LECTURE II

In my first lecture I tried to set out in brief some of the most

striking features of the Babylonian Code of Laws due to the famous king

Hammurabi, especially such as were likely to be useful for our

comparison with the laws of Israel. We must, however, have a precise

idea of the laws of Israel before we can institute a comparison.

Now this is by no means so easy to obtain as one might expect. It is

indeed true that the laws of the Hebrew peoples, as set out in the

so-called Books of Moses, have been the subject of uninterrupted and

intense study by the Jews themselves for many centuries, and that not

only for their antiquarian interest but as of supreme importance for

religion and morals in the life of to-day. Most of us have heard of the

Rabbinic writings, of the Mishna and Gemara, of the Talmud, and may even

know the names of some of the famous Rabbis, lawyers, and doctors who

have commented upon them. But, I fear, few of us have any clear idea of

the stupendous work which they represent. Perhaps the new Jewish

Encyclopaedia may give us a better idea. Christian scholars, such as the

famous Dr. John Lightfoot, made much use of the treasures of the Jewish

writers, but modern scholars appear to have paid small attention to this

type of learning.

Nevertheless we are sometimes assured that the discussions of the Jewish

Rabbis embody all the most assured results of modern criticism.

Certainly they do contain an amount of material for the elucidation of

the Mosaic laws which is almost bewildering in extent. When the

traditional information and explanation which they furnish are freely

taken into account we shall doubtless be in a far better position to

understand much that is now very obscure. Certain it is that some

scholars who have made a special study of this large traditional body of

interpretation, such as D. H. MÜLLER, NATHAN, and PICK, have been

willing to admit most striking likenesses between the Rabbinic rules and

old Babylonian law. In fact, it seems to be the case that the later

Jewish interpretation of the Mosaic law so closely follows Babylonian

law that it may be regarded as no less a commentary on that legislation.

Our task would soon be at an end if we could be sure that this

traditional view was not strongly influenced by the Jewish exile, but

really represented what the old Jewish law was intended to be. For it

is practically indistinguishable from the Code of Hammurabi except for

the peculiar usages based upon a separate religion and a progressive

interpretation in favour of the criminal due to benevolence and humane

sentiment.

Very little more need be said than that the Jews, with their wonderful

adaptability to the customs of the land of their adoption which has

always rendered them the best of citizens, readily assimilated all that

was good in Babylonia while preserving also the best things in their own

ancient law and jealously guarding whatever was sacred by its religious

value. Such a course was not only sane and sensible; it affords a proof

of the great hold which Hammurabi’s Code still had in Babylonia at the

time of the Exile and much later; it sets the seal of approval on its

regulations as the judgement of some of the most penetrating intellects

the world has seen, and furnishes a brilliant example of a learned but

not pedantic attitude which we may do well to imitate.

We shall have reason to refer presently to some of the later Jewish

traditions and to appreciate their value.

It is the case that among Christians also the laws of Moses have been

studied with deep interest and increasingly careful scholarship.

Possibly too little attention has been paid by the modern Christian

scholar to ancient tradition. At any rate, the chief part of the

difficulties which we are likely to find in comparing the two

legislations arise from the results of the studies pursued by orthodox

modern Christian, or at any rate non-Jewish, scholars which have been

carried out for the most part without reference to Jewish

susceptibilities or Rabbinic interpretations.

Modern scholarship has succeeded in fixing and separating out of the

Books of Moses a number of different sources or documents. In the case

of the laws these may be regarded as different codes promulgated at very

different dates, or in some cases mere pious wishes for future

observance, ultimately worked up into a loosely combined book written in

the interest of a party of religious zealots whose prominence later led

to the system of thought known to us as Judaism.

We must accept these results, so far as we can get a distinct notion of

them, and refer to the separate codes rather than to a single body of

laws known as those of Moses. No one can venture to dispute these

decisions on pain of being reckoned reactionary and obscurantist. These

scholars hold the seat of authority, and it would be rash presumption to

question their ruling. Nor have I any wish to do this. Yet it may be

hoped that they will pardon a sigh of regret on our part that we are now

unable to compare the Mosaic law as a whole with the Code of Hammurabi.

It would be so much easier for the lecturer, and the indebtedness of

Moses to Hammurabi so much more convincing to you. Sadly as many have

lamented the tearing of the great law-book of Moses into pieces as

rendering it a mere thing of shreds and patches, they may take comfort

that its present condition renders it much harder to recognize the

characteristic texture of the Babylonish garment.

For now, when one fancies he can discern a surprising likeness between

some clause in the Code of Hammurabi and some verse in the Bible, he is

wise to keep his surprise to himself until he has procured and studied

the latest critical subdivision of the laws of Israel and satisfied

himself to which source or sources his verse belongs. Then one has to

ransack other authorities to know whether this ruling is one which is

widely accepted, and even more important, whether it had been

independently reached or was constructed with an eye to the very

likeness to Babylonian law which it dreaded to acknowledge.

Consequently we have to be very careful to-day. We cannot use our

comparisons, even if they should suggest identity, to restore to more

ancient dates the Mosaic items which seem to be most closely in accord

with Hammurabi’s laws. For here tradition itself imports many

difficulties. If we set Moses the lawgiver at his old place in history,

just before the entrance of the Israelites into Canaan, and accept the

traditional synchronism of Abraham and Amraphel, then if we accept the

modern identification of Amraphel with Hammurabi we are landed in this

difficulty: the Hammurabi Code is thus as much older than the Mosaic law

as Abraham is before Moses. On the authority of Moses himself that means

430 years. Now the Babylonians reckoned 650 years from the death of

Hammurabi to the death of Kadashman-Ellil, who was corresponding with

Amenophis King of Egypt while that king was still sovereign of

Palestine, and therefore before Moses. This is the lowest figure yet

suggested based on documentary sources, and gives at least 700 years

between the two codes. How can we reconcile the disparity in dates?

The Higher Critics do not mend matters. They would bring down the date

of the early Mosaic laws much later, necessitating a period of more than

a thousand years between the two codes. It would take hours to argue out

the merits of various systems of chronology, and the truth probably is

that we have not yet recovered reliable data to fix either Babylonian or

Biblical chronology with sufficient accuracy. Babylonian chronology is,

however, in much the better state, and late rulings make the death of

Hammurabi fall somewhere near 1916 B.C. But how we are to reconcile

such a date for Abraham with the Biblical data is a knotty question to

which I can contribute no help to solution.

We have here made some assumptions which may be all wrong. I am often

asked with much concern whether Hammurabi really is Amraphel. Now that

is a question which cannot possibly be answered until much else has been

answered first. Hammurabi we know; his life and reign are as well or

better known than those of the Saxon kings of England. But who was

Amraphel? All we know of him is contained in the fourteenth chapter of

Genesis. He is there said to be King of Shinar. If Shinar in that

passage means what it clearly means elsewhere, he was a king of

Babylonia, or at least of some part of that land for which Shinar is

used as a synonym. But even if Shinar does not certainly mean Singara,

part of Assyria, it could quite well be a part of the Mesopotamian area

with which the early Israelites became acquainted, and so transferred

its name to all Babylonia. But Hammurabi is never said to be King of

Shinar, nor of any land but Amurru, Akkad, Elam, &c., or Sumer. The

latter name means South Babylonia, where Rîm-Sin of Larsa maintained his

supremacy in spite of Hammurabi until his thirty-first year. Till then

no one could call Hammurabi King of Sumer, and then it is certain he

could be no ally with Rîm-Sin. Hammurabi was, however, always King of

Babylon. He could hardly have been called King of Shinar by any one who

knew anything about his history.

How comes Hammurabi’s name to be rendered by Amraphel? We know that his

name was variously rendered in cuneiform, being a foreign name to the

Babylonian scribes. But they never spell his name as ending in _l_. It

has been suggested that one character which denotes _bi_ and can also be

read _bil_ may have misled some Hebrew writer who transcribed the

cuneiform account which he found among the archives of some ancient city

in Palestine. There is nothing whatever improbable in such ancient

cuneiform records being kept. The discovery of the Tell-el-Amarna

tablets proves that the kings of Palestine before the Israelite invasion

wrote to their neighbours far and near in cuneiform and in the

Babylonian language, and also that they spoke a language closely related

to Hebrew. But there is no evidence that they misread cuneiform. Let us

go on with the assumptions supposed to have restored the credibility of

the fourteenth chapter of Genesis. The first point has been that,

assuming a cuneiform record to be translated by a Hebrew writer (?

Moses) who knew some cuneiform Babylonian, that writer blundered into

misreading the name of one of the most celebrated kings of Babylon, with

whose history he must have been little acquainted and whose name he

found written in a way to which there is no known parallel. Further, he

called him King of Shinar. No tenable suggestion has yet been made as to

what cuneiform signs he rendered by Shinar. There also he must have

found something to which there is no parallel in the native titles of

Hammurabi. There is not a single reason in anything said of Amraphel to

suggest anything properly said of Hammurabi, except that the names have

two out of four letters in common.

But we are told that this identification is supported by the

identification of Rîm-Sin of Larsa with Arioch of Ellasar. Rîm-Sin and

Arioch have only one letter in common, though Larsa and Ellasar have

three. It is a perfect triumph of ingenuity to identify Rîm-Sin and

Arioch, and it has been done on various suppositions. But it is also

clear that on no supposition was a Hebrew right in reading Rîm-Sin as

Arioch, nor has the former name been yet found written in the form which

he has been supposed to have so misread. The confirmation of one blunder

turns out to be the assumption of another as bad or worse. But the

others, Chedorlaomer King of Elam and Tidal king of ‘Nations’, are also

accounted for by a series of misreadings either in cuneiform or out of

it into Hebrew or in Hebrew. Grant, then, all that is claimed for this

astounding blunder-exegesis. Amraphel was meant for Hammurabi by a man

who persistently misread cuneiform. The cuneiform account being reliable

history, we can reconstruct what it said about Hammurabi and Rîm-Sin

with two somewhat vague allies in Palestine. But what credence are we to

give to this Hebrew writer’s reading of cuneiform in the case of the

name of Abraham? At what period of Hammurabi’s reign was an alliance

with his life-long enemy Rîm-Sin likely or even possible? When did

either make an expedition to the West under the suzerainty of Elam?

But we might consume hours discussing each thread of the web of fancies

which some modern scholars have woven over and about the fourteenth

chapter of Genesis. There is no mention in Babylonian or Assyrian

documents of any one of the persons there named, nor any event recorded

similar to those there placed. This fact neither confirms nor

contradicts the Hebrew narrative. The doubts thrown on the historicity

of the chapter by higher critics were based on arguments which, sound or

not, are in no way touched by any cuneiform texts.

So our question must be put differently. It should be: Was the writer of

the fourteenth chapter of Genesis of opinion that Abraham was a

contemporary of Hammurabi? I am not sure that he ever heard of

Hammurabi or knew who he was. The whole story, if reliable, may apply to

some other kings than those usually supposed, and this would suit what

little we know of chronology much better. It is precisely the

identification of Amraphel with Hammurabi which professedly

rehabilitates the fourteenth chapter of Genesis, but at the expense of

other Biblical statements equally important. It is always well to

distinguish the statements of archaeologists and Assyriologists on

unrelated subjects from the results of science. No matter how

distinguished an Assyriologist may be, his opinion on other matters than

Assyriology cannot be laid to the charge of that branch of knowledge.

The statements made in the fourteenth chapter of Genesis may yet be

shown to be affected by Assyriological research, but most of the recent

speculations about them deserve neither the name of Archaeology or

Assyriology.

The effect of modern criticism is to make us cautious in another

direction. I have hitherto spoken of the Laws of Moses, and I shall

continue to do so throughout my lectures. But I trust you will not

misunderstand my position. To speak of the Laws of Moses is simply to

use the title which was given to them before the rise of modern

criticism and by which they are still most widely known. It does not

necessarily assume that any one ever existed at all like the Moses

described in the Old Testament. Some regard Moses as the name of a

mythical hero—a national ideal into whose personification were run all

the mythological material which the Hebrew writers deemed appropriate.

This need not be the same thing as to deny absolutely the personality of

Moses; for another great conqueror of men, Alexander the Great, most

assuredly lived, and one clear proof of it, if we had no other, is that

his deeds so impressed men that the Arabic historians ascribe to him

just as many mythical stories as they know. You have only to read A.

JEREMIAS’S _Old Testament in the Light of the Ancient East_ to see how

almost every incident in the life of Moses may be paralleled by some

astral _motif_ in the mythical story of other ancient heroes or

demigods.

But the effect of modern criticism, astral theory, comparative

mythology, &c., on the history of Moses leave him much like a lump of

sugar in a cup of tea. We know it was there because the tea is sweet,

but details as to size or shape are now very unreliable. Nor does

Assyriology help us much, for it never mentions or refers to Moses any

more than it does to Abraham, or to Israel even until the days of

Shalmaneser, 859-825 B.C.

In speaking of the Laws of Moses then, the use of the word Moses is not

meant to imply any opinion or to prejudice any question as to the

personality or history of the lawgiver or the date of the law. It is

used solely as a convenient periphrasis for the current Hebrew lawgiver,

just as Hammurabi may be taken as a periphrasis for the Babylonian

legislator. That the Babylonian king originated all or even any of the

laws enacted in his Code is not asserted. But the historical case of

Hammurabi does remove all _a priori_ improbability that a Hebrew

legislator could draw up a code of laws at a much later date. Further,

it should make us beware of arguing anything from the absence of mention

in such documents as have come down to us, for, until the excavation of

his monuments, no one among modern scholars had guessed his name or

surmised his existence.

This analogy, while it forbids us to deny the existence of Moses, does

not show that any or all of the laws ascribed to Moses were in any sense

due to him. But that a leader in the position to which tradition

assigned Moses could perfectly well promulgate a code of laws as full

and complete as the whole Mosaic law, even for a people in the primitive

state of society in which Israel is often supposed to have been at the

Exodus, is obvious. He had only to avail himself of the knowledge of

cuneiform, available at that time both in Canaan and in Egypt, and

import copies of the Hammurabi Code from Babylonia if they were not at

hand where he then was. He could exercise his judgement as to what would

be suitable for his people, add what he chose, and reject what he

disliked. That he did this or anything like it is not asserted, but it

would be so natural for any one in his position then that we have no

excuse for surprise if we should find indications of his having done

exactly that.

Still, nothing depends in our comparison of the Laws of Moses with the

Code of Hammurabi on our knowledge of the personality or circumstances

of Moses. Much would depend on how much of the Laws of Moses we should

consider to be his. In a similar way, the use of such terms as the Book

of the Covenant, Leviticus, or Deuteronomy, The Priestly Code, and the

like, neither implies nor denies the appropriateness of the terms nor

any adhesion to any theory of their source or date. They must be

regarded as merely names for more or less definite pieces of

legislation. That the balance of argument is in favour of assigning to

them the extent usually assigned to them by Old Testament critics may be

granted for purposes of comparison. It is an opinion which may not be

shared by all. But it is not by any means essential to our comparison

that any one of the views now held about any of them should be final.

Thus it is enough to grant that the Book of the Covenant is the sole

relic of the earliest Hebrew legislation and that the rest may be

regarded as later development. In that case, however, it is incumbent on

those who hold the theory of this development as an evolution on native

soil to show intelligibly what influenced the particular form which that

development took. Our comparison may suggest that if this supposed later

law be really not of the Exodus period also, and not a product of the

same mind which modified Babylonian law into the Book of the Covenant,

yet its likeness to Babylonian law excludes the idea of a free

uninfluenced development. We may hold further that early or late

Babylonian influence is still there. And we must account for its

persistent influence. On the supposition of its being later than the

Book of the Covenant we may be inclined to hold that it was adopted, not

directly from Babylonia, but from the relics of pre-Israelite Babylonian

influence on Canaanite law.

It may be asked at once—what do we know of Canaanite law? Confessedly

very little; but so far little attempt has been made to inquire into the

subject. Scholars have been too ready to endorse the judgement of the

old Jewish writers who denounced all Canaanite usages. As yet no

documents of Canaanite production have been found, unless we include

those of near neighbours like the Phoenicians, Moabites, and Northern

Syrians. We may deduce something from the Old Testament, but that is a

hostile source. A certain amount of information may be collected from

the Tell-el-Amarna tablets, which supply evidence for times before the

Israelites entered Canaan. Much of the law or custom witnessed to by

later times may really be very old. Some scholars of late have argued

with great force that the First Dynasty of Babylon were not only

Amorites but came into Babylonia from Canaan. There were Amorites left

in Canaan when the Israelites settled there. If these were of the same

stock, much that in the Code of Hammurabi marks change from the old

settled Babylonian Semitic law may be due to a Canaanite source. The

subject of the Amorite characteristics, apart from their peculiar proper

names, has as yet received next to no attention. The researches of

Macalister on Palestinian soil will be awaited with great interest, as

he appears to have recognized such distinct characters about his Amorite

finds as to enable him to identify them as such without hesitation. He

will, it is to be hoped, soon tell us something of their civilization.

Gradually, no doubt, we shall be able to tell what was the exact

character of each of the peoples in Canaan; and in the end the Code of

Hammurabi may prove to be the best witness we have to the Canaanite law.

The Laws of Moses were once, and in some quarters still are, supposed to

be all contemporary with that great national hero and lawgiver, and to

form a complete body of law imparted to men by Divine inspiration. The

Jewish commentators, however, of old treated this view with considerable

freedom. Modern scholars, who have devoted two centuries to a critical

study of the Pentateuch, have lately gravitated towards a fairly

definite theory implying the existence of several codes, so to speak,

and those of very different dates, all much later than the time of

Moses. As experience shows there is very little permanence about the

critical views, we had best confine ourselves to the latest

presentation. We need not trouble to inquire into the merits of the

earlier critical theories, and may leave their refutation to the last

writer on the subject. We may take two good examples for our purpose.

Mr. S. A. COOK in his excellent work _The Laws of Moses and the Code of

Hammurabi_ assumed the critical view of the Pentateuch as then

presented, and made the most successful defence of the originality of

the Mosaic Law yet attempted. It will be noted that one of the so-called

‘destructive’ critics made a most vigorous defence of the uninfluenced

character of the Mosaic fragments adjudged by that school to be early.

Naturally so; for such critics it is vital to maintain the exclusion of

external influence. There is no criterion of date for them if the

orderly continuous evolution along well-known lines can be supposed to

be overwhelmed by a catastrophic influence from without. The history of

the development being unknown or rejected in favour of a theoretical

reconstruction upon lines evolved out of the supposed results of

comparative law, religion, or the like, it was delightful and easy to

build up a purely imaginary self-consistent view of the order in which

ideas developed or evolved. The consistence of the view impressed its

authors as proof of reality. There was no history to test the

reconstruction by except such as could be brushed aside as unreliable

because inconsistent with the view. But some late things, dated as late

upon this theory, turned out to be a thousand years older than the early

ones, and so the almost forgotten maxim ‘what is primitive need not be

old’ had to be revived. For the evidence of the Hammurabi Code had to be

rebutted anyhow.

It is most remarkable that the champions of the traditional view never

seized upon the Code as a weapon to beat the critics with, while the

Rationalists made a good show of learning and even indulged in argument

on the matter. But after the dust of controversy cleared off it was

perceived that the Code was a new fact to be reckoned with, neither

attacked nor minimized nor exploited, but studied and respected. As it

had surprised and even disconcerted the lawyers, so it had gradually

compelled divines to reconsider.

A work which freely accepts the critical division of the Hebrew laws is

PROFESSOR C. F. KENT’S book—_Israel’s Laws and Legal Precedents_ in the

_Old Testament Student Series_. If any modification of critical views

may have been thought necessary as a result of the new material provided

by the Code of Hammurabi, it is here tacitly but fully allowed for.

Further study may be expended on the comparison and somewhat modified

views may have to be taken, but the nature of the questions involved is

clearly and concisely shown in this work.

Were it possible to institute the comparison between the Code of

Hammurabi and the whole Hebrew legislation treated as one indivisible

body of laws, it would be much less difficult than when a set of

regulations are picked out as early and treated as the only rules which

deserve to be regarded as in the remotest sense Mosaic, while all else

is treated as later and scarcely to be regarded as law at all, but

merely pious wishes or aspirations. By such a careful selection there is

not only very little to compare, but the very things ruled out as late

or unhistorical aspiration on account of their relatively high tone are

just those most like the Babylonian. On such principles with criteria so

carefully selected to rule out all disagreeing evidence a verdict is

easy to attain. It is the fact that these criteria were invented before

the Code of Hammurabi was dreamt of, but it does afford a very strong

test of them and should lead to some revision. The critical theory is

now so firmly rooted in the minds of all scholars who are not allowed in

youth to imagine any alternative that we too must accept it or be lost

in a perfect morass of unintelligibility. Only we ought to remember that

in so doing we make the comparison as difficult and complicated as

possible.

Accepting the present division of the Hebrew laws it is possible to

divide the periods of Babylonian influence on Israel correspondingly.

The conclusion to be drawn is that Babylonian influence was strong in

the case of the earliest Israelite law perhaps through common Semitic

custom, recalling that Abraham traditionally came from Ur of the

Chaldees through Haran, a Babylonian Province, to settle there under

strong Babylonian influence where Babylonian language and writing were

still used down to the time of the Exodus. The impression of Babylonian

is said to be less prominent in later codes until after the Assyrians,

whose civilization was specifically of Babylonian origin and type, had

held Palestine vassal for two centuries. The Exile was to Babylon

itself, and Babylonian influence is naturally strongest after the Return

from the Exile, and even more powerful on the Jewish doctors of later

days, many of whom continued to live in Babylonia.

Seeing, however, that there is not yet full and final acceptance of

critical views as to the exact classification of the Hebrew laws into

separate codes, and that my audience is probably not completely familiar

with either the separate codes in themselves or their dates, anything

like a complete comparison of the Laws of Moses with the Code of

Hammurabi is impossible without first at least sketching the character

of each separate code. For comparative purposes we may begin with the

earliest and see how it compares with Babylonian law, for the rest what

has already been compared need not be repeated, but as it is necessary

to limit our time I must leave all critical reasons for assigning a

passage to a particular stratum to be consulted in PROFESSOR KENT’S

volume and the extended literature which he names.

The usually accepted critical views of the sources of the Pentateuch

regard the Book of the Covenant as the oldest code of Hebrew law now

preserved to us. What law the people obeyed before we are not told, but

it is obvious that they were not without law. Some scholars, attaching

great weight to the traditions of the patriarchs and the implications of

their story as to the growth of the people of Israel, assume that before

the adoption of the Book of the Covenant they were nomad pastoral folk,

and obeyed much the same customs as the Bedawin Arabs of the present

day. For such a standpoint the late PROFESSOR W. ROBERTSON SMITH’S works

on Semitic civilization, religion, and law are simply indispensable.

Here, if anywhere, we can find a clear idea of common Semitic custom, so

often appealed to to account for the similarities between Jewish law and

the Hammurabi Code. But other scholars look on these narratives of the

patriarchal life with deep suspicion as being a late attempt to sketch,

in the light of a writer’s knowledge of what the nomads of his day were

like, an instructive and edifying ancestral background for a set of very

dissimilar tribes or clans, whom some political necessity led to

amalgamate into the Hebrew people. A great deal in our research

naturally depends upon our attitude to the questions, ‘Was Israel ever

in Egypt?’ or ‘Was only one party of them ever there?’ Or again, ‘Was

the Book of the Covenant promulgated at the unification of the component

clans, or did it grow up long after?’ All such and many similar

questions we must lay aside, as we start with the Book of the Covenant

as accepted Israelite law.

We cannot suppose the Book of the Covenant preserved in its original

state. Even if we suppose it was promulgated solely to decide those

cases on which conflicting usage was causing disturbance, say between

nomad Israelites settling down and the long settled Canaanite town

dwellers; no one can be prepared to claim that it is complete. There

must have been more of it. What we have now preserved may have been cut

down to present limits for various reasons. It may be that later

legislation superseded some of its regulations which later writers would

thus think not worth recording. If the Code had been embodied in a

document, that source may have become fragmentary in some way by the

time the compiler of Exodus rescued it from oblivion. A careful perusal

of the laws of Moses as arranged in their strata, by PROFESSOR KENT for

example, will show that Hebrew writers had no hesitation in repeating

earlier legislation. Hence we cannot argue that no more was preserved

solely because it was embodied in later legislation.

Nor can we feel sure that no additions have been made to it. Some

clauses seem to be very incongruous in their present context. This

phenomenon, however, is not entirely absent from the Code of Hammurabi,

which certainly has not been interpolated. But we must start on the Book

of the Covenant, as critics have rescued it from its surroundings and

set it down for us.

At once an external feature strikes us. In the Book of the Covenant many

have discerned a systematic arrangement of the laws in pentads or

decads. The Ten Commandments at once occur to one’s mind as a parallel.

What is the significance of this partiality for five and ten? We are

expressly told that the Ten Commandments were on two tables. We should

not be surprised had there been seven. Some will think the human

equipment of five fingers led to the adoption of five as a convenient

method of remembrance. In some such way five or ten may have conveyed

the idea of numerical completeness. Unfortunately the division of the

laws made by PROFESSOR V. SCHEIL in his _editio princeps_ of the Code is

both arbitrary and inaccurate. No one has yet ventured to revise the

numbering of the sections into which he divided the text of the Code;

though several scholars have pointed out the inconsistencies. The

lecturer, however, was struck by the fact that a more natural division

at once shows an arrangement in _pentads_; and lately PROFESSOR D. G.

LYON has worked out this idea, as can be most conveniently followed in

the rendering of the Code given by PROFESSOR R. W. ROGERS in his

_Cuneiform Parallels to the Old Testament_. Such an attempt will be

resented by some as a purely subjective attempt to work up a likeness to

the Mosaic laws and disputed accordingly. But the lecturer was led to it

in the beginning solely by the fact that SCHEIL’s division did not agree

with that made by the Babylonian scribes in the fragments of their

copies which have survived. These divisions had no justification on the

stela found at Susa, which divides only lines and even occasionally cuts

a word in two. It shows no indication where a particular law begins or

ends. Hence the Babylonian scribes, as all modern scholars, have had to

divide as their common sense dictated. But the text on the stela was

certainly copied from a clay tablet which may well have shown

division-lines between the laws. At any rate, the divisions adopted by

the Babylonian scribes, even if not original, have great weight as

embodying an independent tradition among scholars who surely knew the

meaning and connexion of the successive regulations in a very

authoritative way. That their ruling does not agree with PROFESSOR

SCHEIL’s where we can compare them shows that his division is not

essential and may be neglected. Unfortunately our fragments of later

copies do not help us often, and are too few to give us a canon upon

which we can rely when we need it most, and we can rarely be sure that

the division we propose was that of the original. Nevertheless there is

great verisimilitude about PROFESSOR LYON’s proposals, and it is a very

striking likeness between the Book of the Covenant and the Code of

Hammurabi that both adopted a division of laws into groups of five. We

cannot press the argument too far, but the Roman Law at any rate shows

that this arrangement is not a logical necessity nor a psychological

demand of early legislation.

The critical account usually given of the Book of the Covenant is that

it embodies the consuetudinary law of the early monarchy. It is regarded

as embracing the formulated decisions which had gradually accumulated

among the people up to that age. It is admitted that it, or at any rate

parts of it, may well be older than the narrative (E.) in which it was

incorporated. Its place in the scale of civilization is estimated by the

fact that it imposes many restrictions on the arbitrary action of the

individual, while it retains the _lex talionis_. Further, prominence is

sometimes given to the fact that God is regarded as the immediate source

of punishment. It is styled theocratic law, but breaks away from the

purest type of such laws. The Code of Hammurabi goes further in the

direction of purely civil enactment.

The picture which W. ROBERTSON SMITH draws of the state of society

contemplated by the Book of the Covenant is founded on the assumption

that there was no more of it. The basis of life is agriculture, cattle

and agricultural produce constitute the chief part of wealth, and the

laws of property deal almost exclusively with them. Only we cannot say

that this was all. True, there is no longer preserved any regulation of

the relations between principal and agent, if such ever existed. There

is no widely extended tariff of wages for artificers and workpeople.

Too much cannot be made of the fact that the Code of Hammurabi proves

the existence of such specialized classes in Babylonia. For it does so

without ever mentioning them in just those laws which can best be

compared with the Book of the Covenant. If we were acquainted only with

that part of the Code of Hammurabi which does correspond to the Book of

the Covenant we might similarly construct from it a picture of the state

of society in Babylonia just as simple as the Book of the Covenant

warrants us in recognizing in Israel. Nevertheless it was not so.

The fact is that the Book of the Covenant does not present a complete

picture of the state of society in Israel in the early days of the

monarchy. That may not have been so advanced as in the days of

Hammurabi. But the kings of Israel at any rate had need of skilled

workmen. We read, indeed, that Solomon had to send to Hiram of Tyre for

certain workmen, but this is not enough to prove the entire absence from

his dominions of other classes of artisans. The absence of blacksmiths

in Saul’s time is ascribed to an exceptional cause. In fact, the only

way in which the entire absence in Israel of all but agriculturalists

and shepherds could possibly be accounted for is by supposing that the

Israelites had killed out all the Canaanites. We know they did not. We

may point out other ways in which it would be dangerous to deduce from

the absence of mention in the Book of the Covenant the non-existence of

any particular institution whatever.

It is of more importance to notice that the principles of criminal and

civil justice are those still current among the Arabs of the desert,

namely, retaliation and money compensation. It is precisely the same

with the Code of Hammurabi. If these features in the Book of the

Covenant compel us to consider the Israelites for whom it was compiled

as nomads in much the same state of civilization as the Bedawin, the

same features compel us in the case of the Code to ascribe similar

civilization to the Babylonians of Hammurabi’s period. The fact probably

is that in both cases the dominant folk, Amorites or Hebrews, really

were conservative of customs once in place in the desert if not too

unsuitable for a settled life to retain.

It is a truer way to present the facts to say that both the Book of the

Covenant and the Code of Hammurabi do not so much enact the _lex

talionis_ as interfere to limit its action in certain directions. For

example, it is scarcely correct to say in either case that murder was

dealt with by the law of revenge or left to the avenger of blood to

punish. In the Code murder in general is not mentioned; we cannot

suppose it condoned. But as in the Book of the Covenant it is

distinguished from manslaughter, and this is expressly exempted from the

death penalty. The innocent man-slayer might take refuge at the altar,

as was still the case with those who feared for their lives down to the

time of Solomon. It is clear that a murderer might do the same, for he

was to be taken thence. Some sort of trial must have taken place before

he was delivered up to the avenger of blood. We are nowhere told what

was the procedure in Babylonia, but we may assume it was the same, for

the innocent man-slayer was liberated on oath of want of malice. The

oath was taken at the altar or before the emblem of the god. It is

singular enough that no penalty for murder is stated, but there is

nothing whatever to indicate that it met with different treatment in

Israel and Babylonia.

In both legislations man-stealing is reckoned with murder and punished

by death. So is witchcraft, according to the evident implications of the

Code and the express declaration of the Book of the Covenant. That

offences against parental authority were treated differently is to some

extent true. They are summarily dealt with in the Book of the Covenant

with a death penalty. The Code spares the son for a first offence in

such crimes as would naturally disinherit him, and enacts mutilation for

violence to a parent. One may question whether death or loss of the

hands was the worse penalty in Babylonia, and may remember that some

critics hesitate to ascribe the law enacting the death penalty to the

Book of the Covenant. The fierce resentment of the sons of the desert

against any form of mutilation would account for the substitution of the

death penalty. Other cases of injury in the Book of the Covenant are

treated as proper occasions for self-help or for private suits to be

adjusted at the sanctuary. That is exactly the view taken by Hammurabi,

only explicit provision is made for suits which cannot be so adjusted by

judges. Contemporary legal practice bears witness to frequent

settlements ‘out of court’.

The case of the goring ox is treated by both legislations. Both make no

amends to the victim of the attack made by an animal suddenly become

savage. Here the Hebrew Code orders the death of the ox, a piece of

useless barbaric revenge that has only recently died out amongst us. The

poor beast got no trial and could not plead, but was held responsible.

This may be very human, but it is to the credit of Hammurabi that he is

at least silent on the point. On the other hand, if the ox was known by

his owner to be vicious and death resulted, the Code inflicted stated

fines on the owner according to the estimated value of the life

destroyed. The Book of the Covenant does the same, fixing a ransom for

the death of a slave to be paid to the owner, but death of the ox’s

owner if the man killed be a freeman. And again, the ox is killed. The

difference between the two fines for the death of a slave is noteworthy

as probably marking average value in each case. This illustrates the

reason why other fixed money payments do not correspond. Money values

differed. Otherwise the treatments could scarcely be more closely alike.

In the case of specific and particular bodily injuries both laws exact a

retaliation. The Book of the Covenant is here the more explicit: ‘life

for life, eye for eye, tooth for tooth, burning for burning, wound for

wound, stripe for stripe’ is more detailed at any rate than the Code,

which only enumerated ‘eye for eye, limb for limb, tooth for tooth’. The

difference, such as it is, can hardly be pressed as really giving a

different complexion to the legislation. On the whole, despite its extra

detail, the Hebrew law is less clear, and the arrangement certainly

looks like a hasty compilation. For as it stands these words occur

attached to the case of a woman with child hurt by blows. At any rate

Exodus xxi. 24-5 introduces them with the words ‘and if any mischief

follow’. It may be, as some suggest, that they have slipped in here from

some other context, or be merely an expansion of the ordinary ‘eye for

eye’ to give a fuller formulation of the _lex talionis_. But it is

difficult to see how the loss of a limb, or an eye, or a burning could

be the mischief done by a blow to a pregnant woman. Miscarriage or

death, or both, are the mischiefs likely to happen. The Code of

Hammurabi deals with the case more reasonably. In fact, as it stands,

the Exodus passage, xxi. 18-25, looks very like a loose summary of

Hammurabi (§§ 196-200) without its logical connexion. At any rate, it is

hardly credible that this collection of words was ever put forward at

any time in the world’s history to enunciate a new law for a community

of any type that ever existed. The most intelligible way of regarding

this clause is as an attempt fully to enunciate the law of retaliation,

and that its presence in its present place is due to the desire to

explain some phrase which less effectively quoted that law; but in the

quotation of the fuller statement the fact was overlooked that some of

its clauses were unsuited to the cases under consideration. It is no

excuse to say that it looked back over all the preceding cases of

assault, for ‘burning’ nowhere applies. The only clause which really

applies is the first, ‘life for life’.

Doubtless some critical rearrangement may be made to justify the use of

the clauses somewhere, but as it stands it looks like a stupid

interpolation or an undiscerning quotation of the law of retaliation

bringing in the sense ‘if any mischief follow then it shall come under

the law of retaliation’. That would yield some sense if interpreted with

common sense in particular cases. The Code of Hammurabi is much more

distinct. If miscarriage followed, a fine was set down. If the woman

died also, the assailants daughter was put to death when the dead woman

was of patrician family, otherwise a fine was set down. The Book of the

Covenant evidently held to the strict retaliation throughout, but gave

no hint as to how it was to be carried out. The Code slips into the same

vagueness if the assailant had no daughter to pay the penalty of her

father’s fault.

In the case of the injured woman in Exodus xxi. 22, the punishment, if

no mischief follow, was left to be assessed by her husband, obviously

for motives of delicacy; but the decision of the amount to be paid lay

finally with the judges. In Hammurabi’s Code it was fixed by statute and

graded according to the status of the woman (§§ 209-14). What, we may

ask, is the essential difference? Can any one suppose that in Israel the

husband could demand and secure what compensation he chose? Surely the

Hebrew law is a concise way of saying the same thing as Hammurabi’s Code

does. The scale of payment could hardly be expected to be the same in

both lands owing to the difference in money values. A discretionary

power in the judges, or a liberty of composition between the parties, is

implied in the Code which everywhere states maximum penalties. This is

made clear by contemporary practice. Both legislations further take into

account the possible death of the woman herself. Else, what is the

meaning of the phrase ‘and if mischief follow’? The Hebrew law, however,

in that case legislates most awkwardly for what could hardly happen in

its endeavour exhaustively to express the law of retaliation which was

to rule the case.

While we are comparing the laws as to assaults and their penalties, we

may pause to note one conspicuous difference between the legislations.

The Babylonian lawgiver made a considerable allowance for class

distinctions. His was eminently class legislation. Some at once feel

that this fact places his law on a lower level than the law of God. Such

is a grotesque misapprehension. In Babylonia there was what we have not

yet attained nor can do until the State bears all law expenses and gives

a poor man justice free of cost. There was one and the same law for both

rich and poor. But the aristocrat was treated differently from the

commoner. In the eyes of some this is a far worse crime than favouring

the rich against the poor, which is the vice of all democracy. But

Hammurabi was in this much finer than we might expect, for he treated

the aristocrat more severely in every respect than the man of humble

birth. I do not attempt to defend that method, but it does need a little

explanation.

The facts are these, the aristocrat in Babylonia took a very high view

of his personal dignity as one of the conquering race. On his continued

support and loyalty the safety of the throne, and consequently the

welfare of all Babylonia, depended. The commercial-minded Babylonians,

rich or poor, like any other commercial group in the history of the

world, could never defend for long even their own money-bags, and for

all their industry, brains, and wealth could only pay for protection so

long as the pay they were willing to offer exceeded the spoil their

mercenaries could wring from them. The aristocrat was actually of a

lower civilization, as conquerors were always apt to be, but he held the

land by force of arms. Hammurabi was as dependent on his noble Amorites

as William the Conqueror was on his Normans. He held them to his

allegiance in practically the same feudal manner as did William and his

successors hold the Barons.

Now the aristocratic _amêlu_ or patrician of Babylonia was very

sensitive to a personal injury. He would accept no compensation for a

blow as might a commercial plebeian. The exact retaliation ’eye for eye,

tooth for tooth, limb for limb’ was his sole satisfaction. The

_mushkênu_ or commoner had to be content with a money payment. So far

for the contemporary public opinion. We say that the proud patrician was

conservative of a more primitive type of law, which we find to be that

of a nomad Semitic folk, the Bedawin Arabs, still. So far as the Hebrew

clung to the same law we discern aristocratic views with a lower type of

civilization.

But there is no trace of such class distinctions in the Book of the

Covenant. It is not, therefore, a higher type of law. It would be lower

if it were purely aristocratic in the sense of love of retaliation. Why,

we may ask, were there no social grades in Israel? Possibly because in

proportion to the conquered the conquerors were relatively more numerous

than in Babylonia. Or possibly the conquered were more thoroughly

subdued. Possibly also because the references to class distinctions have

since been expurgated from our copies of the legislation.

Now let us take the view that the higher law which accepts compensation

for injury in place of strict retaliation emerged later in Israel. Are

we to regard this as a natural evolution? Surely not. We are not

convinced, surely, that it is a higher law or more inspired. It was

probably, as in Babylonia, already the older law of the land before the

Israelite invasion, the more civilized law of the more civilized

inhabitants of Canaan. Later, according to the critical arrangement of

the law codes as preserved to us in the Pentateuch, this more civilized

custom is growing, and it has to be forbidden in the interests of

conservatism (Leviticus xxiv. 22). At any rate, there, after repeating

the law of retaliation, differences of treatment are forbidden. Why

should this be done, unless they had been growing? Later still, in

Deuteronomy xix. 21, deviations from strict retaliation are again

forbidden with the words ‘thine eye shall not pity’. Once more, we may

ask, if compensation had not been a growing custom among the Israelites,

why should this effort be made to strengthen the observance of a lower

law? Was it solely because of their reverence for Moses and his law, or

was it not because it was all along the Canaanite law and so repugnant

to the Jewish lawyers? If so, were not the Canaanites in the same

position to the Israelites as the Babylonian _mushkênu_ to their Amorite

conquerors in the old days of Hammurabi?

The cases in the Book of the Covenant where an injury to a slave is

treated are not to be compared to those in the Code of Hammurabi. If a

slave is freed (Exodus xxi. 26) for a bad assault on him, it is an

assault by his master, for which Hammurabi has no notice. Hammurabi’s

cases of assault on a slave are by one who is not his master. There is

nothing here to show that the law was not exactly the same for both

legislations for the same cases. As far as our evidence goes one law

treats one case and omits the other, the other law treats the last case

and omits the first.

As a matter of fact the Book of the Covenant is here not consistent with

itself. A man might beat his servant to death, provided he did not ‘die

under his hand’, and go unpunished, but he might not knock out his eye

without having to free him. Obviously, then, if he did knock out his

eye, his wisest plan was to so injure him further that he should die. In

any case he lost his slave. One can hardly help suspecting that these

two clauses belong to different periods. What the Babylonian master

could do to his slave without incurring punishment we do not now know.

If a slave ran away and was brought back his master could put him in

fetters. If the slave repudiated his master’s authority he was punished

by mutilation. But Hammurabi does not otherwise interfere between master

and slave. Probably he, too, counted on the master’s regard for his own

property.

The case of a slave who married a free wife comes up both in the Code (§

176) and in Exodus xxi. 3. Hammurabi makes the woman and her children

exempt from the master’s power. So does Moses, if the man had married

before he became a slave. Of course, if his master gave him a wife, the

master retained power over her and the children. We cannot, however,

suppose that if the enslaved Hebrew married a free woman while in

servitude that the master claimed to treat her as a slave. Probably,

however, the master had power to forbid such a marriage. Thus there

really was no case likely to arise in Israel to compare with that

legislated for in Babylonia, which law regulated all cases except this

in Canaan also. The only new regulation which had come into use is the

restriction on the man’s term of service. To meet the case of a man who

preferred perpetual servitude in domestic comfort to destitute freedom

he was allowed to be ear-marked for the purpose (Exodus xxi. 6).

The Book of the Covenant extends the right of release to females (Exodus

xxi. 7) with a proviso. If her master has used her as a concubine he

cannot sell her. Either he must continue to treat her as a wife or give

her freedom. In the Code of Hammurabi the concubine has the same rights,

whether she had been slave or free woman originally, if she has borne

children. If she has not borne children to her master she may still be

treated as a slave if a slave before. The contrast between the laws is

only apparent. A Hebrew could not sell his slave whom he had used as

concubine, although she were childless, and the Babylonian could. But,

it must be noted that the Nippur copy of the Code, perhaps embodying

South Babylonian custom such as Abraham may have learned in Ur, omits

the clause allowing the sale of the childless slave-concubine. As a

slave she had to go out in three years, if once a free woman, according

to the Code (§ 176), which is the case contemplated by Moses who,

however, permits six years’ servitude as in the case of male servants

(Exodus xxi. 7). If the slave-girl became betrothed to her master’s son

she rose to the status of a daughter, which conferred freedom despite

her previous status.

The Code of Hammurabi punishes kidnapping of a freeborn man with death

(§ 14). To steal a slave was just common theft, and that also was

punished with death (§ 15). Moses combines the two cases in one (Exodus

xxi. 16): ‘he that stealeth a man shall surely be put to death.’ The

clause which adds ‘and selleth him or if he be found in his hand’

constitutes no contrast. It does not appear very illuminating. For what

purpose any one would steal a man except to sell him as a slave or keep

him as such is not easy to see. But it does recall the insistence of the

Code that a man-stealer to be convicted as such must be caught ‘with the

slave in his hand’ (§ 19). In fact the Book of the Covenant seems here

to have somewhat awkwardly condensed §§ 14-20 of the Code, attempting

to make the law apply to any man, slave or free, without expressly

naming the slave. But it does name one case which Hammurabi omitted to

notice—when the man-stealer had succeeded in selling his capture. The

sale might be difficult to prove, but in a country where scarcely

anything was sold without a deed of sale on which the Code insists so

clearly no buyer would easily be found. In any case Hammurabi could

hardly have meant that a man-stealer was only to be punished if he had

not succeeded in passing on his captive. How the Book of the Covenant

contemplated proof of sale would be found does not appear. It is to be

borne in mind that a man-stealer was only likely to attempt to kidnap a

child or a slave. Hammurabi legislates fully for both cases; Moses

apparently attempts to include all cases under one term and condenses

the carefully distinguished cases of the Code, and leaves a law which as

the Book of the Covenant now preserves its regulations can scarcely be

called clear.

In the case of grievous assault the Code demands an oath of lack of

malice and payment of the doctor. Moses omits the oath, Exodus xxi. 18

f., and orders payment for loss of time. The injured man seems to have

been left to get well as best he could, or the doctor may have been

ignored because his practices were connected with idolatry. But the

words ‘cause him to be thoroughly healed’ surely imply the existence in

Israel of some sort of doctor. Anyway, the customary justice underlying

both laws is the same. If the injured man dies Hammurabi admits oath of

want of malice (§ 207) and fixes the compensation. Here in Exodus xxi.

13 Moses allows the right of asylum. This is a most marked difference,

and a whole literature has grown up about the question of asylum and the

Cities of Refuge. It is impossible here to work out the question. We

must, however, notice that the Book of the Covenant does not specify the

usage as to asylum at that period. We can hardly quote the regulations

given, say in Numbers xxxv, which are held by critics to be of later

date and may embody considerable changes. One of these changes forbids

the innocent slayer to leave his asylum until the death of the high

priest. That is considered certainly to be of late date. It is

associated with a prohibition to take a satisfaction for the deed. If

this be also late it marks a growing custom or the recrudescence of an

earlier usage. Whenever it held sway the ultimate fate of the innocent

man-slayer was the same as in the Code. He had to pay a compensation to

the relatives of the slain man.

Now we may consider several alternatives. This custom of asylum or

purgation by oath, both implied or prescribed in Israel and Babylonia,

was also associated with compensation to the relatives both in Israel

and Babylonia at some time. In Babylonia it was so in the time of

Hammurabi and, if not in Israel at the time of the Book of the Covenant,

some time later before the prohibition.

In Babylonia the man-slayer would be tried on the capital charge before

a court. Whether he had to flee for refuge to the temple to escape the

avenger of blood does not appear. But the court was certain to be held

there, and the oath was before the altar or emblem of the god. In Israel

he had so to flee. He had to be tried on the capital charge there. His

oath of purgation implies a trial there. Exodus xxi. 14 implies that a

murderer would take refuge there. In neither law are the details given

explicitly, but we cannot point out any contradiction; all we can say is

that each omits what the other records. We must admit, however, that

there may have been real and essential differences here.

Cases of theft show much the same treatment, allowing for adaptation to

changed circumstances. The burglar in the Code of Hammurabi was killed

on the spot and gibbeted before the breach he had made. In the Book of

the Covenant this right to self-help is only allowed if the burglary

takes place at night. It may be that the Code also contemplates

nocturnal burglary alone, as did the Roman XII Tables. There is,

however, no explicit statement on the point. The case of burglary in

daylight, however, implies the possibility of calling in assistance.

That the death penalty should be inflicted in the Code of Hammurabi for

the brigand, for the thief who enters a temple or palace, both public

treasuries, to steal, for the stealer at a neighbour’s fire, are not to

be alleged as contrasts so long as we do not know what the penalties

inflicted on such criminals should be. We cannot suppose such crimes

unknown in Israel or so rare as not to be dealt with. All we can say is

that what we have left of the Book of the Covenant does not notice them.

A very remarkable set of differences strikes our attention when we

consider the fines for theft or fraud. In the Code of Hammurabi

restitution might be demanded up to thirty-fold in some cases or only

double in others. In the Book of the Covenant it ranges from double to

five-fold. The treatment is certainly completely independent. Actual

reasons for the amount of penalty are given in no single case. We may

suggest some, with little confidence, however, in their real influence

in antiquity.

That the Code of Hammurabi punishes the aristocrat so sharply may have

been due to the uneradicated predatory instinct of his Amorite

retainers, or to the arrogance of conquerors who were disposed to hold

that the conquered had no rights against them. That the Book of the

Covenant instances only ox and sheep may be due to the fact that its

legislation was meant for a pastoral folk entering upon a new

environment. The peculiar numerical calculations which brought about the

penalty of multiple restitution and decided how many times may have been

founded on some theory as to the significance of numbers which now

escapes us.

But one point must be carefully borne in mind. The Code of Hammurabi

states the maximum penalty. Its ‘shall’ is not imperative but

permissive, it may best be rendered ‘may’. A considerable licence was

allowed to judges, and there was always appeal to a higher court and

ultimately to the king.

Damage to crops by animals is explicitly treated both by the Code and by

the Book of the Covenant. Hammurabi (§ 57) separates two types of

damage—one where the crop may recover and even benefit by the growing

corn being fed off and trodden by sheep, the other where the corn in the

ear is irretrievably destroyed. It is not clearly the case, however,

which is treated in Exodus xxii. 5. If not, then we can allege no

contrast; but the LXX and the Samaritan Pentateuch add the case of

complete consumption. This might be due to a later acquisition of

knowledge concerning Babylonian or Canaanite usage, but is so distinct

that we cannot fairly insist on conscious antiquarian interest. The case

could hardly be left undecided.

Damage by flooding a neighbour’s field, dealt with in the Code, §§ 53-6,

is foreign to Israelite soil, irrigation being rare, but the same type

of law is given for damage by fire in Exodus xxii. 6. This is not

referred to in the Code.

The Code of Hammurabi deals at length with the case of property claimed

as lost from a holder who asserts ownership (§§ 9-13). The corresponding

section of the Book of the Covenant, Exodus xxii. 9, may be said to

condense the whole with extreme brevity thus: In any case of breach of

trust, whether it concern ox or ass or sheep or clothing, or any kind of

lost thing of which one saith ‘This is it, the case of both parties

shall come before God; he whom God shall condemn shall make double

restitution to his neighbour’. This seems to be the best that PROFESSOR

KENT can make of the Hebrew. Now can any unprejudiced person suppose for

a moment that this clause sets out a new law in an intelligible fashion.

Is it not obviously drawn up in the manner of one who is summarizing a

well-known series of enactments? To my mind it is very difficult to

resist the impression that it is meant to reduce a rather wide and

perhaps not a very uniform series of judgements to a single formula.

That the law thus sought to be simplified was the Code of Hammurabi

does not appear, for the simplification is of a type that destroys

almost all likeness. Only this may be said: in both legislations, if any

man is found holding property his right to which is challenged by

another, the claims of both are to be rehearsed before the judges. So

far the resemblance is exact, but while the Code takes each contingency

separately, and whoever is proved to have made a false claim is judged

to be a would-be thief and as such condemned to death, in the Book of

the Covenant the culprit has merely to pay double to the man he has

defrauded. This is indeed a marked change, if not improvement. But one

would expect progress in five hundred or a thousand years of settled

life in Canaan. That so primitive a folk as Israel is usually supposed

to have been on entrance into Canaan, or even in the early days of the

monarchy, should have a law so advanced would be remarkable enough. But

we note that apparently the Book of the Covenant wishes to include

breach of trust as well as unlawful detention of property.

Now the law of deposit or trust is dealt with in the Code very clearly

and precisely. The depositee is responsible for all loss. Even if the

deposited goods are stolen from him he must repay and recover at his own

charges from the thief if he can find him. If the depositee wrongly

denies or disputes the deposit he pays double. One point only is not

decided. The thief has, of course, to be killed when caught. But he may

not be caught, and his death in any case will not restore the goods. Now

Exodus xxii. 7, dealing with deposit also, does not repeat or resume the

surely necessary points treated by the Code, but does take up one of its

difficulties. If the thief is caught he, too, pays double. If he cannot

be produced, the depositee is brought to the judges to see if he has

appropriated the goods. The sequel is not stated, but is usually

supplied by supposing it covered by verse 11, which, however, formally

applies to a different case, the case of animals entrusted to a shepherd

or farmer, which is treated in the Code (§§ 244, 249, 267). There

unavoidable accidents are cleared by an oath of innocence, just as in

verse 11. But as in Exodus xxii. 13, evidence of the animal being killed

by a lion is demanded in the production of the remains; we can hardly

regard this as on all fours with robbery from a granary, for example. In

the case of negligence or theft of a deposit both legislations require

restitution. There are certainly differences, but no fundamental

difference of view. No one can deny that the regulations in the Book of

the Covenant might have arisen quite independently, founded on natural

experience; but surely, in that case, the law would have explicitly

treated more points. These must have arisen in practice. Why were they

not treated?

The answer which seems to meet the case is that the Book of the Covenant

assumes just what the Code contains, repeats some of it summarily, adds

a fresh case or two, revises the penalties, but, if completely

preserved, does all this in a rather crude fashion. We may not have it

all, and that must not be forgotten. The Exodus passage as it stands has

all the appearance of supplementary legislation, and, if it be as early

as is commonly supposed, where are we to look for what it assumes

already known?

So far we have instituted a comparison between the Hammurabi Code and

the Book of the Covenant without exploiting the subsequent Hebrew

legislation. We have seen great likeness mingled with decided contrasts.

We have followed quite carefully critical views without being able to

exhaust all the ramifications of criticism. We have taken the usual

acceptation of the Hebrew laws. Considerations of time and space prevent

our extending our researches to the limits of exhausting our subject.

Much clearly remains to be done. We could examine most of the points

taken up much more closely. Before we leave this part of our subject let

us look from another point of view at the cases of slavery already dealt

with.

The Book of the Covenant, Exodus xxi, legislates for slaves, both male

and female, but especially for those of Hebrew race. A moment’s

consideration will show that this is not an exhaustive treatment of the

questions relating even to them; only selected points are dealt with.

Now we may ask, Why should just those points be selected? Was it because

the nomads before entering Canaan had no slaves, or were there none of

the Hebrew race, or was it the case that in the desert none could sink

so low? Or were there no slaves under the early kings of Israel? At what

time did the use of slaves arise? Definite ideas on such points are

necessary before theories of the date of the laws can be sustained. The

usual view is that the institution of slavery is long anterior among the

Israelites to the Book of the Covenant, whose regulations introduce no

new regulations, only fix customary usages. On the other hand, a very

frequent view is that a change in habits on entrance into Canaan had

brought new conditions and so had given rise to new sociological

problems. Perhaps the conquest of Canaan added largely to the numbers of

slaves. The older views on the subject of slavery had to be modified in

order to meet new conditions. The Book of the Covenant on this view did

introduce new regulations which aimed at teaching a newly settled folk

how to treat particular cases. Did the lawgiver, then, treat the

subject _de novo_, or merely adopt regulations already in force in

Canaanite cities, or did he seek inspiration from the land to which his

people’s traditions ascribed their origin?

Now the answer to such a question depends upon what we can find

elsewhere in the people’s previous experience in the desert, in Canaan,

or in dim memories of far-off Babylonian days. That is to say, if these

really denoted distinct epochs in their history with distinct

civilizations. For if a law on these points already existed, was

recalled, or observed in force, which proves to be practically the same

as that here adopted, or could be ascertained on inquiry by Hebrew

legislators, then the view that they did not attempt to ascertain it,

nor recalled it, nor observed it, but independently concocted a fresh

law, and in so doing hit upon exactly the same result as they might have

ascertained, recalled, or observed, needs only to be stated to refute

itself. An appeal to inspiration to explain this kind of miracle is only

laughable, and if the best of men professed to so account for any of his

actions in ordinary life, we could only doubt his sanity so long as we

believed his sincerity.

The Code of Hammurabi had existed for five hundred years or more, and it

shows what a settled folk of same racial type under much the same

conditions did achieve on the subject. We must, then, show that the Book

of the Covenant treats things differently, or that its author could not

well be aware of this Code, before we can safely deny that he is

indebted to it. Such reasoning has led many scholars to assert roundly

that the Hebrew legislation is derived directly from the Babylonian. But

for argument’s sake let us start by assuming that the regulations in the

Book of the Covenant are original and devised solely to meet the

circumstances in Canaan at some early period in the Israelite

predominance there, and let us consider these regulations more closely.

The regulations appear to concern a Hebrew slave. The first question we

ask in astonishment is: How came a Hebrew to be a slave? We probably all

know of amazing feats of exegetical dexterity achieved over this

question. The Book of the Covenant, however, only adduces the one case

of a man sold by the judicial authority for a theft which he was unable

to restore (Exodus xxii. 3). The later law in Deuteronomy xv. 12 appears

to add the slave acquired by purchase. Who had then the right to sell

him? If a Babylonian was captured by the enemy and offered for sale as a

slave to his compatriots he had to be ransomed by his own family, his

city, or the state, and was restored to freedom and not enslaved any

longer. Surely a Hebrew would not be worse treated. The law of P.

explains the case more clearly (Leviticus xxv. 39): ‘If thy brother be

waxen poor with thee, and sell himself unto thee.’ We may regard this as

later, but can we deny that the case itself was not supposed all along?

It is most probable that the only way in which a Hebrew could become a

slave in his own land to serve a Hebrew master was in some such fashion,

which is not really slavery at all.

There is no evidence to show that captives in war, reduced to slavery,

or the slaves bought in the open slave market, foreigners in either

case, would be freed from slavery at any time, under this law or any

other. Later, Leviticus xxv. 44-6 expressly sanctions such being

‘bondmen for ever’, and this was everywhere the natural custom.

The Hebrew ‘slave’, as he has hitherto been called, contemplated in this

law, as understood somewhat later, is simply one who had assigned

himself or had been assigned by lawful authority to his holder to work

off a debt which he himself had contracted. Such in Rome became a real

slave, and might easily have so become in Israel and Babylonia but for

Moses and Hammurabi. There is no evidence that a Hebrew was ever a slave

in any other sense. We shall return to the point again. This is not

really a slave but a hostage for debt. Hammurabi had a special name for

him, as had the Roman law. The Hebrew term covers such, using a word

that may mean a servant, a hostage for debt, or a proper slave.

This ‘slave’, then, worked off his debt by unpaid service. When

Leviticus xxv. 40 lays down the rule that he shall not serve as a

bondservant but shall be as a hired servant, it bears in mind that he

was not a slave at all, but had temporarily lost his freedom. He was

like the sojourner, still free, but not fully free. It could not be

meant to order that wages were to be paid, only that no such exacting

service should be required as was evidently the rule for bondservants or

real slaves. ‘Thou shalt not rule over him with rigour’ is a good gloss

on the case. For it was naturally a temptation to the holder to get as

much work out of this ‘slave’ as he could, in order to recoup the debt

or purchase-money in view of the approaching release.

It is most important here to note that the law takes no account of the

amount of debt. A purely commercial spirit would have estimated the

yearly average value of the slave’s work above his keep and clothing,

and then would fix the term of service at such a length as would suffice

to work off the debt and its interest. That such calculations were made

in Babylonia is evident from existing documents. In the existing state

of legislation in Israel we may assume that a man who was in debt,

knowing that if he sold himself for debt he would have to serve six

years, would not sell himself unless he saw some fair equivalence

between the work he would have to perform in that time and the amount he

owed. He could hire himself out as a hired servant and pay off the debt

with the money, possibly in less time. So it was ruled that if he did

elect to serve out his debt he is not to be made to work harder than a

hired servant would have to do.

In the Book of the Covenant, then, it seems that a Hebrew was only

likely to get into such a position as a result of crime for which he

could not pay the fine or a theft which he could not restore, and so by

judicial sentence or by voluntary self-assignment for debt.

In such cases the law rules that whatever was the amount of debt six

years’ service must be held to discharge it. That opened the way to

abuses in two directions. The service might be an insufficient

discharge, and so the holder, if the debt was due to him, or the

purchaser of the convict, would be cheated; or the man who had suffered

the theft be not remunerated. So it is not to be supposed that when a

man was sold to pay for a theft which he had committed the buyer would

pay more for him than he could reasonably expect to get back by six

years’ service. Thus the way was opened to a second abuse, excessive

exaction of labour from the slave. Later legislation recognized the

existence of just these abuses and attempted redress.

Now all this is completely like the Code of Hammurabi, which already

provided for the abuses as well (§ 117 ff.). The Code deals with the man

assigned, literally ‘named’, _nibutum_, like the Roman _nuncupatus_, to

work off a debt. The Code expressly reserves the right of ‘naming’ this

hostage to the debtor himself. The creditor had no power to seize the

debtor or distrain on his goods or dependants. If he does he is fined

and voids his debt at once. It also, like the Book of the Covenant,

contains cases where a man might be sold with his family, and of course

his goods, to pay a liability which he had incurred through culpable

negligence. Neither it nor the Book of the Covenant expressly brings

this case under the law of release. It does not record the case of a man

actually ‘naming’ himself as _mancipium_. But that surely is not

excluded from possibility, and we know from actually recorded cases that

it occurred.

The points of difference are (i) the term of service—fixed by the Code

at three years, by the Book of the Covenant at six years; (ii) the

regulations against the ill-treatment of the hostage; (iii) the

regulation for the case of the man who wished to remain a slave for

ever.

On these we may remark, first that in Israel the term of six years

imposed by the Book of the Covenant was evidently resented, and has to

be explained as really a double term (Deuteronomy xv. 18). Surely that

indicates a knowledge on the part of the later lawgiver of what was not

generally known in Israel, to wit, that the term had once been three

years. Where and when, we may well ask? Surely not in Israel, or the

creditor would not have so resented a regulation which gave him twice as

much for his money. Nor in his neighbour cities of Canaan, or he would

still have recognized his improved position. It must have been somewhere

at a time now forgotten in a state of things which he would be expected

still to respect. Where else could it be than in Babylonia, the home of

his father Abraham? Would any one have quoted him a law unless it was

one he was likely to respect as eminently just? He may not have known

that law by the name of the Code of Hammurabi, but simply as ‘ancient

law’ so highly revered by Orientals in all ages. ‘Ye have heard that it

was said by them of old time’ was enough.

Here some one may be disposed to raise the objection that the creditor

was not told that the six years was double the term allowed by ancient

law, but simply that it was ‘the double of the hire of a hired servant’.

Now if that does not mean the same thing it has no sense at all. For a

term cannot be double the hire of anything. It is the value in work of

the term of service which is double a hire. We must express both terms

in the same denomination. In what sense could six years ever be double

of anything but three years? How can we imagine three years to have any

special connexion with the term of a hired servant? Is there any

evidence that servants were usually hired for three years? The term in

Israel, as in Babylon, must always have been matter of free contract.

The writer has in his mind the other regulation that the hostage for

debt must not be treated worse than a hired servant, and explains the

six years’ term as double what the debtor would be likely to agree to if

he was in the position of a hired servant and free to contract about the

term. Why should he be thus expected to fix upon three years as a term?

Probably because the custom, which had come down from the time when

Canaan observed the same usages which Hammurabi codified, regarded three

years as a proper term. If this view be thought not convincing, it may

be rejected.

It is at least curious that the excuse given for demanding release for a

hostage for debt at the end of six years is that this is after all

double something—when it actually is double the term Hammurabi fixed. In

whatever way the Deuteronomist meant his reader to understand his

explanation it is difficult to imagine what else was in his mind. The

something which he appears to allege may be a gloss on his words. The

text may once have said ‘for the double he hath served thee’, and a dull

glossator may have sought within his own consciousness for the rather

pointless example suggested by the other reference to a hired servant’s

service.

Anyway, the term is explained as a double one, and it was double of the

term in the Hammurabi Code.

The second point of difference has a suggestion of greater ruthlessness

in Babylonia in treatment of a hostage. ‘Blows and starvation’ point to

efforts to get more out of the hostage. This, too, is the underlying

thought of the later legislation in Israel which forbids his treatment

as a bondservant.

The third point, too, suggests that in Babylonia it rarely occurred to a

man to prefer comfort with servitude to freedom and destitution. The lot

of the free destitute may have been more hopeless in Israel, the lot of

the slave less tolerable in Babylonia. Or the love of freedom may have

been greater in Babylonia. In any case, such a difference in law is the

sort of addition which might be expected to grow up in five hundred

years of advance, in a different state of society and a far-off land.

In the last resource the ground principle remains the same. A debtor may

name himself, or one of his family, or his slave, as hostage for debt,

but whatever the amount of debt, the hostage shall not be held beyond a

fixed term. This in both laws only applies to a free individual and

never affected a real ‘slave’.

We have hitherto assumed that the law contemplates only the Hebrew male

‘slave’. But are we to suppose that when an Israelite got into debt or

was sold to pay an obligation that he alone was responsible? Could not

he also assign his wife or child or slave to work off his debt? And if

he did, are we to understand that they could be kept for ever in

bondage? The words of the Book of the Covenant do not expressly answer

any of these questions, but only a very pedantic interpretation of the

letter of the law could confine its operation to the male head of the

family.

We do have, however, an indirect answer in the next two clauses. He

might come in alone or he might bring in his wife (and family

presumably) with him. If so, they had to be released with him. The case

where he assigned them in his place is not mentioned. Are we to assume

that this was not done? Subsequent legislation extended the law.

Deuteronomy xv. 17 has ‘so shalt thou do to thy female slave’. This may

have been necessary to prevent an abuse of refusing to release a female

‘slave’ sold to work off a debt, on the plea that she was not covered by

the words of the Act. This would be to assume a litigious spirit, of

which we have no other proof to allege. It is better to regard it as

commentary. It may, indeed, be contended that the law was intended to

cover only one special case, but it is more reasonable to suppose that

it takes a special case as norm for all.

Now what is this the law of? To call it the rights of the Hebrew slave

is surely to miss the whole point. It is still more misleading to call

it the law of male slaves. It is the law of the hostage for debt. It

concerns only the person assigned as _mancipium_. No other comes into

view. And such is not a slave at all. There is, therefore, here no

information about the treatment of slaves in Israel. All the fine talk

about the humane character of the Mosaic law may apply elsewhere, not

here. The law simply insists on the release of a debtor held to work off

a debt at the end of a fixed term.

The further details of the case in the Book of the Covenant are

considerations of special cases—(i) if the debtor is a single man when

he enters on his term of service, (ii) or accompanied by his wife (and

family?), (iii) if provided by his creditor with a wife during his

service, (iv) if he prefers servitude in domestic freedom to destitute

freedom. On these grounds we may remark—

(i) That he should go forth alone if he came in alone merely heightens

the contrast. No restraint of the holder’s freedom is intended, but a

limitation of the debtor’s claim. If his holder finds him a wife, and so

children, he cannot claim to take them with him, that is all.

(ii) If his wife accompanied him she has the same rights to release as

he has. His family is not named, but was surely in the same position.

What is here ruled is simply that this class of servitude does not

forfeit freedom for any one.

(iii) It is obvious that the holder might give him a slave-woman to be

his wife. Had he been fully free the children of such a marriage would

be at his own disposal. Now they are the holder’s property. As a single

man held to work off his debt he probably was not free to choose his own

wife. His children were a species of profit to his holder, just as if he

were an ox.

(iv) The case where the man chooses to stay is instructive from many

points: for a Hebrew could thus become a slave for ever. There were no

degradations if no grades were recognized, and there were no religious

disabilities. It did not even preclude wealth. The boring of his ear by

the awl was a significant way of nailing his obedience, of which the

ear was the organ and symbol, to a particular house.

So far in our comparison of the Code and the Book of the Covenant we

have been content to show likenesses and contrasts. But there are not

lacking cases in which some have not failed to see deliberate conscious

change. One of the most surprising things in the Book of the Covenant,

if it belongs there at all, is the prohibition to ‘favour the poor man’,

Exod. xxiii. 3. The direction must be addressed to persons in the

position of judges. It is sometimes maintained that the Book of the

Covenant shows no trace of judges. However that may be, the directions

must be addressed to those who decided causes, judges under some other

name.

Now why was the poor man not to be favoured? We should not be at all

surprised at judges being told not to favour the rich man. It can never

have been superfluous in the East. But the Code does favour the

_mushkênu_. We have seen that he was called ‘a poor man’ by several

translators after the rendering ‘noble’ had been given up. That was

partly because the Hebrew _meskîn_ has always been taken to mean a poor

man. Perhaps the original text of Exod. xxiii. 3 had _meskîn_. Then the

later redactor, who seems to have known the Code, may have wished to

obliterate a tell-tale word. The Code did favour the _mushkênu_ in the

sense that he could do wrong at less expense than his superiors. Also

his offerings in the Temple were allowed to be smaller. Now this is

exactly how Leviticus does favour a poor man, and that again suggests

that by ‘poor man’ the Hebrew legislator did mean the same as the

Babylonian _mushkênu_. Now if this otherwise very odd remark in Exod.

xxiii. 3 was really old, one wonders that the Leviticus law does so

favour ‘the poor’. But Exod. xxiii. 3 might well be passed later to

abrogate this Babylonian tendency. Exod. xxx. 15 expressly forbids the

rich to pay more or the poor less. The same word for ‘poor’ occurs in

all cases. Did then the early Hebrew law aim at reversing the Code’s

rule that ‘poor men’, or rather ‘plebeians’, should pay less? We may

suppose that the Canaanites were the _mushkênu_ in Israel. The

‘sojourners’ obviously were. But Hammurabi had neither riches nor

poverty in view when he favoured the _mushkênu_. By the Tell-el-Amarna

period the name had lost its exact value and become even in Babylonia

more contemptuous. Later in Israel it became a name for a beggar. Did

the Hebrew legislator catch the word when it only conveyed the meaning

‘poor’, and use his own term to avoid ambiguity?

The idea of God as the ultimate source of punishment is inferred as

characteristic in the Book of the Covenant from Exod. xxi. 6; xxii. 8,

9, where the offender is brought ‘unto the judges’. These words are now

more usually rendered ‘before God’, as there is no apparent reason why

the word usually rendered ‘God’ should here be rendered ‘judges’, beyond

a late opinion that such was the meaning of the phrase. This opinion is

correct in so far as that analogy with Babylonia leads us to suppose

that in every trial before judges the parties and the witnesses were put

on oath before God. This direct appeal to God as the all-seeing Judge of

men is in complete accord with the Babylonian practice, as revealed by

the Code of Hammurabi. The conscience of the criminal and the fear of

God’s vengeance on the perjured were in old times very powerful motives.

It is often said that the Jewish law is theocratic. So it is, when

regarded as a whole and in the sense noted in the last paragraph. But

this is not the attitude of the Judgements contained in the Book of the

Covenant. At any rate they are not more theocratic than the Code of

Hammurabi, which is extraordinarily free of religious motive. The type

of a theocratic code is the Laws of Manu, a much more primitive type

than the Laws of Moses. In some respects the Code of Hammurabi is

practically a civil code, and so ahead of the Laws of Moses. But it must

not be taken as a criterion of age that the Mosaic law is theocratic,

nor pressed as a mark of primitive law. For it is theocratic mostly in a

peculiar sense. The civil law of Israel comes to us embedded in a mass

of religious law, and prefaced by a narrative of its production, serving

to connect it with its divine author. Some portion of this framework

bears a strong formal likeness to the Code of Hammurabi. This has been

pointed out by S. A. COOK who, however, does not regard it as a sign of

dependence.

We must, however, allow some weight, one way or another, to this

likeness. Either this setting is original, or it is not. If it

essentially belongs to the Book of the Covenant, that is theocratic to

about the same extent as the Code of Hammurabi, and another striking

similarity is added to the list of arguments for dependence. If it is

not original, then the Book of the Covenant, unlike the rest of the

Hebrew law, was originally purely civil unless it had a different

religious setting (Babylonian or Canaanite?), and so still more like the

body of the Code of Hammurabi.

We have two pictures, so to speak, with very similar art and very

similar frames. In one case we know the picture and its frame are

contemporary. In the case of the other, which is certainly later, both

picture and frame are very like the older. If now the later frame be

not contemporary with its picture, we cannot use it to conclude that the

pictures are independent studies of the same subject. It gives no

evidence as to its picture. If the later frame be original and

contemporary, the later cannot be treated as an example of art repeating

itself. The copied frame is a very significant argument in favour of the

later picture being regarded as a copy too. Now it is very important to

much of the critical argument that the frame is original.