xxiii. 3 was really old, one wonders that the Leviticus law does so

favour ‘the poor’. But Exod. xxiii. 3 might well be passed later to abrogate this Babylonian tendency. Exod. xxx. 15 expressly forbids the rich to pay more or the poor less. The same word for ‘poor’ occurs in all cases. Did then the early Hebrew law aim at reversing the Code’s rule that ‘poor men’, or rather ‘plebeians’, should pay less? We may suppose that the Canaanites were the _mushkênu_ in Israel. The ‘sojourners’ obviously were. But Hammurabi had neither riches nor poverty in view when he favoured the _mushkênu_. By the Tell-el-Amarna period the name had lost its exact value and become even in Babylonia more contemptuous. Later in Israel it became a name for a beggar. Did the Hebrew legislator catch the word when it only conveyed the meaning ‘poor’, and use his own term to avoid ambiguity?

The idea of God as the ultimate source of punishment is inferred as characteristic in the Book of the Covenant from Exod. xxi. 6; xxii. 8, 9, where the offender is brought ‘unto the judges’. These words are now more usually rendered ‘before God’, as there is no apparent reason why the word usually rendered ‘God’ should here be rendered ‘judges’, beyond a late opinion that such was the meaning of the phrase. This opinion is correct in so far as that analogy with Babylonia leads us to suppose that in every trial before judges the parties and the witnesses were put on oath before God. This direct appeal to God as the all-seeing Judge of men is in complete accord with the Babylonian practice, as revealed by the Code of Hammurabi. The conscience of the criminal and the fear of God’s vengeance on the perjured were in old times very powerful motives.

It is often said that the Jewish law is theocratic. So it is, when regarded as a whole and in the sense noted in the last paragraph. But this is not the attitude of the Judgements contained in the Book of the Covenant. At any rate they are not more theocratic than the Code of Hammurabi, which is extraordinarily free of religious motive. The type of a theocratic code is the Laws of Manu, a much more primitive type than the Laws of Moses. In some respects the Code of Hammurabi is practically a civil code, and so ahead of the Laws of Moses. But it must not be taken as a criterion of age that the Mosaic law is theocratic, nor pressed as a mark of primitive law. For it is theocratic mostly in a peculiar sense. The civil law of Israel comes to us embedded in a mass of religious law, and prefaced by a narrative of its production, serving to connect it with its divine author. Some portion of this framework bears a strong formal likeness to the Code of Hammurabi. This has been pointed out by S. A. COOK who, however, does not regard it as a sign of dependence.

We must, however, allow some weight, one way or another, to this likeness. Either this setting is original, or it is not. If it essentially belongs to the Book of the Covenant, that is theocratic to about the same extent as the Code of Hammurabi, and another striking similarity is added to the list of arguments for dependence. If it is not original, then the Book of the Covenant, unlike the rest of the Hebrew law, was originally purely civil unless it had a different religious setting (Babylonian or Canaanite?), and so still more like the body of the Code of Hammurabi.

We have two pictures, so to speak, with very similar art and very similar frames. In one case we know the picture and its frame are contemporary. In the case of the other, which is certainly later, both picture and frame are very like the older. If now the later frame be not contemporary with its picture, we cannot use it to conclude that the pictures are independent studies of the same subject. It gives no evidence as to its picture. If the later frame be original and contemporary, the later cannot be treated as an example of art repeating itself. The copied frame is a very significant argument in favour of the later picture being regarded as a copy too. Now it is very important to much of the critical argument that the frame is original.

LECTURE III

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPENDIX

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

I. ANTICIPATIONS OF A BABYLONIAN CODE OF LAWS.

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

II. THE ACTUAL CODE

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

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

RE-EDITIONS OF THE CUNEIFORM TEXT ITSELF.

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

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

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

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

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

III. TRANSCRIPTIONS AND TRANSLATIONS.

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

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

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

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

IV. TRANSLATIONS ALONE.

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

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

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

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

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

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

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

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

V. DISCUSSIONS.

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

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

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

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

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

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

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

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

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

SEPARATE SECTIONS.

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

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

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

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

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

THE STRUCTURE OF THE CODE.

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

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

THE PLACE OF THE CODE IN COMPARATIVE LAW.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LEXICOGRAPHY OF THE CODE.

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

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

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

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

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

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

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

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

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

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

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

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

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

THE TEMPLE ACCOUNTS.

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

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

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

In 1896 H. V. HILPRECHT published three of the tablets in the Imperial Ottoman Museum at Constantinople in his _Old Babylonian Inscriptions_,