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STUDIES IN BIBLICAL LAW 
 
\ I. 
 
 
STUDIES IN 
 
 BIBLICAL LAW 
 
 BY 
 
 HAROLD M. WIENER, M.A., LL.B. 
 
 OF LINCOLN'S INN, BARRISTER-AT-LAW 
 
 FORMERLY A SENIOR WHEWELL SCHOLAR OF THE 
 
 UNIVERSITY OF CAMBRIDGE 
 
 LONDON 
 
 DAVID NUTT, 57-59 LONG ACRE 
 
 1904 
 
 nu^ 
 
b3 
 
 \\W 
 
 ZD;B 
 
 X 
 
 Printed by Ballantyne, Hanson 6" Co. 
 At the Ballantyne Press 
 
TO 
 
 THE MEMORY 
 
 OF 
 
 ALL WHO HAVE LIVED OR DIED 
 FOR THE TORAH 
 
PREFACE 
 
 This little book represents the first attempt to apply 
 the ordinary methods of legal study to the solution of 
 Biblical problems. It consequently contains much that 
 is new and unexpected — how unexpected my readers 
 must decide. At the same time it will arouse justifiable 
 hopes that light may be thrown on many a difficult 
 passage by the great theoretical jurists, who possess a 
 mastery of ancient law with which the mere dilettante 
 knowledge of a practising lawyer can never be com- 
 pared. 
 
 While I have studiously refrained from discussing 
 theological questions, I am not ignorant that all Biblical 
 studies, however unsectarian in character, must react 
 on religious beliefs. I have frequently been compelled 
 to differ from all previous students of the Bible ; but I 
 hope that the orthodox interpreters will think that at 
 the worst there is only room for amicable differences 
 of opinion between us. As a lawyer, I cannot help I 
 seeing that the Mosaic legislation is wiser, greater, and 
 infinitely more practical than the traditional explana-, 
 tions would make it. How far the importance of 
 covenants in the history of Judaism will come as 
 a surprise to theologians, I do not know ; but to one 
 who has no knowledge of theology the religious possi- 
 bilities of the conception would appear to be very great. 
 
viii PREFACE 
 
 In view of the present condition of Biblical studies, 
 I have been compelled to resort to ruthless intellectual 
 weapons. While I have not hesitated to make full use 
 of them, I have felt sincere regret for the pain they 
 must necessarily cause. The books I have refuted were 
 selected because they appeared to be representative of 
 a whole school of thought, and I have throughout 
 regarded their writers as types, not as individuals. 
 
 The practice of modern Hebraists with regard to 
 the transliteration of Hebrew words appears to me to 
 require reconsideration. When writing professedly for 
 English readers, they habitually use some system which 
 presupposes an acquaintance with the Hebrew alphabet 
 and method of vocalisation. This must surely in- 
 crease the difficulties of their readers very considerably. 
 How can an educated Englishman, who has never 
 learnt any Semitic language, be expected to know 
 what sounds to associate with such purely philological 
 symbols as s, h, e , or dh ? 
 
 In one other matter objection may be taken to the 
 modern practice on very different grounds. To orthodox 
 Jews a free use of the name of God is profoundly dis- 
 tasteful, and I believe that all true lovers of the Bible 
 will agree in thinking that in work which is avowedly 
 unsectarian, every possible precaution should be taken 
 to avoid hurting the religious feelings of any group of 
 students. I have therefore substituted " the LORD '' 
 for the various transliterations of the Tetragrammaton 
 in all my quotations from modern writers. I need 
 scarcely say that in no case does this affect the sense 
 of the passages quoted. 
 
PREFACE ix 
 
 The idea of writing a book on Biblical law was first 
 suggested to me by a perusal of Sir Henry Maine's 
 works, and the numerous quotations sufficiently attest 
 my indebtedness to that writer. 
 
 My best thanks are due to my friend Mr. H. C. 
 Garsia for much valuable criticism and advice. 
 
 HAROLD M. WIENER. 
 
 9 Old Square, 
 Lincoln's Inn, W.C. 
 
CONTENTS 
 
 Preface 
 
 PAGE 
 
 vii 
 
 I. On the Present Condition of Biblical Studies . i 
 
 II. Pillar-Covenant and Token-Covenant 52 
 
 § 1. Introductory 52 
 
 § 2. Of Oaths . . 5 6 
 
 § 3. Some Legal Terms . 59 
 
 § 4. The Pillar-Covenant 65 
 § 5. The Covenant at Sinai . . 69 
 
 § 6. Deuteronomy 71 
 
 § 7. The Token-Covenant . 75 
 
 § 8. Isaiah and Jeremiah Si 
 
 III. Some Proofs of Date . . 84 
 
 IV. Some Interesting Parallels . 100 
 V. The Inter-Relation of the Legal Passages . 106 
 
 VI. The Spirit of the Legislation . 116 
 
 Index I. (Texts) . 125 
 
 Index II. (Subjects) . 127 
 
STUDIES IN BIBLICAL LAW 
 
 CHAPTER I 
 
 ON THE PRESENT CONDITION OF 
 BIBLICAL STUDIES 
 
 At the head of the Biblical Canon stands a Book 
 which has been known as the Law in many lands and to 
 many generations. The exegesis and criticism of the 
 legal passages it contains present many difficult pro- 
 blems. It will be my endeavour in these pages to put 
 before my readers a lawyer's solutions of some of these. 
 
 Primarily, of course, I shall be concerned with 
 jural laws — that is, roughly, rules which the courts 
 will enforce — but not with sacrificial or agricultural 
 regulations, nor with dietary, sumptuary, or religious 
 precepts. But the jural laws of the Pentateuch are 
 implicated with many other matters, and it is therefore 
 not always possible entirely to exclude all other topics 
 from consideration. 
 
 The most remarkable instance of this is afforded 
 
 by the covenants. Almost the first thing a lawyer I 
 
 discovers is that the structure of the legal portions . 
 
 of the Pentateuch is not intelligible without a knowledge 
 
 of two forms of religious treaty, which may be termed i 
 
 respectively witness-covenants and token-covenants ; i 
 
 and, if I were free to adopt what appears to me the 
 
 natural order of study, I should investigate the nature 
 
 A 
 
2 STUDIES IN BIBLICAL LAW 
 
 of these covenants before attempting to deal with any- 
 other subject. 
 
 But in the present condition of Biblical studies it is 
 not competent for a fresh inquirer, who does not belong 
 to any recognised school of Biblical students, to strike 
 out any line of his own, without first examining such 
 of the main conclusions of the dominant school of 
 Biblical critics as affect the subject-matter of his studies. 
 A legal student naturally desires to know everything 
 that can be learnt about the rules he studies — their date, 
 authorship, meaning, structure, style and language — and 
 if, on turning to the study of a body of law, which has 
 never in modern times been examined by any competent 
 lawyer, he finds that certain views are widely current on 
 all these matters, it is his duty to examine those views, 
 and either accept them or give his reasons for re- 
 jecting them. If he adopts the latter alternative, he 
 must also put forward other views of his own, to- 
 gether with the facts and reasoning on which they are 
 based. 
 
 What then are the views that are at present current 
 among the most advanced type of Biblical students as to 
 the date and origin of these laws ? They are the views 
 of a school of writers, who (to distinguish them from 
 textual critics) are known as the higher critics, and 
 stated in outline they are as follows : The five books 
 of the Pentateuch and the book of Joshua are grouped 
 together under the collective name of the Hexateuch, 
 and it is said that these six books were compiled from a 
 number of different documents which are denoted by 
 different symbols. First in order of time were two 
 documents denoted by the letters J and E respectively, 
 which were early combined into a narrative known as 
 JE, the elements of which cannot always be clearly 
 distinguished. The choice of these symbols was due to 
 the fact that in J the Tetragrammaton is freely used 
 
CONDITION OF BIBLICAL STUDIES 3 
 
 before the revelation of the Divine Name to Moses, while 
 in E the Deity is throughout the book of Genesis 
 referred to by a Hebrew word which means God. 
 The higher critics do not seem to regard the separation 
 of J from E as one of their most certain results, and 
 they are of course unable to fix the date of either 
 narrative or of the combination with absolute precision, 
 but apparently the combined result is assigned to a date 
 not later than 750 B.C. In any case, it is earlier than the 
 bulk of the book of Deuteronomy, which comes from a 
 source called D. Now in 621 B.C., the eighteenth year 
 of King Josiah, a book of the law was found (2 Kings 
 xxii. 8 seqq.), and, subject to the possibility that minor 
 additions and alterations were subsequently made, this 
 book is identified with D. Then JE and D were 
 combined in a form known as JED, certain minor 
 modifications being introduced by an editor or editors. 
 This combination is known as the prophetical narrative 
 of the Hexateuch ; it is supposed to be the work of a 
 number of prophetical writers or schools. Although it 
 has been repeatedly revised, it has never been rewritten, 
 and it is accordingly possible with a greater or less 
 degree of certainty to separate its different elements. 
 As to its laws, some are Mosaic laws, possibly in their 
 original form, some again are old laws in a new dress, 
 some are perhaps more recent laws. Side by side with 
 this prophetical narrative is a priestly narrative known 
 as P. This document is exilic or post-exilic in date, and 
 forms the groundwork of the Hexateuch. It contains 
 portions of an older document, which from the stress 
 laid by it on the idea of holiness, is called H. Large 
 portions of Leviticus xvii.-xxvi. ; are taken from H. In 
 this combined priestly and holiness document are found 
 many laws, some of which may be old ; but all or nearly 
 all are now couched in the style of priestly narrators. 
 Finally JED and P were combined into the present 
 
4 STUDIES IN BIBLICAL LAW 
 
 Hexateuch, some slight alterations being made by 
 editors or harmonists. 
 
 As this account is, owing to the nature of the subject- 
 matter, necessarily very vague, it will be desirable to add 
 a little more precision to our ideas of the critical position 
 by putting some of its aspects in another way. It 
 is not suggested by the critics that in the Pentateuch 
 we have a post-Mosaic narrative, which incorporates the 
 laws and speeches of Moses in the language in which 
 they were delivered ; nor is it said that we have here a 
 history written by a late author in his own style, the 
 facts being, as in the case of a modern historian, derived 
 from earlier sources. On the contrary, the critical view 
 is that we have a number of excerpts from different 
 documents, and that, subject only to certain minor 
 modifications, the language of these documents is in 
 every case preserved. Moreover, though some laws may 
 be Mosaic, it is said that various legal provisions 
 conflict in a manner which would not be possible if they 
 were all due to the same legislator ; and this difficulty is 
 met by a theory which is known as the development 
 hypothesis. The supporters of this view say that each 
 one of the main groups of laws, those of JE, D, and P 
 (including H) respectively, is the product in its present 
 form of different social and religious conditions, that 
 each is adapted to the needs of the age in which it 
 originated, and that the inconsistencies are due to the 
 fact that each group of laws represents an attempt to 
 grapple with the problems of a different age. 
 
 In examining this theory, it will be convenient to 
 place before my readers a series of extracts from 
 critical authors, so that, where possible, the reasonings 
 of the members of this school may be given in the 
 language of representative writers. As a rule I shall 
 use two works. The first of these is called "The 
 Hexateuch according to the Revised Version, arranged 
 
CONDITION OF BIBLICAL STUDIES 5 
 
 in its Constituent Documents by Members of the 
 Society of Historical Theology, Oxford ; Edited with In- 
 troduction, Notes, Marginal References, and Synoptical 
 Tables by J. Estlin Carpenter and G. Harford-Battersby 
 (1900, Longmans Green, & Co)." 1 It is stated in the 
 preface to this work that it is intended to place before 
 English readers the principal results of modern inquiry 
 into the composition of the first six books of the Old 
 Testament. As the analysis is the work of a committee, 
 this book may be considered to possess a representative 
 character. Secondly, I shall use Dr. Driver's Com- 
 mentary on Deuteronomy in the International Critical 
 Commentary. Dr. Driver is a critical professor of 
 recognised eminence, so that his work too may fairly 
 be regarded as representative. But to avoid all possi- 
 bility of hurting the religious feelings of any of my 
 readers, I shall, in these extracts, substitute the Lord 
 for the various transliterations of the Name that are 
 used in the original books. So far as regards the 
 legal evidence nothing turns on the use of any appella- 
 tion of God. 
 
 The first argument from the jural laws is stated 
 thus : — 
 
 The first code, Exodus xxi. 1-6, permits a Hebrew after six 
 years' service to contract for life-long servitude, and places the 
 ceremony of formal enslavement under religious sanction. 
 Before Israel has left Sinai, however, in the next year, this 
 arrangement is tacitly abrogated. In Leviticus xxv. 39-42, it is 
 laid down that no Israelite shall sell himself to another ; tem- 
 porary slavery may, indeed, last till the jubile; but the poor 
 "brother" is entitled then to liberty for himself and his 
 family, 41 (in Exodus xxi. 4 the wife and children remain in 
 the possession of the master), on the express ground that their 
 freedom was a divine gift and could not be alienated by slavery 
 for life. That is the exalted view of the second year after the 
 Exodus. But at the end of the wanderings, thirty-eight years 
 
 1 This will be referred to as "The Hexateuch." 
 
6 STUDIES IN BIBLICAL LAW 
 
 later, Moses returns to his earlier scheme. In Deuteronomy 
 xv. 12 . . the theory that every Israelite is the Lord's bondman 
 is quietly abandoned, and the process of voluntary enslavement 
 in the seventh year is again legitimated. It cannot be said 
 that the intervening law had been tried without success, for it 
 was expressly designed, Leviticus xxv. 2, for the settlement in 
 Canaan. Yet it is wholly ignored when Moses makes his final 
 address, and an arrangement entirely inconsistent with it is re- 
 enforced. The conflict of principle is here as clear as the 
 conflict of fact in the case of the position of the sacred tent or 
 the construction of the ark. It will hereafter be suggested that 
 the three laws belong to three different stages of religious and 
 social order. At present it must suffice to observe that if the 
 law of Exodus or Deuteronomy is Mosaic, then that of Levi- 
 ticus is not, and vice versa [" The Hexateuch," I. 31 ; cf. Driver, 
 Deuteronomy xxxix]. 
 
 The text of Leviticus xxv. 39-42 is as follows : — 
 
 39. And if thy brother be waxen poor with thee, and sell 
 himself [or be sold] unto thee ; thou shalt not make him to 
 serve as a bond--servant : 
 
 40. As an hired servant, and as a sojourner, he shall be 
 with thee ; he shall serve with thee unto the year of jubile : 
 
 41. Then shall he go out from thee, he and his children 
 with him, and shall return unto his own family, and unto the 
 possessions of his fathers shall he return. 
 
 42. For they are my servants, which I brought forth out of 
 the land of Egypt : they shall not be sold [or sell themselves] 
 as bondmen. 
 
 I shall show that this law does not affect any case 
 of de jure slavery, — "thou shalt not make him to serve 
 as a bondservant" — but is intended to control the 
 operation of a well-known ancient result of insolvency, 
 whereby the debtor and members of his family were 
 reduced to de facto slavery. The rules here laid down 
 would benefit only free Israelites, who sold themselves 
 through insolvency, and perhaps also — but this is 
 doubtful — children sold by their parents on account 
 of poverty. 
 
CONDITION OF BIBLICAL STUDIES 7 
 
 It must be remembered that up to the end of the 
 Biblical period, we are dealing with a slave-owning 
 society, so that all sane men of ordinary knowledge 
 and intelligence must have had at least a superficial 
 knowledge of the principal methods of acquiring a 
 slave. Bearing this in mind, we may proceed to apply 
 to the interpretation of the law the methods by which 
 in practice, the meaning of laws is elucidated in every 
 country and in every age. Would this law benefit a 
 Hebrew who was born a slave ? Obviously not : its 
 operation is limited in terms to the case of a man, who 
 is " waxen poor with thee," and is therefore sold — 
 whether by himself, his father, or his creditors, is for 
 this purpose immaterial. How could any slave wax 
 poor ? Again, it does not appear that this law would 
 apply to an Israelite, who had become a slave by capture 
 in war, and had subsequently come on the slave market, 
 to the needy thief, 1 who was sold under the provisions 
 of Exodus xxii. 3, or to the daughter, whom her father 
 had sold as a slave wife. No doubt, but for the express 
 limitation of the law to the free Israelite, who de facto 
 lost his freedom through poverty, it might be thought 
 that the principle " they are my servants " would cover 
 all Israelites, but a single illustration will suffice to show 
 that this too must have had limitations. The needy 
 thief could surely not have urged this to prevent his 
 
 1 It used to be thought that the needy thief of Exodus did fall within the 
 scope of the jubile law. This view is untenable for the following reasons : 
 First, it is directly contradicted by the language of both laws. Secondly, 
 such. a construction would have worked the most arbitrary injustice. A poor 
 man, who stole a sheep six years before the jubile, would have to endure 
 six years' slavery, whereas, for exactly the same offence, committed three 
 years later, he would get off with half the penalty. Thirdly, such a law 
 would have acted as a direct incentive to poor men to steal, when the jubile 
 was sufficiently near to render the punishment insignificant. We of course 
 reach exactly the same result, if we look at the matter from the point of view 
 of the owner, whose property had been stolen, and who was to be compen- 
 sated by the price realised by the sale of the thief; for the price would 
 necessarily vary with the proximity of the jubile. 
 
8 STUDIES IN BIBLICAL LAW 
 
 being sold as a slave. Indeed, to whatever date this 
 law be assigned, we are always prevented from giving 
 too wide a construction to the principle by the fact that 
 the operative words do not cover all cases of property 
 in human beings, or even all purchases of services that 
 were de facto or de jure servile, but are limited to the 
 single case of the sale of a free man. In fact, this enact- 
 ment is not a slave law at all. It is a measure for the 
 relief of insolvent Israelites, and the principle "they are 
 my servants. " refers only to freemen who have com- 
 mitted no wrong. As the children of Israelites were 
 also Israelites, we perhaps get glimpses of the class of 
 cases for which this law was intended in 2 Kings iv. 1, 
 where the widow says to Elisha : — 
 
 The creditor is come to take unto him my two children 
 to be bondmen, 
 
 and in Nehemiah v. 4 and 5, where we read : — 
 
 4. There were also that said, We have borrowed money for 
 the king's tribute upon our fields and our vineyards. 
 
 5. Yet now our flesh is as the flesh of our brethren, our 
 children as their children : and, lo, we bring into bondage our 
 sons and our daughters to be servants, and some of our daughters 
 are brought into bondage already : neither is it in our power 
 to help it ; for other men have our fields and our vineyards. 
 
 It would be difficult to offer any more illuminating 
 commentary on the purview, spirit, and importance of 
 the whole group of laws contained in this chapter, than 
 is supplied by the following extracts from a standard 
 work on Roman law : — 
 
 The tumults and seditions so frequent in Rome during the 
 first two centuries of the republic, are more frequently attri- 
 buted by the historians to the abuses of the law of debt than 
 to any other cause, social or political. The circumstances of 
 the poorer plebeians were such as to make it almost impossible 
 to avoid borrowing. Their scanty means were dependent on 
 
CONDITION OF BIBLICAL STUDIES 9 
 
 the regular cultivation of their little acres, and on each opera- 
 tion of the agricultural year being performed in proper rotation 
 and at the proper season. But this was every now and again, 
 interfered with by wars which detained them from home at 
 seed-time or harvest, practically rendering their farms unpro- 
 ductive, and leaving them and their families in straits for the 
 commonest necessaries of life. A poor peasant, in such a 
 case, had no alternative but to apply to a capitalist for a loan 
 either of corn or money. But it was not to be had without 
 security, and rarely without interest. It was not that the 
 lender doubted the borrower's honesty and willingness to repay 
 his debt ; it was rather that there was every chance that next 
 year a fresh war might again interfere with the latter's agricul- 
 tural operations, leave him again without a crop, and thus 
 render repayment impossible. And so, while interest accumu- 
 lated and was periodically added to capital, new loans had 
 year after year to be contracted as long as any acres remained 
 that could serve as a security ; failing all things, the debtor 
 had to yield himself to his creditor in de facto servitude. This 
 was a result of the transaction with the copper and the scales, 
 technically known as nexum, whose origin has already been 
 referred to. It was bad enough at the best, but horrible in its 
 abuse. For, not content with the slave's work he exacted from 
 his debtor, the creditor too often put him in chains, and 
 starved him and flogged him, as if really and truly a slave 
 instead of still a Roman citizen. . . To such a height did 
 the system grow, that often those free bondmen might be 
 reckoned by thousands, and that the saying was almost justi- 
 fied that every patrician's dwelling had become a private 
 prison-house. . According to Livy, it was the sight of one 
 
 of those wretched next, and the tale he told his old comrades 
 of the sufferings he had endured, that was the immediate in- 
 citement to the first secession. The establishment of the 
 tribunate was its great constitutional result. . . The same 
 enactment, however, that created the tribunate . . . contained 
 a provision that to many must have been even more welcome, — 
 that all debts were to be remitted and all nexi to be liberated. 
 This, if not actually the first, was at all events a forerunner 
 of a long series of enactments for ameliorating the position of 
 those who had been obliged to borrow money and by no fault 
 of their own were unable to repay it. There were laws to 
 repress usury : for example, a provision of the XII Tables 
 
io STUDIES IN BIBLICAL LAW 
 
 making the unciarium fenus — i.e. one-twelfth of the capital, or 8£ 
 per cent yearly — the maximum rate, and imposing a fourfold 
 penalty on its contravention. . . . And there were enactments 
 remitting debt on terms that were ever varying. . . . Finally 
 came the Poetilian law ... Its occasion, purpose, and effect 
 have been subjects of much discussion, and will be referred to in 
 describing the contract of nexum, — the transaction whereby a 
 borrower gave his creditor the right to apprehend him on his 
 failure to fulfil his obligation of repayment, and, without any 
 process of law, carry him home and detain him, and employ 
 his services as de facto (though not de jure) a slave. This 
 apparently was the extent of the creditor's right, depending on 
 consuetude rather than statute. But it had become frightfully 
 abused ; their jus detinendi being regarded by creditors not as 
 affording them the means of obtaining through their debtor's 
 industry substantial satisfaction for their pecuniary losses, but 
 rather as entitling them to inflict as punishment every sort of 
 cruelty and torture and indignity. It was recognised that 
 nothing less would suffice than the total abolition of the nexum 
 as a contract between lender and borrower. It was a serious 
 matter . . . but no half measures would do ; ... all the then 
 next were liberated, and nexal contract forbidden for the 
 future. [Professor Goudy points out that the statute did not 
 actually forbid the contract, but deprived nexum of all its ad- 
 vantages in execution, so that it fell into desuetude, p. 92 «.] 
 
 This could not, of course, obviate the necessity for or the 
 practice of borrowing. ... It was only by the Julian cessia 
 bonorum . . . which entitled a debtor to his discharge on 
 formally giving up everything to his creditor, that the position 
 of insolvents was really greatly ameliorated, and their con- 
 finement or incarceration avoided [Muirhead : " Historical 
 Introduction to the Private Law of Rome," 2nd edition, 
 § 20, pp. 89-93]. 
 
 It may be added that we find instances in Baby- 
 lonian contracts of freemen pledging their freedom 
 (Kohler und Peiser, Aus dem Babylonischen Rechtsleben, 
 iv. 47), and that the code of Hammurabi contains the 
 following provisions : — 
 
 If a man a debt has seized him, and he has given his wife 
 his son, his daughter for the money, or has handed over to 
 
CONDITION OF BIBLICAL STUDIES n 
 
 work off the debt, for three years they shall work in the 
 house of their buyer or exploiter, in the fourth year he shall 
 fix their liberty [§ 117]. 
 
 ... If that man before he married that woman had a debt 
 upon him, the creditor shall not seize his wife [§ 151]. 
 
 Genesis xlvii. 13-26 also affords a valuable com- 
 mentary on the land and jubile laws. 
 
 Other illustrations will be found collected in that 
 chapter of Grote's " History of Greece," in which he 
 describes the Athenian law of debt and the Solonian 
 Seisachtheia [Part II. chapter xi.]. 
 
 Once it is recognised that the Leviticus enactment is 
 in fact a measure for the relief of free insolvent Israelites, 
 and belongs to a different department of law from that 
 which deals with slaves, all minor difficulties disappear. 
 We see how it is that the freeman is never contemplated 
 as desiring to stay with his purchaser, though the slave 
 is regarded as possibly unwilling to leave his master, 
 why the former on his release has property, while the 
 latter has none, why the position of the respective fami- 
 lies is so different, why we find this law placed with land 
 laws and measures that would benefit poor peasants. 
 
 It is noteworthy that this law was obviously expected 
 to benefit especially — even if not exclusively — the land- 
 owner, for it speaks of the person affected by it as 
 returning to the possessions of his fathers. Now, the 
 jubile legislation only affected land outside the cities, 
 so that a, townsman who- had become insolvent and lost 
 first his property and then his freedom, could have no 
 possessions to which to return. Moreover, this very 
 passage by implication recognises hired servants, who 
 presumably were not landowners, and all the documents 
 of the critics recognise inequalities of wealth and rank. 
 How comes it that no provision is made for the relief of 
 dwellers in towns and landless freemen ? 
 
12 STUDIES IN BIBLICAL LAW 
 
 The answer to this question will afford the solution 
 of some of the difficulties which have made it possible 
 for the following passage to be written. 
 
 It is to be found on pp. 54 and 55 of the first volume 
 of "The Hexateuch." 
 
 Another interesting illustration of this divergence is to be 
 noted in the social arrangements for the relief of the poor. 
 The first series of Covenant- words, Exodus xxiii. 10, enforces 
 on the land the principle of a sabbatical "release." Every 
 seventh year it is to lie fallow, the vineyard and oliveyard being 
 treated in like manner. The spontaneous produce was not to 
 be collected by the owner ; it was to be reserved for the poor ; 
 and anything which they might leave was abandoned to the 
 " beast of the field." The Deuteronomic law is silent about 
 the land. But it applies the same principle under the name of 
 the "year of release " to debts (xv. 1 . . ). In the legislation of 
 Exodus it does not appear clear whether the observance would 
 be uniform over the whole country, or whether differing dis- 
 tricts or even different holdings, might follow their own 
 septennates. But D provides that "the Lord's release" shall 
 be publicly proclaimed (2), and it covers all cases, therefore, 
 alike. Its precise scope, however, is difficult to determine. 
 Did the creditor permanently forgo all claim upon the debtor, 
 or did the " release " only suspend his rights for twelve months ? 
 The legal and archaeological bearings of this question need not 
 be here discussed. They are only of importance in so far as 
 they concern the inquiry whether these two laws issued from 
 the same hand, or whether they do not represent two separate 
 efforts to provide help for the suffering poor, corresponding to 
 different stages of social development. This argument may be 
 reinforced by a consideration of a kindred law in Leviticus xxv. 
 Without employing the term " release," it is ordained that every 
 seventh year the land shall " keep sabbath to the Lord " (2). 
 The poor, indeed, are not in the author's view. Attention 
 appears to be concentrated on the value of the sabbatical 
 observance. Contrary to the implied provision of Exodus xxiii., 
 the householder is himself to gather in the produce, and he 
 and his labourers, bondmen and hired, may all enjoy it to- 
 gether. On the basis of this periodic rest, however, a further 
 institution is established. After seven sabbaths of years the 
 fiftieth shall be hallowed (10), and liberty shall be proclaimed 
 
CONDITION OF BIBLICAL STUDIES 13 
 
 throughout the land. Bondmen will regain their freedom, and 
 land that has been sold shall go back to its ancient proprietors. 
 The religious theory underlying this arrangement asserts (23) 
 that the sole ownership is vested in the Lord ; the land 
 cannot therefore be perpetually alienated by the tenants whom 
 he has placed upon it, for it is not theirs to sell. The connec- 
 tion of this law in its present form with the Levitical calendar 
 is indicated by the rule that the trumpet which announces the 
 advent of the jubile, shall be sounded through the country on 
 the day of atonement (9). Is it not clear that the " release " 
 of Deuteronomy xv. and the " liberty " of Leviticus xxv. lie in 
 different planes, are founded on different social theories, and 
 are animated by different religious conceptions? [Cf. Driver, 
 Deuteronomy xxxviii]. 
 
 I gather that the essential points are (i.) that it is in- 
 conceivable that the Sabbath year law of Exodus should 
 be by the author of the " release " law of Deutero- 
 nomy ; (ii.) that the law of Leviticus is contrary to an 
 "implied provision" of Exodus; and (iii.) that the 
 "release" of Deuteronomy and the liberty of Leviticus 
 must also be from different hands. 
 
 It will be best to clear the ground by disposing of the 
 second point first, namely, that the law of Leviticus is 
 contrary to "an implied provision" of the Exodus law. 
 
 The text of Leviticus xxv. is : — 
 
 2. . . . When ye come into the land which I give you, 
 then shall the land keep a sabbath unto the Lord. 
 
 3. Six years thou shalt sow thy field, and six years thou 
 shalt prune thy vineyard, and gather in the fruits thereof; 
 
 4. But in the seventh year shall be a sabbath of solemn rest 
 for the land, a sabbath unto the Lord : thou shalt neither sow 
 thy field, nor prune thy vineyard. 
 
 5. That which groweth of itself of thy harvest thou shalt 
 not reap, and the grapes of thy undressed vine thou shalt 
 not gather : it shall be a year of solemn rest for the land. 
 
 6. And the sabbath of the land shall be for food for 
 you ; for thee, and for thy servant and for thy maid, and 
 for thy hired servant and for thy stranger that sojourn 
 with thee; and for thy cattle, and for the beasts that 
 are in thy land, shall all the increase thereof be for food. 
 
i 4 STUDIES IN BIBLICAL LAW 
 
 The whole of the above passage is attributed by the 
 critics to one author. In the face of verse 5, it cannot 
 be maintained that the allegation of "The Hexateuch" 
 that " contrary to the implied provision of Exodus xxiii. 
 the householder is himself to gather in the produce" 
 is an accurate statement of fact. 
 
 We may best dispose of the other difficulties of the 
 critics by explaining the true scope of the laws in 
 question. We found that the jubile legislation was ap- 
 parently intended to benefit the rural landowner, but left 
 untouched a number of other cases such as those of the 
 townsman and the landless freeman. When, therefore, 
 we find Exodus xxiii. n, expressly laying down a certain 
 agricultural regulation " that the poor of thy people may 
 eat," we see at once that it is intended to benefit persons 
 in the country who have no land. In particular, we 
 notice that it affects cases of a class quite distinct from 
 those falling within the purview of the law of debt. No 
 doubt persons who were in debt might often benefit 
 by such a rule, but it would clearly be of advantage 
 primarily to other classes of the community, such as 
 wandering strangers, poor unemployed freemen, or 
 persons in the position of Ruth and Naomi. 1 So far 
 Exodus and the jubile legislation are complementary, 
 not contradictory. But the scheme is incomplete. 
 There still remains the problem of how poor towns- 
 men were to be relieved. The struggling artisan or 
 merchant would not derive much advantage from 
 either of the measures we have considered. Hence 
 
 1 To complete our view of the measures for the benefit of this class, re- 
 ferences must be added to three other passages. 
 
 Leviticus xix. 9, 10, contains commandments which favour gleaning. In 
 Leviticus xxiii., which contains a sort of religious calendar, these are repeated in 
 an abridged form in their proper chronological place, — i.e. at harvest time [22]. 
 Deuteronomy x'xiv. 19-21 contains similar directions, grouped with other 
 commandments for the benefit of the stranger, the fatherless, and the widow. 
 How consonant such provisions were to the genius of the Israelites may be 
 seen from the book of Ruth. 
 
CONDITION OF BIBLICAL STUDIES 15 
 
 in Deuteronomy we find a law providing for a sep- 
 tennial release. 
 
 And this- is the manner of the release: every creditor 
 shall release that which he hath lent unto his neighbour ; he 
 shall not exact it of his neighbour and brother [Deutero- 
 nomy xv. 2]. 
 
 How can anybody reading the plain language of the 
 Pentateuch confuse the Deuteronomic release of loans 
 with the Levitical liberty for inhabitants, or imagine that 
 either is in any way inconsistent with a regulation for 
 letting land lie fallow ? 
 
 We have seen that the jubile law is contemplated 
 as being beneficial to rural landowners ; it is interest- 
 ing to note that in fact the Deuteronomist appears 
 to expect the law of release to operate to the advan- 
 tage of dwellers in cities. " If there be with thee a 
 poor man, one of thy brethren, within any of thy 
 gates" is the language of Deuteronomy xv. 7, while 
 the provisions of the jubile law as to land apply to 
 the country and the villages which have no walls 
 round them, but not to the walled cities (Leviticus 
 xxv. 30, 31), which alone could have gates. What is 
 the reason for this contemplated difference in the 
 operation of the two laws ? It is, of course, impossible 
 to be certain of the exact construction that con- 
 temporaries would put on their provisions, and we 
 must not overlook the possibility that on the true con- 
 struction the one would have been limited to dwellers 
 in the country, and the other to inhabitants of towns ; 
 but, if this were so, it would only lead to the same ques- 
 tion being put in the modified form : "Why should it be 
 desirable to have different laws for the two cases ? " Is 
 there any inherent difference in the conditions of town 
 and country life such as would necessitate a difference 
 in the laws intended to govern them ? .The thoughts of 
 
16 STUDIES IN BIBLICAL LAW 
 
 - lawyers and business men instinctively turn to the 
 question of security. A small farmer would have all the 
 qualities necessary for a useful agricultural labourer, so 
 that a man who lent money to a peasant on the terms 
 that, failing repayment within a fixed time, he was to 
 have the borrower's services as a labourer till the year of 
 the jubile, would have some security for his money. On 
 the other hand a merchant or artificer would be of very 
 little use either in the fields or in the house. Hence, to 
 arrange that such a person should serve as a hired 
 labourer in default of repayment, would simply be to 
 kill a goose that might lay golden eggs. Possibly his 
 children, if sufficiently young, might be taken till the 
 year of the jubile, when they would return to their family, 
 but not the man himself. 
 
 The critical treatment of the passages we have con- 
 sidered is a very instructive instance of the necessity 
 for legal training in those who would deal with law. 
 We find here entirely different institutions, bearing 
 different names — jubile, release, sabbath of years — 
 intended for different purposes, governed by different 
 rules. Nevertheless the critics confuse them all hope- 
 lessly. Laws regulating the Hebrew equivalent of the 
 Roman nexum are confused with laws that deal with 
 ordinary loans ; both are then confounded with rules 
 of agriculture and provisions for relieving the poor in 
 rural districts. Yet there has never existed a society in 
 which every pauper was a borrower, every debtor was 
 insolvent, every loan was secured, every poor man was 
 a farmer. 
 
 The Hexateuch's chapter on the order of the docu- 
 ments argues that the priority of D to P "is further 
 implied in the regulations for the priestly maintenance." 
 After dealing with various religious institutions it pro- 
 ceeds : — 
 
CONDITION OF BIBLICAL STUDIES 17 
 
 The Levitical demands appear to have been formulated 
 originally on the theory that the Levites had no inheritance in 
 the land, Numbers xviii. 20; cp. Deuteronomy x. 9. But one 
 immense benefaction remains to be mentioned. The regula- 
 tion contained in Numbers xxxv. 1-8, contemplates the endow- 
 ment of the order with forty-eight cities and measured pasture- 
 lands around. It does not seem likely that any priesthood 
 would have submitted voluntarily to the curtailment of their 
 privileges involved in the view that P was really anterior to D. 
 If the priestly revenues had been so carefully provided and so 
 clearly defined, how is it that the poor Levite of the homestead 
 is represented as dependent on the householder's charity, and 
 is grouped with the destitute and forlorn ? Must it not be 
 conceded that the higher demands of the Priestly Code con- 
 stitute a more advanced claim, so that in this matter as in 
 others D occupies the middle place between JE and P? 
 [I. 78]. 
 
 On pp. 76-77 it has already been argued that the 
 Deuteronomic legislator identified the priests and the 
 Levites. 
 
 The higher critics appear to attach great importance 
 to arguments drawn from the real or supposed silence 
 of the texts with which they deal. Consequently it will 
 be well to quote what Dr. Driver says on this point. 
 
 In the laws of P in Leviticus and Numbers a sharp dis- 
 tinction is drawn between the priests and the common 
 Levites : in Deuteronomy it is implied (xviii. \a) that all 
 members of the tribe of Levi are qualified to exercise priestly 
 functions ; and regulations are laid down (xviii. 6-8) to meet 
 the case of any member coming from the country to the central 
 sanctuary, and claiming to officiate there as priest. Moreover, 
 in P particular provision is made for the maintenance of both 
 priests and Levites, and in Numbers xxxv. (cf. Joshua xxi.) 
 forty-eight cities are appointed for their residence. In Deutero- 
 nomy, under both heads, the provisions are very different . . . 
 Deuteronomy xviii. 6 is inconsistent with the institution of 
 Levitical cities prescribed in Numbers xxxv. : it implies that 
 the Levite has no settled residence, but is a " sojourner " in 
 one or other of the cities of Israel. The terms of the verse, 
 
 B 
 
18 STUDIES IN BIBLICAL LAW 
 
 are indeed entirely compatible with the institution of Levitical 
 cities, supposing it to have been imperfectly put in force ; but 
 they fall strangely from one who, ex hypothesi, had only six 
 months previously assigned to the Levites permanent dwelling- 
 places. The same representation recurs in other parts of 
 Deuteronomy : the Levites are frequently alluded to as 
 scattered about the land, and are earnestly commended to 
 the Israelite's charity [" Literature of the Old Testament," l 
 82-83 > Deuteronomy xxxviii.-xxxix. to much the same effect], 
 
 A reference to the passage in question shows that 
 the very law which is " inconsistent with the institution 
 of Levitical cities," and which "implies that the Levite 
 has no settled residence," goes on to recognise the 
 Levitical cities or something very like them. 
 
 They shall have like portions to eat, beside that which 
 cometh of the sale of his patrimony [verse 8]. 
 
 What was this " patrimony " ? As the Levites had 
 "no portion nor inheritance with Israel" the "patri- 
 mony " must presumably have been something specially 
 reserved for them. But this is by no means all. The 
 works of the prophet in whose days the critics say that 
 the Book of Deuteronomy was discovered, open with 
 the title :— 
 
 The words of Jeremiah the son of Hilkiah, of the priests 
 that were in Anathoth in the land of Benjamin. 
 
 In the very same edition of the book from which I 
 have already quoted Dr. Driver accepts the statement 
 of the title as historical, and refers to 1 Kings ii. 26 
 and Joshua xxi. 18 (that is, P) in its support [" Litera- 
 ture," 247]. He at any rate must therefore be regarded 
 as admitting the historical nature of the statements 
 there made. It would be interesting to know how he 
 would reconcile this with his allegation on p. 219 of 
 his Deuteronomy that — 
 
 1 (i 
 
 'An Introduction to the Literature of the Old Testament," sixth 
 edition, 1897. 
 
CONDITION OF BIBLICAL STUDIES 19 
 
 In Deuteronomy they [sc. the priests. — H. M. W.] are a 
 fluctuating minority, viz. those members of the tribe who 
 are officiating for the time at the central sanctuary. 
 
 But the matter can be placed beyond all doubt by a 
 reference to Jeremiah xxxii., where the prophet buys a 
 field in Anathoth from his cousin (who must also have 
 been a priest) in accordance with the right of pre- 
 emption. This makes it certain that the priests had 
 landed property in the days of Jeremiah, and it will 
 hardly be argued even by those who place Deuteronomy 
 in the reign of Manasseh that this was only a few years 
 old. The critics are therefore face to face with a 
 dilemma : if the Levites were identical with the priests, 
 they must have had landed property ; if they had no 
 landed property, they were not identical with the priests. 
 
 It is probable, too, that few critics would be prepared 
 to maintain that when Jeremiah says that he was one of 
 the priests in Anathoth, or refers to e.g. Maaseiah, the 
 priest, he means in each case Levite. But, unless they 
 are prepared to maintain some such thesis regarding 
 every genuine instance of the use of the word " priest " 
 before and contemporaneously with the date to which 
 they assign Deuteronomy, what becomes of their argu- 
 ment from the alleged identification of priests and 
 Levites ? 
 
 A few minutes' reflection suggests that any writer 
 who was not singularly tautologous, would hardly be 
 likely to make repeated use of the phrase "the priests, 
 the Levites," still less to add the words, "the whole 
 tribe of Levi," if any one of the three expressions would 
 suffice. Following up this line of thought, we notice 
 that in other parts of the Pentateuch frequent mention 
 is made of " the priests, the sons of Aaron," and that 
 the Deuteronomist himself sometimes uses the simple 
 terms, "priest" and "Levite." Is it not a necessary 
 inference that the word " priest " had in fact both a 
 
20 STUDIES IN BIBLICAL LAW 
 
 specific and a generic sense,, and that, in speaking to the 
 people, the Deuteronomist was careful to use terms, 
 which would prevent any possible ambiguity from 
 arising in the minds of his hearers ? 
 
 Mention may here be niade of one small difficulty 
 which the critics have not observed. Leviticus xxv. 34, 
 prohibits the sale of the fields of the Levitical cities; 
 yet Hanamel sells a field in Anathoth. It may be that 
 this law had become a dead letter, but it is also possible 
 ■that it was merely intended to prohibit sales out of the 
 family, and not to prevent a tenant for life from selling 
 his life interest to the person next entitled. 
 
 We must now return to Dr. Driver's citations from 
 the historical books. The passagfe to which he refers in 
 ,the first book of Kings, chapter ii., is as follows : — . : 
 
 26. Arid unto Abiathar the priest, said the king, Get thee 
 to Anathoth, unto thine own fields ; for thou art worthy of 
 death : but I will not at this time put thee to death, because 
 thou barest the ark of the Lord Gon before David my father, 
 and because thou wast afflicted in all wherein my father was 
 afflicted- 
 Whatever may be said of the date and ■ composition 
 
 of the historical books, one thing is very obvious, viz.> 
 that no literary forger would have invented a reference 
 of this kind to Anathoth had not Abiathar in fact been 
 connected with the place. We are therefore safe in 
 saying that as early as the reign of Solomon "priests" 
 had property in Anathoth. But the next verse throws a 
 little more light on our difficulties : — 
 
 27. So Solomon thrust out Abiathar from being priest unto 
 the Lord. 
 
 So we come to this ; there were persons connected 
 with Anathoth, who were called priests, but the word 
 " priest " is also used of an official, who performed 
 certain functions in Jerusalem, and it is possible to 
 
CONDITION OF BIBLICAL STUDIES 21 
 
 speak of a man as being thrust out from being "priest " 
 unto the Lord, and yet to call him one of the " priests '.' 
 that were in Anathoth. Perhaps Dr. Driver's other 
 reference may help us a little further. 
 
 On turning to Joshua xxi., which the critics attribute 
 to the post-exilic P, we find a description of how certain 
 cities were given to the Levites. These of, course are 
 the forty-eight cities of the Pentateuch. The first thing 
 that becomes obvious is that Dr. Driver has failed to 
 grasp the necessary results of the documentary theory. 
 If we are to say that Deuteronomy is inconsistent with 
 P, because it does not recognise the Levitical cities, and 
 that it was only at a later date that the priests bethought 
 themselves of making this " demand," we must also say 
 that at the date when Deuteronomy was written, the 
 Levites neither had nor ever had had any such property. 
 We must therefore declare the whole of this chapter of 
 Joshua to be an impudent fabrication, because, at the 
 time when it was written, it must have been matter of 
 common knowledge that the Levites never had had 
 forty-eight cities, and the details of the description were 
 utterly inconsistent with notorious facts. In considering 
 this point, we may for the sake of clearness confine 
 ourselves to the case of Anathoth. In the verse to 
 which Dr. Driver refers [Joshua xxi. 18], we are told that 
 Anathoth was given to the children of Aaron. Now, in 
 Ezra ii. we find a catalogue of those who went up out of 
 the .captivity and returned into Jerusalem and Judah, 
 every one unto his city, and in this catalogue we read 
 " the men of Anathoth, an hundred twenty and eight " 
 [verse 23]. It was therefore well known in post-exilic 
 times who the men of Anathoth in fact were, and it 
 must have been equally well known whether they were 
 Levites or not. Can we conceive that this chapter of 
 Joshua could have been written if it was notorious that 
 the men of Anathoth were not Levites ? And if it had 
 
22 STUDIES IN BIBLICAL LAW 
 
 been written, would it ever have been accepted as true ? 
 And the reasoning that holds good of Anathoth is 
 equally applicable to the other cities specified in this 
 chapter. 
 
 Once more, this chapter of Joshua distinguishes 
 between the children of Aaron, to whom certain cities 
 were given, and the other Levites to whom other cities 
 were given — Anathoth, for instance, being assigned to the 
 former. Now in Ezra ii. 62 we read in connection with 
 certain children of the priests : — 
 
 These sought their register among those that were reckoned 
 by genealogy, but they were not found : therefore were they 
 deemed polluted and put from the priesthood. 
 
 In the face of this passage, which shows with what 
 care the genealogy of members of the priesthood was 
 preserved and examined, can it be supposed that a 
 writer in sympathy with the ideas of the priests could 
 have stated that certain cities were given to the chil- 
 dren of Aaron, unless the genealogical records in fact 
 supported the view that the inhabitants of these cities 
 were descended from him ? Yet this is what the 
 documentary theory requires us to believe. 
 
 I have examined these passages in detail, partly 
 because pro tanto they throw light on the character of 
 the historical books, partly because they .suggest the 
 idea that there is historical evidence of the date of the 
 Pentateuch, and that it has never been examined by any 
 writer who has been trained to weigh such evidence. 
 
 In Exodus xxi. 13, the asylum for manslaughter (as the 
 connection with v. 14 appears to show) is the Lord's altar {cf. 
 1 Kings i. 50; ii. 28); in Deuteronomy (chap, xix.) definite cities 
 are set apart for the purpose [Driver, Deuteronomy xxxvii]. 
 
 Exodus xxi. 13 and 14, is as follows : — 
 
 13. And if a man lie not in wait, but God deliver him into 
 his hand ; then I will appoint thee a place whither he shall flee. 
 
CONDITION OF BIBLICAL STUDIES 23 
 
 14. And if a man come presumptuously upon his neigh- 
 bour, to slay him with guile ; thou shall take him from mine 
 altar, that he may die. 
 
 It is submitted that no unprejudiced person would 
 first identify the "place" of verse 13, which is to be 
 appointed in the future for the manslayer, with the 
 " altar " of the very next verse, from which the murderer 
 was to be taken, and then argue that this law was in- 
 consistent with the institution of cities of refuge. It is 
 only fair to note that Dr. Driver states the point with 
 obvious doubt. 
 
 Dr. Driver makes a point on the law of seduction 
 [Deuteronomy xxxvii. xxxviii.], but as he refers to Pro- 
 fessor W. Robertson Smith as his authority, and the 
 latter treats it most fully, it will be best to quote the 
 earlier writer, merely observing that he refers to the 
 Exodus source as S. 
 
 Again, in Exodus xxii. 16, 17, he who seduces a virgin is 
 obliged to buy her of her father as his wife, or if the father 
 refuse he is to pay the same dowry as if he had married 
 her a virgin. We have here an example ... of a state of 
 society well known to students of antiquity. The father has 
 a pecuniary interest in his daughter's virginity, because he 
 expects to receive a dowry or rather purchase price (mokar — 
 exactly equivalent to the Homeric e&va) from the suitor in 
 exchange for her hand. The seduction frustrates this hope 
 (comp. Odyssey viii. 318), and the seducer must therefore 
 make good the injury to the father as well as to the damsel. 
 In accordance with this point of view, the law of S stands 
 at the close of a list of cases of pecuniary compensations for 
 injury to property, and not among the laws as to personal 
 injury. In Deuteronomy xxii. 28 we find a parallel law — 
 not among laws of property, but among laws as to purity. 
 The case contemplated is not that of seduction, but of 
 violence to a maiden. It is still provided that the offender 
 shall marry the damsel and pay a sum to the father ; but 
 the expression " mbhar of virgins " has disappeared, and the 
 compensation is fixed at fifty shekels. Apparently the custom 
 
24 STUDIES IN BIBLICAL LAW 
 
 of paying a dowry to the father in every case,' of marriage is 
 no longer known, and therefore, though the fine is retained, 
 it cannot, as in S, be estimated by usual practice as to the 
 dowry of virgins, but requires to be fixed bylaw. When this 
 important change in marriage customs took place we cannot 
 say with precision. In the time of Saul the payment of 'a 
 mbhar-wis still usual (i Samuel xviii. 25); but the book of 
 .Kings has a technical word for dowry given by the father to 
 „ , his daughter (shilluchim, 1 Kings ix. 16, literally " dismissal 
 gift "), which implies a reversal of the old custom. In the 
 post-Biblical Jewish law the dowry was settled on the wife, 
 as well as the paraphernalia which she brought from her 
 father's house [W. Robertson Smith. Additional answer to 
 the Libel, 56-57]. 
 
 A pretty theory, but one which rests entirely on the 
 hypothesis that in no country can the custom of giving 
 dowry co-exist with the custom of paying the father for 
 his daughter. It is therefore a complete answer to 
 point out that in Babylonia these two customs did 
 so co-exist (Kohler und Peiser, Aus dem Babylonischen 
 Rechtsleben, I. pp. 7, 8). 
 
 It should, moreover, be noticed that both the passages 
 in the historical books relate to very exceptional cases. 
 In the first citation, a subject desires to marry the 
 daughter of his sovereign ; while in the book of Kings, 
 it is the king of Egypt who captures and burns Gezer, 
 slays the Canaanites that dwelt in the city, and gives it 
 for a portion unto his daughter, Solomon's wife. We 
 may wonder whether such a use of historical material 
 would be tolerated in any other field of inquiry. What 
 would be said of a group of historians who should, 
 for instance, point to the fact that, when Katharine of 
 Portugal brought Bombay and Tangier as a portion 
 on her marriage with Charles II., the English language 
 had an apt term to express this, and should solemnly 
 argue that the English law and custom of Dower must 
 therefore have died out before 1660, and that the Eng- 
 
CONDITION OF BIBLICAL STUDIES 25 
 
 lish marriage customs had undergone an important 
 change ? 
 
 As to the differences between the laws of Deutero- 
 nomy and Exodus, the explanation cannot be better 
 given than in Professor Smith's own words : " The case 
 contemplated is not that of seduction, but of violence 
 to a maiden." In law, different premises habitually 
 lead to different conclusions. 
 
 A smaller divergence between the modes of effecting the 
 contract for family bondage may be now made clear. The 
 Judgement-book, Exodus xxi. 6, ordains that the master shall 
 bring his slave "to God"; there at the door of the sanctuary, 
 the centre of the administration of justice, the master shall 
 bore his ear through with an awl, affixing it momentarily to the 
 door-post, so that under the authority of religion he becomes 
 a slave "for ever." The corresponding law in Deuteronomy 
 xv. 12-18, introduces some interesting modifications. It is 
 extended to women ; it lays emphatic stress on generous 
 recognition of the six years' forced labour ; and in conclusion 
 it retains the symbolic action with the awl. But it omits 
 all reference to " God." The door-post to which the slave is 
 attached is that of the householder's own dwelling. The 
 public and official ceremony is converted into a private and 
 domestic incident The meaning of this change is not ob- 
 scure. The law of Exodus belongs to the code which admits 
 a plurality of sanctuaries : the Deuteronomic principles recog- 
 nise but one. Important ceremonies, like the annual festivals, 
 are transferred to the only centre of worship. There, too, 
 must tithes be consumed (xiv. 23 . . ), an express provision being 
 inserted for those who lived too far off to take their tithes 
 thither in kind. The case of the household slave, however, 
 was not important enough to require the intervention of the 
 supreme authorities in the capital, and the reference to justice 
 and religion dropped ["The Hexateuch," I. 55-56; cf. Driver, 
 Deuteronomy 184]. 
 
 Nobody would infer from this that the translation 
 " God," on which practically the whole of the above 
 rests, is only an admittedly doubtful rendering of ^' ! P% 
 a word which is by some translated "judges." 
 
26 STUDIES IN BIBLICAL LAW 
 
 The critics, having obtained the curious phrase "go 
 to God " — a phrase better suited to idolaters than to the 
 God of the Decalogue or a law-giver who worshipped 
 Him — promptly substitute " the sanctuary " for " God." 
 But the change is fatal. It is true that we meet with a 
 number of erections which the critics term "sanctu- 
 aries," but what were these sanctuaries ? Not build- 
 ings, but altars — that is, structures, which, whatever 
 their merits as places of worship, would not possess 
 the one essential for this ceremony, a door or door- 
 post. And what a curious transaction it is ! A "sanc- 
 tuary" we have, but no priest, no congregation, no 
 sacrifice, no ceremony, religious or other, merely this 
 pinning of the slave's ear to the imaginary door or 
 door-post. Is there any parallel to this in the legisla- 
 tion of the Pentateuch ? And could this extraordinary 
 proceeding serve any useful purpose ? 
 
 Now let us try substituting "judges" for "God." 
 Master and slave go to the judges. Where do the judges 
 meet ? Not at the notional door of a hypothetical 
 "sanctuary," but at the gate (Deuteronomy xxi. 19, 
 xxv. 7 ; Joshua xx. 4 ; Ruth iv. ; Zachariah viii. 16 ; cf. 
 2 Samuel xv. 2-6 ; Genesis xxiii. 18), which will certainly 
 provide the necessary door and door-post, even though 
 the adjoining wall may be of some material which would 
 not lend itself to the ceremony. What happens ? The 
 slave publicly, in the presence of the very judges who 
 would have to try the question of fact should any dis- 
 pute hereafter arise, submits to having an indelible mark, 
 which will always be evidence in case of any dispute, 
 made on that part of his body where it will do least 
 harm. If he should hereafter say, "True, I have this 
 mark, but it was made without my consent," the know- 
 ledge of the judges will decide the issue. If all the 
 judges be dead, yet, as the ceremony was public, there 
 will be the maximum probability that some witness of 
 
CONDITION OF BIBLICAL STUDIES 27 
 
 it will survive who can prove what he saw. The cere- 
 mony may of course also have some archaeological or 
 symbolical meaning, but it is impossible to feel any 
 doubt as to its legal and practical aspects. It is in ac- 
 cordance with all we know of the ceremonies of ancient 
 law before the introduction of the properly authenticated 
 writing, which, in a more mature system, provides the 
 necessary evidence. In all ancient systems of law we 
 find the same need for evidence giving rise to the same 
 publicity, for the question of proof has to be faced in 
 every age. The Pentateuch knows nothing of written 
 documents properly witnessed and authenticated by the 
 signatures or seals of all the parties to the transaction. 
 Writing it knows — we meet with it in the Deuteronomic 
 law of divorce and in some of the covenant ceremonies. 
 But in those very covenant ceremonies it is a mere ad- 
 junct to the ceremonies that we see in covenants which 
 have no writing, and in no case is the writing authenti- 
 cated as it would be in any mature system of law. The 
 Israel of the Pentateuch has yet to pass through long 
 ages of development before its law can embody the 
 ideas which give rise to the Egyptian legal documents of 
 the year 2500 B.C., the Babylonian legal tablets, the 
 conveyance of the thirty-second chapter of Jeremiah, or 
 the modern English deed. The historical student of 
 law realises after the first glance at the legislation that 
 the story of Dagon is about to find a literary parallel in 
 the history of the documentary theory. 
 
 To return to the slave laws : when we look at the 
 passage in Deuteronomy we find nothing about the door 
 of the master's dwelling, only the phrase "the door." 
 Can anybody doubt that every contemporary would 
 have understood by this the door of the gate ? 
 
 We may now deal with a further objection of Dr. 
 Driver's : — 
 
 In Exodus xxi. 2-1 1 a Hebrew bondman is to serve for 
 six years, and to receive his freedom in the seventh year 
 
28 STUDIES IN BIBLICAL LAW 
 
 (verse 2); a bondwoman who comes into servitude with her 
 husband is to receive her freedom at the same time (verse 3). 
 But a daughter sold by her father as a bondwoman is on a 
 different footing; she is not to go free as the bondmen do 
 (verse 7). In Deuteronomy xv. 12 the law of Exodus, by 
 the addition of "or an Hebrewess," is pointedly extended so 
 as to include bondwomen; and in verse 17 it is expressly 
 prescribed that the bondwoman (without any limitation) is to 
 be subject to the same law of manumission as bondmen. 
 Both laws are designed for the land of Canaan, as appears 
 from the reference to the door and doorpost. If both laws, 
 however, were given in the wilderness for a time of future 
 settlement in Canaan, the variation just noted appears arbi- 
 trary. It is, however, at once explicable upon the supposition 
 that the law of Deuteronomy springs from a more advanced 
 stage of society than the law of Exodus, and regulates usage 
 for an age in which the father's power over his daughter was 
 less absolute than it had been in more primitive times, and 
 when it was no longer the custom (see Exodus xxi. 8-9) for a 
 Hebrew girl to be bought to be the wife of her master or his 
 son [Deuteronomy xxxvii]. 
 
 We may first strip this argument of the plausible air 
 it derives from the hypothesis that the Deuteronomist is 
 writing in an age when the father's power over his 
 daughter was less absolute, and when it was no longer 
 the custom for a Hebrew girl to be bought. The latter 
 half of this theory has already been disposed of in deal- 
 ing with Professor Smith's views as to the law of seduc- 
 tion. How erroneous is the view that the father's power 
 had diminished may be seen by a reference to the 
 passages quoted in dealing with the jubile law as to 
 debtors, and also from Isaiah 1. 1, where we read : — 
 
 Which of my creditors is it, to whom I have sold you ? 
 
 Coming now to the actual law of Exodus, we find 
 that it expressly excludes from the operation of the six 
 years' principle only those women to whom it gives 
 the benefit of a more liberal exactment (verse 11), 
 
CONDITION OF BIBLICAL STUDIES 29 
 
 entitling them to the status and privileges of wives, or 
 alternatively to immediate freedom. What was to happen 
 in the case of other purchases of women ? It would, 
 of course, be easy to show grounds for thinking that 
 the law of bond-servants is to apply to all purchases of 
 women, other than those expressly excepted. Nobody 
 would argue that a widow or a spinster could not take 
 the benefit of the jubile law, because it applies in terms 
 only to " thy brother." Nor would any one, who under- 
 stood the spirit of this law, suppose that it was the inten- 
 tion of the legislator to provide relief for male slaves 
 and for one class of female slaves, while leaving all 
 other bondwomen without relief. So far, therefore, it 
 matters not whether we suppose that the law is not 
 confined to bondmen, or that during the forty years in 
 the wilderness the question had been raised and settled, 
 or that Deuteronomy actually does extend the law. 
 
 But when we look at Deuteronomy xv. other con- 
 siderations arise. Here is the text : — 
 
 12. If thy brother, an Hebrew man, or an Hebrew woman, 
 be sold unto thee, and serve thee six years ; then in the 
 seventh year thou shalt let him go free from thee. 
 
 13. And when thou lettest him go free from thee, thou 
 shalt not let him go empty : 
 
 14. Thou shalt furnish him liberally out of thy flock, and 
 out of thy threshing-floor, and out of thy wine-press : as the 
 Lord thy God hath blessed thee thou shalt give unto him. 
 
 15. And thou shalt remember that thou wast a bondman 
 in the land of Egypt, and the Lord thy God redeemed thee : 
 therefore I command thee this thing to-day. 
 
 1 6. And it shall be, if he say unto thee, I will not go out 
 from thee; because he loveth thee and thine house, because 
 he is well with thee ; 
 
 17. Then thou shalt take an awl, and thrust it through his 
 ear unto the door, and he shall be thy bondman for ever. And 
 also unto thy bondwoman thou shalt do likewise. 
 
 18. It shall not seem hard unto thee, when thou lettest 
 him go free from thee ; for to the double of the hire of an 
 
3 o STUDIES IN BIBLICAL LAW 
 
 hireling hath he served thee six years : and the Lord thy God 
 shall bless thee in all that thou doest. 
 
 This is no judgment law, no rule intended to be 
 enforced by the courts. The master is to let the man 
 go free. Why ? Because the courts will compel him ? 
 No, because " to the double of the hire of a hireling 
 hath he served thee six years, and the Lord shall bless 
 thee in all thou doest." " Thou shall furnish him 
 liberally." Why ? For fear of legal compulsion ? 
 Again, no, but because "thou wast a bondman and 
 the Lord redeemed thee." And what is the gift to be ? 
 Some fixed amount of money or produce ? Some 
 quantity arrived at by judicial estimation. No, "as the 
 Lord hath blessed thee, thou shalt give unto him." 
 There is no right here that can be enforced, if necessary, 
 by proceedings before the courts. Again, the law of 
 Exodus provides for the possibility of children being 
 born, the words of Deuteronomy do not even con- 
 template this contingency. In fine, the passage in 
 Deuteronomy is not a jural law, but an exhortation 
 addressed to the individual purchaser of slaves to 
 observe with alacrity the already existing law, and to 
 treat those whom it benefits with liberality. To obtain 
 obedience, it relies not on any legal sanction, but on 
 being a command of God and a term of a covenant, 
 and on the inducements it holds out. It may therefore 
 be used to interpret the law of Exodus, but cannot be 
 treated as a fresh attempt to formulate a binding jural 
 law. 
 
 There is one other point which should not be allowed 
 to pass unnoticed. The reference to the door does not 
 prove what Dr. Driver thinks. First, it is absurd to 
 suppose that for forty years every slave who would 
 otherwise have been entitled to freedom had to remain 
 in slavery because, if he had desired to do so, no door 
 
CONDITION OF BIBLICAL STUDIES 31 
 
 would have been available. Secondly, nobody who 
 knows how institutions work in practice, will suppose 
 that there can ever have been any difficulty anywhere 
 in finding something that would have been a sufficient 
 door within the meaning of the rule. Thirdly, the camp 
 had in fact gates [Exodus xxxii. 26-27], anc ^ * ne tents 
 had in fact doors [Exodus xxxiii. 8]. 
 
 So far as I can gather, I have now exhausted the 
 legal evidence on which the critics rely. It is therefore 
 desirable to pause and sum up the results of our long 
 inquiry. First, the development hypothesis is dead ; 
 for such a theory can only be supported by showing 
 development, and no development has been shown. 
 None can be shown. Secondly, the critics have entirely 
 failed to point to any evidence either of composite 
 authorship or post-Mosaic date. The phrase, " comple- 
 mentary not contradictory," represents the opinion that 
 we have been led to form in considering the alleged 
 inconsistencies, and such evidence of date as is afforded 
 by the legal and historical passages we have examined, 
 points to the Mosaic age. It is proper to emphasise this 
 point by drawing attention to one of the arguments on 
 which the critics rely. 
 
 The differences between Deuteronomy and Exodus 21-23, 
 point with some cogency to a period considerably removed 
 from that at which the Israelites took possession of Canaan, 
 and presuppose a changed social condition of the people 
 [Driver, " Literature," p. 87. Cf. Deuteronomy xlvi]. 
 
 Had this in fact been the case, the critics would have 
 been able to point not merely to legal differences, but 
 also to passages which presupposed a more advanced 
 social condition than that of the Mosaic age. They have 
 utterly failed in both respects. If the jural law is not 
 Mosaic, how comes it that they are unable to adduce a 
 single line of it as evidencing late composition ? 
 
j2 STUDIES IN BIBLICAL LAW 
 
 But we have learnt far more than the real meaning, 
 of a few laws, or the weakness of the legal arguments 
 for the documentary theory. We have learnt the 
 characteristics and methods of this school of writers. 
 Law is a technical subject, and probably not one of 
 the critics would venture to dogmatise, without legal 
 training, about the system of law at present in force in 
 his own country in the positive manner in which they 
 all make allegations about this difficult system of ancient 
 law. Yet they are here dealing not with the law of their 
 own country and age, but with the law of an early 
 society, designed for archaic conditions, preserved in 
 a dead language. And as with law, so with history. 
 They profess to examine historical evidence, but we 
 have seen that they do not understand how to handle 
 it. What can such writers be expected to make of the 
 other technical subjects on which they presume to 
 write without expert qualifications ? 
 
 Their lack of technical knowledge and training is, 
 however, by itself insufficient to account for the uniform 
 failure of these writers to construct any theory which 
 will stand the test of examination. Writers on the 
 military art tell us that if the strategy of a campaign be 
 sound, the bad results of a lost battle will be minimised, 
 but if the general plan of operations be false, even 
 success in the field may bear poor fruits. A similar 
 principle would seem to obtain in Biblical studies, and 
 the collapse of the higher critics must be attributed in 
 the first instance to their neglect of this principle. The 
 true objective of Biblical students must always be the 
 elucidation of the sacred Text, not its destruction. 
 
 But even the failure of the critics to construct any 
 theory that will bear scrutiny is not the worst feature of 
 their work. Nobody will question the excellence of 
 their intentions ; nobody will suggest that any critic 
 would willingly be guilty of the slightest falsehood ; but 
 
CONDITION OF BIBLICAL STUDIES 33 
 
 can it fairly be said that the work we have examined 
 shows that its authors possess the qualities of observing 
 accurately and impartially, and reporting correctly the 
 results of their observation ? Putting aside all questions 
 of technical training and of objective, what must be said 
 of a group of writers, who, in the face of Leviticus xxv. 5, 
 maintain that in Leviticus, "contrary to the implied 
 provision of Exodus xxiii., the householder is himself to 
 gather in the produce," or who assert that " Deuteronomy 
 xviii. 6 is inconsistent with the institution of Levitical 
 cities prescribed in Numbers xxxv?" Or what are we 
 to make of the representations that the door of the 
 sanctuary was "the centre of the administration of 
 justice," and that in Deuteronomy "the door-post to 
 which the slave is attached -is that of the householder's 
 own dwelling ? " Can we think that the higher critics 
 are likely to prove trustworthy, when they make allega- 
 tions of fact about other subjects ? Can we expect them 
 to show even accuracy — I say nothing of acumen or 
 insight — either in interpreting the texts with which they 
 deal, or in grasping the practical working of the insti- 
 tutions about which they write ? 
 
 The Mosaic date of the jural law is not in fact a 
 matter for which we need rely on tradition, or specu- 
 lation, or faith, or even on the express statements of the 
 Pentateuch. It may be made the subject of rigorous 
 proof. By that I do not mean that it is possible to 
 produce a copy of the laws written by Moses, or that his 
 handwriting could be proved if such a copy were avail- 
 able; but there the impossibilities end. It is easy 
 enough to show, by means of the comparative method, 
 that the topics dealt with by the laws are for the most! 
 part those dealt with by every early code, and that in all 
 cases they are such as would naturally be subjects of 
 legislation in the Mosaic age. The rules are in some 
 cases actually identical with those found in other systems 
 
 C 
 
34 STUDIES IN BIBLICAL LAW 
 
 of ancient law, and in all cases suitable to a primitive 
 state of society. The method of legislation embodies 
 very early conceptions, and in view of the evidence of 
 other early laws, and the known characteristics of 
 Hebrew literature, we can point to the very style as 
 harmonising with Mosaic date. Indeed, to any reader of 
 historical jurisprudence, the whole atmosphere of the 
 Pentateuch is as familiar as the spirit is strange. 
 Moreover, we have already seen grounds for thinking 
 that history can show that the laws in fact operated, and 
 it is not difficult to adduce other testimony from the 
 later books. 
 
 If, however, that be so, what are we to say to the rest 
 of the alleged evidence for the documentary theory? 
 Nobody who has been trained in the law of evidence 
 can feel the least difficulty. It is not humanly possible 
 that the critics, in dealing with other subjects, should 
 display any higher qualities than those with which their 
 legal work has familiarised us. Accordingly, I have 
 contented myself with carefully testing a few of their 
 allegations. Nobody will deny that the Biblical narra- 
 tive presents many difficulties to a modern reader. My 
 only object is to see whether these writers possess the 
 necessary qualifications for dealing with them. 
 
 There is at least one instance of a matter apparently 
 requiring no special training of any sort, where the 
 statement of " The Hexateuch " could not have been made 
 by any impartial and accurate observer, 
 
 In the narrative of the plagues it will be found that one set 
 of stories places the Israelities in Goshen, where the wonders 
 that are wrought in Egypt do not affect them, Exodus viii. 2 2, 
 ix. 26; while another locates them among the Egyptians and 
 secures them miraculous exemption, x. 21-23; C P- v »- 8 note 
 [I- 32]. 
 
 The material part of the note seems to be : — 
 
CONDITION OF BIBLICAL STUDIES 35 
 
 In x. 21-23 tne y are living in the midst of the people in 
 Egypt itself, and their immunity from the oppression of the 
 darkness is secured by the appearance of light in their 
 dwellings. 
 
 What the Biblical text says is : — 
 
 22. . . . There was a thick darkness in all the land of 
 Egypt three days ; 
 
 23. They saw not one another, neither rose any from his 
 place for three days : but all the children of Israel had light in 
 their dwellings. 
 
 How does that justify the allegation that "they are 
 living in the midst of the people in Egypt itself ? " 
 Would any unprejudiced observer, reading these verses 
 with the knowledge of the Goshen narrative which he 
 could gather from other passages, be reasonably likely to 
 infer that these words should be interpreted as "The 
 Hexateuch " interprets them ? 
 
 I have examined one other remarkable allegation. 
 
 Once more, the rebellion of Korah, Dathan, and Abiram, in 
 Numbers xvi, issues in the strange result that their two hundred 
 and fifty followers., 2, are first engulfed in the midst of all 
 their possessions, 32, and then devoured by fire at the entrance 
 of the tent of meeting, 35 [" The Hexateuch," I. 32]. 
 
 Accordingly the critics dismember the chapter, and 
 assign the fragments to different sources. 
 What does the Hebrew text say ? 
 
 32. And the earth opened her mouth, and swallowed them 
 up, and their households [or houses], and all the men that 
 [sc. appertained] to Korah and all the substance. 
 
 How does that support the representation that the 
 two hundred and fifty, who are described in verse 2 as 
 "princes of the congregation, called to the assembly, 
 men of renown," were engulfed in the midst of all their 
 possessions ? 
 
36 STUDIES IN BIBLICAL LAW 
 
 Three verses later we read of these very men : — 
 
 35. And fire came forth from the Lord, and devoured the 
 two hundred and fifty men that offered the incense. 
 
 Let us consider for a moment what it is that the 
 critics ask us to believe about this chapter. They say 
 that there were at least two documents — probably more, 
 but certainly P and JE — that one of these contained a 
 narrative that Korah and two hundred and fifty princes 
 revolted against Moses and Aaron, committed a religious 
 offence and were destroyed by fire, while in the other was 
 a story that two other persons, Dathan and Abiram, who 
 were in no way connected with Korah, headed an 
 entirely separate rebellion based on different grounds, 
 and were swallowed up by the earth in a different part 
 of the camp. Then an editor, who desired to compile a 
 consecutive and harmonious narrative of the Mosaic 
 age, and who, be it noted, was never at all squeamish 
 about altering or excising anything he did not like, 
 proceeded to combine these two. He did not insert in 
 his history first the one story and then the other, but 
 he laboriously divided them into fragments and fitted 
 some of these together in such a way as to make non- 
 sense. Let us remember that this was not a point about 
 which anybody could feel doubt, or that could possibly 
 be overlooked. The critical case is that in three out of 
 four consecutive verses two hundred and fifty men are 
 represented as being swallowed up by the earth, and in 
 the fourth as being killed by fire from heaven. If a 
 story, which meant that, and was not susceptible of 
 any other meaning, really was compiled, how can 
 we believe that it would ever have won credence ? 
 Was there no one in Jerusalem and Judah who could 
 understand the difference between sense and non- 
 sense ? And what conceivable motive could the 
 editor have had ? Reverence for the documents ? 
 
CONDITION OF BIBLICAL STUDIES 37 
 
 That would have impelled him to insert both stories 
 untouched. 
 
 The critical allegations as to this passage are the 
 more extraordinary, because other considerations should 
 have combined to keep them straight. In Numbers xxvi. 
 we read : — 
 
 9. These are that Dathan and Abiram, which were called 
 of the congregation, who strove against Moses and against 
 Aaron in the company of Korah, when they strove against 
 the Lord : 
 
 10. And the earth opened her mouth, and swallowed them 
 up together with Korah, when that company died ; what time 
 the fire devoured two hundred and fifty men, and they became 
 a sign. 
 
 There can therefore be no doubt that the author who 
 is responsible for this passage, and who, according to 
 the critical story, was a priest writing before the combina- 
 tion of the Korah narrative with the Dathan and Abiram 
 account, was familiar with some story, which, as he 
 understood it, represented that Korah, Dathan, and 
 Abiram were swallowed up, but that the two hundred 
 and fifty were burnt. It is true that some critics 
 postulate the existence of a second Korah, who was no 
 Levite, and who was connected with Dathan and 
 Abiram ; but that would leave them with two difficulties : 
 (1) Deuteronomy xi. 6 makes no mention of any such 
 person — who, in fact, is a mere figment of the critical 
 imagination ; and (2) the narrative in Numbers xxvi. 
 distinctly states that the fire devoured two hundred and 
 fifty men, whereas the critics allege that this feature is char- 
 acteristic of the story which relates to Korah the Levite, 
 and is not told of the company of Korah the figment. 
 
 In point of fact, chapter xvi. contains marks of 
 unity which nobody who had had a literary training 
 could help noticing. It is well known that in an angry 
 dialogue it often happens that the parties bitterly echo 
 
38 STUDIES IN BIBLICAL LAW 
 
 each other's phrases. Now that is exactly the case here. 
 Korah says in verse 3 : "Ye take too much upon you" 
 and in verse 7 Moses hurls back the phrase : " Ye take 
 too much upon you, ye sons of Levi." Then in verse 9 
 Moses asks, " Is it a small thing that the God of Israel 
 hath separated you," &c. ; and in verse 13 Dathan and 
 Abiram take up this phrase, and fling it at Moses : " Is 
 it a small thing that thou hast brought us up out of a 
 land flowing with milk and honey?" For literary 
 parallels the reader is referred to Sophocles O.T. 547- 
 552, and the instances collected in Sir Richard Jebb's 
 note on the passage. 
 
 The annotator in "The Hexateuch" shows his ap- 
 preciation of literary touches by gravely remarking on 
 verse 7 that — 
 
 This phrase [i.e. ye take . . . Levi. — H. M. W.] does not 
 fit the context, for Korah and the princes were not all Levites. 
 
 But indeed the notes on this chapter abound in 
 instances of what the writers of this school doubtless 
 regard as critical tact. For example, on verse 13 — 
 
 Is it a small thing that thou hast brought us up out of a 
 land flowing with milk and honey, to kill us in the wilderness ? 
 
 We are told that — 
 
 As the text stands Egypt is here described as a "land 
 flowing with milk and honey," a designation otherwise reserved 
 for Canaan. 
 
 But the critics do not despair of rescuing the memory 
 of their prophetical writer from the charge of committing 
 such an ineptitude, for they discover that the Septuagint 
 reads into, and proceed — 
 
 If this be preferred, the complaint is that the plea of 
 bringing them into a land of plenty has only involved them in 
 death in the wilderness. 
 
CONDITION OF BIBLICAL STUDIES 39 
 
 It is true that in that case not only will the whole 
 point of the remark be destroyed, but Dathan and 
 Abiram will be talking utter nonsense, for they will be 
 alleging that Moses has brought them up into a land 
 flowing with milk and honey, to kill them in the wilder- 
 ness (and not, as the critics seem to think, that he only 
 promised to do so), but such considerations as this have 
 no place in the higher criticism. 
 
 14a will then be inappropriate as repetition, and if assigned 
 to E would make a better connection with 14b. 
 
 So that not only has the Septuagint text the advantage 
 of making Dathan and Abiram talk nonsense, but it 
 enables the critics to destroy the unity of their speech. 
 And remarks of this description are gravely put forward 
 on almost every page of "The Hexateuch." Truly, with 
 the members of this school, the documentary theory is 
 not a hypothesis ; it is an obsession. 
 
 The arguments from religious ideas and ceremonial 
 laws must be left to experts in those subjects. It is 
 instructive to note that the only critical assertions on 
 the subject that I have been at pains to verify — they 
 were chosen, because, if true, there seemed to be real 
 contradictions — show the same inability to reach the 
 level of scientific truth as marked their treatment of the 
 jural laws. This is how Dr. Driver states the first : — 
 
 Deuteronomy xviii. 3 (the shoulder, the cheeks, and the 
 maw to be the priest's perquisite in a peace-offering [sic. 
 H. M. W.]) is in direct contradiction with Lev. vii. 32-34 (the 
 breast and the right thigh to be the priest's due in a peace- 
 offering) [Deuteronomy xxxix.]. 
 
 The actual wording of Deuteronomy is " from them 
 that sacrifice the sacrifice." 
 
 Now, Professor W. Robertson Smith [" Religion of 
 the Semites " p. 237 n.\ holds that the Hebrew word here 
 
4 o STUDIES IN BIBLICAL LAW 
 
 rendered by "sacrifice" is a "more general word" than 
 the word in Leviticus which in combination with it is 
 rendered " peace-offering." Whether Professor Smith is 
 right or not I do not of course know ; but Dr. Driver's 
 remark is clearly not accurate. Nor must this be 
 thought a mere quibble. If the two passages occurred 
 in an English deed or an international treaty, no lawyer 
 would dream of inferring diversity of authorship. So 
 common are such phenomena in legal documents, that 
 there are well-known rules of interpretation both in 
 municipal and international law, which would immedi- 
 ately be applied. There is no ground for assuming that 
 sacrificial terms of art are used promiscuously in the 
 Pentateuch, and it is therefore evident that there is 
 not the least justification for Dr. Driver's treatment of 
 the question. The exact meaning and relation of the 
 two passages must be left to specialists in sacrificial 
 law ; all I am concerned to establish is that the ap- 
 parent contradiction is merely due to the critical 
 methods, which in this instance, as in so many others, 
 appear to have led one of their leading exponents into 
 a quite unconscious misrepresentation of fact. 
 
 In Leviticus xvii. 15, the flesh of an animal dying of itself 
 (nebeldh) is not to be eaten either by the Israelite or by the 
 "stranger": in Deuteronomy xiv. 21 it is prohibited for the 
 Israelite, but permitted to the "stranger" [Driver, Deutero- 
 nomy xxxix.]. 
 
 Leviticus xvii. 15 runs as follows : — 
 
 And every soul that eateth that which dieth of itself, or 
 that which is torn of beasts, whether he be home-born or a 
 stranger, he shall wash his clothes, and bathe himself in water, 
 and be unclean until the even : then shall he be clean. 
 
 It is with great diffidence that I treat of a regulation 
 that deals with such a purely religious conception as 
 that of clean and unclean, but, so far as I can form an 
 
CONDITION OF BIBLICAL STUDIES 41 
 
 opinion, this is a camp law applicable only to the time 
 in the desert. There certainly are other camp laws in 
 the same chapter. If this is so, the seeming contradic- 
 tion is a creation of the documentary theory. 
 
 The critical treatment of camp laws appears to be 
 wild in the extreme. I have looked carefully into one. 
 For the sake of brevity, I summarise it in my own 
 language. At the beginning of this chapter [Leviticus 
 xvii.] stands a law providing that every Israelite shall 
 bring any ox or lamb or goat he may desire to kill to 
 the door of the tent of meeting. As to the early history 
 of this law, the critical allegiance is divided between 
 competing improbabilities ; I shall therefore only deal 
 with the crowning impossibility, which commands 
 unanimous assent. At some time unknown, some 
 person unknown, by editing old material or inventing 
 new — it matters not which — published, under the guise 
 of a camp law, a regulation which was intended to in- 
 duce every Israelite to bring any animal that was to be 
 killed to Jerusalem. The documentary theory compels 
 the critics to assume that this legislation was to be 
 acted on in Canaan ; for nobody would believe that 
 camp laws were forged centuries after the period in 
 the desert had passed into history. But this assump- 
 tion means that every Israelite, no matter where he 
 lived, from Beersheba to Dan, from the sea to the 
 desert — was to go off to Jerusalem whenever he 
 wanted a chop or steak for his dinner, taking with 
 him the live animal from which it was to be obtained ! 
 Some of the critics try to minimise this difficulty by 
 assuming that the rule is post-exilic, and that the Jews 
 only occupied a small area. It is obvious that this 
 theory would break down utterly if only they would 
 enter into details. How many miles' radius would 
 they be prepared to allow to the returning settlers ? 
 How many animals would have to be slaughtered at 
 
42 STUDIES IN BIBLICAL LAW 
 
 the Temple each day ? How were the carcases to be 
 conveyed to the homes of their owners ? 
 
 Clearly this law must be taken to mean what it says. 
 We know that the Israelites had some cattle available 
 [Exodus xii. 38]. The staple food was manna, and the 
 killing of a few animals each week would not in any 
 way diminish the truth of the statement that it was by 
 manna that the children of Israel were fed for forty years. 
 Any other construction of the passage is hopeless. 
 
 In truth there is no tool in the critical workshop 
 which is at all fitted for the work that needs to be 
 done. Confronted with a rule that was meant to 
 work, the members of this strange school can think 
 of nothing better than to count the occurrences of 
 the words in which it is enacted. Not to them can 
 we look for that insight into the practical working of 
 human institutions which is the soul of all good his- 
 torical work. 
 
 In a section on "the Testimony of History" "The 
 Hexateuch " says : — 
 
 The chief fact to be explained is the repeated and sys- 
 tematic violation of the Deuteronomic and Levitical demands 
 on the part both of the people and their responsible leaders, 
 without any attempt to make royal, priestly, or prophetic practice 
 conform to the plainest requirements of the law. Two cir- 
 cumstances come clearly into view during the early history of 
 Israel's settlement in Canaan, (1) the variety of local sanc- 
 tuaries, and (2) the frequent performance of sacrifice by lay- 
 men [I. 79]. 
 
 The better to examine this argument, let us assume 
 without inquiry (1) that the critics have correctly under- 
 stood the law, and (2) that they have rightly appreciated 
 the historical evidence. What follows ? 
 
 It is clear that before the invention of the synagogue 
 the only period at which an exclusive place of worship 
 was even theoretically possible, was the time in the desert. 
 
CONDITION OF BIBLICAL STUDIES 43 
 
 If the circumstances of the age of the Judges be con- 
 sidered, it will immediately be seen that any attempt to 
 set up an exclusive central sanctuary must have been a 
 failure from its inception. The distances, the nature of 
 the country and the want of roads, would alone have 
 been prohibitive. The tribes were not always on good 
 terms with one another. They dwelt at intervals, the 
 interstices being filled by an alien and sometimes hostile 
 population. Parts of the country were frequently sub- 
 ject to foreign domination. Moreover, it is obvious 
 that, if the law of the central sanctuary had been in 
 force in the manner contemplated by the critics — 
 
 (r.) Three times a year the whole country, except the 
 capital, must have been entirely depopulated, or else 
 
 (2.) The great mass of the women and children 
 would never have performed or witnessed any act of 
 worship at all. 
 
 (3.) Nobody, except the inhabitants of the capital, 
 could have performed any act of worship except at 
 these three times. 
 
 Many of these arguments also apply with full force 
 to the time of the kings. Josiah's experiment only lasted 
 a few years, and we have little information as to its 
 working. The inference is irresistible ; either the 
 Deuteronomic law is nonsense, or the critics have 
 misunderstood the legislator. 
 
 With regard to the performance of sacrifice by 
 laymen, this too was inevitable, seeing that the priests 
 were concentrated in but a few places. Moreover, it 
 must be remembered that at a time when no central 
 sanctuary was possible, the dues would be compara- 
 tively insignificant, and the priests might often find it 
 best to dwell in their cities. Admitting, therefore, 
 that the law (as the critics understand it) was broken, 
 we reach the conclusion that its observance would 
 have meant the destruction of both religion and people. 
 
44 STUDIES IN BIBLICAL LAW 
 
 But even leaving all such considerations entirely out 
 of the question, the practice was clearly an old practice, 
 which continued throughout the Mosaic age. In Levi- 
 ticus we find a law which is expressed to be made — 
 
 To the end that the children of Israel may bring their 
 sacrifices, which they sacrifice in the open field, even that they 
 may bring them . . . unto the door of the tent of meeting, unto 
 the priest [xvii. 5]. 
 
 And the testimony of Deuteronomy is not less 
 emphatic : — 
 
 Ye shall not do after all the things that we do here this 
 day, every man whatsoever is right in his own eyes. . . But 
 when ye go over Jordan, and dwell in the land . . . then it 
 shall come to pass that the place which the Lord your God 
 shall choose to cause his name to dwell there, thither shall ye 
 bring all that I command you [Deuteronomy xii. 8-1 1]. 
 
 The principle which is emphasised in the following 
 quotation from a brilliant writer on legal history would 
 therefore apply : — 
 
 The truth must not be pressed too far, but a truth it is, 
 that, even now, Law is rather a thing to be discovered than a 
 thing to be made. To think of a legislator, or even a body of 
 legislators, as sitting down, in the plenitude of absolutism, to 
 impose a law upon millions of human beings, is to conceive an 
 absurdity. How shall such a law be enforced ? By a single 
 ruler ? By a group of elderly legislators ? By a few hundred 
 officials ? By an army ? We know the power of discipline ; 
 and we may grant that a comparatively small but well-dis- 
 ciplined army can control an immense mass of unorganized 
 humanity. But the army must have laws too, and how are 
 these to be enforced ? Perhaps by another army. [Jenks : " Law 
 and Politics in the Middle Ages,'' pp. 64-65.] 
 
 As Mr. Jenks says, the truth must not be pressed too 
 far ; but it must be clear that unless the children of 
 Israel had been given new hearts, no law and no 
 covenant could' have prevented their acting as they did. 
 
CONDITION OF BIBLICAL STUDIES 45 
 
 Would a historian regard this as strange ? Do the 
 annals of other religions tell of no survivals of earlier 
 forms of worship ? 
 
 It must always be remembered when we consider the 
 Mosaic law that we never have the whole of it before 
 us. The written law presupposes an unwritten law. 
 This can be shown very easily from the jural laws, either 
 by pointing to the almost complete absence of depart- 
 ments of law which must have existed, or by producing 
 laws which imply others which cannot be found. To 
 take only one instance, the existence of slavery is always 
 assumed, never enacted. Moreover, we have no know- 
 ledge of the motives which induced the legislator to 
 commit certain fragments of the law to writing. But 
 if this be so, if we merely have a selection of Mosaic 
 law and are ignorant of the principles on which it is 
 made, we must admit the probability of our misunder- 
 standing even that which seems perfectly clear. The 
 unwritten law must often have interpreted and quali- 
 fied the language of that which was written. Hence 
 the critical line of argument appears here too to rest 
 on foundations of sand. 
 
 There is an argument from language and style, con- 
 sisting of lists of words and phrases alleged to be 
 characteristic of the several sources. It would be 
 ludicrous to expect that a school of writers, who have 
 shown themselves so incapable of grasping the broad 
 meaning of the passages with which they deal, should 
 display any appreciation of those niceties of meaning 
 and sound that go to make style. The real answer to 
 all such arguments is the maxim of the law of evidence : 
 testimonia ponderanda non numeranda sunt. 
 
 It need scarcely be said that these writers never 
 succeed in putting forward any plausible explanation of 
 the phenomena which their mastery of arithmetical pro- 
 
46 STUDIES IN BIBLICAL LAW 
 
 cesses has enabled them to detect. Why, for example, 
 should the style of certain portions of JE, and certain 
 portions only, show indications of Deuteronomic re- 
 vision ? Or why should there be points of contact 
 between the style of H, and particularly of Leviticus 
 xxvi., and that of D ? Why indeed ? The critics have 
 no notion why. 
 
 If that be so, thy state of health is poor, 
 But thine arithmetic is quite correct. 
 
 It has been suggested that the record of Abraham's pur- 
 chase of the cave of Machpelah, Genesis 23, reads like "a 
 translation into Hebrew from a Babylonian cuneiform docu- 
 ment, the phrases and style being those of Babylonian texts 
 and the Tel-el-Amarna tablets." The particular expressions 
 on which this view is based have not been adduced ["The 
 Hexateuch," I. 64, which gives a reference to Sayce, Expository 
 Times, January 1898, p. 177, as the source of the quotation]. 
 
 On turning up the reference we read at page 178 : — 
 
 The words for "silver" and "weighing" in the sense of 
 " paying " are the same in Hebrew and Babylonian, as is also 
 the word for " shekel," which is derived from shdqal, " to weigh," 
 and was borrowed from Babylonian by the languages of the 
 West. The gift of the land had to be made " in the presence " 
 of witnesses both at Hebron and in Babylonia, the description 
 of the land and its boundaries, which takes us back to Baby- 
 lonian law and land-surveying, was similar in both cases, and 
 the Hebrew word ydqdm, from qum, "to rise up," which is 
 rendered " made sure " in the A.V., corresponds with the Baby- 
 lonian ilia, from elil, " to go up," which has the technical 
 signification of being " settled " or " made sure." 
 
 Professor Sayce then proceeds to deal with other 
 phrases. 
 
 With deference to the learned Professor, I am unable 
 to acquiesce in this argument. Some of these pheno- 
 mena re-appear in the conveyance to Jeremiah, others 
 may be paralleled from many systems of law. But there 
 is one conspicuous difference which the learned Pro- 
 
CONDITION OF BIBLICAL STUDIES 47 
 
 fessor does not notice, — the absence of writing from the 
 conveyance mentioned in Genesis. 
 
 It may be useful here to make a remark which has 
 been suggested to me by the argument from language 
 and style. We frequently find laws introduced by the 
 formula, "speak unto the children of Israel and say unto 
 them;" and it appears to be assumed that such laws 
 were necessarily intended primarily for publication to 
 the whole people. It seems to me quite possible that 
 this assumption is misleading. We can only guess at 
 the meaning that contemporaries would attach to such 
 phrases. This may be made clear by pointing to the 
 fact that in Exodus xix. 7, " Moses called for the elders 
 of the people and set before them " certain matters, 
 while in the very next verse, which the critics attribute 
 to the same source, we read that "all the people an- 
 swered together." If " the elders " and " all the people " 
 can be equated in this way, it may be as dangerous 
 to understand the set phrases with which laws are 
 introduced too literally, as it would be for a foreigner, 
 with no knowledge of English history or law, to base 
 theories on the "Be it enacted by the King's most 
 Excellent Majesty by and with the advice and consent 
 of the Lords Spiritual and Temporal, and Commons, in 
 this present Parliament assembled, and by the authority 
 of the same," of a modern English statute. 
 
 Before closing this paper it may be well to say a few 
 words about a point on which the critics seem, incapable 
 of clear thought. 
 
 In some cases, no doubt, an aim formerly indistinctly ex- 
 pressed is more sharply formulated, as in others, modifications 
 or adaptations are introduced which the tendencies of the age 
 required. . . Deuteronomy may be described as the prophetic 
 re-formulation, and adaptation to new needs, of an older legis- 
 lation. It is highly probable that there existed the tradition 
 
48 STUDIES IN BIBLICAL LAW 
 
 of a final legislative address delivered by Moses in the plains 
 of Moab : there would be a more obvious motive for the plan 
 followed by the author, if it could be supposed that he worked 
 thus upon a traditional basis. But be that as it may, the bulk 
 of the laws contained in Deuteronomy is undoubtedly far more 
 ancient than the time of the author himself: and in dealing 
 with them as he has done, in combining them into a manual for 
 the guidance of the people, and providing them with hortatory 
 introductions and comments, conceived in the spirit of Moses 
 himself, he cannot, in the light of the parallels that have been 
 referred to, be held to be guilty of dishonesty or literary fraud. 
 There is nothing in Deuteronomy implying an interested and 
 dishonest motive on the part of the (post-Mosaic) author ; and 
 this being so, its moral and spiritual greatness remains un- 
 impaired ; its inspired authority is in no respect less than that 
 of any other part of the Old Testament Scriptures which 
 happens to be anonymous [Driver, "Literature," 90-91; 
 Deuteronomy lxi. lxii.]. 
 
 I would most strenously protest against this view. 
 The man who scrawls in the margin some note, 
 explanatory, historical, or archaeological, some illustra- 
 tive quotation — perhaps a snatch of song — some story 
 of a patriarch, which he believes to be true, is morally 
 guiltless ; but he who knowingly writes that God has 
 said that which He has not said, that He has made 
 an agreement on certain terms, when in fact He has 
 not made an agreement on those terms, commits an 
 offence, which, having regard to the circumstances, 
 is probably the most heinous of which a human being 
 can be guilty. Call it "prophetic re-formulation and 
 adaptation to new needs," or "modification," or by 
 any other term designed to obscure the truth, the 
 nature of the act remains the same. Nor can it be 
 contended that a different conception of the nature 
 of the offence would have found favour in ancient 
 Israel. "Ye shall not add"— it is from Deuteronomy 
 itself that I am quoting— "Ye shall not add unto the 
 word which I command you, neither shall ye diminish 
 
CONDITION OF BIBLICAL STUDIES 49 
 
 from it" [iv. 2]. The view of the statesman and 
 legislator may be gathered from the provisions against 
 false prophets ; the views of the moralists from the 
 prophecies of Jeremiah and Ezekiel. As to the sugges- 
 tion that God inspired the forgeries — a suggestion which 
 should be attributed to mental confusion, and not to 
 an intent to blaspheme — the answer of the Pentateuch 
 is clear, convincing, annihilating : " God is not a man, 
 that he should lie " [Numbers xxiii. 19]. 
 
 The fact is that there is only one branch of the 
 investigation into the age and composition of the 
 Pentateuch, on which the critics are by their training 
 qualified to write — viz., that which deals with the evidence 
 from linguistic history. As they are experts in philology, 
 they naturally refrain from putting any philological 
 argument in the forefront of their case. The details 
 of such statements as they do make on this subject 
 must be left to specialists, but the general cogency 
 of the evidence may safely be gauged by a single fact : 
 P, which is now alleged to be the latest of the docu- 
 ments, was originally said to be the earliest. As to 
 the rest of the supposed evidence, it consists of allega- 
 tions on subjects concerning which their training does 
 not entitle these writers to express any opinion. Their 
 treatment of legal and historical materials is beneath 
 eontempt ; so are their exegesis and literary criticism. 
 Indeed, they appear to have reduced every department 
 of Biblical study to chaos. 
 
 Nor is there any cause for surprise in this : it is the 
 logical and necessary outcome of their professed methods. 
 Some years ago an eminent critic wrote the following 
 sentence : — 
 
 The order of research ought surely to be, first the study 
 of exegesis, then the comprehensive investigation of critical 
 problems, and lastly the history both of the literature and of 
 the outer and inner development of the people of Israel. 
 
50 STUDIES IN BIBLICAL LAW 
 
 So mischievous are these principles that I would fain 
 believe that that eminent critic hardly meant the words 
 to have their full force. The context of the passage 
 shows that he had some particular schemes of external 
 history and critical investigation in view, and perhaps 
 he would limit the dictum to these in spite of the 
 broad language used. But, be that as it may, it correctly 
 represents the actual practice of the higher critics. Yet 
 there is not in fact any possibility of drawing a hard and 
 fast line between exegesis, criticism, and history. The 
 coincidences of truth are infinite, and a grasp of the 
 meaning of any particular passage frequently — perhaps 
 habitually — carries with it a certainty as to the date of 
 the passage, and pro tanto as to the development of the 
 people. There can be no sound Biblical exegesis, unless 
 it go hand in hand with the study of the outer and inner 
 development of Israel. The historian and the archaeo- 
 logist, the jurist and the economist, have each as good 
 a claim to be heard on the exegesis of the documents 
 with which they deal, as the theologian and the philo- 
 logist. Having through the neglect of this principle 
 misunderstood the texts, the critics then proceed to 
 build critical theories on the false data obtained by this 
 pernicious system of exegesis, and then the history is 
 fitted into the Procrustean bed of the theories resulting 
 therefrom. But history — political, economic, legal, con- 
 stitutional, social — has also a bearing on critical problems. 
 It, too, can bear witness to the date and authenticity of 
 the documents in which its records are preserved. 
 
 It must be evident that Biblical studies are in a 
 deplorable condition. One large body of students 
 regards the Pentateuch simply as a collection of sermon- 
 texts ; another, as a field for the practical application of 
 the problem "to trisect a given verse." Nobody seems 
 to have even a dim conception that it is the record of the 
 achievements of the greatest statesman, organiser, legis- 
 
CONDITION OF BIBLICAL STUDIES 51 
 
 lator, and leader of men, whom God ever inspired. 
 Still less is there any appreciation of the practical 
 problems with which he had to deal, and the solutions 
 he was enabled to propound. If this state of affairs is 
 to be ended, many changes will have to be made in the 
 methods of study. At present, word-peddling is supposed 
 to be an adequate substitute for a grasp of the author's 
 meaning, and date-mongering for an apprehension of the 
 difficulties of a passage. The critic, who tries to deal 
 with a difficulty, habitually reasons in some such style 
 as this : " I do not understand the passage. Therefore 
 it is nonsense. Therefore it has been made nonsense 
 by the deliberate union and garbling of several docu- 
 ments, each of which made sense by itself ! " An 
 exhaustive and impartial scrutiny of evidence is — unless 
 unintelligent word-counting be reckoned such — absol- 
 utely unknown. 
 
 I have spoken frankly, because a full and candid 
 recognition of the truth must be the first step to better 
 things. New and better methods are absolutely essen- 
 tial. Students must learn to see accurately, to report 
 correctly, and to think clearly ; the evidence of the 
 law and the history must be carefully examined by 
 specialists ; sound canons of evidence must be adopted, 
 and real learning must no longer be postponed to base- 
 less speculation. 
 
CHAPTER II 
 
 PILLAR-COVENANT AND TOKEN-COVENANT 
 
 § i. Introductory 
 
 The most characteristic features of the outward form 
 of the legislation of the Pentateuch appear to be due 
 to what we may call covenant 1 ideas, that is, ideas which 
 either caused the invention of covenants, or ideas which 
 arose from them. Perhaps professed students of ancient 
 law may be able to inform my present ignorance, but 
 certainly I am not acquainted with any other system of 
 law, which came into existence, not as the result of 
 legislation or custom or judicial decision, but in conse- 
 quence of treaty or agreement. There are some decided 
 cases in the Pentateuch, there was a good deal of custo- 
 mary law in the Mosaic age, and legislation in ordinary 
 form also plays some part ; but the great bulk of the 
 jural law and of much else is presented in the shape of 
 terms of covenants made between God and the children 
 of Israel. To a great extent this should be manifest 
 even to the most casual reader ; but points, which are 
 not so obvious, are equally certain. The bulk of the 
 book of Deuteronomy in form resembles a modern 
 English deed, and occasionally even suggests the lan- 
 guage of English conveyancers. Such an expression 
 as "testimonies" can only be employed in speaking of 
 laws, because they are concerned as "witnessing" the 
 
 1 I use the word " covenant" as a technical term of Hebrew religion and 
 law, entirely freed from its English legal associations. English readers are so 
 familiar with the covenants of the Bible, that it has seemed to me wiser to 
 follow this course than to adopt some other expression. 
 
 52 
 
PILLAR AND TOKEN COVENANTS 53 
 
 agreement of which they are terms. When I come to 
 consider the structure of the Book of Deuteronomy, I 
 shall lay before my readers the outline of an ordinary 
 English deed for purposes of comparison, but, for the 
 moment, it is sufficient to point out that we are told 
 in so many words that the book contains a covenant, 1 
 which is supplemental to the Sinaitic covenant — 
 
 These are the words of the covenant which the Lord 
 commanded Moses to make with the children of Israel in the 
 land of Moab, beside the covenant which he made with them 
 in Horeb [Deuteronomy xxix. 1 ; (xxviii. 69)]. 
 
 Not less striking is the language of a verse of 
 Leviticus, where the English Versions read : — 
 
 These are the statutes and judgments and laws, which the 
 Lord made between him and the children of Israel in Mount 
 Sinai by the hand of Moses [Leviticus xxvi. 46]. 
 
 We may wonder how many of the millions of people 
 who have read this verse in various languages have 
 stopped to ask what it means. As it stands in English, 
 the sentence is unintelligible on any ordinary theory 
 of legislation. We could not speak of a statute or a"~| 
 judgment or a law as being made between the Crown J 
 in Parliament and British subjects ; and, when for an 
 ordinary human legislature we substitute God, the diffi- 
 culty is increased. Who shall judge between the Lord 
 and the children of Israel ? 
 
 Although it is my object to write purely as a lawyer, 
 and in particular to keep as far from religious topics as 
 is compatible with treating of a system of this nature, 
 I have now reached a point where religion is most 
 directly affected. When I come to the case of Shelo- 
 mith's son, I shall be dealing with a judgment, which, 
 
 1 The Hebrew word rendered " covenant" appears to be used not only of 
 the whole transaction, but also {inter alia) of the contents of the document, 
 where there was a document. 
 
54 STUDIES IN BIBLICAL LAW 
 
 for all I know, may have some religious importance, 
 but which belongs primarily to the lawyer, for, from the 
 purely legal point of view, it is of vital consequence : 
 and similar remarks apply to most of the points I have 
 considered or shall consider. But with the covenants 
 it is otherwise. An understanding of them is essential 
 to the lawyer, but among their provisions are to be 
 found terms that are more important than any judgment 
 laws. In order, therefore, to minimise the risk of mis- 
 apprehensions arising, it is proper to state at once the 
 leading ideas of this chapter. 
 
 It must not be thought that in emphasising the im- 
 portance of the covenant I desire to cast the faintest 
 doubt on any other basis of religion, or that I am 
 ignorant of the fact that other bases exist. I am not 
 at all concerned with any religious question, except in 
 so far as my inquiry into legal institutions compels me 
 to take cognisance of notions that primarily concern 
 religion. If I am throughout one-sided, it is not because 
 I do not know that there are other sides to the matters 
 I have to discuss, but because I believe that I can best 
 advance Biblical studies by drawing attention to a side 
 that has been neglected. 
 
 The central idea that I propose to develop is put 
 very clearly in the Pentateuch more than once, if I am 
 right in taking certain passages literally. For the present, 
 I select the following extract from a speech of Moses 
 in Deuteronomy xxix. : — 
 
 10. Ye stand this day all of you before the Lord your 
 God; your heads, your tribes, your elders, and your officers, 
 even all the men of Israel, 
 
 ii. Your little ones, your wives, and thy stranger that is in 
 the midst of thy camps, from the hewer of thy wood unto the 
 drawer of thy water : 
 
 12. That thou shouldest enter into the covenant of the Lord 
 thy God, and into his oath, which the Lord thy God maketh 
 \cuttetK\ with thee this day : 
 
PILLAR AND TOKEN COVENANTS 55 
 
 13. That he may establish thee this day unto himself for a 
 people, and that he may be unto thee for a God, as he spake unto 
 thee, and as he sware unto thy fathers, to Abraham, to Isaac, 
 and to Jacob. 
 
 14. Neither with you only do I make [cut] this covenant 
 and this oath ; 
 
 15. But with him that standeth here with us this day .before 
 the Lord our God, and also with him that is not here with us 
 this day. 
 
 As I understand this passage, it refers to a covenant 
 to be made between two parties, the Lord and Israel. 
 The Lord, as it seems to me, is conceived as becoming 
 the God of Israel, not merely because He created man, 
 or because He commanded the children of Israel to 
 worship Him, or because He brought them forth out 
 of the land of Egypt. All these things have their im- 
 portance, but there are other bonds between God and 
 people. In a series of sworn treaties called covenants, 
 Israel literally avouches the Lord to be His God, and 
 the Lord literally avouches Israel to be a people holy 
 unto Him. The other ideas more or less follow from 
 this central conception. Many of the expressions used 
 in covenant passages appear to have a "conveyancing" 
 meaning — that is, a special technical sense when used in 
 connection with covenants. Moreover, I shall suggest 
 that, subject to certain necessary modifications, the form 
 of these sworn treaties often follows the form that would 
 be adopted in sworn treaties between two men. For 
 instance, when Jacob and Laban enter into a covenant 
 in Genesis xxxi., we find an oath, a heap of stones, a 
 stone set up for a pillar, a sacrifice, and an eating of 
 bread. At Sinai we find "words" and judgments, an 
 altar, — which appears to have replaced the heap of 
 stones — "twelve pillars, according to the twelve tribes 
 of Israel," burnt -offerings and peace-offerings, and 
 elders eating and drinking. In Deuteronomy we find 
 "words of a covenant," which seem to be the same 
 
56 STUDIES IN BIBLICAL LAW 
 
 as "a covenant and an oath," and commandments to 
 set up great stones, to build an altar, to offer burnt- 
 offerings and sacrifice peace - offerings, and to eat. 
 Again the style of several passages would seem to be 
 influenced by what may be called covenant considera- 
 tions. Indeed, speaking generally of all the passages 
 that I have had to consider, it appears to me that the 
 style of the Pentateuch is habitually influenced by 
 practical considerations — that is, the choice of words, 
 expressions, and rhythm is determined by the objects 
 in view and the subject-matter treated. 
 
 § 2. Of Oaths 
 
 In a mature system of law great emphasis is laid on 
 the notion of contract — that is, of agreement enforce- 
 able by law, but in primitive societies this notion is not 
 developed. Some form of sale or exchange must indeed 
 exist, but the transactions of this nature are commonly 
 such as are immediately completed. Even in cases of 
 deposit or pledge, the law punishes " matters of tres- 
 pass " ; it does not enforce contractual rights. In 
 Exodus, as in the Roman law of the twelve tables, 
 twofold restitution must be- made in cases of deposit; 
 but in both, the remedy is delictual, not contractual. 
 Again, in such transactions fraud is regarded as a 
 I religious, not a civil offence. In Leviticus we actually 
 find dealing falsely in " matter of deposit or bargain " 
 J dealt with as a "trespass against the LORD," and not 
 J as falling within the purview of the civil law [vi. 2 
 (v. 21)]. Many of the transactions, which we accom- 
 plish by means of contract, are unknown to early 
 societies : all others are very much rarer than with 
 us. Still, there remain some which must be carried 
 through by some means. How is this effected ? By 
 the use of oaths. Jacob is desirous of buying Esau's 
 
PILLAR AND TOKEN COVENANTS 57 
 
 birthright — that is, something that is not capable of 
 being simply handed over or assured to him on the 
 purchase taking place : Esau is willing to sell, provided 
 that he receives the price forthwith. Esau binds him- 
 self to Jacob by an oath. In the Pentateuch we find 
 nothing about the capacity of women to contract, but 
 we find a whole chapter of "statutes which the LORD 
 commanded Moses, between a man and his wife, be- 
 tween a father and his daughter, being in her youth, 
 in her father's house " [Numbers xxx.J, and this chapter 
 deals solely with vows and oaths. It is very instructive 
 to compare the language of the Pentateuch on the 
 subject of oaths with the expressions used by writers 
 on more advanced systems of law in connection with 
 contractual obligations — 
 
 When a man voweth a vow unto the Lord, or sweareth an 
 oath to bind his soul with a bond, he shall not break his word , 
 he shall do according to all that proceedeth out of his mouth 
 [Numbers xxx. 2]. 
 
 Compare with that the celebrated definition of obli- 
 gatio given by the Roman jurists — 
 
 Obligatio est juris vinculum, quo necessitate adstringimur 
 alicujus solvendae rei, secundum nostrae civitatis jura [Justinian, 
 Inst. iii. tit. 13]. 
 
 And in a well-known text-book on the English law 
 of contract we read — 
 
 Obligation is a legal bond whereby constraint is laid upon 
 a person or group of persons to act or forbear on behalf of 
 another person or group [" Anson on Contract," Pt. I. § 2]. 
 
 In all three cases there is a bond which binds, but, 
 whereas in Roman and English law the bond is created 
 by an agreement and enforced by the Courts, in Hebrew 
 law it arises from the oath, and is enforced by God. 
 
 I cannot do better than insert here a passage written 
 
58 STUDIES IN BIBLICAL LAW 
 
 by Sir H. Maine as the result of a study of a number of 
 ancient codes, of which the Pentateuch was not one. It 
 will at once show how the topics of the jural laws bear 
 witness to their age : — 
 
 Nine-tenths of the civil part of the law practised by 
 civilised societies are made up of the Law of Persons, of the 
 Law of Property and of Inheritance, and of the Law of 
 Contract. But it is plain that all these provinces of juris- 
 prudence must shrink within narrower boundaries, the nearer 
 we make our approaches to the infancy of social brotherhood. 
 The Law of Persons, which is nothing else than the Law of 
 Status, will be restricted to the scantiest limits as long as all 
 forms of status are merged in common subjection to Paternal 
 Power, as long as the Wife has no rights against her Husband, 
 the Son none against his Father, and the infant Ward none 
 against the Agnates who are his Guardians. Similarly, the 
 rules relating to Property and Succession can never be plenti- 
 ful, so long as land and goods devolve within the family, and, 
 if distributed at all, are distributed inside its circle. But the 
 greatest gap in ancient civil law will always be caused by the 
 absence of Contract, which some archaic codes do not mention 
 at all, while others significantly attest the immaturity of the 
 
 « moral notions on which Contract depends by supplying its 
 
 | place with an elaborate jurisprudence of Oaths. There are no 
 corresponding reasons for the poverty of penal law, and accord- 
 
 j ingly, even if it be hazardous to pronounce that the childhood 
 of nations is always a period of ungoverned violence, we shall 
 
 • still be able to understand why the modern relation of criminal 
 law to civil should be inverted in ancient codes [Maine : 
 " Ancient Law," 368-369]. 
 
 Apparently an oath was an essential part of every 
 covenant made between men. Sometimes the oath 
 perhaps took the form of question and answer, 1 a form 
 that naturally recalls the Roman stipulatio; in other cases 
 we find a declaration of intention, but in every case 
 the object in view was probably attained by some sort 
 
 1 See Genesis xxi. 29, 30, " What mean these seven ewe lambs? . . . These 
 seven ewe lambs shalt thou take." Cf. xv. 8, "Whereby shall I know?" 
 13," Know of a surety. " 
 
PILLAR AND TOKEN COVENANTS 59 
 
 of an appeal to some supernatural power. There is no 
 reason to suppose that this power was always God — for 
 instance, when Benhadad and Baasha made a covenant 
 [1 Kings xv. 19], it is extremely unlikely that they invoked 
 only the God of Israel, if indeed they invoked Him at 
 all. Be that as it may, we see that a covenant was 
 a treaty in very solemn form giving rise to a bond 
 [Ezekiel xx. 37], that bound the soul of the person 
 swearing in virtue of an appeal to an external and 
 superior power. 
 
 § 3. Some Legal Terms 
 
 The Bible shows us many forms of covenants. We 
 need only consider two classes. In the first of these we 
 always find a " token," and I shall therefore call the 
 covenants of this class "token-covenants." These are 
 always said to be " established." On the other hand the 
 covenants of the second class have no token, but have 
 a "witness," so that it is natural to call them "witness- 
 covenants." They are always said to be "cut." 
 Witness-covenants may be sub-divided into at least two 
 groups, one of which would contain the Abraham- 
 Abimelech treaty, in which the taking of seven lambs 
 is witness, while in the other we must place the utterly 
 different transactions in which we find stones or pillars. 
 These are the only witness-covenants we need study, and 
 I shall henceforth call them pillar-covenants. The first 
 token-covenant appears to be a good deal more primitive 
 than the first pillar-covenant, but as we have no indubit- 
 able instance of a token-covenant made between men, 
 we must begin by studying the pillar-covenants. But, 
 before entering on this task, we must try and ascertain 
 the meaning of some technical terms. 
 
 Owing to the implication of covenant terms with 
 various expressions denoting law or command, it is 
 
60 STUDIES IN BIBLICAL LAW 
 
 necessary to enlarge the scope of our inquiry and 
 consider some words which have no special conveyanc- 
 ing significance. In doing this, I do not propose to 
 attempt a complete and accurate definition of law. I 
 shall merely draw attention to such aspects of the 
 subject as concern the matter in hand. 
 
 We may begin by thinking of a jural law as a rule of 
 human intercourse which the courts will enforce. When 
 I read — 
 
 He that smiteth a man, so that he die, shall surely be put 
 to death, — • 
 
 I understand that I am forbidden to murder my 
 neighbour, and that, if I do so, I shall be tried and 
 sentenced to death by a tribunal of some sort. In 
 Hebrew this may be called a judgment or doom, DBl?>n } a 
 word, which, like the Latin jus, has a great many 
 technical meanings, but which, so far as I know, is not 
 a covenant term. Of course, judgments may be em- 
 bodied in covenants, and they may then either be 
 referred to as judgments, or by. some expression which 
 shows that the speaker is thinking of them as terms of 
 the covenant, but the word judgments does not appear 
 to me to have any conveyancing signification. 
 /^~Every jural law is a command, 1 but not every 
 pmmand is a jural law. Jural laws can only deal with 
 (external conduct. Take such a precept as " Honour thy 
 father." It is a precept concerning a purely mental 
 affection ; and no human court, whether secular . or 
 spiritual, can take cognisance of a mental affection, 
 unless and until it is evidenced by some overt act. We 
 find judgments directed against smiting and cursing a 
 parent : but the precept, as it stands, is as incapable of 
 
 1 For an analysis of command, see Austin's "Jurisprudence," Lecture I. 
 I am of course only concerned to bring out notions that concern my im- 
 mediate purpose, not to define a command, and I therefore ignore whole 
 classes of commands. 
 
PILLAR AND TOKEN COVENANTS 61 
 
 being enforced by any human tribunal as is the promised 
 reward " that thy days may be long in the land." Or 
 again take " Thou shalt love thy neighbour as thyself " : 
 there is no human tribunal whose decrees run in men's 
 hearts. _ 
 
 We see, then, that the term " command " embraces J 
 not merely jural laws, but also Divine laws — that is, rules 
 of conduct which can and will be enforced by God, and 
 moral precepts. Hebrew has a word, ™**? — I shall use 
 the transliteration mitsvah in dealing with the passages 
 where it occurs — which is usually translated command- 
 ment. Philologically it certainly does mean that. I 
 shall show hereafter that it also has at least two con- 
 veyancing uses. Probably, when it is not used in a 
 technical sense, it is wide enough to denote any precept 
 — not merely one that is enforced by the fear of an evil 
 conditioned on its non-observance. 
 
 The Pentateuch has several different ways of en- 
 deavouring to secure the observance of any given pre- 
 cept. Perhaps I can best make this clear by giving a 
 list based on substance and not on form : — 
 
 i. Do this (no reason being apparently assigned). 
 
 2. 'Do this, and God will reward you ; or 
 
 Do this, or God will punish you. 
 
 3. Do this, or the courts will punish you. 
 
 4. Do this, as the term of an agreement. 
 
 5. Cursed be he that does this. 
 
 If will, of course, be understood that I am careful to 
 leave out of consideration anything that has to do with 
 the idea of sin, or with the sacrificial law. 
 
 We know that the third item of this list is properly 
 called a judgment, and the fifth a curse. The first and 
 second are commandments, and do not appear to have 
 any special name. I shall shortly consider the appro- 
 priate names of the fourth, but first I desire to point 
 out that the Pentateuch never hesitates to put sub- 
 
62 STUDIES IN BIBLICAL LAW 
 
 stantially the same idea in all these different ways. 
 For example, the fifth commandment comes under the 
 second and fourth items of this list ; then rules which 
 cover part of it are found in the judgments of the 
 Sinaitic and Deuteronomic covenants and of Leviticus ; 
 in Leviticus xix. 3, we find a commandment to "fear 
 every man his mother and his father " ; and in the 
 curses of Deuteronomy we read — 
 
 Cursed be he that setteth light by his father or his mother. 
 
 I come now to the word mitsvah with its plural 
 mitsvoth. In Nehemiah x. 32 (33), where the English 
 versions read — 
 
 Also we made ordinances for us — 
 
 the Hebrew text has niy» wty Vim™, which means 
 " and we made to stand upon us mitsvoth." A very vivid 
 picture this of what a command is not. No man can 
 make a command to stand upon himself. A command 
 requires two persons, a commander and a person com- 
 manded. The obligation which is made to stand on 
 you by somebody else arises from command : that 
 which is made to stand on you by yourself, from agree- 
 ment. In point of fact Nehemiah is speaking of an 
 agreement under seal, into which he and other persons 
 entered. It is clear, then, that mitsvoth here has some 
 special meaning, such as "contractual obligations." It 
 is therefore as possible to speak of God keeping His 
 mitsvoth as of His keeping His promises. 
 
 But the singular also has a special meaning. In the 
 account given by Jeremiah of his purchase of land, we 
 find- 
 So I took the deed of the purchase, both that which was 
 
 sealed, the mitsvah and the statutes, and that which was open 
 
 [xxxii. 1 1]. 
 
PILLAR AND TOKEN COVENANTS 63 
 
 It is said that the words "the mitsvah and the 
 statutes" do not occur in the Septuagint, and it has 
 been suggested that they are not original. I can offer 
 no opinion on this point of textual criticism, but one 
 thing is clear. Even assuming the words to have been 
 a gloss, they must have conveyed some meaning to the 
 glossator. Nobody would have inserted such words 
 unless in fact he was familiar with deeds that did con- 
 tain a "mitsvah" and "statutes." Moreover, we know 
 of two documents that clearly contained a mitsvah. In 
 Exodus xxiv. 12, we find a very similar phrase — 
 
 And I will give thee the tables of stone, even the teaching 
 [or law] and the mitsvah, which I have written to teach them. 
 
 And in Deuteronomy the word is frequently used. 
 Thus we find the following passages : — 
 
 Now this is the mitsvah, the statutes, and the judgements, 
 which the Lord your God commanded to teach you [vi. t]. 
 
 Keep all the mitsvah which I command you this day 
 [xxvii. 1]. 
 
 It should be added that in old Egyptian contracts 
 we find well-defined sections beginning with formal 
 words. [Law Quarterly Review, 1898, 49, 50.] 
 
 It does not seem to me practicable to attempt to de- 
 termine what part of a legal document constituted the 
 mitsvah. It would, of course, be easy to say that, as in 
 Deuteronomy vi. 1, we read — 
 
 Now this is the mitsvah, the statutes, and the judgements, 
 
 and in Deuteronomy xii. 1 — 
 
 These are the statutes and the judgements, — 
 
 it is probable that vi.-xi. corresponds to what would be 
 called the mitsvah of an ordinary legal document ; but 
 this is mere guess-work. Besides, mitsvah appears some- 
 
64 STUDIES IN BIBLICAL LAW 
 
 times to be used of the whole document or its contents. 
 In any case it does not seem safe to attempt to determine 
 the exact meaning of any of these technical terms. Un- 
 less archaeology should succeed in throwing light on 
 the subject, we must content ourselves with the fact 
 that they have one or more conveyancing meanings. 
 
 Similar remarks apply to P n , the word here translated 
 statute. A slightly different formation, "fC, is found in 
 Leviticus xxvi. 46, and perhaps has a technical use. 
 
 The Hebrew expression for " words " is used with 
 a technical meaning in some covenant passages. This 
 may be seen from a comparison of the following 
 extracts : — 
 
 Behold the blood of the covenant, which the Lord hath 
 cut with you on all these words [Exodus xxiv. 8]. 
 
 Write thou these words : for after the tenor of these words 
 I have cut a covenant with thee and with Israel [Exodus 
 xxxiv. 27]. 
 
 And he wrote on the tables the words of the covenant, the 
 ten words [Exodus xxxiv. 28]. 
 
 One other word must be briefly noticed. It is pos- 
 sible to regard law as something that is taught, and 
 accordingly we find the word torah, nnin, frequently 
 used of law. It is the appropriate term for a whole 
 body of law, and is used of the whole Pentateuch. I 
 shall always either keep the original word or else trans- 
 late it by "teaching." On the whole, it does not appear 
 to have any special covenant signification, but the 
 evidence is so doubtful that it is impossible to be 
 certain of this. It is proper in this connection to draw 
 attention to Isaiah viii. 16 : — 
 
 Bind up the testimony, seal the torah among my disciples. 
 
PILLAR AND TOKEN COVENANTS 65 
 
 § 4. The Pillar-Covenant 
 
 The account of the first pillar - covenant runs as 
 follows : — 
 
 44. And now come, let us cut a covenant, I and thou ; and 
 let it be for a witness between me and thee. 
 
 45. And Jacob took a stone, and set it up for a pillar. 
 
 46. And Jacob said unto his brethren, Gather stones ; and 
 they took stones, and made an heap : and they did]eat there by 
 the heap. 
 
 47. And Laban called it Jegar-sahadutha : but Jacob called 
 it Galeed. 
 
 48. And Laban said, This heap is witness between me and 
 thee this day. Therefore was the name of it called Galeed : 
 
 49. And Mizpah, for he said, The Lord watch between 
 me and thee, when we are absent one from another. 
 
 50. If thou shalt afflict my daughters, and if thou shalt 
 take wives beside my daughters, no man is with us ; see, God 
 is witness betwixt me and thee. 
 
 51. And Laban said to Jacob, Behold this heap, and 
 behold the pillar, which I have set betwixt me and thee. 
 
 52. This heap be witness, and the pillar be witness, that I 
 will not pass over this heap to thee, and that thou shalt not 
 pass over this heap and this pillar unto me, for harm. 
 
 53. The God of Abraham, and the God of Nahor, the God 
 of their father, judge betwixt us. And Jacob sware by the 
 Fear of his father Isaac. 
 
 54. And Jacob offered a sacrifice in the mountain, and 
 called his brethren to eat bread : and they did eat bread, and 
 tarried all night in the mountain [Genesis xxxi. 44-54]. 
 
 It is of course impossible to say whether this is an 
 
 account of two separate covenants, or of one covenant 
 
 which had two operative parts — the declaration about the 
 
 daughters, and that which fixed the boundary to be 
 
 observed by the two parties. It is more important to 
 
 take careful note of the indubitable characteristics of this 
 
 form of covenant. From the first it is avowedly bilateral. 
 
 Both parties swear. Moreover we find a pillar and a 
 
 E 
 
66 STUDIES IN BIBLICAL LAW 
 
 heap of stones, which are " witnesses," an oath, a sacri- 
 fice, and a feast. 
 
 With the origin of these ceremonies we are not 
 concerned. It is thought by some that they were 
 entirely religious, and probably that was very largely 
 the case. It is important, however, to remember that 
 we see these ceremonies used to make covenants be- 
 tween God and Israel, and that in those days, therefore, 
 they cannot have been associated with any heathen form 
 of worship. Whatever the early history of the pillar- 
 covenant, whatever the significance of a pillar, when 
 erected as an act of worship, and not as " witness " of a 
 covenant, no sane man will suppose that the Decalogue 
 was made binding by means of rites which were felt to 
 be acts of worship paid to a heathen idol. If the pillars 
 had a religious origin, such associations had been for- 
 gotten in the days of Moses, and they remained merely 
 as the symbols of a covenant. Nevertheless we must 
 pause for a moment to note the theory of evidence 
 which is involved in this transaction. 
 
 Pillar and heap are conceived as witnessing the 
 covenant. In Joshua xxiv. 27 we read — 
 
 Behold, this stone shall be a witness against us ; for it hath 
 heard all the words of the Lord which he spake unto us : it 
 shall be therefore a witness against you, lest ye deny your 
 God. 
 
 The idea of written evidence is unknown to Jacob 
 and Laban. When we meet it in the Mosaic age it is 
 as an addition to the old " witnesses " of a covenant. 
 As to Joshua, he knew writing, and in the previous 
 verse to that which contains this curious notion of the 
 functions of a stone, we are told of his writing in the 
 book of the law. Moses was of course above the level 
 of his age. Probably the ordinary Israelite of the 
 Mosaic period regarded writing in pretty much the 
 
PILLAR AND TOKEN COVENANTS 67 
 
 same way as the Franks and Lombards of the follow- 
 ing passage : — 
 
 A scientific law of evidence comes very late in legal history. 
 Primitive tribunals know only formal and preappointed methods 
 of proof and disproof. . . . The simplest and best proof of 
 all, as it seems to us, the proof by writing, is, of course, un- 
 known in primitive times ; and, even when writing becomes 
 known, it is long before it is used as a vehicle for expressing 
 contracts. So true is this, that the Lombards, who, when they 
 settled in Italy, found the Roman inhabitants using written 
 contracts (the syngrapha and chirographa of late Roman law,) 
 seem to have been utterly puzzled by them. We must not 
 suppose that even the syngrapha and the chirographum were 
 written contracts in our sense of the words ; but they fulfilled 
 the very important function of recording or proving the exist- 
 ence of contracts. The Lombards seem to have treated them, 
 not as proofs, but. as pledges. The pledge having, as we have 
 seen, become a mere symbol, the written document would 
 serve as well as anything else. A very learned German jurist, 
 Dr. Brunner, has established the interesting fact that, among 
 the Franks, in the parallel case of conveyances of land, the 
 blank parchment upon which the record of the transaction was 
 ultimately to be written, was handed over, with the turf, twig, 
 glove, or other symbol, to the intending purchaser, who subse- 
 quently caused it to be inscribed with a record of the proceed- 
 ings. Sometimes even the inkpot played a similar part. Dr. 
 Brunner has also noticed facts which suggest that a similar idea 
 governed the case of Contracts [Jenks : " Law and Politics in 
 the Middle Ages," pp. 276-277]. 
 
 It is curious to notice that the Sinaitic covenant had 
 a written "testimony," but in addition to pillars, and in 
 Deuteronomy the writing is to be on the stones. We 
 have seen that the pillars had become mere symbols. 
 
 The essence of an oath is the combination of a 
 promise or statement with an appeal to some superior 
 Power tohelp, to judge, or to punish. In English this 
 appeal is called a jurat. In the covenant between Jacob 
 and Laban there is a very clear jurat in verse 53, where 
 God is invoked to judge between the parties to the 
 
68 STUDIES IN BIBLICAL LAW 
 
 agreement. It comes at the end of the operative 
 words. 
 
 Now, when God makes a covenant, a very obvious 
 difficulty at once arises. We find pillars, a heap of 
 %^ stones or an altar, a declaration containing the terms 
 of the agreement, feasting and sacrifice ; but the jurat 
 is missing. There is no superior power, external to the 
 agreement, by whom either God or Israel can swear. 
 If I swear to a man, I swear by the Lord, but if I 
 swear to God, there is no outside being by whom I 
 can swear. Moreover, it is really an extension of 
 language to speak of God as swearing. So far as the 
 human mind can understand, there is no distinction 
 between God's promise and His oath. Sometimes we 
 find that God swears by Himself, but sometimes — as 
 for instance in the token-covenant with Noah — we find 
 nothing that in any way suggests, or corresponds to a 
 jurat. But when the covenants are not simply promises 
 by God, but bilateral agreements, imposing obligations 
 on Israel, we find at the end of each declaration (that is 
 in the place, where, if the agreement were between men, 
 we should expect! a jurat) something which corresponds 
 to a jurat, and which I shall term a quasi-jurat. It 
 always consists of inducements to observe the cove- 
 nant, mingled promises and threats. As there is no 
 third party who can enforce the covenant, He, who 
 alone has the power to judge, to punish and to reward, 
 announces how He will requite compliance or non- 
 compliance with the terms of the agreement. In the 
 covenant at Sinai we find a quasi-jurat in Ex. xxiii. 20-33. 
 In Deuteronomy it consists of the great blessing and 
 curse, xxviii. The style adopted is always sufficiently 
 characteristic for the critics to allege either that the pas- 
 sage belongs to D, or that it has received additions or 
 modifications from the Deuteronomic school, or else 
 that it has points of contact with D. We shall find a 
 
PILLAR AND TOKEN COVENANTS 69 
 
 quasi-jurat in one instance of a token-covenant. More- 
 over, this style appears to be frequently adopted when 
 God renews or confirms a covenant, for in Genesis xxvi. 
 2-5, and Exodus xxxiv. 10-26, Deuteronomic revisers 
 are postulated by the annotator of the Hexateuch. 
 The plain truth is that when God utters a promise or 
 a threat, appropriate language and rhythm are employed. 
 
 § 5. The Covenant at Sinai 
 
 We now come to the great covenant in Exodus xix. 
 seqq. Considering how little we know-^of the Hebrew 
 covenant and the ideas of the Mosaic age, the account 
 is singularly lucid and intelligible. The covenant is a 
 pillar-covenant of the Jacob-Laban type, and the varia- 
 tions from the form with which we are familiar are, 
 with one important exception, very slight. The heap 
 of stones has become an altar, and we find a sprink- 
 ling of people and altar with blood. The only really 
 important change is the introduction of writing as a 
 sort of adjunct to the old covenant formalities. There 
 is of course the usual covenant declaration and quasi- 
 jurat, twelve pillars — "according to the twelve tribes 
 of Israel" — sacrifices and a meal. 
 
 The account opens with a careful date. Then God 
 called Moses up to the mountain and said — 
 
 3. Thus shalt thou say to the house of Jacob, and tell the 
 children of Israel ; 
 
 4. Ye have seen what I did unto the Egyptians, and how I 
 bare you on eagles' wings, and brought you unto myself. 
 
 5. Now therefore, if ye will obey my voice indeed, and 
 keep my covenant, then ye shall be a peculiar treasure unto me 
 from among all peoples : for all the earth is mine : and ye shall 
 be unto me a kingdom of priests and a holy nation. These are 
 the words which thou shalt speak unto the children of Israel. 
 
 Moses called together the elders and "set before 
 them all these words which the LORD commanded him." 
 
70 STUDIES IN BIBLICAL LAW 
 
 The " people " then formally assented. This portion of 
 the narrative clearly corresponds to the " Let us make 
 a covenant " of the Jacob-Laban agreement. Owing 
 to the fact that this is a covenant between God and 
 twelve tribes, we see the ordinary forms of a witness- 
 covenant expanded, for much of the ceremony is per- 
 formed with Moses as an intermediary, and in some 
 parts the representation of the people by the elders neces- 
 sitates a further lengthening of the transaction. Accord- 
 ingly here we find that the arrangement to enter into 
 a covenant, which in a transaction between two men 
 would be told in a few words, requires six verses of nar- 
 rative and the intervention of Moses and the elders. 
 
 Thereupon certain preparations are made. Their 
 significance is religious, not legal, and in chapter xx. 
 we are told that God spake all these "words." Then 
 follows the Decalogue. Subsequently we are told that, 
 owing to the fear of the people, Moses is made an in- 
 termediary. God gives him certain precepts in 22-26, 
 immediately followed by the judgments and other pre- 
 cepts, and finally the quasi-jurat (xxiii. 20 to end). 
 
 So far the terms of the proposed covenant, other 
 than the Decalogue, have not been brought before the 
 whole people. Accordingly, in chapter xxiv. Moses tells 
 the people all the "words of the LORD and all the 
 judgments, and the people answer that they will do all 
 the "words" which the Lord had spoken [verse 3]. 
 Moses then writes down all the words of the Lord. 
 
 Everything is now ready for the formal covenant 
 ceremony. So the altar and pillars are erected, the book 
 of the covenant is read and formally accepted. Moses, 
 sprinkling blood of the sacrifice, says — 
 
 Behold the blood of the covenant, which the Lord hath 
 cut with you on all these words, 
 
 and the elders go up, and eat and drink. 
 
PILLAR AND TOKEN COVENANTS 71 
 
 We meet with writing in two forms. Moses writes 
 all the words of the Lord, and this constitutes the " book 
 of the covenant." God writes the ten words on the 
 tables of stone as a testimony. Neither document is 
 signed, or in any way marked for identification by both 
 parties. The same remark applies to the "book ".and 
 " stones " of Deuteronomy. 
 
 A very natural question here suggests itself as to the 
 terms of the covenant. Tremendous emphasis is laid 
 on the Decalogue, but not on the judgments. Why is 
 this ? There are no doubt theological reasons, but it 
 seems right to point out once more, that the courts 
 could and would enforce jural laws, but not the terms of 
 the Decalogue. What, then, was to be gained by 
 making jural laws terms of a covenant at all ? The 
 answer suggested by modern theories about other 
 systems of ancient law is that in primitive societies 
 the courts are weak, and it is desirable to strengthen the 
 law by every possible means. Hence there was a 
 distinct practical advantage in using the covenant bond 
 to obtain respect and obedience for legal institutions. 
 
 The covenant that we have been considering was 
 speedily avoided by the worship of the golden calf, and 
 Moses broke the testimony. In Exodus xxxiv. the 
 covenant appears to be renewed at the supplication of 
 Moses, and a new testimony is provided. As we have 
 no other instance of the renewal of a broken coven- 
 ant, it is useless to attempt any generalisations. As 
 we should expect, the chapter contains no jural law. 
 
 § 6. Deuteronomy 
 
 In order to understand the style and structure of 
 Deuteronomy, so far as is material for our present 
 purpose, it is necessary to bear several things in mind :— 
 
72 STUDIES IN BIBLICAL LAW 
 
 i. In one of its aspects the Torah is the perfect 
 adaptation of all worthy means to the end of making 
 holy. Israel regarded as a unit is to be induced to be 
 holy : every Israelite is to be made holy, regarded (a) 
 as an individual, and (b) as a constituent of the larger 
 unit. 
 
 2. Deuteronomy is the crown of the Torah, so 
 regarded. 
 
 3. A large portion of the book consists of a covenant 
 document, which, of course, was also a book of law. 
 
 4. The book is addressed to the whole people, and is 
 meant inter alia for public reading. 
 
 The structure of the relevant portions of the book is 
 as follows : — 
 
 1. i. 1-5. Five verses of narrative, introducing 
 
 2. i. 6-iv. 40. The first speech of Moses, which is a 
 preliminary to placing before the children of Israel the 
 covenant document. 
 
 3. iv. 41-43. Three verses of narrative. 
 
 4. iv. 44-49. Heading and date of the covenant 
 document. 
 
 5. v. i-xxvi. 19- The covenant document up to 
 the end of the operative part, that is, excluding the 
 quasi-jurat. 
 
 6. xxvii. The directions for " executing " the cove- 
 nant, including the twelve curses. 
 
 7. xxviii. The quasi-jurat of the covenant. 
 
 8. xxix.-xxx. Second speech of Moses, exhorting 
 the people to observe the covenant, prophesying the 
 accomplishment of the blessing and the curse, and 
 foretelling the future. 
 
 Here is the skeleton of an ordinary English deed : 
 
 THIS INDENTURE [is] made the first day of January one 
 thousand nine hundred between A. B. of 1000 Cheapside in 
 the city of London architect of the one part and C. D. of 
 1 00 1 Cheapside aforesaid gentleman of the other part 
 
PILLAR AND TOKEN COVENANTS 73 
 
 Whereas [here follow the recitals, that is a statement 
 of the facts which the draftsman thinks it material to insert, 
 and which, but for a recent enactment enabling a draftsman to 
 attain the same object more shortly, would undoubtedly 
 include a recital of any former deed between the same parties 
 dealing with the same subject-matter.J 
 
 NOW THIS INDENTURE WITNESSETH [here follow 
 the operative words, i.e. the words that effect the object of the 
 deed.] 
 
 In Witness whereof the said parties have hereunto set their 
 respective hands and seals the day and year first above written. 
 
 The document is then executed — that is, signed, 
 sealed, and attested. 
 
 In the document of a Hebrew pillar-covenant we 
 should naturally expect the witnessing part to contain 
 a mitsvah and statutes, and, in place of the " In witness, 
 &c," and the attested signatures and seals, we should 
 look for a pillar, an altar, sacrifices, feasting, and, if the 
 covenant were made by God, a quasi-jurat. These 
 . things are all present in Deuteronomy. 
 
 In Deuteronomy iv. 44 ff. we find the following 
 heading : — 
 
 44. And this is the torah which Moses set before the 
 children of Israel. 
 
 45. These are the testimonies, and the statutes, and the 
 judgments, &c. 
 
 It may be that we have a double phrase because of 
 the dual character of the document, for it is both Torah 
 and book of covenant. Next we read — 
 
 And Moses called unto all Israel, and said unto them 
 [v. 1]. 
 
 Then we find what is technically termed a recital of 
 the earlier covenant in Horeb, and certain kindred facts, 
 and in vi. 1 this is followed by the mitsvah, the statutes, 
 and the judgments. It may be added that the practice 
 of reciting earlier legal documents or some portion of 
 
74 STUDIES IN BIBLICAL LAW 
 
 them is earlier than Jacob's migration to Egypt. We 
 have what appears to be an Egyptian will of circa 
 2500 B.C., in which an earlier document is recited. 
 [Griffith : " Hieratic Papyri from Kahun and Gurob," 
 pp. 31-32, 34 ; Law Quarterly Review, 1898, pp. 46-47.] 
 
 The effect of the covenant appears to be summarised 
 in the culminating words of its operative part. 
 
 16. This day the Lord thy God commandeth thee to do 
 these statutes and judgements : thou shalt therefore keep and do 
 them with all thine heart, and with all thy soul. 
 
 17. The Lord thou hast avouched this day to be unto thee 
 for a God, and to walk in his ways, and to keep his statutes, 
 and his mitsvoth and his judgements, and to hearken unto 
 his voice ; 
 
 18. And the Lord hath avouched thee this day to be unto 
 him for a peculiar people, as he spake unto thee, and to keep 
 all his mitsvoth. 
 
 19. And to make thee high above all nations which he hath 
 made, for a [or in] praise, and for a [or in] name, and for a [or 
 in] glory; and that thou mayest be a people holy unto the 
 Lord thy God, as he hath spoken [xxvi. 16-19]. *, 
 
 In the first of these verses we see that, because God 
 commands, Israel is to obey : but in what follows the 
 bilateral idea that is at the root of the covenant is very 
 clearly brought out. If the Lord avouches Israel to be 
 unto Him for a peculiar people, Israel in identical terms 
 avouches the Lord to be unto him for a God. If Israel 
 undertakes duties, God also promises to keep all his 
 mitsvoth, and to make Israel high above all nations. 
 
 The directions for executing the covenant are of the 
 usual type, but the twelve curses are of peculiar interest 
 to a lawyer. The last is directed to making the Torah, 
 as a whole, binding on every individual Israelite, as 
 contrasted with Israel. The other eleven supplement 
 the activity of the courts by dealing with offences, the 
 proof of which is for various reasons either impossible 
 or else very difficult. Four of them are aimed at 
 
PILLAR AND TOKEN COVENANTS 75 
 
 offences that are notorious for the practical difficulty 
 they occasion to courts. Others expressly deal with 
 offences that are committed "in secret." In others 
 again, as in the case of wrongs done to the blind or the 
 stranger, the difficulty must be obvious to any reader. 
 
 In the case of the covenant at Sinai, the Decalogue 
 was written on stone to serve as a "testimony." In the 
 Pentateuch the word rn\!, testimony, is only applied to 
 the Tables, but we perhaps have something similiar in 
 Deuteronomy xxxi. 16-xxxii. 47, where a song is taught 
 to testify against the children of Israel, when they break 
 the covenant. 
 
 § 7. The Token-Covenant 
 The first token-covenant is to be found in Genesis ix. 
 I italicise phrases that appear to be of frequent occur- 
 rence in covenants of this class. 
 
 8. And God spake unto Noah, and to his sons with him, 
 saying, 
 
 9. And /, behold, I establish my covenant with you, and 
 with your seed after you ; 
 
 10. And with every living creature that is with you, the 
 fowl, the cattle, and every beast of the earth with you ; of all 
 that go out of the ark, even every beast of the earth. 
 
 1 1 . And I will establish my covenant with you ; neither 
 shall all flesh be cut off any more by the waters of the 
 flood ; neither shall there any more be a flood to destroy 
 the earth. 
 
 12. And God said, 
 
 This is the token of the covenant which I give between me 
 and you and every living creature that is with you, for 
 perpetual generations : 
 
 13. I do set my bow in the cloud, and it shall be for a 
 token of a covenant between me and the earth. 
 
 14. And it shall come to pass, when I bring a cloud 
 over the earth, that the bow shall be seen in the cloud, 
 
 15. And I will remember my covenant, which is between me 
 and you and every living creature of all flesh ; and the waters 
 shall no more become a flood to destroy all flesh. 
 
76 STUDIES IN BIBLICAL LAW 
 
 1 6. And the bow shall be in the cloud; and I will look 
 upon it, that I may remember the everlasting covenant between 
 God and every living creature of all flesh that is upon the earth. 
 
 17. And God said unto Noah, 
 
 This is the token of the covenant which / have established 
 between me and all flesh that is upon the earth. 
 
 / We note the following points : — 
 va (1) The covenant is between two parties ; 
 
 (2) It creates, however, a purely unilateral obligation. 
 No duty at all is laid upon Noah. 
 
 (3) One of the two parties is silent throughout. His 
 consent is never signified by word or conduct, and 
 appears to be quite unnecessary. 
 
 (4) The transaction consists of (a) a solemn oath by 
 the Party bound, followed by (b) a formal declaration of 
 a token of the covenant. 
 
 (5) The token is to consist in an act of the Party 
 bound. 
 
 (6) The express reason for having a token is that it 
 may serve as a reminder. 
 
 The next example is to be found in Genesis xvii : — 
 
 3. And Abram fell on his face : and God talked with him, 
 saying, 
 
 4. As for me, behold, my covenant is with thee, and thou 
 shalt be the father of a multitude of nations. 
 
 5. Neither shall thy name any more be called Abram, but 
 thy name shall be Abraham ; for the father of a multitude of 
 nations have I made thee. 
 
 6. And I will make thee exceeding fruitful, and I will make 
 nations of thee, and kings shall come out of thee. 
 
 7. And I will establish my covenant between me and thee and 
 thy seed after thee throughout their generations for an everlasting 
 covenant, to be a God unto thee and to thy seed after thee. 
 
 8. And I will give unto thee, and to thy seed after thee, the 
 land of thy sojournings, all the land of Canaan, for an everlast- 
 ing possession ; and I will be their God. 
 
 9. And God said unto Abraham, 
 
PILLAR AND TOKEN COVENANTS 77 
 
 And as for thee, thou shalt keep my covenant, thou, and 
 thy seed after thee throughout their generations. 
 
 10. This is my covenant, which ye shall keep, between me 
 and you and thy seed after thee ; every male among you shall 
 be circumcised. 
 
 1 1 . And ye shall be circumcised in the flesh of your fore- 
 skin ; and it shall be a token of a covenant betwixt me and you. 
 
 12. And he that is eight days old shall be circumcised 
 among you, every male throughout your generations, he that is 
 born in the house, or bought with money of any stranger, which 
 is not of thy seed. 
 
 13. He that is born in thy house, and he that is bought 
 with thy money, must needs be circumcised : and my covenant 
 shall be in your flesh for an everlasting covenant. 
 
 14. And the uncircumcised male who is not circumcised in 
 the flesh of his foreskin, that soul shall be cut off from his 
 people ; he hath broken my covenant. 
 
 15. And God said unto Abraham, 
 
 As for Sarai thy wife, thou shall not call her name Sarai, 
 but Sarah shall her name be. 
 
 16. And I will bless her, and moreover I will give thee a 
 son of her : yea, I will bless her, and she shall be a mother of 
 nations ; kings of peoples shall be of her. 
 
 The token here consists of something to be done 
 by the party benefited by the covenant. The word 
 " covenant " is applied to that which is described as 
 its " token " — that is to say, a word, which denotes 
 the whole transaction, is by a natural transition of 
 thought used of its most characteristic feature. The 
 use of the token as a reminder appears to have been 
 forgotten. In the Noachite covenant, it was used to 
 furnish evidence by association. Here that notion has 
 entirely vanished. In Exodus ii. 24 the covenant is 
 remembered by God. Is it as a result of seeing the 
 token ? No, 
 
 God heard their groaning, and God remembered his covenant. 
 
 Another instance of a token - covenant occurs in 
 Exodus xxxi. 12-17. The token is enforced by the 
 
78 STUDIES IN BIBLICAL LAW 
 
 death penalty. Throughout, the real object seems to 
 be to secure the observance of the token, and the 
 covenant appears to be little more than a metaphor, 
 so much so, that in Exodus xxxv. Moses does not even 
 mention it. 
 
 We are now in a position to understand why, in 
 Leviticus xxvi. 46, we read — 
 
 These are the statutes and judgements and teachings, which 
 the Lord made between him and the children of Israel in 
 Mount Sinai by the hand of Moses. 
 
 Obviously the passage must have something to do 
 with a covenant. Looking at what precedes, we find 
 that a quasi-j urat, which is full of covenant expres- 
 sions, begins at xxvi. 3, and as in verse 9 the phrase 
 "establish my covenant" is used, it is clear that we 
 have to do with a token-covenant. Yet we are not 
 told of any new covenant being made, and if we were 
 inclined to guess that something had fallen out, the 
 language of the passage would be quite unintelligible ; 
 for it is manifest from verse 42 that the covenant is 
 not altogether new. 
 
 Then will I remember my covenant with Jacob ; and also 
 my covenant with Isaac, and also my covenant with Abraham 
 will I remember ; and I will remember the land. 
 
 So this covenant goes back in some way to Abraham, 
 and is concerned with the land. Looking back to the 
 great token-covenant with Abraham, we see that by it 
 the land of Canaan is actually promised to him. 
 
 7. And I will establish my covenant between me and thee 
 and thy seed after thee throughout their generations for an 
 everlasting covenant, to be a God unto thee and to thy seed 
 after thee. 
 
 8. And I will give unto thee, and to thy seed after thee, 
 the land of thy sojournings, all the land of Canaan, for an 
 everlasting possession ; and / will be their God [Genesis xvii.]. 
 
PILLAR AND TOKEN COVENANTS 79 
 
 This reminds us that the quasi-jurat in Leviticus ends 
 with the words — 
 
 45. But I will for their sakes remember the covenant of 
 their ancestors, whom I brought forth out of the land of Egypt 
 in' the sight of the nations, that I might be their God : I am 
 the Lord. 
 
 But Isaac and Jacob are mentioned as well as 
 Abraham. Had not God appeared to each of them 
 and confirmed the covenant ? In Isaac's case we 
 are told — 
 
 2. And the Lord appeared unto him, and said, 
 
 Go not down into Egypt ; dwell in the land which I shall 
 tell thee of: 
 
 3. Sojourn in this land, and I will be with thee, and will 
 bless thee ; for unto thee, and unto thy seed, I will give all 
 these lands, and I will establish the oath which I sware unto 
 Abraham thy father ; 
 
 4. And I will multiply thy seed as the stars of heaven, and 
 will give unto thy seed all these lands ; and in thy seed shall 
 all the nations of the earth be blessed ; 
 
 5. Because that Abraham hearkened unto my voice, and 
 kept my charge, my mitsvoth, my statutes, and my teachings 
 [Genesis xxvi.]. 
 
 And to Jacob the promise of the land was twice con- 
 firmed [Genesis xxviii. 13-15 ; xxxv. 11, 12]. Indeed, in 
 Exodus ii. 24 we read — 
 
 God remembered his covenant with Abraham, with Isaac, 
 and with Jacob. 
 
 Turning now to what precedes the quasi-jurat, we 
 find that, in Leviticus xxv. 2, a body of commandments 
 and laws opens with the words — 
 
 When ye mne into the land which I give you. 
 
 And what is the subject-matter of these command- 
 ments and laws ? The whole chapter is devoted to an 
 agricultural regulation, the jubile and land laws, and 
 
80 STUDIES IN BIBLICAL LAW 
 
 laws which, as we saw when considering the law of 
 debt, are naturally grouped with them. We see how 
 fitting it is that such laws should be treated as terms 
 of the agreement under which Israel obtained the land. 
 Then chapter xxvi. opens with the verses : — 
 
 i. Ye shall make you no idols, neither shall ye rear you up 
 a graven image, or a pillar, neither shall ye place any figured 
 stone in your land, to bow down unto it : for I am the Lord 
 your God. 
 
 2. Ye shall keep my sabbaths, and reverence my sanctuary : 
 I am the Lord. 
 
 Anybody who reads the quasi-jurat in the light of 
 what has been said will see how marvellously appro- 
 priate it is. Observance of the statutes and mitsvoth 
 will be rewarded with blessings in and to the land. 
 The opposite results will follow if they be broken. 
 "The land of your enemies shall eat you up." No 
 reference is made to the jural laws which would be 
 enforced by the courts ; but great stress is laid on the 
 observance of the agricultural regulation and the pro- 
 hibitions of idolatry. 
 
 30. And I will destroy your high places, and cut down 
 your sun-images, and cast your carcases upon the carcases of 
 your idols ; and my soul shall abhor you. 
 
 31. And I will make your cities a waste, and will bring 
 your sanctuaries unto desolation, and I will not smell the 
 savour of your sweet odours. 
 
 32. And I will bring the land into desolation.: and your 
 enemies which dwell therein shall be astonished at it. 
 
 33. And you will I scatter among the nations, and I will 
 draw out the sword after you : and your land shall be a 
 desolation, and your cities shall be a waste. 
 
 34. Then shall the land enjoy her sabbaths, as long as it 
 lieth desolate, and ye be in your enemies' land ; even then 
 shall the land rest, and enjoy her sabbaths. 
 
 It is impossible to define accurately the attitude of 
 Moses and his contemporaries towards the covenant 
 
PILLAR AND TOKEN COVENANTS 81 
 
 with Abraham. All we can say is that probably the 
 contents of Leviticus xxv. and xxvi. were regarded as 
 being in some way connected with it. It would be 
 foolish to assert dogmatically that the covenant was re- 
 newed, confirmed, or modified. Probably the Israelites 
 simply felt that these commandments were laid upon 
 them in virtue of the covenant with Abraham, and did 
 not stop to analyse the exact relation in which they 
 stood to that treaty. 
 
 § 8. Isaiah and Jeremiah 
 A fine passage in Isaiah xix. now acquires fresh force — 
 
 1 8. In that day there shall be five cities in the land of 
 Egypt that speak the language of Canaan, and swear to the 
 Lord of hosts. . . . 
 
 19. In that day shall there be an altar to the Lord in the 
 midst of the land of Egypt, and a pillar at the border thereof 
 to the Lord. 
 
 20. And it shall be for a token and for a witness unto the 
 Lord of hosts in the land of Egypt : for they shall cry unto the 
 Lord because of the oppressors, and he shall send them a 
 saviour, and a great one, and he shall deliver them. 
 
 21. And the Lord shall be known to Egypt, and the 
 Egyptians shall know the Lord in that day, and shall do sacri- 
 
 fice and oblation, and shall vow a vow to the Lord and perform 
 it. . . . 
 
 24. In that day shall Israel* be the third with Egypt and 
 with Assyria, a blessing in the midst of the earth : 
 
 25. Whom the Lord of hosts shall bless, saying, Blessed 
 be my people, Egypt, and the work of my hands, Assyria, and 
 mine inheritance, Israel. 
 
 The combination of swearing, altar, pillar, token, 
 witness, sacrifice, and oblation, leaves no doubt as to the 
 covenant ideas that form the background of this beautiful 
 passage. " Egypt," says the prophet, " shall also become 
 My people. The Egyptians, too, shall enter into a 
 pillar-covenant with Me, as did the twelve tribes ; they 
 
82 STUDIES IN BIBLICAL LAW 
 
 too shall be bound to me as closely as though they were 
 children of the covenant with Abraham and the covenant 
 at Sinai. Then shall Egypt be a third with Assyria, which 
 is bound to Me not by a covenant, but through being the 
 work of My hands, and with Mine inheritance Israel." 
 
 We come lastly to the age of Jeremiah. A special 
 interest attaches to this period, because it was then that 
 a book of Torah was discovered, and some critics assert 
 that it was then that the bulk of Deuteronomy was 
 written. It is therefore peculiarly instructive to contrast 
 the legal ideas of the Mosaic age with those of Jeremiah 
 and his contemporaries. We have seen the state of 
 development of the ideas of evidence in the former 
 period and the part played by unauthenticated writing. 
 Now let us turn to Jeremiah xxxii., where we have a 
 description of a conveyance : — 
 
 9. And I bought the field that was in Anathoth of Hanamel, 
 mine uncle's son, and weighed him the money, seventeen 
 shekels of silver. 
 
 10. And I subscribed the deed, and sealed it, and called 
 witnesses, and weighed the money in balances. 
 
 11. And I took the deed of the purchase, that which was 
 sealed, the mitsvah and the statutes, and that which was open : 
 
 12. And I gave the deed of the purchase unto Baruch the 
 son of Neriah, the son of Mahseiah, in the presence of Hana- 
 mel mine uncle's son, and in the presence of the witnesses 
 that subscribed the deed of the purchase, in the presence of all 
 the Jews that sat in the court of the prison. . . . 
 
 14. Take these deeds, this deed of the purchase, both the 
 sealed [sc. deed], and this open deed, and put them in an earthen 
 vessel ; that they may continue many days. 
 
 No comment is necessary as to the change since the 
 days when a pillar could witness, because it had heard. 
 I have only to point out that such a change cannot be 
 the work of a day, or a year, or a reign. We meet with 
 a torah sealed among disciples in Isaiah [viii. 16]. 
 
 There is another change in thought which is of great 
 
PILLAR AND TOKEN COVENANTS 83 
 
 interest. In Mosaic times a literal entry into a covenant 
 was the safest foundation for a new religion. Contrast 
 with that the following passage in Jeremiah xxxi. : — 
 
 31. Behold the days come, saith the Lord, that I will cut 
 with the house of Israel and with the house of Judah a new 
 covenant : 
 
 32. Not according to the covenant that I cut with their 
 fathers in the day that I took them by the hand to bring them 
 out of the land of Egypt; which my covenant they brake, 
 although I was an husband unto them, saith the Lord. 
 
 33. For this is the covenant that I will cut with the house, 
 of Israel : after those days, saith the Lord, I will put my torah 
 in their inward parts, and in their heart will I write it ; and I 
 will be unto them for a God, and they shall be unto me for a 
 people : 
 
 34. And they shall not teach any more every man his 
 neighbour, and every man his brother, saying, Know the Lord : 
 for all of them shall know me, from the least of them unto the 
 greatest of them, saith the Lord : for I will forgive their iniquity, 
 and their sin will I not remember any more [30-33 in Hebrew]. 
 
 It is not too much to say that the covenant of this 
 passage stands in much the same relation to the cove- 
 nants of the Pentateuch as does a lady's chain bracelet 
 to real fetters. 
 
CHAPTER III 
 
 SOME PROOFS OF DATE 
 
 BEFORE commencing the study of any legal rules, it is 
 necessary to point out that there was Israelite law before 
 Moses. The Bible shows us an Israelite organisation, 
 established in a separate territory, and ruled in part 
 by elders and officers. Moreover, all the documents 
 of the critics presuppose an existing body of law, and 
 we already know enough of Egyptian law to be able 
 to say that the law of Exodus is very much more 
 primitive than the law of Egypt can have been at 
 any period covered by the history of Israel. Historical 
 jurists have of course long been accustomed to regard 
 the Roman empire as the first state which legislated 
 for subjects who were not natives, 1 but Biblical students 
 have not yet grasped the bearing of this fact on the 
 critical arguments. 
 
 The first passage I propose to consider is Leviticus 
 xxiv. 10-23, which narrates the case of the son of 
 Shelomith, and the momentous judgment that was 
 then delivered. There had come up out of Egypt 
 with the children of Israel a man who was the son 
 of an Egyptian father and an Israelite mother, named 
 Shelomith. This man, while fighting with an Israelite, 
 blasphemed the name of God, and was brought to 
 Moses, and put in ward till the law should be declared. 
 
 1 See Maine, "Early History of Institutions," Lectures xii. xiii.; and cf. 
 Sayce, " Early History of the Hebrews," p. 57, from which it appears that in 
 Babylonia foreigners had settlements, where they were judged by their own 
 magistrates. 
 
 84 
 
SOME PROOFS OF DATE 85 
 
 The text then continues — 
 
 13. And the Lord spake unto Moses, saying, 
 
 14. Bring forth him that hath cursed without the camp; 
 and let all that heard him lay their hands upon his head, and 
 let all the congregation stone him. 
 
 15. And thou shalt speak unto the children of Israel, say- 
 ing, Whosoever curseth his God shall bear his sin. 
 
 16. And he that blasphemeth the name of the Lord, he 
 shall surely be put to death; all the congregation shall cer- 
 tainly stone him : as well the stranger, as the homeborn, when 
 he blasphemeth the Name, shall be put to death. 
 
 17. And he that smiteth any man mortally shall surely be 
 put to death, 
 
 1 8. And he that smiteth a beast mortally shall make it 
 good : life for life. 
 
 19. And if a man cause a blemish in his neighbour ; as he 
 hath done, so shall it be done to him ; 
 
 20. Breach for breach, eye for eye, tooth for tooth : as he 
 hath caused a blemish in a man, so shall it be rendered unto 
 him. 
 
 21. And he that killeth a beast shall make it good: and 
 he that killeth a man shall be put to death. 
 
 22. Ye shall have one manner of law \Hebrew : one judg- 
 ment-law shall there be to you], as well for the stranger, as for 
 the homeborn : for I am the Lord your God. 
 
 The man was accordingly put to death. 
 
 The first difficulty in the case was that the law of 
 blasphemy had not yet been declared. So much is 
 obvious to everybody. But it is not from this that the 
 case derived its importance. The chief difficulty was 
 due to the fact that the criminal was not a member of 
 any Israelite tribe, nor a party to the great agreements 
 between Israel's God and Israel. We are so accustomed 
 to regard the law of a civilised state as applicable to all 
 persons within its territory, that we forget how rare and 
 modern the idea is. 
 
 In early societies, quite apart from religious con- 
 siderations, law is personal, not territorial. 
 
86 STUDIES IN BIBLICAL LAW 
 
 After the fall of the Roman Empire, Romans, Franks, 
 Burgundians and so forth were governed by their respective 
 laws within the same territory [Westlake : " Private Inter- 
 national Law," 3rd edition, 288]. 
 
 A fortiori, where law is implicated with religion, legal 
 history shows that it is generally felt to be impossible 
 to apply the law to strangers. 
 
 In India it is still the case that — ■ 
 
 The members of certain castes and creeds are, in many 
 important respects, governed by their own peculiar rules and 
 customs [13 App. Ca. 440]. 
 
 As matter of history I should doubt whether anything that 
 could properly be called a general law for British India existed 
 before the commencement of that great series of British Indian 
 legislation which was inaugurated by Macaulay. Previous to 
 that time I can only discover the laws of the castes and creeds, 
 and alongside of them and standing on the same footing with 
 them, for the community or society formed by the Europeans, 
 English law, more or less modified by special enactments 
 [Westlake, op. at., 289-290]. 
 
 It is unnecessary to multiply examples, but my 
 readers will probably thank me for the following quo- 
 tation : — 
 
 Some time in the year 1886 a deputation arrived from the 
 Jews of Aden, asking that they might be exempted from the 
 operation of the Indian Succession Act (X. of 1865). That 
 Act applied to the Jews of British India, a small class of 
 persons. Aden is technically part of British India. There- 
 fore the Act applied to the Jews of Aden. But for some 
 twenty years the Jews of Aden remained in blissful ignorance 
 of its existence. At last a case raising a question of succession 
 among Aden Jews found its way into the Civil Court at Aden. 
 The judge looked up his law and found that the Succession 
 Act regulated the case. His decision fluttered the community, 
 and they asked that they might be restored to their old law. 
 On inquiry what that law was, reference was made to a passage 
 in the Book of Numbers, containing what may without' pro- 
 fanity be called the ruling in Zelophehad's case. The text 
 lays down the rule of succession to be observed when an 
 
SOME PROOFS OF DATE 87 
 
 Israelite dies leaving daughters but no son. It was stated that 
 the Jews of Yemen had been under this law for some thousands 
 of years, that it gave them what they wanted, and that they 
 would like to remain under it. Under these circumstances the 
 Government of India stipulated for two conditions — first, for 
 evidence of the particular customs of the Yemen Jews, and, 
 secondly, for an assurance that any exemption granted to them 
 should not be used as a precedent for granting a similar con- 
 cession to the Jews of India generally. The stipulations were 
 complied with by the production of evidence as to the laws 
 and customs of Yemen Jews (very curious and interesting 
 evidence it was), and by an undertaking from the leading Jews 
 in British India that they would be content to remain under 
 Anglo-Indian law. And the Jews of Aden were accordingly 
 allowed to revert from Act X. of 1865 to the Pentateuch 
 [Ilbert : "Legislative Methods and Forms," 153-154].. 
 
 This explains the structure of the judgment. First 
 the law of blasphemy is laid down [verses 15 and 16], 
 then it is declared to be applicable to stranger and 
 native alike [verse 16, fin.], then certain important 
 branches of law are epitomised, and the general prin- 
 ciple that the same law is to apply to stranger as to 
 native is asserted in clear, unmistakeable language. 
 
 What place this judgment occupies in the history 
 of Israelite law may best be seen by a comparison 
 with Roman law. 
 
 At Rome the necessity of providing law for strangers 
 twice caused a duplication of legal institutions. At an 
 early date the growth of the plebs, side by side with the 
 populus or patres, necessitated the invention of legal 
 contrivances, which could in some measure replace for 
 them institutions of the original civil law which were 
 applicable only to the patres. Hence even with our 
 scanty knowledge of early Roman law, we hear of a 
 form of marriage and a form of testament, devised to 
 do for the plebs something like what the early civil law 
 did for the populus. Subsequently, the necessity for 
 
88 STUDIES IN BIBLICAL LAW 
 
 dealing with cases in which one or both parties were 
 not Roman citizens, and of enabling persons, to whom 
 the jus civile was not applicable, to enter into contracts, 
 led to the creation of a jus gentium, which for a long 
 time existed side by side with the civil law. Where a 
 peregrinus was a party to a case, this jus gentium was 
 administered by a special magistrate, and had a long 
 and eventful history, extending over many centuries, 
 during the course of which it profoundly modified the 
 original civil law. The judgment in the case of Shelo- 
 mith's son saved Israel this experience, and it must rank 
 at the very head of the world's ruling cases. 
 
 We must next deal with certain points of .style. It 
 will be noticed that the great declaration of legal 
 principle is throughout couched in the third person. 
 Observation shows that the genius of the language 
 favours the use of the third person in the operative 
 words of jural laws. This may be strikingly illustrated 
 in a variety of different ways. The judgment-laws of 
 Exodus come just after precepts that are couched in the 
 second person. They start off with the words : " If 
 thou buy an Hebrew servant." We might expect "thou 
 shalt " to follow, and in the corresponding passage of 
 Deuteronomy [xv. 12], which, as we know, is not a judg- 
 ment-law, we actually find " thou shalt let him go free," 
 although the verb of the protasis is there in the third 
 person (if thy brother be sold unto thee), but in Exodus 
 we read "he shall serve thee." We are then kept 
 consistently in the third person till we reach xxi. 23 ; 
 here we find "thou shalt give life for life," &c. This 
 seems to be addressed to the offender rather than the 
 judges. We then revert to the third person, till we come 
 to xxii. 18, where we read — 
 
 Thou shalt not suffer a sorceress to live. 
 
 At first sight this looks as if it were a rule intended 
 
SOME PROOFS OF DATE 89 
 
 for the guidance of courts as well as individuals, but 
 it is noticeable that we are not told how the death 
 penalty is to be inflicted. No doubt we find such 
 judgment-laws as "he that smiteth his father shall surely 
 be put to death," but we may conjecture that to a con- 
 temporary the meaning of the Hebrew phrase rendered 
 " shall surely be put to death " was as clear as " shall be 
 executed " would be to a modern Englishman. On the 
 other hand we do find in Leviticus xx. 27 the following 
 unmistakeable jural law : — 
 
 A man also or a woman that hath a familiar spirit, or that 
 is a wizard, shall surely be put to death : they shall stone them 
 with stones : their blood shall be upon them. 
 
 Exodus then reverts to the third person, but speedily 
 returns to the second in xxii. 21 with a number of 
 precepts, the observance of which is inculcated with such 
 phrases as, "for ye were strangers in the land of Egypt,'' 
 and " it shall come to pass, when he crieth unto me, 
 I will hear." 
 
 It is unnecessary to labour the point with further 
 illustrations. We may conclude first, that the second 
 person is appropriate to what analytical jurists call 
 occasional commands, secondly, that in general com- 
 mands the third person is usual where a rule is being 
 laid down for the guidance of a court, priest, or other 
 authority, while in other cases, and especially where 
 there is an appeal to the feelings of an individual, the 
 second person is preferred. Of course we frequently 
 find substantially the same precepts put from differ- 
 ent points of view, and in Deuteronomy, owing to its 
 popular character, the second person is generally pre- 
 ferred. It must never be forgotten that language is 
 in part a lawgiver's master, but to a greater extent 
 his servant. 
 
go STUDIES IN BIBLICAL LAW 
 
 The following passage from a work of Sir Henry 
 Maine's suggests a further stylistic enquiry : — 
 
 The law-book of Manu is in verse, and Verse is one of the 
 expedients for lessening the burden which the memory has to 
 bear when writing is unknown or very little used. But there 
 is another expedient which serves the same object. This is 
 Aphorism or Proverb. Even now, in our own country, much of 
 popular wisdom is preserved either in old rhymes or in old pro- 
 verbs ; and it is well ascertained that during the Middle Ages 
 much of law and not a little of medicine was preserved among 
 professions, not necessarily clerkly, by these two agencies. A 
 great deal of old German law compressed into maxims has 
 been preserved, and it is probable that the Latin legal maxims 
 well known to English lawyers, and sometimes spoken of as the 
 quintessence of wisdom, were really aids to recollection. As 
 to Verse, the ordinary medical practitioner once carried his 
 professional knowledge with him. in the versified Latin rules of 
 the school of Salerno — that curious body of medical precepts 
 which begins with the grim warning, contra vim mortis non est 
 medicamen in hortis . . . The Sanscrit law-books are sometimes 
 in aphoristic prose, sometimes in verse, sometimes in a mixture 
 of both [Maine : " Early Law and Custom," 9-10]. 1 
 
 What is there in Hebrew literature that corresponds 
 to the Indian aphorism ? 
 
 The fundamental (and predominant) form of the Hebrew 
 verse is the couplet of two lines, the second line either repeat- 
 ing, or in some other way reinforcing or completing, the 
 thought of the first. In the verse of two lines is exemplified 
 also the principle which most widely regulates the form of 
 Hebrew poetry, the paralklismus membrorum — the parallelism 
 of two clauses of approximately the same length, the second 
 clause answering, or otherwise completing, the thought of the 
 first [Driver : "Literature of the Old Testament, 362]. 
 
 Dr. Driver subsequently points out that there are 
 various kinds of parallelism. One variety is distin- 
 guished by the fact that the two lines are practically 
 
 1 For Irish and Greek parallels, cf. Maine, " Early History of Institu- 
 tions," 14. 
 
SOME PROOFS OF DATE 91 
 
 synonymous, the second enforcing the thought of the first, 
 in another the two members are antithetic and contrast 
 with each other, while in a third class " the second line 
 contains neither a repetition nor a contrast to the 
 thought of the first, but in different ways supplements or 
 completes it." Parallelism is characteristic of Hebrew 
 poetry and proverbs, but it is also found in the prose of 
 the prophets. It is noteworthy that the song which 
 was taught to the children of Israel (Deuteronomy xxxi. 
 30-xxxii. 44) abounds in examples of parallelism. Now 
 parallelism is not as a rule well adapted to the expres- 
 sion of jural law. To say the same thing twice over in 
 different words is generally dangerous when those words 
 have to be interpreted by courts, but there are exceptions 
 to every rule, and one of these occurs when the object 
 is not to make new law, but to summarise law that is 
 already well known. 
 
 In Sir William Jones's day, an abridgment of Lord Coke's 
 " Reports " in verse was in existence ; and he gravely remarks 
 that, if the verse had been smoother and the law more accurate, 
 every student might have been advised to use it [Maine : 
 "Early Law and Custom," 10]. 
 
 Again, it is sometimes the case that a legislator 
 desires to lay down rules relating to different cases that 
 closely resemble each other, but are not precisely the 
 same, as, for instance, cursing God and blaspheming 
 the Name. Hence in this judgment we find instances 
 of parallelism : — 
 
 1. Whosoever curseth his God shall bear his sin, 
 
 2. And he that blasphemeth the name of the Lord, he 
 shall surely be put to death. 
 
 1. And he that smiteth any man mortally shall surely be 
 put to death, 
 
 2. And he that smiteth a beast mortally shall make it 
 
 good. 
 
92 STUDIES IN BIBLICAL LAW 
 
 In commands the use of parallelism is of course 
 more frequent. 
 
 If thou lend money to any of my people with thee that is 
 poor, 
 
 i. Thou shalt not be to him as a creditor, 
 
 2. Neither shall ye lay upon him usury [Exodus xxii. 
 
 2 5 (24)]- 
 
 1. Judges thou shalt not revile, 
 
 2. And a prince in thy people thou shalt not curse [Exodus 
 xxii. 28 (27)]. 
 
 1 . Ye shall not round the corners of your heads, 
 
 2. Neither shalt thou mar the corners of thy beard [Levi- 
 ticus xix. 27]. 
 
 In speaking of parallelism in Hebrew poetry, Dr. 
 Driver says — 
 
 The Hebrew verse does not, however, consist uniformly of 
 two lines ; the addition of a third line is apt especially to in- 
 troduce an element of irregularity : so that the parallelismus 
 ?nembrorum, though an important canon of Hebrew poetry, is 
 not the sole principle by which its form is determined [" Litera- 
 ture of the Old Testament,'' 362]. 
 
 Similar irregularities may be noticed in Leviticus — 
 
 Ye shall keep my statutes. 
 
 1. Thou shalt not let thy cattle gender with a diverse kind : 
 
 2. Thou shalt not sow thy field with two kinds of seed : 
 
 3. Neither shall there come upon thee a garment of two 
 kinds of stuff mingled together [Leviticus xix. 19]. 
 
 And when ye reap the harvest of your land, 
 
 1 . Thou shalt not wholly reap the corners of thy field, 
 
 2. Neither shalt thou gather the gleaning of thy harvest. 
 
 1 . And thou shalt not glean thy vineyard, 
 
 2. Neither shalt thou gather the fallen fruit of thy vineyard ; 
 Thou shalt leave them for the poor and for the stranger : I 
 
 am the Lord your God [xix. 9-10]. 
 
 The nineteenth chapter of Leviticus is in a style that 
 suggests comparisons with Hebrew poetry, and the 
 superscription is, " Speak unto all the congregation of the 
 
SOME PROOFS OF DATE 93 
 
 * 
 
 children of Israel" a. fact which is probably of consider- 
 able importance to the stylistic enquiry. I do not pro- 
 pose to pursue this subject further : all I desire to 
 establish is that there is a case for examining the style 
 and structure, at any rate of the passages that contain 
 judgments and commandments, in the light of such 
 knowledge of Hebrew poetry as we possess. 
 
 In form the laws of the tables were of remarkable brevity, 
 terseness, and pregnancy, with something of a rhythmical 
 cadence that must have greatly facilitated their retention in 
 the memory [Muirhead : "Roman Law," 100]. 
 
 The same remark holds good, not merely of the 
 judgment now under consideration, but also of other 
 passages, such as the judgments in Exodus and the 
 declaration of law in the case of the daughters of 
 Zelophehad. For instance, in the original Hebrew, 
 verse 21 is expressed in six words. Or take Genesis 
 ix. 6 — 
 
 Whoso sheddeth man's blood, by man shall his blood be 
 shed. 
 
 We can all see that the pointedness of the phrase 
 makes it easy to remember ; but in Hebrew it only 
 requires six words for its expression, and they are 
 arranged in such a way as to present a remarkable 
 instance of the figure that grammarians call chiasmus, 
 thus — 
 
 Shedding blood-of man by-man his-blood shall-be-shed. 
 
 And the sentence is moreover distinguished by very 
 noticeable assonance. 
 
 Again such phrases as " tooth for tooth " must have 
 been singularly easy to remember. Lastly, we may con- 
 jecture that the retention of law in the memory was 
 aided by a system of chanting. 
 
 It must be remembered that the legal portions of all 
 
94 STUDIES IN BIBLICAL LAW 
 
 the documents of the critics, except of course D, re- 
 semble one another in showing well-known character- 
 istics of early legal style in contrast to the narrative 
 with which they are connected. Perhaps such facts 
 as these throw at least as much light on the state 
 of preservation of the Hebrew text as many ancient 
 mis- translations. 
 
 Lastly, we come to the question of the date of the 
 passage. On this no two opinions are possible. Such 
 a judgment as this could only have been given at a time 
 when it was uncertain what law should be applied to 
 strangers, and that is a question which is bound to come 
 up for settlement at a very early date in the independent 
 history of any nation. So obvious does this appear that 
 I shall not trouble to cite the evidence of the histori- 
 cal books. But we can of course carry the argument 
 further. Could such a judgment have been forged in 
 any post-Mosaic age ? Obviously not ; for it would 
 have been utterly meaningless in any period when 
 Israelite law was applied as a matter of course to a 
 criminal of foreign origin. The thoroughness with 
 which this judgment did its work made it certain that 
 its meaning would soon be forgotten, and the passage 
 must have been as unintelligible in the post-exilic times, 
 to which the critics assign it, as it has proved to all 
 subsequent commentators. It has never been suggested 
 either that the supposititious literary forgers of the critics 
 were capable of manufacturing a system of ancient law 
 which would bear the test of comparison with the 
 genuine systems of early societies, or that they desired 
 to pass off on their contemporaries a body of law which 
 was obsolete and unintelligible, or that their contem- 
 poraries would ever have accepted such forgeries as 
 intelligible, useful, or genuine. 
 
 I come next to the evidence of date afforded by the 
 land laws in the twenty-fifth chapter of Leviticus. It is 
 
SOME PROOFS OF DATE 95 
 
 quite clear that a nation that occupies land must have 
 some kind of land law. The critics must therefore say 
 either that at the date to which they attribute this passage 
 these laws were actually in force or that they were not ; 
 and in the latter case they must go further, and say that 
 some other body of law (of which we, of course, know 
 nothing) was in actual operation. They assume that 
 these laws were in fact invented at a late date. But a 
 very few sentences are sufficient to show the absurdity 
 of this view. For the sake of clearness I shall confine 
 myself to the jubile law, but the same arguments apply 
 to the other provisions respecting immovable property. 
 It is not possible with a few strokes of a forger's pen to 
 abolish a whole system of law that ex hypothesi had been 
 working for many centuries. If the jubile had not been 
 the law of the land, a whole system of complicated pro- 
 visions for the repeal of the old law and the bringing into 
 operation of the new would have been necessary. The 
 practical difficulties of revolutionising the land law of a 
 country are always enormous ; but to suppose that such 
 a revolution could be effected without repealing or alter- 
 ing the old law, or making any provision for the innum- 
 erable difficulties that would arise the moment it was 
 attempted to bring the new law into operation, and that 
 simply by forging a few sentences, and attributing them 
 to a legislator who had been dead for many centuries, is 
 to conceive an utter impossibility. But even apart from 
 this, how do the critics suppose that anybody would 
 have believed the forgers who asserted that this law was 
 Mosaic ? Must it not have been common knowledge 
 that the jubile law neither was nor ever had been the law 
 of the land ? And, putting this too aside, what motive 
 can the forgers possibly have had ? Was it to protect 
 the peasants, who had been gradually compelled to sell 
 their small holdings to the rich ? But, unless there had 
 first been a redistribution of the land, such a law would 
 
96 STUDIES IN BIBLICAL LAW 
 
 only have operated to the advantage of the rich. They 
 would have been the owners, who would have returned 
 to their possessions at the end of every fifty years — those 
 possessions of which they had acquired the absolute 
 ownership in days when no jubile law existed. On these 
 grounds it is confidently submitted that these laws can 
 only be attributed to the Mosaic age. 
 
 It has been generally assumed that the jubile law 
 never came into actual operation. The evidence is to 
 the opposite effect. The book of Ezekiel contains two 
 passages which are unintelligible unless the jubile law 
 was actually working. In the seventh chapter we 
 read — 
 
 1 2. The time is come, the day draweth near : let not the 
 buyer rejoice, nor the seller mourn : for wrath is upon all the 
 multitude thereof. 
 
 13. For the seller shall not return to that which is sold, 
 although they be yet alive : for the vision is touching the whole 
 multitude thereof, none shall return ; neither shall any 
 strengthen himself in the iniquity of his life. 
 
 And in the forty-sixth chapter the following passage 
 occurs : — 
 
 16. Thus saith the Lord God: If the prince give a gift 
 unto any of his sons, it is his inheritance, it shall belong to his 
 sons ; it is their possession by inheritance. 
 
 17. But if he give of his inheritance a gift to one of his 
 servants, it shall be his to the year of liberty ; then it shall 
 return to the prince ; but as for his inheritance, it shall be for 
 his sons. 
 
 Could Ezekiel have written thus if the jubile had not 
 been in full operation ? 
 
 In both these passages the reference is clear and 
 unmistakeable : the book of Ruth contains some words 
 which, although they do not directly refer to the institu- 
 tion, are unintelligible unless it existed. In the Penta- 
 teuch we are not told what interest, if any, a widow had 
 
SOME PROOFS OF DATE 97 
 
 in the land of her deceased husband, but in the book of 
 Ruth we find that Naomi and Ruth clearly had some 
 rights, for in the fourth chapter the following dialogue 
 between Boaz and the near kinsman {Hebrew : redeemer) 
 occurs : — 
 
 3. And he said unto the redeemer, Naomi, that is come 
 again out of the country of Moab, selleth the parcel of land, 
 which was our brother Elimelech's : 
 
 4. And I thought to disclose it unto thee, saying, Buy it 
 before them that sit here, and before the elders of my people. 
 If thou wilt redeem it, redeem it : but if thou wilt not redeem 
 it, then tell me, that I may know : for there is none to redeem 
 it beside thee ; and I am after thee. And he said, I will 
 redeem it. 
 
 5. Then said Boaz, What day thou buyest the field of the 
 hand of Naomi, thou must buy it also of Ruth the Moabitess, 
 the wife of the dead, to raise up the name of the dead upon 
 his inheritance. 
 
 6. And the redeemer said, I cannot redeem it for myself, 
 lest I mar mine own inheritance : take thou my right of redemp- 
 tion on thee ; for I cannot redeem it. 
 
 Up to a certain point this passage is quite easy to 
 
 understand. The redeemer had under the Mosaic law 
 
 [Leviticus xxv. 25] a right of redemption, and in practice 
 
 this no doubt often became a right of pre-emption, that 
 
 is, the property was offered in the first instance to the 
 
 redeemer. In this case the redeemer was quite willing 
 
 to buy the land, till he heard that it would be necessary 
 
 to contract a levirate marriage with Ruth. Then he 
 
 refused, lest he should mar his own inheritance. But 
 
 why should the marriage have that effect, unless the 
 
 jubile law was in operation ? The child who might be 
 
 born would in law be the child of Ruth's first husband 
 
 [Deuteronomy xxv. 6], and would not therefore inherit 
 
 from the redeemer. He might, of course, inherit the 
 
 money paid for the land, but this would not impoverish 
 
 the redeemer's inheritance, if the absolute property in 
 
 G 
 
98 STUDIES IN tJUBLiUAL l-aw 
 
 Elimelech's land passed by the sale. The answer seems 
 to be that at the jubile the land would revert to the 
 child as Elimelech's heir, and in this way the redeemer 
 would lose the amount of the purchase-money without 
 being compensated by the permanent acquisition of the 
 land. 
 
 There is no ground for surprise at the discovery that 
 the jubile law probably worked quite smoothly. It 
 would seem that Moses expected this, for in the quasi- 
 jurat of the land covenant no special reference is made 
 to the jubile. We know from the case of Zelophehad's 
 daughters in Numbers xxxvi. that the people realised 
 what the jubile meant, and it was immensely to the 
 pecuniary advantage of the majority of landholders that 
 the law should never be allowed to become a dead letter. 
 Nor would the need for remembering genealogies for 
 fifty years be likely to cause much inconvenience in 
 practice. In a small country village there are always a 
 number of old people who are acquainted with two or 
 three generations of the genealogies of all their neigh- 
 bours ; and once writing became common, and regular 
 registers of genealogies were kept, there could be no 
 possible difficulty. 
 
 Happy the nation that has no history. The chronicles 
 of Israel tell of no seisachtheia, no secession of the plebs, 
 no struggles for social or constitutional changes rendered 
 imperative by the harsh working of an unjust law. Once 
 the cruel exactions of the monarchy combine with other 
 causes to rend the house of Israel in twain, but we never 
 hear of any social upheaval. The main reason for this 
 must be sought in the successful operation of the jubile 
 laws. 
 
 The story of the daughters of Zelophehad in Num- 
 bers xxvii. i-n and xxxvi. 1-12 affords equally cogent 
 evidence of date. The following general rules are laid 
 down : — 
 
SOME PROOFS OF DATE 
 
 99 
 
 8. And thou shalt speak unto the children of Israel, saying, 
 If a man die, and have no son, then ye shall cause his 
 inheritance to pass unto his daughter. 
 
 9. And if he have no daughter, then ye shall give his 
 inheritance unto his brethren. 
 
 10. And if he have no brethren, then ye shall give his 
 inheritance unto his father's brethren. 
 
 11. And if his father have no brethren, then ye shall give 
 his inheritance unto his kinsman that is next to him of his 
 family, and he shall possess it : and it shall be unto the 
 children of Israel a statute of judgement, as the Lord com- 
 manded Moses [Numbers xxvii.]. 
 
 It is not necessary to repeat the reasoning by which 
 the date of the land laws was established. Obviously 
 the cases contemplated by this passage are all of daily 
 occurrence in every large community. But one other 
 point should be made. What forger would have in- 
 vented such a story as this and cut it into two parts ? 
 
 These examples have all been taken from the sup- 
 posititious priestly and holiness documents, which the 
 higher critics allege to be the last in order of date. It 
 would of course be possible in many instances to prove 
 the Mosaic date of the jural laws literally precept upon 
 precept, precept upon precept, line upon line, line upon 
 line, here a little, there a little : but in view of what we 
 now know of the higher criticism, it would be a mere 
 waste of labour to attempt the task. " The dog it was 
 that died." 
 
CHAPTER IV 
 
 SOME INTERESTING PARALLELS 
 
 "The most celebrated system of jurisprudence known 
 to the world begins, as it ends, with a Code." It is with 
 these words that Sir Henry Maine opens his famous 
 treatise on Ancient Law. He is of course writing of 
 the XII Tables and the Corpus Juris; but Jewish law 
 also begins and ends with codes. The jurist who 
 should institute an exhaustive comparison between 
 Digest and Talmud would render an important service 
 alike to Jewish history and to the comparative study 
 of law. This chapter is concerned merely with the 
 noting of a few parallels to the Pentateuch in early 
 Roman law. Unfortunately only some incomplete frag- 
 ments of the XII Tables are left to us : but what is 
 known of these fragments is from our present point of 
 view extremely interesting and suggestive, and I desire 
 to put before my readers some facts that have been 
 noticed by the jurists who have dealt with Roman law. 
 So far as practicable, I shall quote the actual words of 
 writers whose labours and insight have made it possible 
 for me to throw light on Biblical problems. I can 
 supply no better introduction to the subject than the 
 following extract from another work of Sir Henry 
 Maine's : — 
 
 There is no system of recorded law, literally from China to 
 Peru, which, when it first emerges into notice, is not seen to 
 be entangled with religious ritual and observance. The law of 
 the Romans has been thought to be that in which the civil and 
 Pontifical jurisprudence were earliest and most completely dis- 
 entangled. Yet the meagre extant fragments of the Twelve 
 
SOME INTERESTING PARALLELS 101 
 
 Tables of Rome contain rules which are plainly religious or 
 ritualistic : — 
 
 Thou shalt not square a funeral pile with an adze. 
 
 Let not women tear their cheeks at a funeral. 
 
 Thou shalt not put gold on a corpse. 
 We are told by Cicero {De Legibus, 2, 25, 64) that several 
 of these rules contained in the Tenth of the Roman Tables 
 were taken from Greek originals. He attributes the Greek 
 rules to Solon, and explains that they limited the costliness of 
 the ancient ritual of funerals [" Early Law and Custom," 5-6]. 
 
 There is a tradition that a commission left Rome for 
 the purpose of studying and collating various foreign 
 laws, and that on its return the decemviri drew up the 
 laws of the tables with the help of this foreign material. 
 The best opinion of modern jurists on this point 
 supplies an instructive comment on views that are held 
 by some Biblical students. 
 
 The tradition of the visit to Greece is likely enough to be 
 true, but it is quite a mistake to infer that the decemvirs im- 
 ported to any considerable extent into the Tables, Greek or any 
 other foreign laws. It is foolish to infer this from a few simi- 
 larities which have been noticed between Greek and Roman 
 law. Such similarities are only to be expected in the laws of 
 two peoples so closely allied. As Puchta says, the similarities 
 in the Greek and Latin languages are far more striking, yet 
 no one suggests that commissioners were sent from Rome to 
 bring in Greek words [Walton : " Introduction to Roman 
 Law," 83]. 
 
 Turning to specific rules of law we notice that in 
 the case of deposit the XII Tables gave twofold resti- 
 tution to the owner who had suffered (Paul, Senten- 
 tim II. 12, § 11), and that the action so given is now 
 thought to have been delictual and not contractual 
 [Professor Goudy in Muirhead's " Roman Law," 136 n.\. 
 This of course reminds us of Exodus xxii. 7-9. More- 
 over, the provisions of the Mosaic law of theft (Exodus 
 xxii. 1-4) can be paralleled from Roman law. 
 
102 STUDIES IN BIBLICAL LAW 
 
 The punishment provided by the law of the Twelve Tables 
 for theft detected in the commission (furium manifestum) was 
 capital ; a freeman was first scourged and then delivered, by 
 judgment of the magistrate, to the person from whom he had 
 stolen (whether made a slave by the delivery, or reduced to 
 the condition of an insolvent judgment debtor, was an old 
 question); a slave was also punished by scourging. Later 
 ages disapproved of the severity of this punishment, and theft, 
 whether by a slave or by a freeman, was punished by the 
 prastorian edict with fourfold damages. Simple theft (furtum 
 nee manifestum) is punished by the law of the Twelve Tables 
 with double damages, which penalty the praetor has retained 
 [Gaius, III. §§ 189-190, Poste's translation]. 
 
 Mr. Poste offers the following explanation : — 
 
 The reason why furtum manifestum was subjected to a 
 heavier penalty than furtum nee manifestum was not because 
 the barbarous legislator supposed that detection in the act 
 was an aggravation of the offence, but because he wished, by 
 the amplitude of the legal remedy offered, to induce the 
 aggrieved party not to take the law into his own hands and 
 inflict summary vengeance on the offender, particularly as it 
 was lawful to kill a nocturnal thief, or one who during the 
 day defended himself with a weapon. In the infancy of 
 society it is an important object to the legislator to induce an 
 injured person to have recourse to the public tribunals instead 
 of righting himself, that is to say, constituting himself both 
 lawgiver and judge. 
 
 That such was really the motive of the legislator we have 
 historic evidence in the declaration of Rotharis, ruler of the 
 Langobards, a.d. 643. He gives the relatives of the slain 
 their election between the primitive vengeance for blood (feud 
 or vendetta), and a composition or pecuniary fine (wergeld or 
 pcena) to be recovered by action before the public tribunals. 
 He says that he fixes a high fine in order to induce plaintiffs 
 to forego their right of feud ; and implies that he would gladly 
 have abolished the right of feud or private war, but felt that it 
 was too deeply rooted in the habits of his tribe to be extirpated 
 by legislation [Poste's "Gaius," 3rd ed., 434-435]. 
 
 The Roman law of injuries to person was also similar 
 in some respects to the Mosaic. 
 
SOME INTERESTING PARALLELS 103 
 
 The penalty of outrage in the Twelve Tables for a limb 
 broken was retaliation (talio) : for a bone broken or bruised 
 three hundred asses, if the person injured was a freeman ; one 
 hundred and fifty if he was a slave ; for other injuries twenty- 
 five asses : and in those days of excessive poverty such sums 
 seemed an adequate reparation. The rule now in use is 
 different : the plaintiff is permitted by the praetor to put his 
 own estimation on the outrage, and the judex may either 
 condemn the defendant in the whole of this sum, or in a lesser 
 sum at his discretion [Gaius, III. §§ 223-224, Poste's transla- 
 tion]. 
 
 Mr. Poste cites an imperial constitution of the year 
 389, which was intended to repress violence, and will be 
 found in Cod. VIII. 4, 7, and continues thus — 
 
 This constitution may be regarded as the final blow struck 
 by the Roman legislator at the archaic form of remedial pro- 
 cedure — private violence or self-redress. In archaic society, 
 if society it could be called, before the establishment of central 
 authority, public tribunals, and police or executive functionaries, 
 such was the only possible means of redress ; and such redress 
 was recognized and permitted by primeval law, if the senti- 
 ments of the tribe at such a period can be called by the name 
 of law. 
 
 Among the German races the disorder implied by the 
 toleration of Feud or private war was gradually mitigated by 
 the introduction of certain Truces, or temporary or local 
 Peaces : the Truce of the King, prohibiting private war 
 within the precincts of the royal residence : the Truce of the 
 Church, giving to the fugitive wrong-doer an asylum in the 
 sanctuary : the Truce of the Assembly, excluding the prosecu- 
 tion of feuds from the place where the Hundred was assembled : 
 and the Truce of the Town, Village, or House, protecting the 
 offender from homicidal attack within these limits. 
 
 At some period, too, society interposed and offered to 
 act as arbitrator, and to procure for the aggrieved party satis 
 faction of the wrong he had endured. Accordingly all injuries 
 were rated at a certain tariff, and a person who had suffered 
 aggression had the option whether he should avenge himself 
 or, in commutation of his right of Feud, accept the fine fixed 
 by this tariff, and awarded by a tribunal of his countrymen. 
 This mediation of the community, which the plaintiff could 
 
104 STUDIES IN BIBLICAL LAW 
 
 accept or decline at his discretion, was the origin of actiones 
 potnaks, the poena being the inducement offered to the plaintiff 
 to make him adopt the more peaceful course. In Saxon law 
 the alternative offered to the aggressor was expressed by the 
 maxim Biege spere of side other bere : " Buy the spear off 
 the side or bear it : " i.e. make atonement or be liable to Feud 
 [Poste's "Gaius," p. 441]. 
 
 The Hebrew law of homicide stands in an interesting 
 relation to the life of Moses. His first noteworthy action 
 had been to kill an Egyptian, whom he saw smiting an 
 Hebrew, one of his brethren, but, in the language of 
 Deuteronomy, "he hated him not in time past." As a 
 result he had to flee the country, and went to the land 
 of Midian. There he remained till after the death of 
 the king of Egypt. Now the Mosaic provisions on this 
 subject aim at regulating the blood feud and making it 
 the servant of law, partly by ensuring a proper trial, and 
 partly by protecting from the avenger of the blood the 
 man who had caused death unwittingly. This was 
 effected by the institution of cities of refuge to which 
 the man-slayer was to flee, even as Moses himself had 
 fled to the land of Midian. The congregation was then 
 to judge between the smiter and the avenger of the 
 blood ; and in the event of their finding that the smiter 
 did not deserve death, he was to be restored to the city 
 of refuge, and to dwell therein until the death of the 
 high priest, as Moses had dwelt in the land of Midian 
 till the death of the king. Afterwards he was to return 
 into the land of his possession, as Moses had returned 
 to Egypt. The high priest was of course the only 
 permanent hereditary official of the Mosaic constitution ; 
 but partly by connecting the sojourn in the city of 
 refuge with his life, and partly by making the cities of 
 refuge Levitical cities, the institution was linked with 
 religion in a manner which must at all times have been 
 obvious even to those who were most ignorant of the 
 
SOME INTERESTING PARALLELS 105 
 
 wording of the law. This must have greatly strengthened 
 the law in practical working. One other point should 
 be noticed. The first remarkable action in the career 
 of Moses was to kill the Egyptian. His last reported 
 normal action — I of course except matters connected 
 with the Deuteronomic covenant, his leave-taking, the 
 appointment of his successor, and his death, all of which 
 may fairly be regarded as abnormal — was the setting 
 aside of three cities of refuge [Deuteronomy iv. 41-43]. 
 
 The book of Genesis gives us a glimpse of an earlier 
 law of homicide. In iv. 14 Cain says — 
 
 Behold, thou hast driven me out this day from the face of 
 the ground ; and from thy face shall I be hid ; and I shall be 
 a fugitive and a wanderer in the earth ; and it shall come to 
 pass, that whosoever findeth me shall slay me. 
 
 These words remind us of the Roman Sacratio 
 Capitis. 
 
 The homo sacer was in every sense of the word an out- 
 cast, — one with whom it was pollution to associate, who dared 
 take no part in any of the institutions of the state, civil or 
 religious, whose life the gods would not accept as a sacrifice, 
 but whom, nevertheless, any one might put to death with im- 
 punity as no longer god-protected [Muirhead : " Roman Law,'' 
 17-18]. 
 
 It is not within the sphere of this work to consider 
 the numerous other resemblances between the religious- 
 legal ideas of ancient Roman and ancient Hebrew 
 society. 
 
CHAPTER V 
 
 THE INTER-RELATION OF THE LEGAL PASSAGES 
 
 Like the XII Tables, the Pentateuch pre-supposes 
 much customary law that was doubtless well-settled, 
 and never presents us with a complete view of Israelite 
 law in the Mosaic age. To find such jural laws as it 
 contains we have to look in many different passages. 
 They may be classified as follows : — 
 
 I. The covenant document in Exodus, with which 
 we may group Numbers xxxv. 9-34, the passage, which, 
 in accordance with the promise in Exodus xxi. 13, pro- 
 vides for the institution of cities of refuge. 
 -r"TI. Passages like those relating the Sabbath covenant 
 [Exodus xxxi. 12-17 an ^ xxxv. 1-3], which contain some 
 jural law, but which are dominated by purely religious 
 conceptions, such as that of holiness. 
 
 III. Passages like those relating to the cases of the 
 son of Shelomith and the daughters of Zelophehad, 
 where some event gives rise to a difficulty, which results 
 in the declaration of legal principle. 
 
 IV. The covenant document of Leviticus xxv. and xxvi. 
 
 V. The covenant document in Deuteronomy. 
 
 The consideration of the second of these classes 
 belongs to the student of religious ideas rather than to 
 the lawyer, and I have therefore formed no opinion on 
 the relation in which the passages grouped in it stand 
 to the other legal passages. The third class gives rise 
 to no difficulties. In each case the event narrated is the 
 occasion for the declaration of law : in each case purely 
 jural law is laid down which the courts can enforce in 
 
INTER-RELATION OF LEGAL PASSAGES 107 
 
 the ordinary course ; in no case is this law ever repeated. 
 Nothing could be simpler : nothing could stand less in 
 need of explanation. 
 
 Nor is there any greater difficulty in understanding 
 the collection of jural laws in Leviticus xxv. The land 
 having been promised to Abraham in a covenant, it is 
 natural that the land laws should become terms of the 
 covenant, and we have seen that all the jural laws of this 
 chapter are land laws or laws closely connected with 
 them. And here, too, as in the last class, we are dealing 
 with jural laws which are never repeated. 
 
 We are therefore left face to face with the single 
 question of the relations between those passages in the 
 Sinaitic and Deuteronomic covenant documents which 
 are of special legal interest. The first fact that emerges 
 from a study of Exodus xxi. 2-xxii. 17 (16) is that it con- // 
 sists of a body of private law — and in this term I here 
 include criminal law — arranged according to an intelli- 
 gible principle. The text first treats of the manumission 
 of Hebrew slaves, xxi. 2-1 1, then of injuries to human 
 beings, 12-32, next of injuries to cattle, 32-36, lastly of 
 other wrongs to property, xxii. 1 (xxi. 37)-xxii. 17 (16). 
 As must inevitably happen in every classification of legal 
 rules, there are laws which could be inserted in either of 
 two places. Thus xxii. 10-13 (9-12), dealing with the 
 case of an animal being damaged, while under the care 
 of a neighbour, who has been entrusted with its custody 
 — I purposely avoid legal terms — is placed after the 
 provisions applicable in case of a theft of deposited 
 goods, and not with the law of injuries to cattle. 
 Such points give rise to no difficulty. 
 
 Starting with the general principle that a rule of 
 private law, using the term in the sense indicated, 
 must be looked for in Exodus, and that such rules are 
 not usually repeated in the Pentateuch, we are naturally 
 led to ask whether it be possible to suggest reasons for 
 
108 STUDIES IN BIBLICAL LAW 
 
 the recurrence of some rules. One reason lies on the 
 surface. Deuteronomy was intended for public reading. 
 Take the first case of apparent repetition. Exodus xxi. 
 2-6 lays down law relating to the manumission of 
 Hebrew slaves acquired by purchase. Now this law 
 was entirely opposed to the pecuniary interest of the 
 masters. It was only too probable that the law would 
 speedily become a dead letter, and we know from Jere- 
 miah xxxiv. 8-22 that this did in fact happen. So we 
 find a passage in Deuteronomy [xv. 12-18], consisting 
 not of jural law, but of commandments interwoven with 
 appeals to the master's feelings. It is clear from what 
 Jeremiah tells us that this passage did succeed in in- 
 fluencing opinion to some extent. 
 
 But perhaps it may be thought that I am explaining 
 too much. If this was a valid reason for inserting in 
 Deuteronomy commandments relating to the manumis- 
 sion of slaves, and if these commandments did in fact 
 effect some good, why do we not find a commandment 
 dealing with the case of the slave wife of Exodus xxi. 
 7-1 1 ? Owing to our ignorance of the circumstances of 
 the age, and especially of its legal procedure, we can feel 
 no certainty : but the difference in the respective posi- 
 tions of the persons affected by these laws is very strik- 
 ing. The wife would have her relations, who would 
 naturally see that the law was enforced. The slave, on 
 the other hand, had no natural protectors. His position 
 reminds us of the constant exhortations to assist the 
 widow, the fatherless, and the stranger. 
 
 The next set of repetitions concerns the law of homi- 
 cide. I have already explained the institution of cities of 
 refuge : here we must notice that at the date of the 
 Sinaitic covenant the office of high priest had not been 
 created, so that in Exodus we only find a promise 
 to appoint a place whither the manslayer shall flee. 
 Numbers brings us a complete statement of the law. 
 
INTER-RELATION OF LEGAL PASSAGES 109 
 
 But this great legal reform had a strong and deep-, 
 rooted feeling against it. From what we know of early 
 law, it was no easy task in an age when authority was ; 
 weak to induce an avenger of blood to renounce his! 
 vengeance. Hence we are not surprised to find com- 
 mandments in Deuteronomy which would influence 
 public opinion. One other point remains to be noticed. 
 Between the great speech with which the book of 
 Deuteronomy opens and the heading of the covenant 
 document, we find the verses which narrate the setting 
 apart of three cities of refuge by Moses. At the reading 
 of the Law in the year of the release, these three verses, 
 made prominent by position, must also have exerted 
 enormous influence on the listeners. 
 
 The last instance must be left to the student of 
 religious ideas. Exodus xxi. 16 deals with the case of a 
 free Israelite being kidnapped. Deuteronomy xxiv. 7 
 contains a similar provision in slightly different terms, 
 but with the significant addition " so shalt thou put 
 away the evil from the midst of thee." 
 
 Just as the covenant of Exodus enacts the great 
 collection of private law — other than land law — and that 
 of Leviticus the land laws, so the covenant document 
 in Deuteronomy contains what, for want of a better 
 expression, we must call the public law. It is in ,, 
 Deuteronomy that we look for the laws of war, consti- 
 tutional law, commandments or maxims intended to 
 shape the future course of legislation, new laws rendered j 
 necessary by the disappearance of Moses, and such) 
 institutions of private law as depended mainly or wholly 
 on public opinion. Stated more briefly, it may perhapsj 
 be said that the legal contents of Deuteronomy are 
 determined by its popular character and by the altered 
 circumstances of the time. I can probably explain this 
 best to a modern reader by departing in this instance 
 from the order of the book itself, and grouping the 
 
no STUDIES IN BIBLICAL LAW 
 
 passages with which I have to deal on a different 
 principle, but I ought first to suggest an explanation 
 of the order adopted by Moses in Deuteronomy. The 
 theory of the association of ideas may be expected to 
 throw light on the order, at any rate of some portions of 
 the book, and accordingly I transcribe the following : — 
 
 Thought succeeds thought ; idea follows idea, incessantly. 
 If our senses are awake, we are continually receiving sensa- 
 tions, of the eye, the ear, the touch, and so forth ; but not 
 sensations alone. After sensations, ideas are perpetually 
 excited of sensations formerly received ; after those ideas, 
 other ideas : and during the whole of our lives, a series of 
 those two states of consciousness, called sensations, and ideas, 
 is constantly going on. I see a horse : that is a sensation, 
 Immediately I think of his master : that is an idea. The idea 
 of his master makes me think of his office ; he is a minister of 
 state : that is another idea. The idea of a minister of state 
 makes me think of public affairs ; and I am led into a train of 
 political ideas ; when I am summoned to dinner. This is a 
 new sensation, followed by the idea of dinner, and of the 
 company with whom I am to partake it. The sight of the 
 company and of the food are other sensations ; these suggest 
 ideas without end ; other sensations perpetually intervene, 
 suggesting other ideas : and so the process goes on [James 
 Mill : "Analysis of the Human Mind," I. 52-53]. 
 
 I imagine that if any legislator had followed the 
 order suggested by the above passage (thus : regulations 
 for riding or driving horses, laws relating to property, 
 constitutional laws, &c), the result would have been as 
 perplexing to anybody who did not know the secret, and 
 was not accustomed to associate horses with ministers 
 of state, as the order of the Pentateuch appears to 
 most modern readers. Yet it might have made it 
 easier for persons who did associate horses with 
 ministers to remember the law, and this theory will 
 often help us to follow the arrangement of Deuteronomy. 
 It is not at first sight obvious why a command not to 
 take a mill or upper millstone in pledge should be 
 
"LEGAL PASSAGES in 
 
 followed by a law forbidding kidnapping [Deuteronomy 
 xxiv. 6-7], but when we read of the pledgee "for he J 
 taketh a man's life to pledge," we see that there is a ;■' 
 connection of thought, which may have had a mnemonic 
 value. Similarly in xxiii. we find a group of rules 
 dealing with the "assembly of the Lord," followed by 
 rules relating to the discipline of a camp. These are 
 extreme cases ; the connection of thought is often 
 perfectly clear to any reader ; but in places where that 
 is not so, it is not unnatural to conjecture that, owing to 
 the ideas of the age in which Deuteronomy was written, 
 the arrangement had a value which it has now lost. 
 
 Turning from the order to the contents, we find that 
 Deuteronomy contains the laws of war [xx. 10-20]. 
 This naturally leads us to point out that it is in this 
 book that we find the rules for the organisation of the 
 army [xx. 1-9], the exemption of the newly-married 
 Israelite from military service and the provisions for the 
 internal discipline of the camp [xxiii. 9-14]. One other 
 law of this class finds a place in Deuteronomy, a 
 measure for the protection of the female captive whom 
 her master takes to wife [xxi. 10-14]. ^ ' s parallel to 
 the law of Exodus xxi. 7-1 1 dealing with the case of a 
 girl who has been sold by her father as a slave wife. 
 None of these provisions are found elsewhere in the 
 Pentateuch. 
 
 Under the head of Constitutional Law we may class 
 Deuteronomy xvii. 8-20, dealing with the declaration of 
 new law, 8-13, and the establishment of a kingdom, 14-20, 
 and the provision for the appointment of judges and 
 officers [xvi. 18]. It need scarcely be said that there ! 
 was not much room for such laws while Moses was at 
 the head of the Israelite organisation. Whether he was 
 technically king of Israel in the eyes of his con- 
 temporaries we do not know — in xxxiii. 5 we read that 
 he was king in Jeshurun, but the passage is poetical — 
 
ii2 STUDIES IN BIBLICAL LAW 
 
 but clearly there was no room for any other king in his 
 lifetime. So, too, with new law ; if any difficulty arose, it 
 was of course taken to Moses. A similar remark applies 
 to the provisions in xviii. 15-22 as to prophets. So long 
 as Moses was alive, he would discriminate between true 
 and false prophets. 
 
 I come next to certain passages which may be 
 roughly classed as belonging to criminal law of a 
 religious nature. The key to the ideas they embody 
 seems to lie in the words, " so shalt thou put away the 
 evil from the midst of thee." To this class it is con- 
 venient to assign chapter xiii. dealing with the prophet 
 and the brother, who led the people astray, and the city 
 that goes astray ; xvii. 2-7, the law relating to the worship 
 of other gods ; certain laws of purity, xxii. 13-30 ; and the 
 law of rebellious sons, xxi. 18-21. 
 
 Deuteronomy contains a number of passages that 
 relate in some way to private law ; but they all deal 
 with rules or institutions that depend to a greater or 
 lesser extent on public opinion. The supposed repeti- 
 tions have already been considered ; it remains to deal 
 with certain other passages that relate to private law. 
 
 We find a passage relating to the inheritance of sons 
 in xxi. 15-17. The firstborn is to receive the double 
 portion to which his birth entitles him in the day that 
 the father "causeth his sons to inherit that which he 
 hath," even though he should be the issue of a wife 
 whom her husband hates. Nobody knows whether 
 some rudimentary form of will is here referred to or a 
 gift deducto usufructu, that is, with a life interest reserved ; 
 but from our present point of view this is immaterial. 
 What we have to notice is that the son is apparently 
 not given any remedy by this passage if the father at- 
 tempts to deprive him of his due share, except what the 
 customary law would give him apart from this, — "the 
 right of the firstborn is his," whatever that may mean. 
 
INTER-RELATION OF LEGAL PASSAGES 113 
 
 So, too, xxiv. 1-4 prohibits a man who has divorced 
 his wife from taking her back after a union with some 
 other husband ; but no penalty is enacted. What would 
 have happened to a man who violated this prohibition ? 
 We do not know. 
 
 But the most instructive instance of all is supplied 
 by the law of levirate, xxv. 5-10. Here the appeal is 
 frankly to public opinion and nothing else. The man 
 who will not comply with the requirements of the law 
 is to be brought before the elders. 
 
 9. Then shall his brother's wife come unto him in the 
 presence of the elders, and loose his shoe from off his foot, 
 and spit in his face ; and she shall answer and say, So shall 
 it be done unto the man that doth not build up his brother's 
 house. 
 
 10. And his name shall be called in Israel, The house of 
 him that hath his shoe loosed. 
 
 Clearly this sanction would only be of avail so long 
 as public opinion made it a real disgrace. Once this 
 had ceased to be the case and the origin of the ceremony I 
 had been forgotten, it was bound to sink into the 
 meaningless and uncomprehended transaction that it I 
 appears to have been in the days of Ruth.V 
 
 The other instances may be more rapidly reviewed. 
 Deuteronomy xxiv. 10-15 contains provisions relating 
 to pledge and hired servants, which clearly depend for 
 their binding force on public opinion and the effect 
 they may have on the feelings of lenders and employers 
 of labour, not on the intervention of the courts. The 
 release law of Deuteronomy xv. 1-11 could of course 
 be enforced by the courts, once the money had been lent, 
 but this, too, was opposed to one of the most abiding 
 sentiments of human nature. 
 
 1 Ruth iv. 7. "This was the custom informer time in Israel" is the 
 language of a man who is attempting to explain a ceremony with which he is 
 not acquainted. The explanation is probably misleading. 
 
 H 
 
n 4 STUDIES IN BIBLICAL LAW 
 
 Lastly, the book contains a number of passages that 
 appear to be intended to shape the future of the law. 
 Till the code of Hammurabi was discovered, great 
 obscurity hung over xxiv. 16. 
 
 The fathers shall not be put to death for the children, 
 neither shall the children be put to death for the fathers : 
 / every man shall be put to death for his own sin. 
 
 There is no trace of any custom at all resembling 
 what is here aimed at, anywhere in the Bible ; and if 
 such a practice had ever obtained in Israel, Moses and 
 .the prophets would have thundered against it in very 
 (different terms to these. But the mystery is now cleared 
 up, for in the code of Hammurabi we read — 
 
 If the distress has died in the house of his distrainer, of 
 
 blows or of want, the owner of the distress shall put his 
 
 merchant to account, and if he be the son of a freeman (that 
 
 ; , has died), his son one shall kill ; if the slave of a freeman, he 
 
 ,' shall pay one-third of a mina of silver, and he shall lose all 
 
 that he gave whatever it be [§ 116, cf. §§ 210 and 230]. 
 
 It thus appears that the verse under consideration 
 actually was aimed at a practice enforced by Babylonian 
 law ; and the prohibition was clearly intended as a safe- 
 guard against the possibility of its ever being introduced 
 among the Israelites. Probably we should regard a 
 number of other verses as intended to safeguard the 
 future. Numbers xxxv. 30 — 
 
 One witness shall not testify against a man that he die, — 
 
 shows us clearly that at least two witnesses were re- 
 quired in any case where a sentence of death could 
 be pronounced, but we find the general principle 
 broadly laid down in Deuteronomy xix. 15. Again, in 
 Deuteronomy xxiii. 19-20 we find a general prohibition 
 of usury, in xxi. 22-23, a command not to leave the 
 
INTER-RELATION OF LEGAL PASSAGES 115 
 
 body of a man that is hanged exposed all night, and in 
 xxv. 1-3 a precept not to exceed forty stripes in punish- 
 ment. Surely it would be wrong to regard this as new 
 law. Nobody will suggest that Moses ever sentenced 
 a man to more than forty stripes. It seems more 
 natural, therefore, to treat such passages as directed to 
 the future moulding of the law than to its condition 
 in the Mosaic age, when these principles were doubtless . 
 recognised by the courts. 
 
CHAPTER VI 
 
 THE SPIRIT OF THE LEGISLATION 
 
 It remains to bring together a few facts about the 
 spirit of the legislation. The first question that natur- 
 ally suggests itself is : How does the Mosaic legislation 
 compare with the code of Hammurabi ? My readers 
 have already had some opportunities of contrasting the 
 two laws, but it is right to insert Hammurabi's provi- 
 sions regarding one or two offences that are also dealt 
 with by the Mosaic code. It must be remembered that 
 the laws of Hammurabi are designed for a far more 
 advanced state of society than the Pentateuch. Never- 
 theless the two codes necessarily have some topics in 
 common. I select the provisions as to theft and some 
 injuries to the person. We have already seen how the 
 Mosaic laws on these subjects compare with the early 
 Roman rules. 
 
 If a man has stolen ox or sheep or ass, or pig, or ship, 
 whether from the temple or the palace, he shall pay thirtyfold. 
 If he be a poor man, he shall render tenfold. If the thief has 
 nought to pay, he shalLbe put to death [§ 8]. 
 
 If a man has caused the loss of a gentleman's eye, his eye 
 one shall cause to be lost [§ 196]. 
 
 If he has shattered a gentleman's limb, one shall shatter 
 his limb [§ 197]. 
 
 If he has caused a poor man to lose his eye or shattered a 
 poor man's limb, he shall pay one mina of silver [§ 198]. 
 
 If he has caused the loss of the eye of a gentleman's servant 
 or has shattered the limb of a gentleman's servant, he shall 
 pay half his prices [§ 199]. 
 
 If a man has made the tooth of a man that is his equal to 
 fall out, one shall make his tooth fall out [§ 200]. 
 
THE SPIRIT OF THE LEGISLATION 117 
 
 If he has made the tooth of a poor man to fall out, he 
 shall pay one-third of a mina of silver [§ 201]. 
 
 It may be added that the code of Hammurabi re- 
 cognises such punishments as branding [§ 127], impaling 
 [§ J 53]> cutting out a tongue [§ 192], tearing out an eye 
 [§ 193], cutting off a woman's breasts [§ 194], cutting 
 off hands [§§ 195 and 226] and cutting off an ear [§ 282]. 
 Comment is superfluous. 
 
 Two charges are sometimes brought against the laws ' 
 of the Pentateuch. It is said that they are barbarous, 
 and also that they are unpractical. The second charge 
 may be very briefly disposed of. We have seen that ; 
 some of the laws that are regarded as unpractical — the 
 jubile for example — actually worked. With regard to 
 the others, nobody who understands the spirit and 
 power of the Torah can doubt for an instant what the 
 answer is. Some of the provisions in question, as, for 
 example, that against taking interest, are still moulding 
 men's lives. With regard to others, such as that for 
 emancipating bought Hebrew slaves after six years, we 
 may feel certain that in some cases they operated, and 
 we call to mind the case of Sodom : " I will not destroy 
 it for the ten's sake." 
 
 So far as I am aware, the other accusation rests 
 mainly on a misapprehension of the meaning of the 
 passages dealing with talion, and I therefore proceed 
 to consider them. The first is in Exodus xxi. : — 
 
 22. And if men strive together, and hurt a woman with 
 child, so that her fruit depart, and yet no mischief follow : he 
 shall be surely fined, according as the woman's husband shall 
 lay upon him ; and he shall pay as the judges determine. 
 
 23. But if any mischief follow, then thou shalt give life for 
 life, 
 
 24. Eye for eye, tooth for tooth, hand for hand, foot for 
 foot, 
 
 25. Burning for burning, wound for wound, stripe for 
 stripe. , 
 
n8 STUDIES IN BIBLICAL LAW 
 
 The first case contemplated is quite clear : the 
 offender is to pay a sum to be determined by the judges. 
 In the second case " thou shalt give." Who is to give ? 
 Clearly not the judges, for in that case we should have 
 a plural verb. The offender, therefore, is to give a 
 "life." This does not mean that he is to die. In that 
 case we should have had some phrase like " shall surely 
 be put to death." To give a life is not the same as to 
 be executed ; and it is not for nothing that we find the 
 second person instead of the third. We need not look 
 far for an explanation. In the two verses immediately 
 preceding this law [20 and 21] we read of the case of a 
 man who smites his slave so that he die ; and we find 
 that he is not to be punished if he lingers a day or two, 
 "for he is his money'' This word "money" does not 
 mean property. It means blood-money. The loss of the 
 value of the slave is here treated as the equivalent of 
 paying ransom. There was a customary law by which 
 in cases of injury to person a pecuniary composition 
 was paid. No wonder it is possible to say " thou shalt 
 give a life." A " life " meant the ransom laid upon a 
 man for his life [xxi. 30]. We know that ransom more 
 or less replaced the actual talion and the blood feud in 
 all early societies. In this respect the course of legal 
 history was similar in all the races that have progressed. 
 We found parallels when we were considering some 
 resemblances between Roman and Hebrew law. It is 
 impossible to say on the internal evidence of the Penta- 
 
 ; teuch to what extent the practice of paying composi- 
 tion had been carried in the Mosaic age : but there is 
 one significant passage. Ransom was apparently so 
 
 1 universal that it was necessary to forbid it in two cases 
 
 of homicide : — 
 
 31. Moreover ye shall take no ransom for the life of a 
 manslayer, which is guilty of death : but he shall surely be 
 put to death. 
 
THE SPIRIT OF THE LEGISLATION 119 
 
 32. And ye shall take no ransom for him that is fled to 
 his city of refuge, that he should come again to dwell in the 
 land, until the death of the priest [Numbers xxxv.]. 
 
 An interesting illustration this, of the extreme diffi- 
 culty of dealing with a system of law that is not actually 
 working. No law can be construed by the light of 
 nature. To any modern reader who has not had a legal 
 training, the rule " He that smiteth a man so that he 
 die &c," must seem so clearly to mean that a murderer 
 is to be put to death, that he would not think any other 
 construction possible : yet the legal ideas of the Mosaic 
 age were such that ransom had to be expressly forbidden 
 in this case. 
 
 We can now understand the reason for the curious J^f 
 language of Exodus. It is quite easy to see that if twoi 
 men were fighting, and a woman who was looking on 
 were hurt, she might receive a mortal injury or she might ' 
 have an eye or tooth knocked out. But what does 
 "hand for hand" mean? And "foot for foot?" And 
 " burning for burning ? " And " stripe for stripe ? " At 
 the least, it is not obvious how she could accidentally 
 get her hand or foot cut off, and the burning and the 
 stripe would be quite impossible. And why is the law 
 expressly limited to pregnant women ? After all, they 
 would only supply a small proportion of the possible 
 and probable spectators of a fight. But, once we under- 1 
 stand that there existed a customary law which provided Jo- 
 for all usual cases of injury, we see how the Israelites of j 
 the Mosaic age would have construed the passage. If 
 the woman herself were not injured, but harm was 
 inflicted on the new life, the compensation was to be 
 assessed by the judges. But if the woman also suffered, 
 the common law was to apply, and the usual compensation 
 was to be paid. Hence the use of terms which to those, 
 who do not realise the circumstances of the age, and the 
 meaning they had come to bear, would not appear apt. 
 
120 STUDIES IN BIBLICAL LAW 
 
 The next passage is in the judgment in the case of 
 Shelomith's son. The words " life for life " occur again 
 here [Leviticus xxiv. 18], but they are applied to the 
 case of a beast being killed. 
 
 And he that smiteth a beast mortally shall make it good : 
 life for life. 
 
 Probably this merely means the value of the animal 
 or else the animal itself. The passage continues — 
 
 19. And if a man cause a blemish in his neighbour ; as he 
 hath done, so shall it be done to him ; 
 
 20. Breach for breach, eye for eye, tooth for tooth : as 
 he hath caused a blemish in a man, so shall it be rendered 
 unto him. 
 
 This judgment does not forbid ransom, and in view 
 of the passages that have already been considered, we 
 must therefore regard it as at the least permitting it. At 
 the same time it must always be remembered that the 
 money payment originally was a substitute for the 
 infliction of an actual physical penalty : and it was the 
 possibility of exacting this that acted as a compulsion to 
 the payment. The internal evidence of the Pentateuch 
 would not warrant the statement that this physical 
 penalty could not be inflicted in the Mosaic age. 
 Neither would it warrant the statement that it could. 
 
 The last passage is in Deuteronomy xix., and relates 
 to false witnesses. It does not apply in every case of 
 untrue evidence, but simply to those cases in which 
 false evidence is directed to procuring the punishment 
 of an innocent man. Here is the text : — 
 
 16. If an unrighteous witness rise up against any man to 
 testify against him of wrong-doing ; 
 
 17. Then, both the men, between whom- the controversy 
 is, shall stand before the Lord, before the priests and the 
 judges which shall be in those days ; 
 
THE SPIRIT OF THE LEGISLATION 121 
 
 1 8. And the judges shall make diligent inquisition : and 
 behold, if the witness be a false witness, and hath testified 
 falsely against his brother ; 
 
 19. Then shall ye do unto him, as he had thought to do 
 unto his brother : so shalt thou put away the evil from the 
 midst of thee. 
 
 20. And those which remain shall hear, and fear, and 
 shall henceforth commit no more any such evil in the midst 
 of thee. 
 
 21. And thine eye shall not pity; life for life, eye for eye, 
 tooth for tooth, hand for hand, foot for foot. 
 
 It is submitted that on one point the construction of 
 this passage is absolutely clear. In a proper case the 
 death penalty is to be inflicted. This dominates the 
 language of the law. There is no phrase like "thou 
 shalt give a life," but instead we find the clear "ye shall 
 do unto him &c," addressed to the whole congregation. 
 " So shalt thou put away the evil " and " those which 
 remain" admit of only one construction. In a case 
 where a man tries to murder his brother by giving false 
 evidence, this law decides that the false witness must 
 be put to death. To make the scope and spirit of the 
 law quite clear, it is best to take an illustration. 
 
 Ahab, king of Israel, desired to purchase the vine- 
 yard of one Naboth, who, however, refused to sell. 
 Therefore two worthlesss men were induced to swear 
 that Naboth had been guilty of certain crimes, although 
 in fact he was innocent. Naboth was put to death. 
 Under this law, if it had been properly applied, the 
 witnesses would have been put to death instead. 
 
 The remaining words are less easy to construe, but 
 it seems to me that they can only refer to the law of 
 talion, and that the rules as to money composition 
 would therefore apply. What is the alternative ? It 
 is to suppose that Deuteronomy, which prohibits the 
 infliction of more than forty stripes, recognises four 
 barbarous punishments, which we never meet with in 
 
 h 
 
122 STUDIES IN BIBLICAL LAW 
 
 the Bible : the cutting off of a hand or a foot, and the 
 knocking out of a tooth or an eye. Nor does the 
 language of the rest of the passage lend any colouring 
 to this view : for it is only apt, if it be regarded as 
 referring to the taking of life. It would not be pos- 
 sible, for example, when a tooth had been knocked 
 out, to say — 
 
 Those which remain shall hear, and fear, and shall hence- 
 forth commit no more any such evil in the midst of thee. 
 
 We must therefore treat the words as referring 
 simply to the case of the witness who falsely testifies 
 that his brother has done some act which would bring 
 him within the purview of the law of talion. The ex- 
 pressions must then be construed as meaning that he 
 is to suffer the penalty that would have been inflicted 
 on the man against whom he testified. In that case 
 the law means that the same fines would be exacted 
 from the false witness as would be paid by a man who 
 had done his neighbour the bodily injury to which the 
 witness falsely testified. 
 
 There is one other point to which attention should 
 be drawn. It is sometimes said that the Pentateuch 
 prescribes a merciless course of conduct towards those 
 who were not Israelites. How strangers were to be 
 treated by the courts we now know : but it is not 
 always realised how entirely unique are the mitigations 
 of war contained in Deuteronomy xx. 10-20. The world 
 never saw their like until the influence of the Bible 
 began to modify the practice of European nations. 
 
 And now how does the law of the Pentateuch con- 
 trast with Roman law ? My readers have had some 
 opportunity of comparing and contrasting the provi- 
 sions of the two systems on such topics as debt, 
 strangers, theft, deposit, and talion. The paternal 
 power was as great among the Romans as among the 
 
THE SPIRIT OF THE LEGISLATION 123 
 
 Hebrews, but the laws for the manumission of Hebrew 
 slaves find no parallel at Rome. As to the general 
 treatment of slaves, the position of the Roman slave 
 was most gruesome. A clear and vivid picture is pre- 
 sented in the following passage of Gaius : — 
 
 The law Aelia Sentia enacts that slaves who have been 
 punished by their proprietors with chains, or have been 
 branded, or have been examined with torture on a criminal 
 charge, and have been convicted, or have been delivered to 
 fight with men or beasts, or have been committed to a gladia- 
 torial school or a public prison, if subsequently manumitted 
 by the same or by another proprietor, shall acquire by manu- 
 mission the status of enemies surrendered at discretion 
 [Gaius, I. 13, Poste's translation]. 
 
 The Pentateuch, on the other hand, provides that if 
 a man knock out his slave's eye or tooth, the slave is to 
 go free [Exodus xxi. 26-27] > an d a runaway slave is not 
 to be surrendered to his master, but to dwell unmolested 
 in any town he may choose [Deuteronomy xxiii. 15, 16]. 
 The only forms of inflicting the death penalty recog- 
 nised by the Pentateuch are stoning, burning, and hang- 
 ing ; but at Rome the " parricida " — a wider term than 
 our parricide — was tied up in a sack with a dog, a cock, 
 a viper, and an ape, and thrown into the sea or a river, — 
 
 in order that even before death he may begin to be deprived 
 of any enjoyment of the elements, and that the air may be 
 denied him while alive, and interment in the earth when dead 
 [Justinian, Inst. IV. tit. 18, § 6]. 
 
 And with the burning of the daughter of the priest 
 [Leviticus xxi. 9], the worst punishment in the Penta- 
 teuch, we may contrast the case of an unchaste vestal 
 virgin who was scourged, attired like a corpse, and 
 buried alive in a small cell containing a couch, a 
 lamp, and a table with a little food, while her lover was 
 publicly scourged to death. 
 
124 STUDIES IN BIBLICAL LAW 
 
 So far as I am aware, no other system could afford 
 a comparison with the Pentateuch any better than the 
 Roman law. And so, after a hundred generations, the 
 words of Moses are more impressive than when they 
 were first uttered : — 
 
 " Behold, I have taught you statutes and judgements, 
 even as the Lord my God commanded me, that ye 
 should do so in the midst of the land whither ye go in 
 to possess it. 
 
 " Keep therefore and do them ; for this is your wisdom 
 and your understanding in the sight of the peoples, which 
 shall hear all these statutes, and say, Surely this great 
 nation is a wise and understanding people. 
 
 " For what great nation is there, that hath gods so 
 nigh unto them, as the LORD our God is whensoever 
 we call upon him ? 
 
 "And what great nation is there, that hath statutes 
 and judgements so righteous as all this Torah, which I 
 set before you this day ? " [Deuteronomy iv. 5-8]. 
 
INDEX I 
 
 PRINCIPAL PASSAGES REFERRED TO 
 
 GENESIS 
 
 
 xxii. 28 . 
 
 
 92 
 
 
 
 
 xxiii. 10 
 
 
 12 
 
 iv. 14 
 ix. 6 
 „ 8-17 
 xv. 8 
 
 .. 13 
 xvii. 3-16 
 
 „ 7-8 
 xxi. 29, 30 
 xxiii. 
 xxvi. 2-5 
 
 
 105 
 
 93 
 
 • 75-76 
 
 58 K. 
 
 58 K. 
 
 76-77 
 
 78 
 
 58 n. 
 
 ■ 46-47 
 
 69. 79 
 
 „ 11 . 
 
 .- 20-33 
 xxiv. 
 
 „ 8 
 
 ,. 12 
 
 „ 27 . 
 
 „ 28 . 
 xxxi. 12-17 
 xxxiv. 
 
 „ 10-26 
 
 
 14 
 
 . 68, 70 
 
 70-71 
 
 64 
 
 63 
 
 64 
 
 64 
 
 77-78 
 
 71 
 69 
 
 xxviii. 13-15 
 
 
 79 
 
 
 
 xxxi. 44-54 
 
 
 65-68 
 
 
 
 
 XXXV. II, 12 
 
 xlvii. 13-26 
 
 
 79 
 1 1 
 
 LEVITICUS 
 
 
 
 
 
 vi. 2 (v. 21) 
 
 
 56 
 
 EXODUS 
 
 
 vii. 32-34 
 xvii.-xxvi. 
 
 
 39-40 
 3 
 
 ii. 24 . 
 
 
 • 77. 79 
 
 xvii. 
 
 
 • 41-42 
 
 viii. 22 
 
 
 34 
 
 ,. 5 • 
 
 
 44 
 
 ix. 26 . 
 
 
 34 
 
 ,. '5 • 
 
 
 40-41 
 
 x. 21-23 
 
 
 34-35 
 
 xix. 
 
 
 92-93 
 
 xix.-xxiv. 
 
 
 69-71 
 
 ,. 9-io 
 
 
 . I4«., 92 
 
 xix. 3-5 et 
 
 Hqq. 
 
 69-70 
 
 ,, 19 • 
 
 
 92 
 
 xix. 7-8 
 
 
 47 
 
 » 27 
 
 
 92 
 
 XX. 
 
 
 70 
 
 xx. 27 
 
 
 89 
 
 xxi. 1-6 
 
 
 5, 11 
 
 xxi. 9 
 
 
 123 
 
 xxi. 2-xxii 
 
 17 (16) 
 
 107 
 
 xxiii. 22 . 
 
 
 14 K. 
 
 xxi. 2- 1 1 
 
 
 27-3 1 
 
 xxiv. 10-23 
 
 
 84-94 
 
 „ 2-6 . 
 
 
 108 
 
 „ »8 • 
 
 
 120 
 
 „ 6 . 
 
 , 
 
 • 25-31 
 
 ,, 19-20 
 
 
 120 
 
 „ 7-1 1 
 
 
 108 
 
 xxv.-xxvi. 
 
 
 . 78-81 
 
 ,. 13. 14 
 
 
 22-23 
 
 XXV. 
 
 5-16, 
 
 94-98, 107 
 
 „ 20-21 
 
 
 118 
 
 „ 2-6 
 
 
 • 13-14 
 
 „ 22-25 
 
 
 . 117-119 
 
 », 25 
 
 
 97 
 
 ., 23 • 
 
 
 88 
 
 » 34 • 
 
 
 20 
 
 ,, 26-27 
 
 
 123 
 
 .. 39-42 
 
 
 • S'l 1 
 
 xxii. 1-4 . 
 
 
 . 101-102 
 
 xxvi. 1, 2 . 
 
 
 80 
 
 .. 3 • 
 
 
 7«. 
 
 >. 3 
 
 
 78 
 
 ,, 7-9 ■ 
 
 
 IOI 
 
 ,, 9 • 
 
 
 78 
 
 „ 16, 17 
 
 
 ■ 23-25 
 
 .. 30-34 
 
 
 80 
 
 „ 18 
 
 
 . 88-89 
 
 ,, 42 
 
 
 78 
 
 „ 21 . 
 
 
 89 
 
 ., 45 • 
 
 
 79 
 
 » 25 
 
 
 92 
 
 „ 46 • 
 
 
 53. 64, 78 
 
126 
 
 INDEX I 
 
 
 
 
 
 xxix. 1 ( 
 
 txviii. 69) 
 
 53 
 
 NUMB ! 
 
 „ 10 
 
 -15 • 
 
 54-55 
 
 xvi. 
 
 !> 3 
 
 • 35-39 
 38 
 38 
 38 
 
 xxxi. 16-xxxii. 47 
 xxxi. 30-xxxii. 44 
 
 75 
 91 
 
 n 7 
 
 „ 9 ■ 
 
 
 JOSHUA 
 
 
 „ 13 ■ 
 
 • 38-39 
 
 xxi. 
 
 
 17, 21-22 
 
 ".. I4 • 
 
 39 
 
 » 18 
 
 
 18, 21-22 
 
 xviii. 20 
 
 17 
 
 xxiv. 27 
 
 
 66 
 
 xxvi. 9, io 
 
 37 
 
 
 
 
 xxvii. I— 1 1 
 
 • 98-99 
 
 
 1 SAMUEL 
 
 
 XXX. 
 
 57 
 
 
 
 
 „ 2 
 
 57 
 
 xviii. 25 
 
 
 24 
 
 XXXV. 1-8 
 
 17 
 
 
 
 
 ,. 9-34 • io 
 
 4-105, 106, 108-109 
 
 
 1 KINGS 
 
 
 >. . 31-32 
 
 118-119 
 . 98-99 
 
 ii. 26 
 
 
 18, 20 
 
 xxxvi. 1-12 
 
 ,. 27 
 
 
 20-21 
 
 DEUTERONOMY 
 
 ix. 16 
 xv. 19 
 
 
 24 
 59 
 
 '• 1-5 
 
 72 
 
 
 
 
 i. 6-iv. 40 
 
 72 
 
 
 2 KINGS 
 
 
 iv. 41-43 
 
 . 72, 105, 109 
 
 
 
 8 
 
 » 44-49 
 
 • 72, 73 
 
 IV. I 
 
 xxii. 8 se 
 
 
 v. 1 
 
 73 
 
 qq 
 
 3 
 
 v. 1 -xxvi. 19 
 
 72 
 
 
 
 
 vi. 1 
 
 • 63, 73 
 
 
 ISAIAH 
 
 
 x. 9 . 
 xi. 6 
 
 17 
 
 viii. 16 
 
 
 64, 82 
 
 37 
 
 xix. 18- 
 
 25 
 
 81-82 
 
 xii. 1 
 
 63 
 
 1. 1 
 
 
 28 
 
 „ 8-1 1 
 
 44 
 
 
 
 
 xiv. 21 
 
 40 
 
 
 
 
 XV. 1— 1 1 
 
 12-16, 113 
 
 
 JEREMIAH 
 
 
 xv. 12-18 
 
 6, 25-31, 108 
 
 i. 1 
 
 
 18 
 
 » 12 . 
 
 88 
 
 xxxi. 31- 
 
 34(30-33) • 
 
 83 
 
 xviii. 1 
 
 17 
 
 xxxii. 
 
 
 . 19, 20 
 
 » 3 
 
 • 39-40 
 
 ,, 9-1 
 
 4 
 
 82 
 
 „ 6-8 . 
 
 17 
 
 ,. " 
 
 
 62-63 
 
 „ 8 . 
 
 18 
 
 
 
 
 xix. 
 ,, 16-21 
 
 22 
 
 
 EZEKIEL 
 
 
 120-122 
 
 
 
 
 xx. 10-20 
 
 122 
 
 vii. 12- 
 
 3 
 
 96 
 
 xxi. 15-17 
 
 112 
 
 xx. 37 
 
 
 59 
 
 xxii. 28 . 
 
 ■ 23-25 
 
 xlvi. 16- 
 
 17 
 
 96 
 
 xxiii. 
 
 in 
 
 
 
 
 „ 15-16 
 
 123 
 
 
 RUTH 
 
 
 xxiv. 1-4 . 
 
 „ 6-7 . 
 
 113 
 
 . IIO-III 
 
 iv. 3-6 
 
 
 • 97-98 
 
 » 7 
 
 109 
 
 .. 7 
 
 
 ii3«. 
 
 ,, 10-15 
 
 "3 
 
 
 
 
 „ 16 . 
 
 114 
 
 
 EZRA 
 
 
 » 19-21 
 
 14 n. 
 
 ii. 23 
 
 
 21 
 
 xxv. 5-10 
 
 »3 
 
 » 62 
 
 
 22 
 
 xxvi. 16-19 
 
 74 
 
 
 
 
 xxvii. 
 
 72 
 63 
 
 
 
 
 „ 1 
 
 
 NEHEMIAH 
 
 
 xxviii. 
 
 • 68, 72, 74-75 
 
 v. 4-5 
 
 
 8 
 
 xxix.-xxx. . 
 
 72 
 
 *• 32 (33) ■ 
 
 62 
 
INDEX II 
 
 SUBJECTS 
 
 Abiram, 35-39. 
 Aden, Jews of, 86-87. 
 
 Babylonian Law and Custom, 10, 
 
 24 : see also Hammurabi. 
 Babylonian Style, 46. 
 Blasphemy, law of, 85. 
 
 Camp laws, 40-42. 
 
 Cities of Refuge ; see Homicide. 
 
 Command, don., 60-61, 62-63. 
 
 Commandment, 61-62 ; see also 
 Mitsvah. 
 
 Contract, 56-57, 58. 
 
 Conveyance of Cave of Machpelah in 
 Genesis, 46-47 ; among the Franks, 
 67 ; of Jeremiah, 82. 
 
 Covenant, 52-83 : use of the word, 
 52 «., 53 »., 77 ; importance of, 1-2, 
 52-53 ; what was a, 59, 76 ; 
 central ideas of, 54-55, 74 ; form 
 °f; 27, 55. 58 with 11, 59 ; oath, 
 part of, 58-59 ; witness — covenant, 
 59 ; language of, 59 ; token-cove- 
 nant, 59, 75-81 ; language of, 59 ; 
 pillar-covenant, 59, 65-66 ; Sinai- 
 tic covenant, 67, 68, 69-71 ; 
 Deuteronomic, 67, 68, 72-75 ; 
 land covenant, 78-81, 107 ; Noa- 
 chite, 75-76 ; covenant of circum- 
 cision with Abraham, 76-77, 78- 
 79, 80-81; in Isaiah, 81-82; in 
 Jeremiah, 82-83 > Sabbath cove- 
 nant, 77-78 ; see also Mitsvah, 
 Quasi-jurat, "Statute," Testimony, 
 " Words." 
 
 Curse, 61-62. 
 
 Curses, the twelve, 72, 74-75. 
 Customary law in Mosaic age, 45, 
 52, 118. 
 
 Date of the jural laws, 3-4, 16-22, 
 27. 3'. 33-34. 40-42, 5 8 - 7i. 82- 
 83, 94-99- 100-105. 11 3- 
 
 Dathan, 35-39- 
 
 Debt; see Jubile, Release, Roman Law 
 
 Deed, form of, 72-73. 
 
 Deposit, 56, 101. 
 
 Deuteronomy, 3, 47-49, 52-53, 54- 
 
 55,68, 71-75, I0 8, 109-115. 
 Documentary theory ; see Higher 
 
 Criticism. 
 Driver, Dr. 5, 6, 13, 17, 18, 20, 21, 
 
 22, 23, 25, 27, 30, 31, 39, 40, 48, 
 
 90, 92. 
 
 Egypt, Israelites in, 34-35, 84. 
 Egyptian documents, 63, 74. 
 Evidence, 26-27, 66-67, 76-77, 82 ; 
 see also Witnesses. 
 
 Gaius, 102, 103, 123. 
 
 Gate, meeting-place of judges, 26. 
 
 Goshen, Israelites in, 34-35. 
 
 Hammurabi, io-ii, 114, 116-117. 
 
 Hexateuch ; see Higher Criticism. 
 
 " Hexateuch, The,"by J. E. Carpenter 
 and G. Harford-Battersby, 4, 6, T2, 
 . l6 . 25. 34. 35. 38, 39. 42, 46, 69. 
 
 Higher Criticism : documentary theory 
 stated, 2-4 ; no legal evidence for, 
 5-31 ; development hypothesis, 4, 
 31 ; characteristics of the critics, 
 16. 24-25, 32-33, 34, 37-39, 42, 
 
 49-51- 
 History, 20-22, 24, 32, 42-45 ; 
 
 importance of, to exegesis and 
 
 criticism, 49-51. 
 Homicide, law of, 22-23, 104-105, 
 
 108-109, 1 18-119. 
 
 Indian Law, 86-87, 90. . 
 Insolvency ; see Jubile, Roman law. 
 
 Jeremiah's age, law of, 18-19, 20, 
 
 82-83. 
 Jubile law of debtors, 5— II ; of 
 
 land, 12-13, 95-98; generally, 
 
 12-13, '6, 98. 
 Judgment, 30, 60, 61. 
 
128 
 
 INDEX II 
 
 Judgments, the, 71. 
 
 Jural laws, 1, 30, 60-61, 71, 88-89, 
 
 106-107. 
 Justinian, 57, 123. 
 
 Korah, 35-39- 
 
 Land covenant ; see Covenant. 
 
 Land laws ; see Covenant, Jubile, 
 Levitical Cities. 
 
 Law, 44-45 ; in early societies per- 
 sonal, 85-87 ; see also Customary 
 law, Jural laws, Style. 
 
 Laws, Mosaic, not necessarily all 
 addressed to people, 47. 
 
 Legal terms ; see Covenant, Judg- 
 ment, Mitsvah, "Money," "Sta- 
 tute," Testimony, "Testimonies," 
 Torah, "Words." 
 
 Levirate, 97, 113. 
 
 Levites, 17-22. 
 
 Levitical Cities, 17-22. 
 
 Manslaughter ; see Homicide. 
 Marriage customs, 23-25, 28. 
 Mitsvah, 61, 62-64, 73. 
 " Money," 118. 
 Murder; see Homicide. 
 
 Nebelah, 40. 
 
 Oaths, 56-59, 67-68. 
 Obligatio, 57. 
 Obligation, 57. 
 
 Parallelism, 90-92. 
 Peace-Offering, Priest's perquisite in, 
 
 39-40. 
 Pentateuch ; see Torah. 
 Pillar-Covenant ; see Covenant. 
 Poetry, 90-92. 
 Poor, laws for relief of, 12-16 ; see 
 
 also Jubile. 
 Priests, 17-22. 
 
 Quasi-jurat, 68-69, 7°, 7 2 , 78—79. 
 
 Ransom, 103-104, 118-119, 120. 
 
 Recital, 73, 74. 
 
 Release, law of, 12, 14-16, 113. 
 
 Roman Law, 8-10, 67, 87-88, 101, 
 102, 103-104, 123. See also 
 Gaius, Justinian, Obligatio, Sacratio 
 Capitis, Twelve Tables. 
 
 Sabbath of years, 12-14, 16. 
 Sacratio Capitis, 105. 
 Sanctuary, central, 41-45. 
 Seduction, law of, 23-25. 
 Shelomith's son, case of, 84-94, 
 
 120. 
 Sinaitic Covenant ; see Covenant. 
 Slavery laws, 5-6, 25-30, 108, 123 ; 
 
 jubile law not applicable to slaves, 
 
 6-8, 11. 
 "Statute," 62-64, 73- 
 Strangers, 40, 84-b8. 
 Style, 34, 37-38, 45-4°. 47, 56, 68- 
 
 69, 88-94. 
 Succession, law of, 58, 86-87, 97, 
 
 98-99, 112. 
 
 Talion, 103-104, 116-117, 117-122. 
 
 Testimony, 67, 75. 
 
 " Testimonies," 52. 
 
 Theft, law of, 7 n., 101-102, 
 
 116. 
 Token-covenant ; see Covenant. 
 Torah, 64. 
 
 Torah, the, 61, 72, 11 7-1 24. 
 Twelve Tables, 9-10, 56, 93, 100- 
 
 104, 106. 
 
 Verse ; see Poetry. 
 
 War, mitigations of, 122. 
 
 Widow, interest of, in husband's land, 
 
 96-97. 
 Witnesses, law of false, 120-122. 
 " Words," 64. 
 Writing in law of Pentateuch, 27, 
 
 66-67, 69, 71 ; in law of Jeremiah's 
 
 age, 27, 82. 
 
 THE END 
 
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