The Project Gutenberg EBook of The Relations between the Laws of Babylonia
and the Laws of the Hebrew Peoples, by C. H. W. Johns

This eBook is for the use of anyone anywhere at no cost and with
almost no restrictions whatsoever.  You may copy it, give it away or
re-use it under the terms of the Project Gutenberg License included
with this eBook or online at www.gutenberg.org


Title: The Relations between the Laws of Babylonia and the Laws of the Hebrew Peoples
       The Schweich Lectures

Author: C. H. W. Johns

Release Date: June 20, 2014 [EBook #46050]

Language: English

Character set encoding: UTF-8

*** START OF THIS PROJECT GUTENBERG EBOOK RELATIONS BETWEEN LAWS ***




Produced by Adrian Mastronardi, Turgut Dincer, and the
Online Distributed Proofreading Team at http://www.pgdp.net.
(This file was produced from images generously made
available by The Internet Archive.)









   THE BRITISH ACADEMY

   The Relations between the
   Laws of Babylonia and the
   Laws of the Hebrew Peoples

   By

   The Rev. C. H. W. Johns, M.A., Litt.D.

   Master of St. Catharine’s College, Cambridge

   _The Schweich Lectures_

   1912


   London
   Published for the British Academy
   By Humphrey Milford, Oxford University Press
   Amen Corner, E.C.
   1914


   OXFORD: HORACE HART
   PRINTER TO THE UNIVERSITY




PREFACE


It has long been held that the laws of the Israelites, as revealed by
God to Moses, by him embodied in the books of the Pentateuch and since
preserved by the zealous care of the Jewish people, are incomparable.
Accordingly they have been adopted professedly by most Christian nations
and were early accepted by our own king Alfred[1] as the basis of the
law system of this our land.

We live in an age of devotion to comparative methods, when it is an
article of faith to hold that the most fruitful means to attain a clear
understanding of the exact nature of anything is to compare it with its
like. This comparative method forms a large part of modern scientific
research and, with proper safeguards and reserves, has become a
favourite weapon of literary research into the history of human
institutions.

Long ago, as it seems to us, SIR HENRY MAINE used it[2] when he wrote
his _History of Early Law_. As a consequence of his investigations and
those of many who have followed in his footsteps, the Science of
Comparative Law has grown up. All the great law systems of the world
have been classified and compared, and comparative lawyers felt
qualified to assign to any new-found fragment of ancient law its true
position in their schemes. The results had rather confirmed than
traversed ancient claims for the supremacy of Mosaic Laws. Men had
settled down to the belief that we might compare, and that to its great
advantage, the Legislation of Moses with the Roman Laws of the XII
Tables, with the Indian Laws of Manu or the Greek Code of Gortyna. We
had recognized the broad outlines of a process of evolution and begun to
understand the way in which, as a people advanced along the path of
progress in the elements of civilization, similar human needs called
forth similar solutions of the questions of right and wrong.

Nevertheless much remained obscure in many ancient legislations. It was
the opinion of JHERING,[3] the great authority on Roman Law, that for
the ultimate solution of the puzzles of Roman Law we should have to go
back to Babylon. In his days comparatively little was known about the
laws of Babylonia, and that little was badly attested. Men were still of
opinion that the Mosaic Law was the oldest of which we had any
trustworthy account and that Babylonian laws, if there ever were any
worthy of the name, must have been more barbarous and unformed.

Then there came, in the early days of this century, a great surprise,
calling at once for much revision of our neatly arranged systems of
knowledge. A Code of Laws was discovered, certainly the oldest known, by
far the most complete and best attested, and at the same time the most
advanced of all but the most modern.

Fragments of it were already known from late copies, had been recognized
as probably parts of a Babylonian Code of Law, were even conjecturally
styled the Code of Hammurabi by PROFESSOR FRIEDRICH DELITZSCH,[4] but
very little could be concluded from them. Then suddenly at Susa in Elam
was discovered practically the whole text of it. Ever since it has been
the subject of profound study from all points of view.

The comparison of this Code of Hammurabi with the Laws of Moses was
bound to be made. Many reasons would suggest the likelihood that much
similarity would be observed between two early legislations both Semitic
in complexion. Comparisons with other ancient codes were equally sure to
be made and the differences naturally to be expected would be carefully
weighed and considered. But while most surprising results came out of
these comparisons, especially in the realm of Roman Law, a much keener
interest has attached to the comparison with Hebrew Law, not only
because of the sacred nature of the Old Testament, but even more because
this had been the special study of the Higher Critics. These scholars
had almost decided what their view of the composition of the Pentateuch
should be, what were the ultimate sources implied, what dates should be
assigned to the constituent documents, and the arguments to be
considered valid in such discussions. Those who rejected the Higher
Critical conclusions flew at once to the new-found Code for arguments to
refute Higher Criticism; while Higher Critics found confirmations in
many directions.

It may be hoped that this side issue has lost its interest, and that a
hearing may now be obtained for a simple attempt to use the two
legislations for mutual understanding. When on the appearance of the
Code in its first edition I lectured upon it at Queens’ College,
Cambridge, it was solely as a new document of human history. When a
month or two later I was privileged to point out its ‘significance for
comparison with the Hebrew legislation’ in a paper read before the
Cambridge Theological Society,[5] of which an abstract appeared in the
_Journal of Theological Studies_ (Jan. 1903), it is probable enough
that the contrasts to the Mosaic Law were more apparent than the
likenesses. In the next few months there was ready for press an
extensive work on the Code, illustrating its meaning from the
innumerable legal documents, most of them contemporary, which had been
my study for years. As bearing on this comparison I soon found that a
baldly literal translation of the Code gave a most Biblical turn to its
phraseology which the easy, lucid, but peraphrastic renderings given by
others perpetually disguised. The general likenesses, Semitic
characteristics, and apparent cases of adaptation were separately
classed and those most suggestive of dependence insisted upon. The index
of subjects compiled from the Code and contemporary legal documents
appeared to constitute a substantial advance in the knowledge of ancient
law.

Of all this work, prepared in 1904, it was not possible to publish more
than the translation, under the title _The Oldest Code of Laws in the
World_ (T. & T. Clark, Edinburgh), with a selection from the index. The
other results were freely communicated to various scholars, but it was
not without some pangs that I saw most of them attained in time
independently. Later an article on the _Code of Hammurabi_ in the
Supplementary Volume of Hastings’s _Bible Dictionary_ and one on
_Babylonian Law_ in the _Encyclopaedia Britannica_ afforded me the
chance of setting out some results of my research upon the Code in its
relation to the ancient civilization of Babylonia, with a rapid glance
at its relations to Israelite Law. When writing a work for the American
public on _Assyrian and Babylonian Laws, Contracts, and Letters_, I
expanded some parts of this treatment.

I trust that I may be pardoned for thus simply stating why, when the
British Academy conferred upon me the great honour of inviting me to
deliver the Schweich Lectures for 1912, I selected the subject of
_Babylonian Law in its relation to the Laws of Moses_. It was a subject
in which I had taken an interest for some years, and I was anxious to
seize an opportunity of making public the work done in 1903-4.

A very large amount of work has been done by others on various aspects
of the Code of Hammurabi, especially on the Continent, where the
facilities for publication appear to be greatly superior to those in
England. What is done here is, however, of excellent quality; and MR. S.
A. COOK undertook a detailed comparison with the laws of Hammurabi and
other codes which[6] leaves very little to be desired. MR. ST. CHAD
BOSCAWEN in his _First of Empires_ stated some interesting opinions, and
MR. CHILPERIC EDWARDS has given a fresh translation. PROFESSOR R. F.
HARPER gave a useful handbook of the text with new translation, index,
vocabulary, sign-list, &c., which makes the study simple to those who
can read cuneiform.

Reference may be made to the Bibliographies given in these and other
books listed in the Bibliography printed on pp. 65 ff.

With such a volume of literature already published, it may seem
superfluous to add a further contribution. Indeed, when the present
writer read an account of the Code to the Cambridge Theological Society
in October 1902, he was quite content to call his paper _The Code of
Hammurabi, fresh material for comparison with the Mosaic Code_. He would
have been well content to leave it as such, being rather concerned to
furnish material for study than to make direct contributions to the
application of it to subjects beyond his competence. Much that has been
published on this comparison, however, seems to him really inadequate or
so ill-considered that it appears to be a duty to submit a different
view. He is fully conscious that it is only one view and may prove to be
wrong. Yet it seems to him that it is a view which takes account of more
facts than any other, and, while not admitting of formal proof, is both
reasonable and probable.

Briefly stated, the view thus taken is that the Code of Hammurabi
belongs to the same group of ancient legislations as the Hebrew, and
that both are compromises between two distinct types of law.

One type is that which is perhaps best seen in the customs of the Arabs,
as still surviving among the modern Bedawin, and known to us from the
ancient Arabic writers. This has been called primitive Semitic custom.
The Israelites, before their entrance into Canaan, as a nomad pastoral
people, would be governed by such law, if it can be called law. The
dynasty to which Hammurabi belonged was foreign to Babylonia. It owed
its rise to an incursion of a Semitic people. That Semites were in
Babylonia long before is true, but this was a fresh invasion by a
probably nomad pastoral race. They had previously obeyed the same
primitive laws as it is assumed the Israelites did before their
settlement in Canaan. Forming as they did the ruling race in Babylonia,
they yet clung with Oriental conservatism to their ancient customs. Even
such a powerful ruler as Hammurabi could not, or at any rate did not see
fit to, entirely change those customs. In the period when the Laws of
Moses were instituted, the Israelites were similarly the ruling race in
Canaan. Their earlier laws, as known to us, show the same conservation
of primitive custom, and that of the same type.

The other type of law is that due to a settled community. In Babylonia
it may have been evolved through long ages. It may have been, and
probably was, largely due to a non-Semitic people, usually called
Sumerians, whose racial affinities are not yet well made out. These were
conquered by the Semites of Hammurabi’s race. In Canaan too the invading
Israelites found a long-settled people in possession. They were governed
by very similar laws to those of the settled Babylonians. That these
laws had been imported from Babylonia is open to question. Much that is
common to the laws of the two settled communities may have arisen
independently. There is as yet no evidence that the Canaanites were of
the Sumerian stock.[7] But Babylonian influence on the Canaanite law is
quite conceivable, and is supported by historical evidence of
long-continued intercourse between Babylonia and the West. As the
Israelites became a settled population many of their nomad customs must
have become inappropriate. They might have evolved new laws. They might
have taken over the laws of the Canaanites, so far as these were
innocent, or not too obnoxious to Hebrew prejudices. Exactly which
course they followed in each case is a matter of history. The historical
evidence may be inconclusive. We must make the best of it.

When, therefore, the Code of Hammurabi is compared with the Laws of
Moses, the common material may be due to one of two common sources,
primitive Semitic law (otherwise nomad law) and the law of settled
communities. For the latter we may hesitate to fix on a racial name. But
it is not necessarily that of any and every settled community. Inasmuch
as we find it in its most developed form in the Code of Hammurabi, we
may call it Babylonian. On the other hand, as the oldest known witness
to the primitive type is the same Code, we may call that Babylonian
also. In this modified sense we shall be able to speak of the Laws of
Moses as being primitive Semitic law modified by Babylonian influence.
That, however, would be a description easily misunderstood if divorced
from its context.

It is better to say that both legislations are compromises between the
two types of law, that they show different degrees of preponderance of
one or the other type, and that the Laws of Moses manifest an
independent development strongly influenced by the Code of Hammurabi.

We may still claim an independent development of the Laws of Moses.

For during the whole time that the Israelites were in Canaan they were,
as usually supposed, independent of Babylonian rule. If they adopted
laws which were already prevalent in Babylonia, we may be sure it was
not solely because they were Babylonian. This may be disputed. For there
were times when, if we may believe their own tradition, they did receive
embassies from Babylonia, or even adopt Assyrian cults. This kind of
influence might conceivably lead to the adoption of Babylonian or
Assyrian law, which latter was always practically the Code of Hammurabi.

The Israelites may never have adopted Canaanite law consciously, but
always supposed themselves to be creators of their own laws. But they
could hardly avoid knowing the Canaanite law. When a man does as his
neighbours do, he may be perfectly independent in his choice so to do,
as some men count independence. But it is usual to regard him as
influenced by their conduct. Even when he decides to do the very
opposite to what they do we may contend that he was influenced by his
knowledge of their conduct. Reaction may be claimed as a sign of
independence, but it is also a sign of influence. The truth always is
that every action exhibits both independence and influence. We may hold
to the explanation that a man’s circumstances determine him, but we must
then give a wide meaning to circumstance.

Now one of Israel’s circumstances was Canaan. The Canaanites had settled
laws, and to some extent those laws must have embodied the results of
experience of what was suitable in Canaan. Israel might have arrived at
the same results, by the same way. It is, however, surely difficult to
deny that they availed themselves of Canaanite experience and adopted
Canaanite laws. If they did so at all, it is mere quibbling to deny
Canaanite influence. Even if they had so framed their laws as to avoid a
likeness to Canaanite laws altogether, that would still show Canaanite
influence. That they did neither, but achieved a totally distinct type
of law, can alone show complete independence. That they did not adopt
all Canaanite customs, but made a selection, shows the best sort of
independence. That there was always a strong tendency to adopt too much
that was Canaanite, is the lament of their best teachers. These also
protested against much that was Israelite custom. But it is not certain
that these protests were always against what had been Canaanite. It may
sometimes have been more primitive custom, properly more Israelite. For,
at any rate, regarded from the point of civilization, we must admit that
the Canaanites were more advanced.

It might now be supposed that the differences of opinion which have been
called forth by comparisons of the Hebrew and Babylonian legislations
resolve themselves into this: that one opinion emphasizes the
independence, the other dwells upon the influence. That is partly true,
but does not cover all the divergence. For when similarities are
accounted for by a common Semitic origin, or an _Urgesetz_, or as the
natural outcome of human intellect acting similarly in similar
circumstances, not all the factors of the problem are taken into
account. These might be adequate solutions if Israel had been separated
from all other Semitic races and entered an empty Canaan. They might
even account for the similarities, such as they are, between the laws of
the Babylonians and the Aztecs. Men everywhere do reach the invention of
pottery, but man anywhere will use the pot he finds ready made.

What these contentions leave out of account is the existence of
ready-made laws. This cannot be denied. The Canaanites were there, by
all admitted. They must have had laws and customs. No one surely denies
that. What proof could ever be produced that Israel did not adopt such
as were convenient? In the selections and rejections which the
Israelites made they showed whatever independence we may give them
credit for. That they could have invented the same themselves, or
obtained them elsewhere, is perfectly irrelevant. To assert that they
did invent them, not adopt them, is to describe the same fact in
different words. It looks very like perversity. We may pretend to have
invented something exactly like what some one else has done before, but
the Patent Laws usually prevent our getting much profit out of it. Even
when we introduce judicious little variations there is sometimes
astonishing reluctance to credit us with the inventiveness which we feel
to be our own.

Some writers have boldly gone to the root of the matter and minimized
the extent to which Canaan was influenced by Babylonia. This is
perfectly legitimate. We cannot be too cautious how we use the facts of
history. Eastern lands show to-day that the tide of conquest may roll
over them and leave little trace behind. Egypt was influential in
Palestine once, but there is not much trace of its influence in Canaan.
This, however, is not entirely absent. Explorations in Palestine do
exhibit considerable traces of Egyptian influence in some directions.
What traces of Israelite influence are there to compare with it? Here,
however, the question is being taken into a totally irrelevant field.

The Canaanites adopted exactly what suited them, they submitted to what
was imposed, just so long as they were obliged. That they adopted all
the Babylonian laws is absurd to suppose. Just as absurd as to suppose
that under Israelite rule, they adopted all Israelite law or custom. If
they had, there would then be nothing left for Israel to select or
reject. Let us give them credit for some independence even when
conquered. Their law was a Canaanite version of Babylonian or Israelite
law, in any case. If they had it written down in cuneiform even, it was
probably translated into Canaanite. Some would maintain that that was
Hebrew. At any rate, what we know of it is very similar. But that they
could have escaped Babylonian influence on their laws is almost
inconceivable. What we know of the Laws of Moses either proves that they
were, in some cases, practically the same as Babylonian, or else shows
direct Babylonian influence. We may turn this evidence the other way and
say that the Code of Hammurabi shows Canaanite influence, from what we
can see in it to be like the Laws of Moses. There are not lacking some
to call the dynasty of Hammurabi ‘Canaanite’. But the evidence rather
goes to show that what Hammurabi’s race contributed to his Code was more
like what Israel contributed to the Laws of Moses and not at all like
what a settled folk, such as the Canaanites, would contribute. We may
perhaps concede that the Canaanites were Semitic and of the same race as
those who conquered Babylon and founded Hammurabi’s Dynasty. At that
time they may have been nomads, as the Israelites were later when they
came into Canaan. But if, in Canaan, they retained a primitive type of
law and evolved a settled law or adopted it from some previous
inhabitants, so that their law also, like the Code of Hammurabi and the
Laws of Moses, was a blend of the two types; then we have no longer the
means to separate their particular blend from the other two.

It is of great importance to discern what was Canaanite law, and we
shall find some traces of it. But on the whole, we can only infer it by
separating from Israelite law what they are likely to have contributed
to it. It is not a very safe method, but we have no other yet. Some
contributions are made by the Tell-el-Amarna tablets. More may be
expected from fresh discoveries. There is another indirect method. The
laws of Phoenicia and Carthage may give some help. Even the Roman Laws
of the XII Tables may be of use. They do show surprising likenesses to
the Code of Hammurabi. How these laws could find their way from
Babylonia to Rome is not easy to imagine. Phoenicia may be thought of as
an intermediary. If this be tolerated as a solution, then we may assume
that where Babylon agrees with Rome, especially if Phoenicia can be
shown to agree also, it is probable that Canaan was also very similar.
If then Israel is the same as well we can hardly doubt whence the
original motive came.

There are possibly some indications that the Laws of Moses mark an
advance on the customs which ruled in the days of the Patriarchs. In
view of modern critical contentions that these stories of the Patriarchs
are a sort of reflection back into the past of what the later writers
felt would be appropriate to the time in which they set the eponymous
heroes of the old days, we may hesitate to regard such attributed
customs as trustworthy for a comparison. Nor is it beyond question
whether the Israelites ever obeyed the laws of Bedouin Arabs. But
assuming that on their entrance into Canaan the Israelites acquired
fresh customs, we may make some important reflections. Supposing there
was a change in law, can we detect it? If we can, what exactly does it
establish? Have we merely a change due to a change of habitat, or have
other factors to be taken into account?

Now we may question whether this change of law was due to the change in
habits from a nomadic life to a settled state, simply and solely. The
Israelites when they invaded Canaan found there an already settled
people, if we may believe their own account. There were cities and
houses and crops already there. From secular sources, such as the
Tell-el-Amarna tablets, we know that some time before the conquest there
was an advanced state of civilization in Canaan. We even know the names
of many kings and cities. What became of this settled population? It is
contrary to all analogy and to the Israelite tradition itself to suppose
that they were all exterminated. They were obviously possessed of a
higher civilization than their invaders, already, what the Israelites in
time became, a settled people. Can it be thought that they exerted no
influence on their conquerors? We cannot but expect that as the
Israelites became settled they would adopt the customs of the settled
population. We have it on record that their own teachers charged them
with doing this. Some of these customs must have been innocent enough,
and such as would be equally appropriate for Israelites when settled.
Others would be obnoxious to the racial prejudices, religious or social,
of the more conservative Israelites. There would naturally be conflict
in some cases between conflicting views of right. In some cases one view
would prevail, in others a different result would follow. Even
compromises are not inconceivable. To insist that all laws in Israel
were the product of the national genius, even if dignified by the name
of revelation, is to make a heavy demand on our credulity.

It seems then to be a reasonable working hypothesis that the Israelites
did at first succeed in impressing a primitive type of law on the land,
especially in those matters which were not entirely unsuited to both
peoples. This seems to be supported by the character of what is regarded
as the earliest law code in Israel. We at any rate may say that they
themselves regarded such as their laws. It would require strong proof
before we could admit that the surviving conquered people obeyed them
too. As the Israelites became a settled people they may have invented
fresh laws. It does require proof, however, that these were invented,
and not already the laws of the conquered race. Provided that they were
not too repugnant to the Hebrew genius it would be a step towards
unification to adopt existing laws. Proof must be overwhelming that they
were not adopted before we can think otherwise. The selective power to
adopt or reject, to modify and concede, completely guards independence.
On the other hand, unless we can prove that there was no adoption at
all, we admit influence. Here the controversialists seem to have
confounded the issue. They either deny all influence in order to
maintain independence, or they destroy all independence by hardening
influence into origination. On either assumption Moses does not get
credit for much initiative.

Hitherto we have not considered the question whether the settled
Canaanites were governed by the Code of Hammurabi before the Israelites
came. Some have tried to make the whole controversy turn on this point.
It is difficult to see how an answer can be given to that question,
except by the discovery of a copy of the Code itself in a
pre-Israelitish city. If, on the other hand, we admit that the
civilization of Canaan was essentially Babylonian before the conquest,
we may suppose that it was governed by Babylonian laws, at any rate, to
a large extent. It is to be expected that there would be local
variations. Can we test such an hypothesis? We do now know what
Babylonian law was in the time of Hammurabi some five hundred years
before the conquest of Canaan. We do know that in Babylonia that law
remained practically unchanged for a thousand years longer. We must then
admit that if Babylonian law had sway in Canaan at all, it must have
been that of the Code to all intents and purposes. We thus have a linked
chain of hypotheses. If Canaanite civilization was once an offshoot of
Babylonian, and gradually asserted its influence over Hebrew
legislation, then we ought to find more and more likeness to the Code of
Hammurabi in Israelite law as time goes on. For that purpose we may
concede as much as the critics wish to claim for their arrangement of
successive codes in the Books of Moses before the Code was discovered.
The later the law is, according to them, the more likely will it be on
our hypothesis to resemble the Code. We assume that the Canaanite
element in the nation held on to their old law, while submitting to the
innovations introduced by the invaders. If the other proposition holds
true, either this was the fact, or the particular law, instead of being
late, must be redated before Canaanite conservatism was overcome.

We may now state the broad principle to be tested. The more primitive
laws in the Mosaic Codes are properly Israelite, and an inheritance from
old nomadic custom. The more advanced laws are due to gradually
assimilated Canaanite sources. These should show, if not identity, at
least affinity with the Code of Hammurabi. If they do not, we have
several alternative views to weigh. Either the law of Hammurabi did not
continue to bear sway in Canaan, or it never did on that point, or the
law is a new creation. The mere fact that a given, late, non-primitive
law in Israel is not found in the Code of Hammurabi proves nothing as to
the origin of any unconnected law. We have to do with a long chain, of
which we can only compare the two ends. What happened between we do not
know.

We may do well to clear out of the way some obstacles that might at
least distract attention. An apparently strong point has been made
against any connexion between the legislations on the score of
philology. It is said that while the names of the things dealt with are
the same, the technical terms are different. Thus, while the words for
silver and gold, sheep and oxen, fields and houses are the same, those
for rulers, for laws and customs are different. This is partly an
argument from silence, partly an ignoration of facts. It is true that
‘to marry’, in Babylonian, is _aḫâzu_, and in Hebrew
_lāḳāh_; but in Assyrian it is _laḳû_. Now we may reply that
the Assyrian shows that it was once _laḳû_ in Babylonian also. The
connexion for which we contend does not demand transliteration, but
translation. What would be thought of any student of mediaeval history
who denied the influence of Roman law on English because Latin words
were not used? If this be the test, the Tell-el-Amarna tablets show much
stronger Babylonian influence than we contend for. Practically the whole
of their vocabulary is Babylonian. They also show that the writers had
words of their own, Semitic, if not Hebrew, which they glossed by
Babylonian. Some think the Israelites learnt their Hebrew in Canaan. If
the Canaanites were speaking Hebrew and had Babylonian laws, the
translating into Hebrew was done before the conquest. The fact is that
the whole philological argument breaks down unless we can show that the
words compared are the only words in use with the same meaning. The
lexicons do not on the whole afford a sufficient source for the
comparison. They embody little of the vocabulary of the legal documents
or contracts.

Of much more cogency than the agreement of separate items would be a
similarity of order in the arrangement of the common matter. PROFESSOR
D. H. MÜLLER has found some interesting examples of this in comparing
the Code with the Twelve Tables. This leads him and others to suspect
an Oriental influence on early Roman Law. That must remain little more
than a suspicion unless we can indicate the route by which such
influence could come in. In the case of Israel the problem is to show
how it could be kept out.

A comparison of the Code with the Laws of Moses from this point of view
is greatly hampered by the fact that the latter are not in any
particular order. If we follow the critical division of the material we
find that we are left with a variety of legislations of very different
dates and qualities well shown in _The Hexateuch_, or in articles in
_Dict. Bible_. It will hardly be claimed for any one of these that we
have it still in a completely preserved form. If so, then the intention
must have been to leave a great deal to the action of the well-known
customary law.

This solution, however, is not to be rejected off-hand. For the Code of
Hammurabi does not deal expressly with all cases: it omits murder. Hence
we must not insist that any Israelite code either, when first
promulgated, covered all cases of crime and misdemeanour. There is,
however, good ground for saying that each Israelite legislation included
some things which are now omitted from the Books of Moses. If this be
denied, then we must account for the very incomplete nature of these
codes. We may do so thus. It was only to be expected that a new
legislation would deal chiefly with cases that had not hitherto been
decided, or on which old law had grown obsolete, or where conflicting
views of right had come to be held. If, then, we can regard any
Israelite code, as now known to us, as being on the whole preserved in
its original order, even though other portions have been suppressed or
abrogated, we may compare the order of its clauses with those of the
Code of Hammurabi. We need not take account of the suspicions which will
now be thrown on that order by critics, unless they were expressed
before the Code of Hammurabi was known. And on the whole case we may
plead with respect to any Israelite code, that either it once covered
much more than it does, as we know it now, or that its incompleteness is
due to the existence of well-established custom on the omitted points,
and that it simply enacted changes.

As a result of the intensive work done on the Code of Hammurabi itself
by the many scholars who have devoted their study to it, we now
understand it far better than before. It would be invidious to attempt
to assign each step to its own author, and I expressly disclaim any
originality for views that I may have held long before some one else
published them, but it may add to the confidence with which my readers
follow me, if they remember that nearly everything has been
independently reached by two students at least. My chief desire,
however, is to make my views clear, and to state my reasons as
intelligibly as may be.

I propose to deal first with the external features of the Code of
Hammurabi, dwelling chiefly on those that are useful for a comparison
with the Israelite legislation. Then, secondly, I will point out briefly
the types of likeness between the Babylonian and Hebrew laws, and the
associated contrasts. Then I will venture to discuss in my way and
attempt to estimate the extent of dependence, if any. But I cannot claim
to have said the last word on any point raised here. We are still at the
mercy of future discovery. Let us hope it will be merciful to some
theories, at any rate.




THE RELATIONS BETWEEN THE LAWS OF BABYLONIA AND THE LAWS OF THE HEBREW
PEOPLES




LECTURE I


The discovery of the principal record of the system of enactments now
known by the name of the Code of Hammurabi was made in December 1901 and
January 1902.

At Susa, the ancient Persepolis, named ‘Shushan the Palace’ in the Book
of Daniel, situated in Persia, once the ancient capital of Elam, the
excavators, working under the direction of J. de Morgan for the French
Ministry of Instruction, found three large pieces of black diorite,
which when fitted together formed a monolith stela, about 2·25 metres
high, tapering upwards from 1·9 to 1·65 metres. The stone itself is in
the Louvre Museum in Paris, but a beautiful reproduction of it stands in
the Babylonian Room of the British Museum.

At the top of the stela is engraved in low bas-relief a representation
of Hammurabi himself receiving his laws from a seated god, usually taken
to be the sun-god Shamash, who was regarded in Babylonia as the supreme
judge of gods and men, whose children or attendants were Mishâru and
Kittu or Rectitude and Right.

Below this scene begins the inscription, written in Semitic Babylonian,
then called Akkadian, and arranged in parallel narrow columns. These
columns were read from left to right and downward precisely like those
of a modern newspaper, but each column goes across the stela like a
belt. Consequently a reader must turn his head on one side to read the
inscription.

On the front of the stela sixteen columns are preserved, and traces of
five more which have been intentionally erased. Analogy with similar
cases among the many Babylonian monuments found at Susa, on which the
original inscription has been partly cut out to make way for the name
and titles of Shutruk-nakhunde the king of Elam who had carried them off
as trophies of his conquests in Babylonia, suggests that a like purpose
was entertained with respect to this stela but only partly carried out.
Unfortunately a break in the text of the Code is thus caused which our
other records have only partly enabled us to restore.

The back of the stela completely preserves twenty-eight columns, except
where a few natural faults in the stone obscure the characters. The
whole inscription may be estimated as having once contained forty-nine
columns, four thousand lines, and about eight thousand words.

The characters are of an archaic type, much fancied by the kings of the
First Dynasty of Babylon, of whom Hammurabi was the sixth in succession,
and paralleled by other inscriptions of his. Thus, apart from his own
words, we can date it as a contemporary record of the text. It was
undoubtedly engraved on the stone by a stone-cutter working from a copy
of the text written on clay in the cursive script of the period. This
accounts for one or two scribal errors, which are, however, easily
detected and readily corrected.

Fragments of duplicates were also found at Susa, showing that the text
was executed in several copies, probably to be set up in different
cities. At least one fragment of a contemporary copy written on clay was
found at Nippur, showing that the text was also circulated in writing at
the time of its promulgation.

There are fragments of several copies preserved in the British Museum,
made for the Library of Ashurbanipal, king of Assyria 668-626 B.C. These
are in Assyrian script and show some variants which are useful as
synonymous renderings. From their phraseology, however, DR. BR.
MEISSNER, who first published most of them, concluded that they were
early Babylonian laws,[7] while PROFESSOR FRIEDRICH DELITZSCH, who
commented upon them, named them the Code of Hammurabi.[8] Further, a
late Babylonian copy exists at Berlin, and was published by DR. F. E.
PEISER.[9]

These late copies show that the inscription was edited in a series of
tablets or ‘Books’ called _Ninu Anum tsirum_, from the first words of
the text, just as Genesis was called Bereshith from its first word or
other books of the Old Testament were named in the same way. Another
series was called _Dinâni sha Hammurabi_, from the first words of the
Epilogue or closing portion of the text. From these editions we may
conclude that the Code was known and studied both in Assyria and
Babylonia at least as late as the seventh century B.C. Whether any
monumental stela with this inscription survived so long after the Susa
examples had been carried off is not yet certain. But these editions are
of extreme value as indications that a knowledge of the provisions of
the Code existed so long and was preserved so accurately.

We may note that there is a very great advantage for students of this
ancient body of law in the fact that beside a long tradition accurately
preserved we have a practically complete autograph of the Code as
originally promulgated. There can be no suspicion of overwriting,
interpolation or gloss, no tendency-redaction, no revision in the
interests of any party, priestly or political. We have no need to seek
for any conjectural restoration, except for a few erased clauses or
defaced characters. We have no call to split up the text[10] into strata
as embodying older laws, though we know such earlier codes had existed
perhaps a thousand years before. A comparison with such fragments of
earlier law as we possess shows indeed much change if not always
progress in that period, and marks on the whole a great advance in
civilization.

It is a task still reserved for the students of Babylonian law to make
careful researches into the growth of social institutions and the
development of legal conceptions which led up to this Code. It will
prove a most instructive study if pursued apart from the presumptions
deduced from other and unrelated areas which now form a body of dogmatic
prejudice from which many scholars seem unable to emancipate their
thought. We must, however, start our investigations at a point where the
Code has already arrived, when it must be treated as the principal
landmark in the long history of law in Babylonia. Whatever may be our
view as to what should have been the evolution of law before that date
we must be careful to remember what that evolution produced.

The date of the Code, as shown by the prologue with which the text
begins, fell in the reign[11] of the great king Hammurabi, sixth king of
the First Dynasty of Babylon, whose call to the throne, successful wars,
and great benefits to his people, it sets out with magniloquent
phraseology. The list of his achievements thus given further enables us
to fix the year of its redaction as after the fortieth year of the
reign. This may, however, be the date at which our existing monument was
erected rather than that at which the Code was first promulgated. As
this king only reigned forty-three years the date is very closely fixed.
We now know some prominent event for each year of this long reign, and
by means of other inscriptions of his we can make out a fairly complete
sketch of his times for which reference must be made to the many
excellent histories of Babylonia.[12] As is well known Hammurabi has
frequently been identified with Amraphel king of Shinar mentioned in the
fourteenth chapter of Genesis as having made war on his rebellious
subjects in and around the Dead Sea area. Amraphel is there associated
with Arioch king of Ellasar, usually identified with Rîm-Sin king of
Larsa, with Chedorlaomer king of Elam and Tidal king of ‘Nations’. The
same tradition made him contemporary with Abraham, ‘father of the
faithful and friend of God’, who is said to have migrated with his
family from Ur of the Chaldees to Haran, the chief city and commercial
capital of Mesopotamia, and thence into Palestine. It is interesting to
note that it is precisely with the period of Hammurabi that Hebrew
tradition elects to link up its early memories of origins. We might then
be naturally drawn to examine the native records of the Hammurabi reign,
including its laws, simply to gain a clearer idea of the circumstances
among which Abraham was born and grew up. But there are other reasons
for our effort to study the period. As a record of early law the Code of
Hammurabi is one of the most remarkable monuments of the history of the
human race. Treated as a legal document the peculiarities of the Code
are amazing. Doubtless an expert in comparative law could have
reconstructed a large part of the Babylonian law from the many thousands
of legal documents of all periods which have come down to us. To a very
remarkable extent this has been done, especially by PROFESSOR KOHLER,
assisted or followed by PROFESSOR PEISER, PROFESSOR MEISSNER, PROFESSOR
SCHORR, PROFESSOR UNGNAD and a score more who have taken up special
points.[13] My article on Babylonian Law in the _Encyclopaedia
Britannica_ will give some idea of this work.

But while abundant evidence was available as to commercial matters, such
as the disposal of estates and other property by sale or exchange, or
their assignment by hire, lease, or hypothec, the laws of deposit and
warehousing, commenda or commission, agency, security, pledge, warranty,
the laws of partnership, rules as to debt and interest, loans with or
without security, the family laws relating to marriage, divorce,
adoption, inheritance, maintenance, &c., and many other points were made
out with great clearness, yet much remained obscure.

For the legal documents, deeds, contracts, or the like, while doubtless
absolutely clear to the contemporary parties concerned and evidently the
outcome of long-established legal practice, assumed much that could only
be conjectured from their slight hints. In my article on Babylonian Law
and in _Babylonian and Assyrian Laws, Contracts and Letters_ I gathered
up most of what was then known.

Especially was our knowledge defective in the matter of criminal law. We
had plenty of legal decisions, but they too often merely recorded the
award of the court, and even where the case in dispute was stated, the
suit was nearly always about property. We had little or no information
about such questions as murder, manslaughter, theft, adultery, assault,
and the like. The Code, with its full criminal sections, was thus doubly
welcome.

The state of society revealed, and its laws, are most remarkable. The
tribal system has disappeared. The city states with their local customs
are being welded into a unity. There is still local government and
district responsibility, but the king’s judges are over the local
elders, and there is appeal to higher courts, ultimately to the king
himself. The family is the unit, with great measure of family solidarity
and complete indefeasible right over family estate, devolving its rights
to individuals as they form new family units, but retaining rights of
reversion amounting to a strict entail.

There is a settled population, engaged in agriculture and pastoral
pursuits, yet with many industries in the hands of guilds of artisans,
recruited by adoption and apprenticeship, but largely hereditary in
families. There is a highly organized system of military service and the
_corvée_ or press-gang for public works, with a feudal tenure, alongside
tenure on payment of tithes and temple dues, and the metayer system by
which the landlord found cattle, agricultural implements and seed for
culture of the fields. Estates bore permanent responsibilities which
went with the land to furnish military service, produce, supplies, &c.,
to the state. Other estates were held of the king, on rent or tribute,
the usual lot of conquered territory. There was a numerous and wealthy
body of merchants who were also bankers or money-lenders and much
controlled by the Code, especially in the interest of the poorer
debtors. They were also afforded state protection and their canvassers
carried trade far and wide to every quarter. There was a highly
developed and rapid postal or messenger system, of which many beside the
king availed themselves.

The land was full of populous towns with fixed areas of dependent
villages, remnants of the old city states, now conterminous over the
whole kingdom; counties we might call them, parishes and boroughs. There
were still traces of borough law, but the Code was supreme and the
king’s justice ran everywhere. Temples, mansions, farms, plantations,
common pasture, feudal estates, existed alongside private ownership in
land.

The state of society bears surprising likenesses to that of Europe in
the Middle Ages.

The law itself is no less advanced. Justice has replaced vengeance.
Self-help is restrained, if not suppressed; wrong must be redressed at
law. There is full protection for the weak, the widows and orphans, as
the lawgiver himself points out with pride. Women are placed in a
position of freedom and independence of their husbands, such as they
have only enjoyed in our land since the Married Women’s Property Acts.
Education was at such a high pitch that Hammurabi assumes that every
injured person would come and read for himself the laws that applied to
his own case, or at least find a neighbour who could do so.

The nature of the legislation is no less surprising from a comparative
point of view.

In many respects we find the most extraordinary medley of ancient and
modern laws. To take but one or two examples. A belief in witchcraft is
not avowed, but recognized as demanding regulation; while purgation of
the charge is referred to ordeal by water, such as lingered on so long
in Europe.

The extraordinary confidence in the power of the oath to secure truthful
witness is remarkable; but has not died out of our law courts yet. The
purgation by oath is in the Saxon form, and applies not only to things
solely within the knowledge of the accused, as loss of entrusted goods,
but also to manslaughter.

In connexion with feudal tenure we find precisely common-law dower, the
right of a tenant in fee-simple or entail to the enjoyment for her life
of a third of the undevised lands of her husband which he held in that
possession. An attentive examination of the tenure of a Babylonian
retainer of the king, who held land on military service, or other royal
service including public works, subject to strict entail unless
forfeited by failure to carry out commands, will reveal strange
likenesses to the feudal system.

The Romans have usually been regarded as inventing the institution of
the will, as Sir Henry Maine pointed out, which has played so great a
part in modern society, but like the contract, we have it in the Code
and contemporary practice in no merely rudimentary form. True that in
the Code the only case considered is where the will operates within the
family, but other cases seem to occur in practice. We find that a man
can assign even land, garden, or house by a sealed and witnessed deed to
a favourite child, and if so, when his estate is divided by his children
at his death, they cannot claim it as part of the estate to be divided;
the favoured child takes equal share with them in the estate left beside
his own special legacy. The husband too could leave property to his
wife, and she could devise it as she chose, but only to her children by
him; not to her own family, nor children by a later husband. If a father
vowed his daughter to religion, he could, by sealed and witnessed deed,
give her specific freedom of testamentary disposition of what she
received from her father as a marriage portion on taking her vows. She
had a right to a marriage portion any way, which was in lieu of a share
of her father’s estate. If she took it on marriage it was her portion
for life, and was equal to what a son would take as a son’s share at
her father’s death, but if she died childless it reverted to her family.
On taking a vow, she would have the same portion as if married, but as
she would then die childless, unless her father gave her power to
dispose of it by will, her brothers or family would resume it.

The importance of status is a well-known characteristic of certain
ancient Codes, and is often commented upon as a feature of special
interest.

The Code recognizes three grades of society by dealing with them in
separate legislation. They are called the _amêlu_, the _mushkênu_, and
the _wardu_. Etymology, analogy with other society, and above all an
attentive consideration of their treatment in the Code have made their
meaning clear. But almost every attempt to translate these words has
failed to convey exactly the true position.

The _amêlu_ was evidently a man of the predominant class, the
aristocracy, probably men of the conquering race, Amorites and those
admitted by intermarriage, adoption, or other custom to the same status.
We may compare their position with that of the Normans in England.

In the Tell-el-Amarna tablets _amêlu_ is still used as an official
title, the word is akin to the early Arabic _’ulu_, _ulai_, and may be
rendered ‘noble’. In accordance with this usage, in Babylonia, the king
or his minister is often addressed in letters of the First Dynasty
Period, in courteous phrase as the _amêlu sha Marduk uballitsu_, or ‘the
_amêlu_ to whom may Marduk grant life’. The king was thus regarded as
the First Gentleman of Babylonia. Often _amêlu_ has to be rendered
‘official’. But even in Hammurabi’s time, it was extended like our words
Sir or Esquire to mark every person of position, not otherwise titled.
It was accorded to many professions, even to craftsmen and artisans; but
was as respectful as our Mr. Dean or Mr. Archdeacon, survivals of
Magister or Master. Even in the Code it might denote ‘a man’ simply, and
cover the second grade where the law recognized no difference of rank or
status. When the law says, ‘if a man accuse a man,’ it uses _amêlu_ for
‘man’. Hence we may render _amêlu_ by ‘gentleman’ when he is contrasted
with other grades, but ‘man’ simply when no reference to grade is
contemplated.

When on military service, the _amêlu_ was an ‘officer’, having under him
smaller or greater bands of commoners, slaves, or tributaries.

He was often a person of wealth, as well as position and birth, but
might be poor, through misfortune, debt, or misconduct. For the most
part he was of the Amorite stock, though so many bear genuine old
Semitic Babylonian names that we may assume that old families of wealth
and position from among the conquered had been admitted to the ranks of
the _amêlu_, doubtless through intermarriage. The _amêlu_ dwelt often in
a mansion or palace, literally great house, _êkallu_, the Hebrew
_hekal_. Such palaces are mentioned as being built for men who certainly
were not kings, nor even princes of royal stock. Hence, we may observe
in passing, the slave of the palace (§§ 175-6) is not necessarily ‘slave
of the king’. The city governor usually had his palace or mansion.

We may conveniently render _amêlu_ by ‘patrician’; and even without
implying all that that term would mean in ancient Rome, we see traces of
a close analogy in the way in which foreigners attached themselves to
the family of the _amêlu_ to obtain privileges of citizenship.

The class which has given most trouble to realize was called the
_mushkênu_. PROFESSOR SCHEIL, followed by DARESTE, _Journal des Savans_,
rendered the ideographic signs used in the Code, MASH-EN-KAK, by
‘noble’, not recognizing the Babylonian rendering first pointed out in
print by PROFESSOR ZIMMERN[14] as _mushkênu_, but already known to me
and underlying my first translations. The word _mushkênu_ passed into
Hebrew as _miskên_, and later into modern languages—Italian _meschino_,
_meschinello_, Portuguese _mesquinho_, French _mesquin_—naturally, with
modifications of meaning. Its derivation suggests the meaning of
‘suppliant’, from _kânu_, ‘to bow,’ and points to a position of
inferiority, if not dependence. It had already been recognized that he
was less fined for misdeeds, which evidently suggested the rendering
‘noble’. But as it turns out, Hammurabi was more severe in his
punishment of the aristocracy than of the poorer or inferior class. On
the other hand, while the proud patrician insisted on exact retaliation
for his injuries, ‘eye for eye’, ‘tooth for tooth’, ‘limb for limb’, the
_mushkênu’s_ injuries were assessed for pecuniary compensation. He was
expected to accept a less primitive award, pointing to a more civilized
state. The difference in treatment suggests difference of race. They may
well have been the subject race, common people without rights of
citizenship. There was a quarter in Sippara, the _mushkênutu_, where
this people dwelt apart from the houses, with their gardens and broad
streets, occupied by the patricians. This also points in the same
direction. We know that the guilds each occupied its own quarter, as in
many mediaeval cities, but these had already won, or never lost, the
right to rank as _amêlu_.

The _mushkênu_ was not necessarily poor, for (§ 15) he had slaves and
goods. The earliest copy of the Code sometimes gives _amêlu_ where the
later reads _mushkênu_. MÜLLER had called him an _Armenstiftler_, but
there is no trace of his receiving a pension. KOHLER, PEISER, and UNGNAD
call him _Ministerial_, but adduce no evidence that he had any special
relation to government or clergy. HOMMEL thought him a dependant of the
priests, comparing the Hebrew Cohen.

The word, as MR. COMBE has shown in _Babyloniaca_,[15] is found in
Arabic—_masâkîn_, used of those who are not _sâdèh_ (plural _sayyid_)
descendants of the Prophet; nor _mashayikh_, ‘nobles’, affiliated to the
family of the Prophet; nor _gabâyil_, ‘secular nobles’; but including
the ‘labourers’, ‘workers’, ‘merchants’, ‘schoolmasters’, ‘sycophants’,
and ‘mendicants’. They are unable to carry arms, have no organization,
and are entirely under the domination of the nobles. They cannot in any
case change their condition. This seems to have been their exact
position in ancient Babylonia also, at any rate in somewhat later times.

The _mushkênu_ may have descended to a lower position in Babylon, for
the phrase, _ana mushkênûti alâku_, meant ‘to go to misery’, ‘to be
ruined’. We may even note steps in this degradation. In the
Tell-el-Amarna tablets, Amenophis king of Egypt answers the letter of
Kadashman-Ellil, the Kassite king of Babylon, who had inquired after his
daughter the princess Tsukhartu, one of the Egyptian king’s matrimonial
alliances. The Babylonian king says that Amenophis had had his sister to
wife, but no messenger of his had ever been able to converse with that
princess, or to know whether she was alive or dead. They had indeed seen
a certain lady, but whether she was the daughter of some _mushkênu_ they
could not tell. They hardly suspected her of being a poor man’s
daughter, only of being a ‘commoner’. So too, in the days when Babylonia
was subject to Assyria, the Babylonians complained that they were being
treated as _mushkênu_, not surely as poor men merely, for the obvious
answer would be to increase their taxes, but as inferiors subject to
indignities.

At any rate, in Hammurabi’s Code they are free and possess moderate
means, but are inferior persons to the _amêlu_, yet superior to the
slave.

We see that these poor men fell later into still more abject conditions.
In the later texts it is usually their weakness, helplessness, and
poverty that is dwelt upon.[16]

Hence my first rendering was ‘poor-man’, but later I preferred to use
‘plebeian’, to which view most scholars have now come round.

The slave, _wardu_, was often spoken of as ‘a head’, as if he were a
chattel, or a mere animal. He was perpetually changing hands, being sold
or pledged (§§ 118, 147). Any damage done to him had to be paid for, but
the compensation went to his master (§§ 213, 214, 219, 220). If he
repudiated his master’s rights to his service, he was punished by
mutilation. It appears that his master had no power to kill him, but he
could brand him and put fetters on him. Yet the slave could acquire
wealth and often acted in business as a free man, but his master had
control of his actions and took a share of his profits. If he was living
in his master’s house, he could not buy or sell except by written
authority from his master (§ 7). Many slaves, however, married and had
homes of their own. The master might act as patron and recover debts for
them. Presumably they could not plead in Court, though they were called
on to bear witness.

A slave, who married one of his master’s slave girls, or for whom, as
often was the case, a master bought a slave girl to be wife, was usually
provided with a house to live in and often with furniture, such as would
not disgrace a freeman’s home. Here he lived as a simple poor worker.
His master usually respected his rights, fed him and clothed him in
return for his service and treated him as a poor subject brother. When
the master thus set up a slave for life, with wife, house, and home, he
often laid it down that the slave should clothe and feed himself
henceforth, and specified the extent of service which he would demand.
Clearly such was a very modified slavery. Slaves do not seem to have
often been retained living in the house long after they grew up to
manhood. On the other hand, slave girls and women were kept in the
master’s house. A master often made a slave girl mother of his children.
But if so, these children were not born to slavery, but if acknowledged
became legitimate heirs to the master’s estate, and if not, were at
least free, and the slave mother was freed when the master died. There
is no suggestion that a Babylonian master claimed any rights over the
slave wife of his slave, beyond some share in such work as weaving and
perhaps a few household duties.

The slave who lived in his own house, if active and industrious, might
soon acquire wealth, or he might inherit it from relatives. Hence, he
might aspire to marry a free woman. In that case, if he remained a
slave, his master took one half his property at death and the other half
went to his free wife and her children who also were free. Such a free
wife of one who was still a slave might bring her marriage portion,
inherit property, &c. In fact she forfeited none of the rights of a
free woman by marrying a slave man. Doubtless, in many cases a master
preferred his slave marrying a free woman to having to purchase a slave
girl for him. He had to weigh the reversion of one half his slave’s
acquired property against the value of a family of born slaves, who of
course had to be fed and clothed till they were of value for sale or
service. The humane Babylonians were strongly averse to separating a
slave mother from her children and they were usually sold in families.

The slave who did acquire wealth often bought his own freedom. The
master had to balance the value to him of the ransom paid against the
reversion of his entire property at his death. In such a case, of
course, the master fixed the price he would accept as a ransom. The
slave, however, if married to a slave wife would have to buy her freedom
also, and buy each of his slave children if he had any. The prudent
slave, therefore, married a free woman. The slave who thus acquired
freedom, if a foreigner, might return to his own land, or join the ranks
of the poor men who were free. He would thus become a _mushkênu_. This
and similar considerations have led several scholars to translate
_mushkênu_ by ‘freedman’. But a freedman is not necessarily a slave who
has bought his freedom, but solely one who has been freed. The
distinction is essential because slaves were often freed for other
reasons.

A large number of slaves were freed by adoption into the ranks of the
_amêlu_. A Babylonian father usually portioned off his sons and
daughters on their marriage. The sons, later, at his death, also shared
what he had left. Daughters had no further share. As long as the father
lived, if he fell into poverty or weak health his sons and daughters
naturally were supposed to maintain and care for him. But they might
agree that he should adopt a new son or daughter, to whom he would leave
his residual estate, in return for maintenance and care as long as he
lived. We have spoken of a father, but _mutatis mutandis_ a mother could
do likewise. Some scholars think that most of the cases of adoption
known to us are examples of a father adopting his natural sons by slave
girls. But the adoption is usually accompanied by a ceremony of
purification, symbolizing the emancipation from the taint of slavery.
This would not be necessary in the case of a natural son of a patrician
father. He was free any way at his father’s death, even if not
acknowledged as heir. Now in all these cases of adoption of a child to
care for one’s old age, we can presume that the adoptive parent is
childless, as in the frequent cases of adoption by votaries, or else
bereft of children by agreement with the grown-up family, who willingly
resigned their reversion to the parent’s estate in exchange for freedom
from the care of their aged parent. In some cases, the adoptive parents,
hitherto childless, adopt a child with the proviso that if hereafter
they do have begotten children, the present adopted one should rank as
eldest son or daughter of the family. Many children were also adopted
with the consent of their real parents, who were usually paid. This in
some respects was a sale by free parents of their children. They had the
right to sell a child to be a slave, but this was a sale to be son or
daughter in freedom and was often a wise provision for that child’s
future on the part of needy parents.

The distinctive character of the slave is that he is fatherless by
status. It is usual in legal documents to name the father and often the
grandfather of the free contracting parties, the witnesses, judges,
scribes, &c. No slave, unless we reckon as such a freeman temporarily
reduced to slavery, is ever given as son of So-and-so. In fact, ‘the
sons of fathers’, _mâr banûtu_, such as were the _amêlu_ and _mushkênu_,
are very clearly men of birth. Their birth, marriage, and death were
registered and recorded, so that it was easy to trace family descent for
many generations. Enough documents are still preserved to us to compile
some family trees for a hundred years or more. But a slave was without
family. He was even forbidden in some cases to inquire into his real
descent. The family honour was very strictly guarded.

But though occupying so low a grade of society, we have seen that slaves
could rise not only to freedom but become adopted into the patrician
ranks. This privilege might be forfeited and the slave might be again
enslaved without hope of emancipation. There was a mark of the slave
which was put upon him by a _gallabu_, the barber and surgeon. Some
maintain that this mark was a shaving of the head or forelock in a
peculiar way. The slave would thus betray his condition, much as a
convict does. But this would be soon outgrown and the slave mark was
sometimes an irradicable mark; it is referred to as on the arm, and the
surgeon could remove it. So some rather think of a tattooed mark. A
barber might be induced by a fraudulent possessor of a slave to remove
his old slave mark, but if he could be shown to have done this wittingly
he lost his hands. If he could prove his innocence of collusion he was
released on oath, but the fraudulent owner was treated as a
slave-stealer and put to death. If a slave ran away and was caught, his
captor was bound to carry him back to his owner, and was then rewarded
by statute with a payment of two shekels (§ 17). If the captor kept him
hidden in his own house and did not give him to the town crier he was
treated as a slave-stealer and put to death (§ 15). If the slave broke
away from his captor, the latter had to swear to his non-complicity in
the escape and was then free of blame. The slave was not kept in
confinement as a rule; he might freely go about the city, and was
usually completely trusted to do errands, but he could not leave the
city without his master’s consent. If a fugitive slave was captured and
would not name his master, he was to be taken to the palace or
governor’s house and there put to the question, and if possible restored
to his owner. If such could not be found, the slave was added to the
public slaves, available for the _corvée_. Harbouring a fugitive slave
was punished with death. The slave when recovered by his master might be
put in chains.

The slave ranks were recruited principally by captives taken in war. But
there was regular slave trading. A great many slaves were bought of
dealers. After a great battle many prisoners were sold publicly. It is
interesting to note that the Code contemplates slave dealers often
offering for sale in Babylonia slaves whom they had bought abroad. Such
might include slaves captured, stolen, or fled from Babylonia, and even
Babylonians themselves. If a Babylonian recognized his lost slave
offered for sale the law insisted that the dealer should take just what
he had paid for the slave abroad. He had to state this price on oath. On
the other hand, a Babylonian captive bought abroad and offered for sale
in Babylonia was to be set free. So a slave merchant made no profit on
any one who had once been in Babylonia before, scarcely an encouragement
to rescue Babylonians by buying them in foreign lands. But the slave
dealer was sure of his price for both. For the feudal tenant who had to
perform military service, and therefore was most likely to be captured
abroad, was to be ransomed whenever possible by his own family, if not
by the local treasury, the temple; if that was too impoverished, he
would be ransomed by the State (§ 32).

Of course, a very large part of Hammurabi’s Code, as may be expected,
deals with matters which primarily concerned the state of society in
Babylonia in his day. Much of this was quite unlike the state of society
for which the Laws of Moses were promulgated. Deeply interesting as such
sections are for the early history of human institutions, we must set
them aside if we are to confine our investigations within reasonable
limits. Suffice it now to repeat the opinion that the Code is one of the
most important documents ever recovered to elucidate ancient history.
For this contribution to knowledge the histories of Babylonia may be
consulted, for its contribution to the study of ancient law the works of
PROFESSOR KOHLER and PROFESSOR SCHORR, and their bibliographies are
most valuable.

It is, however, clear that the Code did not aim at legislating for
everything that could occur. It says nothing about murder. That was
evidently left to be dealt with by well-established custom. Only it
interferes to protect the man, who in a quarrel and evidently in danger
of his own life should strike a fatal blow. He was allowed to purge
himself by oath that he did not mean to kill. Further it passes sentence
of death on the wife who procures her husband’s death for love of
another man.

What the custom was with respect to deliberate premeditated murder we do
not yet know. But a late text quotes as an immemorial custom at Babylon
that not even a brigand could be put to death there without trial.

The Code is a digest of customary law, a set of confirmed and enacted
precedents. It is not properly a Code in the sense of the fully
systematized _Code civile_ of France or the German _Bürgerliches
Gesetzbuch_.




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.




LECTURE III


In the first and second lectures we have dwelt upon the external
features of the two codes of law to be compared, and pointed out some
things remarkably similar. We have now to consider the various theories
which have been propounded to account for them. The progress of the
discussion has shown that the higher critics are as eager as the
orthodox Jewish or Christian writers to repel the oft-repeated
assertions of dependence.

There are obviously many ways of treating the resemblances and
accounting for the differences, and some of them may, and probably will,
long be held which do not attempt to take account of more than a
selection of the facts. That theory will surely be finally accepted
which takes account of all the facts. Hasty dogmatism only succeeds in
imposing on the credulous public and provokes the resentment of those
whose judgement is alone worth considering. I should esteem it then a
real misfortune if anything I might say should lead any one to form a
conclusion based solely on what he considers to be my opinion. Therefore
I expressly warn you that I have not given you my opinion, nor do I
intend to do so. I desire solely to make you aware of the facts, and
invite you to form your own opinion.

Now the first thing to deal with is the general similarity of the Code
to the Book of the Covenant, considered as our best witness to the
primitive Hebrew law. It has been calculated that out of forty-five, or
possibly fifty-five judgements preserved in this old Hebrew law,
thirty-five have points of contact with the Hammurabi Code, and quite
half are parallel. Of course, there are also marked differences to be
accounted for. The Hebrew law appears to have legislated for a small
people, among whom human life was precious and property scanty. The
Babylonian law protects property with far severer penalty, and makes
little account of a criminal’s life. This is appropriate to a nation of
commercial instincts and a wealthy populous state. It recognizes grades
of wealth and position. The theft of an ox is punished by a five-fold
restoration in the Hebrew law, in the Babylonian by thirty times its
value, or in the plebeian’s case by a ten-fold penalty. We may estimate
the difference by saying that in the desert five oxen was about all a
man had, and his family would probably have to help him to pay, and so
the penalty was an effective restraint; while in Babylonia, thirty oxen
were to many men not more costly, and even the commoner was twice as
wealthy as an Israelite. It is, however, more likely that the penalties
were not calculated at all upon an estimate of what they meant to the
criminal, but on an artificial system of the value of numbers. For
example, in Israel, five may have been ideally complete. PROFESSOR D. H.
MÜLLER has most ingeniously worked out the possible significance of the
numbers.

It is not particularly profitable to insist upon the superior humanity
of either code. Impartial judges, acquainted with ancient codes, will
perceive that the balance between the rights of the individual and those
of the State is always very difficult to hold level. Severe penalties
may be due to the determination to suppress crime at any cost. The
desire to save the criminal from the results of his crime is not to be
expected of any early legislator. Only when his life was worth more to
the State than the loss he was likely to cause could the criminal hope
for pardon. As Hammurabi put it, the king might wish to save his
servant’s life.

Points of close agreement are numerous. The treatment of sorcery, the
law of deposit, the punishment of kidnapping, injury to a pregnant
woman, regulations as to shepherds, and a score more may be noted as
very similar. These are given in many books, very conveniently in
PROFESSOR S. R. DRIVER’s _Genesis_ in the _Cambridge Bible for Schools_.

Now on such a view of the general similarities many have expressed the
opinion that the Hebrew laws are a more or less revised adaptation of
the Babylonian law, perhaps as locally already modified in Canaan to
suit the prejudices of the invaders while they were changing their
habits of life and became a settled people. But this view is not vivid
enough for others. There is a certain delight which some feel in
propounding views calculated to shock some one. The cruder view that the
Hebrew lawgiver, call him Moses or some higher critical periphrasis for
the same thing, sat down with a cuneiform copy of the Code before him
and copied out the Babylonian laws with some adaptations, may have been
enunciated with some such amiable wish, but was too crude to disturb any
one. It is barely worth record. The differences between the Codes are
too important for us to adopt it. If he made a copy it was a very bad
copy. Some allowance for the difference in age must also be made. Such a
length of time as five hundred to a thousand years must have been marked
by great changes in Babylonia or in Canaan. The advent of the
Israelites must have introduced new forces into the life of Palestine.
Here we have to weigh carefully our evidence, which points on the whole
to the Israelite contribution being more primitive in type, and in some
degree a return to early conditions which held before the time of
Hammurabi in Babylonia. Dear as these changes were to the later Jewish
mind, they were not what we should call improvements.

But when merely considering such general resemblances, along with such
marked differences, we can readily see that a theory of common origin
will suffice to account for the likenesses; while many subordinate
theories can be put forward to account for the differences. Between the
theories of these differences it must be impossible to decide until we
know more accurately the exact circumstances of the Israelites at, or
soon after, their conquest of Canaan. We may, for example, have to
regard the conquest as extending over a long period and admitting of
many gradations of supremacy in different parts. It is not likely that a
clean sweep was made of the old inhabitants and their customs at any one
epoch or place. We may have to extend this period of conquest down to
the end of the time of the Judges. Parallels are not wanting in the
history of Babylonia. The so-called Amorites had been some centuries in
the land before Hammurabi’s supremacy, even before they appear as
founding a dynasty.

A favourite theory of the resemblances is that they are due to a common
Semitic origin. Let us examine that theory more closely. In support of
it we have to show that the common features are of a Semitic type. This
is more difficult than is generally supposed. When practically the only
pastoral nomads whose customs were at all well known to theologians were
the Arabs and, as usually assumed, the Israelites, many features were
put down as Semitic which are now recognized as rather due to the
exigencies of the nomadic life. The recognition of the Babylonians as a
type of settled Semites led by slow gradations to the admission of other
features as also Semitic, while some things hitherto only known among
Semites have been recognized as the common possession of many unrelated
folk. Gradually, and probably unconsciously, ‘common Semitic origin’ has
become a mere euphemism for ‘Babylonian’. For to what part of the
Semitic world can we look for so advanced a civilization as to be common
both to the Babylonian and Israelite law? It must be at least as
advanced as the things common to those laws and yet not presuppose a
state of society which could not be true of a Semitic people. It would
be interesting if we can find anywhere a clear sketch of what
conceivable state of society the common Semitic origin really implies.
It might then be argued that no such society ever existed. At present
all we can say is that we do not know where to find it. It is really
only a convenient term, like evolution, to conceal our ignorance of
history.

If it could be shown that just those features which are common to the
Hammurabi Code and the Israelite, and therefore presumably existed in
the common Semitic origin, are unlike anything in the Sumerian or
pre-Semitic laws of Babylonia, then the fact of a common Semitic origin
might have to be admitted without our being able to fix upon a locality
for it. In Babylonia a predominance of Semites, at least in the north,
may be dated, perhaps a thousand years before Hammurabi, under Sargon of
Akkad. But while we know of Sumerian Family Laws and have references to
legal reforms under the Sumerian Kings of Babylonia even in pre-Sargonic
times, we have not yet sufficient material from those early days to know
exactly how far Hammurabi’s Code was really an advance upon older
Sumerian law. Slowly but surely we are learning that precisely the same
legal forms were in use, long before Hammurabi, among the Sumerians of
the south. The legal documents of Hammurabi’s age are full of the old
Sumerian words and phrases, used just as dog-Latin or Norman-French was
in our deeds of early English times. We could not claim a common use of
Teutonic translations of Roman law terms in England and Germany, if such
existed, as proof of a common Teutonic origin for the laws. But the
Hammurabi Code is full of Semitic translations of Sumerian terms. This
would be quite fatal to the theory of common Semitic origin but for the
fact that the Sumerians had been conquered so long before by Sargon, and
we cannot yet clearly sift out what may have been due to his Semitic
followers from what may have been imposed on them by the subject
Sumerians. The conquest of Babylonia by Elam may have affected its laws
more than we think. The barbarous Elamite punishments survived in
Babylonia, in Mesopotamia, even in Israel, two thousand years or more.
But one can hardly argue much from that. The early history of Babylonian
law is still very obscure, and we can only state probabilities of more
or less cogency.

The Semitic origin seems afflicted by lack of cogency. One must respect
it for the attachment which certain estimable divines show to it. One
rather wonders whether Noah was a Semite as well as his eldest son, and
whether these laws really go back as early as Shem. Elam had claims to
be a Semite, and an early Semitic kingdom in Elam seems to have been
long predominant there. Was Elam the real common Semitic home both of
Amorites and Israelites? There was a district not far from the border of
Elam over which Kudur-Mabuk, the father of Rîm-Sin, once ruled, and
which was known as the land of the Amorites. Thence the First Dynasty of
Babylon may have come. Whether the ancestors of Abraham in Ur of the
Chaldees were once Amorites or earlier Elamites we cannot yet decide.
But with all these speculations scientific folk show small patience: for
they have another way of solving the problem.

It is most probable that some of the features which Hammurabi’s Code has
in common with the early Hebrew legislation are only slightly modified
from the still earlier codes which date from the time of earlier
Sumerian supremacy in Babylonia. Hence we should remember that a common
Semitic origin may really be only a step towards a reference of both to
an early Babylonian origin. At present we are not likely to find
evidences of early Semitic custom anywhere so early by some thousand
years as in Babylonia; and though we are quite justified in supposing
that Arab customs may be older still, as they certainly are more
primitive, we can never date them with certainty except when we can show
them to arise purely and simply out of local circumstances. Then we may
perhaps affirm that they must always have been the custom in Arabia and
treat them as a witness to early Semitic law. On this side of the
question Mr. S. A. COOK’s work is invaluable.

But the evolutionist or scientific man has a much easier solution. He
has made a comparison of laws among such foreign folk as are wholly
unconnected with Semites or Sumerians. It is found that all men
everywhere do hit upon much the same solution of the same social
problem. We may say that the likenesses we perceive between the Code of
Hammurabi and the Hebrew laws are due to the natural dictates of human
experience. If we take up the laws, one by one, which are common to the
two systems, we can account for almost all the likenesses in this way.
Some very remarkable similarities have been shown by PROFESSOR D. H.
MÜLLER to exist between the Code of Hammurabi and the Twelve Tables of
the Roman Law. PROFESSOR COHN, of Zürich, has pointed out strong
likenesses to the laws of the West Goths. On the other hand, DR. H.
GRIMME has pointed out some very close agreements between the Mosaic
Laws and an ancient Semitic Law of Bogos, which goes back before the
coming of the Amhara into Abyssinia. There are some likenesses even with
the old Indian laws of Manu, and even the laws of the Aztecs have been
compared. We could not expect much assent if we argued for a common
parentage of these widely scattered laws and their descent from the Code
of Hammurabi.

The scientific view is that the common laws are due to common human
experience, which is much the same everywhere. It is closely allied with
the doctrine of evolution as applied to human institutions. If we could
only assume that the nations developed each separately and
independently, without mutual intercourse, it might suffice. But for
ages before the institutions we are considering, both Babylonia and
Palestine had been the meeting-place of many peoples. We cannot tell by
any _a priori_ method which race introduced which custom. All we know is
that an improvement is often readily adopted by people from those with
whom they come in contact, even when not forced upon them by conquest.
But we also know that even superior usefulness or comfort is not always
sufficient to keep a custom alive. We now know that without much
apparent reason even an essential craft may die out. In fact, this
common humanity origin of common customs is very useful, like the theory
of evolution, to account for observed results when we have no knowledge
of what preceded them and can only guess at the previous history. One
can then, without fear of contradiction, assert what we consider most
likely to have led up to them as their antecedents. But these easy
explanations do not absolve us from careful research where history can
be produced to work upon. The evolution of human institutions, if such
be a legitimate expression to use, has many a set-back or reaction, and
we may very well at any time be comparing progress in one history with
reaction in another.

But while the evolutionary theory of human institutions may be appealed
to for satisfying our curiosity when no possible answer can be given by
history, there are things often to be observed which it does not well
account for, and then recourse to it is the reverse of scientific. An
illustration taken from the arts may help to clear our minds on this
point. It may be assumed that all men everywhere may be expected to hit
upon the device of burning clay vessels until they obtain some rude form
of pottery and then develop the potter’s art to some extent. We may call
this evolution. Not only can the making of pots and pans be adduced from
all parts of the globe, but truly astonishing resemblances can be
discovered between pottery from districts so remote that we cannot
believe there can ever have been communication between them. Here an
independent evolution has produced the same results in unconnected
areas. If that were all, the modern science of pottery evidence would be
impossible. We cannot afford time or space even to sketch here the
chief results of the intensive comparative study of pottery, which has
become so powerful a weapon in the hands of the modern archaeologist.
Not only the age of the stratum on which it was found, but even the
nationality of the maker, can frequently be asserted beyond reasonable
question. Every one must be familiar with such statements as that
Mycenaean pottery has been found on some site or other recently examined
in Greece, Asia Minor, or Palestine. We are led to suppose that there is
something distinctive about it which fixes its origin and age quite
unmistakably. Now this is not its special fitness for meeting a want
which could be met no other way, so that every people everywhere must
have produced Mycenaean pottery once they reached the compelling stage
of civilization which demanded it. It is some non-essential feature
which marks its distinction from all other than deliberate imitations of
it. It must be something that appeals to a taste which could only arise
after the thing itself had arisen. The admiration felt for Mycenaean
pottery would lead to a demand for it, and that might lead to imitation
of it, but no conceivable set of circumstances could have led men to
achieve it independently. If this could be conceded, the whole science
built on modern study of pottery comes to an end. The presence of such
pottery in Palestine does not indeed prove that any Mycenaean potter
ever visited the country, but that his wares were brought there, were
valued and in request. Further, the pottery came within fairly definite
limits of time.

Now it is this sort of non-essential, for the most part useless but
approved, characteristic which shows conscious imitation, adoption, or
adaptation, that proves influence, indebtedness, or copying. In this
case instanced, in the absence of all documentary evidence, by its
frequency of occurrence, by its adaptation to local circumstance or
other local appropriateness, we also fix the locality of its origin.
Conclusions of this kind are accepted as legitimate in most modern
researches into prehistoric times.

So if we could fasten upon just such a point in the Code of Hammurabi
which appears so artificial or arbitrary, so purely local in its
character that we cannot imagine it to have independently arisen
elsewhere, we could use it as a test case to decide whether the great
amount of common matter found in that Code and also the Laws of Moses
may be set down as due to common Semitic origin, or to common human
genius faced by similar needs. There is no question as to the relative
age of the codes to be compared; we know definitely which is older and
more original.

Let us then consider a case which, like the need for pottery, might
arise anywhere when men had reached the same stage of civilization. A
man has lent money to another, or its equivalent in goods. The debtor,
as is commonly the case among men, finds himself unable to repay the
loan, for he has consumed the goods and been unable to acquire what will
replace them. His labour is probably of some value; it should be worth
more than his keep; the surplus value, if he can find employment and
wages, should in time enable him to repay the debt. Now in his area
employment may be scarce, wages low; but at any rate he may offer to
work for his creditor. The custom of making such an offer, which differs
little from taking service for wages, except that the wage has already
been prepaid, may arise almost anywhere. It is probably universal
amongst civilized peoples. The creditor soon can count on it as his
right to demand his debtor’s labour to repay the loan. He probably
calculates upon it as his security when he lends, and, if prudent, lends
no more than he can reasonably expect to be repaid in this fashion.

Thus far common human experience and its dictates. As a responsible man
and the head of his family, the debtor, at least among the Semites, had
power over the labour of the other members of his family. There may be
peoples where this power does not exist, if so, the power may be called
a Semitic trait. But in both the Code of Hammurabi and the Book of the
Covenant we have some reason to suppose the debtor would have power to
offer not only his own labour but that of his wife, often the better
worker of the two, or that of a son or daughter, or of a slave, as well
as or instead of his own. Exactly how far his power over the members of
his own household extended may be set down, if we chose, as depending
upon Semitic custom, if we can show that this extent of power is common
to all Semites, at any rate in early times, and is not shared with
non-Semitic folk. The parallels in Roman law do show that it did not
remain exclusively Semitic, unless it be held that the Twelve Tables
were so influenced by Eastern civilization as to have derived this
feature ultimately from a Semitic source. It was probably Sumerian also,
but there we may perhaps derive it from an early Semitic source. At any
rate we do find it common to both Babylonia and Israel, whether they
derived it from a common source or obtained it independently.

Now how long shall the debtor or his hostage serve the creditor to pay
off the debt? The creditor might well say in the case of a slave, who in
practice was often taken as an antichretic pledge for a loan, his labour
being supposed to pay the interest on the loan without affecting the
capital, that he had a right to keep him always. Theoretically this was
true if the loan was about the value of the slave. It would practically
be accepting the slave as a payment of the loan. The value of a slave
was often very little in excess of the cost of keeping him, feeding,
clothing, and housing him. Indeed, he was even an anxiety after he
became adult. The owner usually did wisely in providing him with a
slave-girl for wife and so breeding a family of slaves, who after they
had been kept to adult age might be sold profitably. But even this was a
speculation, and at the best not a very profitable business. The
creditor who accepted the debtors slave as a hostage for debt usually
took the opportunity of a sale to pass him on. A slave-girl had other
uses than her work and was usually more saleable. Hence she was more
likely to be accepted and offered as a hostage.

The Code of Hammurabi here steps in with a remarkable set of
restrictions upon the freedom of action of the debtor and creditor. The
debtor cannot complain if the creditor sells the slave given him as
hostage. But if it is a slave-girl who has borne children to the debtor,
she cannot be sold. She may be pledged or given to work off a debt, but
not alienated by the creditor (§ 118).

If the debtor has handed over wife, son, or daughter as hostage, they
have to be treated as freemen still. They are not to forfeit freedom for
ever. The Code orders their release at the end of three years’ service.
It is a noteworthy interference with the above power of a man over his
family (§ 116), Semitic or not. In such cases as these there is no
account whatever taken of the amount of debt. It is an arbitrary
interference on the part of a lawgiver with commercial principles, or
selfish instinct, in favour of the weak against the strong. It seems
clearly to be an innovation, for though earlier kings had declared
amnesty from debt on special occasions, that was a more primitive
measure of pity and a generous use of other men’s money peculiarly
unfair to the soft-hearted lender. This was a bold, calculated move in
the direction of humane regulation. It had its risks of abuse, and if
Hammurabi had stopped there, he might have done more harm than good. For
he would have left it open to the hard-hearted creditor to try and exact
more work, the utmost farthing in fact, out of his temporary slave.
Accordingly he declared that if the hostage for debt died of blows or
want in the creditor’s house, the creditor should suffer the same family
bereavement as he had brought on the debtor by his cruelty, a regulation
which might lead the creditor’s family to moderate his exactions, or
forfeit the average price of the slave he killed by ill use, and, what
the creditor would feel most keenly of all, lose all further claim on
the debtor.

Now by such regulations Hammurabi set a very effective limit on two
markedly Oriental vices. Men love to gamble by borrowing for present
enjoyment on security of some contingent future wealth. They pledge
crops, land, houses, family with gleeful irresponsibility. But others
are avaricious and only too willing to lend on decent security or even
most speculative future profit. Hammurabi’s Amorites and Babylonians
were by no means above these abuses. He forbade speculation in crops,
&c., and by his regulations on these points put a very stringent
restraint on debt. The debtor’s powers of borrowing were greatly
narrowed. A prudent lender found himself checked by the consideration
that if the debtor did not pay he would never be able to reclaim more
than three years’ average work out of the debtor, his wife, son, or
daughter. He would have a shrewd guess at what these assets were worth.
So the lawgiver cut at the root of much of the misery which his
predecessors tried to redress by their slap-dash amnesty.

We do well to remember that a respectable, pious, poor man in Babylonia
could usually borrow from his local temple without interest, and that by
the Code agricultural loans could not be pressed if the crop failed.
Hence we see that most of the debts which Hammurabi made so difficult
must have been due to improvidence, laziness, or a weak use of the
facility to borrow offered by wealthy, lazy, and avaricious
money-lenders.

The Hebrew legislation on the subject is precisely similar save that the
term is six years. Whether three or six, the term is so absolutely
arbitrary that no possible explanation can be given to account for it.
It equally ignores the amount of debt, the value of the debtor’s work,
and the sacredness of contract. Had both legislations hit upon a three
years’ term, we might have racked our brains to find a reason why in the
world three years should have commended itself to both lawgivers. We
should have been tempted to think that these Semites had some sanctity
about the term which made it appropriate to select. At any rate we
should have wondered what a money-lender in Israel had done to deserve
to get twice as much work for his money as the Babylonian. Some might
even have been tempted to see early evidence of Jewish aptitude for
business. Others would doubtless begin to play with the importance of
the value seven to the Jewish mind. Then one would begin to see the
influence of P. as in the first chapter of Genesis. Unfortunately the
Babylonians of the Hammurabi period had about as much reverence for
seven as for three, and perhaps as much for both as the Israelite in the
Book of the Covenant.

But it is a poor compliment to a lawgiver of any age to suppose that
sacred numbers influenced the nature of his laws. Doubtless the Jubilee
release was economically an advance on sporadic amnesty, but to make a
debtor’s lot twice as hard and a money-lender’s security double,
especially as there is no reason to suppose that in Israel the temple
was the poor man’s bank, all for sake of seven is not a fair charge
against Moses or any lawgiver unless it is absolutely certain. The
change from three to six is not easy to account for on scientific
sociological grounds.

But one of the Hebrew Scriptures does attempt to account for the change,
and evidently regards it as a change to be accounted for. The
Deuteronomic writer argues that the creditor ought not to deem it hard
that he should release his debtor at the end of six years because he had
so served a double term. We may note that as it now stands the text says
‘double the hire of a hireling’. That is purely irrelevant. A slave’s
value was surely less to the holder, not more than that of a hireling,
for his keep had to be subtracted, and his work was hardly likely to be
so valuable as that of a freeman. The profit of a hireling is the excess
of the value of his work above what is paid for it. The hire of a
hireling was surely not just half the value of his own work or of a
slave’s work. Indeed, it is not easy to see what the double of a
hireling’s hire has to do with the question. The writer was right in
saying the term of six years was double something, and there can be no
question that it was double three years, and therefore double the term
fixed by Hammurabi five hundred or more years before. The creditor seems
to have resented letting the debtor go at all, at any rate till he had
worked off all his debt. The writer clearly knew that the creditor had
already obtained twice what he had to expect under other circumstances,
and believed he would admit the fact. It was double the Babylonian
allowance.

Can this undesigned coincidence be accidental? Is either Semitic custom
or human experience competent to explain the significance of the
doubleness being pointed out in this way?

If Canaanite custom before the Exodus had a term of three years’ service
in such cases, the same as the Hammurabi Code, surely that was due to
Babylonian law, unless, as some would maintain, the Amorite dynasty to
which Hammurabi belonged really came from Canaan, in which case
Hammurabi imposed Canaanite law on Babylonia. It was a non-essential,
anyway; it could nowhere have been the outcome of special circumstances
likely to occur again. It was not a creditor’s law, for he obviously
wanted liberty to keep the debtor’s hostage till he had satisfied his
own desires; it was not a debtor’s law, for he would have surely
preferred the three years’ limit. It was a concession to the creditor to
meet that hard-hearted person’s wishes.

It is not the large stock of common matter in the two legislations about
a hostage for debt but the disguised yet undeniable adaptation which
seems so significant.

Let us now consider another somewhat different case. Death by burning is
a horrible punishment, and was so recognized by the later Jewish
lawyers, who contrived a legal fiction to do away with its literal
infliction even on the scandalous criminals for whom it was intended.
Hammurabi orders it twice. It would be very difficult to account by
common Semitic custom or evolutionary methods for its being inflicted,
if at all, only twice. Yet the laws of Moses inflict it twice also. If
these arose independently, what is there from any intelligible point of
view to demand its infliction at all—but, if at all, why twice and only
twice? And that too in laws so similar?

Well now, in both laws the incest of mother and son is one case. The
heinousness of that crime may suffice to justify the hideous penalty.
Hammurabi (§§ 157-8) clearly distinguishes incest with a man’s own
mother and with a step-mother. Leviticus (xx. 14; xxi. 9) makes a
curious specification of the case; whether to include other cases or not
is not very clear. But evidently this great crime met the same unique
punishment.

Hammurabi’s second case is that of a votary, or vestal virgin, who left
her cloister to open a wine shop or frequent it for strong drink. At
first sight we might regard this as a protest against a vestal’s
intemperance solely. But women did keep wine shops, and their conduct of
them is regulated by the Code. We may recall the case of Rahab in Joshua
ii. 1. The second case in Hebrew law is Lev. xxi. 9: the priest’s
daughter who is unchaste is to be burned with fire. Now why are other
women of the priest’s family not included? Is priest’s daughter to be
taken, like the _mârat amêlim_ in the Code, to mean a woman of the
priestly family? Or is it simply a priestess? Surely it is just a
periphrasis, perhaps once a gloss on a word become obsolete, for a vowed
woman like Jephthah’s daughter. There is at first sight not much
likeness between the two second cases. But this one evidently puzzled
the Jewish commentators, who probably had a traditional knowledge of
the real meaning. First Josephus explains the crime not as mere
unchastity but as ‘opening a tavern’. Was he thinking of Rahab the
tavern-keeper who was also a harlot? Or had he an inkling that the crime
was the same as Hammurabi had in view? The association of the tavern
with immorality was close in Old Testament ideas. Perhaps Hammurabi also
had it in mind, for unchastity would be specially revolting in a vestal
virgin. Surely the priest’s daughter also was a votary. The Rabbis of
the Talmud evidently suspected something disguised in the text, for they
make a comment upon it which is truly surprising if the text be taken
literally. They ask, Shall not a priestess or priest’s daughter be
treated better than a tavern-keeper? They too knew that in some cases a
tavern-keeper had to be burned. We ask, Why and where, if she were not
also a vowed woman and in the Hammurabi Code? We need not assume that
either Josephus or they had read or heard of Hammurabi’s Code, or would
have regarded it with anything but detestation if they had. All the more
suggestive is it that these learned men should regard the verse as
meaning just what that Code did mean.

These points are like the meaningless but obviously Egyptian symbols,
often used for decorative purposes on seals, found in Syrian or Hittite
seals, which show the influence of the Nile and are never disputed as
due to copying, though no longer understood and used for decorative
purposes solely.

Some scholars are inclined to attach even more importance to the
singular likenesses in literary form, and above all to the disposition
of both the Code and the Book of the Covenant in groups of five or ten.

It may be remembered in this connexion that according to the author of
the Acts of the Apostles Moses was traditionally learned in all the
learning of the Egyptians. Taking that statement as literally true, we
now know from the Tell-el-Amarna tablets that that learning included the
knowledge of cuneiform at least on the part of some Egyptian scribes
before the Exodus. Philo tells us that Moses was also learned in the
learning of the Assyrians who were correspondents of Egypt in the same
period, of the Babylonians who wrote to the same kings at the same time,
and the Chaldeans, who were then known as an independent kingdom in the
Southern Sea lands of Babylonia. These and similar traditions are
usually dismissed by critics as mere senseless attempts to enhance the
reputation of Moses for wisdom and knowledge, which included that of the
wisest nations of antiquity. But in view of what we have seen already
may there not have been a different reason for these claims? Did not
these learned men, who themselves knew much of that knowledge, recognize
in the Books of Moses many startling parallels to the wisdom of
Babylonia? Was it not the only acceptable way to account for such
parallels to assert boldly that Moses did know these things, but in such
a way that, guided by God, he used them so far as they were in
accordance with Divine revelation; independently indeed as exercising
his own discretion in selecting from them, but dependently in so far as
they had found out already by man’s wisdom or the light of nature that
which was good and of good report?




APPENDIX

SURVEY OF THE BIBLIOGRAPHY OF THE LITERATURE RELATING TO THE CODE OF
HAMMURABI.


I. ANTICIPATIONS OF A BABYLONIAN CODE OF LAWS.

In 1890, F. E. PEISER published in his thesis _Iurisprudentiae
Babylonicae quae supersunt_ (Cöthen, P. Schettler’s Erben) a number of
fragments of Babylonian Codes of Laws, and aptly illustrated them by
relevant legal documents. In 1902, BR. MEISSNER published what proved to
be some fragments of the Code of Hammurabi, from copies made for
Ashurbanipal’s Library at Nineveh, now preserved in the British Museum.
These appeared in the Third Volume of the _Beiträge zur Assyriologie_
(Leipzig, Hinrichs, 1898), under the title _Altbabylonische Gesetze_
(pp. 473-523), and were commented upon by FR. DELITZSCH in the next
volume (pp. 78-87) in an article entitled _Zur juristischen Litteratur
Babyloniens_ and regarded as _Bruchstücke eines altbabylonischen
bürgerlichen Gesetzbuchs_. Judging from the early forms of words and the
old Babylonian measures used in these texts the writer called the laws
the Code Hammourabi (1902). In his lecture before the German Emperor,
which created so much stir in theological circles and excited such
general interest in Germany and then over the whole world, FR. DELITZSCH
stated that Hammurabi, after his conquest of Elam and expulsion of the
Elamite power from Babylonia, was able to promulgate a great
_Gesetzessammlung_, which should unify the civilizations of the united
kingdom and fix the _bürgerliche Recht_ in all essential points. _Babel
und Bibel_ (Leipzig, Hinrichs, p. 25, 1902: delivered Jan. 13).


II. THE ACTUAL CODE

was first published by V. SCHEIL in the Fourth Volume of the _Mémoires
de la Délégation en Perse_, pp. 11-162, with transcriptions,
translation, and some notes (Paris, E. Leroux, 1902). Fragments of a
second example of the Stele were also given by V. SCHEIL in the Tenth
Volume of the _Mémoires_, pp. 81-84 (1908).

All subsequent editions of the text are based upon this edition. The
original monument being now in the Louvre at Paris and a superb cast of
it in the Babylonian Room of the British Museum, it is open to any
competent scholar to appreciate the extraordinary accuracy of V.
SCHEIL’s work. The transcription and translation have naturally been
somewhat improved by the intensive study devoted to them by the many
scholars who have worked upon the text, especially as the result of
comparison with the contemporary legal documents. But the highest praise
must be awarded to the genius which so successfully accomplished such a
task as that of editing an entirely new text involving so many new words
and expressions and such unexpected subjects.


RE-EDITIONS OF THE CUNEIFORM TEXT ITSELF.

Having published an important article on _The Chirography of the
Hammurabi Code_ in the _American Journal of Semitic Languages and
Literatures_, vol. xx, pp. 137-48 (Chicago University Press, 1904), R.
F. HARPER proceeded to issue a revised edition of the cuneiform text,
with a transcription, a new translation, vocabulary, indexes, and list
of signs, under the title _The Code of Hammurabi_ (Chicago University
Press, 1904), which forms a most convenient student’s handbook for
English readers.

In 1909, A. UNGNAD published _Keilschrifttexte der Gesetze Hammurapis,
Autographie der Stele sowie der altbabylonischen, assyrischen und
neubabylonischen Fragmente_ (Leipzig, Hinrichs).

_Codex Hammurabi. Textus primigenius, transcriptio, translatio, Latina,
vocabularia, tabula comparationis inter leges Mosis et Hammurabi. Ad
usum privatum auditorum_, by A. DEIMEL (Rome, Vatican Press, 1910), has
the advantage of a language specially fitted to rendering exactly the
turns of expression occurring in the original.

There are some fragments of a copy found at Nippur, now preserved in the
Museum at Constantinople, copied by ST. LANGDON, and noticed by him and
V. SCHEIL in _Comptes rendus de l’Académie des Inscriptions_ (Paris, A.
Picard), 1912, p. 159, as _Tablette du Musée de Constantinople contenant
les §§ 145-80 du Code de Hammourabi_; and there are other still
unpublished copies.

A. POEBEL, in the _Museum Journal of the Philadelphia Museum_, vol. iv,
no. 2, 1913, pp. 49-50, announces a further copy of the Code from
Nippur, which also supplies some of the missing laws. The fine picture
of this tablet shows its present state.


III. TRANSCRIPTIONS AND TRANSLATIONS.

Many works appeared which took V. SCHEIL’s transcription and translation
as sufficient, only varying from it where the author was already
possessed of independent knowledge, or had worked over the text with a
view to improve the renderings.

H. WINCKLER, in November, 1902, set out _Die Gesetze Hammurabis, Königs
von Babylon um 2250 v. Chr._ as Part 4 of Volume IV of _Der alte Orient_
(Leipzig, Hinrichs), a complete translation with valuable introduction
and short useful notes. It was followed by a second and third revised
editions in March and November, 1903, which called the Code _Das älteste
Gesetzbuch der Welt_. In 1904 appeared a fuller work by the same author,
_Die Gesetze Hammurabis, Umschrift und Übersetzung, dazu Einleitung,
Wörter-, Eigennamen-Verzeichnis, die sogenannten sumerischen
Familiengesetze und die Gesetztafel, Brit. Mus._, 82-7-14, 988. This was
a most valuable work, and has been liberally made use of by subsequent
writers (Leipzig, Hinrichs).

In 1903 D. H. MÜLLER delivered lectures on the Code embodied in
_Vorläufige Mitteilungen über die Gesetze des Hammurabi_, published in
the _Anzeiger der philosophisch-historischen Classe der K. K. Akademie
der Wissenschaften zu Wien_, vol. xiv, and in the _X. Jahresbericht der
israelitisch-theologischen Lehranstalt in Wien_, 1903, issued _Die
Gesetze Hammurabis und die mosaische Gesetzgebung_, afterwards published
as a separate work (Vienna, A. Hölder, 1903), with some additions. It
contained not only a transcription, but a remarkable translation into
Hebrew, which did much to bring out the likeness to the laws of Moses,
and made the Code accessible to a variety of deeply interested readers
who would have missed the point of a transcription, or even of a
translation into modern German. It was severely attacked by KOHLER and
PEISER in the _Deutsche Literatur-Zeitung_, 1904, no. 5. MÜLLER replied
in no. 8, where KOHLER answered him. MÜLLER, however, made many acute
suggestions as to the Babylonian text, as well as the subject-matter,
and his views have received continued support. His comparison with the
other ancient codes, especially with the books of Moses and the Roman
Twelve Tables, was full of fresh matter and well deserves careful study.

In 1904 was published what promised to be an epoch-making work. J.
KOHLER, Professor of Comparative Law in the University of Berlin,
brought his unrivalled knowledge of ancient laws to bear on the legal
side of the Code; and F. E. PEISER, so well versed in Babylonian Legal
Documents (see p. 83, below), who had worked with KOHLER before,
attempted an improved translation. The work appeared as Band I of
_Hammurabi’s Gesetze_, and contained _Übersetzung, juristische
Wiedergabe, Erläuterung_ (Leipzig, Pfeiffer). Band II was to contain
philological researches, a transcription with a grammatical and
lexicographical treatment. Band III was to be an _Urkundenbuch_, to give
a selection of the more important documents of the Hammurabi period so
as to form a contemporary commentary. In many points PEISER, or his
translation, misled KOHLER, and the work was vigorously attacked by D.
H. MÜLLER as _Die Kohler-Peisersche Hammurabi-Übersetzung_ in the
_Zeitschrift für die Privat-und Öffentlichen Rechte der Gegenwart_, Bd.
xxxi (Wien, Hölder, 1904). M. SCHORR also contributed an article on _Die
Kohler-Peisersche Hammurabi-Übersetzung_ to the _Wiener Zeitschrift für
die Kunde des Morgenlandes_, vol. xviii, pp. 208-40, with a long series
of acute and severe criticisms. We may note here MÜLLER’s _Zur
Hammurabi-Kritik_ in _Zeitschrift der Deutschen Morgenländischen
Gesellschaft_, lix, pp. 145-9, ZIMMERN’s article under same title, same
place, pp. 150-4, and MÜLLER’s article with the same title in _Wiener
Zeitschrift für die Kunde des Morgenlandes_, xix, pp. 371-88, carrying
on a controversy which cleared up some points. In this great work A.
UNGNAD became associated with KOHLER, and to him is due the _Umschrift_
published as Band II with a complete glossary of the Code, and an
_Anhang_ with a register of the duplicates then known, Old Babylonian,
Assyrian, and Neo-Babylonian, which were used to complete the text
(Leipzig, Pfeiffer, 1909).


IV. TRANSLATIONS ALONE.

Of translations there was early no lack. SCHEIL’s appeared in October,
1902, WINCKLER’s first, the following month. _The Oldest Code of Laws in
the World_, a baldly literal translation of the Code alone, with a short
introduction and index of subjects by C. H. W. JOHNS, appeared in
February, 1903 (T. & T. Clark, Edinburgh).

_Le leggi di Hammurabi re di Babilonia (a. 2285-2242 a. C.) con
prefazione e note_, by P. BONFANTE (Milano, 1903), and _Il codice di
Hammurabi e la Bibbia_, by FR. MARI (Roma, Desclée, 1903), witness to
the interest shown in Italy.

In the _New York Independent_ for December 11, 18, 1902, and January 8,
15, 22, 1903, W. HAYES WARD gave a translation of the Code, following
WINCKLER closely; as did C. F. KENT in his article, _The Recently
Discovered Civil Code of Hammurabi_, published in the _Biblical World_
(Chicago University Press, March, 1903).

A translation of the Code also appeared in W. ST. CHAD BOSCAWEN’s _The
First of Empires_, along with comments and notes. The book presented a
clear and readable account of the life and times of Hammurabi and the
dynasty to which he belonged. It gave many interesting views upon
Babylonian history and the relations to Israelite legislation; but it
must be used with great caution, as it is often inaccurate and full of
misprints (London and New York, Harper’s, 1903).

The many criticisms which had appeared on his first translation and the
desirability of a less expensive presentation led V. SCHEIL, in 1903, to
put out a fresh translation as _La loi de Hammurabi_ (Paris, E. Leroux);
in which, however, he accepted little from his critics. A second edition
came out in 1904.

Other translations have appeared in connexion with particular
discussions. Thus the present writer was induced to set out a fresh
translation for his _Babylonian and Assyrian Laws, Contracts, and
Letters_ in the _Library of Ancient Inscriptions_ (Edinburgh, T. & T.
Clark, 1904). This work covered most of the helps to the study of the
subjects referred to in this survey available up to that date. R. W.
ROGERS included an excellent translation and transliteration of the text
in his useful work, _Cuneiform Parallels to the Old Testament_ (Oxford,
Clarendon Press, 1912).

Several of those who have discussed the relation of the Code to the laws
of Moses have given translations based upon SCHEIL, WINCKLER, or MÜLLER.
_The Hammurabi Code and the Sinaitic Legislation_, by CHILPERIC EDWARDS
(London, Watts & Co., 1904), _The Codes of Hammurabi and_ _Moses_, W.
W. DAVIES (New York, Eaton & Maine, 1905), _The Code of Hammurabi_, by
C. H. W. JOHNS, in the Extra Volume of _A Dictionary of the Bible_
(Edinburgh, T. & T. Clark, 1904), pp. 584-612, may be named. In the
second and third editions of his excellent work, _The Old Testament in
the Light of the Historical Records and Legends of Assyria and
Babylonia_ (London, S. P. C. K., 1903), T. G. PINCHES translated the
Code (1903, pp. 487-536; 1908, pp. 487-538). The treatment is full of
acute observation and accurate scholarship.

A. UNGNAD has contributed a fresh translation to _Altorientalische Texte
und Bilder zum alten Testamente, herausgegeben von_ H. GRESSMANN,
_erster Band_, pp. 140-71 (Tübingen, J. C. B. Mohr, 1909).


V. DISCUSSIONS.

All the above works contained more or less discussion of the Code from
various points of view.

In October, 1902, the present writer read a paper before the _Cambridge
Theological Society_, an abstract of which appeared in the January
number of the _Journal of Theological Studies_ (Oxford, Clarendon Press,
1903). The Code was here dealt with as _material for comparison with the
Laws of Moses_, but no comparison was made. A. UNGNAD wrote _Zur Syntax
der Gesetze Hammurabis_ in vol. xvii of the _Zeitschrift für
Assyriologie_, pp. 353-78 (Strassburg, K. J. Trübner, May, 1903), and
again in vol. xviii, pp. 1-67. The text of the Code, by its careful
phraseology and exact use of grammatical forms, has become a classic for
the study of the language. The order of the sentence is, however,
somewhat unusual, and probably shows the influence of the legal
phraseology of the time, which was based on Sumerian law precedents. D.
H. MÜLLER took up this point in _Die Wortfolge bei Hammurabi und die
sumerische Frage_, an article in _Wiener Zeitschrift für die Kunde des
Morgenlandes_, vol. xvii, pp. 337-42 (Wien, Hölder, 1904), followed by
_Noch einmal die Wortfolge bei Hammurabi und die sumerische Frage_, vol.
xviii, pp. 89-94. _Der Gebrauch der Modi in den Gesetzen Hammurabis_,
xviii, pp. 95-8, by D. H. MÜLLER, appeared in the _Wiener Zeitschrift
für die Kunde des Morgenlandes_ (Vienna, A. Hölder, 1904).

In the _Zeitschrift für Assyriologie_, vol. xviii, pp. 202-22, S.
DAICHES contributed a most important article, _Zur Erklärung des
Hammurabi-Codex_ (1904). The same title was used by A. UNGNAD for an
article in the _Wissenschaftliches Correspondenzblatt der
Philologie—Novitates_ for October, 1906, pp. 8-9.

In vol. xix of the _Zeitschrift für Assyriologie_, pp. 388-91, CHR.
SARAUW took up the grammar of the Code in an article _Zum Kasus-System
des Hammurabi-Kodex_, 1906.

E. WOHLFRAMM has since written _Untersuchungen zur Syntax des Codex
Hammurabis_ (Leipzig, Drugulin, 1910).

In the _Expository Times_, vol. xiv, pp. 257-8, the present writer gave
an article on the _Code of Hammurabi_, and in _The Journal of
Theological Studies_, vol. v, pp. 313-16, under the same title, a notice
of the bibliography at that date. A. W. SAYCE wrote on _The Laws of
Hammurabi_, _Expository Times_, vol. xv, pp. 184-6. _The Code of King
Hammurabi_ appeared in _The Times_, April 14, 1903; _The Laws of
Hammurabi_, by L. T. HOBHOUSE, in _The Speaker_, March 7, 1903; D. O.
DYKES in _The Juridical Review_, discussed some legal points; E. KÖNIG
gave an estimate in _Beweis des Glaubens_, 1903, pp. 169-80. P.
LOTICHIUS wrote _Die Gesetzessammlung des Königs Hammurabi von Babylon_
in _Protestantenblatt_, 1903, nos. 29, 30. C. F. LEHMANN contributed an
article on _Hammurabi’s Code_ to _The Nineteenth Century_, 1903, pp.
1035-44. These served to give a wider publicity to the Code.

In _Notes on the Hammurabi Monument_, _Journal of the American Oriental
Society_, vol. xxv, pp. 266-78, D. G. LYON, 1904 (New Haven, Conn.), and
in _Notes on the Code of Hammurabi_, _American Journal of Semitic
Languages and Literatures_, vol. xxii, pp. 1-28, R. F. HARPER (Chicago,
University Press, 1905) made some important contributions to the
understanding of the text. D. H. MÜLLER wrote _Ueber die Gesetze
Hammurabis_ (Wien, Hölder, 1904); T. G. PINCHES had an article
_Hammurabi’s Code of Laws_ in the _Proceedings of the Society of
Biblical Archaeology_, 1902, pp. 301-8, among other valuable comments
pointing out a hitherto unrecognized fragment in Ashurbanipal’s Library.
The present writer discussed some difficulties in _Notes on the Code of
Hammurabi_ contributed to the _American Journal of Semitic Languages and
Literature_, vol. xix, pp. 96-107, 172-5 (Chicago, University Press,
1903); T. G. PINCHES wrote also on _The Laws of the Babylonians as
recorded in the Code of Hammurabi_ in _The Journal of the Victoria
Institute_, 1903, pp. 237-55.

P. CRUVEILHIER discussed _Le Code de Hammurabi_ in _Revue du Clergé
français_, 1912, pp. 413 ff.

There is not space to chronicle all the reviews of these books and
articles on the Code, though many of them are practically articles in
themselves and marked advances. As a rule, later books used up all that
appeared in the reviews of any note, and some of them give references to
such sources. Such discussions are of fundamental importance for the
exact understanding of the Code.


SEPARATE SECTIONS.

Many discussions arose as to the meaning of particular sections. Thus C
F. LEHMANN(-HAUPT) wrote in _Klio_, vol. iii, pp. 32-41 (1904), on _Ein
missverstandenes Gesetz Hammurabis_, which was also taken as the title
of an article by F. E. PEISER in _Orientalistische Litteraturzeitung_,
vol. vii, cols. 236-7 (1904). Neither of these scholars can be said to
have quite settled the questions they had raised; but the subject of §§
185-93 was greatly cleared by their thoughtful treatment.

In 1908 M. SCHORR contributed to the _Wiener Zeitschrift für die Kunde
des Morgenlandes_, vol. xxii, pp. 385-92, an article on _Die §§ 280-282
des Gesetzbuches Hammurabis_, followed, pp. 393-8, by an article of D.
H. MÜLLER on _Die §§ 280-282 des Kodex Hammurabis_.

M. SCHORR in 1906 had written in the same journal, vol. xx, pp. 119-23,
an article _Zum § 27 des Hammurabi-Gesetzes_, and in the _Vienna
Oriental Journal_, xx (1906), pp. 314-36, _Der § 7 des
Hammurabi-Gesetzes_.

BR. MEISSNER has discussed the correct word for a builder in the Code in
the _Orientalistische Litteraturzeitung_, vol. xv, cols. 38-59 (1912),
under the title _Zu Hammurapis Gesetz_, xix, R. 93.

_Die Lücke in der Gesetzes-Stele Hammurapis_, by A. UNGNAD, in the
_Beiträge zur Assyriologie_, vi, Heft 5, discussed all the means known
to fill the gap as existing in the text, but the new sources named on p.
66 above will very likely suffice to complete the text.


THE STRUCTURE OF THE CODE.

Considerable weight may ultimately have to be laid on the grouping of
the laws by ‘tens’ or ‘fives’. This aspect had been discussed by D. G.
LYON in the _Journal of the American Oriental Society_, vol. xxv, pp.
248-65, as _The Structure of the Hammurabi Code_ (New Haven, Conn.,
1904).

C. F. KENT in his excellent work on _Israel’s Laws and Legal Precedents_
(London, Hodder & Stoughton, 1907) makes considerable use of a division
of Hebrew laws into groups of five or ten, of which the Ten Commandments
forms a well-known example. Whether or no these divisions command
general assent, we should notice that D. G. LYON finds repeated evidence
of the same grouping in the Code of Hammurabi. This naturally cannot be
pressed too far as evidence of dependence. But it is surely
non-essential that laws should be arranged in pentads unless we are to
suppose that a reference to five fingers as a method of recalling the
separate clauses is involved, and would be natural to expect in such
cases. But that Israelite fondness for the number seven, shown in their
seven-day week as against the Babylonian week of five days, or their
partiality for other sacred numbers, did not affect the numbering of the
laws may well be significant. If it turn out that these groups of five
also correspond in contents, even though they show traces of change, we
have a strong argument for dependence which supports any others pointing
in the same direction.


THE PLACE OF THE CODE IN COMPARATIVE LAW.

As early as October and November, 1902, there appeared _Le Code
Babylonien d’Hammourabi_ in the _Journal des Savants_ (Paris, Hachette),
by R. DARESTE, giving a luminous account of the subject-matter of the
Code, illustrating it by comparison with a number of ancient
legislations. He, of course, based his conclusions entirely upon
SCHEIL’S translation, but his work still remains most valuable. In 1903
appeared SCHMERSAHL’S _Das älteste Gesetzbuch der Welt: Die Gesetze
Hammurabis_ in the _Deutsche Juristen-Zeitung_, pp. 111 ff. R. DARESTE
also published _Le Code Babylonien d’Hammourabi_ in the _Nouvelle Revue
historique de droit français et étranger_ (Paris, Larose, January and
February, 1903). _Hammurapi und das Salische Recht_, by H. FEHR (Bonn,
Marcus & Weber, 1910), is a very remarkable study.

A first-rate work was G. COHN’S lecture, _Die Gesetze Hammurabis_
(Zürich, Füssli, 1903). KOHLER and MÜLLER (see pp. 67, 69) have to be
weighed.

C. STOOSS in his article _Das babylonische Strafrecht Hammurabis,
Schweizerische Zeitschrift für Strafrecht_, vol. xvi (Basel, Georg,
1903), took up the question of ‘Crimes and Punishments’, on which see
also the article with that title by T. G. PINCHES in _The Encyclopaedia
of Religion and Ethics_, iv, pp. 256 ff.; and _Imprisonment_, by the
same author, iv, pp. 260 ff. _Die peinlichen Strafen im Kriegs-und
Rechtswesen der Babylonier und Assyrer_, by J. JELITTO (Breslau, 1913),
adds considerably to the subject. Compare also _Zum ältesten Strafrecht
der Kulturvölker_, by TH. MOMMSEN and others (Leipzig, Duncker, 1905).

The judicial procedure remains in many points obscure despite the fine
_Essai sur l’organisation judiciaire de la Chaldée à l’époque de la
première dynastie babylonienne_, by ED. CUQ, in the _Revue
d’Assyriologie_, 1910, pp. 65-101, which records most known facts;
_Commentaire juridique d’un jugement sous Ammiditana_, by the same
author in the same journal, 1910, pp. 129-38; and again _Un procès
criminel à Babylone sous le règne de Samsou-iluna_, 1911, pp. 173-81. P.
DHORME discussed in the same volume, p. 99, _Un appel sous
Samsou-iluna_. _A Legal Episode in Ancient Babylonian Family Life_, in
the _Proceedings of the Society of Biblical Archaeology_, 1910, pp.
81-92, 129-42, is by W. T. PILTER.

The tenure of land was elucidated by H. WINCKLER in _Zum
babylonisch-chaldäischen Feudalwesen_, in _Altorientalische
Forschungen_, i, pp. 497-503. _La Propriété foncière en Chaldée_, by ED.
CUQ (Paris, Larose, 1907), chiefly deals with later developments; as do
the articles by _J. OPPERT_, _Le droit de retrait lignager à Ninive_ in
the _Comptes rendus_ of the _Académie des inscriptions et
belles-lettres_ (Paris, 1898), and _Das assyrische Landrecht_ in the
_Zeitschrift für Assyriologie_, xiii, pp. 243-76 (Weimar, 1898).

The position of some classes or castes named will be dealt with under
the LEXICOGRAPHY OF THE CODE, pp. 74 ff. _The Consecrated Women of the
Hammurabi Code_ is an important essay by D. G. LYON in the _Studies in
the History of Religions presented to Crawford Howell Toy_ (New York,
The Macmillan Co., 1912), pp. 341-60. See also _Altbabylonische
Rechtsurkunden aus der Zeit der Hammurabi-Dynastie_, by S. DAICHES
(Leipzig, Hinrichs, 1903).

The view of law as sworn contract has importance enough to be specially
considered. It was early discovered in the so-called contracts which
were once regarded as legal decisions. We may refer to _Sworn
Obligations under Egyptian and Babylonian Law_, by E. and V. REVILLOUT,
and _Sworn Obligations in Babylonian Law_ by the same authors in _The
Babylonian and Oriental Record_, vol. i, no. 7, and vol. ii, no. 1. A.
UNGNAD pointed out _Eine neue Form der Beglaubigung in altbabylonischen
Urkunden_ in the _Orientalistische Litteraturzeitung_, 1906, cols.
163-4. The whole subject was taken up by S. A. B. MERCER in his
dissertation on _The Oath in Babylonian and Assyrian Literature_
(Munich, 1911).

The idea underlying the appeal to the ordeal is closely allied to that
of the oath, and F. E. PEISER wrote _Zum Ordal bei Babyloniern_ in the
_Orientalistische Litteraturzeitung_, 1911, cols. 477-9.

The importance of the family in the Code and Babylonian Law in general
has led to several monographs. _Le Mariage à Babylone_, by ED. CUQ
(Paris, Lecoffre, 1905), and _Zur Terminologie im Eherecht bei
Hammurabi_, by D. H. MÜLLER, in the _Wiener Zeitschrift für die Kunde
des Morgenlandes_, xix, pp. 352-8, deal chiefly with the Code. L.
FREUND’S _Zur Geschichte des Ehegutrechtes bei den Semiten_ (Vienna, A.
Hölder, 1909) chiefly deals with Jewish custom. _Liebe und Ehe im alten
Orient_, by F. FREIHERR VON REITZENSTEIN (Stuttgart, Franckh, 1909),
devotes pp. 51 to 70 to the Babylonian side. Of course, W. ROBERTSON
SMITH’S _Kinship and Marriage_ will be consulted in its new edition by
S. A. COOK (London, A. & C. Black, 1903).

Closely connected are other questions as to the status of women. Already
in 1892 J. OPPERT was able to make out much about _Liberté de la femme à
Babylone_ in the _Revue d’Assyriologie_, ii, pp. 89-90. V. MARX
discussed _Die Stellung der Frauen in Babylonien_ in the _Beiträge zur
Assyriologie_, iv, pp. 1-77.

Slavery in Babylonia was very different from either Roman or modern
ideals. As long ago as 1888 J. OPPERT had made out much from the legal
documents of later times in his article _La condition des esclaves à
Babylone_ in the _Comptes rendus_ of the _Académie des inscriptions et
belles-lettres_ for that year. BR. MEISSNER had written a dissertation
in 1882, _De servitute babylonico-assyriaca_ (Leipzig), which still
deserves to be consulted. M. SCHORR wrote _Arbeitsruhetage im alten
Babylonien_ in _Revue Sémitique_, 1912, pp. 398-9.

The questions of guarantee, security, &c., are finely treated by P.
KOSCHAKER in his work, _Babylonisch-assyrisches Bürgschaftsrecht_
(Leipzig, Teubner, 1911).

Business in general is well dealt with by FR. DELITZSCH in his _Handel
und Wandel in Altbabylonien_ (Stuttgart, Deutsche Verlagsanstalt, 1910).
_Die Commenda im islamischen Rechte_, by J. KOHLER (Würzburg, Stahel,
1885), is to be compared.

_Aus dem altbabylonischen Recht_, by BR. MEISSNER, in _Der alte Orient_,
vii, Heft 1, 1905 (Leipzig, Hinrichs), is excellent.

On the whole subject of Babylonian law a valuable treatise is P.
KOSCHAKER’S article, _The Scope and Methods of a History of
AssyrioBabylonian Laws_ in the _Proceedings of the Society of Biblical
Archaeology_, 1913, pp. 230-43. _Babylonian and Assyrian Laws,
Contracts, and Letters_, by the present writer, in _The Library of
Ancient Inscriptions_ (T. & T. Clark, Edinburgh, 1904), and the articles
on _Babylonian Law_, by the same author, in _The Encyclopaedia
Britannica_, vol. iii, 1910, may be consulted, pp. 115-21, and in _The
Encyclopaedia of Religion and Ethics_. The French jurist, ED. CUQ, in
his _Notes d’épigraphie et de papyrologie_, published in the _Nouvelle
Revue historique du droit français et étranger_ (Paris, L. Larose),
1906-1909, discussed many points of _Le Droit babylonien au temps de la
Première Dynastie de Babylone_.


LEXICOGRAPHY OF THE CODE.

Most of the discussions and editions above referred to deal with points
in the lexicography. The edition by UNGNAD in his Band II, named on p.
68, gives the latest results of the investigations in this domain. A few
other works deserving of note will be added here.

The meaning of _amêlu_ was elucidated by H. WINCKLER in his
_Altorientalische Forschungen_, ii, pp. 312-15, 1901 (Leipzig,
Pfeiffer).

The difficult word _mushkênu_, rendered _noble_ by SCHEIL and after him
by DARESTE and others, was given this meaning because the fines and
penalties inflicted on him in the Code seemed to be less than those
inflicted on the ordinary man. The ideogram used in the Code was not
rendered into Semitic Babylonian by SCHEIL, but first in print by H.
ZIMMERN. A crowd of extraordinary guesses as to the meaning of the term
were hazarded, founded on the cognate languages. Thus it was discussed
by E. LITTMANN in _Zur Bedeutung von miskên, Zeitschrift für
Assyriologie_, vol. xvii, pp. 262-5 (Strassburg, K. J. Trübner, 1903),
who made it out to be _leper_ and by ET. COMBE in _Babyloniaca_, vol.
iii, pp. 73-4, who settled the meaning from its use in modern Arabic.
The present writer had already anticipated much of this in his _Oldest
Code_ and the _Notes on the Hammurabi Code_, above, p. 70.

The meaning and status of the _rîdtsâbê_ was discussed by S. DAICHES,
_Zur Erklärung des Hammurabi-Codex_, in _Zeitschrift für Assyriologie_,
1904-1905, pp. 202-22. Many useful hints will be found in _Semitica:
Sprach-und rechtsvergleichende Studien_, in the _Sitzungsberichte der
philosophisch-historischen Klasse der kaiserlichen Akademie in Wien_,
1906, cols. 1-88 (Wien, A. Hölder).

The exact way in which the Semitic people of the Hammurabi period
exploited the stores of legal knowledge acquired by the Sumerians is
still much discussed. So by M. SCHORR in his _Die altbabylonische
Rechtspraxis_, published in _Wiener Zeitschrift für die Kunde des
Morgenlandes_, vol. xxiv, pp. 431-61, and again in the _Revue
Sémitique_, 1912, pp. 378-97, _Zur Frage der semitischen und sumerischen
Elemente im altbabylonischen Rechte_. See also _Das Sumerische in den
Rechtsurkunden der Hammurabi-Periode_, by M. SCHORR, in the _Hilprecht
Anniversary Volume_, pp. 20-32.

The question whether the Sumerian phrases in the contemporary contracts
were read as Semitic or Sumerian has been discussed by A. POEBEL in the
_Orientalistische Litteraturzeitung_, 1911, cols. 241-7, under the title
_Zur Aussprache der sumerischen Phrasen in den altbabylonischen
Rechtsurkunden_, and in cols. 373-4 A. UNGNAD wrote, under the same
title, _Eine Berichtigung_. M. SCHORR replied, cols. 559-61.

The question how far the Hammurabi Code was operative was soon raised.
The existence of a very large number of legal documents relating to all
manner of transactions seemed likely to afford a ready answer. In 1905
BR. MEISSNER wrote his _Theorie und Praxis im altbabylonischen Recht_
for the _Mitteilungen der Vorderasiatischen Gesellschaft_, pp. 257-303.
The need of a more extended examination made the promise of KOHLER and
PEISER’S _Hammurabi-Gesetz_ so welcome, see p. 67. KOHLER and UNGNAD
have now fulfilled this by publishing in Heft III-V the whole available
material as _Übersetzte Urkunden_ with most valuable _Erläuterungen_
(Leipzig, Hinrichs, 1909-1911). A similar enterprise was undertaken by
M. SCHORR in _Kodeks Hammurabiego a owezesna praktyka prawna, Das
Gesetzbuch Hammurabis und die zeitgenössische Rechtspraxis_, in the
_Bulletin de l’Académie des Sciences de Cracovie_, followed by
_Altbabylonische Rechtsurkunden aus der Zeit der I. babylonischen
Dynastie_ in the _Sitzungsberichte der kaiserlichen Akademie der
Wissenschaften in Wien, philosophisch-historische Klasse_, 155. Band, 2.
Abhandlung, 1907, 160. Band, 5. Abhandlung, 1909, and 165. Band, 2.
Abhandlung, 1910 (Vienna, A. Hölder), with transcription, translation,
and commentary. Together with UNGNAD’S work this should enable any
scholar to form a well-founded and independent judgement.

It is natural to inquire what were the laws of that earlier people in
Babylonia who preceded the Semites and are now called Sumerians. The
Semites took over their legal phrases, see above, and probably with them
some of their laws. The Semitic scribes drew up long lists of these
Sumerian phrases, many of which they still used in drawing up their
legal documents, just as Latin phrases or Norman-French lingered on in
our law-books. These phrases they translated, in parallel columns with
the Sumerian. Such books of phrases were issued in long series. One such
series, usually called _Ana Ittishu_, was discussed by BR. MEISSNER in
the _Wiener Zeitschrift für die Kunde des Morgenlandes_, iv, pp. 301 ff.
A great deal of it is published by P. HAUPT in vol. i of the
_Assyriologische Bibliothek_; by F. HOMMEL in his _Sumerische
Lesestücke_; by FR. DELITZSCH in his _Assyrische Lesestücke_, 3rd
edition, 1900, pp. 130-2; and by MEISSNER in the _Zeitschrift für
Assyriologie_, 1892, vii, pp. 16-32. PINCHES gives an account of it in
the _Encyclopaedia of Religion and Ethics_, iv, p. 256, 1910, where he
calls it the _Ulutinabishu Series_. Not much law can be made out of this
scrappy source; but one tablet records a set of regulations which seem
to be extracted from a code. They are usually referred to as _The
Sumerian Family Laws_, and are dealt with by T. G. PINCHES in the
_Encyclopaedia of Religion and Ethics_, iv, p. 257, 1910, and by
JEREMIAS in the same work, v, p. 447. A full treatment by P. HAUPT is
_Die sumerischen Familiengesetze in Keilschrift, Transcription und
Übersetzung_ (Leipzig, 1879). WINCKLER, COOK, PEISER, UNGNAD, and most
of the writers on the comparative side have quoted them in their
above-named works.

It may be doubted whether the so-called _Warnings to Kings against
Injustice_, see T. G. PINCHES in his _Encyclopaedia_ article, iv, p.
261, note 1, are so early, or really preserve part of a code. References
to legal reforms may be seen in the inscriptions of Urukagina, see L. W.
KING’S _History of Sumer and Akkad_, pp. 178-84 and the references, but
here again we cannot reconstruct much of the Sumerian law in question.

We have noted the discussion, p. 75, of the way in which Semitic scribes
regarded the Sumerian phrases they used.

The conclusion that Hammurabi codified the earlier legislation was
natural, and similarities in form suggested that he adopted much of the
Sumerian law which was previously in force.

A. T. CLAY in the _Orientalistische Litteraturzeitung_, xvii, January,
1914 (Leipzig, Hinrichs), writing on _A Sumerian Prototype of the
Hammurabi Code_, has made it clear that some of the laws existed in a
Sumerian dress. Hammurabi, as we have already contended, modified the
previously existing Sumerian laws, and taking some over bodily, changed
others to suit the peculiar prejudices of his subjects and the
circumstances of his time. We may soon be able to judge whether CLAY’S
_Sumerian Code_, as we may call it, was really early, or only the dress
in which Hammurabi’s law appeared in his Sumerian provinces.

We may pass on to notice briefly the chief sources from which it is
possible to deduce much of the local customary law throughout the
history of Babylonia. It may formally be divided into Temple accounts
and contracts, but a detailed classification would demand much more
space than we can here afford.


THE TEMPLE ACCOUNTS.

At all times the great temples of Assyria and Babylonia kept extensive
accounts of even daily revenue and expenditure. These accounts were most
carefully preserved, being written with special care on well selected
clay, and have reached us as a rule in exceptionally fine condition.
They give us an immense mass of information, largely consisting of dry
and disconnected items, but helping to build up knowledge. The French
explorations made by DE SARZEC at Telloh resulted in the discovery of an
enormous number of documents, mostly accounts kept of the daily expenses
and revenues of the vast temples there, from the earliest times down to
the Dynasty of Ur. One huge find of some 30,000 tablets of the latter
period were stolen by Arabs, and have been sold in large quantities to
European and American Museums, or to private collectors. Few of them are
legal documents, or concerned with other than Temple business, but
their contents illustrate the state of society in the times before the
First Dynasty of Babylon. They are most important for determining the
extent to which the Code of Hammurabi was dependent on, or influenced
by, the Sumerian Law of earlier days.

Of those which reached Constantinople, the products of the season of
1894 consisted entirely of tablets of the Dynasty of Ur, and were
classified by V. SCHEIL. The tablets found in 1895 were catalogued by
THUREAU-DANGIN, and are mostly of the Dynasty of Akkad. The finds of
1900 are all of the Dynasty of Ur. These are all now catalogued and
largely published in the _Inventaire des Tablettes de Tello conservées
au Musée Ottoman_ (Paris, E. Leroux, 1910), by FR. THUREAU-DANGIN and H.
DE GENOUILLAC.

But by far the largest part of the finds came into the hands of dealers,
and so into the museums of Europe and America; and these were published
sooner. Thus in 1891 some were reproduced by photography in DE SARZEC’S
_Découvertes en Chaldée_ (Paris, E. Leroux), plate 41. These tablets,
preserved in the Louvre, were, however, properly presented by the
Sultan. A great many thus acquired were published by THUREAU-DANGIN as
_Tablettes chaldéennes inédites_ in the _Revue d’Assyriologie_, iv, pp.
69-86 (Paris, E. Leroux, 1897). In the same journal, v, pp. 67-102,
1902, he gave a _Notice sur la troisième collection de tablettes_, and
in 1903 published a _Recueil de tablettes chaldéennes_ (Paris, E.
Leroux), which gave improved editions of the above. Other articles
appeared in the _Revue d’Assyriologie_, iii, pp. 118-46 (1895), iv, pp.
13-27 (1897), and in _Comptes rendus de l’Académie des Inscriptions_ for
1896, by the same writer, pp. 355-61. These works not only made
available large numbers of texts, but also gave most important
contributions to their understanding.

In 1896 H. V. HILPRECHT published three of the tablets in the Imperial
Ottoman Museum at Constantinople in his _Old Babylonian Inscriptions_,
part II, nos. 124-6 (Philadelphia, _Transactions of the American
Philosophical Society_).

In _Cuneiform Texts from Babylonian Tablets, etc., in the British
Museum_, vols. i, iii, v, vii, ix, x (London, British Museum), copied by
L. W. KING, 1896-1900; _Ancient Babylonian Temple Records_, copied by W.
R. ARNOLD (New York, Columbia University Press, 1896); _Old Babylonian
Temple Records_, are texts copied and discussed by R. J. LAU (New York,
Columbia University Press, 1906); _Haverford Library Collection of
Cuneiform Tablets or Documents from the Temple Archives of Telloh_, part
I, 1905; part II, 1909; part III, 1914 (Philadelphia, J. C. Winston
Co.), several hundreds of these texts appeared.

G. REISNER, in 1902, published _Tempelurkunden aus Telloh_ (Berlin, W.
Spemann), being the collection presented to the Berlin Museum by H.
SIMON. H. RADAU in his _Early Babylonian History_ (New York, 1903),
published and discussed a number purchased for the E. A. Hoffmann
collections in the New York Metropolitan Museum. T. G. PINCHES dealt
with _Some Case Tablets from Telloh_ in the _Journal of the Royal
Asiatic Society_ for 1905, pp. 815-29, and, in 1909, published _The
Amherst Tablets_, being an _Account of the Babylonian Inscriptions in
the Collection of the Right Honourable Lord Amherst of Hackney, at
Didlington Hall, Norfolk_ (London, Quaritch). H. DE GENOUILLAC published
and discussed some texts of H. SCHLUMBERGER’S as _Tablettes d’Ur_ in the
_Hilprecht Anniversary Volume_, pp. 137-41. In 1911 T. G. PINCHES dealt
with some _Tablets from Telloh in Private Collections_ in _The Journal
of the Royal Asiatic Society_, pp. 1039-62, and ST. LANGDON gave _Some
Sumerian Contracts_ in the _Zeitschrift für Assyriologie_, 1911, pp.
205-14. V. SCHEIL contributed a series of _Notes d’épigraphie et
d’archéologie assyriennes_ to the _Recueil de Travaux_ (Paris, E.
Bouillon), vol. xvii, 1895, pp. 28-30; xviii (1896), pp. 64-74; xix
(1897), pp. 44-64; xx (1898), pp. 55-72, 200-10; xxi (1899), pp. 26-9,
123-6; xxii (1900), pp. 27-39, 78-80, 149-61; xxiii (1901), pp. 18-23;
xxiv (1902), pp. 24-9, in which among other priceless records he gave
many extracts from the Telloh texts, some entire texts, and much
elucidation of the same. Special studies devoted to the subject are: H.
DE GENOUILLAC’S _Textes juridiques de l’époque d’Ur_ in the _Revue
d’Assyriologie_, 1911, pp. 1-32; H. DEIMEL’S _Studien zu C. T., I, III,
V, VII, IX, X_, in the _Zeitschrift für Assyriologie_, 1911, pp. 328-45;
_Sátilla, textes juridiques de la seconde dynastie d’Our_ in
_Babyloniaca_, iii, 1910, pp. 81-132, by F. PELÉGAUD, and _Di-tilla,
textes juridiques chaldéens de la seconde dynastie d’Our_, by C. H.
VIROLLEAUD (Poitiers, A. Boutifard, 1903); _Comptabilité chaldéenne_, by
the same author, same place and publisher, 1903, is a series of valuable
essays. G. A. BARTON gave _A Babylonian Ledger Account of Reeds and
Wood_ in the _American Journal of Semitic Languages and Literatures_,
1911, pp. 322-7, and in the same journal, 1912, pp. 207-10, another text
of the same sort.

Tablets of the same period have been found by the thousand at Jokha, the
ancient Umma, for centuries the hereditary foe of Telloh, and at Dréhem,
which seems to have been a closely dependent city of the Nippur
district. They have already found their way in large numbers to Europe
and America.

Tablets from Jokha were first noticed by V. SCHEIL in his _Notes
d’épigraphie et d’archéologie assyrienne_ in _Recueil de Travaux_, vol.
xix, pp. 62-3, 1897, who showed that Jokha was Umma. FR. THUREAU-DANGIN
in the _Revue d’Assyriologie_ (viii), 1911, pp. 152-8, who deals with
_Les noms des mois sur les tablettes de Djokha_, gives a number of these
texts from the time of the Dynasties of Akkad and Ur. ST. LANGDON has
published _A tablet from Umma in the Ashmolean Museum at Oxford_ in the
_Proceedings of the Society of Biblical Archaeology_, 1913, pp. 47-52.
In contents these are very similar to the tablets from Telloh or Dréhem,
and seem to have been often confused with them by the dealers.

ST. LANGDON published _Tablets from the Archives of Dréhem_ (Paris,
Geuthner, 1912); L. DELAPORTE, _Tablettes de Dréhem in Revue
d’Assyriologie_, 1911, pp. 183-98; P. DHORME, _Tablettes de Dréhem à
Jérusalem_ in same journal, pp. 39-63; H. DE GENOUILLAC, _Tablettes de
Dréhem, publiées avec inventaire et tables_. _Musée du Louvre_ (Paris,
Geuthner, 1911), and _La trouvaille de Dréhem, Étude avec un choix de
textes de Constantinople et Bruxelles_ (Paris, Geuthner, 1911); see also
_Some Sumerian Contracts_, by ST. LANGDON, in the _Zeitschrift für
Assyriologie_, 1911, pp. 205-14. A useful summary is _Some Published
Texts from Dréhem_, by I. M. PRICE, in the _American Journal of Semitic
Languages and Literatures_, 1912, pp. 211-15.

_Sumerian Administrative Documents from the Second Dynasty of Ur_, from
the _Temple Archives of Nippur_, vol. iii, part i of Series A, Cuneiform
Texts, in _Publications of the Babylonian Expedition of the University
of Pennsylvania_ (Philadelphia, 1910), deals with closely related texts.

E. HUBER wrote _Die altbabylonischen Darlehenstexte aus der
Nippur-Sammlung im K. O. Museum in Konstantinopel_ as a contribution to
the _Hilprecht Anniversary Volume_, pp. 189-222. V. SCHEIL in his _Notes
d’épigraphie_ made some entries about those Nippur texts which reached
Constantinople, see p. 78.

An allied text was given by P. DHORME in the _Journal Asiatique_, 1912,
pp. 158-9, as _Un brouillon d’inventaire_.

The whole subject of these Temple Records is being studied by H.
TORCZYNER, who has started with _Vorläufige Bemerkungen_ to
_Altbabylonische Tempelrechnungen, umschrieben und erklärt_ in the
_Anzeiger der Kaiserlichen Akademie der Wissenschaften in Wien_, 1910,
pp. 136-40.

On the general scope and purpose of the Temple Records, see the article
on _Babylonian Book-keeping_, by A. T. CLAY, in the _American Journal of
Archaeology_, 1910, pp. 74 ff.

The very ancient texts from Telloh, usually called Pre-Sargonic, have
been issued, beside THUREAU-DANGIN’S _Recueil de Tablettes chaldéennes_,
by ALLOTTE DE LA FUŸE as _Documents présargoniques_ (Paris, E. Leroux,
1908, 1909). _Sumerian Tablets in the Harvard Semitic Museum_ was begun,
by MARY IDA HUSSEY, with part 1 in 1912. _Two Tablets of the Period of
Lugalanda_ were published by ST. LANGDON in _Babyloniaca_, 1911, pp.
246-7. Much the most useful publication, however, is _Tablettes
sumériennes archaïques_, by H. DE GENOUILLAC (Paris, Geuthner, 1909),
which gives not only texts, but transcriptions and such translation as
is possible, and also an admirable account of all they imply, as to law
and custom. A considerable amount of this is strikingly like the later
laws. In _The Amherst Tablets_ (London, Quaritch, 1908), T. G. PINCHES
published a few more. The bulk of them still await publication.

_Ancient Bullae and Seals of Shirpurla_ by N. P. LIKHATSCHEFF, published
in the _Imperial Russian Archaeological Society’s Classical Section IV_,
pp. 225-63, 1907, written in Russian, gives a number of similar tablets.
_Oriental Antiquities_, by M. V. NIKOLSKY, in the _Oriental Commission
of the Imperial Moscow Archaeological Society_, iii, Series 2, 1908, has
over 300 such texts. These appear to belong to the same period.

Some valuable discussions will be found in _État des décès survenus dans
le personnel de la déesse Bau sous le règne d’Urukagina_, by ALLOTTE DE
LA FUŸE, in the _Revue d’Assyriologie_, 1910, pp. 139-46.

In his _Recueil de Tablettes chaldéennes_ (Paris, E. Leroux, 1903) FR.
THUREAU-DANGIN gave as his third series a number of texts of the
Sargonic period, dated in the reigns of Shargani-shar-ali and Naram-Sin.
A number more are published or described in the _Inventaire des
tablettes de Tello conservées au Musée Impérial Ottoman_, Tome I, by
THUREAU-DANGIN, 1910, and Tome II, by H. DE GENOUILLAC, 1911, and
several other collections are to be published shortly.

The very early texts from the ancient Shuruppak which have reached the
Louvre were published by THUREAU-DANGIN in his _Recueil_ named above,
and in the _Revue d’Assyriologie_, vi (1904), pp. 143-54, he wrote
_Contrats archaïques provenant de Shuruppak_, with the intention of
deciphering and explaining them as far as possible.


CONTRACT LITERATURE.

Many texts published in the above collections of Temple Accounts are
bonds, deeds of sale, even legal decisions, &c., and really come under
the head of contracts. But even among the collections of contracts some
accounts have been published, and it is scarcely necessary here to quote
the same book under both heads.

Curiously enough the first contracts to attract attention were of an
early date. LOFTUS found at Senkereh a number of most interesting
case-tablets, the principal document being invariably enclosed in a clay
envelope which, as was subsequently discovered, was inscribed with an
abstract or practical duplicate of the principal document. Many
speculations arose as to their purpose. Some regarded them as a
substitute for money, or cheques, banknotes in clay (so LAYARD in 1853),
and other weird guesses. GEORGE SMITH first recognized their meaning and
value for history by publishing their dates, the names which the
Babylonians gave to the years, calling them after some prominent event.

Discovered in 1854, they were first published in 1882 by J. N.
STRASSMAIER. Owing to some misapprehension, as given in LAYARD’S
_Nineveh and Babylon_, p. 496, despite the clear statement on pp. 270-72
of LOFTUS, _Travels and Researches in Chaldea and Susiana_, they were
called _Die altbabylonischen Verträge aus Warka_ in the _Beilage_ to the
_Verhandlungen des V. internationalen Orientalistischen Congresses zu
Berlin_, 1881. They were accompanied by a list of words and names. E.
and V. REVILLOUT discussed them most interestingly in _Une Famille de
commerçants de Warka_. They proved to be of the time of Hammurabi and
his son Samsu-iluna after these kings had expelled Rîm-Sin from the
South of Babylonia. But there were several dated in the reign of
Rîm-Sin, and in those of Sin-idinnam and Nûr-adad, kings who had
preceded him. Thus they showed how, despite changes of dynasty, the
civil life of the subject population went on undisturbed, and customs
changed but little. They show how closely the Code pictures the daily
life of the people. As most illustrative of the Code, constituting a
contemporary commentary on its regulations and consisting chiefly of
examples of the same cases as there considered, we may here group in
order of publication the collections from the First Dynasty of Babylon.

_Inscribed Babylonian Tablets in the possession of Sir Henry Peek,
Bart._, 1888, contained a few texts of this period, copied, transcribed,
and translated by T. G. PINCHES. This made considerable advances, but
there was not yet enough material to solve many obscurities. These
tablets came from Sippara.

It was evident that the only hope of understanding such technical
documents lay in the publication of further material, so that by
comparison of similar passages some information could be obtained as to
alternative readings and phrases.

In 1893 a great advance was made by MEISSNER with his _Beiträge zum
altbabylonischen Privatrecht_ (Leipzig, Hinrichs), which gave a full
transliteration and translation of 111 texts, all carefully published in
autography. Full notes and invaluable comments made this a standard
work. The texts were chiefly from tablets found at Sippara, and stored
in the British Museum, and at Berlin where a large quantity had been
purchased. MEISSNER also reproduced some of the Warka texts.

In the fourth volume of SCHRADER’S _Keilinschriftliche Bibliothek_,
1896, F. E. PEISER gave a collection of contract texts in transcription
and translation, arranged in chronological order. He included thirty-one
texts of this period (Berlin, Reuther and Reichard). These were called
_Texte juristischen und geschäftlichen Inhalts_, and marked a further
advance in treatment. In this year also began the great series of
publications called _Cuneiform Texts from Babylonian Tablets, &c., in
the British Museum, printed by order of the Trustees_. Vols. ii, iv, vi,
and viii (1896, 1897, 1898, 1899), contain copies of no fewer than 395
texts mostly of this period, a most valuable addition to our knowledge
of the subject. They were from the practised hand of T. G. PINCHES, who
gave in the _Journal of the Royal Asiatic Society_, 1897 and 1899, some
transliterations and translations with notes and comments on fifteen of
them. They were all Sippara tablets.

In 1902 appeared _Une saison de fouilles à Sippar_ (Le Caire, Institut
Français), in which V. SCHEIL gave an account of his explorations at Abu
Habba, the ancient Sippara, in 1892-1893, and many texts in a
preliminary form, with transcription, translation, and comments, thus
making known a most valuable supplement to the earlier publications of
First Dynasty tablets.

In 1906 TH. FRIEDRICH published in the _Beiträge zur Assyriologie_, vol.
v, a number of texts from the tablets found by SCHEIL at Sippara, and
then preserved in the Museum at Constantinople, as _Altbabylonische
Urkunden aus Sippara_ (Leipzig, Hinrichs), which completed SCHEIL’S work
in many ways.

In 1906, A. H. RANKE published _Babylonian Legal and Business Documents
from the time of the First Babylonian Dynasty_, as vol. vi, part 1, of
the Series A, Cuneiform Texts, of the _Publications of the Babylonian
Expedition of the University of Pennsylvania_ (Philadelphia, University
of Pennsylvania). They probably all came from Sippara, though two may be
from Babylon, unless the king was then holding Court in Sippara.

In 1908 J. É. GAUTIER gave us _Archives d’une famille de Dilbat au temps
de la Première Dynastie de Babylon_ (Le Caire, Institut Français), with
transcriptions and translations of sixty-six tablets from a new site,
which the contents of the texts certainly prove to be that of the
ancient city of Dilbat. The work was well done, but needed revision by
fresh material.

About this time native diggers brought to light fresh material from
several new sites. Especially valuable were the texts from Kish, Larsa,
Opis, Babylon, and Shittab. These were eagerly acquired by the various
Museums, and shortly gave rise to a crop of fresh publications.

In 1909 came _Babylonian Legal and Business Documents from the time of
the First Dynasty of Babylon_, by A. POEBEL, being vol. vi, part 2, of
Series A, Cuneiform Texts, of the _Publications of the Babylonian
Expedition of the University of Pennsylvania_ (Philadelphia, University
of Pennsylvania). Again a fresh site, the ancient Nippur, yielded its
contribution. Here most of the tablets exhibit the old Sumerian
phraseology.

A. UNGNAD published, in 1909, a large number of texts from tablets in
the Berlin Museum, acquired at various dates. They appeared as vols.
vii, viii, ix of the _Vorderasiatische Denkmäler_ (Leipzig, Hinrichs).
Most of them undoubtedly came from Sippara; one from Der-ez-Zor, near
the Chabour, and those in vol. vii from Dilbat, apparently the modern
Delam. Thus we can again compare contemporary documents from a fresh
site, which proves to have been influenced by other peoples, the
Mitanni, Elamites, &c. In _Urkunden aus Dilbat_, vol. vi, part 5, of the
_Beiträge zur Assyriologie_ (Leipzig, Hinrichs, 1909), A. UNGNAD
transcribes, translates, and comments upon the large collection of
letters and contracts which had been published from Dilbat. His works
brought a large amount of most valuable information for the period.

In 1910 THUREAU-DANGIN issued _Lettres et contrats de l’époque de la
Première dynastie babylonienne_ (Paris, Geuthner), a most valuable work
for its indexes, as well as the interesting texts. A long and extremely
fine text was also given by him as _Un jugement sous Ammiditana_, in
_Revue d’Assyriologie_, 1910, pp. 121-7. Here were texts from Sippara,
Babylon, Dilbat, Kish, and possibly Shittab, as well as some more from
Der-ez-Zor. In the _Revue d’Assyriologie_, 1911, pp. 68-79,
THUREAU-DANGIN published _Sept contrats_ of the reigns of the kings of
Kish, who were contemporary with the foundation of the First Dynasty and
themselves Amorites. ST. LANGDON published several more of these
_Tablets from Kish_ in the _Proceedings of the Society of Biblical
Archaeology_, 1911, pp. 185-96, and in the same journal for 1912, pp.
109-13, gave eleven _Contracts from Larsa_.

C. E. KEISER published _Tags and Labels from Nippur_ in _The Museum
Journal of Philadelphia_, vol. iii, no. 2, pp. 29-31. These closely
related documents form a borderland between contracts and accounts.

These contracts are so much more important for the elucidation of the
Code than any later documents that we may now notice the chief
discussions of them.

Not much of this class of documents has yet come to light for the Third
or Kassite Dynasty of Babylon. A. T. CLAY gave us vols. xiv, xv of the
_Publications of the Babylonian Expedition of the University of
Pennsylvania_ (Philadelphia, University of Pennsylvania, 1906), entitled
_Documents from the Temple Archives of Nippur, dated in the Reigns of
Cassite Rulers_. They showed how the old customs were preserved and
modified with fresh immigrations. These were followed in 1912 by
_Documents from the Temple Archives of Nippur, dated in the Reigns of
Cassite Rulers, the Museum Publications of the Babylonian Section_, vol.
ii, no. 2 (Philadelphia Museum), completing the collections. Some of the
same sort from Nippur, in the E. A. HOFFMANN collection in the
Metropolitan Museum in New York, were noted in RADAU’S _Early Babylonian
History_, pp. 328-9 (New York, 1900).

F. E. PEISER, in 1905, had published _Urkunden aus der Zeit der dritten
babylonischen Dynastie in Urschrift, Umschrift und Übersetzung, dazu
Rechtsausführungen von J. Kohler_ (Berlin, Wolf Peiser). These appear to
have belonged to a family of Babylonians, some of whom adopted Cassite
names. More of the same group found their way to the Berlin Museums, and
more are in private hands and in the Louvre.

C. J. BALL contributed to the _Proceedings of the Society of Biblical
Archaeology_ for 1907, pp. 273-4, _A Kassite Text_.

D. D. LUCKENBILL in the _American Journal of Semitic Languages and
Literatures_, 1907, pp. 280-322, gave a most valuable _Study of the
Temple Documents from the Cassite Period_.

The scarcity of legal documents from this period may be estimated from
the fact that in _Texte juristischen und geschäftlichen Inhalts_ (see p.
81, above) only the so-called boundary-stones could be quoted.

It is in the Third Dynasty of Babylon that the Boundary-Stone or Kudurru
inscriptions first appear. These have been much discussed, especially
from the side of the curious symbols which occur upon them, often
regarded as signs of the Zodiac, or emblems of the gods.

In the _Beiträge zur Assyriologie_, vol. ii, pp. 111-204, a number of
such texts were published and partly discussed by C. BELSER, as
_Babylonische Kudurru-Inschriften_. PEISER incorporated some in the
fourth volume of SCHRADER’S _Keilinschriftliche Bibliothek_. W. J. HINKE
gave in 1907, as vol. iv of Series D of the _Publications of the
Babylonian Expedition of the University of Pennsylvania_ (Philadelphia,
University of Pennsylvania), _A New Boundary-Stone of Nebuchadrezzar I
from Nippur_, in which he also gave a full bibliography of the subject,
collected names, words, &c., from all the texts of the sort hitherto
published, and discussed the symbols. In _Babylonian Boundary-stones and
Memorial Tablets in the British Museum, with an Atlas of Plates_
(London, British Museum, 1912), L. W. KING gave the whole of the British
Museum material. In 1911 HINKE contributed to the _Semitic Study Series_
(Leiden, E. J. Brill), a useful collection in _Selected Babylonian
Kudurru Inscriptions_. Many such inscriptions are published by V. SCHEIL
with transcriptions and translations in _Mémoires de la Délégation en
Perse_ (Paris, E. Leroux), vols. ii, pp. 86-94, 97-116; vi, pp. 30-47;
vii, 137-53; x, 87-96. F. STEINMETZER contributed _Eine
Schenkungsurkunde des Königs Melishichu_ to the _Beiträge zur
Assyriologie_, vol. viii, pp. 1-38.

HINKE gives an excellent bibliography of the Babylonian _kudurru_
inscriptions, their publications, transliterations, translations, and
discussions. Some are of the nature of _Freibriefe_, and MEISSNER so
treated one in the _Zeitschrift für Assyriologie_, 1889, pp. 259-67, cf.
pp. 403-4. He also wrote _Assyrische Freibriefe_ in the _Beiträge zur
Assyriologie_ II. (1894), pp. 565-72, 581-8, giving text,
transliteration, translation, and discussion of three examples from the
reign of Ashurbanipal and one of Adad-nirari. In my _Assyrian Deeds and
Documents_ (Cambridge, Deighton, Bell & Co., 1902), nos. 646, 647, 648,
and 651, I republished these texts and added nos. 649, 650, two texts of
Ashur-etil-ilâni, son and successor of Ashurbanipal, nos. 652, 653, 654,
655, 656 (= 808 in vol. ii) of Adad-nirari, nos. 657, 658 (dated in B.
C. 730), 659 (names Tiglath-Pileser), 660 (now joined to other fragments
as 809, an important grant by Sargon II in connexion with the site of
Dur-Sargon), 661, 662(?), 663, and possibly also nos. 669, 671, 672,
673, 674 (see now no. 1101), 692 (now part of 807), 714 (now part of
809), and in vol. ii, nos. 734, 735, 736, 737, 738(?), 739, 740(?),
741(?), on to 752, all possible fragments of similar proclamations,
_Freibriefe_, charters, or the schedules to them. I have collected the
references here, as the texts seem to have met with insufficient
attention. WINCKLER had published parts of some of them in his
_Altorientalische Forschungen_ (Leipzig, E. Pfeiffer, 1898), vol. ii,
pp. 4-8, and assigned the Ashur-etil-ilâni texts to Esarhaddon’s reign,
and in the note on p. 192 to Sin-shar-ishkun. F. E. PEISER made some
acute suggestions as to the readings of the text and their meanings.

On no. 809 MEISSNER wrote a full discussion in the _Mitteilungen der
Vorderasiatischen Gesellschaft_, 1903, pp. 85-96.

In 1883 H. V. HILPRECHT published _Freibrief Nebukadnezar’s I._
(Leipzig, Hinrichs), with great advances on the previous treatment, and
published others in _Old Babylonian Inscriptions_, vol. i, part 1
(1893), nos. 80, 83, part 2 (1896), nos. 149, 150. In 1891 K. L.
TALLQVIST wrote on _Babylonische Schenkungsbriefe_ (Helsingfors). In
the _Beiträge zur Assyriologie_, 1894, pp. 258-73, FR. DELITZSCH
published and admirably treated _Der Berliner Merodachbaladan-Stein_.

ED. CUQ in _La Propriété foncière en Chaldée_ gave a new view of the
meaning of these documents and the significance of their first appearing
in the Kassite period. It will be seen from the titles given in the
above works that no complete unanimity prevails as to their nature and
purpose.

We may now turn back to the class of texts usually called contracts.

The Assyrian empire has not yielded much of this class of document,
before the time of Sargon II, B.C. 785-722. A number of texts have been
reported in the _Mitteilungen der Deutschen Orient-Gesellschaft zu
Berlin_ as found at Asshur by the German excavators there, which date
from times both early and late. The publication of these texts will
doubtless soon be achieved and add greatly to our knowledge. The
treatment in Assyria seems to be largely reminiscent of that of
Babylonia under the First Dynasty, but there are wide divergences
doubtless due to the foreign elements in the Assyrian population. We are
not yet possessed of sufficient material to assign the changes to their
true causes, but we know enough to be sure that they were not on the
whole due to contemporary developments in Babylonia.

In _Assyrian Deeds and Documents relating to the transfer of Property_,
in three volumes, by C. H. W. JOHNS, published in 1898-1901 (Deighton,
Bell & Co., Cambridge, 3 vols.), practically all the material of this
class in the British Museum then catalogued was edited. These tablets
apparently all came from Nineveh. There are now many more similar
tablets in the British Museum listed in the _Supplement to the
Catalogue_. Recently in _Assyrische Rechtsurkunden von J. Kohler und A.
Ungnad_ (Leipzig, Ed. Pfeiffer, 1913), a series of transliterations and
translations have been commenced which will form a key to the whole,
including many other texts since published.

It was on these texts that J. OPPERT formed his views given in _Das
Assyrische Landrecht_, and in _Le droit de retrait lignager à Ninive_,
see p. 72.

V. SCHEIL published in his _Notes d’épigraphie_ in the _Recueil de
Travaux_, xx, note xl (1898), pp. 202-5, four tablets which possibly did
not come from Nineveh. I republished the texts as nos. 779-82 in my
_Deeds and Documents_ above. The first is discussed by MEISSNER as _Eine
assyrische Schenkungsurkunde_ in the _Mitteilungen der Vorderasiatischen
Gesellschaft_, 1903, pp. 103-5, where he points out that my no. 619 is
another like text. Here Adi-mati-ilu and other property were given to a
son who was to take a double portion and divide the rest with his
brothers.

F. E. PEISER in the _Orientalistische Litteraturzeitung_, 1905, cols.
130-4, gave _Ein neuer assyrischer Kontrakt_, V. SCHEIL in the same
journal for 1904, col. 70, and in the _Recueil de Travaux_, xxiv, note
lxii, p. 24, pointed out others, while in _Vorderasiatische
Schriftdenkmäler_, vol. i, nos. 84-111, A. UNGNAD published several
more from Kannu’ and Kerkûk. S. SCHIFFER discussed many of these as
_Keilschriftliche Spuren der in der zweiten Hälfte des 8_. _Jahrhunderts
von den Assyrern nach Mesopotamien deportierten Samarier, a Beiheft to
Orientalistische Litteraturzeitung_ (Berlin, W. Peiser, 1907), with
which may be compared an article in the _Proceedings of the Society of
Biblical Archaeology_, 1908, pp. 107-15, 137-41, on _The Lost Ten Tribes
of Israel_, by C. H. W. JOHNS. In an article _Aus dem Louvre_, F. E.
PEISER published in the _Orientalistische Litteraturzeitung_, 1903,
cols. 192-200, a new collation of no. 1,141 in my _Deeds and Documents_,
which had been formerly treated by PLACE, OPPERT, and STRASSMAIER; and
an edition of another text of this class. The new _Supplement to the
Catalogue of the Tablets in the Kouyunjik Collection in the British
Museum_, by L. W. KING (London, British Museum, 1914), shows that many
more such texts await publication, and there are others in the Museums
in England and America.

This class of document was early known for the times of the
Neo-babylonian Empire, and thousands of the so-called contracts have
been published down to the century before the Christian era.

J. OPPERT began the task of publishing and deciphering contracts, for
which his legal training as well as his philological learning especially
fitted him. His work may be gathered from the bibliography in the second
volume of the _Beiträge zur Assyriologie_, pp. 523-56. His great effort
was _Documents juridiques de l’Assyrie et de la Chaldée_ (Paris,
Maisonneuve, 1877), but he continued to deal with contracts up to his
death. Here as elsewhere comparison of fresh material continually
brought new light.

A number of such tablets were copied by T. G. PINCHES(?) for the fifth
volume of _Inscriptions of Western Asia_ (London, British Museum, 1909,
plates lxvii, lxviii), on which OPPERT built his determination of
Babylonian measures. J. N. STRASSMAIER, in 1855, published _Die
babylonischen Inschriften im Museum zu Liverpool nebst anderen aus der
Zeit von Nebukadnezar bis Darius_ (Leiden, J. Brill).

The tablets in the British Museum from Sippara, Babylon, Borsippa, &c.,
dated in the reigns of Nebuchadrezzar, Nabopolassar, Evil-Merodach,
Neriglissar, Nabonidus, Cyrus, Cambyses, and Darius, were also edited by
J. N. STRASSMAIER as _Babylonische Texte, Inschriften von den Thontafeln
des British Museums copiert und autographiert_, in twelve volumes
(Leipzig, 1887-1897). On the mass of material thus rendered available to
scholars were based a very large number of memoirs and monographs which
may be arranged here. K. L. TALLQVIST, in 1890, published _Die Sprache
der Contracte Nabû-nâ’id’s_ (Helsingfors, J. C. Frenckell), in which he
collected all the words and phrases occurring in these texts, with
useful indexes. R. ZEHNPFUND gave _Babylonische Weberrechnungen_ in the
_Beiträge zur Assyriologie_, i, pp. 492ff. (1890): L. DEMUTH, _Fünfzig
Rechts-und Verwaltungsurkunden aus der Zeit des Königs Kyros_, in the
same journal, vol. iii, pp. 393-444 (1898); E. ZIEMER, _Fünfzig
Rechts-und Verwaltungsurkunden aus der Zeit des Königs Kambyses_, same
volume, pp. 445-92; V. MARX, _Die Stellung der Frauen in Babylonien
gemäss den Kontrakten aus der Zeit von Nebukadnezar bis Darius_, same
journal, vol. iv, pp. 1-77, 1902; and E. KOTALLA, _Fünfzig babylonische
Rechts-und Verwaltungsurkunden aus der Zeit des Königs Artaxerxes I_,
same volume, pp. 551-74. FR. DELITZSCH contributed _Notizen zu den
neubabylonischen Kontrakttafeln_, same journal, vol. iii, pp. 385-92
(1898), and J. KOHLER, _Ein Beitrag zum neubabylonischen Recht_, vol.
iv, pp. 423-30. F. E. PEISER, in 1889, published _Keilinschriftliche
Actenstücke aus babylonischen Städten_ (Berlin, W. Peiser), and, in
1890, _Babylonische Verträge des Berliner Museums_ (Berlin, W. Peiser).
This marked great advances on OPPERT’S work, owing to STRASSMAIER’S new
material and the Berlin collections. He next contributed a selection of
transliterations and translations to the fourth volume of SCHRADER’S
_Keilinschriftliche Bibliothek_ (1896), p. 81, above. Then from
1890-1898 appeared _Aus dem babylonischen Rechtsleben_ (Leipzig,
Pfeiffer), in conjunction with J. KOHLER, containing many new texts. A.
B. MOLDENKE, in 1893, published for the Metropolitan Museum at New York
a volume of _Cuneiform Texts_, all of this period. In 1890 appeared
_Recherches sur quelques contrats babyloniens_, by A. BOISSIER (Paris,
E. Leroux).

In the _Zeitschrift für Assyriologie_ (Weimar, E. Felber, 1894) Y. LE
GAC published _Quelques inscriptions assyro-babyloniennes du Musée
Lycklama à Cannes_, pp. 385-90, and in _Babyloniaca_ (Paris, P.
Geuthner, 1910), _Textes babyloniens de la Collection Lycklama à
Cannes_, pp. 33-72. In 1902 T. G. PINCHES contributed to the
_Verhandlungen des XIII_. _Orientalistischen Congresses_ some _Notes on
a Small Collection of Tablets from the Birs Nimroud belonging to Lord
Amherst of Hackney_.

In vols. III-VI of the _Vorderasiatische Schriftdenkmäler_ (1907-1908),
A. UNGNAD published many texts of this period, and gave later some
valuable _Untersuchungen_ on the same, _Aus der altbabylonischen
Kontrakt-literatur_, to the _Orientalistische Litteraturzeitung_, 1912,
cols. 106-8.

A new source for this material was the finds at Nippur, printed in _The
Publications of the Babylonian Expedition of the University of
Pennsylvania_, Philadelphia, Series A. _Cuneiform Texts_, vol. viii,
part 1 contained _Legal and Commercial Transactions from the
Neo-babylonian Empire to Darius II_, by A. T. CLAY, 1908; vols. ix and x,
by the same author, contained _Business Documents of Murashû Sons of
Nippur in the reign of Artaxerxes I_ (1898), and _Business Documents in
the reign of Darius II_ (1904). A new series has since been commenced.

_The Museum Publications of the Babylonian Section of the University of
Pennsylvania_ (Philadelphia Museum), vol. ii, no. 1, gives _Business
Documents of Murashû Sons of Nippur_, by A. T. CLAY (1912), and vol. ii,
no. 2, _Documents from the Temple Archives at Nippur_, by the same
author (1912).

_Selected Business Documents of the Neo-Babylonian Period_ in the
_Semitic Study Series_, by A. UNGNAD (Leiden, Brill, 1908), forms a
useful introduction to the subject.

In 1911 appeared _Hundert ausgewählte Rechtsurkunden aus der Spätzeit
des babylonischen Schrifltums von Xerxes bis Mithridates, 485-93 v.
Chr._, by A. UNGNAD and J. KOHLER (Leipzig, Pfeiffer), and I. L. HOLT
contributed to the _American Journal of Semitic Languages and
Literatures_ a study of _some Tablets from the R. C. Thompson Collection
in Haskell Oriental Museum, The University of Chicago_.

Of considerable interest as in some senses a link between Babylonia and
Palestine are the Cappadocian Tablets. The first notice of them was
given by T. G. PINCHES in the _Proceedings of the Society of Biblical
Archaeology_, Nov. 1, 1881, pp. 11-18. Some tablets in the British
Museum were acquired from a dealer who said they had been found in
Cappadocia. The script was then quite unfamiliar, and they were supposed
at first to be written in a language neither Sumerian nor Semitic.
GOLENISCHEFF published in 1891 the text of twenty-four tablets of the
same class which he had acquired at Kaisareyeh. He made out that many
words were Assyrian and read many names. FR. DELITZSCH made a most
valuable study of them in the _Abhandlungen der philos.-hist. Classe der
K. Sächs. Gesellschaft d. Wissenschaften_, 1893, no. 11. In 1894 P.
JENSEN in the _Zeitschrift für Assyriologie_, vol. ix, pp. 62-81, made
many corrections and additions. F. E. PEISER then discussed them in his
introduction to the fourth volume of SCHRADER’s _Keilinschriftliche
Bibliothek_, and gave the transcription and translation of the texts of
nine, pp. 50-56. A considerable number more were discovered at Boghaz
Köi, Kara Eyuk, and elsewhere, and published by V. SCHEIL in the
_Mémoires de la Mission en Cappadoce_, and commented upon by A. BOISSIER
in the _Proceedings of the Society for Biblical Archaeology_, 1900, pp.
106 ff. Four Cappadocian tablets were published by THUREAU-DANGIN among
his _Lettres et Contrats_, see p. 82, above.

In _Babyloniaca_, 1908, pp. 1-45, A. H. SAYCE translated the
Golenischeff texts, and others published by Chantre, or found by Ramsay,
&c.

T. G. PINCHES with A. H. SAYCE published and discussed _The Cappadocian
Tablet from Yuzghat in the Liverpool Institute of Archaeology_, 1906.

In 1908 T. G. PINCHES published twenty more in the _Annals of
Archaeology of the Liverpool University_, vol. i, pp. 49-80. In the
_Florilegium de Vogüé_, pp. 591-k, THUREAU-DANGIN discussed _Un acte de
répudiation sur une tablette cappadocienne_, 1909, and in the _Revue
d’Assyriologie_, 1911, pp. 142-51, gave more texts fixing _La date des
tablettes cappadociennes_ as contemporary with the _Dynasty of Ur_ in
Babylonia, thus proving cuneiform to have been widely used in that
region to write a Semitic language long before the time of Hammurabi. In
_Babyloniaca_, 1911, pp. 65-80, A. H. SAYCE gave some _Cappadocian
Cuneiform Tablets from Kara Eyuk_, affiliating them with early Assyrian
rulers. In the same journal, 1911, pp. 216-28, A. BOISSIER gave more
texts under the title _Nouveaux documents de Boghaz Köi_. In the same
journal, 1912, pp. 182-93, A. H. SAYCE wrote upon _The Cappadocian
Cuneiform Tablets of the University of Pennsylvania_.

All these works have contributed comments of more or less value, and the
whole point to a close connexion with Babylonia and Assyria, and the
extended use of cuneiform in Cappadocia from very early times, whence it
was doubtless taken over by the later Hittites.


BABYLONIAN AND ASSYRIAN LETTERS.

A very large number of letters have been preserved to us from all
periods of Babylonian and Assyrian history. Many of them are addressed
to private correspondents, and concern matters of everyday life. They
are often most obscure, as they assume so much knowledge on the part of
the recipient which is withheld from us. Where we can grasp their
reference they furnish considerable light upon social conditions.

A large number, however, are royal letters or dispatches from the king
and his officers to subordinates, or _vice versa_. These more often
concern public affairs.

As yet few letters have come down to us which we can date before the
First Dynasty of Babylon, but some will be found in the _Inventaire des
tablettes de Tello_ (see p. 80), and among the various publications of
Temple accounts and contracts, as early as the times of Sargon of Akkad.

In the _Beiträge zur Assyriologie_, vol. ii, pp. 557-64, 572-9, MEISSNER
published _Altbabylonische Briefe_ (1893), with discussions.

In the times of Hammurabi, or the First Dynasty of Babylon, our sources
for epistolary correspondence become very ample. L. W. KING in his
magnificent work, _The Letters and Inscriptions of Hammurabi, King of
Babylon, about B. C. 2200; to which is added a series of letters of
other Kings of the First Dynasty of Babylon_ (vol. i, _Introduction and
Babylonian Texts_; vol. ii, _Babylonian Texts_, continued; vol. iii,
_English Translation, Commentary, Vocabularies, Introduction, etc._,
London, Luzac & Co., 1898), gave a complete edition of these letters.
The materials for history and social life were epoch-making. In the
_Beiträge zur Assyriologie_ G. NAGEL translated a number of these texts,
_Briefe Hammurabi’s an Sin-iddinam_, vol. iv, pp. 434-83, to which FR.
DELITZSCH added _Zusatzbemerkungen_, pp. 483-500. He, with J. A.
KNUDTZON, wrote on the same subject, vol. iv, pp. 88-100. M. W.
MONTGOMERY took _Briefe aus der Zeit des babylonischen Königs Hammurabi_
as subject for her doctor’s dissertation (Leipzig, Pries, 1901). A.
KLOSTERMANN published _Ein diplomatischer Briefwechsel aus dem 2.
Jahrtausend v. Chr._ (Leipzig, Deichert, 1903). C. V. GELDEREN
contributed _Ausgewählte babylonisch-assyrische Briefe_ to the _Beiträge
zur Assyriologie_, iv, 1902, pp. 501-45. Another great collection was
published by THUREAU-DANGIN in _Lettres et contrats de l’époque de la
première dynastie babylonienne_ (Paris, P. Geuthner, 1910). The author
transliterated, translated, and commented upon three of these texts as
_Lettres de l’époque de la première dynastie babylonienne_ in _The
Hilprecht Anniversary Volume_, pp. 156-63.

_Les Lettres de Hammurapi à Sin-idinnam, transcription, traduction et
commentaire, précédées d’une étude sur deux caractères du style
assyro-babylonien_, by F. C. JEAN (Paris, J. Gabalda, 1913), gives an
idea of the subject.

P. S. LANDERSDORFER, in 1908, had edited _Altbabylonische Privatbriefe,
transkribiert, übersetzt und kommentiert, nebst einer Einleitung und 4
Registern_ (Paderborn, Schöningh), and G. A. BARTON gave an article _On
an old Babylonian Letter addressed to Lushtamar_ in the _Journal of the
American Oriental Society_, pp. 220-22.

A. SCHOLLMEYER wrote on _Altbabylonische Privatbriefe_ in _Babyloniaca_,
vi, pp. 57-64, 1912, and in 1911 published _Neuveröffentlichte
altbabylonische Briefe und ihre Bedeutung für die Kultur des Orients:
Sechs Vorträge vor der Hildesheimer Generalversammlung_ (Köln, P.
Bachem).

E. EBELING contributed to the _Revue d’Assyriologie_, 1913, pp. 15 ff.,
105-56, articles on _Altbabylonische Briefe_. _The First Letter of
Rîm-Sin, King of Larsa_, was published by ST. LANGDON in the
_Proceedings of the Society for Biblical Archaeology_, 1911, pp. 221-2.

The period of the Third or Kassite Dynasty has not yet yielded much.

H. RADAU made as much as possible out of a number of fragments found at
Nippur in vol. xvii, 1 of Series A of _The Publications of the
Babylonian Expedition of the University of Pennsylvania_ called _Letters
to Cassite Kings from the Temple Archives of Nippur_ (1908).

Very little more is known of Epistolary Literature till we reach the
Sargonide Dynasty in Assyria. With the Library of Ashurbanipal at
Nineveh were found a large number of letters and dispatches, alike
royal, public and private, Assyrian and Neo-babylonian, which early
attracted notice. S. A. SMITH published a number from the collections in
the British Museum in his _Assyrian Letters from the Royal Library at
Nineveh, transcribed, translated, and explained_ (Leipzig, Pfeiffer,
1887-1888), and in _Miscellaneous Assyrian Texts of the British Museum
with Textual Notes_ (Leipzig, Pfeiffer, 1887), besides a series of
articles in the _Proceedings of the Society of Biblical Archaeology_ for
1887-1888 called _Assyrian Letters_.

The present writer dealt with _Sennacherib’s Letters to his Father
Sargon_, in the _Proceedings of the Society of Biblical Archaeology_,
1895, pp. 220-39. FR. DELITZSCH in the _Beiträge zur Assyriologie_, vol.
i, pp. 185-248, 613-31, and vol. ii, pp. 19-62, under the title _Zur
assyrisch-babylonischen Briefliteratur_, laid deep the foundations of
the study of letters, editing many fresh texts (1890-1894). H. WINCKLER
published a large number of letters in his _Sammlung von
Keilschrifttexten_ (Leipzig, Pfeiffer, 1894). T. G. PINCHES published
_Zwei assyrische Briefe_ (Leipzig, Pfeiffer, 1887).

R. F. HARPER has continued to edit the _Assyrian and Babylonian Letters
belonging to the Kouyunjik Collections of the British Museum_, vol. i,
1892; vol. ii, 1893; vol. iii, 1896; vol. iv, 1896; vol. v, 1900; vol.
vi, 1902; vol. vii, 1902; vol. viii, 1902; vol. ix, 1909; vol. x, 1911;
vol. xi, 1911; vol. xii, 1913; vol. xiii, 1913 (Chicago University
Press; Luzac & Co., London), which will contain all the British Museum
collections from Nineveh. These copies have been made with the greatest
care, and constitute the chief source of this material up to the present
time. Numerous works have been built upon them as foundation.
CHRISTOPHER JOHNSTON wrote on _The Epistolary Literature of the
Assyrians and Babylonians_ (Baltimore, 1898), reprinted from _Journal of
the American Oriental Society_. E. BEHRENS published in 1906 his
_Assyrisch-babylonische Briefe kultischen Inhalts aus der
Sargonidenzeit_ (Leipzig, Pries, 1905). LEHMANN-HAUPT gave _Zwei
unveröffentlichte Keilschrifttexte_ in _Hilprecht Anniversary Volume_
(1909), pp. 256-8.

In 1910 came M. ZEITLIN’S _Le style administratif chez les Assyriens;
choix de lettres assyriennes et babyloniennes, transcrites, traduites et
accompagnées de notes_ (Paris, Geuthner). In the _Zeitschrift für
Assyriologie_ C. BEZOLD gave _Zwei assyrische Berichte_ (vol. xxvi,
1912, p. 114-25).

In 1911, E. G. KLAUBER wrote _Zur babylonisch-assyrischen
Briefliteratur_ in _Babyloniaca_, iv, pp. 180-86; and in 1912 _Zur
Politik und Kultur der Sargonidenzeit: Untersuchungen auf Grand der
Brieftexte_ in the January and July numbers of vol. xxviii of the
_American Journal of Semitic Languages and Literatures_. In the January
number of this volume also appeared L. WATERMAN’S _Textual Notes on the
Letters of the Sargon Period_. A most valuable contribution to an
obscure period of Ashurbanipal’s reign was made by H. H. FIGULLA, _Der
Briefwechsel Bêlibni’s: Historische Urkunden aus der Zeit Asurbanipals_,
in _Mitteilungen der Vorderasiatischen Gesellschaft_ (Leipzig, Hinrichs,
1912). E. G. KLAUBER, in 1910, published _Assyrisches Beamtentum nach
Briefen aus der Sargonidenzeit_ (Leipzig, Hinrichs), and in _Der alte
Orient_, xii, Heft 2, _Keilschriftbriefe: Staat und Gesellschaft in der
babylonisch-assyrischen Briefliteratur_ (Leipzig, Hinrichs, 1911). V.
SCHEIL under the title _Diplomatica_ dealt with similar texts in the
_Hilprecht Anniversary Volume_, pp. 873 ff.

Letters of the Neo-Babylonian period are numerous but not much
published. R. C. THOMPSON published _Late Babylonian Letters_ (London,
Luzac & Co., 1906) with translations, &c. FR. MARTIN gave _Lettres
néo-babyloniennes_ (Paris, Champion, 1909), and _Trois lettres
néo-babyloniennes_ in the _Hilprecht Anniversary Volume_, 1909. In the
_Proceedings of the Society of Biblical Archaeology_, 1911, pp. 157-8,
T. G. PINCHES published _Two late Babylonian Letters_.




NOTES


[1] This, at any rate, is usually stated on the authority of the monkish
chroniclers. J. R. GREEN in _A Short History of the English People_
(London, Macmillan, 1875), p. 46, records that the Ten Commandments and
a portion of the Law of Moses were prefixed to the code drawn up by
Alfred and so became part of the law of the land. Whether this ancient
tradition will survive modern criticism remains to be seen. The
tradition at any rate continues to command widespread credence.

[2] It has been pointed out that references to a particular edition
would be out of place here, but for elementary students one may refer to
_Ancient Law, its connexion with the early history of society and its
relation to modern ideas_ (London, G. Routledge and Sons). The many
references given in the bibliography to various ancient legislations
will suffice for our comparisons, but articles in the _Encyclopaedia
Britannica_ or the _Encyclopaedia of Religion and Ethics_ may be
consulted for further study.

[3] So I was informed by the late Professor Maitland, but I have
unfortunately lost the reference he gave me.

[4] In the _Beiträge zur Assyriologie_, 1902, p. 86.

[5] Wednesday, Oct. 29, 1902.

[6] _The Laws of Moses and the Code of Hammurabi_ (London, A. & C.
Black, 1903).

[7] See on the racial character of the Sumerians, L. W. KING’s _Sumer
and Akkad_, _passim_, and the references there.

P. 2, notes 7, 8, 9, see _Survey of Bibliography, Anticipations_, p. 65.

[10] But this work may have to be done when the data exist for
recognizing the Sumerian Elements, cf. p. 76 and references to Sumerian
Law in the Index.

[11] The Code must have been drawn up later than the conquest of
Rîm-Sin, or rather its present redaction must. The date was discussed by
KING, SCHORR and E. MEYER as well as WINCKLER, most lately by E. CUQ,
see _Comptes rendus de l’Académie des Inscriptions et Belles-Lettres_,
Jan. 1912, p. 5.

[12] Most recently in _Ancient Babylonia_, by C. H. W. JOHNS (Cambridge,
University Press, 1913) pp. 76-80.

[13] See under these names in _Index and Bibliography_.

[14] See p. 67.

[15] See p. 74.

[16] See p. 74.


INDEX


   Abraham, 4, 17, 19, 24, 34.

   Abu Habba, 81.

   Abyssinia, 53.

   Adoption, 10.

   Akkad, 18.

   Akkadian language, 1.

   Alexander the Great, 20.

   Alfred’s laws, iii, n. 1.

   Amenophis, 9.

   Amhara, 53.

   Amnesty, 57.

   Amorite, 7, 8, 22, 36, 51, 53.

   Amraphel, 3, 17, 18.

   Amurru, 18.

   Anticipation of Code, 65.

   Appeal, 37.

   Arabs, 9.

   Arioch, 3, 19.

   Aristocrat, 32, 36.

   _Armenstiftler_, 9.

   Arrangement, xv.

   Artisan, 5.

   Ashurbanipal’s Library, 2, 65, 70.

   Assyriologist’s opinions, 20.

   Asylum, 35.

   Aztecs, 54.


   _Babel und Bibel_, 65.

   Babylon, 82, 86.

   Babylonia, 2, 62.

   Babylonian influence, 24.

   Bedawin, vi, 32.

   Berlin copy of Code, 2.

   Bogos Laws, 53.

   Book of the Covenant, 21, 25.

   Borsippa, 86.

   Boundary stones, 83.

   British Museum, 1, 2.

   _Bürgerliche Gesetzbuch_, 14.

   _Bürgerliche Recht_, 65.

   Burglary, 36.


   Canaan, 17, 22.

   Canaanite law, 22, 59.

   Cappadocia, 88.

   Chaldees, 4.

   Chedorlaomer, 19.

   Chronology, 17.

   Cities of refuge, 35.

   Class legislation, 31, 32.

   _Code civile_, 14.

   Code of Hammurabi, 2, 3, 4, 65.

   Common-law dower, 6.

   Common Semitic custom, 24, 51.

   Compensation, 32, 33.

   Constantinople Museum, 66, 81.

   Contracts, 80.

   Copies of Code, late, 2.

   Crimes and Punishments, 72.

   Criminal law, 4.


   Damage to crops, 37.

   Daniel, 1.

   Date of Code, 3, n. 11.

   Death penalty, 36.

   Debt, 56.
     See hostage, slave.

   Decads, 61.

   Deed of sale, 35.

   Deposit, 38.

   Deuteronomy, 21.

   Differential treatment, 32, 36, 42, 46.

   Dilbat, 82.

   Discovery of Code, 1.

   Discussions of Code, 69.

   Divine punishment, 46, 47.
     See oath, ordeal.

   Doctors, 35.

   Double portion, 85.

   Dréhem, 78.

   Duplicates of Code, 2.


   Earlier codes, 3.
     See Sumerian.

   Editio princeps, 65.

   Education, 6.

   Elam, 1, 18, 52, 53.

   Ellasar, 3, 19.

   Entail, 5.

   Erasure, 1.

   Evolution of Code, 3.

   Evolution of institutions, 54.


   False claims, 37.

   Family, 5.

   Fines, 36.

   First Dynasty of Babylon, 2, 3, 7, 22.

   Fourteenth chapter of Genesis, 3, 17.

   Freedman, 11.


   Gemara, 15.

   Gortyna Code, iii.

   Grades of society, 7.

   Grammar of Code, 69.


   Hammurabi, 1, 4, 17.

   Hammurabi Amraphel, 3.

   Higher Critics, 17, iv.

   Hiram, 28.

   Hostage for debt, 41, 45.


   Imprisonment, 72.

   Incest, 60.

   Independence, vii.

   Integrity of Code, 3.

   Irrigation, 37.


   Jewish view of law, 15, 23.

   Jews, 16.

   Josephus, 61.


   Kadashman-Ellil, 9.

   Kassites, 83.

   Kidnapping, 34.

   King’s judges, 5.

   Kish, 82.

   Kudur-mabuk, 53.


   Language of Code, 72.

   Larsa, 3, 18, 83.

   Laws from Shamash, 1.

   Laws of Moses, 20.

   Legal documents, 4.

   Letters, 89.

   Leviticus, 21.

   Lexicography, 74.

   _Lex talionis_, 27, 28, 30, 31.

   Local government, 5.

   Louvre Museum, 1, 65.


   Mancipium, 42.

   Manu, Laws of, 47, 53, iii.

   Maximum penalty, 37.

   Mesopotamia, 4.

   Metayer system, 5.

   Mishna, 15.

   Moabites, 22.

   Mosaic Codes, 16, 17.

   Moses, 17, 20.

   Mycenaean pottery, 55.


   Nippur, 2.
     ——copy of Code, 34, 66, 76.
     ——tablets, 87.

   Noah, 52.

   Normans, 32.

   North Syrians, 22.


   Oath, 6, 35, 72, 73.

   Ordeal, 6, 72, 73.


   Palace, 8.

   Palestine, 4.

   Penalty of burning, 60.

   Pentads, 26, 71.

   Perpetual servitude, 34, 41.

   Persepolis, 1.

   Persia, 1.

   Phoenicians, 22, x.

   Poor man, 46.

   Position of women, 1, 78.

   Post, 5.

   Pre-Sargonic, 79.

   Priest’s daughter, 60.

   Primitive Semitic Law, vi.

   Purgation by oath, 35.

   Purity of text, 2, 3.


   Rabbinic, 15, 61.

   Rahab, 60, 61.

   Re-editions, 66.

   Retaliation, 32.

   Rîm-Sin, 3, 18, 19, 80, 90.

   Roman law, 6, 27, iii, iv.
     See Twelve Tables.


   Sacred numbers, 59.

   Senkereh, 80.

   Shamash, 1.

   Shinar, 3, 18.

   Shushan, 1.

   Shutruk-nakhunde, 1.

   Singara, 18.

   Sippara, 81, 86.

   Slave, 10, 39, 40, 73.

   Social grades, 32.

   Solomon, 28, 29.

   State dues and liabilities, 5.

   State of society, 5.

   Status, 7.

   Structure of Code, 71.

   Sumer, 18.

   Sumerian influence, 69.

   Sumerian law, vii, 52, 56, 75, 76.

   Susa, iv, 1, 2.

   Syntax of Code, 69


   Talmud, 15, 61.

   Tattoos, 12.

   Tavern, 60, 61.

   Tell el Amarna tablets, 9, 18, 22, 61, xi, xiii.

   Telloh, 76, 77, 78.

   Temple accounts, 76.

   Tenure, 5.

   Theft, 36.

   Theocratic Law, 47.

   The Priestly Code, 21.

   The will, 6.

   Tidal, 3, 19.

   Transcriptions and translations, 65.

   Translations only, 68.

   Trust, 38.

   Twelve Tables, 36, 53, 56, iii, x.


   Ur, 4, 53.

   Urkundenbuch, 67.

   Urukagina’s law, 76


   Vestals, 60, 61, 72.

   Votary, 60, 61, 72.

   Vowed women, 6, 60, 61.


   Warka, 80.

   West Goths, 53.

   William the Conqueror, 32.

   Wineshops, 60.

   Witchcraft, 6.

   Women, 1, 5.





AUTHORS MENTIONED



   Allotte de la Fuÿe, 79, 80.

   Arnold, W. R., 77.


   Ball, C. J., 83.

   Barton, G. A., 77, 78, 90.

   Behrens, E., 91.

   Belser, C., 83.

   Bezold, C., 91.

   Boissier, A., 87, 88.

   Bonfante, P., 68.

   Boscawen, W. St. Chad, 68, v.


   Clay, A. T., 76, 79, 83, 87.

   Cohn, G., 53, 72.

   Combe, E., 9, 74.

   Cook, S. A., 23, 47, 53, 73, 76, v.

   Cruveilhier, P., 70.

   Cuq, E., 72, 74, 85.


   Daiches, S., 69, 72, 74.

   Dareste, R., 8, 71, 72.

   Davies, W. W., 69.

   Deimel, A., 66, 78.

   Delaporte, L., 78.

   Delitzsch, Fr., 2, 65, 73, 75, 85, 87, 88, 89, 90, v.

   De Morgan, J., 1.

   Demuth, L., 86.

   Dhorme, P., 72, 79.

   Driver, S. R., 50.

   Dykes, D. O., 70.


   Ebeling, E., 90.

   Edwards, C., 68.


   Fehr, H., 72.

   Figulla, H. H., 91.

   Freund, L., 73.

   Friedrich, Th., 81.


   Gautier, J. E., 82.

   Gelderen, C. V., 89.

   Genouillac, H. de, 77, 78, 79, 80.

   Golenischeff, Fr., 88.

   Grimme, H., 53.


   Harper, R. F., 66, 70, 90, v.

   Haupt, P., 75, 76.

   Hilprecht, H. V., 74, 77, 84.

   Hinke, W. J., 83, 84.

   Hobhouse, L. T., 70.

   Holt, I. L., 88.

   Hommel, F., 9, 75.

   Huber, E., 79.

   Hussey, M. J., 79.


   Jean, F. C, 90.

   Jelitto, J., 72.

   Jensen, P., 88.

   Jeremias, A., 20, 76.

   Jhering, R. von, iii, _n._ 3.

   Johns, C. H. W., 68, 69, 70, 74, 84, 85, 86, 90, iv, v.

   Johnston, Chr., 91.


   Keiser, C. E., 83.

   Kent, C. F., 24, 25, 26, 37, 68, 71.

   King, L. W., 76, 77, 84, 86, 89, _n._ 11.

   Klauber, E. G., 91.

   Klostermann, A., 89.

   Knudtzon, J. A., 89.

   Kohler, J., 4, 9, 14, 67, 72, 73, 75, 85, 87, 88.

   König, E., 70.

   Koschaker, P., 73.

   Kotalla, E., 87.


   Landersdorfer, P. S., 90.

   Langdon, St., 66, 78, 79, 83, 90.

   Lau, R. J., 77.

   Layard, A. H., 80.

   Le Gac, Y., 87.

   Lehmann (Haupt), C. F., 70, 91.

   Likhatscheff, N. P., 79.

   Lightfoot, J., 15.

   Littmann, E., 74.

   Loftus, W. K., 80.

   Lotichius, P., 70.

   Luckenbill, D. D., 83.

   Lyon, D. G., 26, 27, 70, 71.


   MacAlister?, 22.

   Maine, Sir H., 6.

   Moldenke, A. B., 87.

   Mari, Fr., 68.

   Martin, Fr., 91.

   Marx, V., 73, 87.

   Meissner, Br., 2, 4, 65, 71, 73, 75, 81, 84, 85, 89.

   Mercer, S. A. B., 73.

   Mommsen, Th., 72.

   Montgomery, M. W., 89.

   Müller, D. H., 9, 15, 50, 53, 67, 68, 69, 70, 71, 73, xiii.


   Nagel, G., 89.

   Nathan, J., 15.

   Nikolsky, M. V., 79.


   Oppert, J., 72, 73, 85, 86, 87.


   Peiser, F. E., 2, 4, 9, 65, 67, 70, 73, 75, 76, 81, 83, 86, 87, 88.

   Pelégaud, F., 78.

   Pick, H., 15.

   Pilter, W. T., 72.

   Pinches, T. G., 69, 70, 72, 75, 76, 77, 78, 79, 81, 86, 87, 88, 90, 91.

   Place, T., 86.

   Poebel, A., 66, 75, 82.

   Price, I. M., 79.


   Radau, H., 77, 83, 90.

   Ranke, A. H., 82.

   Reisner, G., 77.

   Reitzenstein, F., 73.

   Revillout, E. & V., 73, 80.

   Rogers, R. W., 26, 68.


   Sarauw, Chr., 69.

   Sarzec, de E., 76, 77.

   Sayce, A. H., 70, 88, 89.

   Scheil, V., 8, 26, 27, 65, 68, 71, 74, 77, 78, 79, 81, 84, 85, 88, 91.

   Schiffer, S., 86.

   Schmersahl, 72.

   Schollmeyer, A., 90.

   Schorr, M., 4, 14, 67, 71, 73, 74, 5.

   Schrader, Eb., 81, 83, 87, 88.

   Smith, G., 80.

   Smith, S. A., 90.

   Smith, W. R., 25, 27, 73.

   Steinmetzer, F., 84.

   Stooss, C., 72.

   Strassmaier, J. N., 86, 87.


   Tallquist, K. L., 84, 85, 86.

   Thompson, R. C., 91.

   Thureau-Dangin, Fr., 77, 78, 79, 80, 82, 88, 89.

   Torczyner, H., 79.


   Ungnad, A., 4, 9, 66, 68, 69, 71, 73, 75, 76, 82, 85, 86, 87, 88.


   Virolleaud, C. H., 78.


   Ward, W. H., 68.

   Waterman, L., 91.

   Winckler, H., 66, 68, 72, 74, 76, 84, 90.

   Wohlframm, E., 69.


   Zehnpfund, R., 86.

   Zeitlin, M., 91.

   Ziemer, E., 87.

   Zimmern, H., 8, 67, 74.





BABYLONIAN WORDS



   amêlu, 7, 74.
   dinâni, 2.
   gallabu, 12.
   kânu, 8.
   kittu, 1.
   kudurru, 83.
   mishâru, 1.
   mâr banûtu, 12.
   mash-en-kak, 8.
   mushkênu, 8, 9, 46, 74.
   nihûtu, 42.
   ninu Anum tsirum, 2.
   rîd tsâbê, 74.
   wardu, 7, 10.






End of the Project Gutenberg EBook of The Relations between the Laws of
Babylonia and the Laws of the Heb, by C. H. W. Johns

*** END OF THIS PROJECT GUTENBERG EBOOK RELATIONS BETWEEN LAWS ***

***** This file should be named 46050-0.txt or 46050-0.zip *****
This and all associated files of various formats will be found in:
        http://www.gutenberg.org/4/6/0/5/46050/

Produced by Adrian Mastronardi, Turgut Dincer, and the
Online Distributed Proofreading Team at http://www.pgdp.net.
(This file was produced from images generously made
available by The Internet Archive.)


Updated editions will replace the previous one--the old editions
will be renamed.

Creating the works from public domain print editions means that no
one owns a United States copyright in these works, so the Foundation
(and you!) can copy and distribute it in the United States without
permission and without paying copyright royalties.  Special rules,
set forth in the General Terms of Use part of this license, apply to
copying and distributing Project Gutenberg-tm electronic works to
protect the PROJECT GUTENBERG-tm concept and trademark.  Project
Gutenberg is a registered trademark, and may not be used if you
charge for the eBooks, unless you receive specific permission.  If you
do not charge anything for copies of this eBook, complying with the
rules is very easy.  You may use this eBook for nearly any purpose
such as creation of derivative works, reports, performances and
research.  They may be modified and printed and given away--you may do
practically ANYTHING with public domain eBooks.  Redistribution is
subject to the trademark license, especially commercial
redistribution.



*** START: FULL LICENSE ***

THE FULL PROJECT GUTENBERG LICENSE
PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK

To protect the Project Gutenberg-tm mission of promoting the free
distribution of electronic works, by using or distributing this work
(or any other work associated in any way with the phrase "Project
Gutenberg"), you agree to comply with all the terms of the Full Project
Gutenberg-tm License available with this file or online at
  www.gutenberg.org/license.


Section 1.  General Terms of Use and Redistributing Project Gutenberg-tm
electronic works

1.A.  By reading or using any part of this Project Gutenberg-tm
electronic work, you indicate that you have read, understand, agree to
and accept all the terms of this license and intellectual property
(trademark/copyright) agreement.  If you do not agree to abide by all
the terms of this agreement, you must cease using and return or destroy
all copies of Project Gutenberg-tm electronic works in your possession.
If you paid a fee for obtaining a copy of or access to a Project
Gutenberg-tm electronic work and you do not agree to be bound by the
terms of this agreement, you may obtain a refund from the person or
entity to whom you paid the fee as set forth in paragraph 1.E.8.

1.B.  "Project Gutenberg" is a registered trademark.  It may only be
used on or associated in any way with an electronic work by people who
agree to be bound by the terms of this agreement.  There are a few
things that you can do with most Project Gutenberg-tm electronic works
even without complying with the full terms of this agreement.  See
paragraph 1.C below.  There are a lot of things you can do with Project
Gutenberg-tm electronic works if you follow the terms of this agreement
and help preserve free future access to Project Gutenberg-tm electronic
works.  See paragraph 1.E below.

1.C.  The Project Gutenberg Literary Archive Foundation ("the Foundation"
or PGLAF), owns a compilation copyright in the collection of Project
Gutenberg-tm electronic works.  Nearly all the individual works in the
collection are in the public domain in the United States.  If an
individual work is in the public domain in the United States and you are
located in the United States, we do not claim a right to prevent you from
copying, distributing, performing, displaying or creating derivative
works based on the work as long as all references to Project Gutenberg
are removed.  Of course, we hope that you will support the Project
Gutenberg-tm mission of promoting free access to electronic works by
freely sharing Project Gutenberg-tm works in compliance with the terms of
this agreement for keeping the Project Gutenberg-tm name associated with
the work.  You can easily comply with the terms of this agreement by
keeping this work in the same format with its attached full Project
Gutenberg-tm License when you share it without charge with others.

1.D.  The copyright laws of the place where you are located also govern
what you can do with this work.  Copyright laws in most countries are in
a constant state of change.  If you are outside the United States, check
the laws of your country in addition to the terms of this agreement
before downloading, copying, displaying, performing, distributing or
creating derivative works based on this work or any other Project
Gutenberg-tm work.  The Foundation makes no representations concerning
the copyright status of any work in any country outside the United
States.

1.E.  Unless you have removed all references to Project Gutenberg:

1.E.1.  The following sentence, with active links to, or other immediate
access to, the full Project Gutenberg-tm License must appear prominently
whenever any copy of a Project Gutenberg-tm work (any work on which the
phrase "Project Gutenberg" appears, or with which the phrase "Project
Gutenberg" is associated) is accessed, displayed, performed, viewed,
copied or distributed:

This eBook is for the use of anyone anywhere at no cost and with
almost no restrictions whatsoever.  You may copy it, give it away or
re-use it under the terms of the Project Gutenberg License included
with this eBook or online at www.gutenberg.org

1.E.2.  If an individual Project Gutenberg-tm electronic work is derived
from the public domain (does not contain a notice indicating that it is
posted with permission of the copyright holder), the work can be copied
and distributed to anyone in the United States without paying any fees
or charges.  If you are redistributing or providing access to a work
with the phrase "Project Gutenberg" associated with or appearing on the
work, you must comply either with the requirements of paragraphs 1.E.1
through 1.E.7 or obtain permission for the use of the work and the
Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or
1.E.9.

1.E.3.  If an individual Project Gutenberg-tm electronic work is posted
with the permission of the copyright holder, your use and distribution
must comply with both paragraphs 1.E.1 through 1.E.7 and any additional
terms imposed by the copyright holder.  Additional terms will be linked
to the Project Gutenberg-tm License for all works posted with the
permission of the copyright holder found at the beginning of this work.

1.E.4.  Do not unlink or detach or remove the full Project Gutenberg-tm
License terms from this work, or any files containing a part of this
work or any other work associated with Project Gutenberg-tm.

1.E.5.  Do not copy, display, perform, distribute or redistribute this
electronic work, or any part of this electronic work, without
prominently displaying the sentence set forth in paragraph 1.E.1 with
active links or immediate access to the full terms of the Project
Gutenberg-tm License.

1.E.6.  You may convert to and distribute this work in any binary,
compressed, marked up, nonproprietary or proprietary form, including any
word processing or hypertext form.  However, if you provide access to or
distribute copies of a Project Gutenberg-tm work in a format other than
"Plain Vanilla ASCII" or other format used in the official version
posted on the official Project Gutenberg-tm web site (www.gutenberg.org),
you must, at no additional cost, fee or expense to the user, provide a
copy, a means of exporting a copy, or a means of obtaining a copy upon
request, of the work in its original "Plain Vanilla ASCII" or other
form.  Any alternate format must include the full Project Gutenberg-tm
License as specified in paragraph 1.E.1.

1.E.7.  Do not charge a fee for access to, viewing, displaying,
performing, copying or distributing any Project Gutenberg-tm works
unless you comply with paragraph 1.E.8 or 1.E.9.

1.E.8.  You may charge a reasonable fee for copies of or providing
access to or distributing Project Gutenberg-tm electronic works provided
that

- You pay a royalty fee of 20% of the gross profits you derive from
     the use of Project Gutenberg-tm works calculated using the method
     you already use to calculate your applicable taxes.  The fee is
     owed to the owner of the Project Gutenberg-tm trademark, but he
     has agreed to donate royalties under this paragraph to the
     Project Gutenberg Literary Archive Foundation.  Royalty payments
     must be paid within 60 days following each date on which you
     prepare (or are legally required to prepare) your periodic tax
     returns.  Royalty payments should be clearly marked as such and
     sent to the Project Gutenberg Literary Archive Foundation at the
     address specified in Section 4, "Information about donations to
     the Project Gutenberg Literary Archive Foundation."

- You provide a full refund of any money paid by a user who notifies
     you in writing (or by e-mail) within 30 days of receipt that s/he
     does not agree to the terms of the full Project Gutenberg-tm
     License.  You must require such a user to return or
     destroy all copies of the works possessed in a physical medium
     and discontinue all use of and all access to other copies of
     Project Gutenberg-tm works.

- You provide, in accordance with paragraph 1.F.3, a full refund of any
     money paid for a work or a replacement copy, if a defect in the
     electronic work is discovered and reported to you within 90 days
     of receipt of the work.

- You comply with all other terms of this agreement for free
     distribution of Project Gutenberg-tm works.

1.E.9.  If you wish to charge a fee or distribute a Project Gutenberg-tm
electronic work or group of works on different terms than are set
forth in this agreement, you must obtain permission in writing from
both the Project Gutenberg Literary Archive Foundation and Michael
Hart, the owner of the Project Gutenberg-tm trademark.  Contact the
Foundation as set forth in Section 3 below.

1.F.

1.F.1.  Project Gutenberg volunteers and employees expend considerable
effort to identify, do copyright research on, transcribe and proofread
public domain works in creating the Project Gutenberg-tm
collection.  Despite these efforts, Project Gutenberg-tm electronic
works, and the medium on which they may be stored, may contain
"Defects," such as, but not limited to, incomplete, inaccurate or
corrupt data, transcription errors, a copyright or other intellectual
property infringement, a defective or damaged disk or other medium, a
computer virus, or computer codes that damage or cannot be read by
your equipment.

1.F.2.  LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right
of Replacement or Refund" described in paragraph 1.F.3, the Project
Gutenberg Literary Archive Foundation, the owner of the Project
Gutenberg-tm trademark, and any other party distributing a Project
Gutenberg-tm electronic work under this agreement, disclaim all
liability to you for damages, costs and expenses, including legal
fees.  YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT
LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE
PROVIDED IN PARAGRAPH 1.F.3.  YOU AGREE THAT THE FOUNDATION, THE
TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE
LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR
INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH
DAMAGE.

1.F.3.  LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a
defect in this electronic work within 90 days of receiving it, you can
receive a refund of the money (if any) you paid for it by sending a
written explanation to the person you received the work from.  If you
received the work on a physical medium, you must return the medium with
your written explanation.  The person or entity that provided you with
the defective work may elect to provide a replacement copy in lieu of a
refund.  If you received the work electronically, the person or entity
providing it to you may choose to give you a second opportunity to
receive the work electronically in lieu of a refund.  If the second copy
is also defective, you may demand a refund in writing without further
opportunities to fix the problem.

1.F.4.  Except for the limited right of replacement or refund set forth
in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO OTHER
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.

1.F.5.  Some states do not allow disclaimers of certain implied
warranties or the exclusion or limitation of certain types of damages.
If any disclaimer or limitation set forth in this agreement violates the
law of the state applicable to this agreement, the agreement shall be
interpreted to make the maximum disclaimer or limitation permitted by
the applicable state law.  The invalidity or unenforceability of any
provision of this agreement shall not void the remaining provisions.

1.F.6.  INDEMNITY - You agree to indemnify and hold the Foundation, the
trademark owner, any agent or employee of the Foundation, anyone
providing copies of Project Gutenberg-tm electronic works in accordance
with this agreement, and any volunteers associated with the production,
promotion and distribution of Project Gutenberg-tm electronic works,
harmless from all liability, costs and expenses, including legal fees,
that arise directly or indirectly from any of the following which you do
or cause to occur: (a) distribution of this or any Project Gutenberg-tm
work, (b) alteration, modification, or additions or deletions to any
Project Gutenberg-tm work, and (c) any Defect you cause.


Section  2.  Information about the Mission of Project Gutenberg-tm

Project Gutenberg-tm is synonymous with the free distribution of
electronic works in formats readable by the widest variety of computers
including obsolete, old, middle-aged and new computers.  It exists
because of the efforts of hundreds of volunteers and donations from
people in all walks of life.

Volunteers and financial support to provide volunteers with the
assistance they need are critical to reaching Project Gutenberg-tm's
goals and ensuring that the Project Gutenberg-tm collection will
remain freely available for generations to come.  In 2001, the Project
Gutenberg Literary Archive Foundation was created to provide a secure
and permanent future for Project Gutenberg-tm and future generations.
To learn more about the Project Gutenberg Literary Archive Foundation
and how your efforts and donations can help, see Sections 3 and 4
and the Foundation information page at www.gutenberg.org


Section 3.  Information about the Project Gutenberg Literary Archive
Foundation

The Project Gutenberg Literary Archive Foundation is a non profit
501(c)(3) educational corporation organized under the laws of the
state of Mississippi and granted tax exempt status by the Internal
Revenue Service.  The Foundation's EIN or federal tax identification
number is 64-6221541.  Contributions to the Project Gutenberg
Literary Archive Foundation are tax deductible to the full extent
permitted by U.S. federal laws and your state's laws.

The Foundation's principal office is located at 4557 Melan Dr. S.
Fairbanks, AK, 99712., but its volunteers and employees are scattered
throughout numerous locations.  Its business office is located at 809
North 1500 West, Salt Lake City, UT 84116, (801) 596-1887.  Email
contact links and up to date contact information can be found at the
Foundation's web site and official page at www.gutenberg.org/contact

For additional contact information:
     Dr. Gregory B. Newby
     Chief Executive and Director
     gbnewby@pglaf.org

Section 4.  Information about Donations to the Project Gutenberg
Literary Archive Foundation

Project Gutenberg-tm depends upon and cannot survive without wide
spread public support and donations to carry out its mission of
increasing the number of public domain and licensed works that can be
freely distributed in machine readable form accessible by the widest
array of equipment including outdated equipment.  Many small donations
($1 to $5,000) are particularly important to maintaining tax exempt
status with the IRS.

The Foundation is committed to complying with the laws regulating
charities and charitable donations in all 50 states of the United
States.  Compliance requirements are not uniform and it takes a
considerable effort, much paperwork and many fees to meet and keep up
with these requirements.  We do not solicit donations in locations
where we have not received written confirmation of compliance.  To
SEND DONATIONS or determine the status of compliance for any
particular state visit www.gutenberg.org/donate

While we cannot and do not solicit contributions from states where we
have not met the solicitation requirements, we know of no prohibition
against accepting unsolicited donations from donors in such states who
approach us with offers to donate.

International donations are gratefully accepted, but we cannot make
any statements concerning tax treatment of donations received from
outside the United States.  U.S. laws alone swamp our small staff.

Please check the Project Gutenberg Web pages for current donation
methods and addresses.  Donations are accepted in a number of other
ways including checks, online payments and credit card donations.
To donate, please visit:  www.gutenberg.org/donate


Section 5.  General Information About Project Gutenberg-tm electronic
works.

Professor Michael S. Hart was the originator of the Project Gutenberg-tm
concept of a library of electronic works that could be freely shared
with anyone.  For forty years, he produced and distributed Project
Gutenberg-tm eBooks with only a loose network of volunteer support.

Project Gutenberg-tm eBooks are often created from several printed
editions, all of which are confirmed as Public Domain in the U.S.
unless a copyright notice is included.  Thus, we do not necessarily
keep eBooks in compliance with any particular paper edition.

Most people start at our Web site which has the main PG search facility:

     www.gutenberg.org

This Web site includes information about Project Gutenberg-tm,
including how to make donations to the Project Gutenberg Literary
Archive Foundation, how to help produce our new eBooks, and how to
subscribe to our email newsletter to hear about new eBooks.