Chapter II: Preface (2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LECTURE II

In my first lecture I tried to set out in brief some of the most striking features of the Babylonian Code of Laws due to the famous king Hammurabi, especially such as were likely to be useful for our comparison with the laws of Israel. We must, however, have a precise idea of the laws of Israel before we can institute a comparison.

Now this is by no means so easy to obtain as one might expect. It is indeed true that the laws of the Hebrew peoples, as set out in the so-called Books of Moses, have been the subject of uninterrupted and intense study by the Jews themselves for many centuries, and that not only for their antiquarian interest but as of supreme importance for religion and morals in the life of to-day. Most of us have heard of the Rabbinic writings, of the Mishna and Gemara, of the Talmud, and may even know the names of some of the famous Rabbis, lawyers, and doctors who have commented upon them. But, I fear, few of us have any clear idea of the stupendous work which they represent. Perhaps the new Jewish Encyclopaedia may give us a better idea. Christian scholars, such as the famous Dr. John Lightfoot, made much use of the treasures of the Jewish writers, but modern scholars appear to have paid small attention to this type of learning.

Nevertheless we are sometimes assured that the discussions of the Jewish Rabbis embody all the most assured results of modern criticism. Certainly they do contain an amount of material for the elucidation of the Mosaic laws which is almost bewildering in extent. When the traditional information and explanation which they furnish are freely taken into account we shall doubtless be in a far better position to understand much that is now very obscure. Certain it is that some scholars who have made a special study of this large traditional body of interpretation, such as D. H. MÜLLER, NATHAN, and PICK, have been willing to admit most striking likenesses between the Rabbinic rules and old Babylonian law. In fact, it seems to be the case that the later Jewish interpretation of the Mosaic law so closely follows Babylonian law that it may be regarded as no less a commentary on that legislation. Our task would soon be at an end if we could be sure that this traditional view was not strongly influenced by the Jewish exile, but really represented what the old Jewish law was intended to be. For it is practically indistinguishable from the Code of Hammurabi except for the peculiar usages based upon a separate religion and a progressive interpretation in favour of the criminal due to benevolence and humane sentiment.

Very little more need be said than that the Jews, with their wonderful adaptability to the customs of the land of their adoption which has always rendered them the best of citizens, readily assimilated all that was good in Babylonia while preserving also the best things in their own ancient law and jealously guarding whatever was sacred by its religious value. Such a course was not only sane and sensible; it affords a proof of the great hold which Hammurabi’s Code still had in Babylonia at the time of the Exile and much later; it sets the seal of approval on its regulations as the judgement of some of the most penetrating intellects the world has seen, and furnishes a brilliant example of a learned but not pedantic attitude which we may do well to imitate.

We shall have reason to refer presently to some of the later Jewish traditions and to appreciate their value.

It is the case that among Christians also the laws of Moses have been studied with deep interest and increasingly careful scholarship. Possibly too little attention has been paid by the modern Christian scholar to ancient tradition. At any rate, the chief part of the difficulties which we are likely to find in comparing the two legislations arise from the results of the studies pursued by orthodox modern Christian, or at any rate non-Jewish, scholars which have been carried out for the most part without reference to Jewish susceptibilities or Rabbinic interpretations.

Modern scholarship has succeeded in fixing and separating out of the Books of Moses a number of different sources or documents. In the case of the laws these may be regarded as different codes promulgated at very different dates, or in some cases mere pious wishes for future observance, ultimately worked up into a loosely combined book written in the interest of a party of religious zealots whose prominence later led to the system of thought known to us as Judaism.

We must accept these results, so far as we can get a distinct notion of them, and refer to the separate codes rather than to a single body of laws known as those of Moses. No one can venture to dispute these decisions on pain of being reckoned reactionary and obscurantist. These scholars hold the seat of authority, and it would be rash presumption to question their ruling. Nor have I any wish to do this. Yet it may be hoped that they will pardon a sigh of regret on our part that we are now unable to compare the Mosaic law as a whole with the Code of Hammurabi. It would be so much easier for the lecturer, and the indebtedness of Moses to Hammurabi so much more convincing to you. Sadly as many have lamented the tearing of the great law-book of Moses into pieces as rendering it a mere thing of shreds and patches, they may take comfort that its present condition renders it much harder to recognize the characteristic texture of the Babylonish garment.

For now, when one fancies he can discern a surprising likeness between some clause in the Code of Hammurabi and some verse in the Bible, he is wise to keep his surprise to himself until he has procured and studied the latest critical subdivision of the laws of Israel and satisfied himself to which source or sources his verse belongs. Then one has to ransack other authorities to know whether this ruling is one which is widely accepted, and even more important, whether it had been independently reached or was constructed with an eye to the very likeness to Babylonian law which it dreaded to acknowledge.

Consequently we have to be very careful to-day. We cannot use our comparisons, even if they should suggest identity, to restore to more ancient dates the Mosaic items which seem to be most closely in accord with Hammurabi’s laws. For here tradition itself imports many difficulties. If we set Moses the lawgiver at his old place in history, just before the entrance of the Israelites into Canaan, and accept the traditional synchronism of Abraham and Amraphel, then if we accept the modern identification of Amraphel with Hammurabi we are landed in this difficulty: the Hammurabi Code is thus as much older than the Mosaic law as Abraham is before Moses. On the authority of Moses himself that means 430 years. Now the Babylonians reckoned 650 years from the death of Hammurabi to the death of Kadashman-Ellil, who was corresponding with Amenophis King of Egypt while that king was still sovereign of Palestine, and therefore before Moses. This is the lowest figure yet suggested based on documentary sources, and gives at least 700 years between the two codes. How can we reconcile the disparity in dates?

The Higher Critics do not mend matters. They would bring down the date of the early Mosaic laws much later, necessitating a period of more than a thousand years between the two codes. It would take hours to argue out the merits of various systems of chronology, and the truth probably is that we have not yet recovered reliable data to fix either Babylonian or Biblical chronology with sufficient accuracy. Babylonian chronology is, however, in much the better state, and late rulings make the death of Hammurabi fall somewhere near 1916 B.C. But how we are to reconcile such a date for Abraham with the Biblical data is a knotty question to which I can contribute no help to solution.

We have here made some assumptions which may be all wrong. I am often asked with much concern whether Hammurabi really is Amraphel. Now that is a question which cannot possibly be answered until much else has been answered first. Hammurabi we know; his life and reign are as well or better known than those of the Saxon kings of England. But who was Amraphel? All we know of him is contained in the fourteenth chapter of Genesis. He is there said to be King of Shinar. If Shinar in that passage means what it clearly means elsewhere, he was a king of Babylonia, or at least of some part of that land for which Shinar is used as a synonym. But even if Shinar does not certainly mean Singara, part of Assyria, it could quite well be a part of the Mesopotamian area with which the early Israelites became acquainted, and so transferred its name to all Babylonia. But Hammurabi is never said to be King of Shinar, nor of any land but Amurru, Akkad, Elam, &c., or Sumer. The latter name means South Babylonia, where Rîm-Sin of Larsa maintained his supremacy in spite of Hammurabi until his thirty-first year. Till then no one could call Hammurabi King of Sumer, and then it is certain he could be no ally with Rîm-Sin. Hammurabi was, however, always King of Babylon. He could hardly have been called King of Shinar by any one who knew anything about his history.

How comes Hammurabi’s name to be rendered by Amraphel? We know that his name was variously rendered in cuneiform, being a foreign name to the Babylonian scribes. But they never spell his name as ending in _l_. It has been suggested that one character which denotes _bi_ and can also be read _bil_ may have misled some Hebrew writer who transcribed the cuneiform account which he found among the archives of some ancient city in Palestine. There is nothing whatever improbable in such ancient cuneiform records being kept. The discovery of the Tell-el-Amarna tablets proves that the kings of Palestine before the Israelite invasion wrote to their neighbours far and near in cuneiform and in the Babylonian language, and also that they spoke a language closely related to Hebrew. But there is no evidence that they misread cuneiform. Let us go on with the assumptions supposed to have restored the credibility of the fourteenth chapter of Genesis. The first point has been that, assuming a cuneiform record to be translated by a Hebrew writer (? Moses) who knew some cuneiform Babylonian, that writer blundered into misreading the name of one of the most celebrated kings of Babylon, with whose history he must have been little acquainted and whose name he found written in a way to which there is no known parallel. Further, he called him King of Shinar. No tenable suggestion has yet been made as to what cuneiform signs he rendered by Shinar. There also he must have found something to which there is no parallel in the native titles of Hammurabi. There is not a single reason in anything said of Amraphel to suggest anything properly said of Hammurabi, except that the names have two out of four letters in common.

But we are told that this identification is supported by the identification of Rîm-Sin of Larsa with Arioch of Ellasar. Rîm-Sin and Arioch have only one letter in common, though Larsa and Ellasar have three. It is a perfect triumph of ingenuity to identify Rîm-Sin and Arioch, and it has been done on various suppositions. But it is also clear that on no supposition was a Hebrew right in reading Rîm-Sin as Arioch, nor has the former name been yet found written in the form which he has been supposed to have so misread. The confirmation of one blunder turns out to be the assumption of another as bad or worse. But the others, Chedorlaomer King of Elam and Tidal king of ‘Nations’, are also accounted for by a series of misreadings either in cuneiform or out of it into Hebrew or in Hebrew. Grant, then, all that is claimed for this astounding blunder-exegesis. Amraphel was meant for Hammurabi by a man who persistently misread cuneiform. The cuneiform account being reliable history, we can reconstruct what it said about Hammurabi and Rîm-Sin with two somewhat vague allies in Palestine. But what credence are we to give to this Hebrew writer’s reading of cuneiform in the case of the name of Abraham? At what period of Hammurabi’s reign was an alliance with his life-long enemy Rîm-Sin likely or even possible? When did either make an expedition to the West under the suzerainty of Elam?

But we might consume hours discussing each thread of the web of fancies which some modern scholars have woven over and about the fourteenth chapter of Genesis. There is no mention in Babylonian or Assyrian documents of any one of the persons there named, nor any event recorded similar to those there placed. This fact neither confirms nor contradicts the Hebrew narrative. The doubts thrown on the historicity of the chapter by higher critics were based on arguments which, sound or not, are in no way touched by any cuneiform texts.

So our question must be put differently. It should be: Was the writer of the fourteenth chapter of Genesis of opinion that Abraham was a contemporary of Hammurabi? I am not sure that he ever heard of Hammurabi or knew who he was. The whole story, if reliable, may apply to some other kings than those usually supposed, and this would suit what little we know of chronology much better. It is precisely the identification of Amraphel with Hammurabi which professedly rehabilitates the fourteenth chapter of Genesis, but at the expense of other Biblical statements equally important. It is always well to distinguish the statements of archaeologists and Assyriologists on unrelated subjects from the results of science. No matter how distinguished an Assyriologist may be, his opinion on other matters than Assyriology cannot be laid to the charge of that branch of knowledge. The statements made in the fourteenth chapter of Genesis may yet be shown to be affected by Assyriological research, but most of the recent speculations about them deserve neither the name of Archaeology or Assyriology.

The effect of modern criticism is to make us cautious in another direction. I have hitherto spoken of the Laws of Moses, and I shall continue to do so throughout my lectures. But I trust you will not misunderstand my position. To speak of the Laws of Moses is simply to use the title which was given to them before the rise of modern criticism and by which they are still most widely known. It does not necessarily assume that any one ever existed at all like the Moses described in the Old Testament. Some regard Moses as the name of a mythical hero—a national ideal into whose personification were run all the mythological material which the Hebrew writers deemed appropriate. This need not be the same thing as to deny absolutely the personality of Moses; for another great conqueror of men, Alexander the Great, most assuredly lived, and one clear proof of it, if we had no other, is that his deeds so impressed men that the Arabic historians ascribe to him just as many mythical stories as they know. You have only to read A. JEREMIAS’S _Old Testament in the Light of the Ancient East_ to see how almost every incident in the life of Moses may be paralleled by some astral _motif_ in the mythical story of other ancient heroes or demigods.

But the effect of modern criticism, astral theory, comparative mythology, &c., on the history of Moses leave him much like a lump of sugar in a cup of tea. We know it was there because the tea is sweet, but details as to size or shape are now very unreliable. Nor does Assyriology help us much, for it never mentions or refers to Moses any more than it does to Abraham, or to Israel even until the days of Shalmaneser, 859-825 B.C.

In speaking of the Laws of Moses then, the use of the word Moses is not meant to imply any opinion or to prejudice any question as to the personality or history of the lawgiver or the date of the law. It is used solely as a convenient periphrasis for the current Hebrew lawgiver, just as Hammurabi may be taken as a periphrasis for the Babylonian legislator. That the Babylonian king originated all or even any of the laws enacted in his Code is not asserted. But the historical case of Hammurabi does remove all _a priori_ improbability that a Hebrew legislator could draw up a code of laws at a much later date. Further, it should make us beware of arguing anything from the absence of mention in such documents as have come down to us, for, until the excavation of his monuments, no one among modern scholars had guessed his name or surmised his existence.

This analogy, while it forbids us to deny the existence of Moses, does not show that any or all of the laws ascribed to Moses were in any sense due to him. But that a leader in the position to which tradition assigned Moses could perfectly well promulgate a code of laws as full and complete as the whole Mosaic law, even for a people in the primitive state of society in which Israel is often supposed to have been at the Exodus, is obvious. He had only to avail himself of the knowledge of cuneiform, available at that time both in Canaan and in Egypt, and import copies of the Hammurabi Code from Babylonia if they were not at hand where he then was. He could exercise his judgement as to what would be suitable for his people, add what he chose, and reject what he disliked. That he did this or anything like it is not asserted, but it would be so natural for any one in his position then that we have no excuse for surprise if we should find indications of his having done exactly that.

Still, nothing depends in our comparison of the Laws of Moses with the Code of Hammurabi on our knowledge of the personality or circumstances of Moses. Much would depend on how much of the Laws of Moses we should consider to be his. In a similar way, the use of such terms as the Book of the Covenant, Leviticus, or Deuteronomy, The Priestly Code, and the like, neither implies nor denies the appropriateness of the terms nor any adhesion to any theory of their source or date. They must be regarded as merely names for more or less definite pieces of legislation. That the balance of argument is in favour of assigning to them the extent usually assigned to them by Old Testament critics may be granted for purposes of comparison. It is an opinion which may not be shared by all. But it is not by any means essential to our comparison that any one of the views now held about any of them should be final.

Thus it is enough to grant that the Book of the Covenant is the sole relic of the earliest Hebrew legislation and that the rest may be regarded as later development. In that case, however, it is incumbent on those who hold the theory of this development as an evolution on native soil to show intelligibly what influenced the particular form which that development took. Our comparison may suggest that if this supposed later law be really not of the Exodus period also, and not a product of the same mind which modified Babylonian law into the Book of the Covenant, yet its likeness to Babylonian law excludes the idea of a free uninfluenced development. We may hold further that early or late Babylonian influence is still there. And we must account for its persistent influence. On the supposition of its being later than the Book of the Covenant we may be inclined to hold that it was adopted, not directly from Babylonia, but from the relics of pre-Israelite Babylonian influence on Canaanite law.

It may be asked at once—what do we know of Canaanite law? Confessedly very little; but so far little attempt has been made to inquire into the subject. Scholars have been too ready to endorse the judgement of the old Jewish writers who denounced all Canaanite usages. As yet no documents of Canaanite production have been found, unless we include those of near neighbours like the Phoenicians, Moabites, and Northern Syrians. We may deduce something from the Old Testament, but that is a hostile source. A certain amount of information may be collected from the Tell-el-Amarna tablets, which supply evidence for times before the Israelites entered Canaan. Much of the law or custom witnessed to by later times may really be very old. Some scholars of late have argued with great force that the First Dynasty of Babylon were not only Amorites but came into Babylonia from Canaan. There were Amorites left in Canaan when the Israelites settled there. If these were of the same stock, much that in the Code of Hammurabi marks change from the old settled Babylonian Semitic law may be due to a Canaanite source. The subject of the Amorite characteristics, apart from their peculiar proper names, has as yet received next to no attention. The researches of Macalister on Palestinian soil will be awaited with great interest, as he appears to have recognized such distinct characters about his Amorite finds as to enable him to identify them as such without hesitation. He will, it is to be hoped, soon tell us something of their civilization. Gradually, no doubt, we shall be able to tell what was the exact character of each of the peoples in Canaan; and in the end the Code of Hammurabi may prove to be the best witness we have to the Canaanite law.

The Laws of Moses were once, and in some quarters still are, supposed to be all contemporary with that great national hero and lawgiver, and to form a complete body of law imparted to men by Divine inspiration. The Jewish commentators, however, of old treated this view with considerable freedom. Modern scholars, who have devoted two centuries to a critical study of the Pentateuch, have lately gravitated towards a fairly definite theory implying the existence of several codes, so to speak, and those of very different dates, all much later than the time of Moses. As experience shows there is very little permanence about the critical views, we had best confine ourselves to the latest presentation. We need not trouble to inquire into the merits of the earlier critical theories, and may leave their refutation to the last writer on the subject. We may take two good examples for our purpose. Mr. S. A. COOK in his excellent work _The Laws of Moses and the Code of Hammurabi_ assumed the critical view of the Pentateuch as then presented, and made the most successful defence of the originality of the Mosaic Law yet attempted. It will be noted that one of the so-called ‘destructive’ critics made a most vigorous defence of the uninfluenced character of the Mosaic fragments adjudged by that school to be early. Naturally so; for such critics it is vital to maintain the exclusion of external influence. There is no criterion of date for them if the orderly continuous evolution along well-known lines can be supposed to be overwhelmed by a catastrophic influence from without. The history of the development being unknown or rejected in favour of a theoretical reconstruction upon lines evolved out of the supposed results of comparative law, religion, or the like, it was delightful and easy to build up a purely imaginary self-consistent view of the order in which ideas developed or evolved. The consistence of the view impressed its authors as proof of reality. There was no history to test the reconstruction by except such as could be brushed aside as unreliable because inconsistent with the view. But some late things, dated as late upon this theory, turned out to be a thousand years older than the early ones, and so the almost forgotten maxim ‘what is primitive need not be old’ had to be revived. For the evidence of the Hammurabi Code had to be rebutted anyhow.

It is most remarkable that the champions of the traditional view never seized upon the Code as a weapon to beat the critics with, while the Rationalists made a good show of learning and even indulged in argument on the matter. But after the dust of controversy cleared off it was perceived that the Code was a new fact to be reckoned with, neither attacked nor minimized nor exploited, but studied and respected. As it had surprised and even disconcerted the lawyers, so it had gradually compelled divines to reconsider.

A work which freely accepts the critical division of the Hebrew laws is PROFESSOR C. F. KENT’S book—_Israel’s Laws and Legal Precedents_ in the _Old Testament Student Series_. If any modification of critical views may have been thought necessary as a result of the new material provided by the Code of Hammurabi, it is here tacitly but fully allowed for. Further study may be expended on the comparison and somewhat modified views may have to be taken, but the nature of the questions involved is clearly and concisely shown in this work.

Were it possible to institute the comparison between the Code of Hammurabi and the whole Hebrew legislation treated as one indivisible body of laws, it would be much less difficult than when a set of regulations are picked out as early and treated as the only rules which deserve to be regarded as in the remotest sense Mosaic, while all else is treated as later and scarcely to be regarded as law at all, but merely pious wishes or aspirations. By such a careful selection there is not only very little to compare, but the very things ruled out as late or unhistorical aspiration on account of their relatively high tone are just those most like the Babylonian. On such principles with criteria so carefully selected to rule out all disagreeing evidence a verdict is easy to attain. It is the fact that these criteria were invented before the Code of Hammurabi was dreamt of, but it does afford a very strong test of them and should lead to some revision. The critical theory is now so firmly rooted in the minds of all scholars who are not allowed in youth to imagine any alternative that we too must accept it or be lost in a perfect morass of unintelligibility. Only we ought to remember that in so doing we make the comparison as difficult and complicated as possible.

Accepting the present division of the Hebrew laws it is possible to divide the periods of Babylonian influence on Israel correspondingly. The conclusion to be drawn is that Babylonian influence was strong in the case of the earliest Israelite law perhaps through common Semitic custom, recalling that Abraham traditionally came from Ur of the Chaldees through Haran, a Babylonian Province, to settle there under strong Babylonian influence where Babylonian language and writing were still used down to the time of the Exodus. The impression of Babylonian is said to be less prominent in later codes until after the Assyrians, whose civilization was specifically of Babylonian origin and type, had held Palestine vassal for two centuries. The Exile was to Babylon itself, and Babylonian influence is naturally strongest after the Return from the Exile, and even more powerful on the Jewish doctors of later days, many of whom continued to live in Babylonia.

Seeing, however, that there is not yet full and final acceptance of critical views as to the exact classification of the Hebrew laws into separate codes, and that my audience is probably not completely familiar with either the separate codes in themselves or their dates, anything like a complete comparison of the Laws of Moses with the Code of Hammurabi is impossible without first at least sketching the character of each separate code. For comparative purposes we may begin with the earliest and see how it compares with Babylonian law, for the rest what has already been compared need not be repeated, but as it is necessary to limit our time I must leave all critical reasons for assigning a passage to a particular stratum to be consulted in PROFESSOR KENT’S volume and the extended literature which he names.

The usually accepted critical views of the sources of the Pentateuch regard the Book of the Covenant as the oldest code of Hebrew law now preserved to us. What law the people obeyed before we are not told, but it is obvious that they were not without law. Some scholars, attaching great weight to the traditions of the patriarchs and the implications of their story as to the growth of the people of Israel, assume that before the adoption of the Book of the Covenant they were nomad pastoral folk, and obeyed much the same customs as the Bedawin Arabs of the present day. For such a standpoint the late PROFESSOR W. ROBERTSON SMITH’S works on Semitic civilization, religion, and law are simply indispensable. Here, if anywhere, we can find a clear idea of common Semitic custom, so often appealed to to account for the similarities between Jewish law and the Hammurabi Code. But other scholars look on these narratives of the patriarchal life with deep suspicion as being a late attempt to sketch, in the light of a writer’s knowledge of what the nomads of his day were like, an instructive and edifying ancestral background for a set of very dissimilar tribes or clans, whom some political necessity led to amalgamate into the Hebrew people. A great deal in our research naturally depends upon our attitude to the questions, ‘Was Israel ever in Egypt?’ or ‘Was only one party of them ever there?’ Or again, ‘Was the Book of the Covenant promulgated at the unification of the component clans, or did it grow up long after?’ All such and many similar questions we must lay aside, as we start with the Book of the Covenant as accepted Israelite law.

We cannot suppose the Book of the Covenant preserved in its original state. Even if we suppose it was promulgated solely to decide those cases on which conflicting usage was causing disturbance, say between nomad Israelites settling down and the long settled Canaanite town dwellers; no one can be prepared to claim that it is complete. There must have been more of it. What we have now preserved may have been cut down to present limits for various reasons. It may be that later legislation superseded some of its regulations which later writers would thus think not worth recording. If the Code had been embodied in a document, that source may have become fragmentary in some way by the time the compiler of Exodus rescued it from oblivion. A careful perusal of the laws of Moses as arranged in their strata, by PROFESSOR KENT for example, will show that Hebrew writers had no hesitation in repeating earlier legislation. Hence we cannot argue that no more was preserved solely because it was embodied in later legislation.

Nor can we feel sure that no additions have been made to it. Some clauses seem to be very incongruous in their present context. This phenomenon, however, is not entirely absent from the Code of Hammurabi, which certainly has not been interpolated. But we must start on the Book of the Covenant, as critics have rescued it from its surroundings and set it down for us.

At once an external feature strikes us. In the Book of the Covenant many have discerned a systematic arrangement of the laws in pentads or decads. The Ten Commandments at once occur to one’s mind as a parallel. What is the significance of this partiality for five and ten? We are expressly told that the Ten Commandments were on two tables. We should not be surprised had there been seven. Some will think the human equipment of five fingers led to the adoption of five as a convenient method of remembrance. In some such way five or ten may have conveyed the idea of numerical completeness. Unfortunately the division of the laws made by PROFESSOR V. SCHEIL in his _editio princeps_ of the Code is both arbitrary and inaccurate. No one has yet ventured to revise the numbering of the sections into which he divided the text of the Code; though several scholars have pointed out the inconsistencies. The lecturer, however, was struck by the fact that a more natural division at once shows an arrangement in _pentads_; and lately PROFESSOR D. G. LYON has worked out this idea, as can be most conveniently followed in the rendering of the Code given by PROFESSOR R. W. ROGERS in his _Cuneiform Parallels to the Old Testament_. Such an attempt will be resented by some as a purely subjective attempt to work up a likeness to the Mosaic laws and disputed accordingly. But the lecturer was led to it in the beginning solely by the fact that SCHEIL’s division did not agree with that made by the Babylonian scribes in the fragments of their copies which have survived. These divisions had no justification on the stela found at Susa, which divides only lines and even occasionally cuts a word in two. It shows no indication where a particular law begins or ends. Hence the Babylonian scribes, as all modern scholars, have had to divide as their common sense dictated. But the text on the stela was certainly copied from a clay tablet which may well have shown division-lines between the laws. At any rate, the divisions adopted by the Babylonian scribes, even if not original, have great weight as embodying an independent tradition among scholars who surely knew the meaning and connexion of the successive regulations in a very authoritative way. That their ruling does not agree with PROFESSOR SCHEIL’s where we can compare them shows that his division is not essential and may be neglected. Unfortunately our fragments of later copies do not help us often, and are too few to give us a canon upon which we can rely when we need it most, and we can rarely be sure that the division we propose was that of the original. Nevertheless there is great verisimilitude about PROFESSOR LYON’s proposals, and it is a very striking likeness between the Book of the Covenant and the Code of Hammurabi that both adopted a division of laws into groups of five. We cannot press the argument too far, but the Roman Law at any rate shows that this arrangement is not a logical necessity nor a psychological demand of early legislation.

The critical account usually given of the Book of the Covenant is that it embodies the consuetudinary law of the early monarchy. It is regarded as embracing the formulated decisions which had gradually accumulated among the people up to that age. It is admitted that it, or at any rate parts of it, may well be older than the narrative (E.) in which it was incorporated. Its place in the scale of civilization is estimated by the fact that it imposes many restrictions on the arbitrary action of the individual, while it retains the _lex talionis_. Further, prominence is sometimes given to the fact that God is regarded as the immediate source of punishment. It is styled theocratic law, but breaks away from the purest type of such laws. The Code of Hammurabi goes further in the direction of purely civil enactment.