the man to death. If he cut off the

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nose of his wife, he shall turn the man into a eunuch; and they shall disfigure the whole of his face. But if he spare (acquit) his wife, he shall also acquit the man. 6 If a man have relations with the wife of a man at her wish, there is no penalty for that man. The man shall lay upon the woman, his wife, the penalty he wishes. If he have intercourse with her perforce, they shall prosecute him, they shall convict him. His punishment is the same as that of the man's wife. 17 If a man say to a man, "They have had intercourse with thy wife," (but) there is no evidence, they shall place bonds (set bonds); to the river they shall go. 18

If a man say to his companion, either in secret or in a quarrel, "They have had intercourse with thy wife; I will prove it," (and) be not able to prove it, and do not prove it, on that man they shall inflict forty blows, a month of days he shall perform the king's work, they shall mutilate him, and one talent of lead he shall pay. 19

If a man in secret make the assertion about a companion of his, "They have had intercourse with him"; or in a fight, in front of the men, say to him, "They have had intercourse with thee; I will prove it," but be not able to prove it, and do not prove it, on that man they shall inflict fifty blows, a month of days he shall do the king's work, they shall mutilate him, and one talent of lead he shall pay. 20

If a man have intercourse with his companion, they shall prosecute him, they shall convict him, (because) he had intercourse with him they shall turn him into a eunuch. 21

If a man strike the daughter of a man and cause her to drop what is in her, they shall prosecute him, they shall convict him, two talents and thirty manas of lead he shall pay, fifty blows they shall inflict on him, one month of days he shall do the king's work.

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22

If the wife of a man, one who is not her father, or her brother, or her son, but another man, cause her to make (undertake) a journey (with him) and he swear that he did not know that she was a man's wife, two talents of lead he shall pay to the husband of the woman. If he knew that she was the wife of a man, he shall pay damages and swear, "Verily, I did not abuse her"; and if the wife of the man swear, "He had intercourse with me," the man who gave damages for the man's wife shall go to the river, without bonds. If he return from the river, according as the woman's husband does to his wife they shall do to that one. 23

If the wife of a man take a man's wife into her house and give her to a man for intercourse, and the man know that she is a man's wife, (the punishment) of one who has intercourse with a man's wife they shall impose upon him. And according as the husband of the woman does to his adulterous wife they shall do to the procuress. And if the husband of the woman do not do anything, to his adulterous wife, to the adulterer and the procuress they shall also do nothing; they shall let them go free. But if the wife of the man did not know, and the woman who took her into her house through trickery caused the man to enter in unto her, and he had intercourse with her-if on her going forth from the house she declare that there had been adultery, they shall let the woman go, she is free. The adulterer and the procuress they shall put to death. But if the woman do not admit (say) (that there had been intercourse), the man shall lay on his wife the penalty he wishes; the adulterer and the procuress they shall put to death. 24

If the wife of a man withdraw from the presence of her husband of her own accord, (and) in the midst of the city or in a suburban garrison, where they point out a house to her, she enter an Assyrian's house, dwelling with the mistress of the house, spending the night there three or four times; the master of the house not knowing that the wife of a man was dwelling in his house, and finally that woman be caught; the master of the house whose wife of her own accord withdrew from his presence shall take his wife (home). Of

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the wife of the man with whom his wife was dwelling they shall cut off the (her) ear(s). Her husband, if willing, may pay three talents of lead as her price, or if he wish (it to be so), they shall seize his wife. But if the master of the house knew that a man's wife was dwelling in his house with his wife, he shall pay threefold. But if he deny (it), saying, "I did not know," they shall go to the river. And if the man in whose house a man's wife was dwelling return from the river, threefold he shall pay. If the man whose wife of her own accord withdrew herself from his presence return from the river, he is free. The river has settled (fulfilled) everything (in connection with her [case]). And if the man whose wife withdrew of her own accord from his presence do not cut off his wife's (ear[s]), he shall take his wife back. There is no other penalty. 25

If a woman be dwelling in the house of her father, and her husband have died, the brothers of her husband, who have not divided (the paternal estate), in case she has no son, every gift which her husband settled upon her, which is not used up, the brothers of her husband, who have not yet divided (the paternal estate), shall receive (thke). For what is left they shall bring (their claim) before the gods, they shall prove (their case), they shall take the (goods). For the river or an oath (curse) they are not to be seized. 26

If a woman be dwelling in the house of her father, and her husband have died, any gift which her husband settled upon her-if there be any sons of her husband's, they shall receive (it). If there be no sons of her husband's, she receives (it). 27

If a woman be dwelling in the house of her father and her husband come in, any present which her husband gave to her he may take. Against the house of her father he shall have no claim (not draw nigh). 28

If a woman, who is a widow, enter into the house of a man, bringing her minor (?) son with her, and he grow up in the house of the one who has taken her (in marriage) but a document of his son-

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ship (adoption) is not written, he has no share in the house of him who brought him up; he is not responsible for a debt; from the house of his parents he receives a portion according to his share (hand). 29

If a woman enter into the house of her husband, her dowry and anything which she brought from the house of her father, as well as that which her father-in-law gave her on her entering (her husband's house), is free to her sons. The sons of her father-in-law shall make no claim (not draw nigh), and if her husband survive her, he may give to his sons as he wishes. 30

If a father to the house of the father-in-law of his son bring and present a gift, the woman not yet having been given to his son, and another son of his, whose wife is dwelling in the house of her father, die, the wife of his dead son, to his other son, to the house of whose (prospective) father-in-law he had presented (a gift), he shall give in marriage. If the master (father) of the girl who had received the gift be not willing to give his daughter, then the father who presented the gift, if he wishes, may take his "bride" and give her to his son. Or, if he choose, everything that he presented, lead, silver, gold, which are not food, he may take back-as to the principal, for that which is food he shall bring no claim (not draw nigh). 31 If a man to the house of his father-in-law have presented a present, and his wife die, his father-in-law having (other) daughters, if the father-in-law be willing, another daughter of his father-in-law in place of his dead wife he may take. Or if he wish, the silver which he gave he may take back. But again, grain or sheep or anything else which is food, they need not give back to him. The silver only he may receive. 32

If a woman be dwelling in the house of her father, but has been given to her husband, whether she has been taken to the house of her father-in-law or whether she has not been taken, debt(s), misdemeanor(s), and crime(s) of her husband she bears.

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33 If a woman be dwelling in the house of her father, and , band die, and she have (a) son(s) ................. (father) to her father-in-law shall give her in marriage. If band and her father-in-law be (both) dead, and she have she is a widow; where she wishes she may go.

her husthen her her husno sons,

34 If a man take a widow (in marriage), not drawing up a contract and she dwell in his house two years, she is a wife, she need not go out. 35 If a woman, who is a widow, enter into the house of a man, whatsoever she brings with her-all is her husband's. But if a man enter ;n to a woman, whatsoever he brings-all is the woman's. 36 If a woman be dwelling in the house of her father, although her husband had caused her to spend the night in (his) house, and her husband have (since) gone to the "field," and have left her neither oil, nor wool, nor clothes, nor food, nor anything else, and have not sent her any goods out of "the field"-this woman shall wait for her husband five years, she shall not live with (another) husband. If she have sons, they shall be hired out and eat. The woman shall wait for her husband, shall not dwell with (another) husband. If she have no sons, she shall wait for her husband five years; on the arrival of the sixth year she may dwell with the husband of her choice. Her husband on coming (back) shall have no claim on her (shall not draw nigh); she is free to her later husband. If he prove on (his) coming (back) that for a period of five years he delayed, not having drawn near of his own accord, (because) an overseer(?) had seized him and he had run away, or as a rebel he had been seized and (so) had delayed, a woman he shall give in place of his wife, and his wife he may take back. Or if the king send him to another country, and he delay for a period of five years, his wife shall wait for him, shall not dwell with (another) husband. And if before the five years (are up) she dwell with (another) husband, and bear (children), her husband, on coming (back), because she had not

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waited the full time, but had been given in marriage to that one, her children he may take. 37 If a man divorce his wife, if he wish, he may give her something; if he do not wish, he need not give her anything. Empty (in her emptiness) she shall go out. 38 If a woman be dwelling in the house of her father, and her husband divorce her, the presents which that one settled upon her he may take. On the bride price which he brought he shall have no claim (not draw nigh). It is free to the woman. 39 If a man give someone not his daughter to a husband, if earlier her father were in debt and she were allowed to dwell (in his house) as a pledge (one sent), and the earlier creditor come and make good to the one who gave away the woman the price of the woman, if he had nothing to give, he shall seize the one who gave her away. And if she get well from evil, to him who made her well she is free. And if (for) the man who married the woman they cause a document to be written, or else bring claims, against him, he shall make good the price of the woman, and the one who gave her away (is free of obligation). 40

If the wives of a man, or the daughters of a man, or his women go out into the street, their heads (are to be veiled). The daughters of a man ....... .with a ..... .garment, or with ...... garments, are to be veiled. (As for widows) their heads........ with ( ..... garments) or with (....... garments)........ ........ they are to be veiled (veil themselves). When (they go out) into the streets, and go about, they shall veil themselves. The concubine (captive woman), who apart from her mistress goes into the streets, is to be veiled. The (sacred) prostitute, whom a husband has married, is to be veiled in the streets. But one whom a husband has not married is to have her head uncovered ("open") in the streets; she is not to veil herself. The harlot is not to veil herself, her head is to be uncovered. The one who sees a veiled harlot is to seize her, secure witnesses, (and) bring her for the judgment

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of the palace. Her ornaments they shall not seize. The one who seized her shall take her garment. Fifty blows they shall inflict on her. Bitumen they shall pour on her head. But if a man see a veiled harlot and let her go, (and) do not bring her for the judgment of the palace, on that man they shall inflict fifty blows; the one who caused his apprehension shall take his garment. His ears they shall pierce, string (them) with a string, and bind (them) on his back. A month of days he shall do the king's work. Maidservants are not to veil themselves. The one who sees a veiled maidservant shall seize her, for the judgment of the palace he shall bring her; they shall cut off her ears. The one who seized her shall take her garments. If a man see a veiled maidservant (and) let her go, and do not seize her, do not bring her for the judgment of the palace, they shall prosecute him; they shall convict him; fifty blows they shall inflict upon him; his ears they shall pierce; they shall string (them) with a string; they shall bind (them) to his back. The one who caused his apprehension shall take his garments. A month of days he shall do the king's work. 41 If a man veil (would veil) his concubine (captive woman), five or six of his companions he shall cause to sit down; before them he shall veil her. He shall say, "She is my wife." She is his wife. But the captive woman (who was not veiled) in front of the men, whose husband did not say, "She is my wife," she is not a wife. She is (remains) a captive woman. If the man die, not having sons by his veiled wife, the sons of captive women shall be their sons, they shall receive a portion (of the paternal estate). 42

If a man on the day of anointing(?) pour out oil on the head of the daughter of a man, or at the (betrothal) feast bring presents, they shall make no return. 43 If a man (pour) oil on the head (of a girl) or bring presents, and the son to whom he (they) had engaged (her to be his) wife die or run away, he shall give (her) to the one he chooses of his remaining sons, from the oldest son to the youngest son whose years are ten (who has reached his tenth year). If the father die and the son to

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whom he (they) had engaged (her to be his) wife also die, (if) there be a son of the dead son whose years are ten, he shall marry (her). If after a period of ten years the grandsons be (still) minors, the father of the girl may give his daughter to whomever he chooses, and if he wish, he may take the proper (mutual) return (of gifts). If there were no son(s besides the one who died or ran away), whatever he received, (such as) jewels (stones) or anything which is not food, he shall return as to principal; but that which is food he need not return. 44 If an Assyrian man or an Assyrian woman who is dwelling in the house of a man as a pledge, to the extent of his value, (or) has been taken for the full price, be agreeable, he (the master of the house) may strike him, pull (his hair), or pierce his ear. 45 If a woman be given (in marriage), and an enemy seize her husband, and she have no father-in-law or son, two years she shall wait for her husband. During these (two) years, if she have nothing to eat she shall go and declare (it). She (shall be) a palace servant. He (the king [?]) (in [of] her) he shall give her to eat. His work and of the dependents is she. she shall perform. A ........ And (or) He shall give her to eat .......... .......... *. . field and house ......... .she shall go (and say), "There is no food." The judges shall then ask the mayor of the city (and) the elders whether they cultivated the field (land) in that city, field and house for her support for two years they shall prepare, they shall give to her. She shall live (there) and they shall write her document. Two years she shall complete, (and then) she may live with the husband of her choice. They shall write her document (which is to be to the effect) that she is a widow. If later her missing husband return to (his) land, his wife who has been married by an outsider he may take (back). He may not draw near (lay claim) to the sons (children) which she has borne to her later husband. The later husband shall take (these). The field and house, which (had served) as her support, (and which) had been given to the other man (lit., "outside") at the full price, if he do not enter the garrison of the king, (at the price) they were sold he shall give

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back and (the other) shall take (them). But if he do not return, but die in a foreign land, his (the king's) field and his house, when(ever) the king has given (them), he gives. 46 If a woman whose husband is dead on the death of her husband do not go out from her house, if her husband did not leave (write) her anything, she shall dwell in the house of one of her sons (lit., the house of her sons where she wishes). The sons of her husband shall support her; her food and her drink, as (for) a fianc6e whom they are courting (love), they shall agree (to provide) for her. If she be a second (later) wife, and have no sons of her own, with one (of her husband's sons) she shall live (dwell) and the group (according to their group) shall support her. If she have sons of her own, and the sons (of the) former (marriage) (be not willing) (to support her), in the house of (one) of her own sons, where she chooses, she may dwell. Her own sons shall support her, and (she) shall do their work. But if there be one among the sons of her husband who marries her, (and is willing to support her), (the other sons) need (not) support her. 47 If a man or a woman practice sorcery, and they be caught with it in their hands, they shall prosecute them, they shall convict them. The practicer of magic they shall put to death. The man who saw the practice of magic (or) hears (of it) from the mouth of one who saw the magic (practiced) and who said to him, "I saw (it)"-the one who heard (of it) shall go and report to the king. If the one who saw (it), who reported to the king, deny (it), he shall declare before the Gudbanda, of Shamash, "Verily, he has told me," (and) he goes free. The one who saw (it), who reported (it), and then denied it, the king, if he wish, shall question him, and he shall examine his past career. The sorcerer, on the day they bring him (to trial), shall make the man speak out, and that one shall say: "The oath which before the king and his son thou didst take will not free you from it; according to the word of the document to which before the king and his son thou didst swear, thou hast sworn."

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48 If a man for the daughter of his debtor living in his house because of the debt ask her father, he shall give her to a husband. If her father be not willing, he need not give (her). If her father be dead, he shall ask one of her brothers; then that one shall speak to her (other) brothers, (and) if a brother say, "I will redeem my sister within a month of days," if within a month of days he do not redeem (her), the creditor may free her, if he wish, and give her to a husband ...................... When (as) a brother . .. . And if she die a harlot because her brothers speak (thus), her sons like the sons of a brother, the portion of one brother among themselves shall divide. 49 If a man strike a woman and cause her to drop what is in her (miscarriage) ............ the wife of a man ............ . . . . . and . . . . . . . . . . . . he has done, according to that which was in her, he shall make restitution for life. And if that woman die, they shall put the man to death; according to that which was in her, he shall make restitution with a living being. And if the husband of that woman have no son, his wife they struck and that which is in her she dropped, according to that which was in her they shall kill the one who smote (her). If that which was in her were small, he shall make restitution with a "life." 50

If a man strike the wife of a man, in her first stage of pregnancy, and cause her to drop that which is in her, it is a crime; two talents of lead he shall pay. 51 If a man strike a harlot and cause her to drop that which is in her, blows for blows they shall lay upon him; he shall make restitution for a life. 52

If a woman of her own accord drop that which is in her, they shall prosecute her, they shall convict her; they shall crucify her; they shall not bury her. If she die from dropping that which was in her, they shall crucify her. They shall not bury her. If because

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she dropped what was in her they hide that woman .......... ..... they said................................ 53 If there be no................................. he shall seize (strike?). .. or maidservants 54 If a man (seize) a virgin who is dwelling in the house of her father, whose husband have not (yet) been chosen, whose ....... have not been opened, who have not been taken (in marriage), against the house of whose father they have no claims, (if) the man, either in the city, or in the country, or at night in the street, or in a "warehouse," or at a city festival-the man by means of force (?) seize the virgin, and make her pregnant, the father of the virgin shall seize the wife of the adulterer and give her to be raped, he shall not return her to her husband, he shall take her. The father shall give his ravished daughter to the one who raped her as a wife. If he have no wife, the ravisher shall pay to her father threefold the price of a virgin in silver. Her ravisher shall marry her, he shall not abuse (?) her. If the father be not willing, he shall take threefold (the price of) a virgin in silver, and give his daughter to whom he pleases. 55 If a virgin of her own accord give herself to a man, the man shall take oath, against his wife they shall not draw nigh. Threefold the price of a virgin the ravisher shall pay. The father shall do with his daughter what he pleases. 56

Whether there be striking or (unlawful seizure) of the wife of a man, that which is written on the tablet (is to be paid, carried out). 57 In (the case) of every crime (for which there is the penalty) of the cutting-off of (ear or nose?), or ruining of (reputation or condition), as it (is written it shall be carried out). 58

Except (in case) of the crime (concerning the wife of a man), what is in the tablet (need not be carried out). The man may strike

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his wife, pull (her hair), her ear he may bruise or pierce. He commits no misdeed (thereby). (The date.) PART II, I

(Pieces of) (Beginning of the law is broken off.) ........ ground. The oldest son, two shares ground ................ shall select (cut off), shall take. And his brothers shall ........ then in turn select and take (their portions). Any loss to (in) the field, and every expense (all expenses) the younger son shall cause to be subtracted. The oldest son shall select and take one share (thereof), and for his share in the second (half of the debit) he shall cast lots with his brothers. 2

If a man among brothers who have not (yet) divided (the paternal estate) commit murder (end life), to the avenger of blood (the lord of life) they shall give him. If he choose, the avenger of blood may kill him, or if he choose, he may be spared. His portion (in the paternal estate) he may seize. 3 If a man among brothers who have not (yet) divided (the paternal estate) utter slanders or run away, with his portion (of the paternal estate) the king will do as he pleases. 4 If brothers in (the matter) of a field which has not been divided, one brother among them sow either wheat or barley, cultivate the ground (field) .............. go about ........... of his brother ............. the second time ......... .they shall prosecute him, they shall convict him.............. (The field) which he cultivated ........... he shall take. 5 If brothers in (the matter of a field) which has not been divided, I The cuneiform texts of these laws will be found in ibid., No.

2.

238

ORIGIN AND HISTORY OF HEBREW LAW 6

for silver (shall not) take. Before he takes (field or) house for silver, three times in a month of days the buyer shall make proclamation in the city of Ashur, and three times he shall have proclamation made in the city in which he would buy the field and house. Thus: "Field and house of soand-so, son of so-and-so, (situated) in the cultivable area of this city, I am buying. Such as are in possession(?), (or have objection), or who have any claims (against the property), let them bring their tablets (papers), let them lay them before the magistrates, let them present their claims, let them prove their title ('make free'), and let them take (what is theirs). Those who during this month of days cannot bring even one of their tablets to me, lay them before the magistrates, then the man (i.e., the buyer) shall receive in full (whatever belongs to him) up to the fence of his field." On the day that the buyer makes proclamation in the midst of the city of Ashur, one of the officials who (stand) before the king, the scribe of the city of the buyer, and the magistrates of the king shall confer (and) of the city in which he is buying field and house the governor and the three nobles of the city shall meet; if the buyer shall have made proclamation, they shall write their tablets (documents), they shall give (them to him), saying: "In this month of days, the buyer made proclamation three times, 'He who in this month of days brought not his tablets to me, did not lay (them) before the magistrates, shall forfeit his claim to (share in) field and house.' To the one making the proclamation, who is a buyer, it shall be free." Three tablets of the judges, (containing) the proclamation of the buyer, they shall write...................... 7

Whatever (the price) ............ he acquires(?) ...... ....... (into a granary) as a pledge(?) ............ and the price of the house ......... .which he tore down (?for rebuilding) ......... .Twice in (?) the price of the house ..... ..... to the owner of the house (he shall pay ....... .the (amount) of one talent of lead; five blows they shall inflict upon him, one month of days he shall do the king's work.

THE ASSYRIAN CODE

239

8 If a man meddle with the "large boundary" (i.e., take from the large estate) of his neighbor, they shall prosecute him, they shall convict him. Whatever the amount of field which he seized upon, threefold he shall restore. One of his fingers they shall cut off, a hundred blows they shall inflict upon him, one month of days he shall do the king's work. 9 If a man change the "small boundary" (which is) of reed palings, they shall prosecute him, they shall convict him. One talent of lead he shall pay; whatever the amount of field which he seized (threefold) he shall restore; fifty blows they shall inflict upon him; one month of days he shall do the king's work. I0

If a man, in a field not his, dig a well, build a strengthening wall, he forfeits his claim to his well and his strengthening wall; twenty blows they shall inflict upon him; twenty days he shall do the king's work. The flourishing of the district(?)................. at the wiping-off (?) ........... Wall (and well) he shall swear, saying ......... Verily, if to build the wall and (?) the well (I had not had permission), then wall (and well ..... .)." The owner of the field ....... II

(Beginning lost.) .......... and ....... a workman .... to make ..... or if ..... the workman ...... a tablet let him(?) ..... .the expense ...... for making ....... .their (fem.) field ......

to the workman . . .. he (or they?) shall give. 12

If a man in the field of a man plant a garden (orchard), dig a well, raise trees, the owner of the field looking on, not (objecting), (then) the garden is "free" to the one who set it out. Field for field to the owner of the garden (i.e., the land on which the garden was planted) he shall give. 13 If a man on ground not his plant a garden (orchard) or dig a well, raise vegetables or trees, they shall prosecute him; they shall

240

ORIGIN AND HISTORY OF HEBREW LAW

convict him; on the day the owner of the field comes he shall take the garden together with its improvements (expense). 14 not his make bricks, they shall in a field If a man who is digging prosecute him, they shall convict him, he shall give back ground threefold. His bricks they shall take (away from him); fifty blows they shall inflict upon him; a month of days he shall do the king's work. 15 If a man who is ..... .in ground not his make bricks, his bricks they shall take (away from him); fifty blows they shall inflict upon him; a month of days he shall do the king's work. 16

(Whole law missing.) 17 If they have in their midst water which is used (lit., comes) for irrigation or for gardening, the owners of (adjoining) fields shall agree among themselves; (each) man shall do (his) work up to the fence of his field, shall irrigate his field. But if among them there be any dissatisfied ones, the satisfied one among them shall appeal to the judges, shall obtain a tablet of the judges (a decision from them), and shall do (his) work. That water he shall take to himself, his field he shall irrigate, and no other one shall irrigate (his field). 18 If they have the water of Adad (rainwater) which is used (comes) for irrigation or for gardening, the owners of (adjoining) fields shall agree among themselves; (each) man shall do (his) work up to the fence of his field, shall irrigate his field. But if among them there be any dissatisfied ones, then the satisfied one among them shall obtain a tablet of the judges over against the dissatisfied one .... and five nobles ............................. 19 .......... blows they shall inflict upon him, a month of days he shall do the king's work.

THE ASSYRIAN CODE

241

20

If a man (cultivate?) the field of his neighbor .......... .

detain (restrain) him . . ......... oath of the king . . . . . . . .. . and cultivate, on the day that the owner of the field comes, the cultivator of the field.... . . . .. he inclosed(?) . . . . . . . . . . . . . . . . . for the house he prolonged he shall pour out . . . . . . . . in large measure grain he shall return. (According to the yield) of the fields of the city, which (lie) between, he shall hand over (give) produce (yield) of the field. 21

If a man in a field not his, or its .............. , surround (it) with a boundary (wall), and set up a boundary stone, and say, ("This is my field"), they shall prosecute him, they shall convict

him......................................... PART III, I

owner ......... .and if the buyer (say), ("The male or female slave) which I ransomed (is dead?)," (the male slave at the rate of x) talents of lead, the female slave at the rate of four talents of lead, (he shall ........... ) .'. . . and if the collector (of slaves) say, "... .......... ," before God he shall swear, and whatever in ......... he ............... he shall receive ........... .Their

2

(If a man) sell (the son of a man) or the daughter of a man, who on account of money (matters) or as (a pledge) was dwelling (in his house), for silver (money) to another man, (or if) he sell (any animal) which was dwelling in his house, (they shall convict him), he shall lose his money; and he shall give his minor to the owner of the property; x lashes they shall inflict upon him, twenty days he shall do the king's work. 3 (If a man) sell (the son of a man) or the daughter of a man, who on account of money (matters as a pledge) (was dwelling in his house) for silver into another (foreign) land, (they shall prosecute I The cuneiform text of these laws will be found in ibid, No. 6.

242

ORIGIN AND HISTORY OF HEBREW LAW

him), they shall convict him, he shall lose his money; (his minor son) he shall give to the owner of the property; (x lashes) they shall inflict upon him, forty days he shall do the king's work. (And if the one he sold) die in the other (foreign) land, (he shall ......... .who But if he were) not an Assyrian man or woman ....... land. another (foreign) may sell (him) to bought (him) 4 (If a man) sell (an ox or an ass) or a horse or any animal, (not .(shall his, which) was dwelling in his house, for silver ......... he not) give, the silver shall not return; if .............. shall lose his money. The owner of the property who (wds dwelling in his house) shall seize his animal, and (as to whatever amount) of money he owed the seller, he is free. 5 If he do not pay back in full(?), and the ox, the ass, or the horse did not price to........he at a ........ ........... price ......... .the theft, whatever (he know the ........ he shall return. stole) .......... 6 (Only a few lines preserved.) 7 (Only a few lines preserved.) 8 (If a man ...

.)

an animal or anything else, they shall prosecute

him, they shall convict him. (x talents of) lead he shall pay, fifty blows they shall inflict upon him, (x days) he shall do (the king's work). That case the judges (of the king?).............. and the theft whatever he stole ...... more or less ........ .(a penalty) the king shall impose upon him, according to his wish (heart). 9 (If a man when ... .) or a jewel (stone) of any kind and weight (lit., whatever its name, every weight) .

. .

. as a pledge in a trans-

action (outside) was deposited, (and the man) in whose house the pledge was deposited do not close (the doors) which guard his house, (and anything) be taken from his house, that man is a thief, he shall bear the theft.

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243

I0

(If a man) make too large (the debt?) of his partner (neighbor), they shall prosecute him, they shall convict him; (a thief) he is; a penalty (the king) shall impose upon him (according to his heart). (If a man) make too large, write down ............ , causing loss of workmen, they shall prosecute him, they shall convict him. (Because he made too large) and wrote down the . . . . of the workmen, (x blows) they shall inflict upon him......... .Every ....... the hand of the workmen ..... .the scribe (?) and

COMMENT ON FOREGOING LAWS BY

J. M. POWIS SMITH

Upon making a comparison of the Assyrian laws with the Covenant Code (Exod. 20:23-23:33) certain striking differences and contrasts at once attract attention. The same statement holds true of the Code of Hammurabi. One of these contrasts is the fact that the Assyrian laws reflect a much more advanced stage of civilization and culture than do the early Hebrew laws. This is shown by the far more elaborate and detailed contents of the Assyrian legislation as compared with early Hebrew legislation. Where the Hebrew laws are limited to one or two general rules regarding a particular offense or custom, the Assyrian laws take up the same case or situation in a much more extensive and detailed way. For example, if anyone causes a woman with child to have a miscarriage, the Hebrew code (Exod. 21: 22) covers the case with one law, which requires the offender to pay such a fine as the woman's husband may impose upon him. If further damage than the loss of the embryo occurs, then the general principle of "life for life, eye for eye, etc.," is involved. But the Assyrian law devotes five sections to this subject (§§ 21 and 49-52). The first section condemns the man

244

ORIGIN AND HISTORY OF HEBREW LAW

who strikes a woman and so causes a miscarriage to pay two talents and thirty manas of lead, to receive fifty blows, and to do forced labor for the king for one month. The next section (1 49) is somewhat broken and illegible, but it clearly calls for the substitution on the part of the offender of a living person in place of the lost infant. It also calls for the death of the offender, unless the embryo was very small, in which case he may substitute a "life." If the injury is inflicted upon a woman in a very early stage of pregnancy, the offender shall pay two talents of lead (§ 50). If the miscarriage is caused to a harlot, the offender must make restitution with a life (151). The last section on this subject takes up the case of a woman who brings about her own miscarriage voluntarily; she shall be crucified and remain unburied (§ 52). It is clear from these laws that a wide range of experience lies behind them. Another contrast is the total lack of distinctively religious legislation in the Assyrian laws. Throughout the Assyrian legislation the gods are not so much as mentioned. There are no rules and regulations for sacrifice, the priesthood, or the cultus in general. On the other hand, in both Covenent Code and Holiness Code religious rites, ceremonies, and personnel are provided for in considerable detail. The same silence regarding the gods and their service characterizes the Code of Hammurabi, at least so far as the laws themselves are concerned, with the exception of references to the gods in §§ 6, 98, 131, 181 f., 266, though the Prologue and Epilogue do recognize the gods, give thanks and praise to them, and call upon them to punish any successor to the throne of Babylon who tries to undo the work of Hammurabi.

THE ASSYRIAN CODE

245

Further points of contact between the Assyrian laws and Hebrew legislation may be listed here. Both systems of legislation prohibit and penalize adultery (see Exod. 20:14; Lev. 20:15 and cf. §§ 22, 23, and 24 of the Assyrian laws). Both penalize a woman severely if she injures a man's testicles (see Deut. 25:11 f. and cf. § 8). Both condemn the man who rapes a woman (see Deut. 22:23-29 and §§ 12-17, 54, and 55)Both prohibit a man's having sexual intercourse with another man (see Lev. 18: 23; 20: 13 and § 20). Both provide for Levirate marriage (see Deut. 25:56 and H§ 30, 31). Both condemn the slanderer (see Num. 1:36 and H§ 17-19). Both prohibit the practice of sorcery (see Exod. 22:68 and § 47); and magic is also condemned by both (see Lev. 20: 27 and § 47). Stealing is a crime in both systems (see Exod. 20:15 and §§ 8-15 and Part III, §§ 5-10). The buying and selling of slaves is carefully protected by both codes (see Exod. 21:2 ff. and 7 ff. and Part III, H§ 1-3). That there was direct borrowing from the Assyrian legislation on the part of the Hebrew lawmakers is on the whole not probable. A comparison of the specific laws in each code one by one does not support the hypothesis of borrowing by the Hebrews. If they did borrow at all from the Assyrians, it is clear that they exercised great liberty in their choice of what they should borrow and in their use of it after they adopted it. The Hebrew codes are thoroughly Hebraic in form and in spirit. It is clear that the background of the two systems of law was on the humanistic side essentially the same, though in the Assyrian legislation further progress in civilization is revealed than is the case in the early Hebrew codes.

APPENDIX IV THE HITTITE CODE Translated by DR.

ARNOLD WALTHER

Oriental Institute, University of Chicago

This Hittite law, which in its present form is from the fourteenth century B.C., was found in the excavations at Boghaz Kdi (see p. 247, n. 5) in 1906 and 1907, together with many other documents of the old Hittite Empire, written in a language unknown at the time of the discovery. The cuneiform text has been published by Hrozny in Keilschrifttexte aus Boghazkdi (Leipzig, Ig21), Volume VI; additions thereto are in Keilschrifturkunden aus Boghazkdi (Berlin, 1925), Volume XIII. Besides the fragments of the regular law, this volume contains various regulations for officers and servants of the palace; among these also rules of the court. Fr. Hrozny gave a transliteration and a French translation in Code hittite provenant de l'Asie Mineure (Paris, 1922), Part I. H. Zimmern and J. Friedrich furnished a German translation in Der alte Orient (Leipzig, 1922), XXIII,

2;

and G. A. Barton a free translation in the fifth

edition of his Archaeology and the Bible (Philadelphia, 1927), pages 369-88. M. San Nicol6 discusses the comparative values of these laws in Beitrdge zur Rechtsgeschichte imBereiche der keilschriftlichenRechtsquellen (Cambridge, Mass., 1931), pages 96-104. 246

THE HITTITE CODE

247

IF A MAN' ASSAULT AND BATTERY

i. If anyone slay a man or a woman in a quarrel, he shall [bring

.

this one].2 He shall also give four persons, either men or women, he shall let (them) go(?) to his (his family's) home(?) .3 2. If anyone slay a male or female slave in a quarrel, he shall bring this one and give [two persons], either men or women, he shall let (them) go(?) to his (the owner's) home(?). 3. If anyone smite a free man or woman and this one die, (only) his hand doing evil,4 he shall bring this one and give two persons, he shall let (them) go(?) to his home(?). 4. If anyone smite a male or female slave, (only) his hand doing evil, he shall bring this one also and give one person, he shall let (him or her) go(?) to his (the owner's) home(?). ANOTHER REDACTION OF § 4 (3 AND 4?), AFTER "EVIL": ... . But if it be a woman or(?) a female slave, he shall give two pounds of silver. (Other combinations also are possible, as: But if it be a woman, he shall give a female slave and two pounds of silver.) 5. If anyone slay a merchant of Hatti,s he shall give one and a half (or one hundred?) 6 pounds of silver, he shall let (it) go(?) to ' Title, in the cuneiform tablet subscription, of the first half of the law (the first two words of § i). The headlines of the individual chapters are our addition. * For the burial? The same in §§ 2-5. 3 Meaning here and ff., "He shall transmit the penalty to the injured party, renouncing all claim to it"? Other translations, as "And he pledges his property as security for him," are grammatically doubtful.

4

I.e., accidentally without intention. See also H§ 5, 8.

5 Hatti

(Khatti), Hattena (Khattena) the land of the Hittites; Hattusas (Kh.), its capital, today Boghaz K6i, ninety miles east of Ankara. 6 In both tablets and in both lines the figure ioo may be a mistake for the similar figure 12. The same question is found in § 16o with another measure (too or 11 pecks). Else we might think the writer of our § 5 had vacillated between too half-shekels (the most frequent weight, especially money weight, of the Hittites) and i pound, provided that i zuzu or halfshekel or drachma was, as in Greece, the hundredth part of the mina or pound. The shekel was one-sixtieth of the pound. By the way, we do not know whether their pound was the Babylonian and French pound or the

248

ORIGIN AND HISTORY OF HEBREW LAW

his (his family's) home(?). If (it happen) in the land of Luia or in the land of Pala, he shall give one and a half (or one hundred?) pounds of silver and compensate his property. If (it happen) in the land of Hatti, then he shall bring that merchant. ANOTHER REDACTION OF § 5: If anyone slay [a merchant of H]atti for property in (this land?), he shall give [. . pounds of silver] and compensate for the property threefold. But if anyone do not retain the property and slay him in a quarrel, he shall give six pounds of silver. If (only) his hand do evil, he shall give two pounds of silver. 6. If one, man or woman, die in this or that village, he in whose circuit he dies shall cut off one hundred rods, of field, and he (the heir) may take it. ANOTHER REDACTION OF § 6: If a man die in another field and ground, if it be a free man, he shall give field, ground, house, and one pound, twenty half-shekels of silver; if it be a woman, he shall give three pounds of silver. But if there be no field and ground, in the place of the other (shall be put) this way three double-leagues, that way three double-leagues, and whatever village is met (or determined by an oracle?) therein, he (the heir) may take these (men for compensation). If there be no village, he shall go away empty. 7. If anyone blind a free man or knock out his teeth, formerly they would give one pound of silver, now he shall give twenty halfshekels of silver, he shall let (it) go(?) to his home(?). (Another redaction is given after § 8.) 8. If anyone blind a male or female slave or knock out his (or her) teeth, he shall give ten half-shekels of silver, he shall let (it) go(?) to his home(?). smaller Greek and English pound. As to the "peck" mentioned, this common measure of capacity is written as the Babylonian double satu. For the earlier Babylonian time i situ was already almost equal to a peck; and even the Hebrew "measure" or seah-as to the word the same as sfitu-was almost 1i pecks. But this translation prefers using a known and short word. The rod and the double-league are likewise inaccurate translations. IA strip ioo rods long and of a certain breadth (or ioo or i,oo square rods?).

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249

ANOTHER REDACTION OF H 7 AND 8, IN THREE SECTIONS: If anyone blind a free man (§ 8: a slave) in a quarrel, he shall give one pound (§ 8: twenty half-shekels) of silver. If (only) the hand do evil, he shall give twenty (§ 8: ten) half-shekels of silver. If anyone knock out a free man's teeth, if he knock out two teeth or three teeth, he shall give twelve half-shekels of silver. If it be a slave, he shall give six half-shekels of silver. 9. If anyone injure a man's head, formerly they would give six half-shekels of silver: the injured man was to take three halfshekels of silver, for the palace they would take three half-shekels of silver. Now the king has remitted the palace's (dues); so only the injured man may take three half-shekels of silver. io. If anyone injure a man so that he cause him suffering, he shall(?) take care(?) of him. Yet he shall give him a man in his place, who shall work for him in his house until he recovers. But if (or when) he recover, he shall give him six (var., ten) half-shekels of silver. And to the physician this one shall also give the fee (another version adds, three half-shekels of silver, but if it be a slave, two half-shekels). ii. If anyone break a free man's hand or foot, he shall give him twenty (one tablet, six) half-shekels of silver, he shall let it go(?) to his home(?). (Another redactionis given after § 12.) 12. If anyone break the hand or the foot of a male or female slave, he shall give ten half-shekels of silver, he shall let it go(?) to his home(?). ANOTHER VERSION OF §§ II AND 12: If anyone breaks a freeman's (§ 12: a slave's) hand or foot and if he (this one) remain crippled(?), he shall give him twenty (§ 12: ten) half-shekels of silver; but if he be not crippled(?), he shall give him ten (§ 12: five) half-shekels of silver. 13. If anyone cut off(?) the nose of a free man, he shall give one pound (another version, thirty pounds) of silver, he shall let it go(?) to his home(?). 14. If anyone cut off(?) the nose of a male or female slave, he shall give three(?) half-shekels (another redaction, fifteen pounds) of silver, he shall let it go(?) to his home(?).

250

ORIGIN AND HISTORY OF HEBREW LAW

15. If anyone tear the ear of a free man, he shall give twelve half-shekels of silver, he shall let it go(?) to his home(?). 16. If anyone tear the ear of a male or a female slave, he shall give three (another redaction, six) half-shekels of silver. 17. If anyone cause a free woman to miscarry, if it be the tenth month, he shall give ten half-shekels of silver, if it be the fifth (sixth?) month, he shall give five half-shekels of silver (some variants, without distinguishing the months, twenty half-shekels of silver), he shall let it go(?) tor her home(?). 18. If anyone cause a female slave to miscarry, if it be the tenth month, he shall give five half-shekels of silver (some variants, without the month, ten half-shekels of silver). OWNERSHIP OF SLAVES

19. If any man of (from) Luia steal a man or a woman of (from) Hattusas' and lead him to the land of Arzaowa (var., Luia) (and) his master discover(?) him, he shall bring his very2 house(hold?). (One of the two tablets begins a new section here.) If at Hattusas itself(?) any Hittite steal a Luia man and lead him to the land of Luia: formerly they would give twelve persons; now he shall give six persons, he shall let (them) go(?) to his home(?). 20. If any man of Hatti steal a Hittite slave and lead him hither to the land of Hatti, (and) his master discover(?) him, he shall give him twelve half-shekels of silver, he shall let it go(?) to his home(?). 21. If anyone steal a slave of a Luyite from the land of Luia and lead him hither to the land of Hatti, (and) his master discover(?) him, he (the master) shall take his slave only, without compensation. 22. If a slave run away and anyone lead him back, if he seize him near, he (the owner) shall give him shoes; if on this side of the river, he shall give him two half-shekels of silver; if on that side of the river, he shall give him three half-shekels of silver.

1 Cf. p.

247,

n. 5.

This "very" (in other cases translated by "only" or, as in the next line, by "itself"), is strange; this suggests our translation may have misunderstood something. 2

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251

23. If a slave run away and come to the land of Luia, to him who leads him back he (the owner) shall give six half-shekels of silver. If the slave run away and come to a hostile land, the one who succeeds in leading him back shall take him. 24. If a male or female slave run away, he at whose hearth his master finds him (or her) shall give as a man's wages [. . pounds of silver] a year (the other tablet, twelve half-shekels of silver a month), but as a woman's wages he shall give fifty (forty?) halfshekels of silver a [year] (the other tablet, six half-shekels of silver a month).

SANITATION

If a man put filth in a cistern(?) or a well (pond?), formerly they would give [six] half-shekels of silver: he who put filth was to give three half-shekels of silver (to the owner or the village, and) into (lit., into the yard? [of) the palalce they would take three half-shekels of silver. Now the king has remitted the (share) of the palace. He who put filth, this very one shall give three halfshekels of silver, he shall let it go(?) to his home(?)., 25.

LAWS OF MARRIAGE 26.2

(Traces only.)

27. If a man take (a woman for) his wife and lead her [into his house] (and) put (or he may put?) down(?) (some) of(?) her patrimony there, if the woman die, (and) they (or they may?) burn the property of this man, the man may take from(?) her patrimony. If she die at her father's house and he (the father?) [have] sons (or children) , for his son the man dare not take her patrimony. 28. If a daughter be betrothed to a man and another elope with her and elope with the bride price too, whatever the first man's [bride price was] (var., whatever the first man [paid]), then he (the other man) shall compensate him (the first man); father and mother do not compensate. If father and mother give her to the other man, father and mother shall compensate. If father and

§ may have affected the expression of § 25. The antithesis is not, as it seems, between the malefactor and the palace, but between the persons to whom the fine was paid. 2One tablet has two sections instead. 3Here two incomplete texts are combined.

252

ORIGIN AND HISTORY OF HEBREW LAW

mother refuse (it or her?), they shall (may?) separate her from him. (For this sentence another text reads in a new section, If father and mother have no property, they shall (may) separate her from him who eloped with her.) 29. If a daughter be bound to a man and he convey the bride price to her, and afterward father and mother oppose this, they may separate her from the man, but they (one text, he, i.e., the father) shall compensate double (another text, thrice) the price. 30. If the man have not yet taken the daughter and refuse her, he however forfeits the bride price that he conveyed. 31. If a free man and a female slave be fond of each other(?) and come together and he take her for his wife and they set up house and get children, and afterward they either become hostile or come to close quarters(?), and they divide the house between them, the man shall take the children, (only) one child the woman shall take. 32. If a slave take a woman as his wife, their case is the same. (Another tablet adjudges the maj[ority of children to the wife] and one child to [the slave].) 33. If a slave take a female slave, their case is the same. (Another tablet adjudges the majority [of children to the female slave] and one child to the slave.) 34. If a slave convey the bride price to a woman and take her for his wife, nobody dare surrender her (to slavery).' 35. If an administrator(?) or a shepherd elope with a free woman (and) do not convey the bride price, she becomes a slave for three years. 36. If a slave convey the bride price to a free son and take him as husband (for his daughter),3 nobody dare surrender him (to slavery).4 1 §§ 34 and 36 are missing (or transposed) in one tablet. 2 Cf. § 175. 3Is the free son poor, and does he take from the slave the property or money to marry his daughter?

4 See note on

§34.

THE HITTITE CODE UNPUNISHED

253

SLAYING

37. If anyone elope with a woman, but afterward a rescuer come to them (var., rescuers come in), if two men or three men die, there is no compensation: "Thou hast turned into a wolf" (or, said to the rescuingfather or brother, "Thou hast become a wolf's prey"?). 38. If men be seized (and brought) into the court of justice, and any rescuer come to them, and then they rage at the wood of the lock (instead of this last clause another tablet reads, if the master of the court .[.].), and someone smite the rescuer, and he die, there shall be no compensation. SOLDIERS, LIEGEMEN, AND FEUDAL DUTIES

39. If a man hold the v[acant] fields of another and perform the tenancy duties, if he abandon the fields, and [another t]ake the fields, he dare not dispose of (them). 40. If a soldier (one tablet erroneously, liegeman) disappear, and a liegeman arise and the liegeman say, "This is my military holding, but this (other one) is my tenancy," and lay hands(?), upon the fields of the soldier, he may both hold the military holding and perform the tenancy duties. If he refuse the military service, then he forfeits the vacant fields of the soldier. The men of the village shall cultivate them. If the king give a captive2 they shall give the fields to him, and he becomes a soldier (written only arms or of arms, for man of arms). 41. If a liegeman disappear and a soldier (one or two tablets erroneously, liegeman) arise and the soldier say, "This is my military holding, but this (other one) is my tenancy," and lay hands(?)3 upon the fields of the liegeman, he may both hold the military holding and perform the tenancy duties. If he refuse the tenancy duties, they shall take (var., give) the fields of the liegeman in (another tablet, to) the palace, and the tenancy shall be vacant. HIRING FOR THE -CAMPAIGN

If anyone hire a man, and he (this one) go into the campaign and die, if the hire has been given, he need not compensate. If his hire have not been given, he shall give one person. And as 42.

Less probably, and sow. §§ 48, 49, 112.

2 Cf.

3 Less probably, and sow.

254

ORIGIN AND HISTORY OF HEBREW LAW

his hire he shall give twelve half-shekels of silver, and as the hire of a woman he'shall give six half-shekels of silver.' PUSHING INTO THE RIVER OR INTO THE FIRE

43. If a man usually ford the river with his cattle (var., his ox) and another push(?) him and seize the tail of the ox, then he ford the river, and the river take the owner of the ox down(?),2 (one tablet adds, but whoso pushed[?] him), they (the family?; the other tablet, he-the heir?) shall take that one (to care for them; or itthe river-shall take that one?). 4 4 A. If anyone throw a man into the fire and this one die, he shall give him (the father) again a son. MAGICAL CONTAMINATION

44B. (In one version a new section.) If anyone purify (ritually, perhaps, also exorcize) a man, and put down(?) the remainders(?) deliberately(?), if he put it down(?) (var., throw it) on anyone's field or yard(? home?), (it is) enchantment (and falls under) the judgment of the king. ANOTHER REDACTION OF THIS, OR A NEW SECTION BETWEEN

§§ 4 4 B AND 45: [. . . . ,] then he shall purify him (or it) again. And if something be hostile (or evil) to the house, he shall purify him (or possibly it) again, as before; and everything of his which disappears (is spoiled? perishes?; or whatever of his disappears-or the like-meanwhile?), he shall compensate it once. FINDINGS

45. If anyone find vessels, he shall return (or and return) them to the owner; he (the owner) shall reward this one. If he do not give it, he becomes a thief. ANOTHER REDACTION: If anyone find vessels or ox, sheep, horse, (or) ass, he shall return (or and return) it to its owner; he (the ' The woman might have gone as a canteen-keeper. Less probably, the hired person was sent on a journey. 'In other passages this word has been translated by "to put down,"

and could mean here: "The river brings him (swimming) over." But what would the end of our section mean in this case? The three words "they" or "he," "take," and "that very one" are ambiguous.

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255

owner) shall reward him(?).x If he do not find its owner, show it to witnesses, but later its owner find it, he shall deliver to him in good condition what had disappeared (less probably, what is held-viz., by him). But if he do not show it to witnesses and later its owner find it, he becomes a thief; he shall replace it threefold. LAND TENURE

2

46. If anyone hold fields as tenancy and as heritage (i.e., as a kind of entail) in a village, if the fields be all given to him, he shall render the impost. If few fields be given to him (probably by his brothers), he need not do the impost, but they shall render it out of his paternal house. If he appropriate the fields of an owner of a heritage by usurping(?), (var., If the field and ground of an owner of a heritage fell vacant),3 or the men of the village give him the fields (var., field and ground), then he shall render the impost. 47. If anyone hold fields as a present of the king, he shall not render the impost. "The king takes the bread from the table and gives it to him." If4 anyone buy all the fields of a soldier, he shall render the impost. And if he buy (only) several (?lit., much) fields,s he shall not render the impost. But if he appropriate the fields by usurping(?), or the men of the village give it to him, he shall render the impost. VARIANT FOR § 47 (THREE SECTIONS): If anyone hold field and ground as a present of the king, he shall perform the impost. But if the king free him, he need not do the impost. If anyone buy the whole field and ground of a soldier, but the (primary) occupant of the field and ground disappear, what tenancy duties the king laid on him (or took from him, or as to the buyer lay on him, or take from him) he shall perform these. But if the occuIA few wedges are apparently displaced. As written, they would read: "He shall lead it." 2Cf.

3Less

§ §39-41,

112.

probably, "is held (by his own power)." The following "(And?) as (?) field to him" instead of "or" is not clear; the variant of § 47 reads rightly "or to him." 4One tablet, besides the one translated apart, begins a new section here. s Or really many fields, as engrosser, agent? Cf. p. 256, n. i.

ORIGIN AND HISTORY OF HEBREW LAW

256

pant of the field and ground be alive, or there be a family of the occupant of the field and ground, either in this country or in another country, he shall not perform tenancy duties. (Follows § 46, and thereupon:) If anyone hold field and ground as a present of the king, yet he shall do as impost the impost on the fields; if the palace (lit., without a subject case, out of the palace) freed him, he need not render the impost. If anyone buy the whole field of a soldier, they shall ask the king, and he shall render that impost which the king states. If he buy some(?) fields,' he need not render the impost. If the field and ground fell vacant,2 or the men of the village give it to him, he shall do the impost. 48.3 A captive 4 renders the impost: With the captive nobody dare do business; nobody dare buy his son, his field, his vineyard. He who does business with the captive shall forego the business; (var. adds, but) the captive shall take back what he has disposed of. 49. If a captive4 steal, there is no compensation (var., they shall not impose upon him [ . ]). [If there] might [be a corpo]raI.. tion(?), this corporation(?) of his shall compensate.s I[f] they did [not] give [back] the theft every time, they all would do wrong and become thieves; this one would seize that one, and that one would seize this one; they would throw the king's pennant(?). 50. A high priest(?) who is mighty(? dwells?) at Nerikka, and at Arinna, and at Ziplanda, a priest in every town (or [who dwells] at every village?), their houses are free and their coheirs shall render the impost; if he go to Arinna (for the time) of one(?) month, and the flagstaff (? liberty-pole? or the like) of each of them(?) be (or then the .

. .

. shall be) shown(?) at his gate(?), he

is f[ree]. 51. He who formerly ha[d become] a weaver at Arinna [was free] (or is nothing missing?), also his house was free, his partners, ' The translation "some" is very questionable. Rather: "If he buy up fields from everyone." Cf. p. 255, n. 5.

2See footnote to § 46. 3 Two tablets without "If"; the third tablet, "If" with a little connecting particle ("on the other side"?).

4

Cf.

§ 40.

bAnd may find out and punish the thief?

THE HITTITE CODE

257

(coheirs?) and his people were free. Now only his house is free; his partners and his people render tenancy duties and impost. Also at Zippalanda it is just the same. 52. (On one tablet no new section.) The slave of the stonehouse, the slave of a son of the king, possessors (or and the possessor?) of habitations(?), who hold fields among soldiers, shall render the impost. 53. If a soldier and his partner (coheir? var., partners) dwell together, if they become hostile and then divide their house, if his farm(?) consist of ten (heads=) persons, the soldier shall take seven persons, and his partner shall take three persons; the cattle and sheep of his farm (?) they shall divide in the same way. If anyone hold a deed of a royal present, if they divide the former field, of the present too the soldier shall take two-thirds and his partner shall take one-third. 54. Formerly the Manda warriors, the Shala warriors, the warriors of the city Tamalki, the warriors of the city Hatra, the warriors of the city Zalpa, the warriors of the city Hemuwa, the archers, the carpenters, the pages, and the marshals(?), did not render impost, did not perform tenancy duties. 55. When Hittites, liegemen, came and fell down before the father of the king and declared, "Nobody (makes=) gives us salary, and they send us back word, 'You are liegemen,' " then the father of the king [went(?)] into the assembly (delegation?) and interfered harshly (?or made short work of it?), "Go! As your companions you shall be likewise." 56. From building (var., going to) a fortress in a campaign of the king, from cutting a vineyard, no metal-worker is freed, and the gardeners shall render such impost completely. LAWS CONCERNING DOMESTIC ANIMALS

57. If anyone steal a bull-if it be an ox half2 a year old, it is not a bull; if it be a yearling ox, it is not a bull; if it be an ox two years old, this one is a bull-formerly they would give thirty oxen, now he shall give fifteen oxen: he shall give five two-years old, five ' The translation of this word merely follows the guess of another translator in order to avoid a gap. Or "less than" (so also in §§ 58, 6o, 61, 63, 178, 181, 185, and 186).

258 ORIGIN AND HISTORY OF HEBREW LAW yearling oxen, five oxen half a year old, he shall let (them) go (?) to his home(?). 58. If anyone steal a stallion-if the horse be half a year old, it is not a stallion; if it be a yearling, it is not a stallion; if it be two years old, this one is a stallion-formerly they would give thirty horses, now he shall give fifteen horses: he shall give five horses two years old, five yearling horses, five horses half a year old, he shall let (them) go(?) to his home(?). 59. If anyone steal a ram, formerly they would give thirty sheep, now he shall give [fifteen] sheep; he shall give five woolewes, five wethers, five lambs, he shall let (them) go(?) to his home(?). 6o. If anyone find a bull, then release it (?),' and its owner discover(?) it, he shall give seven oxen: he shall give two oxen two years old, three yearling oxen, two oxen half a year old, he shall let (them) go(?) to his home(?). 61. If anyone find a stallion, then release it(?)- and its owner discover(?) it, he shall give seven horses: he shall give two horses two years old, three yearling horses, two half a year old, he shall let (them) go(?) to his home(?). 62. If anyone find a ram, then release it(?), and its owner discover(?) it, he shall give seven sheep: he shall give two wool-ewes, three wethers, two lambs, he shall let (them) go (?) to his home(?). 63. If anyone steal a plow-ox, formerly they would give fifteen, oxen, now he shall give ten oxen: he shall give three oxen two years old, three yearling oxen, four half a year old, he shall let (them) go(?) to his home(?). 64. If anyone steal a draft-horse, his case is the same. 65. If anyone steal a tame(?) he-goat, or a tamed(?) wildgoat(?), or a tame(?) mountain sheep, the very same compensation as for a he-goat (shall be) also for these (other animals). 66. If a plow-ox or a draft-horse (one tablet, draft-ass) or a cow or a she-ass for breeding joins a yard; if a tame(?) he-goat or woolewe or a wether join a fold and its owner find it, then he shall take it in the same good condition; he shall not seize him as a thief. 67. If anyone steal a cow, formerly they would give twelve oxen. Now he shall give six oxen: he shall give two oxen two years

1Lit., purify it.

THE HITTITE CODE

259

old, two yearlings, two oxen half a year old, he shall let (them) go(?) to his home(?). 68. If anyone steal a mare-for-breeding, his case is the very same. 69. If anyone steal a wool-ewe or a wether, formerly they would give twelve sheep. Now he shall give six sheep: he shall give two wool-ewes, two wethers, two lambs, he shall let (them) go(?) to his

home(?). 70. If anyone steal an ox, or a horse, or a mule, or an ass, and his owner discover(?) it, then he shall take it in the same good condition. Moreover, he (the thief) shall give twofold, he shall let it go(?) to his home(?). 71. If anyone find an ox, a horse, a mule (var. adds, an ass), he shall bring it to the royal gate(?). But if he find it in the country, they shall lay(?) it before(?) the aldermen,' then he may ever yoke it. And if its owner find it, then he shall take it in good condition; he shall not seize him as a thief. If he do not lay(?) it before(?) the aldermen,2 be becomes a thief. 72. If an ox die in the field of anyone, the owner of the field shall give two oxen, he shall let them go(?) to his home(?). 73. If anyone appropriateo a living ox, also this one is a thief equally. 74. If anyone break the horn of an ox or the foot of an ox, then he shall take this (ox) and give the owner of the ox a sound ox. If the owner of the ox say, "I will take just my ox," he shall take his ox, and he (the other) shall give two half-shekels of silver.

75. If anyone (borrow and) yoke an ox, a horse, a mule, an ass, and it die, or a wolf devour it, or it go astray, he shall give it in good condition. But if he say, "By the hand of q god it died," then he shall take an oath. 76. If anyone borrow(?) an ox, a horse, a mule, an ass, and it die with him on the spot, he shall bring it and give its hire. 77. If anyone smite a pregnant cow and cause it to miscarry, he shall give two half-shekels of silver. If anyone smite a pregnant ass I Or the aldermen may adjudge it (to him)? 'Or If the aldermen do not adjudge it (to him)?

3The exact meaning of this kind of taking is not yet clear. The same word in H§ 46, 47, and 1o9.

260

ORIGIN AND HISTORY OF HEBREW LAW

and cause it to miscarry, he shall give two (var., three) half-shekels of silver. If anyone destroy the eye of an ox or a horse, he shall give six half-shekels of silver, he shall let it go(?) to his home(?). 78. If anyone hire an ox (for lighter work, as threshing?) and impose a yoke harness(?) or a collar harness(?) on it and its owner find it, he shall give one (peck of) barley (as additional food?) for one pair(?). 79. If oxen go upon a field and the owner of the field find them, he may yoke them one day, until the stars come; then he shall return them to their owner. 8o. If anyone throw a sheep before the wolf (probably, to bait and to slay the wolf), its owner shall take its fat (or fat flesh), and he himself (the shepherd) shall take the skin of the sheep. 81. If anyone steal a fattened pig, formerly they would give one pound of silver. Now he shall give twelve half-shekels of silver, he shall let it go(?) to his home(?). 82. If anyone steal a pig (boar) of the portico, he shall give six half-shekels of silver, he shall let it go(?) to his home(?). 83. If anyone steal a pregnant pig, he shall give six half-shekels of silver. Also the little pigs they shall count; for two little pigs he shall give one peck of barley, he shall let it go(?) to his home(?). 84. If anyone smite a pregnant pig so that it dies, his case is the same. 85. If anyone separate a little young pig and steal it, for a pair(?) he shall give one (peck of) barley. 86. If a pig go upon a meadow(?) or a field or a garden, and then the owner of the meadow(?), the field, or the garden smite it so that it dies, he shall give it back to its owner. But if he do not give it back, he becomes a thief. 87. If anyone smite the dog of a shepherd so that it dies, he shall give twenty half-shekels of silver, he shall let it go(?) to his home(?). 88. If anyone smite the dog of a dogman (i.e., breeder or trainer of dogs) so that it dies, he shall give twelve half-shekels-of silver and shall let it go(?) to his home(?). 89. If anyone smite a dog of the portico so that it dies, he shall give one half-shekel of silver.

THE HITTITE CODE

261

go. If a dog devour pig's lard and the owner of the lard find (the dog) and kill it in order to tear (var., take) the lard out of its stomach, there is no compensation. 91. If anyone steal bees in the sunshine:' formerly they would give one pound of silver; now he shall give five half-shekels of silver, he shall let it go(?) to his home(?). 92. If anyone steal two beehives or three beehives formerly covering(?) with bee-stings(?) (was inflicted); now he shall give six half-shekels of silver. If anyone steal a beehive, if no bees are therein, he shall give three half-shekels of silver. OTHER LAWS AGAINST THEFT

93. If they seize a free man at a storehouse(? gate?), before he has gone in, he shall give twelve half-shekels of silver. If they seize a slave at a storehouse(?), before he has gone in, he shall give six half-shekels of silver. 94. If a free man steal (in) a house, he shall give it in the same good condition. Formerly for a theft they would give one pound of silver; now he shall give twelve half-shekels of silver. If he steal much, they shall impose upon him much; if he steal little, they shall impose upon him little, he shall let it go(?) to his home(?). 95. If a slave steal (in) a house, he shall give it in the same good condition. For the theft he shall give six half-shekels of silver. And he (the victim of the theft) shall cut off the nose of the slave and his ears. Then they give him back to his master. If he steal much, they shall impose upon him much; if he steal little, they shall impose upon him little. If his master say, "I will compensate for him," he shall compensate. If he refuse, then he shall give up that slave. 96. If a free man steal (in) a granary and he obtain the grain of the granary, he shall fill the granary with grain. And he shall give twelve half-shekels of silver and let it go(?) to his home(?). SI.e., a swarm. Another explanation, "in the hive." In the next sec-

tion the hives are right without question. The Hittite writer has often written the same thing once by the Hittite word, once by the Babylonian, once by the Sumerian word.

262

ORIGIN AND HISTORY OF HEBREW LAW

97. If a slave steal (in) a granary and he obtain the grain of the granary, he shall fill the granary with grain. And he-shall give six half-shekels of silver, he shall let it go(?) to his home(?). INCENDIARISM

98. If a free man set a house ablaze, he shall build the house, again. And what(ever is) inside the house, be it a man, an ox, or a sheep, (that) perishes, nothing of these he need compensate. 99. If a slave set a house ablaze, his master shall compensate for him. The nose of the slave and his ears they shall cut off, and give him back to his master. But if he do not compensate, then he shall give up this one. ioo. If anyone set a barn(?) ablaze, he shall feed his (the other's) [oxJen and shall bring (the fodder) until spring. He shall give back the barn(?). If straw (hay?) was not therein, then be shall only build the barn(?). IF A VINE' HORTICULTURAL LAWS

1o. If anyone steal vines, or apple-trees, or onions, formerly [they would give for one vine . . hal]f shekel of silver, [for one pear-tree(?) . . half-she]kel of silver, for one bushel(?) of onions one half-shekel of silver, and [in the palac]e (in the government building) he was to be struck (smitten?) with the spear(?). [Formerly] they proceeded thus. Now, if it is a free one, he shall give [six half-shekels of silver], and if it be a slave, he shall give three half-shekels of silver. 102. If anyone steal wood out of [the forest(?), if it be one talent of woo]d, he shall give three half-shekels of silver; if two talents of wood, six half-shekels of silver; [if three(?)] talents of wood: judgment of the king. 103. If anyone steal a planting, if it be a rod of planting, then he shall plant it again and give one half-shekel of silver. If it be 2 rods of planting, then he shall plant it again and give two halfshekels of silver. I Title of the second part of the law.

THE HITTITE CODE

263

104. If anyone cut off [pomegr]anates or pears(?), he shall give [. . half-shekel(s?) of silver, he shall let it go(?) to his home(?).

105. If anyone set [brushwood(?)] ablaze and [leave(?)] it there, and it (the fire) seize [a vineyalrd, if vines, apple-trees, [pomegranates, and pe]artrees(?) burn up, for one tree he shall give [six] half-shekels of silver and plant the planting again; he shall let it go(?) to his home(?). And if it be a slave, he shall give three halfshekels of silver. io6. If anyone set(?) fire to his field and let it go out to standing grain and set the field ablaze,, the one who sets it ablaze then shall take the burned field and give a good field to the owner of the field; then he (this one) may reap(?) (it). 107. If a man allow his sheep to wander in a vineyard and they (he?) destroy it, if it be a mature one, he shall give for one acre ten half -shekels of silver; if it be bare (of grapes), he shall give three (var., five) half-shekels of silver. io8.2 If anyone steal apples from a fenced(?) vineyard, if (from) one hundred trees, he shall give [te]n(?) half-shekels of silver, he shall let it go(?) to his home(?). But if it be not fenced(?) and he steal apples, he shall give three half-shekels of silver. 109. If anyone appropriate3 fruit out of a vineyard(?), if (from) oo trees, he shall give six half-shekels of silver. i10. If anyone steal madder (berries?) out of a . . . (a special kind of field or garden?), to what he steals he shall give in addition the same amount. iii. [If] anyone pull(?) a [. . .]., (it is) enchantment (and falls under) the judgment of the king. Ii 2. [If] they give a field of a soldier (and) grain4 [to captive]s (?or [to a captiv]e),5 [for three years] they (var., he) shall not do

I Var., instead of "and lets it, etc.": "and

then [. . .] another's [. . ]." tablet has here, as a sign of a greater division, two strokes. 3 See note to § 73. Suppose the difference between § io8 and § iog consists in this word, the place of the "appropriating," written here as a Hittite word, may be the vineyard; in § io8 written by known symbols (see note to § 91). 4 The field seems to be virgin soil. s Cf. § 40. Probably, the singular has been intended, but the spelling of this word caused the one writer to conceive it as a plural. 2One

264

ORIGIN AND HISTORY OF HEBREW LAW

[tenancy dutlies; but in the fourth year [he(?) shall do the] te[nancy duties. The field(?) they(?)] shall take(?) like (lit., with) the soldiers. (Var., But in the fourth year he shall render(?) [tenancy duties and impost] (with=) like the soldiers.) I13. If anyone cut off [a vine, he himself shall take the vine] cut off and shall give a [good] vine to the owner of the vine ........ (single words). (Some sections are missing.) I 18 (?). (Only single words are preserved, as owner of the trees, he seizes, then he goes.) FURTHER LAWS CONCERNING THEFT AND DAMAGES

119. If anyone [steal] a water fowl' [or a] tamed [. . .], [formerly]

they would give [. . half-shekels of silver]. Now [he shall give twelve half-shekels of silver, he shall let it go(?) to his home(?). 120. If [anyone] steal ranging (?lit., found?) t[amed(?)] birds, if ten birds, [he shall give] one half-shekel [of silver]. 121. If anyone, a free man, steal a plow,2 [formerly(?)] its owner (was to) put him upon the plow(?)3 [and . .. .]. Formerly they proceeded thus. Now he shall give six half-shekels [of silver], he shall let it go(?) to his home(?). And if it be a slave, [he shall give] three half-shekels of silver. 122. If anyone steal things contained within (in the storehouse? in the cart?) by a cart, [formerly] they would give one half-shekel of silver to the storehouse(?). [Now] he shall give [. . half-shekel of silver, he shall let it go(?) to his] home(?). 123. If [anyone steal . . . . .,4 formerly(?) . . .(?)] pain of dea[th(?) . .. (?); now(?)] he shall give three half-shekels of silv[er (and) shall give it away(?) to his home(?)]. I Lit., a bird of the pond. 2The tablet has erroneously "plower." Or, If any free man steals from a plower? 3The unknown Hittite word might signify the same as the previous word translated by "plow" (see note to § 91), according to the principle of connecting the punishment with the trespassing. For the execution, cf § 166. Or is the instrument of punishment in our § 121 the harrow turned? 4 According to a determinative sign a wooden (?) implement or the

like; else wood or a tree.

THE HITTITE CODE

265

.

124. If anyone steal in(?) a shed (or a trunk of sesame wood?), he shall give [. . half-shekels of silver], he shall let it go(?) to his home(?). If anyone load(?) carts, then [drive(?)] them to (?) the field and steal (it?) there(?), . [ . . . ] ., he shall give [. .J halfshekels of silver, he shall let it go(?) to his home(?). 125. If anyone steal a water trough(?), he shall give [. . halfshekels]. If anyone steal a yoke harness(?) or collar harness(?), he shall give one half-shekel of silver. 126. If anyone steal a . . . (some wooden object) in the door of the palace, he shall give six half-shekels of silver. If anyone steal a bronze lance in the gate of the palace, he shall die. If anyone steal an (ornamental) copper nail(?), he shall give one-half peck of barley. If anyone steal curtains(?) of (= as large as) one cloth, he shall give one woolen cloth. 127. If anyone steal (var., lifts out) a door in a quarrel: whatever is lost, he shall compensate that; he shall also give one pound of silver, he shall let it go(?) to his home(?). 128. If anyone steal bricks: to what he steals he shall give in addition the same amount. If anyone steal stones (or "[. .] stones") out of a foundation(?), for two stones he shall give ten stones. If anyone steal a stone pillar(?), or a harmiyalli stone [out of a . . .?], he shall give two half-shekels of silver. 129. If anyone steal a horse's or a mule's bridle(?), rein(?), [. . .], or a bronze bell, formerly they [would gi]ve one pound of silver. Now [he shall pay] twelve half-shekels of silver, he shall let it go(?) to his home(?). 130. If anyone steal [equjipment(?) of an ox or of a horse, [he shall give . . half-shekels of silver], he shall let it go(?) to his home(?). 131. If [anyone steal] a (leather) . . [. .J,[he shall give] six halfshekels of silver, [he shall let it go(?) to his home(?)]. 132. If a free man (or from a free man [anyone]) [steals(?) . . he shall give] six half-shekels of silver, [he shall let it go(?) to his home(?)]. If it be a slave, [he shall give three half-shekels of silver]. 133. If (from a?) free m[an .............

142(?). [If

anyone]

drive(?)

[a

chariot(?) . . . . . . .]

and

[lose(?), or steal(?), its(?)] whee[l, he shall gi]ve one-half peck of

266

ORIGIN AND HISTORY OF HEBREW LAW

barley [for one] wheel. [If it be a slave, he shall give . .. of barley] for one wheel. 143. If anyone, a free man, (or if from a free man anyone) [steal(?)] a (copper) k[nife(?) or] a (copper) .

.

. (a kind of priestly

implement?), he shall give six half-shekels of silver, he shall let it go(?) to his home(?). If it be a slave, [he shall give] three halfshekels of silver. 144. If a barber [cut(?) .

.

. with(?) a (copper) k]nife(?) (or If

.

[anyone with(?)] a barber's k[nife? etc.) and destroy them [ . I.... If [anyone destroy(?)] a fine garment (or cloth) with(?) a (fulling?) stock (a doorpost?), he shall give ten half-shekels of silver. If anyone cut off(?) [. . .1, he shall give [. . half-shekels] of silver.' 145. If anyone [rent?] a cattle stable [for . . months(?)], he

shall give six half-shekels of silver. [If he rent it for a few months(?)], he shall give one part of the hire. (Cf. note to §144.) 146. If anyone be going to sell(?) house or village (hamlet), o[r ...., or [. . .] and another come [and] prevent it (by dissuading the buyer?), then he make the trade [himself? or at a lower price?], the evildoer shall give one pound of silver [and he] shall buy (according to) the [fir]st trade (lit. plural). 147. [If] anyone be going to sell(?) an unskilled [man] and another prevent it, [the evildoer] shall give [. .]half-shekels of silver. 148. [If] anyone be [going to sell(?) an ox,] horse, mule, or ass, and another prevent it, [the evildoer] shall give [. .] half-shekels of silver. 149. If anyone trade (away) a tamed (?trained?) . [. .], and say

"It died," and its owner trace it, he (the owner) may take it, and, in addition, he (the purloiner) shall give two persons. LAWS FIXING WAGES AND RENT

150. If a man go for wages, fo[r one month his wages are half-shekels of silver]. If a woman go for wages, [for one month her wages are . . half-shekels of silver]. ' Less probably, these words "he shall, etc." preserved only on one little tablet, coincide with the conclusion of § 143; then the conclusion of § 145 "he shall give one part" were to be put at the end of § 144, the end of § 145 could be read: "[he forfeits] the hire," and the first "[rents]" of § 145 could be read: "[rjents."

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151. If anyone h[ire] a plow-ox, for one month [its hire is] one half-shekel [of silver. If anyone] hire [a . . .], fo[r one month its hire is . . half-shekel of silver]. [anyone] hire a horse, [. . . . . for one month its hire 152. If is . . half-shekel of silver].

. . . . . . . (Some sections are missing.) 157(?). If it be a bronze dish(?) of one-pound weight, its rent for one month is one half-shekel of silver. If it be a copper dish(?) of one-half-pound weight, its rent for a month is a quarter of a shekel of silver. If it be a plate(?) of one-pound weight, its rent for a month is a quarter of a shekel of silver. 158. If a man go for wages, bind sheaves(?), load (?lit., seize) (it into) carts, spread(?) (it on) the straw barn (and so forth till) they clear(?) the threshing-floor(?), for three months his wages are thirty pecks of barley. If a woman go for wages [in the] harv[est], for two months he (the proprietor) shall give twelve pecks of barley. 159. If anyone harness a yoke of oxen, his wages are one-half peck of barley. 16o. If a smith make a copper box(?), his wages are one hundred' pecks of barley. He who makes a copper dish(?) of two-pound weight, his wages are one peck of emmer. 161. If he make a copper dish(?) of one-pound weight, his wages are one peck of barley. DIFFERENT LAWS

162. If anyone divert a ditch secretly(? backward?), he shall give one half-shekel of silver; if (var. adds, however) he direct (var., take?) the ditch afterward (? from behind?) upward (again to the field of the neighbor by the waterwheel?), then he is permitted (? to do so), if he also (?) take (? it) down (without harming the other?), it may be his. 162a.2 [If] anyone take [. . .] whose [. . .] he(?) fixes(?) and(?) [. .] it(?) [. . . If] anyone [let?] sheep [go] out of the pasture [and a sheep perish(?), (there shall be) com]pensation. And he [tak]es its skin and its meat. 2 Or, against the text, one and a half.

2

Omitted on the large tablet.

268

ORIGIN AND HISTORY OF HEBREW LAW

163. If anyone's young animal(?) resort(?) to a fold(?) (stable?), and then he (the owner of the fold) release it (lit., purify it) and drive it away, thus really taking the fold(?) from the fold-animal(?), but do not tell it to his neighbor, and without the knowledge of the neighbor drive away his young animal(?) so that it dies, there shall be compensation. RITUAL LAWS AND ONE AGAINST ENCHANTMENT'

164. If anyone come for borrowing(?), then make a quarrel and throw down(?) either bread or wine-can, 165.2 then he shall give one sheep, ten loaves, and one jug(?) (of beer?). Then he cleanses his (the other's) house again (by the offering). (Not) till the year grows old (= has elapsed) then may he salute (again) his (the other's) house. 166. If anyone sow seed upon seed, his neck shall be put(?) upon the plow, then they shall harness a yoke of oxen, directing the face of this one this way, and the face of that one that way. The man3 shall die, and the oxen shall die. And he who sowed the field first, this one then may take it. Formerly they did thus. 167. Now, one sheep shall be fetched(?) as(?) the substitute(?) of the man, and two sheep shall be fetched(?) as(?) the substitutes(?) of the oxen. And thirty loaves, three jugs(?) of beer(?) he shall give. Then he cleanses (it) again (by the offering). And he who sowed the field first, this one then may reap(?) it. 168. If anyone "break" the boundary of a field, he shall drive one . . .,4 the owner of the field shall cut (a strip of) one rod off the field, then he (the other?) shall take it. And he who breaks the boundary (var., the field) shall give one sheep, ten loaves, one jug(?) of beer(?). Then he cleanses the field again (by the offering).s 169. If anyone buy a field and then "break" the boundary, he shall take bread, then break it for the sun-god and say: "Plant (or, I One of the two tablets expresses the new chapter by two separating strokes instead of one. 2The other tablet has correctly united these two sections. 3The tablet offers: "the men die." 4A certain animal (mule? colt? calf?), probably for the holy work of drawing the border. Less probably a cart (with the boundary posts). s Else the changing of the boundary would have been a sacrilege.

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thou hast planted?) each(?) elzi-treer of mine (or, my e. has come) into the earth"; thus shall he say. (Whether) sun-god (or) weathergod, there is no quarrel (i.e., no difference). 170. If a free man kill a serpent and speak the name of another, he shall give one pound of silver, if a slave, this one shall die. DIVERSE LAWS

171. If a mother send over(?) to her son his garment and cast off her son,2 if her son enter again, then take his door, then send it over(?), he take his headrest(?) and his chair(?),3 then send it over(?), then she shall take these things back and shall make her son her son again. 172. If anyone keep a free man alive in a hungry year,4 then (this one) shall give indemnification for it; if a slave, he shall give ten half-shekels of silver. 173. If anyone oppose the judgment of the king, his house shall become a ruin(?). If anyone oppose the judgment of a dignitary, his head shall be cut off. If a slave rise against his master, he shall go into the pit(?). 174. If men fight one another, and then one dies, he (who killed) shall give one person. 175. If a shepherd or an administrator(?)s take a free woman, she shall be a slave for two years or for four years, and they may(?) pelt her children and nobody shall dare seize the missile (stone)s(?). 176A. If anyone remove(?) (a part of) the fence of a bull, (it falls under) the judgment of the king.6 They trade (as follows?).7

I Probably as boundary mark; or directly "boundary tree." 2 The main tablet reads, "her sons." As for the following sentences, from the incomprehensible "takes his door" to "takes these things back," it is doubtful who does or shall do the different actions. These seem to be symbolical for the casting off and for the re-entering. The mother seemsin a German phrase-to have put his chair before the door. 3A guess; the first word must signify something for the back. 4The other tablet, "a free man, a hungry one, for a year." s Cf. § 35. 6Because the bull set at large is dangerous to the commonwealth? 7Or does this word belong to the preceding expression? Then, "they shall negotiate (this case in) the king's court."

270

ORIGIN AND HISTORY OF HEBREW LAW

In the third year he (the bull) genders. The plow-ox, the wether, the he-goat gender in the third year. LAWS REGULATING PRICES

176B. If anyone buy' an artisan's apprentice(?), buy either a potter, a smith, a carpenter, a leatherworker, a tailor, a weaver, or a lace-maker(roper?), he shall give ten half-shekels of silver. 177. If anyone buy' an expert fowler, he shall give twenty-five half-shekels of silver. If anyone buy an unskilled man or woman, he shall give twenty half-shekels of silver. 178. A plow-ox costs fifteen(?) half-shekels of silver, a bull costs ten half-shekels of silver, a great cow costs seven half-shekels of silver, a plow-ox, a cow one year old costs five half-shekels of silver, and for an ox half a year old one shall give four half-shekels of silver; if for a pregnant cow, eight half-shekels of silver; a calf costs two half-shekels of silver. One male horse, one mare for breeding, one he-ass, one she-ass for breeding, cost correspondingly. 179. If it be a sheep, its price is one half-shekel of silver, three goats cost two half-shekels of silver, two lambs cost one half-shekel of silver, two kids cost one-half half-shekel of silver. 18o. If it be a draft-horse, its price is twenty (thirty?) halfshekels of silver, a mule costs one pound of silver, a horse costs fourteen half-shekels of silver, a male horse one year old costs ten half-shekels of silver, a mare for breeding, one year old, costs fifteen half-shekels of silver. 181. One male horse and one mare for breeding, half a year old, cost four half-shekels of silver. Four pounds of copper cost one half-shekel of silver. One tub of aromatic oil costs two halfshekels of silver; one tub of lard, one half-shekel of silver; one tub of butter, one half-shekel of silver; one tub of honey, one halfshekel of silver; two cheeses [one half-shekel of silver]; three (pieces of) yeast, one half-shekel of silver. 182. A gown(?) costs twelve half-shekels of silver, one fine garment costs thirty half-shekels of silver, one blue woolen garment costs twenty half-shekels of silver, breeches(?) cost ten halfshekels of silver, one slashed(?) garment costs three half-shekels of silver, one . . [. .] costs four half-shekels of silver, one dark garment ' Probably the bought ones were slaves and the sellers their previous owners.

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costs one half-shekel of silver, one fine wrap(?) costs three halfshekels of silver, one [. . .] wr[ap(?)] . . . . . . . (one or two lines are missing) one cloth of seven pounds' weight [costs . . half-shekels of silver], one great linen sheet costs five half-shekels of silver. 183. Three pecks of emmer cost one half-shekel of silver, four pecks [of . . . . half-shekel(s?) of silver], one peck of wine costs(?) one-half half-shekel of silver, a peck [of . . . . halfshekel(s?) of silver]. One acre of field of the settlement(?) costs three [half-shekels of silver]; one acre of partition-field, two halfshekels of silver; if the field is farther out, one shall give one halfshekel of silver. 184. This (is the?) tariff; but as it is in the town(?) (village?),' [in the country (?at Hattusas?) it is just the same(?)]. 185. One acre of a vineyard costs one pound of silver. The skin of a great ox costs one half-shekel of silver; five skins of oxen half a year old, one half-shekel of silver; ten skins of oxen,2 one pound of silver; a woolly(?) skin of a sheep, one half-shekel of silver; ten skins of plucked sheep, one half-shekel of silver; four goatskins, one half-shekel of silver; fifteen clipped(?) goatskins, one half-shekel of silver; twenty lambskins, one half-shekel of silver; twenty kidskins, one half-shekel of silver. He who buys the flesh of two great oxen shall give one sheep. 186. He who buys the flesh of two oxen a year old shall give one sheep; he who buys the flesh of five oxen half a year old shall give one sheep; for the flesh of ten calves one shall give one sheep; for the flesh of ten sheep one shall give one sheep; for the flesh of twenty lambs one shall give one sheep; if anyone buys the flesh of [twenty] kids, he shall give one sheep. AGAINST UNCHASTITY

187. If a man do evil with (an ox=) a cow, (it is) a capital crime(?),3 he shall die. They4 shall lead him to the king's hall(?).

I Or villages? The writer of the clay tablet has corrected this line probably several times and incompletely. 2 "Oxen" seems to be written over "calves." The following "one pound" perhaps was a mistake for one half-shekel and caused the preceding word to be altered. 3 Or (the punishment is) pain of death? The like in the following sections. 4 Lit., he (the denouncer).

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ORIGIN AND HISTORY OF HEBREW LAW

But the king may kill him, and the [king] may grant him his life. But he shall not approach the king. 188. I[f a man] do [evil with . . .], (it is) a capital crime(?), he

shall die, T[hey], shall lead him to the king's hall(?). But the king may kill him, and the [king may grant] him [his life]. But he shall not approach the king. 189. [If a man] do evil with his own mother, (it is) a capital crime(?). If a [man] do evil with a daughter, (it is) a capital crime(?). If a man do evil with a son, (it is) a capital crime(?). 190. But if they come willingly, man and woman, there shall be no punishment(?). And if a man do evil with his stepmother(?), there shall be no punishment. But if his father be living, (it is) a capital crime(?). 191. If a free man picks up(?)2 now this one, now that one(?), now in this country, then in that country, (there shall be) no punishment. If both (live) in (one) place and he3 know them (?), (it is) a capital crime(?).4 192. If the man ofs a woman die, his wife may take the man's patrimony.6 193. If a man have taken a woman, then the man die and his brother take her, then his father take her; if again also his father die and one brother of his take the woman whom he had taken,7 (there is) no punishment. Lit., he (the denouncer). Here the word "free ones" is stricken out. 3 Some signs are stricken out. 4"No punishment" and other words are stricken out. sLit., a man dies to a woman. 6 This law would not be connected with the other sections. In fact, there followed two lines now stricken out. The last word is recognizable: punishment, which may be restored as "[(there shall be) no] punishment." In order to adjust our section in its present shape to the connection, we could translate: "If, etc., a (= another) man may take his (the first man's) patrimony and his wife," or without "patrimony," "the man's partner (or coheir?) may take his wife"; or in all cases: "If . . . dies and .... takes . . . . , [there shall be no] punishment." 7 Less probably, though he (the following brother) had (already) a woman, one brother of his takes (her). I

2

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273

194. If a free man pick up(?) female slaves, now one, now another, (there is) no punishment. If brothers (or relations) sleep with a free (woman), (there is) no punishment. If father and son sleep with a female slave or a harlot, (there is) no punishment. 195. If a man sleep with the wife of his brother, but his brother is living, (it is) a capital crime(?). If a man have taken a free (woman), then have intercourse also with her daughter, (it is) a capital crime(?). Ifr he have taken her daughter, then have intercourse with her mother or her sister, (it is) a capital crime(?). 196. If anyone's male and female slaves practice [harlot]ry(?),2 then they shall bring them and let them dwell, this one at this village, that one at that village. For this one one sheep, for that one one sheep, shall be fetched(?) as (?) a substitute(?). 197. If a man seize a woman in the mountain, (it is) the man's wrong, he shall die. But if he seize (her) in the house, (it is) the woman's fault, the woman shall die. If the man find them and then kill them, (there is) no punishing him. 198. If he lead them to the gate of the palace and say, "My wife shall not die," then he shall grant life to his wife and likewise to the adulterer, then mark his head. If he say, "These two shall die," then they shall suffer for their crime(?).3 The king may kill them; the king may grant them their lives. 199. If anyone do evil with a pig (or) a dog, he shall die. One may lead (him)4 to the gate of the palace. The king may kill them; the king may grant them their lives. But he shall not approach the king. If an ox spring upon a man, the ox shall die, and the man shall not die. One sheep shall be fetched(?) as(?) a substitute(?) for the man, and they shall kill it. If a pig spring against a man, (there is) no punishment. 200A. If a man do evil with a horse or a mule, (there is) no punishment. But he shall not approach the king and shall not become a priest. If he (var., anyone) sleep with a foreign woman I Another tablet here divides a new section. 2 Or

[a capital cri]me?

3 Or suffer the pain of death? or be decapitated? 4Or them? But the following sentence may be the general expression, without indicating more guilty ones in this case.

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ORIGIN AND HISTORY OF HEBREW LAW

and pick up(?) now [this one, now that one](?),- (there is) no punishment. PRICE OF APPRENTICING

200B .2 If anyone give a son for instruction, be it a carpenter, o[r a pottjer, or [a weaver], or a leather-worker, or a tailor, or a smith, he shall give six half-shekels of silver for the instruction. If he (the artisan) have taught him, he (the father) shall give him a person. COMMENT ON FOREGOING LAWS BY

J. M.

Powis SMITH This Hittite Code is written in cuneiform characters and is generally acknowledged to have been composed in the fourteenth century B.C., i.e., shortly after the Tel-elAmarna period and the time when the Habiri (the Hebrews) first entered Palestine. It reflects a stage of culture far beyond that of the Hebrews of that age. It is a code for a highly organized social order. It differs from Hebraic legislation notably in one respect, viz., that it has no reference to deity or to religious cultus in any form with the exception of § 169, which refers incidentally to the sun-god and the weather-god; §§ 164-69, which seem to provide for some ritualistic practices; § 75, which permits a man to escape a fine by taking an oath as to his lack of responsibility; and § 50, which provides exemption from taxes and imposts for the priesthood. The ethical element in the Code is very prominent. The first eighteen laws deal with cases of personal injury. The next six laws deal with the stealing of slaves; the next eleven laws cover the conditions of marriage. Then two cases of manslaughter are cited which involve no penalty I The traces are others than in §§ 191 and 2 Here

194.

another tablet begins a new section. Cf. § l76B.

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275

(§§ 37 and 38). Two laws (§§ 43 and 44) are given to cases of malicious violence. One law (§ 45) disposes of a case of finding something and retaining it, which is theft. Cases of tenancy and the fixing of taxes or rent are treated in H§ 46-56. The penalties for the stealing of animals, including horses, oxen, rams, he-goats, asses, sheep, mules, pigs, dogs, and bees are fixed in H§ 57-92. Burglary and theft of goods are covered in §§ 93-97. In §§ 98-100 three cases of incendiarism are handled. In §§ 101-13 penalties are imposed for the stealing of fruits and vegetables from fields. The fines for stealing birds, or a plow, or a watertrough, or a bronze lance, or cloth garments, or bricks, or stones, or a horse's harness, and for one who thwarts the sale of various objects or trades away an animal not his own are fixed in §§ 114-49. Sexual offenses- are taken care of in eleven laws (§§ 187-200). The prominence of theft in the Code is quite noticeable. There are all told a total of fifty-four laws dealing with cases of theft. This is in striking contrast with the Hebrew Decalogue, which simply says, "You must not steal," fixing no penalty, but letting it stand as the command of God. The multiplicity of laws on this subject reflects a long history of civilization and an accumulation of experience in the field of theft, robbery, and the like. There is more attention bestowed upon that subject in the Hittite Code than in either the Hebrew Code or the Code of Hammurabi or the Assyrian legislation. The first cases are those of runaway slaves, none of which may be held by other than their owner once he finds them. A reward is provided for anyone who finds a lost article or animal and returns it to its owner; but if he retains it, he is a thief. The penalty for stealing a bull, a stallion, or a

276

ORIGIN AND HISTORY OF HEBREW LAW

ram is in each case the restoration by the thief of fifteen oxen, horses, or sheep as the case may be. This was a lightening of the penalty as compared with what it had been previously, when twice as many animals were called for. Furthermore, if a man finds one of these lost animals and lets it go without reporting it to the owner, he must restore seven animals in its place. If a man steals a working ox or a draft horse or a tame goat, he must restore ten similar animals in its place; but for a cow, or a she-ass, or a sheep, six animals of the same kind shall be restored; but in former days it used to be twelve; similarly with pigs and dogs. If a man is caught breaking into a storehouse, he must pay twelve half-shekels of silver; if he is a slave, the penalty is six half-shekels. If a freeman steals something from a house, he restores the theft in good condition and pays twelve half-shekels of silver. If he steals much, the penalty is heavy; if little, the penalty is light. But the slave who steals loses his nose and ears, in addition to six half-shekels of silver (195). There is one case of theft by a slave in striking contrast with the case in § 95; a freeman who robs a granary must refill the granary and pay twelve half-shekels of silver; while the slave doing the same thing must refill the granary but need pay only six half-shekels of silver (§ 97). Likewise in § ioi, the slave who steals vines or fruit pays only half as much fine as the freeman who does the same thing. The same consideration for the slave is shown in §§ 105, 121, 132, 142, 143, and 172. But, on the other hand, in § 170 a freeman pays

a pound of silver as fine, while the slave committing the same offense is put to death; but in § 173 a citizen opposing an authority loses his head, while a slave resisting his master is thrown into the pit, whatever that may mean.

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A similar distinction between freeman and slave appears in H§ 7, 8,

1o, 12,

13, 14, 15, 16, 17, 18, 31, and 32. A

sharp distinction between slave and freeman appears in §§ 98, 99. If a freeman sets fire to a house he must rebuild the house, but is not responsible for the death of, or damage to, any person, animal, or thing inside the house; if a slave sets a house on fire, his master must make compensation, but the nose and ears of the slave are cut off. Two unusual types of legislation appear in H§ 150-61 and in H§ 176B-86. In the first of these groups the scale of wages for certain types of service is fixed just as in the case of Hammurabi's Code, §§ 215-17, 221-24, 234, 239, 242, 243, 257, 258, 261, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277), and in the second group the prices of cer-

tain goods are fixed. In the scale of wages it is noteworthy that the woman worker's wages are much less than a man's; the man gets ten pecks of barley a month; the woman gets only six pecks. On the other hand, the price of an unskilled slave is the same whether man or woman, viz., twenty half-shekels of silver. Such fixed schedules of prices and wages seem to be evidence that the social and economic conditions of the fourteenth century B.C. were totally different from those of today. Neither wages nor prices stay fixed in these days. Nobody in the modern world would dream of fixing either prices or wages by law. The variations of supply and demand are too great and too frequent to make such legislation advisable or practical at the present time. The law of supply and demand sets at naught laws in conflict with it. The morals of the Hittites in that age are vividly reflected not only in the numerous laws against theft which we have considered, but also in the legislation against

278

ORIGIN AND HISTORY OF HEBREW LAW

unchastity (§i 187-200). Sexual intercourse with animals is punished by death. Sexual relations of a man with his mother, or his own daughter, or his son are forbidden on pain of death, unless both parties are willing. But in the case of a stepmother, if her husband is still living, the son who violates her is put to death. Promiscuous intercourse with women in foreign countries may be carried on ad libitum, but not in one place and with acquaintances. In such a case it becomes a capital crime. If a man dies after marriage, his brother may take the widow, or the father of her former husband may take her, and after his death his brother may take her. A freeman may have intercourse with female slaves freely. A father and son may both sleep with the same slave girl or harlot with impunity. But death befalls him who sleeps with his sister-in-law while his brother is alive; so also one who sleeps with his daughter-in-law, or his mother-in-law, or his wife's sister. If a man violates a woman in the mountains, he must be put to death; if in the house, the woman dies; if the husband comes upon them and kills them both, he is exempt from punishment. But he has the right to save his wife and brand the adulterer's head; or the king may kill them or not just as he pleases. Likewise, one who has intercourse with a dog or a pig dies, unless the king interferes and saves his life; but the same offense with a horse or a mule is unpunished except that the man is barred from the priesthood or from approaching the king. So also a man may sleep with foreign women with impunity. There is a small amount of legislation dealing with magic. In § 17o a fine of one pound of silver is imposed upon one who kills a serpent and utters the name of a person while doing it. This doubtless means that he calls

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down upon the person whose name he mentions the fate that he is inflicting upon the serpent. A slave doing the same thing must be put to death. In § 4 4 B some magical practice is condemned, though its precise nature is not clear. Ritualistic practices which are very much like magical arts are dealt with in §§ 164-69. The Code as a whole upon its ethical side falls far below the level of the Hebrew legislation. The prevalence of thievery and robbery, the laxness of sexual relations, the practice of magic, and the slight emphasis upon religion are all in striking contrast with the attitudes of the Hebrews toward the same things. Yet the Hittite laws reflect a much more complex stage of civilization than that revealed by the early Hebrew laws. These Hittite laws are much earlier than any of the Hebrew laws; and they presuppose a long economic history, upon the products of which they are based. To what extent they were influenced by the Assyrian and the Babylonian Codes is an open question.' But neither Babylonian, nor Assyrian, nor Hittite laws attain an equal level with Hebrew law in the moral and spiritual sphere. In the fields of honesty, social justice, sympathy for the poor, and consideration for foreigners the Hebrew law far surpasses all previous and contemporary law. This was the outstanding triumph of the Hebrews. I For a consideration of this question see A. F. Puukko, "Die altassyrischen und hethitischen Gesetze und das Alte Testament," Studia Orientalia,I, 125-66.

INDEX

INDEX Adoption, 208 f., 229 Adultery, 30 f., 51 f.,

79,

121

Codes, conflicts in, 176 ff.; origin of, 95 Codification, 68 Concubine, 200 f., 202 Covenant Code: date of, 15; oldest- laws in, 34£.

f.

199f., 225, 227, 245 Age, reverence for, 81 f. Agriculture, 55

Allegory, 113

Altar, 102 if. Altruism, 78

Debts, 197, 202; interest on, i9o; release of, 46 Decalogue: older, 35 ff.; original form of, 6 f. Decision, left to gods, 27 f. Deuteronomic Code, date of, 39 f., 43 f. Divination, 81 Divorce, 66, 201, 231 Dowry, 203 f., 205 f., 229

Anachronisms, 175

Animals: kindness to, 34, 67; stray, So f. Arab, sense of justice of, 9 f. Ark, 163 Assault, 209 f. Baalim, 53 f., 79 Baldness, 136

Blasphemy, 86, 127 Blood: avenger of, 237; eating of,

Ears, cut off, 224, 227 f., 277 Economic status, 52 f. Enchantment, 254, 268 f. Elopement, 250 Eunuchs, 64, 226 Ezekiel: Book of, 93; chaps. 4048, 95; date of, 93 ff.; temple of, 9 6 ff., 99-1o, Iz6

8o, 132

Boundaries, io6 f., Brick-making, 240 Brigandage, 186 Bull, 257 f. Burglary, 275

126

f.

Cattle-stealing, 26 f. Census, 125 f., 158 f. Cereal-offering, 150 f. Chastity, 3o, 63 f.

Chronicles, 163 Circumcision, x4of. Cities of refuge, 49, 122 f. Clean and unclean, 57 f., 76 f., 83, 127 ff., I30 ff., 136 ff.; houses, 139 f*

64 f.,

133,

Code, Holiness, 68, 70 if.; composite character of, 76 f., 8o, 84; contents of, 72 f.; date of, 72

Fallow land, 45 False witness, 32 Festival: of booths, 47 f., 85 f., 159 f.; of weeks, 47 £., 85 Fines, 214 £. Finger, cut off, 224, 239 First-born, 33 f. First-fruits, 34, 85, 16o Firstlings, 46 Flogging, 67 Foreclosure, 192 Foreigners, 53, 64, 82, 87, X04, 122 283

284

ORIGIN AND HISTORY OF HEBREW LAW

Gods, 244 Guilt-offering, 149 f. Hammurabi, 8, IT ff., 16, 19 f., 37 f.; Code of, 17 f., 20 f., 22 f., 25 f., 28 ff., 34 f., 37; eulogy of, 181 ff. Harlotry, 80, 235 Head, shaving of, 8o Health, public, 66 Hire, 217 f., 235 f. Holiness, go ff. Homicide, 247 Idealism, io8 Idolatry, 34, 48, 56 f., 58 f. Inaccuracies, 178 Incendiarism, 262 f. Incense-offering, i5o Incest, 203 Inconsistencies, 179 Injuries, personal, 21f., 2 4 8ff., 254, 274

Interest, 193 f.; on loans, 52, 82 Intermarriage, 122 f. Irrigation, 191, 240 Jeremiah, 120 f. Jubilee, 88 f., 161 f. Justice, 48, 53, 78, 81, 82, 109, 123 f. King, 59 Kissing, 224 Land: division of, 126; tenure of, 255 f. Landmarks, 49 Leaven, 151, 162 Leprosy, 133 ff.; in garments, 13 8 f. Levites, io6, I14 f.; duties of, 104, 167 lex talionis, 50, 87 Lip, cut off, 224 Loans, 45

Magicians, 245 Man-stealing, 185 Marriage, 230, 235, 252; of captives, 62 ff., 122; Levirate, 67, 76, 245; prohibitions of, 75 Mediums, 81 Minors, 187, 206 ff., 233, 241 f.

Miracles, 56 f. Miscarriage, 24, 250, 259

211,

226, 235, 244,

f.

Mixtures, 78 f.

Molech,

82

Moon-worship, 148 f. Moses, 4, 8, 12, 14, 173 Murder, 48 f., 86, 183, 237, 247

Myth, 5 Nazirites, 168 f. Nomads, 162 f. Nose, cut off, 224, 226, 249, 277 Nun, '99

Oaths, 28 f., 30, 49, 127, 195, 228, 234 Operations, 211 f. Orchards, igi f. Oxen: injuries by, 25; injuries to, 26

Pagan customs, 63 Parapet, 62 Parents, reverence for, 82 Passover, 47, 72, 109, 159, 162 Pentecost, 159

Philanthropy, 78 Piety and prosperity, 69 Pilgrimages, 46 f.

Pledge,

231

Polygamy, 62, 64 Poverty, 53, 77, 89, 138 Prices, 270 f., 277 Priestess, 188, 196 Priestly Code, x 16 f.

INDEX Priests, bar on, 83 f.; dues of, 151, 156 f.; duties of, 166; high, 83, 164 f.; restrictions on, 165 f.; revenues of, 167 f. Primogeniture, 62 Prince, io4, lo9 ff., 112, 115 Profit and loss, 195 Property: loss of, 27, 185; -rights, 123

Prophets, 6o f. Prostitution, religious, 65

285 252 f., 257, 269, 274; runaway,

65, 271 f., 275 f. Son, disobedient, 5o Soothsaying, 81 Sorcery, 31, 6o, 183, 234, 245 Spiritism, 81 Stallion, 258 Storage, 298 Suffering, problem of, 69 Tattooing, 8o Testicle, injured, 224, 245

Ransom, 187 Rape, 225 f., 278 Receipts, 195

Testimony, 49

Theft, 184 f., 186, 224, 239, 241, 242, 245, 254 f., 256, 258 f., 260 ff., 263 f., 265 f., 275; from

Rent, 189, 275 Responsibility, individual, 66 f.

a temple, 223

Tithes, 58, 6o, 157, Tradition, 5

Reverence, 33 Ringworm; 135 f.

168,

177 f.

Trumpets, 126, 159

Sabbath, 34, 8 9 f., 16i Sabbatical year, 87 f., 161 Sacrifice, 33, 84, 109, 141-48; of blood, 74 f.; centralization of, 73; to be eaten by third day, 77; meaning of, 154 ff.; to satyrs, 74 Scapegoat, 153 f. Security for loansa-52 Sennacherib's invasion, 54 f. Sexual irregularities, 31, 76, 275, 278 Sin-offering, 1o4, 113 f., I5o if., 153 Slander, 226, 237, 245 Slaves, 18 ff., 23, 24 f., 185 f., 197, 206, 213, 218, 245, 247 f., 249 f.,

Unchastity, 271 ff., 278

Unleavened bread, 159 Veiling, of women, 231 f. Virgins, 236

Vows, 66, 157 f. Vulgarity, 223 Wages, 212 ff., 215 f., 266 f., 274, 277

War, 61; exemption from, 66; rules for, 124 f. Widows, 233 f., 278 Worship: of ancestors, 76; cen-

IPRINTEDI IN U*

tralized, 53 f., 55 f.; place of, 162 f.