i BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND THE GIFT OF 1891 B..3irfea.fla.. adAnifo. % ....^_- Cornell University Library HN10.S4 S29 ^"^^iiMSmiiMfiSI,'?'^''"" °' *'16 primitive olin 3 1924 030 258 317 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030258317 THE SOCIAL LEGISLATION OF THE PRIMITIVE SEMITES THE SOCIAL LEGISLATION OF THE PRIMITIVE SEMITES BY HENRY SCHAEFFER, Ph.D. Member of the American School for Oriental Study and Research, Syria, 1908-09 NEW HAVEN : YALE UNIVERSITY PRESS LONDON : HUMPHREY MILFORD OXFORD UNIVERSITY PRESS MDCCCCXV S 4^5 %Z07. COPTEIGHT, 191B BY Yale Univehsity Pbess First printed, September 1915, 1000 copies TO MY WIFE'S FATHER PEEFACE The following work has grown out of a thesis presented in 1912 to the Faculty of the Graduate School of the University of Pennsylvania in partial fulfilment of the requirements for the Doctorate. The author does not pretend to great originality in the views set forth in this volume, as will be apparent from the numerous references in the footnotes. However, it is but fair to say that the present writer was frequently obliged to choose his way between conflicting theories and arguments, and to collect the scattered rays of light from various sources. An endeavor has been made to present as clearly as possible the leading facts of a most interesting subject. For obvious reasons, the transliteration of well- known Hebrew words, especially proper names (except Jehovah ^ Yahwe, pronounced *Yahvay')> is in substantial agreement with the established precedents of the English Authorized Version. The system of transliteration employed in the case of other Semitic terms is almost identical with the one proposed by the International Oriental Congress (1894), as well as by the Royal Asiatic Society (see Appendix, Jour. Roy. Asiat. Soc, 1896, 1912). The kind attention of readers is invited to the list of principal abbreviations, to the index of biblical references, and to the index of subjects. My thanks are due to Professor Morris Jastrow, Jr., and Assistant Professor James A. Montgomery of the University of Pennsylvania, for valuable sug- viii PREFACE gestions and criticisms. I would also gratefully acknowledge the numerous courtesies and helpful suggestions which I owe to Professors Albert T. Clay and Charles Foster Kent of Yale University, to Professor George A. Barton of Bryn Mawr, to Professor William J. Hinke of Auburn, to Dr. Cyrus Adler of Dropsie College, to the late Professor Eobert Francis Harper of the University of Chi- cago, and to Professor Herman V. Ames, Dean of the Graduate School of the University of Pennsyl- vania. For assistance in proofreading, I am greatly indebted to Drs. M. Willard Lampe and Frank M. Urich. Finally, I have the honor to dedicate this book to George Kessler, Esq., my wife's father, as a token of regard and esteem. Hbney Schaepfeb. Philadelphia, April, 1915. CONTENTS CHAPTER I Matriaeoht Kinship and the distribution of property — Survivals of matriarchy — Nature of the evidence — Mother- kinship in Arabia — Babylonia 1 CHAPTER II Patriarchy Transition from maternal to paternal relationship — Eights of patriarchal head and Roman patria potestas — Patria potestas in Arabia and Baby- lonia — Patronymic group and its constituent members — Property rights of patriarchal head — Term ia'al — Babylonian bel — ^Arabic ha' I — Ba'al marriage — Property rights of women in Israel, Babylonia, and Arabia — (1) Wives — (2) Daugh- ters — Primogeniture among the Hebrews and Babylonians — Its absence among the Arabs — Probable explanation for inalienability of paternal property — ^Ancestor worship in Israel, Babylonia, and Arabia — Sons of concubines in Israel, Baby- lonia, and Arabia 7 CHAPTER III Agnation In default of sons the brother of the deceased has first claim to estate— Levirate — Legal forms — Origin and purpose of levirate — Polyandrous con- dition of Arabian society before Islam — Levirate presumably unknown in Babylonia 57 X CONTENTS CHAPTEE IV The Gael, oe Next of Kin History of the term — Transition from the avenger of blood to a vindicator of family rights — Jere- miah, as the chief agnate, has the right of pre- emption — The purchase-deed — Amount paid for the field — Land values in Babylonia — Eedeemer — The Babylonian right of redemption — The wali of Arabic literature 66 CHAPTER V Slavery Adopted male slaves entitled to succession — The insti- tution of slavery and material progress — Concen- tration of property under Solomon and its effects — Laws for enslaved debtors and their enforcement — Slavery in Babylonia and Arabia . . 85 CHAPTER VI Interest Interest on money or victuals loaned to impoverished Israelites prohibited — Lending to the poor of the nature of a charity — Distinction between neshek and tariit — Loans in Babylonia — ^Eates of inter- est — ^Arabic riia 113 CHAPTEE VII Pledges and Security Legal checks upon the pawnbroker's claim — Statutes of Exodus and Deuteronomy not observed — Mort- gages — Babylonian pledges — Arabic rahn 128 CONTENTS xi CHAPTER VIII The Socul Problem as Viewed by the Prophets Elijah — Elisha — Amos — Hosea — Micah — Isaiah — Jeremiah — Ezekiel — Zechariah — Malachi — The social problem and the concentration of landed property 141 CHAPTER IX Poor Laws Regard for the poor among the Hebrews, Babylon- ians, and Arabs — Protective measures — Tear of release — Provisions of the law evaded — Prosbul . . . 149 CHAPTER X Sabbatical Year Leviticus provides for a common septennial fallow year — No indication of its observance until the days of Nehemiah and the Greek period 161 CHAPTER XI The Tear op Jubilee Restoration of ancestral possessions — Redemption of lands before the jubilee — Theory of land tenure — Revival of the ge'ulla — Periodical redistribution of small holdings — Distinction between city prop- erty and farm lands — Levitical cities inalienable — Common pasture lands — The law of jubilee and the ancient clanships or village communities — Traces of communism in Babylonia, Arabia, and modern Palestine 165 xii CONTENTS CHAPTER XII Ezekiel's Plan op Allotment Boundaries — Tribal possessions — Resident aliens — Possible explanation for arrangement of tribes — Sacred oblation — Temple — Sons of Zadok — Reve- nues of priesthood in general — The Levites and their revenues — The city and its common lands — Crown lands — Position of prince in theocratic state — ^Diagram of Ezekiel's plan of allotment. . . 194 CHAPTER XIII Taxation and Tribute Taxation before regal period unknown — Reign of Saul — ^Rights of kings — David — Solomon — For- eign tribute — State treasury — Land tax — Priest- hood exempt from taxation — Antioehus the Great — Trade tax — Collection of taxes — The Mac- cabean period and the question of immunity from taxes — Roman tribute — Sacred tributes — First- born — Firstlings of flock and herd — First-fruits — Tithes — Income of Levitical priests — Temple tax 206 CHAPTER XIV The Development op Individual Landownership IN Israel Group ownership — Right of conquest — Transition to agricultural, community life of Canaan — Prefer- ential right of personal labor — The institution of private property and the regal period — Survivals of an earlier conception of property 228 PRINCIPAL ABBREVIATIONS EMPLOYED AA^. Meissner, B. E.: Aus dem althahylonischen Becht. Der Alte Orient (1905), vol. VII, pt. 1. AM.B. Kohler and Peiser: Aus dem Bahylonischen Bechtsleben, I-IV. Leipzig, 1894-1898. A.D.D. Johns, C. H. W. : Assyrian Deeds and Docu- ments, I-III. Cambridge, 1898-1901. A.J.8.L. American Journal of Semitic Languages and Literatures. B.A. Delitzsch and Haupt: Beitrdge zur Assyri- ologie und semitischen Sprachwissenschaft. B.A.L.C.L. Johns, C. H. W. : Babylonian and Assyrian Laws, Contracts and Letters. Charles Seribner's Sons, copyright 1904. B.A.P. Meissner, B. B. : Beitrage zum althahylon- ischen Privatrecht. Leipzig, 1893. B.E. Babylonian Expedition of the University of Pennsylvania. Series A: Cuneiform Texts. C.H. Harper, R. F. : Code of Hammurabi. The University of Chicago Press, copyright 1904. G.T.I. Stade, B. : Geschichte des Volkes Israel. 2 vols. Berlin, 1887-1888. H.A. Nowack, W. : Lehrbuch der hebraischen Archa- ologie. 2 vols. Freiburg, 1894. HA.^ Benzinger, I. : Hehrdische Archdologie. Ed. 2. Tiibingen, 1907. H.K.A.T. Hand-Kommentar zum Alten Testament. H.W.B. Delitzsch, F. : Assyrisches Handworterhuch. Leipzig, 1896. H.W.B. Gesenius, W. : Hehrdisches und Aramdisches Handworterhuch. Leipzig, 1905. xiv PEINCIPAL ABBEEVIATIONS EMPLOYED I.L.L.P. Kent, C. F. : Israel's Laws and Legal Prece- dents, in Student's Old Testament. Charles Scribner's Sons, copyright 1907. K.A.T. Schrader, B. : Die Eeilinschriften und das alte Testament. K.B. Schrader, E. : Keilinschriftliche Biiliothek. K.H.A.T. Kurzer Eand-Commentar zum Alien Testa- ment. L.M.C.H. Cook, S. A. : The Laws of Moses and the Code of Hammurabi. London, 1903. O.L.Z. Orientalistische Litteraturzeitung. P.A.O.S. Proceedings of the American Oriental Society. P.E.F. Palestine Exploration Fund Quarterly State- ment. London, 1869-1913. R.A.H. Wellhausen, J. : Beste arahischen Heidentumes, in Skizzen und Yorarheiten, vol. 3. Berlin, 1887. B.B.A. Jastrow, M., Jr. : Religion of Babylonia and Assyria (1898) ; Die Religion Babyloniens u. Assyriens. R.B.A. Eogers, R. W. : Religion of Babylonia and Assyria (1908). 8.B.O.T. Haupt, P. : Sacred Books of the Old Testament. S.I.J.F. Bertholet, A. : Die Stellung der Israeliten und der Juden zu den Fremden. Freiburg, 1896. S.V.I. Buhl, F. : Die Sozialen Verhdltnisse der Israel- iten. Berlin, 1899. T.A.N. Clay, A. T. : Documents from the Temple Archives of Nippur, in B.E., XIV. Z.A. Zeitschrift filr Assyriologie. Z.D.M.G. Zeitschrift der Deutschen Morgenldndischen Gesellschaft. Leipzig, 1847-1913. THE SOCIAL LEGISLATION OF THE PRIMITIVE SEMITES , CHAPTER I MATKIAECHY It is not in the plan of this book to give a detailed account of the structure of primitive society. At the same time a knowledge of the salient features of kinship as reflected in the biblical records is of first importance because of their direct bearing on the subject of property and its distribution. Property rights are necessarily determined by relationship. Sociologists have long maintained that the met- ronymic group represents an earlier form of social integration than patriarchy.^ Under the maternal system the mother takes precedence of the father in the determination of kinship. Names are given to the children by the mother. This virtually implies that the children are henceforth looked upon as belonging to the mother's clan. As the nearest of kin the 'maternal uncle' occupies a position of supreme authority over the mother and her chil- dren. Inheritance is from brother to brother and from maternal uncle to nephew.^ Survivals of matriarchy are to be met with in some of the oldest portions of the Pentateuch. Wellhausen observes that the J document may be distinguished in many cases from the priestly code in that the former reckons descent through the ' Giddings, F. H., Principles of Sociology, 158 f . ^Wellhausen, J., Die Ehe iei den Arabern, Gotting. Gel. Nach- ricMen (1893), 474 f. 2 THE SOCIAL LEGISLATION mother ; the latter, through the father.^ The exist- ence of ancient words denoting relationship derived from the mother points to a primitive kinship through the mother.* It is but reasonable to sup- pose that female tribal names, such as Hagar and Keturah, Leah and Rachel, Bilhah and Zilpah, owe their origin to a rule of female kinship.^ Names are given to the sons of Jacob-Israel by Leah and Rachel, the wives of Jacob.'' A like prerogative is accorded the mother in Judg. 13 : 24 ; 1 Sam. 1 : 20 ; 4 : 21. Even women in attendance may exercise this right.'' The ceremony of adoption by which Bil- hah 's children are acknowledged by Rachel as her own is another indication of the presence of matri- archy.* Furthermore, Rebekah appears to be under the special guardianship of her brother.^ Laban's insistence on his right to retain the wives of Jacob and their children remains unintelligible unless we assume a type of heena marriage of which this is a remnant. After serving Laban for twenty years Jacob endeavors to carry away his wives and chil- dren by stealth. When finally overtaken, Laban reproves Jacob for his act, inasmuch as the daugh- ters and children are his. "And Laban answered and said unto Jacob, The daughters are my daugh- ters and the children are my children. "^° Mr. = Wellhausen, J., 478, note 2. * Smith, W. E., Kinship and Marriage in Early Arahia, 32, 38 f . ° Benzinger, I., Bebraische Arohadlogie (ed. 2), 104. ° Gen. 29 : 31 f . ; chap. 30; 35:18. 'Euth 4: 17. * Gen. 30 : 3. 'Gen. 24:50-55. 1° Gen. 31 : 43. OF THE PEIMITIVE SEMITES 3 Giddings observes that "the wife and children in beena marriage always belong to the horde of the wife. If the husband chooses to go back to his own people, he must leave his family and property unless he can get them away as plunder, as Jacob did when he left Laban."^^ Abimelech's career is rendered possible by 'his mother's brethren . . . and the family of the house of his mother's father,' who enable him to carry out his plot against the house of Gideon. The sole basis of appeal, apart from mere ambition, is maternal relationship.^ ^ The extant evidence, it may be noted, is in the main rather of a suggestive than convincing charac- ter. More than this cannot be affirmed as to the existence of matriarchy even among the Arabs^^ and Babylonians. There is a strong probability that uterine ties alone once constituted kinship in Arabia.^* Tem- porary monandrous marriages or marriages of the mut'a type between individuals of exogamous groups may be instanced as a survival from the period of matriarchy.^^ Marriage among the Sara- cens appears to have been of this character. Am- mianus Marcellinus relates that "to give the union ^Princ. Soc, 268. " Judg. 9 : 1-6. ^Wellhausen, op. cit., 479. "W. E. Smith, Kinship, 177 f., 203, 213; WelHiausen, Ehe, 478; Koliler, J., Zeitschrift fur vergleichende BecMswissenschaft, v. 8, pp. 240 f.; Bertholet, S.I.J.F., 57; Day, E., The Social Life of the Hebrews, 24, 238; Benzinger, op. cit., p. 103. " W. E. Smith, op. eit., 85, 91 ; Wellhausen, op. cit., 474 ; Kohler, J., op. cit., p. 382. 4 THE SOCIAL LEGISLATION an appearance of marriage, the wife offers her spouse a spear and a tent by way of dowry."" "Where this type of marriage prevails, the woman is a free agent, disposing of herself as she pleases. The children of the union belong to the mother's clan, the father's relation to his children being of no consequence. It appears that the mother has a right to give names to her own sons.^'^ In the usual preliminaries to a marriage contract the maternal uncle often plays a prominent part.^* The fact that a number of ancient words expres- sive of the bonds of kinship are derived from the mother, furnishes additional data in favor of the onetime existence of mother-kinship in early Arabia. Thus the Arabic equivalent for uterus,^^ a word fre- quently used for kinship, affords an instructive example of the case in point. Batn, another Arabic word, has a variety of meanings, viz. venter, uterus, race, clan. In its more specific sense the word refers to descent through the female line.^° So again the word for breast in Arabic is generally applied to relationship. Umma, a derivative of umm, mother, also comes to mean people, nation, community."^ By the side of male eponyma numerous female tribal names are f ound.^^ ' ' The two great branches \ip, 81; E7ie, 445: "dotis nomine futura eoniunx hastam et tabernaeuliim offert marito. ' ' "ETie, 478; Kinship, 124. "£;/ie, 477 f. ^^ Eahim, womb; cf. Kinship, 176, Bhe, 475. -"Ibid., 475, note 3. '^ In. Arabic umma sometimes appears in the sense of religious community. Cf. Kinship, 32, n. 2. '''Ibid., 29 f., 204; Ehe, 476; Kohler, op. cit., 240. OF THE PRIMITIVE SEMITES 5 of Mudar are Qays and Hindif, and tlie latter is said to be wife of Al-Yas and great-granddaugMer of Quda' a . . The joint-name of tlie Aws and Hasraj is Banu Qayla . . . Qayla seems to be the feminine of the "well-known Himyarite title Qayl. The Banat Qayla are different. They appear to be an inde- pendent family, and Wellhausen formerly conjec- tured that they had matriarchy. The sons of Jadila are one of the two great branches of the Tayyi, and they are named after their mother. At the battle of Bu'ath the Banu ' Ahd al-asMial shout: We are the sons of Sahra — ^but Murra hint Zafar is their ances- tress. The Fesarites are named Manula after the wife of Fesara."^^ Considerations of space forbid any further enumeration of similar examples. The ownership of tents^* by women, it is argued, is best explained by assuming an old law of female kinship.^^ But this is far from convincing in view of the fact that primitive industrial arts were exclu- sively in the hands of women, the latter simply claiming as their own the products of their indus- trial habits.^® If the institution of matriarchy ever existed in ancient Babylonia, its traces have nearly all dis- appeared. A recent writer, quoting Sayce, remarks that whereas "in the old Sumerian hymns the 'lip, 29, n. 1. "AM, equivalent to the Hebrew ohel, tent, family, kindred group. ^Kinship, 202 f.; Ehe, 478; Bertholet, S.I.J. F., 57, n. 5; Buhl, S.V.I., 28. ™ Compare with this the development of private property on pages 228 f.; Cook, S. A., The Laws of Moses and the Code of Sammurahi, 92, n. 4. 6 THE SOCIAL LEGISLATION woman takes precedence of the man, the Semitic translation invariably reverses the order: the one has 'female and male,' the other 'male and female,' and this is reflected in the position of the goddess Ishtar, who, originally a goddess, the equal of the god, became changed into a male deity in Southern Arabia and Moab. ' '^^ Buhl, in his Sosiale Verhdlt- nissen der Israeliten/'^ would find a last survival of the institution in the fact that a son-in-law might be received into his wife's family by accepting the family cult. It is to be remembered, however, that even orphans and slaves could be adopted into Baby- lonian families under precisely the same terms. The argument is sometimes brought forth that the high position accorded women in the Code of Hammurabi bcomes intelligible by postulating the prevalence of matriarchy in pre-historic times. But the argument is not conclusive owing to the superior commercial development of the Babylonians as over against their neighbors. " Cook, S. A., p. 72, n. 2. '" Page 28, n. 1., ep. Peiser, Mitteilungen der Vorderasiat. Gesell- schaft I, 1896, 155. CHAPTER II PATEIAECHY On the strength of the material available it will be within the limits of probability to conjecture that the matriarchal clan was the dominant form of social organization prior to the settlement in Canaan. All the essential pre-suppositions of such an institution are met by the period of nomadism. A turning point in social development is reached by the pas- sage from nomadism or semi-nomadism to agri- culture. The acquisition of land, be it by conquest or by the cultivation of the soU, marks an important epoch in the scale of human culture. Land from now on becomes an economic factor to be reckoned with. The possession of land by an agricultural community naturally contributes its share to the conception of property. The idea of property again reacts on social integration as may be inferred from the transition of maternal to paternal relationship. In his work on Ancient Society^ Mr. Morgan says : "After domestic animals began to be reared in flocks and herds, becoming thereby a source of subsistence as well as objects of individual property, and after tillage had led ... to the ownership of houses and lands in severalty, an antagonism would be certain to arise against the prevailing form of gentile inheritance. With property accumulating in masses and assuming permanent forms, and with an in- creased proportion of it held by individual owner- 'p. 345. 8 THE SOCIAL LEGISLATION sMp, descent in the female line was certain of over- throw and the substitution of the male line equally assured." To be sure, fossil remains of the older system make their appearance here and there, as above indicated, thus furnishing but one of many illustrations of the persistency of institutions in general. Descent in the female line could not sur- vive in the face of changed conditions. Where the older custom was strong enough to assert itself, the change was often effected at the expense of a com- promise. But under the monarchy patrilineal descent is an established principle, and all heredi- tary property descends in the male line. Having thus called attention to the change from maternal to paternal relationship after the settlement in Canaan, it does not necessarily follow that the latter is a purely Palestinian product. No great difficulty will be experienced in postulating a nomadic environ- ment for the practice of reckoning descent through the mother. In surveying some of the material at our disposal we found that the maternal system is already a declining institution when first emerging into the light of history. From what we know of the growth of institutions in general, patriarchy, like its precursor of nomadic days, presupposes a long period of social development. The conditions of agriculture alone will not explain it. The begin- nings of paternal relationship undoubtedly go back to a remote antiquity.^ Paternal authority ulti- mately triumphs on Palestinian soil. In referring to agnatic relationship technical terms are used at an early period. Corresponding terms denoting ^ Wellhausen, Ehe, 446, 479. OP THE PRIMITIVE SEMITES 9 maternal relationship are unknown. This is at least indicative of an early predominance of patriarchy among the Hebrews, that is, if the testimony of language may be taken seriously.^ Under the system of patriarchy fathers exercised great rights over their families. "The chief linea- ments of such a society as collected from the early chapters of Genesis are these : — The eldest male par- ent — the eldest ascendant — is absolutely supreme in his household. His dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves; indeed, the rela- tions of sonship and serfdom appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day the head of a family himself. The flocks and herds of the children are the flocks and herds of the father, and the pos- sessions of the parent, which he holds in a represen- tative rather than in a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiv- ing a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence."* Sir Henry Maine's contributions to the study of com- parative jurisprudence gave a much-needed impetus to subsequent studies along kindred lines. With the advance of science, however, many of his views are no longer tenable. For instance, patria potestas of the Roman type cannot be fully applied to Hebrew society of historical times.® Eelics of what appears 'Ibid., 480 f.; Gesenius, S.W.B. (1905), 543. * Maine, Ancient Law, 119. "Dillmann, Deut., 340; Kinship,^ 142. 10 THE SOCIAL LEGISLATION to be an original jus necisque may possibly be found in the ancient practice of sacrificing children to the deity.^ But the full exercise of patria potestas, if it ever did exist, was soon checked by public opinion, later incorporated in the book of Deuteronomy. Parents may chastize their children, but not inflict capital punishment upon them/ A stubborn son is to be brought to the elders of his respective city and then stoned to death by the members of the com- munity.® The intermediary position of the 'courts,' whatever their jurisdiction in such a case, had a tendency to bring about a milder form of paternal power than among the Romans. There are but few traces of a rigid type of patria potestas among the ancient Arabs. In a state of society where marriage does not involve the transfer of the woman to the stock or kin of her husband, the status of women would naturally be superior to that of women in manu as in the case of Roman law. This will explain why the husband could not exercise the power of life and death over his wife as he might over a slave, for instance. A returning huntsman, observing from a distance that two of his wives were engaged in a deadly combat, shot an arrow in the direction of the two combatants with the intention of deterring them. One of the women was acci- dentally kUled, and the man was obliged to make compensation to her family.^ " Judg. 11: 30-34; Gen. 22: 1-13, et al. 'Prov. 19: 18. « Deut. 21 : 18-21. 'Proeksoh, Vber die Blutrache hei den vorislamisclien Arabern und Muhammads Stellung su ihr, p. 61. OF THE PEIMITIVE SEMITES 11 As regards the status of sons, patria potestas was recognized up to a certain point among the Meccans and the people of Medina.^" In Mecca the father's authority even extended over sons of a marriageable age and capable of bearing arms. This much was insisted upon by the Quraysh before making a com- pact with the prophet of Allah. It was for the father to determine the religion of his grown-up sons, the latter having little or no choice in the matter. But this state of dependence practically ceases as soon as the son advances to the rank of a property holder. Release from paternal power is secured by the son of 8a' d ihn' Ubada after receiving a portion of his father's estate. The possession of property is a necessary prerequisite to the full enjoyment of the rights of citizenship. By virtue of his authority, the paternal head of the family might also repudiate a grown-up son in order to please the young man's stepmother. The father, moreover, had power to impose the status of marriage on his minor children. Among the Hanifites of Turkey and Central Asia the right of jahr^^ terminates with puberty.^^ Shaft' ite law,^^ on the other hand, declares that daughters shall be sub- ject to the authority of the father until they are married, regardless of whether or not they had previously attained the age of puberty.^* Parental authority is strongest in commercial centres like Mecca and Medina. It is weakest in "Mhe, 459. " ' the right of imposing the status of marriage on minor children. ' ^' Usually the fifteenth year. '^i. e., in Syria and Lower Egypt. " Syed Ameer Ali, Muhammadan Law, II, 236. 12 THE SOCIAL LEGISLATION the desert where "the principle of uncontrolled individualism is only kept in check by the imperious necessity for mutual help against enemies which binds together, not individual families but the whole hayy^^^ not kinsmen within certain degrees but the whole circle of common blood. ' '^^ Nothing but the pressure of public opinion could succeed in estab- lishing the claims of a mild type of paternal power. In a footnote of his second edition of Kinship and Marriage Robertson Smith further remarks: "Pa- rental authority is so weak that a chief who wishes his only son to divorce a barren wife has first to vow that he will never speak to him, and then to call in all the elders and warriors of the clan to persuade him."" Paternal rights were recognized in Babylonia to an extent even greater than in Israel or Arabia. Though less despotic in its nature, the father's authority over the members of his family may be said to approximate the rights and privileges of the pater familias of ancient Rome. Thus in the pre- Semitic or Sumerian period a rebellious son may be sold into slavery by his father : "If a son say to his father, 'Thou art not my father, '^^ he may brand him, lay fetters upon Mm, and sell him for silver" (as a slave ).^^ The same principle is subsequently extended with some limitation to all members of the "'clan.' '''Kinship,' 68. " Ibid., loc. cit. " ul obi atta. " Cf. Series Ana Ittishu, Tablet 7, Col. Ill, 11. 22 f. OF THE PRIMITIVE SEMITES 13 family in case of debt : "If a man be in debt and sell bis wife, son or daughter, or bind them over to service, for three years they shall work in the house of their purchaser or master; in the fourth year they shall be given their freedom."^" According to the old Sumerian Family Laws the father has power to repudiate and disinherit a son without further notice. The simple formula : ' Thou art not my son' having once been pronounced by the father, 'the son shall leave house and walled enclosure' immediately. This law reappears in a modified form at a time when the counteracting influences of Semitic individualism as embodied in the legislation of Babylonia's greatest and most dis- tinguished ruler and law-giver, Hammurabi, began to assert themselves. The Code insists on legal process in the case of alleged insubordination on the part of a son: "If a man set his face to disin- herit his son and say to the judges : 'I will disinherit my son,' the judges shall inquire into his ante- cedents, and if the son have not committed a crime sufficiently grave to cut him off from sonship, the father may not cut off his son from sonship. "^^ Punishment shall be suspended, provided it be the delinquent's first offense, but 'if he commit a grave crime a second time, the father may cut off his son from sonship. '^^ For assault and battery on a father more stringent measures are adopted: 'If a son strike his father, they shall cut off his hands. '^^ ™ Harper, The Code of Hammurali, 5117. ^ Ibid., §168. =' Ibid., §169. ^ Ibid., §195. 14 THE SOCIAL LEGISLATION Moreover, the father was at liberty to make over a gift by written deed to a favorite son. 'If a man present field, garden or house to his son, the first in his eyes,^* and write for him a sealed deed, after the father dies, when the brothers share, he shall take the present which the father gave him, and over and above shall share equally with them in the goods of his father's estate. '^^ The father's right to select a bride for his son is absolute and indisputable. This we learn from a law-suit in the time of Cyrus. To insure the legality of a marriage contract the consent of the bridegroom's father must be obtained, otherwise the marriage is either annulled or the daughter-in-law reduced to the level of a concubine.^^ The way is now open for a discussion of the patri- archal family and its constituent members. Theo- retically such a family was composed of the actual descendants of the father. Under the pressure of circumstances, however, the expedient of adoption was resorted to by which outsiders were admitted into the membership of the group. The rights and privileges thus conferred wUl be taken up in their proper place. Once more we shall have to run counter to a state- ment made by Sir H. Maine with regard to the prop- erty rights of the head of the patronymic group; since all those dependent on the patriarchal head belong in the same category as all other possessions -* ' The apple of Ms eye. ' ^' §165. ""Kohler and Peiser, A.B.IR. II, 7 f.; Johns, B.A.L.C.L., 137. OF THE PRIMITIVE SEMITES 15 held by the family, such as houses, lands, and cattle. For in ultimate analysis the head of the household group is the only owner of the property. He is "the proprietor of his wife, or wives, children, slaves, cattle, houses, lands, etc."^'' A brief study of the word ha'al will serve as a good illustration of what we mean. The Hebrew designation for the proprietor of a house and its inmates is ba'al hahhayit}^ Ba' al also occurs in the sense of husband. This is evidenced by the equation of ha'al with ish.^^ The wife of such a ha'al is sometimes spoken of as the be'ulat-ha'al, or he'ula?'^ The idea of possession may be readily deduced from a comparison of ha'al isJisha with ha'al hashshor. Ex. 21 : 3 obviously refers to the possessor of a wife, and Ex. 21 : 28 to the owner of an ox. The word ba'al may be even applied to a creditor or property holder.^^ Whatever may be said concerning the elevated social position and independence of the Babylonian woman in business affairs, it will ultimately be made clear that the woman, notwithstanding this, is a property which can be acquired by purchase, the buyer receiving full marital rights in return. Per- haps it will be surprising to note that the Code of Hammurabi, in which business relations are main- ^'Wallis, Sociological Study of the Bible, 41; cp. Journal of Sociology (1908-09), XIV, 324. ^ Judg. 19 : 22 f . =^"2 Sam. 11: 26; Hos. 2: 18. "" Gen. 20 : 3 ; Deut. 22 : 22 ; Isa. 54 : 1 ; 62 : 4. =' Deut. 15 : 2. 16 THE SOCIAL LEGISLATION tained independently by women, throws interesting sidelights on the linguistic phenomena just con- sidered. Every shade of meaning given to the Hebrew ha' al has its parallel in the Code. Thus, he-el hitim^^ denotes the owner of a house, and he-el ash-sha-tim^^ means the possessor of a wife. The act of 'taking' a wife is usually expressed by the third person singular of the verb ahazu^* whilst in the Neo-Babylonian period the idea of posession is given greater prominence by the synonymous usage of ahazu and rashu, 'to possess. '^^ There can be no question as to the fundamental idea of the word hel in such combinations as he-el amtim,^^ he-el wardim^'^ and he-el alpim.^^ The he-el hu-hu-ul- lim^^ is a creditor. Ownership is no less implied in the following expressions: he-el eqlim,^'^ he-el she'im,*^ he-el hirem*^ and he-el sM-hu-ul-tim.^^ From our discussion of the maternal system of ancient Arabia it would appear that mother-kinship is a direct lineal descendant of a rather loose mar- riage relation. Mut'a marriages are condemned by " 16, 25, 120, 125. '"husband,' 129. "H-l.u-us, 128, 144-146, 148, 162-163, 166-167. ™ Meissner, B.A.P., 147. ""'owner of a maid servant,' 119. '"'' owner of a slave,' 17, 20; cp. Sum. lugalr^belu, 'possessor, owner; ' Meissner, op. eit. 119. '^ ' owner of an ox, ' 245-247. ="> 48, 151. "'owner of a field,' 42-44, 46-47, 49-50, 57-58, 62-63. "'owner of grain,' 120. ^ ' owner of an orchard, ' 59-60. *" ' owner of transported goods, ' 112. OF THE PRIMITIVE SEMITES 17 the prophet of Islam for the reason that ha' al mar- riage with male kinship had already become the dominant form of marriage among the upper classes of Arabian society. According to Eobertson Smith ha' al marriage or marriage of dominion was con- stituted by capture or by purchase.** Indeed there is abundant evidence to show that marriage by cap- ture was far from being an obsolete institution even in Muhammad's day: '0 ye people, strive to be lenient toward your wives ; for they are with you as captives of war. '*^ It is not at all unlikely that the attempt to place marriage by capture on an equal footing with marriage with a betrothed virgin belongs to a period when capture was gradually sup- plemented by purchase.*" In marriage by con- tract or purchase the woman loses her personal freedom and is handed over to the suitor in return for a compensation paid to her father, the girl thus becoming the property of her buyer. A verb com- monly used in Arabic to express the bondage of the woman in marriage is malaka, 'to rule, govern, pos- sess. '*'^ Full marital rights having been procured by purchase, every possible precaution is taken by the ba'al*^ of the woman to guard his precious pos- session with a jealousy which will brook no inter- ference in his newly acquired property rights.*^ But the husband's power over his be'ula wife was by no means absolute. She could neither be sold « Cf. Kinship, 121. « Cf . Ehe, 446. «J;H436. ■" Corresponding to the Hebrew ba' al. ^ 'husband, owner. ' '^Ehe,4A7{. 18 THE SOCIAL LEGISLATION nor treated as a slave. Wherever practicable the woman's clansmen would do their utmost to protect her in any such contingency which might arise. As to the occurrence of ba'l in Arabic literature, it may be said that the Hebrew and Babylonian uses of the word can be easily reproduced from the extant data. Thus the ha' I of a house offers a correspond- ing parallel to the ha'al hahbayit^° of the Hebrew. So again, ba'l is used to convey the idea of pos- session or ownership in expressions like 'the posses- sor of a wife ' and ' the owner of a beast. '^^ In the Qur'an ba'l generally means 'lord,' 'husband. '^^ In ba' al marriage the wife becomes the property of her husband.®^ Her rights of property and inheritance are reduced to a minimum as a result of the part played by the mohar in nearly every mar- riage ceremony. Upon payment of the 'purchase- price' to her father or male guardian the woman passes into the ownership of her husband. Gifts received from the husband as well as a few female attendants given to the bride by the father were usually retained by the woman as her personal prop- erty.^* The nature of these gifts might vary from a small trinket to a thousand or more sheqels of silver.^^ Budde^*' quotes Halevy as saying that the eleven hundred sheqels of silver possessed by ™ ' the proprietor of a house. ' •^'Lane, Arabic-English Lexicon, I, 1, p. 228. °^Cp. ia'ala, 'he (a man) became a husband.' ■» Smith, Kinship, 92. "Gen. 16: 2; 30:4,9. " Judges 17 : 1 f . " Judges, p. 114. OF THE PRIMITIVE SEMITES 19 Micah's mother had probably been inherited by the widow from her deceased husband. But this is entirely conjectural. There is not the slightest allu- sion to inheritance in the context. It would be just as plausible to assume that the money in question corresponds to the herakaP'' of Judges 1 : 12-15 and Joshua 15 : 19.^® The identification of Achsah, tne daughter of Caleb, with a branch of a Kenizzite clan named Othniel^" does not invalidate the sociological evidence furnished by these two passages. We, therefore, conclude that the value of the her oka bestowed upon the daughter would largely depend upon the father's wealth. The Shunammite spoken of in 2 Kings 4:8 f . is a woman of prominence very likely because she is the espoused wife of a man of substance. To all appearance she is in posses- sion of considerable personal property and hence the expression, ishsha gedola, which evidently sig- nifies a wealthy woman."" The biblical records are silent as to the extent of this property. At all events it appears to have been presented to the Shunammite either by her husband or by her father. An instructive example of the latter is found in 1 Kings 9 : 16 where the city of Gezer is presented to Solomon's Egyptian wife as her dowry from Pharaoh, the king of Egypt. The Hebrew term shilluhim, 'dismissal,' properly denotes the parting gift which is given to a betrothed virgin upon her being sent away by the parents.®^ " ' blessing, present. ' ^ Buhl, S.V.I., 33. ™ Moore, Judges, 29. ^ Benzinger, Konige, 135 (K.E.A.T.) "^Gesenius, B.W.B. (1905), p. 758. 20 THE SOCIAL LEGISLATION Under ancient Israelite patriarchy women's rights of property were, as already intimated, confined to what they had received as a gift. Generally speak- ing, wives are excluded from inheritance since they are regarded as property. The only passages to the contrary are met with in the book of Ruth: 'Then he (Boaz) said to the kinsman,®^ Naomi who has returned from the land of Moab is about to sell**^ a parcel of land which belonged to our brother Elimelech, ' for ' on the day thou buyest the field of the hand of Naomi, thou buyest Euth,*^* the Moab- itess, the widow of the dead, to raise up the name of the dead upon his inheritance.'®' That the inheri- tance has fallen to Naomi must be attributed to extraordinary circumstances. The narrative informs us that Elimelech had two sons, who no doubt succeeded to the inheritance left by their father. In course of time both Mahlon and Chilyon die without issue. Their Moabitish wives have no legal claim upon the estate whatever and hence the property reverts to Naomi, the widow of Elimelech. Whether this mode of inheritance is the remainder of a once established custom in the days of Ezra and Nehemiah is a matter of inference resting upon the somewhat similar law concerning the inheritance of daughters,*"* whereof more below. Be this as it may, the passages just cited from the book of Euth cannot " goel. '^ill^h • instead of ;T^^t2- «f- ^-J-S.L. XIX, 145. T : T ; It "Eead f)!") HN DJll instead of ri1"inK,t31 > so Eertholet and Nowaok. »=Euth 4: 3,5. "Nvunbers 27: 1-11; 36:1-12. OF THE PEIMITIVE SEMITES 21 materially affect our assertion regarding the older period of patriarchy owing to their post-exilic origin.®'^ With patriarchy on the ascendant and with the practice of marriage by purchase, the legal status of women is reduced to an extremely low level. It is important to bear in mind that wives are in a chattel relation to their husbands. This alone, apart from religious motives, would account for the exclusion of women in matters of succession. That marriage by purchase had not become totally extinct among the Babylonians is seen from a docu- ment dated in the thirteenth year of Nebuchad- rezzar: 'Dagil-ilani, son of Zamhuhu, spoke to Hamma, daughter of Nergal-iddin, as follows : ' ' Give me thy daughter, Latubashinni, she shall be my wife. ' ' Hamma agreed and gave him her daughter to wife ; and Dagil-ilani, in the joy of his heart, gave to Hamma for Latubashinni, her daughter, Ana-eli- beli-amur, a maid, for half a mina of silver and a mina and a half of silver to boot.'*'^ The amount''^ of the tirhatu'^ or bride-price must be definitely agreed upon before marriage. Without it the suitor would be rejected by the young woman's parents.''^ "' But see Kent, Beginnings of Hebrew History, 310, §134. ■"Koliler ajad Peiser, A.B.B., I, 7; Johns, B^.L.CL., 125. "'' Generally ten sheqels, although the amount might vary from one sheqel to three minas of silver. '" Cp. Bab. l.irtv,, ' bride, wife. ' "Attention is called to a tablet in which both the bride-price and the dowry seem to have been dispensed with. But this is an excep- tion; cf. Kohler and Peiser, op. cit., I, 8. 22 THE SOCIAL LEGISLATION According to the Code tlie tirhatu shall be carefully set aside for, an unmarried brother on division of the paternal estate: "If a man take wives for his sons and do not take a wife for his youngest son, after the father dies, when the brothers divide, they shall give from the goods of the father's house to their youngest brother, who has not taken a wife, money for a marriage settlement in addition to his portion and they shall enable him to take a wife."'^^ In another document a parcel of ground is presented to a marriageable son for a like purpose : ' Six hun- dred sar of good land, situated beside the field of NiJiiti, the priestess of Shamash, and the field of Apatu, Ilushu-nasir has presented to Ibik-ilishu, his son, to the end that he may take a wife. '^* The bride-price was forfeited by the groom if he broke the engagement : ' If a man has given the mar- riage settlement and look with longing upon another woman and say to his father-in-law, "I will not take thy daughter;" the father of the daughter shall take to himself whatever was brought to him.''* But if the father of the girl say to his prospective son- in-law, "I will not give thee my daughter;" the father-in-law shall double the amount which was brought to him. and return it. ''^^ The degradation implied in marriage by purchase was virtually removed, however, by the practice of returning the bride-price in the dowry or marriage- '^ C.:B[., $166. " Meissner, Aus dem alibabylonischen Becht (Der Alte Orient, 1905), p. 20. ■"■ Cgr., 159. ''Ibid., §160. OF THE PEIMITIVE SEMITES 23 portion/'^ as a settlement from tlie father upon his daughter. In the event of the father's death before her marriage, the duty of endowing the bride fell on his heirs. Among the objects which go to make up the trousseau of a well-to-do Babylonian bride are : ' six gold sheqels for her ear, one gold sheqel for the front of her neck, . . . four rings of silver weighing four sheqels, ten garments, . . . one os, two three year old cows, thirty sheep, . . . one Har-Ku-Gu stone, . . . one maialtu bed, five chairs' besides other household articles and servants.''^ The marriage- portion could also consist of house rent or annuities from the father's estate. It might even include landed property.'^* The husband merely had the usufruct of the dowry. When paid in money, the dowry was some- times invested by the husband with the wife's con- sent. How this was done is shown in Babylonian jurisprudence contemporaneous with the exile: 'Bunanitu, daughter of Harisaa, said thus to the judges of Nabuna'id, king of Babylon — . ." Abil-Addu-nathan, son of Nihmadu, had me to wife, and he took 3% mina of silver as my dowry, and one daughter I bore to him. I and Abil-Addu- nathan, my husband, traded with the sUver of my dowry, and we bought 8 canes, a built house, the territory of a large property, which was within Borsippa, for 9^ of a mina of sUver, with 2% mina ™ sheriqtu. "Eanke, Babylonian Legal and Business Doovments, Series A, vol. VI, pt. 1, p. 26. ™ Johns, op. oit., 131 ; Kohler and Peiser, loc. cit. ; Cook, L.M.G.H., 84, note 1. 24 THE SOCIAL LEGISLATION of silver which belonged to Iddina-Marduh, son of Ikisha, descendant of Nur-Sin, as balance, and we fixed (it) as the price of that house, and we paid and received it together. In the fourth year of Nabu- na'id, king of Babylon, I made an agreement with Ahil-Addu-nathan, my husband, concerning my dowry, and Ahil-Addu-nathan, in the kindness of his heart, sealed the 8 canes, (and) that house which is within Borsippa, and bequeathed it to me for future days, and on my tablet made it known thus : "2% mina of sUver, which Ahil-Addu-nathan and Bunanitu took from Iddina-Marduh, and paid as the price of that house, they received together." He sealed that tablet, and wrote thereon the curse of the great gods. In the fifth year of Nahuna'id, king of Babylon, I and Ahil-Addu-nathan, my husband, took Abil-Addu-amara as our son, and wrote the tablet of his sonship, and made known 2 mina 10 sheqels of silver and the furniture of a house as the dowry of Nuhta, my daughter. Fate took my hus- band, and now Aqahi-ilu, the son of my father-in- law, has laid claim upon the house and everything which had been sealed and bequeathed to me, and upon Nahu-nur-ili, (the slave) whom we had acquired from Nahu-ahe-iddina for silver. I have brought it before you, make a decision." The judges heard their words, they read the tab- lets and contracts which Bunanitu brought before them, and they caused Aqahi-ilu not to have power over the house at Borsippa, which had been bequeathed to Bunanitu instead of her dowry, over Nahu-nur-ili, whom she and her husband had bought for silver, or over anything of Ahil-Addu-nathan; OF THE PEIMITIVE SEMITES 25 Bunanitu and Ahil-Addu-amari, by their tablets, they caused to be confirmed. Iddina-Marduh . . will receive the 2^^ mina of silver which had been given towards the price of that house. Afterwards Bunanitu will receive the 3% mina of silver, her dowry, and her share besides. Nuhta will receive Nahu-nur-ili, according to the contracts of her father. ' The document ends with the names of six judges, two scribes and the following date: "Babylon, month Elul,^^ day twenty sixth, year ninth, Nabu {-na'id, king of Babylon )."^° Here the wife receives her dowry, valued at 3% mina of silver, and, in addition, a share of the inheri- tance left by her deceased husband. On the other hand, if the wife dies childless, the dowry reverts to her father 's house. ' ' A man has given a marriage- portion*^ to his daughter and she has neither son nor daughter and fate has carried her oSf^ her marriage-portion returns to her father's house. "^* The dowry®* is to be distinguished from the hus- band's assignment to the wife.*^ In the Code this gift is called a nudunnu,^^ the details of which must be committed to writing. Thus, "if a man give to his wife field, garden, house, or goods and he deliver ™ Vlulu. " Pinches, The Old Testament in the Light of the Historical Becords of Assyria and Baiylonia, pp. 462-463. " nudunnu. '^ shim-ti ub-lu-ush. ^E.B., 4, 323; cp. C.B., $163. " sheriqtu. ^ ' donatio inter virum et nxorem. ' ™ Cp. the Hebrew terms nede and nadan (Ezek. 16:33), also nudunya of the Mishna. 26 THE SOCIAL LEGISLATION to lier a sealed deed, after (the death of) her hus- band, her children cannot make claim against her. ' '*^ The "wife, moreover, "shall receive her dowry and the gift^* which her hnsband gave and deeded to her on a tablet and she may dwell in the house of her husband and enjoy (the property) as long as she lives." Obviously the recipient of a nudunnu has no absolute rights to such property but only a life interest. Failing a nudunnu the widow is entitled to a son's share of the goods: 'If her husband has not given her a gift, her dowry shall be given her in full, and, from the goods of her husband's estate, she shall take a share equal to that of a son. '^^ It is noteworthy that in the later Babylonian con- tracts the nudunnu is converted into the sheriqtu :^'' "A wife, whose marriage-portion"^ her husband has received, who has no son or daughter, and fate has carried off her husband, shall be given from her hus- band's property the marriage-portion, whatever that was. If her husband has made her a gift, she shall receive the gift of her husband with her mar- riage-portion and take it away. If she had no marriage-portion, the judge shall estimate the prop- erty of her husband and, according to her husband's means, shall grant her something.'"'^ No marriage was valid without a marriage- contract. 'If a man has taken a wife and has not executed a marriage-contract,®* that woman is not " C.H., §150. ^ nu-du-na-am, C.H., §171. " §172. '" Jeremias, Moses and Hammurabi, p. 10, note 1. " nudunnu. '^ Johns, op. cit., 72. "^ ri-ik-sa-ti-sha la ish-Tcu-un, lit., ' ' has not laid down her bonds. ' ' OF THE PRIMITIVE SEMITES 27 a (legal) wife.'"* The rights of the newly-married wife are duly set forth in the wedding contract and protected by law. The nature of such a contract is best illustrated from a tablet belonging to the First Dynasty of Babylon. ' Awilia, son of Warad-Sin, has taken Naramtum, daughter of Sinatum, to wife. Ibi-Enlil, the heir (and) elder brother, Ilushu- ibnishu, his brother, and Ilima-abi, their brother, Awilia has given to Naramtum, his wife, as sons. Ibi-Enlil, the heir (and) elder brother, Ilushu- ibnishu, his brother, and Ilima-abi, their brother, shall divide house, field, garden, female slave, male slave and the property that exists in the house of Awilia, their father, into equal parts after the eldest brother shall have taken his preference portion. When Awilia says to Naramtum, his wife: "Thou art not my wife," he shall pay a half mina of sUver. When Naramtum says to Awilia, her husband: "Thou art not my husband," they shall set a mark upon her and sell her. When Ibi-Enlil, Ilushu- ibnishu, and Ilima-abi, their brother, say to Naram- tum, their mother : ' ' Thou art not our mother, ' ' they shall forfeit the property of Awilia, their father. When Naramtum says to Ibi-Enlil, Ilushu-ibnishu and Ilima-abi, her children: "Ye are not my sons," she shall forfeit the property of Awilia, her hus- band. . . . 2% gur of grain, 6 minas of wool and . . . qa of oil Ibi-Enlil, the heir (and) elder brother, Ilushu-ibnishu and Ilima-abi, their brother, shall give annually to Naramtum, their mother, as sus- tenance. If a son will not give her the grain, oil, and wool installments as sustenance, he shall forfeit " C.£r., 128. 28 THE SOCIAL LEGISLATION the property of his father. In mutual agreement they have sworn by the name of the king. '"^ The estate of Awilia is to be divided among his sons who are required to pay an annual share of the produce to Naramtum, the latter having secured the rights of a mother over the sons of Awilia' s former marriage by virtue of the rite of adoption. On the death of her husband the widow is free to marry again, if she so desires, in which case "she shall take the dowry of her father's house and the man of her heart may marry her.'""' According to the Nabataean inscriptions the women of northern Arabia must have occupied a high social position. They might even own large estates and engage in trading pursuits.*^^ Whether this implied the right of inheritance is doubtful. Before Mu- hammad's time only warriors could inherit: "none can be heirs, who do not take part in battle, drive booty, and protect property."^* That the women of Medina had no capacity for inheritance, at least so far as landed property is concerned, is in perfect agreement with the above principle, as well as with ba'al marriage, or marriage of dominion. In mar- riages of the latter type the purchase-price®^ is paid °° Poebel, Babylonian Legal and Business Documents, Series A, vol. VI, pt. 2, p. 36. " C.^., ^172b. The nudunnu is reserved for the ehUdren of her former husband. " Noldeke, Eno. Brit., eleventh edition, II, 284. "Sura, 4: 8, 26. '^mahr; cp. Syriae mahra: "whatever the son-in-law gives to the parents of the bride." OF THE PEIMITIVE SEMITES 29 to the woman's kin. "With the rise of Islam, how- ever, the mahr becomes the property of the woman, although at the same time a gift of some sort is insisted upon by Muhammad and "be it only an iron ring or half his cloak. ' ' This change was rendered possible by the pre-Islamic custom of giving a sadaq or voluntary gift to a mut'a wife. In Islam both sadaq and mahr are used interchangeably in the sense of dowry. The dowry, the nature of which depended entirely on the social position of the suitor, constituted the most important part of a woman's identity. As in Islam, so among the Arabs of Hadramawt, the mahr is handed over to the woman. In addition to this the bride receives from the bridegroom a wedding present, which is looked upon as her personal property.^"" Though deprived by custom of the right of inherit- ing, women not infrequently accumulated consider- able wealth. In an old form of divorce the husband says to his wife: "Begone, for I will no longer drive thy flocks to the pasture. ' ' The inference to be drawn from this is that some women must have been in possession of flocks and herds over which they had full control. Hatim, whose wife has great wealth in herds, must either take care of Mu'awiya's camels or be kOled by his wealthy consort.^^i The wife of Duraid ibn Simma, it seems, owns property of a similar nature. Addressing her husband, Umm Ma' bad says : 'I have fed thee with my bread over- ™Kohler, Zeitschrift fur vergleichende Mechtswissenschaft, VIII, 257. '" Ehe, 467. 30 THE SOCIAL LEGISLATION laid with curds ; and I have come to thee as a she- camel grazing at will, not bound and as a virgin. ""^ How women came into the possession of flocks and herds remains an open question. It is not improb- able that such a distribution of property has its origin in a law of descent through women, traces of which are met with by the side of patrilineal descent. The change from the maternal to the paternal system was a growth and not an instantaneous product. Several instances are on record showing that in the days preceding Islam a woman's property is by no means limited to flocks, herds, and personal orna- ments, but might also include valuable real estate holdings in trading centres like Mecca and Medina. She is the "possessor of the house. "^"^ Ramla's house in Medina was spacious enough to be used for hotel and hospital purposes by the prophet.^^* Before marrying Muhammad, Hadija — so the tradi- tionalists tell us — ^was engaged in a lucrative cara- van trade. Not many years thereafter a house with an interesting history is presented to Zainab by Hadija, her mother. The ownership of houses by the individuals just mentioned may be due to the civilizing influence of commercialism. Another alternative open to us is to assume that these prop- erties were not inherited but merely received as a gift from the parents or husbands of the women in question. Under Muhammadan law a wife receives a definite share of the inheritance in accordance with the ^"•Ehe, 467. 1°" Ibid., 444, "• Ibid., 467. OF THE PEIMITIVB SEMITES 31 provisions of Sura 4 : 14 : ' The women shall have a fourth of what ye leave, if ye die without issue ; but if ye have children, then let them have an eighth of what ye leave, after paying your bequests and your debts. ' The parents of the deceased receive a sixth of the estate in the event of a child surviving the latter; but if he dies childless 'and his parents (alone) inherit, then his mother shall have a third; if he have brethren, then the mother shall have a sixth. '1.05 By an extension of the principle, already con- sidered,!"^ to the female descendants of the patri- archal head, it becomes somewhat more intelligible why no allusion is made in pre-exilic literature to the property rights of daughters. The fact is they did not enjoy such rights until a late period in Israelitish history. In the older period of patri- archy daughters are really part and parcel of a man's property.!"^ This would seem to follow from the Deuteronomic law with respect to the seduction of an unbetrothed virgin. The seducer ' ' shall give unto the damsel's father fifty sheqels of silver and she shall be his wife. ' 'i"® But ' ' if her father utterly refuse to give her unto him, he shall pay money according to the mohar of virgins, "i"" The Hebrew term mohar designates, as we have seen, the mar- riage-price paid by the suitor to the father of the "'Sura 4: 12. "" Cf. p. 21. "'Ex. 21: 7; 22: 15-16. ^•^ Deut., 22 : 28-29. ™ Ex. 22 : 16. 32 THE SOCIAL LEGISLATION bride. The offense, then, takes on the nature of damage done to the rights of private property, the indemnity in such a case being fifty sheqels of sUver.^i** Daughters may inherit only in default of sons."^ To state the law in full as told in the priestly narra- tive,"- it appears that a member of the tribe of Manasseh, named Selpahad, died leaving five daughters but no sons. An appeal is made to the proper authorities for a readjustment of the law of succession according to which only agnates were entitled to the estate left by the deceased. The point is raised by the surviving members of the family: "Why should our father's name be withdrawn from among his 'family'^^^ because he hath no son? Therefore give unto us a (landed) possession among the brethren of our father.""* There is some force to the argument, for it soon leads to the promulga- tion of a general law to the effect that if a man die without male issue his daughter shall inherit the property. In the event of there being no daughter the brothers of the deceased shall be entitled to the succession,"^ the next in order being his paternal uncles^^® and the nearest blood relatives on the father's side,"'^ provided they are the only sur- vivors. "» Baentscli, Ex., 200. Ill p "^ Num. 27 : 1-11. "' mishpaha. ^" V. 4. •1' V. 9. "•■ V. 10. "' V. 11. OF THE PEIMITIVB SEMITES 33 This law is later supplemented by Num. 36 : 1-12 in order to keep intact the tribal possessions of Manasseh. The daughters of Selpahad must not marry men of other tribes for "if they shall marry any of the sons of the (other) tribes of the children of Israel, then shall their inheritance be withdrawn from the inheritance of our fathers and added to the inheritance of the tribe to which they belong. "^^^ These objections are subsequently sustained by the lawgiver. In future the daughters of Selpahad 'may marry whom they like,' i. e., of the tribe of Manasseh."^ On the basis of this decision all heiresses are henceforth enjoined to marry within their own tribe for the purpose of preventing the family estate from passing to a family of another tribe.^^** From verses 11-12 we learn that the daughters of Selpahad finally marry the sons of their paternal uncles. Of all the Pentateuchal laws the law pertaining to the property rights of daughters is one of the latest.i^^ Previous to the enactment of the present law only sons are recognized as heirs.^^^ Benzin- ger's suggestion that the right of daughters to inherit, adverted to in P., probably reflects an older custom, lacks all support.^^* The principle of agna- tion is too closely interwoven in the very warp and woof of early Israelitish arrangements to be thus set aside by what is clearly an innovation in the days of ^' V. 3. ™ V. 6. "^ w. 8-9. ™ Smith, Kinship, 66. i^Deut. 21: 15 f.; 25: 5-10. ^ Hel. Arch.,' 297. 34 THE SOCIAL LEGISLATION the priestly writer.^^* It is entirely beside the point to refer to Job 42 : 15, which is confessedly late.^^^ Eegarding the property rights of daughters in Hammurabi's day the law is that dowerless virgins shall have a son's share of the estate: "If a father do not give a dowry to his daughter, a bride, or devotee, after her father dies she shall receive, as her share in the goods of her father's house, the por- tion of a son, and she shall enjoy it as long as she lives. After her (death) it belongs to her brothers. "^^^ That the sheriqtu^^'' of the Code actually takes the place of a right to share in the inheritance^^* is evident from the following enact- ment: "If a man do not present a dowry to his daughter, who is a concubine, and do not give her to a husband; after her father dies her brothers shall present her a dowry proportionate to the fortune of her father's house and they shall give her to a husband. "129 There was nothing to hinder wealthy parents from giving landed property to their daughters, provided such grants were embodied in a written deed. One or two instances will suffice: '1200 sar of land, 53 sar of garden, beside the garden of Yawi-ilu, 8in- rimeni has presented to Waqartu, his daughter. Kisatu is the son of Waqartu. In the presence ^* Baentsch, op. cit., 635. ^-^ Nowack, Hebrdische Archdologie, 348. "^ CIE., §180. "' ' dowry. ' ^^ aplutu, 'sonsMp, heritage.' ^"» eg'., §184; cp. §§180, 183. OP THE PRIMITIVE SEMITES 35 of Ishalish-ilu, her brother. '^^^ Possibly this was part of the woman's dowry, full payment having been withheld for a given number of years in accordance with the terms agreed upon in the origi- nal marriage-contract. In a document belonging to the reign of Nebuchadrezzar a mother waives claim to her property on condition that the beneficiary pay a corresponding annuity to her benefactress: 'Silim-IsMar, daughter of Kurigalzu, has of her own accord sealed and deeded her property in city and land, as much as there is, to Qula-qa'ishat, her daughter; and in addition five mina of silver, two servants and furniture, which she had given as Gula- qa'ishat's dowry to Bel-usallim, son of Ziria. As long as Silim-IsMar lives, she shall enjoy the income of her property . . . The day that Silim-Ishtar dies, her property shall belong to Gula-qa'ishat' }^'^ "Why Gula-qa'ishat should inherit Silim-IsMar' s property is not clear. Perhaps she was the only child of her mother. Lacking a son Silim-IsMar bequeaths the above property to her daughter in the form already mentioned. Indications are not wanting to show that the daughters of the high-born mother probably received in addition to the dowry a small share of the estate. 'Ten gan of field in the kare, adjoining (the field of) Ahi-daani and Enhim-ilu, Kishunnu, Imqurrum, and Ilu-rabi, her brothers, have given to HuduUum, daughter of Inib-nunu, as her share.' Here follow the names of four witnesses. The tablet is dated in the year of Sumula-ilu, one of Hammurabi's prede- ""Meissner, A.A.B. (Der Alte Orient, 1905), p. 20. '"KoWer and Peiser, A.B.I!.., IV, p. 18. 36 THE SOCIAL LEGISLATION cessors.^"- According to another source two brothers share the estate with a sister, the latter receiving as her portion one-third sar of house, adjoining that of her brother, a maid servant, a bed, and a chair. Furthermore, the brothers agree to add two-thirds gan of land and slaves to their sis- ter's share on the day of her marriage.^'*^ In an early Babylonian inscription we are told that the 'inheritance portion of Naruhtum, daughter of Migir-Ellil'^^^ consists of Yz sar 5 gin of built house, 40 sar of upland garden and two slaves. Pointing in the same direction is the fact that Amertum, Ibi- Ellil's sister, is referred to in a manumission tablet of the First Dynasty as one of the heirs^^^ of Nannar-simu and Dushubtum}^^ So again the daughter of Ramman-ushezib is heir to 30 qa of cultivated lands awarded to her by the judges in a legal action of a later date.^^'' Whether this prop- erty had been previously acquired by purchase or by inheritance is uncertain. Property of the former type might be inherited by the daughter of an officer, constable, or tax-gatherer.^^® The rights of daugh- ters to such property were presumably restricted to a usufruct, the brothers or male descendants having a reversionary right to the property. Burashu, the daughter of Ramman-ushezib , for example, has a "^ Pinches, op. cit., p. 181. "= Johns, op. cit., 163. "' ^.a-la-ia Na-ru-uh-tum dumu-sal Mi-gir El-lil; cf. Poetel, op. cit., p. 21. "= mia. "° Poebel, p. 38. "'Kohler and Peiser, A.B.B., II, 16; Marx, in B.A., v. 4, p. 71. "^ eg., 39. OF THE PRIMITIVE SEMITES 37 life interest in the 30 qa of cultivated lands awarded to her by deed and not full rights to 'dispose of her portion for money. When Burashu dies the 30 qa of land shall belong to her son.'^^" Failing a dowry the votary and the priestess of Marduk shall be given one-third of a son's share.'^*" The votary of Marduk, in contradistinction to the devotees of IsMar, could will her property to whom- soever she pleased.'^*^ Individuals of the latter class might even choose their lots : 'one sar of built house, beside the house of Belaqu and beside Awel-Nan- nara, is the share of ErisMum, the votary, daughter of Ribam-ili, which she has shared with Amat- Shamash, the priestess of the sun, her sister. The division is complete from the straw^*^ to the gold.^*^ They shall not bring claim against each other. Choice of Amat-Shamash, her sister.'^** lUani, another priestess of Shamash, has a share in her father's property consisting of Ye sar 6 gin of built house beside the house of Sin-abushu-ildudu and beside the house of the sons of Adaiatu.'^*^ In a document of like import Aiatu, the daughter of Ilu- rabi, is named as the recipient of ' 1800 sar of land in the city of Tub, 5 sheep, a male and female slave, a house . ., and Ys sar of house . . . She may bequeath her property to one of her brothers who is "° Kohler and Peiser, loe. oit. i« §§181-182. ^"- §182b. 1*" ChafE, etc., op. Gilg. Ep. VI, 104, 111 ; Muss-Arnolt, p. 789. ^'^ The division is complete in every particular, i. e., from the least in value to the most valuable. Cf. Ungnad, O.L.Z. (1911), 107. 1" Pinches, op. cit., 180. '« Meissner, B.A.P., 85. 38 THE SOCIAL LEGISLATION particularly fond of her and who honors her. By Shamash, Aa, Marduk, and Hammurabi, the king, they have sworn. '^^^ To all appearance Aiatu was a priestess. Otherwise it would be difficult to account for the independence of her position as over against the more restricted property rights of the average Babylonian woman. The exclusion of females from inheritance previous to Muhammad was based on the principle that none should inherit except warriors. At Medina and in other parts of Arabia daughters were not permitted to share in the estate of their respective fathers owing to an early predominance of patriarchy. To give a share of the inheritance to a daughter would result in the disintegration and alienation of paternal property as the tendency toward exogamy seems to have been exceptionally strong during this period. It is only when the old clan system of Arabia is brought to a point of collapse that we meet with a law of inheritance, which must be regarded as an innovation of the great reformer resting upon a changed conception of the family.^*^ Of course, there was no reason, even before Islam, why daughters should not receive property in the nature of a gift, as in the case of Zainah, the daugh- ter of Hadija. Under the paternal system all such donated property would ultimately revert to a mem- ^"Meissner, A.A.B. (Der Alte Orient, 1905), p. 21. ^"Kinship, 117; Kohler, Zeitschrift fiir vergleichende Bechtswis- senschaft, v. 8, p. 246; Eoberts, Leipziger Semitistische Studien, II, 6, p. 50. OF THE PEIMITIVB SEMITES 39 ber of the patronymic group. In Muhammadan law, however, daughters are to be provided for on the following basis : 'A male heir shall have as much as two females, and if there be female heirs above two, then let them have two-thirds of what (the deceased) leaves ; and if there be but one, then let her have a half.'^** The estate of a childless brother shall fall to his sister or sisters, as the case might be : 'If a man die and have no child, but he have a sister; then she shall receive half of what he leaves. But if there be two sisters ; then they shall have two-thirds of what he leaves. And if there be more brothers and sisters ; then one male heir shall receive as much as two females. '1*' As part of their husband's estate wives would naturally fall to the heir along with the rest of the property.^^" The right of primogeniture carries with it the distinction of receiving a double por- tion^^^ of the entire paternal estate.^^^ The posses- sion of natural vigor on the part of the firstborn^^* together with the idea of sanctity^^* attaching to the firstf ruits of manly strength may have had much to do with the growth of this custom in ancient Israel. How appropriate, therefore, that the eldest ^"Qur'an, 4: 12f. "'Ibid., 4: 175. ^"'Gen. 49:3; 35:22; 2 Sam. 16 : 21 f . ; IK. 2:13f. 1=^2 K. 2: 9; Zech. 13: 8. ^ Deut. 21 : 17. «'Gen. 49:3; Ps. 78: 51; 105: 36. 1" Smith, Eel. Sem.,^ 465. 40 THE SOCIAL LEGISLATION son should assume the family headship after his father's death.^^^ What is especially needed in times of stress when the conditions of life are inse- cure and unstable, is the strong arm of some ener- getic leader capable of proving himself a man of the hour.i^^ Natural qualifications such as these are indispensable where family-feuds are of almost daily occurrence. But with changing conditions the claims of primogeniture may sometimes be set at naught. It is notable, however, that many aberra- tions from the ancient custom are directly traceable to shrewdness and intrigues, and to pressure brought to bear upon the head of the household by the favorite wife.^^'' The eldest son is not to be dealt with after this manner. A sharp protest is raised against the giving of his inheritance to the son of a favorite wife."* Ancient usage does not approve of it. At a subsequent period the birth- right is conceived as transferable by a legal fiction from the firstborn to a son of greater worth.^^* However, we should not expect to find anything like real consistency between theory and practice in actual life. In the face of an utter lack of historical material it is impossible to ascertain what responsibilities the eldest son was obliged to assume toward those less favored by nature. Unquestionably it was incum- bent upon him to make some kind of provision for '==Geii. 27: 29; 49: 8. i"" Cp. Book of Judges. '"Gen. 25: 30 f.; 1 K. 1: 11-13. '"^Deut. 21: 15-17. "»1 Chron. 5:lf. OP THE PRIMITIVE SEMITES 41 the other members of the household, particularly for the wives and daughters of the deceased.^®** In the partition documents of the First Baby- lonian Dynasty the eldest brother receives a prefer- ence portion^®^ in addition to a son's share of the estate: "Ibi-EUil, the heir (and) elder brother, Ilushu-ihnishu, his brother, and Ilima-abi, their brother, shall divide house, field, garden, maid-slave, man-slave and the property that exists in the house of Awilia, their father, into equal parts after the eldest brother shall have taken his preference por- tion. "^*^ From a tablet of the Neo-Babylonian period we learn that the eldest son did not content himself with a share of the inheritance, the equiva- lent of a preference portion being secured to him by deed.^®^ The nature of the material at our disposal is such as to preclude the determination of the exact amount of the preference portion. According to an adop- tion document of early Babylonia provision is made for an equal division of the inheritance between two adopted brothers after the elder brother shall have taken his preference portion: "Ili-idinnam, the elder brother, and Ilumati, his brother, Ea-idinnam, ^*' Says a Jewish father of the post-Wblieal period in. his testa- ment : ' ' The daughters shall dwell in my house and be nourished from my wealth {nekasim) until they are married." Mishna, Ket. 4: 12 (10). "^si6-to mu-nam-shesh-gal-la-shu, "preference title on account of the position as eldest brother." ^""Poebel, p. 36; cf. also no. 57; cp. Meissner, op. cit., 16. ^"^ Kohler and Peiser, op. cit., Ill, 13. 42 THE SOCIAL LEGISLATION son of Ibku-Ishtar . . has adopted as his children ; his heirs he has made them. House, field, and all property they shall divide into equal parts after the elder brother shall have received his preference por- tion, "i''* Inferentially the amount of the latter depended on the wealth of the testator and not upon any fixed standard of apportionment.^®^ Thus, in one case the eldest brother, an official of high rank, takes a woman slave and her children as his por- tion;^®'' in another the preference portion includes the office of a priest of Ellil, 36 acres of field, and a zag-gula bowl.^®^ On property which has been deeded to the eldest son by the mother a fixed annuity must be paid to the mother on pain of forfeiture. This obligation holds good as long as the mother lives.^"* Apart from the rights of primogeniture, the prin- ciple was followed that sons should share equally in the patrimonial estate^ '^'* as well as in the sheriqtu and nudunnu of their respective mothers."" Since marital rights in pre-Islamic times were of the nature of heritable estate, the father's wives naturally reverted to the son along with his other possessions. Marriage with a father's wife under such conditions is strictly prohibited by Muhammad. ^" Poebel, p. 28. "" Contra Poebel, p. 26. "Meissner, A.A.S., 30; Johns, op. cit., 162. "' Poebel, 22. ™ Kohler and Peiser, op. cit., Ill, 14. "'Poebel, nos. 23: 23; 43: 34; 16: 10; Cff., §^165, 167. ™C.E., ^nl, 172. OF THE PRIMITIVE SEMITES 43 It is surprising, however, that the law of primo- geniture in so far as it has to do with the superior property rights of the firstborn should be passed by in silence by the prophet. The Qur'an, which agrees in many particulars with numerous Israelite institu- tions, apparently knows nothing of such a preroga- tive. WhUe the argument from silence is never con- clusive, the pronounced individualism of the Arabs as over against their Syrian and Babylonian kins- men wUl probably offer a satisfactory explanation for the conspicuous absence of the institution of primogeniture in Arabia. Finally it is to be noted that ' ' the male heir shall receive as much as two females. "^''^ The inheri- tance of a childless sister shall revert to her brother.^'^^ There is something unusually sacred about landed property inherited from the fathers as may be gathered from the answer given to King Ahab by Naboth, the Jezreelite. "Yahwe forbid," he exclaims, "that I should give the inheritance of my fathers unto thee."^^* The retention of the vine- yard is a matter of conscience and religion. Pos- sibly his ancestors were buried there and hence the property is inalienable. Naboth cannot consent to its disposal. To do so would be equivalent to an act of impiety. Moreover, the emphasis placed upon "'Sura 4: 12. '"Sur. 4: 175. ™ 1 K. 21 : 3. 44 THE SOCIAL LEGISLATION the preservation of names once given to a parcel of ground may also be due to religious motives."* Ancestor worship constitutes part and parcel of the religion of pre-Mosaic Israel. The custom seems to linger in the popular funeral rites of the masses, despite the opposition of Yahwism. Having appropriated the tithe of the third year to charitable purposes, it is incumbent upon every Israelite sol- emnly to declare before Yahwe that he had not been guilty of applying any part of the tithe to the dead. 'I have brought away the sacred (tithe) out of mine house, and I have given it to the Levite, and to the stranger, to the fatherless, and to the widow . . 1 have not eaten thereof in my mourning,^'''^ neither have I put away thereof, being unclean,"^ nor given thereof for (or to) the dead.'"'' The excavations at Ta'anak, and elsewhere, have brought to light numerous remains of crockery attesting the presen- tation of offerings to the departed. Some of the tombs thus excavated contained remnants of food intended for the dead."* A writer of the second century B. C. recoramends that funeral offerings be continued. 'Pour out thy bread on the tomb of the just, but do not give thereof to the unjust.'"" Ben Sira on the contrary would eliminate the custom: 'Of what benefit is the offering to the shade (of the departed) ? Offerings of food placed upon the tomb ™Ps. 49: 11. "■^Cp. Hos. 9:4; Jer. 16: 7; Ezek. 24: 17, 22. ""Gesenius, H.W.B. (1905), 70. "'Deut. 26:13-14. Stade, G.VJ., 1, 389; SchwaUy, Das Lelen nach dem Tode, 25; Lods, Croyance d, la vie future, 166. 1" Benzinger, E.A.,' 128 f. ""Tobit, 4:17. OP THE PEIMITIVE SEMITES 45 are delicacies poured on a closed inoutli.'^*° Tlie object of these offerings was to give sustenance to the spirits of the deceased 'and to win their favor. '^*^ Closely associated with the cult of the dead is the practice of necromancy, which presumably had its origin in the period of Semitic heathenism. The spirits of the deceased were anciently regarded as possessing a knowledge of future events, and hence the name yidde 'onim, or knowing ones.^*^ Thus in the well-known passage of 1 Sam. 28 : 7 f . the spirit^ ^^ of Samuel is consulted by Saul through the medium of the so-called witch of Endor. Necro- mancy, however, implies the presentation of offer- ings partaking of the nature of sacrifices to the spirits consulted. ' I have spread out my hands . . to a people that provoketh me to anger continually ; . . that sacrificeth in gardens, and burneth incense upon bricks ; who sit in the graves, and lodge in the monu- ments.'^^* According to primitive notions it would be idle to invoke the spirits of the dead without giving something in return, all such favors being placed on a reciprocal basis."^ The character of these offerings may be ascer- tained from the attribution of divinity to persons thus invoked, as in the case of 1 Sam. 28 : 13, where the spirit of the departed is called eloMm, or god. On the death of Asa, moreover, the people 'made a "» 30 : 18-19. "'Charles, E. H., Doctrine of a Future Life (1913), 24. '»^Lev. 19: 31; 20: 6; Isa. 19: 3. "''o6. Lev. 19: 31; 20:6,27; Deut. 18:11; Isa. 29:4. "* Isa. 65: 2-4; cp. 8:19; 19:3. Of. Duhm, ad loc. I'^Lods, op. cit., 168. 46 THE SOCIAL LEGISLATION very great burning for (or to) him. '^^^ This 'enor- mous burning' is not to be identified with crema- tion, as the Hebrews were averse to the custom. It clearly points to a form of sacrifice for the dead, and presupposes a process of deification.^*^ From Ezek. 43 : 7-9 it appears that the sepulchres of the kings, situated in close proximity to the sanctuary of Yahwe, were the scenes of idolatrous practices, whereby 'they (the people) have defiled my holy name.' Thus it would seem that a certain degree of worship was paid to departed heroes and kings, as well as to deceased ancestors. The alienation of the patrimonial estate in per- petuity was a serious matter. In a document of the First Dynasty a man named Ar ad-Sin brings suit against the sons of Shamash-nasir who had sold a plot of ground to a merchant. 'The field which I have inherited from the house of my father, Ibku- Shala and his brother, the sons of Shamash-nasir, have sold to Ibni-Adadi, the merchant. Iddatu and Basisu, the sons of Ibni-Adadi, . . were brought before the judges, and produced the deed of sale which Etiru and Sin-nadin-shumi had executed to Shamash-nasir and Ibku-Annunitu, his son . . Arad- Sin, the son of Etiru, shall receive his house and add it to his field . . . Dated in the reign of Ammisa- duga.'^^^ The ancestral domain shall be restored to its rightful owner. Addressing Sin-idinnam, ""2 Chron. 16: 14; ep. 2 Chron. 21: 19. '" Cp. SehwaUy, op. eit., 24. is^Meissner, B.A.P., 41. OF THE PEIMITIVE SEMITES 47 Hammurabi sajs: " In tlie matter of the ^aw . . . . land in the district of the town of Dur-gurgurri, the ownership of the land by Ea-lu-bani is ancient, for on a tablet is it assigned unto him. Thou shalt therefore give this land unto Ea-lu-bani."^^^ A contract of the Neo-Babylonian period illus- trates how carefully the hereditary rights were guarded. We shall quote it in full because of its bearing on the law of inheritance in Babylonia. "Bel-kasir, son of Nadinu, spoke to Nadinu, his father, thus : * Thou sentest me to Bit-turni, and I took Zunna^^^ as my wife, but she has not borne son or daughter. Let me adopt Bel-uhin, son of Zunna, child of my wife, whom she bore some time ago to Niqudu, son of Nur-Sin, her former husband, and let him be my son ; record his adoption on a tablet, and seal and bequeath to him our revenues and our property, all there is, and let him be the child taken by our hands.' Nadinu was not pleased with the words which Bel-kasir, his son, had said to him. Nadinu had written on a tablet, 'No one whatever, at a future time, is to take their revenue or prop- erty;' he had bound the hands of Bel-ha^ir, his son, and had stated it in the deed thus: 'When Nadinu goes to his fate, then after him the son proceeding from the loins of Bel-Jcasir his son, who shall be born, shall take the incomes and properties of Nadinu his father. If a son proceeding from the loins of Bel-kasir be not born, Bel-kasir shall adopt his brother and rightful heir, and shall bequeath unto him the revenues and properties of Nadinu, his '*' King, The Letters and Inscriptions of ffammurabi, III, 28. ™ A widow. 48 THE SOCIAL LEGISLATION father. Bel-hasir shall not adopt any other what- ever, but he shall adopt his brother and rightful heir on account of the revenues and properties which Nadinu (has bequeathed to him) Baby- lon, month SJiebat,^^^ fifteenth day, year ninth, Nahuna'id, king of Babylon. "^^^ According to Babylonian eschatology the soul's happy existence in the lower world depended on the amount of care given to the body of the departed. The abode of the dead is described as the 'land without return.'"^ Further, it is a 'place of deso- lation. 'i"* Its inhabitants dwell in a region 'where dust is their nourishment, their food clay.'^®'' Although separated from the body at death, the soul is conceived of as having earthly wants.^®" Special provision must be made by the descendants of the deceased for the proper maintenance of the soul in view of the dismal character of the realms of Arallu. Of the offerings made for the repose of the soul, libations of water were the most common.^®'' One of the adoption documents of the Cassite period^"® contains the following: "' Shalatu. ™ Pinches, Hehraica III, 19. ^'"Tcurnugea. Delitzsch, Das Land Ohne SeimTceTir (1911), 36, n. 21. "* Arallu. For additional epithets applied to the nether world, see Jastrow, op. cit., 557 f. '"' Quoted from the ' Descent of Ishtar. ' K.B., VI, 81 ; Jastrow, op. cit., 566. ^"Laugdon, Baiylonian Eschatology, in Bahyloniaca (1912), Tome VI, Fasc. 4, 197; Jastrow, op. cit., 598. "'Delitzsch, op. cit., 18; cp. Zimmern, K.A.T.,' 638 £. "'Clay, T.A.N., XIV, 40. OP THE PRIMITIVE SEMITES 49 'As long as Ina-Uruh-rishat lives, Etirtum shall pay her reverence. (When) Ina-Uruh-rishat dies, then Etirtum, her (adopted) daughter, Shall offeri99 the water libation. '^oo Ordinarily, however, such libations were offered by the son on a fixed day, presumably coinciding with the anniversary of the decedent's death.^"^ A form of malediction frequently employed in the Tiudurru^^"^ inscriptions was: "May he (Ninib) deprive him of his son, his water pourer . .^^^ The son, the water pourer, may he take away from him . .^°* May he tear out his boundary stone, destroy his name, his seed, his offspring, his descend- ants from the mouth of men, and may he not let him have a son^^^ and a pourer of water. ' '^*>® The shades of the departed which had been deprived of the proper burial rites and offerings were doomed to an existence without repose. As an act of vengeance "'Lit., 'pour out to her.' ^ (11) a-di (sal) I-na-Uruk('ki)-ri-s'hat ha-al-ta-tu (12) (sal) M-ti-ir-tum i-pa-al-la-a}j.-shi (13) (sal) I-na-U-ru-uk-ri-shat i-ma-at-ma (14) (sal) E-ti-ir-tum marat-sa (15) me-e i-na-aq-qi-sM See Ungnad, in O.L.Z. (1906), 534 f. =" Lods, op. cit., 161. ^ ' boundary stone. ' "" III E., 43, Col. IV, 20. Cf. Hinke, A New Boundary Stone of Ne'buchadrezzar I, 62, 291. ="' Susa, 3, VII, 9 f . ™opZtt u naq me. There was also a special class of priests called naq me, or pourers of water. '"London, 102, II, 15-19. 50 THE SOCIAL LEGISLATION Ashurbanipal destroys the graves of tlie kings of Elam, thus compelling the disentombed shades to wander restlessly: 'I destroyed the sepulchres of their kings . . I carried their bones to Assyria. Upon their spirits^"^ I laid restlessness and kept from them food^"® and water-libations.'^**^ As in Israel, so in Babylonia, necromancy con- stitutes an essential part of the cult of the dead. There is the mushelu, or necromancer, the priest who raises the 'spirit' of the dead, and the sha'ilu, the 'inquirer' of the dead. The nether world, or shu'alu, "is a place of inquiry ,^1" and the inquiry meant is of the nature of a religious oracle. The name, accordingly, is an indication of the power accorded the dead, to aid the living by furnishing them with answers to questions, just as the gods fur- nish oracles through the mediation of the priests."^" The shade of the departed may be called upon to forecast the future, as related in the classical instance of the Gilgamesh Epic, where the spirit of Eahani appears on behalf of Gilgamesh, Nergal having granted the request of the hero. The god of the nether world 'opened the hole of the earth, ™' ekimmu, ' shade. ' "'^ M-is-pi-shu-nu. ^ naq me. Eassam Cylinder, VI, 70, 73-76. Cf. K.B., v. II, 207. ' ' The one whose spirit ( ekimmu) is not cared for by any one, . . he is consumed by gnawing hunger, by a longing for food. What is left on the street, he is obliged to eat." Gilg. Ep., XII, col. VI, 9, 11-12. Jastrow, op. eit., 512. Cp. K.B., VI. 265. "'"According to Margoliouth shu'alu may also mean ' hollowed out place.' Cf. Ancestor Worship (Babylonian) and Cult of the Dead, in Encyclopedia of Beligion and Ethics, I, 440. "'^Jastrow, op. cit., 559. OP THE PRIMITIVE SEMITES 51 and let the utukhv?'^^ of Eabani come forth out of the earth like a wind.'^^^ In the legends of Bahylonia, as well as in the liter- ature of historic times, we occasionally meet with the determinative for god,^^* prefixed to the names of poptdar heroes and kings. Thus Gilgamesh and others are among those deified. In the case of Parnapishtim and his wife deification is effected prior to their entrance into Arallu. "Hitherto Parnapishtim^^^ was human, but now Parnapishtim and his wife shall be gods with us."^^" As to the deification of early Babylonian kings, it is interest- ing to note that "the names of Dungi and Oudea are written on tablets that belong to the centuries imme- diately following their reign,^" with the determi- native that is placed before the names of gods. Festivals were celebrated in honor of these kings, sacrifices were offered to them, and their images were placed in temples. Again, Oimil-Sin,^^^ of the second dynasty of Ur, appears to have been deified during his lifetime, and there was a temple in Lagash which was named after him."^^^ From the deification to the worship of the persons concerned is but a short step. Sacrificial offerings presented in their honor would be an inevitable result. And "' ' shade, * ' demon. ' "''Gilgamesh Epic, Tablet XII, Col. Ill,' 27-28, in K.B. Cp. Jastrow, op. cit., 511 f. =" ilu. ="= The Babylonian Noah. ''° Jastrow, op. cit., 505. "' Third miUennimn B. C. "'' About 2500 B. C. "° Jastrow, op. cit., 561. 52 THE SOCIAL LEGISLATION we would go a step further and say tliat the offer- ing of sacrifices to deified kings involves an element of ancestor worship. "In paying honor to deified kings and other great personages, the sons and other descendants would both naturally and in accordance with an established rule take the lead, and the people generally would share in the celebrations, so that we have here instances firstly of ancestor worship in the strict sense of the word, and secondly in its wider, if looser, signification as homage paid to the departed kings and fathers of the people. "^^^ Says Ashurbanipal, king of Assyria,^^^ 'I have estab- lished, for the shades of the kings, my ancestors, meat offerings and water libations, which had fallen into desuetude. I have done good to gods and men, to the living and the dead. '^^^ The same king takes pleasure in relating that he slew the surviving mur- derers of Sennacherib in the very place where they had assassinated his grandfather : 'even there I now slew those people as a funeral sacrifice^^'' for him. '^^^ The word kispu, it may be noted, not only applies to sacrifices offered to the infernal gods and deified mortals, but also to offerings made to the dead. We are, therefore, justified in assuming a close affinity with sacrifices proper in the above quotation where the term occurs.^^^ In another passage Ashurbani- pal "speaks of visiting the graves of his ancestors. ™ Margoliouth, loc. cit. =='B. C. 668-626. "^K.B., V. II, 262-263. ^ Tcispu. ^* i. e., for Sennaolierib. Eassam Cylinder, Col. IV, 70 f . Cf . Tiele, in Z.A., V, 305; Lods, op. cit, 162. ''' Ibid., loc. cit. ; cp. Muss-Arnolt 's Dictionary, 417. OF THE PEIMITIVE SEMITES 53 He appears at the tombs with rent garments, pours out a libation to the memory of the dead, and offers up a prayer addressed to them."^^® That there was a strong disinclination on the part of the Arabs to alienate hereditary property is indisputable.^^'^ To begin with, the disposal of the ancestral domain to a stranger is well-nigh out of the question as each family generally had, in a por- tion of the field best suited for the purpose, its own sepulchre.^^® Where the popular religion of a people concerns itself with the cult of the dead, as among the Arabs, the rules of piety would act as a safeguard against the alienation of the family estate by the heirs of the deceased. There is an allusion to ancestor worship in a verse attributed to Hassan, the poet.^^® Libations of water and other liquids are brought to the grave in order to quench the thirsty soul of the departed.^^" Although the offering of bloody sacrifices to the dead is discountenanced by the Qur'an, the custom survives in the popular usage of modern Arabia in the form of funeral sacrifices offered under the pre- text of celebrating the annual sacrifice on Mount 'Arafa authorized by the Qur'an.^^^ It is worthy of observation that in the case of persons who are unable to make the pilgrimage to Mecca the sac- ^'' Jastrow, op. cit., 605. '" See below, p. 84. ^ Cp. Goldziher, Muh. Stud., II, 308 f., 351. ^^WeUhausen, B.A.S., 163. « Ibid., 161. ==' Lods, op. cit., 163. 54 THE SOCIAL LEGISLATION rificial victims may be put to death in any of the numerous cemeteries.^^^ For such a purpose one or more animals suffice in the event of an Arab's death. "The Arabs and Syrians consider it necessary that a man should not neglect to perform his obligations to the departed, and they have many stories to tell of the way in which such neglected ones have appeared to them in dreams at night, reproaching them for not performing their duty in this regard. "^^* The Arabs, as a rule, pay the greatest respect to the graves of their forefathers. Doughty, in his well-known book of travels, speaks of a sacri- fice for the dead^** which is often continued to the third generation.^^^ "I have seen a shayh come with devout remembrance to slaughter his sacrifice and to pray at the heap where his father or his father's father lies buried, and I have seen such to kiss his hand in passing any time by the place where the sire is sleeping, and breathe out, with almost womanly tenderness, words of blessing and prayer. ' '^^^ The giving of the sacrificial flesh to the poor is looked upon by the orthodox Muslims as a meritorious act causing the forgiveness of certain sins committed by the departed. ^^ Curtiss, Primitive Semitic Beligion Today, 176. ^ Ibid., 206-207. 234 < < "viriiether there are sacrifices to the dead as well as for the dead is a question which cannot be easily determined, if an immediate ancestor is intended. The sacrifices offered to the saints are, of course, really made to those who were once mortals. ' ' The Nusairiye, for instance, do not sacrifice to God, but to the wali, or Muhammadan saint. Ibid., 179. ^■^In a passage attributed to Manu (IX, 186), we read: "To three ancestors must water be given at their obsequies; for three is the funeral cake ordained. ' ' =» Aralia Deserta, I, 240-241 ; cp. I, 450-451. OF THE PRIMITIVE SEMITES 55 To say that the above sacrifices are of an expia- tory character offered to Allah on behalf of the deceased, hardly goes to the root of the problem. In numerous instances there is no essential differ- ence between sacrifices to walis,^^'^ or saints, and those to the dead.^^* Sacrifices to walls, it will be remembered, are really made to deified mortals. The fact that many Muslims wiU insist on recog- nizing the saints as their real deities in spite of the monotheistic claims of Islam is another proof of syncretism in religion. To what extent the sons of concubines might share in the paternal estate must be considered an open question, the only passage bearing on the subject being barren of all detail.^^" The case of Jephthah offers little of value in this connection. In driving out their illegitimate half-brother, the sons of Gilead make the following declaration: "Thou shalt have no inheritance in our father's house for thou art the son of another woman. "^*<' Jephthah is not the son of a concubine but of an unlawful and temporary union. Fortunately the Babylonian law code is more explicit. The sons of a man's maid-servant might be raised to the status of sonship by verbal acknowl- edgment. 'If a man's wife bear him children and '^ Wali denotes 'nearest of kin,' 'protector,' 'patron;' ep. Aramaic mar, 'lord,' or 'saint.' =^ Curtiss, op. cit., 75 f., 94 f., 102 f., 170 f. Lods, op. cit., 164. ==»Gen. 21: 10. ^"Judg. 11: If. 56 THE SOCIAL LEGISLATION his maid bear him chUdren, and the father during his lifetime say to the children which the maid bore him, "my sons," and reckon them with the sons of his (legal) wife, after the father dies the children of the wife and the children of the maid shall share equally. '^*^ But it is reserved for the wife's sons to apportion the shares and to make their own selec- tions.^*^ If not acknowledged by the father in the above manner, the maid's children do not share in the estate. On the father's death, however, the maid and her children shall obtain their freedom.^*^ In another document only the eldest son of a concu- bine is recognized by the father: ' Bhahira together with (his wife) Belisunu has taken Asatu (a maid) and she had five children. Of the five children which Asatu bore Shahira, Shahira acknowledged Yamanu, his eldest son. In future Asatu and her brothers shall not make claim against Shahira. By Shamash, Aa, Marduh and Hammurabi they swore. '^** The iqrar^^^ of Muhammadan jurisprudence is analogous to an acknowledgment of parentage on the part of a Babylonian f ather.^*^ The person thus acknowledged may inherit together with aU the other heirs of the acknowledgor, no distinction being made between the son of a legitimate wife and the son of a concubine. ^■^ CFv §170. "=§171. ""Meissner, A.A.B., p. 26. "' ' aoknowledgment. ' '" Eoberts, op. eit., II, 6, p. 55 ; Syed Ameer Ali, op. cit., II, 215 f . CHAPTER III AGNATION If a man die without male issue, Ms daughter shall inherit the property.^ The law of succession as formulated by the priestly legislator distinctly provides that the inheriting daughters must marry within their own tribe.^ It wUl not be too venture- some, perhaps, to find in this a compromise with a much older view according to which only the nearest agnate was entitled to the succession.^ In accord- ance with the earlier custom the brother of the deceased has the first claim to the estate. Failing a brother, the paternal uncle and the nearest relative on the father's side are next in order.* But the right of inheritance also involves the duty of levirate marriage, especially in cases where the elder brother dies without leaving a son to perpetuate his name. The surviving brother is required to marry the child- less widow 'and raise up seed to his brother.' By the operation of a legal fiction the firstborn son of this union succeeds to the name and estate of the deceased. The earliest reference to levirate marriage is found in the story of Judah and Tamar.^ Judah, we are told, has three sons, viz. 'Er, Onan, and Shelah.® ^Num. 27: 1-11; 36: 1-12. ^ Num. 36 : 6-8. "Stade, G.V.I., I, 391; Baentseh, op. cit., 696. * Num. 27 : 10 f . ' Gen. 38. ° vv. 1-5. 58 THE SOCIAL LEGISLATION His firstborn becomes the husband of Tamar but dies without issue. The duty of raising up seed to the deceased devolves upon Onan who is by no means favorably disposed toward a custom, which, if car- ried out, would deprive him not only of his own off- spring but also of the inheritance of his brother.^ But since he dare not openly defy the sanctity of the obligation resting upon him, he must resort to secret means in order to defeat the purpose of the levirate.® After a time Onan dies and only Shelah remains. And now Judah, prompted by superstition and fear, intervenes and Tamar is sent home to her family on the pretext that Shelah had not as yet reached man- hood." To judge from the sequel, however, Tamar is not to be deceived in this way. As a woman of initiative she cannot submit any longer to the wrongs heaped upon her by the family of her husband. Some means of redress must be found. She owes it to herself for she is a childless widow. Then again, her motive is a religious one. Her future conduct will be largely determined by considerations of piety toward 'Er deceased without male issue. All that is needed is a suitable opportunity and Tamar will have reached her goal. In the end Judah confesses himself in the wrong. ' She is in the right as against me,' he declares ; 'why did I not give her to Shelah my son!'^** The duty of levirate marriage devolving upon Shelah is performed by his father. Some scholars ' Gimkel, Gen., 373. ■■ w. 8-10. » V. 11. " V. 26. OF THE PEIMITIVE SEMITES 59 would hold that the obligation laid upon brothers by the institution of the levirate might also be extended to the father-in-law of the childless widow.^^ Gunkel, on the other hand, insists that there is every indication in the narrative to the con- trary.^^ Judah's relations to Tamar are of an exceptional nature and therefore hardly typical of the age under consideration.^^ In the well-known passage of Deuteronomy^* the duties of the levirate are restricted to brothers dwelling together on the same paternal estate. This limitation is to serve a twofold purpose, — the per- petuation of a man's name and the preservation of family property.^^ No provision is made in the law to insure its effectual application in every instance. It tacitly assumes that public opinion is no less a weapon in dealing with offenders than the imposition of a heavy fine. Should a man be guilty of evading the law, "the elders of his city shall call him and speak unto him. But if he step forth and say, I do not wish to take her, then shall his brother 's wife draw nigh unto him in the presence of the elders and loose his sandal from off his foot and spit in his face; and she shall answer and say, So shall it be done unto the man that doth not build up his brother's house. And his name shall be called in Israel, the house of the unsandalled one."^® The removal of a man's sandal by the contemned sister- "Benz., S.A.," 288; Bewer, in A.J.8.L., XIX, 143. 1^ Gen. 38 : 16, 26. " Gunkel, op. cit., 374. "25: 5-10. "Deut. 25: 6, 9. "25: 8-10. 60 THE SOCIAL LEGISLATION in-law signifies that he has to forego his right of inheritance to the property of the deceased.^'^ This is but the first step in the humiliating procedure, for, be it observed, such a man is not permitted to remove his own sandal in token of his renunciation of the rights and privileges formerly enjoyed by his elder brother.^^ The next and final step, which marks the climax of the entire ceremony, brings open shame to the unwilling brother-in-law. He has disgraced himself and his family in the eyes of the public by refusing to take upon himself an obligation which affection should have made dear to him. The recol- lection of his unbrotherly act shall cling to him, for his name has become a mere by-word and a term of reproach. Before taking up the remaining phases of the levirate it will be well to adduce further material by way of elucidation of what is undoubtedly an ancient custom. An instructive example is found in Ps. 60:10 (108:9), where the God of Israel is intro- duced as saying: 'Upon Edom will I cast my shoe.' What the psalmist has in mind is the appropriation of the land of Edom by the Israelites. To cast the shoe upon an object is to take possession of it. Ruth 4 : 7 admits of a similar interpretation. If a transfer of property was to be effected, the seller took off his sandal, and gave it to the buyer ; ' and this was a testimony in Israel.' The transaction thus acquired legal validity. We again turn to the levirate. That all the essen- tial characteristics of the institution were known to " Steuemagel, Deut., 92. " Dillmann, Beut., 358. OF THE PRIMITIVE SEMITES 61 the author of the book of Ruth may be gleaned from Naomi's reply to her daughters-in-law. 'But Naomi said, Turn back, my daughters! "Why will ye go with me ? Have I yet sons in my womb who might become your husbands? Turn back, my daughters, go your way, for I am too old to have a husband. If I should say, I have hope, if I should even have a husband tonight, and should also bear sons, would ye therefore wait until they were grown up ? Would ye therefore lock yourselves in and remain unmar- ried? '^^ All things being equal a brother-in-law yet unborn might even be claimed by the surviving widow in order that the 'name of the dead be raised upon his inheritance.' As the test now stands, it appears that the obligation which rests upon the goel does not materially differ from that of a levir.^^ How this is to be reconciled with verses 11 and 21, where the offspring is reckoned as of the line of Boaz and not of Mahlon, is a problem which still awaits a satisfactory solution.^^ The best way out of the difificulty is to assume that the marriage of Boaz and Ruth is not a levirate marriage at all.^^ Boaz redeems the estate of Elimelech and takes Ruth not as levir but as goel. Bewer remarks (ad loc): "The goel has the right and duty to redeem his deceased kinsman's property, including wife, but he has not the obligation of the levirate marriage. ' ' The levirate, then, is losing ground. Before the exile only agnates could be heirs. After that event " Ru. 1 : 11-13. =°Eu.4: 5-6, 10. ^' Nowaok, E.A., 346. ^'McLennan, .4 »c. F«t/ 178; Driver, Dea*., 285; A.J.S.L., XIX, 146 f. 62 THE SOCIAL LEGISLATION daughters are invested with property rights in the case of a man dying without male issue.^* With such a modification in the law of inheritance the levirate necessarily loses some of its former import- ance. Leviticus^* seeks to destroy it altogether by forbidding marriages between persons closely related to each other.^^ This, of course, precludes marriage with a brother's wife.^" But in spite of the priestly code the custom continued to exist^'^ until post-Talmudic times.^* The institution just described is an interesting survival of an archaic custom once prevalent among the Hebrews and other races.^^ Its origin and primi- tive purpose were no longer properly understood by the Hebrews of the historical period as evidenced by the narratives themselves. Stress is laid on the necessity of perpetuating a man's name deceased without male issue and of keeping the estate within the family group. Does a man's Ego continue to live in his reputed offspring simply because he is the bearer of his name ? It will be remembered that the name is looked upon by the ancients (Semites) not as an abstraction, as with us, but as the essence of the thing designated by it.^" To die without off- spring is a calamity for the reason that the deceased is thereby deprived of the only medium by which he 23 p ^^'Lev. 18: 6. '= widow. Lev. 18:16; 20:21. " Matt. 22 : 24 f . ^Baentseli, op. cit., 394. '" i. e., among tlie people of Madagascar and among the Calehaquis of Brazil; cp. also the Laws of Manu. =° Cp. Isa. 30: 27; Deut. 14: 23, etc. OP THE PEIMITIVE SEMITES 63 miglit continue his post-mundane existence.^^ Under no circumstances must a man's name become extinct. From what has already been said it follows that the motive of ' raising up the name of the dead upon his inheritance' is primarily of a religious character. If this is correct, the question of inheritance could hardly have given rise to the levirate. Religion antedates even the most primitive conception of property. The subject of origins is of speculative interest and does not immediately concern us here. But in a discussion of this nature one cannot confine him- self to purely objective standards. And for that reason it might be well to indicate, in passing, what others believe to be the origin of levirate marriage. Nowack^^ would explain the custom as a relic of matriarchy. The existence of polyandry in a num- ber of cultural areas, including the South Arabian, has given rise to the theory that the levirate system is a survival from a previous polyandric condition of society.^^ Stade, however, inclines to the view that the institution of levirate marriage grew up in connection with ancestor worship. Only sons^* are capable of carrying on the family cult, the contin- uance of which depends upon the raising of seed to the deceased kinsman, that is, if he should die with- out male issue.^^ Finally it has been urged on the '^Bertholet, Buth, 57; cp. Eutli 4: 10. " Op. oit., 348. =* McLennan, op. eit., 172-182 ; Smith, Kinship, 145 f ., 272 ; Well- hausen, Ehe, 460, 474, 479; Buhl, S.V.I., 28 f. ^* Agnates. "= Stade, op. oit., I, 393 f., Guukel, op. cit., 373; Baentseh, 394, 636; Benzinger, op. cit., 113 ; cp. I'ustel de Coulanges, Ancient City, 86. 64 THE SOCIAL LEGISLATION basis of Deut. 25 : 6 and Ruth 4 : 10 that the desire to maintain the integrity of the estate would even- tually lead to the levirate. According to Gunkel this merely represents the attempt of a later age to explain an institution no longer clearly understood. It appears that the evidence points to a religious rather than an agrarian origin of so complex a phenomenon as the levirate.^® As regards the levirate before Islam, the polyan- drous condition of society in many parts of the Arabian peninsula would probably furnish a fertUe soil for such an institution.^'^ Among the Yemenites small fraternal groups, or families, lived together under the headship of the eldest brother who was also in possession of superior conjugal rights.^® Buhari relates that a sept of less than ten men had one wife in common, and that subsequently to the birth of a child all the members of the group were summoned together by the wife for the purpose of designating one of their number as the father of the child.^® Robertson Smith is of opinion that the levirate of Deut. 25 : 5 f . goes back to a similar type of marriage in which a small group of brothers dwelling together on the same estate had a sort of common property in the wife.*** But the fact that =' Cp. Charles, op. cit., 26. " Benzinger, op. cit., 288. ==So Strabo, XVI, 4: 25; ep. Kinship, 158. ™ Wellhauseii, op. cit., 460. " Caesar speaks of a similar practice among the British Celts : ' ' Ten and even twelve have wives common to them, and particularly brothers among brothers." D.B.6., V, 14. OF THE PEIMITIVB SEMITES 65 the child was definitely assigned to one of the mem- bers of the group may be regarded as an initial stage of patriarchy.^^ The levirate appears to have been unknown in Babylonia. When first emerging into the light of history the Babylonians had passed beyond that stage where the yaham*^ marries the childless widow to the end that the decedent's name might be perpetuated. " Wellliauseii, op. cit., 461. " ' Brother-in-law. ' CHAPTER IV THE Go el, OR NEXT OF KIN In default of sons or brothers tlie goel, or next of kin, inherits the property of the deceased. There is sufficient evidence to show that the right of inheri- tance sometimes involved the duty of marrying the childless widow. For this reason it may be neces- sary to assume an ancient connection of the ge'ulla with the levirate.^ The above term has a most interesting history. Goel signifies "the avenger." If a fellow clans- man is slain by an outsider, whether voluntarily or involuntarily, the duty of blood-revenge devolved upon the person standing nearest to the dead, who is known as 'the avenger of blood. '^ To avenge the blood of a kinsman is a matter of family honor. The honor of the kin must be upheld and vindicated, whatever the cost. Thus the duty of blood-revenge is merged into that of a vindicator of family rights. It is quite patent that among the latter we also find the right of inheritance. On the eve of the destruction of Jerusalem by the Chaldeans Jeremiah receives a visit from his cousin of Anathoth, who wishes to sell some property.^ The proximity of Anathoth to the Judean capital in those trying times may have been responsible for ' Cf . Jastrow, Avenger, Kinsman, and Redeemer, p. 6. "2 Sam. 14: 11; Deut. 19: 6, 12; Num. 35: 19, 21, 25, 27; Josh. 20 : 3, 9. Where Hood has been shed accidentally, the murderer may flee to one of the cities of refuge especially set aside for the purpose. Deut. 19: 1-3, 7-10; Num. 35: 9-29; Josh. 20. ' Jer. 32 : 6-15. OF THE PRIMITIVE SEMITES 67 the financial embarrassment on the part of Hana- meel, detachments of the besieging army having repeatedly entered his native town in quest of provi- sions for the Chaldean army. At all events he calls upon the prophet to buy his plot of ground in the vicinity of Anathoth. Jeremiah, as the chief agnate, has the right of purchase to the estate. Indeed, it is his duty to buy the land before it goes into strange hands. This is borne out by the Hebrew. Mishpat hagge'ulla of verse 7 really refers to the right* of preemption rather than the right of redemption, the property not having been previously sold to a third party.^ If Hanameel die without issue, Jere- miah would by reason of his close relationship be the only legitimate heir to the entire estate. "And Hanameel mine uncle's son came to me in the court of the prison — and said unto me, Buy my field, I pray thee, that is in Anathoth . . . ; for the right of inheritance is thine and the right of preemption is thine."*' The purchase is made in keeping with all the legal requirements of the time. A deed is drawn up by the contracting parties ; witnesses are called ; and in their presence the money is placed on scales and weighed, full weight being insisted upon in every business transaction. According to verse 10 the deed was already sealed when signed by the witnesses, in which case the names were probably written on the outside of the sealed copy to avouch the fact that it was properly sealed.'' This, of * duty. " ComiU, Jer., 360 ; Giesebrecht, Jer.,^ 176. "v. 8. ' Giesebreeht, op. cit., 177. 68 THE SOCIAL LEGISLATION course, raises a somewhat difficult question, e. g., what was the nature of the document, or purchase- deed of our text? The Massoretic test evidently speaks of two copies, 'the sealed and the open.'* The Septuagint, on the contrary, refers to only one copy.» In verse 11 'the commandment and the stipulations' is probably a gloss. Et-haggaluy is likewise omitted in the Greek. Of the omissions in verse 14 Dinnn-nNi rbii'n DnsDn-riK - and r^^'n T V V : V ■■ T • T : - (immediately after 'njin) are the most important. In place of DflflJI the Greek has nJiriJI and "ibi^! instead of npi;!- The LXX reads: oiiTw elire Kvpio<; iravTOKpaTcop A,a/3e to ^i^Xiov rrj? KTtjcreco'i tovto («ai TO j3i^\iov TO dveyvcoa/jLe'vov) koX Orjo-ei'; (avTo) ell ayyelov oaTpctKivov "va Sta fieivr] rjfiepat; TrXe/bw. The expression Koi TO ^l/SXiov to dveyvcoa/jievov arouseS suspicion.^" It may have been taken over from a copy of the Hexapla and then added to the original translation on the basis of the M. T. If the LXX reading may be taken as a safe guide, the original Hebrew text would read as follows : nnnji nrn njpan "igd nx np nixn^f mn» "idn no D'3"l D'D' lf2V^ f^Q*? £ynn-''?DD "Thus saith Yahwe of hosts : take this purchase-deed and put it in an earthen vessel that it may continue many days." Stade maintains that there was only one copy of the contract which consisted of two parts. A portion of the document, containing all the necessary data relating to the purchase, was folded up and sealed, after which the witnesses wrote their names on the " w. 11, 14. ' 11, 12, 14. "Coruill, op. cit, 363; Duhm, B., Jer., 265. OF THE PRIMITIVE SEMITES 69 remaining portion wMch. was left open.^^ A similar distinction is made in the case-tablets of ancient Babylonia as well as in tbe scriptura interior and exterior of the Eoman contracts.^^ The open copy could be readily used for ordinary reference and the one that was sealed must only be appealed to in cases of dispute. We must now seek an explanation for the additional information furnished by the M. T., which is wanting in the LXX. These addi- tions evidently belong to a time when duplicate copies of real estate transactions were required by custom. The open" deed would then be a separate document, or duplicate, which could be shown when- ever needed.^* Jeremiah greets this opportunity of buying his cousin's property as a providential token of the final restoration of those who are about to be exiled, for "houses and fields and vineyards shall again be bought in this land."^^ The amount paid for the field was seventeen sheqels of silver.^** Why so trifling a sum was paid is not stated. An attempt is made by some expositors to show that money pos- sessed a much greater purchasing power in ancient Israel than at a later period. A wandering Levite, for example, agrees to remain in Micah's house and become his priest for 'ten sheqels of silver a year, in addition to a complete suit of apparel and his living. '1'^ David buys the threshing floor of Arau- " Zeitsdhrift fur ali-testamentliche Wissensdhaft, 1885, 176. "Duhm, B., Ut. CentralUatt (1904), 875. '= public (?). "Duhm, op. cit., 265; Cornill, op. cit., 362. « V. 15. "About eleven dollars. "Judg. 17: 10. 70 THE SOCIAL LEGISLATION nah, including oxen and implements, for fifty sheqels of silver.^® Cornill^^ interprets himhir to mean the full value of the property. But this is somewhat doubtful. The area is an extensive one. And it is safe to say that no one but the king himself could succeed in making such a purchase. In 1 Chron. 21 : 25 David pays six hundred sheqels of gold for the same site. The Chronicler seems to have multi- plied the original amount by twelve in accordance with the idealizing tendency of his own age. Gen- esis 23 contains an interesting account of Abraham's purchase of the cave of Machpelah. Granting the force of the arguments brought forward by scholars relative to the composition of the narrative in its present literary form,^^ it does not follow that the details are anything but a transcript from real life. Abraham — so the story runs — enters into negotia- tions with the Hittites of Hebron for a suitable plot of ground to bury his dead. His request is met with politeness and formal courtesy; the best of their sepulchres will be placed at his disposal, if he so desire. It will be observed, however, that this expression of goodwill, later repeated by Ephron, the Hittite, is a necessary prelude to any orientaP^ business transaction. Accordingly, the suggestion of a gift is tactfully ignored by the sojourner in Hebron, thus betraying a thorough acquaintance with the customary mode of procedure in such mat- ters. And Abraham "spake unto Ephron in the "2 Sam. 24: 24. "Jer., 361. 20 p ^ Semitic. OF THE PRIMITIVE SEMITES 71 presence of the people of the land, saying, But if thou (wilt give it), I pray thee, hear me : I wUl give thee money for the field; take it of me, and I will bury my dead there. "^^ Ephron now signifies his willingness to become a party to the transaction by naming his price with the affectation of generosity so characteristic of business methods in the East.^^ "Four hundred sheqels of silver, what is that between me and thee 1 ' ' Bars of silver to the value of four hundred sheqels are then placed on scales, weighed in the presence of the afore-mentioned wit- nesses, and the bargain is closed. The wording of verses 17-18 is in all probability a good illustration of contemporaneous legal usage in Israel. "And the field of Ephron, which was before Mamre, the field and the cave which was therein, and all the trees that were in the field, that were in all the borders round about, were made sure unto Abraham for a possession in the presence of the children of Heth, before all that went in at the gate of the city." Unfortunately nothing very definite is learned from this passage as to the exact dimensions of the field here in view. The origin of the present narrative and the author's interest in the purchase of this ancient burial-place are also problematical.^* Men- tion is also made of the purchase of a parcel of ^ Gen. 23 : 13. ^ ' ' The peasants will often say when a person asks the price of anything which they have for sale, 'Keceive it as a present:' this answer having become a common form of speech, they know that advantage will not be taken of it; and when desired again to name the price, they will do so, but generally name a smn that is exorbi- tant. ' ' Lane, Mod. Eg.,' II, 13 f . "*Gunkel, op. cit, 237, 249 f.; Skinner, Gen., 334 f. 72 THE SOCIAL LEGISLATION ground in Shechem by one of the patriarchs.^' The qesita,^^ however, is an unknown quantity. It is impossible, therefore, to arrive at any definite con- clusion with regard to the value of landed property in ancient Israel. The contract at Machpelah between Abraham and Ephron the Hittite bears some likeness to the con- tracts of ancient Babylonia, of which the following will serve as a good illustration: '14 gan of field^'^ by the crossing, in the upper district of Tenu, beside Qaranu . ., and beside Ilimidi, the front side (adjoin- ing) the road to AsMaba, the other front side the irrigation plant of Tenunam, Ilushu-bani has bought from Nannar-idinna and Sin-bani, his brother, the sons of Sin-abu-shu, for its complete price. He has paid the money . . . They are content. They shall not say, 'We have not received the money' — they have received it before the elders. At no future time shall Nannar-idinna and Sin-bani make claim upon the field. By Shamash, MarduJc and Zabium (the king) they swore.' Nine witnesses.^® It will be noted that the boundaries are stated with greater precision in this document than in the transaction at Hebron. The same observation holds good concerning the sale of '12 measures of date- palm plantation, beside the plantation of Rish- Shamash, and fronting the property of Girum.'^^ ="Gen. 33: 19; Josh. 24: 32. ■"■LXX and Vulg: 'lamb.' ''' eqlu (eqlim), a cultivated (irrigated) plot of ground. ^ Daiehes, Altbab. Bechtsurlcunden aus der Zeit der ffammurahi- Dynastie, in Leipsiger Sem. Stud., I, 2, p. 38, no. 5. ^Pinches, op. cit., 237. OP THE PEIMITIVB SEMITES 73 Land values in Babylonia were usuaUy determined by the location and quality of the soil.^<* Accord- ingly ' 6 acres*^ of gug-she field, in the field Till-Sin, the front side (adjoining) the canal Abarri, the other front side the canal Baihum, with the long side adjoining Sin-hasir, the builder,' are sold for 121/2 sheqels of silver.*^ In another contract tablet of the First Dynasty the sum of 40 sheqels^^ is paid for 6 gan of field.** The highest price recorded in these documents is 4 minas of sUver: '5 gan of field in Ihle, beside the field of Sin-idinnam and beside the field of Abba-hibum, Lamasi, the daughter of N oka- rum, has bought from Amat-Shamash, the daughter of Sin-ilu; and as its full price she shall pay 4 minas of silver. Her transaction is complete ; she is con- tent. At no future time shall the one make claim against the other. By Shamash, Aa, Marduk and Hammurabi they swore. '^^ "Where the purchase-money was not paid down at once, an exorbitant rate of interest seems to have been added to the principal, thus more than doubling what would ordinarily have been the selling price of the field.'** Examples of deferred payment, in which this actually happened, occur in later Babylonian contracts. ^ Daiches, op. cit., I, 2, p. 7. '^ gan, the equivalent of 1800 sar. '" Poebel, in B.E., Series A, v. VI, pt. 2, p. 5. " y^ mlna of silver. "Daiches, loc. cit. *" Daiches, p. 62, no. 14. '^ Ibid., p. 8. According to one of the earliest inscriptions the selling price of a field of 73 gan is 4 minas and 36 sheqels of sUver. Cf. Johns, op. cit., 236. 74 THE SOCIAL LEGISLATION Perhaps it will not be amiss to indicate briefly under this head that in conveyances of real estate the land upon which the house was buUt was the maiu consideration. Houses in Babylonia were treated as so much land and sold by the area, pre- sumably on the recognition that the land was the only permanent thing in a country where the aver- age building materiaP'^ was of no great perma- nence. In the determination of real estate values the location and size of the 'built-on plot'^* as well as the character of the house itself, would play an important role. Thus the price of 'one sar^^ of buUt house' might vary from 2-371^ sheqels of silver.*** But to return to Hanameel's patrimony in Ana- thoth. Inferentially the field was not very large. It is also quite conceivable that the impending doom of Jerusalem and its inhabitants would have a tend- ency to lower the price of land in Anathoth. Land values always reflect political conditions. Another possibility to be reckoned with is that Jeremiah's cousin may not have insisted on the full value of the property since it would be his privilege to repur- chase the estate for the same price. Viewed in this light the seventeen sheqels practically amount to a loan, the goel having the usufruct of the property untU the loan is paid. Otherwise the property " Sun-dried bricks. ^ iitu epshu. ^' The area of the sar was 6 metres square. *Daiches, 69, no. 17; 67, no. 16; 75, no. 20; 58, no. 12. OF THE PEIMITIVB SEMITES 75 remains in the hands of the goel, who, as already stated, had consented to the purchase in order to prevent the alienation of family property. Presumably no distinction is made in the pre-esilic period between the property rights of priests*^ and those of the laity. The restriction of the former to the teruma layaliwe belongs to a later age.*^ According to the prophet of the exile, a portion of Yahwe's oblation is set aside for the maintenance of the priests and their families. This land is Yahwe's personal property which cannot be sold under any circumstances.** In Lev. 25 : 25 the goel becomes the champion of an unfortunate and oppressed relative who had been obliged to sell a portion of his landed estate. The nearest kinsman** shall redeem the property, and restore it to the 'family' to which both belong. A more complex type of the ge'ulla appears in the book of Ruth where Boaz is introduced as the protector of a needy widow. Strictly speaking, he is not the ^oe7 but only an 'acquaintance' of the famUy.*^ In answer to Ruth's appeal*® Boaz says: "Now, indeed, I would act as goel were there not a goel nearer than I am. . If he will do thee the kinsman's part, well, let him do the kinsman's part; but if he is not pleased to do thee the kinsman's part, then I will do thee the kinsman's part."*^ The obliga- *1 K. 2: 26; Jer. 1: 1; Neh. 13: 10. ^Ezek. 45: 1. "Ezek. 48: 14. ** goel. «2: 1; cp. 3:2. "3: 9. « 3 : 12, 13. 76 THE SOCIAL LEGISLATION tion is acknowledged by the relative, and he even declares himself willing to redeem the estate of Elimelech.*^ But upon being told that by buying the inheritance he must also marry Euth he renounces his rights in favor of Boaz, and turning to the latter, he adds, "I am unable to redeem it for myself lest I mar mine own inheritance : redeem thou my right to thyself for I am unable to redeem it."*^ Possibly the goel was already married^" and did not wish to mar his inheritance by a second mar- riage which might eventually lead to a division of the property among the children of both wives. Boaz, it seems, is free to act in the matter for he immediately buys the inheritance ' from the hand of Naomi' and marries Ruth owing to the advanced years of her mother-in-law.^^ Much of the evidence undoubtedly points in the direction of levirate mar- riage, not of the older type exactly, but of a modified form of it, as evidenced by the interplay of various motives, some of which are difficult to reconcile with each other.^^ That the goel should be obliged to buy the inheritance, marry the widow, and then take upon himself the additional duty of the levirate, is not altogether in harmony with the idea of inheri- tance and the levirate custom. "The heir does not buy his inheritance, nor would the levir, who is always the heir, buy it ; he enters into the place of the deceased by virtue of his blood relationship, and not because he buys this right which is coupled with « 4 . 4b «4: 6. " So Targum. Bertholet, K.E.K.A.T., 66. "1: 12; 4:5, 10. ■^Nowack, E.K.A.T., 195. OF THE PEIMITIVE SEMITES 77 obligations."^^ The opening verse of the third chapter clearly shows that the wellbeing of Ruth is the object primarily aimed at, "Then Naomi her mother-in-law said unto her, My daughter, shall I not seek a resting-place^* for thee, that it may be well with thee?" And strangely enough the purpose of the levirate is actually defeated in the end, Obed being regarded, not as the son of Mahlon, but of Boaz.^^ Briefly stated, the goel of the book of Ruth purchases a parcel of ground once owned by Elime- lech, marries Ruth the Moabitess, and 'builds up his own house. '^^ The offspring of this marriage is heir to the inheritance of Elimelech as well as that of his real father, Boaz. The ge'ulla, then, is an adaptation to agricultural conditions. After the settlement in Canaan agra- rian interests predominate. Property in lands and houses must be protected and kept within the family. The transition from the 'avenger of blood,' charged with the duty of avenging the wrongs of a fellow clansman, to a vindicator of family rights would seem to be a natural one. In an agricultural com- munity the goel has not only the right of preemp- tion,^'' but also that of redemption.^® The goel, as has already been seen, is morally bound to buy the property of his relative who is obliged to sell his pat- rimony. Property already sold must be 'redeemed,' or bought back, and so restored to the family. '^A.J.S.L., XIX, 145. " home. ^=4: 21. "'4:11-12. ^' Jer. 32. ""Lev. 25: 25; cp. Euth 4: 4, 6. 78 THE SOCIAL LEGISLATION The application of the old term goel to Yahwe marks another stage in the history of the word. Canaan, it will be remembered, had been seized by the Hebrews in the name of Yahwe their God and held by them on lease. Several centuries later they are forced to abandon their native country and settle in Babylonia. But while Yahwe has suffered the destruction of Jerusalem and its sanctuary, he will again restore the land to its former condition. Most of the passages, in which the term goel is applied to Yahwe, are to be found in the latter part of Isaiah.®^ "For naught ye were sold," says the prophet, "and not for money shall ye be redeemed."^" The God of Israel has received no equivalent from the Babylonians for his possessions. No sale has been made in any real sense but only a temporary transfer. The restoration of the exiles will soon be at hand. "Thus saith Yahwe, thy Goel, I am Yahwe, the maker of everything, that stretcheth forth the heavens alone, that spread forth the earth, that saith of Jerusalem, Let her be inhabited, and of the cities of Judah, Let them be built, and her desolate places wiU I raise up."^^ And again the prophet exclaims: "Break out in song ye waste places of Jerusalem, — for Yahwe hath redeemed Jerusalem.""^ The land is to be restored to its rightful owners by the divine goel. God will reclaim his people from exile: "Go ye forth from Baby- lon, — declare ye, Yahwe hath redeemed his servant Jacob.'"** The returning exiles shall be called "a '''' Chaps. 40-66. «> 52 : 3. <"44: 24, 26. ""52: 9. »= 48 : 20. OF THE PEIMITIVB SEMITES 79 people of holiness, the 'redeemed ones' of Yahwe,"8* whom the Lord "hath gathered from the east and from the west, from the north and from the sea." Despite the fact that the legal decisions of Baby- lonia have not as yet yielded any definite statements regarding the goel's preferential right of buying hereditary property in order to prevent its aliena- tion from the family, the right of preemptions^ may be inferred from the occurrence of the right of redemption. Thus, five acres of cultivated land, for- merly held by the claimant's father, are redeemed or bought back for seven sheqels of sUver.**® It is but reasonable to suppose that the seven sheqels cor- respond to the amount paid by the previous pur- chaser. Considering the superior quality of the land the original purchase-price could scarcely have represented the full market value of the field. More- over, there is nothing in the context to indicate that the full price had been paid, the characteristic phrase, sham-til-la-bi-shu, being entirely absent. According to another tablet, also from the First Dynasty, the price of redemption for one-half sar of built house and one-half sar of waste land in the immediate vicinity is five sheqels of sUver.®'' In a deed of sale, already quoted,®® the vendors and their legal heirs are explicitly bound not to insti- '«62: 12; op. 35: 9; 51: 10. •^ Johns, op. cit., 122, 184. " Poebel, p. 11, no. 45. "'Meissner, A.B.B., p. 7; cp. Meissner, B.A.P., 42. ^ See above, p. 72. 80 THE SOCIAL LEGISLATION tute legal proceedings for the recovery of hereditary land. 'At no future time shall Nannar-idinna and Sin-bani make claim upon the field. . If their brothers or sisters should make claim, then Nannar- idinna and Sin-bani shall pay an indemnity. '^* This verb reappears in the same form in Neo-Babylonian jurisprudence. Should the seller break his agree- ment and put in a claim to the property, ' ' The plain- tiff of that field shall restore'^** twelve-foW^ the money which he received." The imposition of a heavy penalty on the seller and his heirs was a suffi- cient protection to the buyer against the reclamation of family property. The right of buying back such property must have existed on the seller's side, otherwise neither he nor his closest relations would have been called upon to obligate themselves not to interfere with the transaction.''^^ The functions of the Hebrew go el, previously described, are assumed to a very large extent by the waW^ of Arabic literature. As the next of kin, the wall is bound to avenge the blood of a slain kins- man, 'And slay not the souF* that God has forbidden '"itanapalu, 13 from apalu, 1, to answer; 2, to satisfy, restore, indemnify, of. Daiohes, p. 41. " itanappal, cf . Clay, B.E., Series A, v. VIII, pt. I, 23-24. "A like penalty is imposed in Assyrian times; ef. Johns, 244. " For further illustrations cp. Daiohes, nos. 1-20 ; Meissner, op. cit., nos. 30-50; Johns, A.V.J)., §600; Kohler and Peiser, A.B.B., V. I, p. 15. '°plur. awliya', the nearest kinsman. The corresponding verb is waliya, to be near, to proteot. That the wali was a olose relative is proved by the equation of wali with aqarihu. Proeksoh, Blutrache, 25, n. 4. "'Ufe.' OF THE PRIMITIVE SEMITES 81 you, except for just cause. If any one is slain unjustly we (God) have given his wali authority but he shall not go too far in slaying where he receives aid. ''^® "When acting in this capacity he is commonly referred to as the waliyyu' d-dam, or the avenger of blood. In exacting retaliation the brother and the son of the slain have the precedence. Failing these the duty of blood-revenge'^^ devolves upon the father, the paternal uncle,'^^ the nephew on the father's side, and then on the grandson and the first cousin.''* The order in which the above individuals are named clearly indicates that the duty of retaliation was an immediate concern of the 'family''^ and not of the community at large. It was only when the 'family' was in no position to carry out the obligation that the duty fell to the lot of the tribal group to which the 'family' belonged.*** How disastrous the law of blood-revenge must have been to the best interests of Arabian society may be surmised from the attempted remedial leg- islation of the great reformer. In a fragmentary law code, compiled during Muhammad's stay in Medina, it is enacted that 'if a man kill a fellow Muslim and he be convicted, then the slain man shall be avenged, provided the wali of the slain insist upon it ; at any rate the believers must make a united stand against him.'*^ Instead of the old ™Sura, 17: 35; cp. Sur. 6: 152. ™ The technical term employed is fha'r {thu'ra). " ' amm. " ibnu I 'afyi, cf . Prooksch, 25 f . ™ raht. ™Procksch, 28-29. "ilbid., 66 (342: 13). 82 THE SOCIAL LEGISLATION blood-feud of 'the days of ignorance' the act of requital now has for its object the guUty culprit him- self, the wali becoming the executioner in the event of his unwillingness to take blood-money from the slayer's kinsmen. That the members of the new community should treat the slayer as an outlaw and assist in his capture marks an advance on previous practices, which often resulted in social and political chaos. In the sequel, however, the provisions of the new law suffered numerous infractions, especially in the desert where the old tribal feeling and the sense of solidarity on the part of the kindred group were far more pronounced than among the urbanites of Arabia. Thus it is easy to see how the wali comes to be regarded as the protector of a kinsman's interests. All bloodshed is avenged by the nearest relative of the slain, the wali either slaying the culprit or accepting the usual blood-money.*^ "Where other interests are at stake, such as property and the like, the wali may act in the capacity of a protector or guardian^^ of his kinsman's property rights as he will ultimately share in the inheritance himself. In a passage, antedating the flight of Muhammad, the wali inherits along with the sons of the decedent.** According to Baydawi's comments on Sura 17:35 the wali is really the heir.*^ '^"The blood-money between tribe and tribe", says Shayjp 'AU, "is now eight hundred dollars, which is contributed by all the tribesmen of the slayer, and is equally divided among all the males of the tribe." Cf. Kinship, 64, note 1. »= Cp. Sur. 4. '^WeUhausen, Ehe, 477. '^ alwali = alwarith. Procksch, 25, n. 3. OF THE PEIMITIVE SEMITES 83 Even Allah is spoken of as the wali^^ of his people.*'^ The relation of the wali to the right of preemption and redemption is a matter of obscurity because of a lack of elucidative evidence. But before leaving the subject it will be of interest to observe that accord- ing to the Muhammadan law of India the right of shufa or preemption applies to immovable prop- erty®* owned by one or more individuals.®® Among |;he Hanifites the right of shufa may be claimed by three classes of persons: (1) by the co-sharer in the property, (2) by a sharer in the rights and appurte- nances, and (3) by a neighbor. The preemptor has a right to press his claim as soon as the property has been transferred for a consideration.®" It goes without saying that the price offered by the claimant must be the same as that paid by the purchaser. For any deterioration of the property caused by some act of the purchaser in consequence of the claimant's demand, the purchaser is liable. One of the devices resorted to for defeating the right of shufa was to sell the property for a price above its value and then to receive something of trifling value in exchange for it. This would have com- pelled the preemptor to pay the full price, that is, if he stiU persisted in buying the property. ™ protector, guardian, governor. " Sur. 13 : 12b. ** Some of the Muslim doctors would also extend the right to slaves. Of. Baillie, XJ.B.B., A Digest of Muhammadan Law, 176. ^ Syed Ameer Ali, op. cit., I, 589 f . °° A Shi' ite, on the other hand, may avail himself of this privilege immediately on the conclusion of the contract and not subsequently to the transfer of the property. 84 THE SOCIAL LEGISLATION The right of shuf'a could be inherited by the heirs of the preemptor.^^ The latter might also relinquish his right in favor of the purchaser, either with or without any compensation. From what has been said above it would appear that there was a strong disinclination among the Arabs to alienate landed property. Thus, if a Beduin, for any immediate purpose, such as making an atonement for bloodshed, 'must sell his inheri- tance of land, he sells it to some tribesmen, and not to the negro tenants. '"^ "' So among the Shi' iies and STiafi' ites. ^ Doughty, op. oit., II, 116. CHAPTER V SLAVEEY The institution of slavery presents in connection with property and its rights many interesting aspects, of which perhaps agnation is the most significant. Strict adherence to the principle of agnation occa- sionally resulted in the selection of an adopted male slave as successor to his master, provided the latter died without male issue. Abram's steward, or chief slave, for instance, will be the heir unless a son is born to the patriarch.^ An example of like import is found in 1 Chron. 2: 34. "Now Sheshan had no sons, but he had daughters. And Sheshan had a slave, an Egyptian, whose name was Jarha. And Sheshan gave his daughter to Jarha, his slave, to wife." Perhaps it will be permissible to read a sociological meaning into this passage, regardless of the claims of exegesis. Positions of responsibility requiring more than average ability were open to slaves who had gained the confidence of their masters. Thus Ziba, the servant of Meribaal, is rewarded with the management of his young mas- ter's estate for his loyalty to David at a critical point in the king's career.^ According to Lev. 25 : 49 a bondslave might acquire sufficient means wherewith to purchase his freedom. Slaves were generally regarded as members of the household into which they had been adopted.^ As a >Gen. 15: 1-4; 24: 2. '2 Sam. 9; 16: If. " Stade, op. cit., I, 379; Benzinger, op. (At., 125. 86 THE SOCIAL LEGISLATION member of Abram's family Eliezer has a capacity for inheritance. The rite of adoption, which may be safely assumed in the case of Eliezer, also carried with it acceptance of the family worship. The manager of the patriarch's estate prays to the God of Abraham.* Non-Israelites must enter into a cove- nant relation with Yahwe by submitting to the rite of circumcision before they can be adopted into Israelitish families.^ Slavery on a large scale presupposes a certain amount of material progress. Nomads are not in a position to create a surplus of economic goods owing to a scarcity of food and industrial pursuits. The institution of slavery could not have been a factor in Hebrew life until after the invasion of Canaan. That the conquest was a gradual one is now a com- monplace in Hebrew history.® For many years the invaders were unable to capture the strongholds of the urban population of the land.'' The inhabitants of the country district in the highlands and of the unprotected villages were either exterminated or enslaved. Where only a slight advantage had been gained over their opponents, the latter were made tributary to the Hebrews.* Such communities were subsequently reduced to a servile condition, for "when Israel was become strong they put the Canaanites to task- work."® At this early period a ^Gen. 24: 12, 27, 42, 48. »Ex. 4: 24 f., Josh. 5: 2 f.; 1 Sam. 17: 26, 36; Ezek. 44: 7, 9; Isa. 52:1; Lev. 26:41; Gen. 17:10-14, 23-27; 34:14f., Ex. 12:44, 48; cp. Gen. 17:13-14. ' Ex. 23 : 30 ; Deut. 7 : 22. ' Judges. »Judg. 1: 35. • Judg. 1 : 28. OF THE PRIMITIVE SEMITES 87 compromise is effected wherever necessary under the circumstances. The struggle between the Israel- ites and Canaanites thus proves to be a struggle for control rather than a struggle for extermination.^" In the sequel many of the inhabitants of the land are enslaved by the conquering invaders, since there was an imperative need for servUe labor, for which the Canaanites were better adapted than the incom- ing tribes from the Arabian desert. The necessity of utilizing the native population for the purposes of agriculture eventually led to the setting up of a fictitious kinship through adoption and covenant.^ ^ By a long process of absorption and assimilation a considerable number of Canaanites and other aliens were grafted into the social fabric of the new com- munity. Alien women naturally became the prop- erty of their masters. "Where these aliens were men, . they were treated either as slaves or as clients.^^ All these aliens might enjoy the protection of Israelite society upon their acceptance of the religion of Yahwe, which, as already intimated, was the usual accompaniment to adoption. Outsiders willing to meet all the religious and social requirements of the protecting community could attain to full citizenship, and so avail themselves of all the rights and privi- leges of a native-born.^* Foreigners^* living within the confines of the holy land, who failed to meet the above conditions labored under serious disad- vantages. " Wallis, Journal of Sociology, v. 14, 502 f . "Ex. 23: 32; 34: 12, 15; Deut. 7: 2; Judg. 2: 2. " gerim. " ezrah, Ar. sarih. " nokri. 88 THE SOCIAL LEGISLATION Servitude, however, was by no means restricted to aliens conquered in battle. Through stress of poverty, occasioned by drought, famine, and other misfortunes, sons and daughters of Hebrew par- entage were frequently sold into slavery as an escape from hunger and the alienation of the family domain. From the standpoint of the invaders the acqui- sition of the land of Canaan was made possible by the divine right of conquest.^^ Country estates were held by the heads of Israelitish families, such as Gideon and Elkanah, Saul and David, and all the rustic folk who make their appearance in some of the oldest historical narratives of the Old Testa- ment.^^ At a later period the centralizing tendency of a despotically inclined monarchy had its counter- part in a gradual concentration of landed property in the hands of a privileged class of officials and courtiers. The rise of a luxurious court in the reign of Solomon and his immediate successors, together with the growth of a commercial spirit, especially among the wealthy classes who centred in the cities, proved disastrous to the lower stratum of the population. Under the pressure of hard times temporary relief was sought by the peasants in mortgages on their farm lands and houses. But loans once made are extremely difficult to repay. Foreclosures seem to have been the order of the day, as may be inferred from the extant evidence relating to the enslavement of insolvent debtors. " Judg. 11 : 23-24. ^° Judges, Samuel, and Kings. OF THE PEIMITIVE SEMITES 89 The acuteness of the social problem no doubt led to the compilation of a considerable portion of the earliest Hebrew code known to us.^^ There can be no question as to the antiquity of its contents in spite of the fact that the book was not published until some time after the reign of Solomon. One of the principal concerns of the legislator is with the rights of Hebrew slaves who had probably been sold or who had sold themselves into slavery in payment of a debt.^* The period of service is to be limited to six years, and in the seventh year the slave is to be released from all further obligations toward his creditor. If, upon entering his master's service, he was the possessor of a wife,^^ his wife and children shall accompany him when he receives his freedom ; but if his lord married him to one of his female slaves the wife and children must remain in servi- tude as they are the master's property. Family attachments, of course, would in many cases furnish a powerful motive for a voluntary life service on the part of the slave, especially if his lot had been made all the more endurable by good treatment at the hands of his master. The code provides in such a case that the slave shall be brought by his owner unto the elohim^" of the house in whose presence the "master shall bore his ear through with an awl" as a sign of perpetual slavery.^^ " Ex. 20''-23»- "Ex. 21: 2 f. " ba' al ishsha. ^ Household gods, or Penates, kept and worshipped near the door of the house. Baentsch, Ex., 190. « Ex. 21: 6. 90 THE SOCIAL LEGISLATION A female slave, on the other hand, is not to be liberated at the end of a stated interval of time.^^ The book of the Covenant explicitly states that a daughter who is sold by her father as a bondwoman is usually married by the one making the purchase or by the latter 's son.^^ In no case shall the owner be permitted to sell her to a non-Israelite. If the woman no longer found favor in her master's eyes, she must be either redeemed or retained by him, even if he decide to take another concubine, without thereby curtailing any of her former marriage rights, including food and clothing. Where these rights are withheld, no ransom is required for her liberation from servitude; she goes out a free woman.^* The Deuteronomic legislation marks an advance on the law of Exodus in that the period of servitude is to be identically the same for both sexes. "If thy brother, an Hebrew man or an Hebrew woman, be sold unto thee, he shall serve thee six years; and in the seventh year thou shalt send him away free from thee."^'' A similar extension is made to a female slave who prefers a lenient master to the uncertainties and possible hardships of freedom.^® The appropriate ceremony performed by the master prior to the reception of the slave into his house- hold corresponds in every particular to that of Ex. 21:6.2^ =^Ex. 21: 7-11. =^Ex. 21: 8-9. =^*Ex. 21: 11. =^Deut.l5: 12. ''"Deut. 15:16-18. " For obvious reasons no allusion is made in tMs eonneetion to the household gods of more ancient times, the word delet (door) being the only survival. OP THE PRIMITIVE SEMITES 91 Slaves desirous of regaining their liberty after six years of service are to be generously dealt with; they are to receive a share of the agricultural prod- uce, consisting of cattle, grain, and wine, as a safe- guard against oppression and hopeless poverty.^* Laws like these appear to have been generally dis- regarded by the city capitalists at large. No men- tion is made of the release of Hebrew slaves until the days of Jeremiah.^® Jerusalem, as we learn from the prophet, is again besieged by the Chal- deans.^" The necessaries of life, though ample at first, aie gradually becoming less and less from day to day. Every available man is pressed into the service. A year of release^^ is proclaimed through- out the city, possibly under the influence of a tem- porary panic, with a view to stimulate the slaves to greater activity and zeal in their efforts to thwart the purposes of Nebuchadrezzar. The Chaldeans, it appears, withdraw for a time with the intention of joining battle with Pharaoh's army approaching from the south. And now the wealthy urbanites repent the loss of their bondmen to whose release they had already consented, and instead of being given their liberty, the slaves are sent back into bondage. Jeremiah, in taking up the cause of the servile population, inveighs against Zedekiah and the nobUity of the city for having thus violated a covenant made in the presence of Yahwe, their God. They and their fathers had been guilty of disobeying the merciful provisions of both Ex. 21 : 2 and Deut. ^Deut. 15: 13-15, 18. ""Jer. 34: 8-17. '"Jer. 34: 21; 37: 1-10. "■ deror. 92 THE SOCIAL LEGISLATION 15:1, 12; for ''your fathers hearkened not unto me, neither inclined their ear. ' '^^ In consequence of their disobedience the prophet brings this message : ' Therefore thus saith the Lord : Ye have not heark- ened unto me, in proclaiming a release, every one to his brother and every man to his neighbor : behold, I proclaim a release for you, saith the Lord, to the sword, to the pestilence, and to the famine; and I will make you to be removed into all the kingdoms of the earth. '^^ The passage in Jeremiah shows how difficult it was to enforce the laws of Exodus and Deuteronomy concerning the manumission of slaves after six years of servile labor. The law of Leviticus^* prolongs the period of servitude to the jubilee,^^ but insists on humane treatment for those in bondage. 'And if thy brother that dwelleth by thee grow poor, and sell himself to thee, thou shalt not compel him to serve as a bond- servant: But as an hired servant and as a sojourner he shall be with thee . . Thou shalt not rule over him with rigor. '^^ Retainers and their families shall return to their hereditary possessions in the year of jubilee.^^ Wealthy residents of foreign extraction^® are likewise exhorted to leniency toward impoverished Israelites who had sold themselves for a debt.^^ As °" Jer. 34: 14. ^Jer.34: 17. "25: 39-55 (2, and P). =' Fiftieth year, or 7x^ + 1 years. ''«25: 39, 40% 43. "35: 40b-41. " ger and toshab. =•25: 47, 53, 55. OF THE PEIMITIVE SEMITES 93 in the former instance, the year of jubilee is to be the maximum limit of service, with this proviso, how- ever, that any Hebrew who is compelled to sell him- self into the service of a stranger*" may be redeemed at any time by one of his kinsmen, that is, if he be unable to redeem himself. ^'^ The price of redemp- tion, of course, was always a variable quantity, depending in the main on the length of time already served by the insolvent debtor. To approximate the sum required for redemption it was necessary to divide the original purchase-price by the number of years intervening between the first year of servi- tude and the year of jubilee, and to multiply the quotient by the number of years to run between the redemption and the jubilee, according to a fixed scale of wages*^ ordinarily paid to hirelings.** The dif- ference between this amount and the original pur- chase-price represents the man's wages whilst in servitude. In other words, it is not the relation of a master to his slave that the priestly legislator has in view but that of a capitalist to his hired servant. The debtor virtually hires himself out to the creditor for a period of time varying from 1-49 years with the privilege of dissolving this relationship as soon as he succeeds, either personally or through his kins- man,** in refunding the value of his services for the years that stUl remain.*^ "^ ger. "25: 48-49, 54. *^ The annual wage paid to a field laborer in ancient Babylonia is eight gur of grain, and that of a herdsman six gur, Cf. CIB^., 257, 258. ^Lev. 25: 50-52; cp. 25: 16, 27; 27: 18. " goel. "^Buhl, 8.V.I., 111; Baentsch, Lev., 429. 94 THE SOCIAL LEGISLATION According to the law in its present form only for- eigners are to be lifelong slaves. 'And thy male and female slaves which thou shalt have, shall be of the heathen that are round about you . . They shall be your slaves forever ; but over your brethren, the children of Israel, ye shall not rule one over another with rigor. '" The Babylonian slave was regarded as an object of so much monetary value which might be disposed of by the owner*^ like any other piece of property, whether real or personal. In a conveyance of the First Dynasty a female slave and a plot of ground are purchased for eighty-five sheqels of silver.*® According to a contemporary source, Abi-maras, a sun-devotee, buys a woman slave and an ox for twenty sheqels.*" Apart from the meagre data relating to the money value of slaves in the Old Testament, the subject is of sufficient importance to warrant a short digres- sion. The average price of a Babylonian slave in very early times is twenty sheqels of sUver.^" In the contracts of the First Dynasty female slaves average but half of this amount.^^ For Assyrian times the usual price is thirty sheqels, with a mini- mum of twenty and a maximum of one hundred and thirty sheqels. The price of a female slave varies from two and a half to ninety sheqels. Twenty "25: 44, 461). " be- el ardi. *» Daiches, 89, no. 25. *» Ibid., 86, no. 24. ■" Cff., 252. "Daiches, 81, 83; Poebel, 38-39. OF THE PRIMITIVE SEMITES 95 sheqels is again tlie average price in the Neo-Baby- lonian period, with examples as low as seventeen and as high as eighty sheqels.^^ Though essentially a chattel and having no gene- alogy of his own,^'^ a slave could be admitted to the privileges of sonship by virtue of the rite of adop- tion : " (a slave named) Mar-Ishtar, the son of Iltani and Nidnat-Sin, Iltani and Nidnat-Sin have adopted. Ahu-waqar is his brother. If Mar-IsMar say to ZZ^am, his mother : 'You are not my mother,' or to Nidnat-Sin, his father: 'You are not my father,' then he shall be sold for money. If, however, Iltani and Nidnat-Sin say to Mar-Ishtar, their son: 'You are not our son,' then he shall take a portion equal to that of the other children of Iltani and Nidnat- Sin, and he shall go free. ' '^* Mar-Ishtar, it will be observed, is called the son of Iltani and Nidnat-Sin because he has been adopted into the family. That he was a slave is clear from the circumstance that the names of his real parents are not given. There is not the slightest hint in the document as to the underlying motive for Mar- Ishtar 's adoption. The desire for an heir who would carry on and perpetuate the family cult seems to be entirely absent. However, aside from the claims of eschatological beliefs,^^ the one adopted was often looked upon by the adopting parents as a source of profit. ' Surratum together with (her) °^ Kjetschmann, E. T., The Slave Trade in the Time of Nahuna'id, 65, 75 (an unpublislied thesis in the Library of the Univ. of Penna.). ^ His father 's name is passed over in silence. He is entered in the slave sales as 1 sag wardu = ardu, Eanke, op. eit., p. 19 ; Daiches, 79 f. J cp. Gr. (crwfjLa dvdpelov (yvvaiKelov'} • "Meissner, A.B.S. {Ver Alte Orient), p. 27. (B.A.P., p. 77.) '" See above, pp. 48 f . 96 THE SOCIAL LEGISLATION suckling daughter, . . the Shamash priestess ErisMi-aya, hev mother, has 'purified' and adopted. . . ErisMi-aya has 'cleansed'^® her and has turned her face^'^ toward the rising sun. As long as her mother ErisMi-aya lives, she shall sup- port her. "When ErisMi-aya dies, she shall be free.^^ She shall be independent.'^" On the death of ErisMi-aya the slave and her child shall be liberated as a reward for her services, and receive whatever property the adopting parent may leave.®" But in the event of his disobedience the adopted son shall be deprived of his rights and receive 'the punishment of a free citizen.'®^ This implies that the individual in question was originally the son of parents to whom the rights of citizenship had been denied. A number of these documents evidently have to do with the adoption of slaves of foreign birth. Full rights of citizenship could only be obtained by sub- mitting to a religious ceremony similar to that above indicated. To become a member of a Babylonian family a foreigner must be 'purified,' 'cleansed,' since he was looked upon as unclean. Religious cleanliness*'^ is apparently the sine qua non of Baby- lonian worship. And without participation in the ^^ ul-li-il-shi ; cp. Schorr, Altbab. SecMsurTcunden, in Sitgungs- berichte d. Tcais. Akademie d. Wiss., v. 165, H. Ill, 15. " Cp. Eanke, 29, 1. 16. ^ellit, so Meissner, A.A.S., 24. ™ Eanke, 28 ; cp. 29, 1. 10. " Ibid., 29, 1. 6. '''Ibid., 1. 12; cp. Cook, L.M.C.B:., 132, n. 2. '" a-na Shamash u-U-il-shi-na-ti, Poebel, 39. OP THE PRIMITIVE SEMITES 97 cult the adopted slave can never hope to succeed to the estate of his master. The endeavor to associate the above purification rite with the rite of circumcision has met with little success for want of corroborative material. The view that the aforementioned ceremony refers to the 'cleansing' of the pudenda^^ is confuted by the Sumerian sag-ki, which is equivalent to the Assyrian puW* or forehead. By cleansing the fore- head the usual marks of servitude are symbolically removed from the forehead of slaves®^ precedent to adoption.®® How far the institution of slavery dates back in Babylonian history can no longer be ascertained. It is safe to say, however, that the order in which the ranks of the servile class were recruited corre- sponds in the main to the rise and development of slavery among the Hebrews. The largest accessions doubtless came through the fortunes of war. Most of the captives taken in military expeditions soon found a place in the great building operations of the Babylonian kings.®'^ But the need of slaves for agricultural and domestic purposes was no less im- perative. A goodly number of such slaves was secured through the agency of an extensive foreign slave-trade.®® Favorable conditions tending toward ^ pudasha elletum, Gilgamesh, XII, Col. 1, 29 f. °* also panu, ' face. ' •^So XJngnad; cp. Eanke, p. 30. '" A manumission document written in the Sumerian script testifies to the cleansing of the forehead in the case of a female slave about to be liberated. Poebel, 38-39. " King, op. eit., v. Ill, p. LIII. ''e.g., 280-281; cp. Johns, 178. 98 THE SOCIAL LEGISLATION a natural increase of the servile population would continue the supply necessary for the development of a country like Babylonia.®" But the most import- ant source of slavery for our purpose is to be sought in unsuccessful commercial transactions culminating in the enslavement of f reeborn citizens. Babylonian legislation, no less than the Hebrew, is conspicuously humanitarian in its treatment of the insolvent debtor. Members of the debtor's household who had been bound over to service in payment of a debt were to regain their f reedom''" at the end of three years''^ and not after a period of six years, as in the book of the Covenant. As an inferior social being the male or female slave handed over for debt could be sold by the creditor, the debtor having no cause for complaint.''^ On the other hand, a female slave who has borne children for her master must be redeemed by the owner.''* At the father's death the maid slave and her children shall obtain their freedom, and "the children of the wife may not lay claim to the children of the maid-servant for service."^* The method of procedure is somewhat different in the case of a rebellious maid-servant assigned to the husband of a married votary. For an act of insubordination against her mistress she may be reduced to the level of a slave-girl, but she cannot be sold if she have become the mother of one " Johns, A.D.D., v. Ill, p. 383. ™ duraru, cp. Heb. deror. " CU; 117. ■" Ibid., 118. '' Ibid., 119. "Harper, CIB^., 171. OP THE PRIMITIVE SEMITES 99 or more ehildren.^^ There is nothing to prevent a mistress from selling a childless concubine under like circumstances.'^*' Custom, no doubt, required that the unmarried debtor should work off his own debt.'''' Since volun- tary servitude, entered into by a married man and having for its aim the satisfaction of a financial or other obligation, would leave the wife and children unprovided for, it was the part of wisdom that the latter should help to pay the debt by a three years ' service in order to obtain the necessaries of life and a home in the interval. Servitude of the above type was far more preferable than abject poverty and destitution. Even slavery had its advantages. The average slave enjoyed a remarkable degree of freedom. He might engage in business by agreeing to pay a fair percentage of his profits to the owner.''* Of course, he could not contract or enter into business rela- tions with another slave or with a freeman except by power of attorney empowering him to act in his own behalf.''^ With wealth thus acquired he could buy his freedom.*" Further, the slave had his peculium, that is to say, he could own private prop- erty. His ownership in such property, however, was not absolute, as is seen from the yearly man- dattu, a sort of yearly due or tribute, which a slave was required to pay to his master.*^ ™ Ibid., 146. '= Ibid., 147. " Cp. C-ff., 115, 256. '• Cp. Kohler and Peiser, op. cit., I ff., II, 6. "Ibid.; cp. C.B., 7. «■ Johns, B.A.L.C.L., 172. « Johns, A.D.D., III, 376 S. 100 THE SOCIAL LEGISLATION Married slaves generally lived in a house of their own. Children born in slavery naturally belonged to the owner of the parents.*^ But if the mother is a free woman the master is not to regard the chil- dren as his own. "If either a slave of the palace or a slave of a freeman take the daughter of a man,** and she bear children, the owner of the slave may not lay claim to the children of the daughter of the man for service. ' '^* At the slave 's death the woman takes her dowry and the goods that have been amassed by both since the day of their marriage shall be equally divided between the children of the f reeborn mother and the owner of the slave. " If a slave of the palace or a slave of a freeman take the daughter of a man (gentleman) ; and if, when he takes her, she enter into the house of the slave . . . with the dowry of her father's house; if from the time that they join hands, they buUd a house and acquire property ; and if later on the slave . . . die, the daughter of the man shall receive her dowry, and they shall divide into two parts whatever her hus- band and she had acquired from the time that they joined hands; the owner of the slave shall receive one-half and the daughter of the man shall receive one-half for her children."*^ This regulation applies also to a dowerless woman of superior rank.*^ ''' Clay, Light on the Old Testament from Babel, 213. "'Society in Jg^ammuraii's day consisted of three classes: 1) the awilum, the property owner of the upper class (gentleman, patrician), 2) the mushlcenum, or poor freeman (plebeian, retainer), and 3) the wardum-amtum, the male and female slaves. Cf. Harper, C.H., p. XII. " CS., 175. «« Ibid., 176. "•176 A. OF THE PRIMITIVE SEMITES 101 The mushJcenum of the Code is sometimes trans- lated, 'retainer,' 'serf.' Members of this class occupy an intermediary position between the awilum and the wardum.^'' The vicissitudes of fortune were such that men of the upper class** were not infre- quently obliged to join the ranks of these depend- ents.*" They appear as cultivators of land held on the metayer system.*"* In return for a consideration or rent, payable at harvest time, the landlord fur- nishes his tenant with seed, agricultural implements, oxen, and other necessary supplies.*^ According to a contemporaneous document Amat-Shamash, a votary, let out, "Six oxen, among them two cows; an irrigator, Amel-Adadi; two tenders of an ox-watering ma- chine, his nephews; three watering-machines for oxen; a female servant who tended the machines; half a gan of land for corn-growing ; to Gimillu and Ilushu-bani. They shall make the yield of the field according to the average(?). They shall cause the corn to grow and measure it out to Amat-Shamash, daughter of Marduk-mushallim. In the time of harvest they shall measure out the corn to Amat- Shamash."^"^ A dishonest cultivator shall have his fingers cut off for breaking his contract."* For bad usage of his equipment, damages may be collected by the land- »' Johns, A.J.S.L., 1903, 97 fe. " awilum. " C.B., 256. " Ibid., 253. " Ibid. "^ Johns, B.A.L.C.L., 196. «^ C.B., 253. 102 THE SOCIAL LEGISLATION lord."* If through any fault of the tenant "there be no crop in the field, they shall call that man to account and he shall measure out sixty gur of grain per ten gan."^^ The tenant may be degraded to the level of serf if he be unable to meet his obligation, and "they shall leave him in that field with the cattle. "98 Land in Assyrian times is seemingly in the hands of wealthy real estate holders ; hence the large num- ber of serfs, or glebae adscripti. They could be sold by the owner along with the land they had cultivated. But on the whole their lot was a tolerable one. "This class evidently possessed privileges highly esteemed, for their ranks were recruited from all classes of artisans in the towns, cooks, brewers, gardeners, washermen, and even scribes."*^ That the nearest relations had the power to redeem an unfortunate kinsman from servitude may be inferred from several Assyrian contracts.''* Persian law legislates against the enslavement of a Susian, i. e., a man of the conquering race. He is not to be bought or sold like a slave."® Slaves of Babylonian origin bought from a for- eign slave dealer shall be liberated from servitude when brought back to their native land since it is illegal to sell a native slave to a foreigner. "If a man purchase a male or female slave of a man in a foreign country, and if, when he comes back to his =« C.S., 254, 255a. °= Ibid., 255; cp. 42 f. •" Ibid., 256. »' Johns, op. cit., 172. "« Johns, A.D.D. III, §638. "• Johns, B.A.L.C.L., 176. OF THE PRIMITIVE SEMITES 103 own land, the (former) owner of the male or female slave recognize his male or female slave — if the male or female slave be a native of the land, he shall grant them their freedom without money. "^''"' But slaves of foreign extraction may be sold to a foreigner, and then repurchased by a Babylonian, provided they had not escaped from their owners. If on their return to Babylonia these were recognized by their former owner, "the purchaser shall declare before god the money which he paid (for them), and the owner of the male or female slave shall give to the merchant the money which he paid out, and he (the owner) shall receive into his care his male or female slave, "^''i Among the Arabs slaves are commonly treated as merchandise. In Muhammadan jurisprudence animals and slaves belong in the same category.i''^ While thus stigmatized as social inferiors, mem- bers of the servile class who had been adopted into Arabian families or clans were not under a legal incapacity to inherit the property of their adoptive parents. The rite of adoption^"* produced all the legal effects of natural paternity, and vested in the one adopted precisely the same rights and privileges as a legitimate son. There is evidence to show that captives of war^^* were adopted without hesitation in pagan Arabia for the purpose of adding to the "» Harper, C.^T., 280. 1" Ibid., 281. ^"^ Cp. Hughes, Dictionary of Islam, under ' ' Slavery. ' ' ™ tahanna. "*i. e., slaves. 104 THE SOCIAL LEGISLATION numerical strength of the conquering tribe.^"* Men of valor would naturally prove most desirable addi- tions. Thus ' Antara, the son of an Abyssinian slave-girl, is incorporated by adoption into a group of alien blood upon giving proof of especial prowess.^"" The adoption of Zaid^^'' by Muhammad is thoroughly in keeping with pre-Islamic custom. It was only when the prophet wished to marry Zainab, the wife of his adopted slave,^*** that a dis- tinction was drawn between an adopted son and a son proper. 'God has not made for any man two hearts. In like manner he has neither converted your wives whom ye have divorced into your real mothers, nor your adopted sons^*"* into real sons. That is what ye speak with your mouths, but God speaks the truth and he guides to the (right) path. Call them by their (real) fathers' names; that is more just in God's sight; but if ye know not their fathers, then they are your brethren in the faith and your clients.'"^ That no such distinction existed before Islam is seen from the fact that ' ' emancipated slaves appear in the genealogical lists without any note of explanation, just as if they had been pure Arabs. Dhahwan, for example, who is entered as son of Umayya, and whom the Umayyads themselves always called the son of Umayya, in "" Goldziher, op. cit., Ill, 138. ^" Kinship, 52 ; cp. Jakob, Studien in arabischen Dichtern, III, 138. "" a captive of war. « Zaid. "° da' i: " One who makes a claim in respect of relationship ; i. e., one who claims as his father a person who is not his father ... or one who is claimed as a son by a person who is not his father; an adopted son ; " cf . Lane 's Lexicon. "» Sura 33 : 4-5. OF THE PEIMITIVE SEMITES 105 spite of Muhammad's new law, was really, as tlie genealogist Baghfal once reminded the Halif^'^^ Mu'awiya, the slave who used to lead Umayya by the hand in his blind old age.""^ The rite of circumcision, which may be designated as the precursor and twin-sister of adoption, was likewise current among the pagan Arabs."* Accord- ingly, no special legislative act is required for its continuance in Islam, circumcision being incumbent on all good Muslims as a part of the Sunna}'^* For a full discussion of the ceremonies attendant upon the circumcision of a muttahir,'^^'' or Muslim boy of to-day,"® the reader is referred to Lane, The Modern Egyptians, vol. II, 244 ff. The institution of slavery in Arabia is intimately associated with warfare. A passage in the Qur'an contains the following : ' prophet, verily we make lawful for thee wives to whom thou hast given their gift (dowry), and what thy right hand possesses"^ ""CaUph.' ^^' Kinship, 52. ™ A Jewish treatise {Mekilta) of the second century states that all Arabs were circumcised. The Abyssinians of pre-Islamie times became acquainted with the rite through the influence of southern Arabia. Circumcision was also known to the Edomites, Moabites, Ammonites, and Phoenicians. Cf. Benzinger, op. eit., 119 ff. "' custom, e. g., a practice which is observed by reason of the prophet's own example. Cf. Muir, The Life of Mahomet, 185, n. 1; ep. Doughty, op. cit., I, 318. ""^ act. part, of the fifth form of tahara : one who purifies or cleanses himself; cp. mutahhar, one who is freed from impurity (II. pass. part.). "° For a description of the ' nomad children 's circumcision feasts ' (muzayyin) compare Doughty, op. cit. I, 340-342. "' ma malakat aymanukum, a term generally used for slaves. TMb expression also occurs when male slaves are referred to; cf. Sura 4:40; 16:73; 24:33,57; 30:27, etc. 106 THE SOCIAL LEGISLATION out of the booty God hath granted thee.'^^® And again: 'When ye meet the unbelievers, then strike off their heads until ye have massacred them, and lay (the remainder) in fetters. And subsequently permit the latter either to go free or to be ransomed until the war shall have laid down its burdens. '^^^ The mention of negro slaves in old Arabian poetryi^" at once suggests a second method by which the ranks of the servile population were further recruited. Probably these Africans had been trans- ported to Arabia by men engaged in the slave- trade.^ ^^ Of the captives taken by the ancient Arabs in their numerous plundering excursions and inter- tribal wars, many found their way to the slave- markets of Mecca and Medina, Taima and Haibar, where they could be sold into foreign slavery.^^^ In the early stages of Islam, however, it was con- sidered unlawful to treat Muslim women as cap- tives.^^* But with the accession of Mu'awiya the older custom again prevailed.^^* The practice of cohabiting with female captives, both married and single, constitutes a third factor in the history of slavery among the Arabs. ' ' Unlaw- ful for you are married women,^^^ save such as your "» Sura 33 : 49 ; cp. Numbers 31 : 9. '"Sura 47: 4-5. ^"^ Mu' allaqat. '^' Jakob, op. cit., Ill, 137; cp. Doughty, op. cit., I, 247, 553; II, 165-168. '"' Kinship, 89, 295. ^ Goldziher, op. cit., I, 125, n. 1. "* Kinship, 89, n. 2. ™ muhsana, 'honorable women,' i. e., free Arab women of mar- riageable age legally married to Arabs of equal rank. OF THE PRIMITIVE SEMITES 107 right hands possess. "^^6 According to the com- mentators^ ^'^ women captives may be cohabited with, 'even though their husbands be still alive. '^^^ The children of female captives of foreign birth would ordinarily join the ranks of the slave population, unless they had been raised to the status of son- ship by a formal acknowledgment on the part of their respective parents. Enslavement for debt is practically unknown in the life of a nomadic people. There is no evidence of its existence among the urbanites of ancient Arabia. But with the growth of a commercial atmosphere, as in the days of Islam, the debtor may be compelled to work off his debt.^-" The legislation of Muhammad is remarkably lenient toward the insolvent debtor. "If there be any (debtor), under a difficulty (of paying his debt), let (his creditor) wait till it be easy^^" (for him to do it) ; but if ye remit it as alms, it will be better for you. "1^1 In order to safeguard the rights of both parties to a contract, the amount of the loan •='Sur. 4:28. '" Al-Jalalan. ^^ Female slaves captured simultaneously with their husbands are prohibited to the followers of Abu Hanifa; cf. Roberts, op. cit., 13, n. 3. i^'Lane, op. cit., I, 132; 246 f. In his book of travels (I, 345) Doughty remarks that ' ' if any villager has entrusted beasts to a nomad to graze with his own cattle, and they are reaved by the tribe's enemies, the villager will demand his own, and sourvily attach the Beduwy, as his debtor, if he may take him again in his village: but the Beduwy, whose law does not bind him to such restrictions, will beware, and no more adventure thither." Cp. II, 387-388. "» Ibid., I, 469. "' Sura 2 : 280. 108 THE SOCIAL LEGISLATION must be carefully committed to writing in the pres- ence of two fellow-Muslims, or a man and two women. 'If ye mutually engage in a debt for a stated time, then write it down, and let a scribe write it down between you faithfully; . . and call two (male) wit- nesses ; and if there be not two men, then a man and two women, from those whom he (the debtor) chooses for witnesses, so that if one of the two should err, the second of the two may remind the other ; . . . and do not tire of writing it,^^^ be it small or great, with its time of payment. '^^^ According to the Hedaya the insolvent debtor may be imprisoned; but if he establish his insolvency, the judge shall declare him free.^** When a slave-girl becomes a mother by her owner, she is entitled to special consideration. Muhammad is quoted by the traditionalists as saying that 'a slave-girl who has a child by her master is to be free at his death.' Upon giving birth to a son, the master will frequently emancipate his concubine at once, and make her his wife, in accordance with a precedent established by the prophet after he had been presented with a son by his Coptic slave woman.^^^ Henceforth she could neither be sold in the market nor ransomed by her people, and her offspring would be both free and legitimate. Kindness to slaves is an act of piety which is highly commended. 'Serve God, and do not asso- ciate aught with him; and show kindness to your ^^ e. g., a detailed account of the debt. "'Sura 2: 282-284. ™ Charles Hamilton, The Hedaya,'' 532. ''' Mary. OF THE PRIMITIVE SEMITES 109 parents, and to kindred . . . and to those whom your right hands possess, for God loves not him who is arrogant and proud. '^^^ Wealthy Muslims shall not refuse to share the good things of life with the slave members of the household. ' God has pre- ferred some of you above others in providing for you; but those who have been preferred will not give of their provisions to those whom their right hands possess that they may share equally therein. Will they thus deny the favors of Godr^" In a memorable speech delivered in the valley of Mina in the presence of a vast crowd of pilgrims the prophet continues: " And your slaves ! See that ye feed them with such food as ye eat yourselves ; and clothe them with the stuff ye wear. And if they commit a fault which ye are not inclined to forgive, then sell them, for they are the servants of the Lord, and are not to be tormented."^** A man who is cruel to his slave 'will not enter paradise.' The condition of slaves in modern Arabia is nearly always tolerable and often happy: "bred up as poor brothers of the sons of the household, they are a manner of God's wards of the pious Muhammadan householder, who is 'ammy,^^^ . . . and abuy^ 'raj father.' Slave-holding among them is harsher in the mixed Holy Cities (where is the churlish mili- tary obedience and Turkish violence, and where some poorer citizens make merchandise of their slaves' labor). "i*» ^'"Sura 4: 40. "' Sura 16 : 73. ''* Muir, op. eit., 458. ■^ ' my iLQcle. ' ^"Doughty, I, 554. 110 THE SOCIAL LEGISLATION Handicrafts being below the dignity of the Arab, it devolves upon the harim and the slaves to look after the economic needs of a nomadic community.i*^ That even the Medinese townsmen of 'Vmar's day had not attained to any thing like skill in such employments is evidenced by the fact that a Persian slave could be called upon to act in the capacity of a carpenter, painter, and smith^*^ simultaneously. The slave, if a person of good habits and some skill, might ultimately hope to redeem his bond and purchase his freedom, as he was often permitted to keep his earnings, only paying a tribute to his mas- ter in the meantime.^** The kitaba, writing, or docu- ment of freedom, shall be granted to slaves in return for an amount stipulated in the bond. "And such of those whom your right hands possess as crave a writing, write it out for them,^** if ye know any good in them, and give them of the wealth of God which he has given you. "^*® Under this form of emancipation the slave is liberated upon payment of a future pecuniary compensation. A second form of future emancipation, called tadhir,^^^ is a verbal declaration of freedom made to a slave in the presence of two witnesses, which is to take effect on the occasion of the owner's '« Jakob, op. cit., 138, 151. ^^ qayn. '"Kinship, 118. "' ' ' The slave in this case is called mukatai and also mukatii ; and so is the master, the act being mutual . . . But the lawyers in the present day call the slave mukatab only; and the master, mukatib." Lane's Lexicon. i«Sura 24: 33. ^*° lit., arrangement, disposition, plan. OF THE PRIMITIVE SEMITES 111 death. "Thou art free at my death," or "thou art a mudabhir" is sufficient to establish a legal claim for freedom upon the decease of the master, the heirs having no power to seize the slave, nor any children born to him in the interval."^ Immediate emancipation,^*^ as has been seen, might be granted to a slave gratuitously for special serv- ices rendered on the battlefield or in some domestic or other capacity. If a Muslim say to his slave: ' ' Thou art free, "or " Thou art mu' taq," or " Thou art consecrated to God," the slave becomes a free man. Further, complete emancipation may be conferred on a female slave^*^ for giving birth to a son who is claimed and acknowledged by the master as his own. When thus recognized the offspring!^" is free also. Finally, the manumission of slaves is the legal penalty for breaking the fast of Ramadan, for a rash oath, etc. Special blessings are attached to the manumission of slaves. When asked what act would take a man to paradise Muhammad said: "Free a slave, or assist one in redeeming a bond of slavery." The same authority is credited with the following: "Whosoever frees a slave who is a Muslim, God will redeem every member of his body, limb for limb, "' If a man 's property consists of three slaves, he can only dispose of one in this way — two-thirds must go to the heirs. Cp. MacDonald, The Emancipation of Slaves Under Muslim Law. In American Monthly Beview of Reviews, March, 1900. ^" ' ataq, lit., power. ^^ ummu'l-walad, 'the mother of offspring.' '^ Istilad, Ut., 'the offspring's claim.' 112 THE SOCIAL LEGISLATION from hell fire." It is asserted on the strength of tradition that the prophet emancipated sixty-three slaves himself.^ ^^ A modern Arabian slave-holder wUl sometimes liberate his slaves after a few years, that is, "if their house-lord fears Allah; and then he sends them not away empty; but in Upland Arabia (where only substantial persons are slave- holders) the good man will marry out his freed ser- vants, male and female, endowing them with some- what of his own substance, whether camels or palm- stems. "^^^ It is not impossible that Muhammad was slightly acquainted with the slave laws of the Old Testa- ment.^^* But while the Old Testament chiefly con- cerns itself with the manumission of enslaved Hebrew debtors, the legislator of Islam speaks of the emancipation of all slaves regardless of nation- ality.^®* Slavery, however, was too closely inter- woven with the economic life of the Arabs to be set aside by the Muhammadan lawgiver. The institu- tion, although recognized in the Qur'an, is put on a more humane basis than in the 'Times of Igno- rance,' kindness to slaves being enjoined as a religious obligation. "'Eduard Sachau, Muhammadanisches Becht nach Sohafi'itischer Lehre (1897), p. 131. «^ Doughty, I, 554; cp. II, 140. '^'Ex. 21: 2 ff.; Deut. 15: 12; Jer. 34: 15, 17; Ezek. 46: 17. '"* E. Eoberts, op. cit., p. 47. CHAPTER VI INTEEEST The taking of interest by the impatient creditor^ greatly augmented the number of those reduced to a servile condition. An attempt is made in the earliest legislation to remedy the evil by the prohi- bition of interest on money loaned to an impov- erished Israelite. "If thou lend money to any of my people with thee that is poor, that shalt not be to him as a creditor. "^ The loans contemplated in the present law are primarily intended for the relief of destitution brought about by misfortune, or debt, and not for the development of industry. Lending to the poor thus partakes of the nature of a charity. This is further borne out by a passage in Leviticus. 'And if thy brother grow poor, . . thou shalt relieve him. Take thou of him no interest^ or increase* but fear thy God, that thy brother may live with thee. (Thy money thou shalt not give him for inter- est; and for increase thou shalt not give him thy victuals.) I am the Lord your God which brought you forth out of the land of Egypt, to give you the land of Canaan, and to be your God."^ To exact interest on loans made to the unfortunate and desti- tute would only increase the borrower's distress; and to do so was felt to be especially reprehensible ' noshe. ' Ex. 22 : 25. " neshek. * tarbit. "25: 35-38. 114 THE SOCIAL LEGISLATION for the reason that it would be taking advantage of a neighbor's need. The law of Exodus has its analogy in Deuteronomy where the prohibition of interest on money is extended to victuals and goods in general. * Thou shalt not make thy brother^ give interest, interest of money, interest of victuals, interest of anything which is subject to interest.''' But to a foreigner* 'thou mayest lend upon inter- est.'* From the standpoint of Deuteronomy there is nothing inherently wrong in such a limitation. Aliens temporarily or even permanently locating on Israelitish soU for the purpose of gaining a liveli- hood, who fail to identify themselves with the com- munity in which they live, cannot claim the rights and privileges of a full-fledged citizen. Their own laws, moreover, did not prohibit 'usury.' This, of course, would naturally suggest their exclusion from the benefits of certain phases of Israelitish legisla- tion, which, by the way, could only have originated in a non-commercial atmosphere. According to Ezekiel a truly pious man is one who 'lendeth not at interest,^** nor taketh any increase. '^^ To demand interest of any sort is denounced as a form of extortion. "Thou hast taken interest and increase, and thou hast greedily gained of thy neighbor's by extortion, and hast forgotten me, saith the Lord."^^ It is evident that such an estimate " brother-Israelite. ' Deut. 23 : 19. ' nokri. " V. 20a. ^° neshek. " tarbit 18 : 8, 13, 17. 1^22: 12. OF THE PRIMITIVE SEMITES 115 argues a comparatively undeveloped state of Hebrew commerce and finance in the pre-exilic period, which the prophet has in mind. The same attitude reap- pears in one of the later psalms. Only those are qualified to dwell on Zion,^^ who have not loaned out their money on interest.^* Property acquired at the expense of a poor borrower lacks stability. "He that increaseth his substance by interest and increase shall gather it for him that will pity the poor."^^ The Hebrew verb 'nashak' signifies 'to bite.' It is thus used of a snake concealed by the wayside ;^® of the fiery serpents in the wilderness ;^^ and of ser- pents in general.^* The verb is also applied to false prophets "that bite with their teeth and cry, Peace; and against him that putteth not into their mouths they even prepare a sacred war" by resorting to a kind of sympathetic magic.^^ A literal translation of Deuteronomy 23 : 20 would therefore read to the following effect: "thou shalt not make thy brother bite off, a biting^** of silver, a biting of victuals, even a biting of anything off which one biteth.''^^ The primary meaning of the noun seems to be something 'bitten off' from the principal. Neshek, then, denotes any amount over "^ i. e., Jerusalem. "Ps. 15: 5. ^» Prov. 28 : 8. "Gen. 49: 17. " Num. 21 : 6, 8 f . "Am. 5: 19; Jer. 8: 17; Ecclea. 10: 8, 11; Prov. 23: 32. " Mic. 3 : 5. " neshek. "'■ Driver, Deut., 266. 116 THE SOCIAL LEGISLATION and above that of the original loan usually retained by the creditor. Divergent opinions are held as to the precise meaning of nesheh and tarbit. The passages just cited do not sharply differentiate between these two terms.^^ Lambert would hold that neshek more specifically applies to usury^^ in contradistinction to tarbit, or interest.^* This distinction breaks down, however, in the light of such passages as Lev. 25 : 36 f ., and Deut. 23 : 20, where nesheh may also be equated with interest.^' There is every reason to believe that neshek designates interest on money as over against the increase,^^ or additional amount to be paid by the borrower on the original loan consisting of the produce of the land.^'^ Records of loans occur with great frequency in the literary remains of Babylonia. Both money and grain were advanced, for the most part, to meet tem- porary embarrassment.^* In their distress many of the smaller farmers borrowed of the temple store- house grain at seed-time, or money to meet the expense of harvest labor. ^Lev. 25: 36; Ezek. 18: 8, 13, 17; 22: 12; Prov. 28:8. ^ exorbitant interest. "Bevue des Etudes Juives, XXXVI (1898), 204. '"' Baentsch, Ex., 202. "Usury," says Driver, "is not used in the Old Testament in the modern sense of the term, of exorbitant interest, but (in accordance with its general usage in old English) of interest generally (whether reasonable or exorbitant)." "' tarlit. "'Lev. 25: 36 f.; Deut. 23: 20. Cf. Baentsch, 428; Nowack, H.A., I, 354; Prankenberg, in H.K.A.T., Prov., 153. ^ Cp. Meissner, B.A.P., 21 (no. 8), 24 (nos. 1^16), 26 (nos. 19-20), 27 (no. 22), 28 (no. 24). OF THE PRIMITIVE SEMITES 117 The amount advanced might be of the nature of an accommodation or subject to a given rate of interest. As a rule where no interest is charged it is expressly stated: 'Two and a half sheqels (and) sixteen she of silver as a loan without interest and four hundred and eighty qa of grain as a loan with- out interest Sin-putra, the son of Pate has borrowed from Amat-Shamash, daughter of Aggananu. At harvest-time he shall restore the loan without inter- est; in the gate of Aggananu he shall weigh the silver and measure out the grain. '^^ Of the numerous expressions at the disposal of creditors waiving claim to the usual interest, it will suffice to note the following: mash-nu-tug , mash-bi- nu-tug, mash-nu-ba-tug^° or har-nu-tug , 'it (the loan) shall bear no interest. '^^ The technical term for interest is mash = siptu = increase. Har^hubullu, in the sense of interest, also occurs in a few passages of the earlier period.^^ In later documents, however, it generally signifies 'interest.' Among the Assyrians hubullu and rubu are used interchangeably.*^ The rate of interest varied in accordance with each locality : Jci-bi ib-aP*-shu, ' it shall bear interest "Meissner, Altbab. Becht, A.O., VII, 1, 15; cp. Clay, B.E., Series A, V. VIII, pt. I, Tablet 93, 1. 8: sha la hubullu i-na-ad-din, "he shaU pay without interest. ' ' Sixth year of CamlDyses. ^ Cp. Poebel, op. cit., p. 42. '^ Huber, Die altbab. Darlelinstexte, 191 (in Hilprecht Anniversary Volume) . "^Myhrman, Sumerian Administrative Documents from the Second Dynasty of Vr (2304^2188 B. C), Series A, v. Ill, pt. I, 62-63. ^ Johns, A.D.D., III, 27. ^ al, "to bear interest; " al-ma^rabu; Huber, op. cit., 192. 118 THE SOCIAL LEGISLATION according to its place. '*^ But it is quite obvious that the customary rates obtaining at a given locality could be easily set aside by the individual in the most arbitrary manner, as will appear presently. On money-loans an average rate of twenty per cent, is charged, the formula being: mash five gin one gin-ta, 'the interest upon five sheqels shall be one sheqel.'^* The rate charged in another early document from Nippur is twenty five per cent. ' The interest upon four sheqels shall be one sheqel ; in the month 8hig-ga it shall be paid.'*'' Twenty five per cent, was the usual rate required by the Assyrians.'* The Assyrian rate of interest, however, might vary from 121/2-66^ per cent.^s Loans of grain and other cereals are usually sub- ject to thirty-three and a third per cent: mash one gur one hundred {qa) ta, 'the interest upon one gur'^" shall be one hundred qa.'^'^ As a variant to this formula we have, 'on the day that he repays sixty qa, he shall pay twenty qa interest.'*^ Singularly enough there is no fixed rate of inter- est for mixed loans. In one instance where both money and grain are borrowed the rate is thirty- three and a third per cent, on the entire loan, while in another the money is subject to the usual rate for ^ shu-ba-ti; cp. Johns, B.A.L.C.L., 250. ^ Myhrman, op. cit., 61. ''Huber, 193. =» Johns, A.D.D., III, 23, 50-53, 55, 62, 65, 68. =»Ibid. 43 (121/2%), 41 (331^%), 72 (40%), 71 (66j^%). " 300 qa. " Huber, 191. *" Ibid., 192. OP THE PRIMITIVE SEMITES 119 silver*^ and the grain to an increment of thirty-three and a third per cent.** It is evident that in an agricultural community loans could not always be repaid in kind. To obviate the difficulty grain was often accepted as legal tender in accordance with a fixed ratio between silver and corn. 'If he (the debtor) have not the money to return, he shall give to the merchant (grain or) sesame, at their market value, for the loan which he took from the merchant and its interest,*^ accord- ing to the scale fixed by the king.'*® In a deed of loan from ancient Babylonia, one gur is set down as the equivalent of one and a third sheqels.*^ Accord- ing to another document four hundred and eighty qa are equal to one sheqel.** Special provision is made for the farmer whose produce had been destroyed by excessive floods or through drought. The date fixed for repayment is changed and the interest abated for the current year. "If a man owe a debt and Adad*^ inundate his field and carry away the produce, or, through lack of water, grain have not grown in the field, in that year he shall not make any return of grain to the credi- tor, he shall alter his contract-tablet and he shall not pay the interest for that year."^" « 20%. " Huber, 217. " si-ib-ti-shu. " C.B; 51. "Huber, 194. « Ibid., 193. " the storm god. ^ CM; 48. 120 THE SOCIAL LEGISLATION There are not a few examples of loans which are really nothing more than advances of money or other commodities to persons temporarily embarrassed. For loans of this class no interest is charged, pro- vided the principal be returned on or before a cer- tain date^^ stipulated in the contract: 'three sheqels of silver — interest it shall not bear. After harvest interest shall be paid.'^^ So again, A borrows ' fourteen and a half sheqels of silver. In the month of She-kin-hud^^ it shall be weighed and returned. If it is not repaid (by then), double^* the amount must be paid.'^* A similar penalty is imposed in the Persian period in case of default. "Sixty gur of dates, due from Itti-Bel-ahnu . . to Bel-nadin- shumu, son of Murashu. In the month of Kislev^® of the twenty second year^^ of King Artaxerxes he shall deliver (give) the dates, that is to say, sixty gur, in Susa, according to the measure of one pi one qa.^^ If at that time he shall not have delivered the dates, i. e., sixty gur, he shall give one hundred and twenty gur of dates at the canal Kabaru in the month of Shebat of the twenty second year."^^ To exact interest on loans of accommodation was evidently regarded as a penalty for nonfulfilment of the contract and as a species of insurance against " (1) a definite month (Shig-ga, Gud-si-su, Shu-Tcul), (2) a definite day (New Year). Huber, 203. ^ Ibid., 199. " the month of harvest. " tab := shanu = to double, to pay interest. » Huber, 202. ™ Kislimu. ^' 442 B. C. ■» 37 qa. " B.E., Series A, v. IX, 33. OF THE PRIMITIVE SEMITES 121 the loss of capital from negligence or incompetency. According to Assyrian law ' interest shall accrue at twenty five per cent.'"" for non-payment at the time specified.®^ Other rates were thirty-three and a third and one hundred per cent. ,^2 thus showing that the rate of interest in such cases was far from con- stant. Prom twenty®^ to one hundred and twenty** days were allowed as the period of grace during which no interest was charged.^^ It will be borne in mind that in loans of this char- acter the money was not lent as an investment to bear interesf*® but merely as a charitable act toward a person in need. The interest charged was a deterrent penalty to insure prompt payment. However, we do not mean to imply that money- lending proper did not exist. As a matter of fact an exorbitant rate of interest is frequently exacted by the avaricious money-lender. Before passing on, a word remains to be added with regard to the Babylonian method of calculating "ana rebutishu irabbi, "it shall increase to a quarter of itself." Johns, A.D.D., v. Ill, 23. "Ibid., 47 (no. 14), 67 (no. 45), 71 (no. 52). "^Ibid., 66 (no. 43), 49 (no. 17), 58 (no. 31). """ The period of grace given in two earlier contracts is fifteen and sixty days respectively. Meissner, B.A.P., 24 (no. 15), 26 (no. 20). In one case it is five days. Johns, B.A.L.C.L., 253. °*A period of ten months is named in an ancient contract from Nippur. Huber, 195 b. «^ Johns, A.D.D., III, 48 (no. 16), 47 (no. 15), 46 (no. 11), 61 (no. 35), 44 (no. 8), 45. " ' ' That was done in quite another way. The lender entered into relationship with an agent to whom he furnished capital and who traded with the money and repaid it with interest." Johns, B.A.L.C.L., 251. Compare Myhrman, op. cit., p. 57. (Plate 6, no. 13.) 122 THE SOCIAL LEGISLATION interest. From the data at our disposal it appears that interest was reckoned by the month, and not by the year. Thus in the early period interest is stipu- lated for on money-loans at the rate of ten and twenty per cent, per month respectively.^'^ Grain rates are still higher, thirty-three and a third per cent, being required for each month. Numerous examples might be adduced to prove that interest, unless otherwise stated, was also placed on a monthly basis by the Assyrians. It will be well to cite the following: 'five sheqels per month on four minas,^* two sheqels per mina per month,^' four sheqels per mina per month,''" four sheqels per month on a half mina,''^ one mina five sheqels per month on five and a half minas. "^ WhUe the rate of interest is considerably lower in late Babylonian times, the method of computation seems to have remained: 'Monthly upon one mina, one sheqel of silver shall increase. '''* That the lending of money and victuals at an exor- bitant rate of interest was a widespread practice in the T^TQ-Muhammadan business world is attested by a few poetic fragments of the ancient Arabs. The dwellers of the desert who came to the cities on busi- " Huber, 195, 197, 218. " 25% per annum. "' 40% per annum. " 80% per annum. " 160% per annum. " 200% per annum. Johns, A.D.D., III, 25. "i. e., i^ or 20% per annum. Cf. Clay, B.E., v. VIII, pt. I, 30; cp. Pinches, op. cit., 444, 461; Ziemer, B.A., v. Ill, 446; Kohler and Peiser, IV, 53. OF THE PRIMITIVE SEMITES 123 ness were often thrown into great straits by the avaricious money-changers. Great joy is expressed by the man who is able to outwit and foil his credi- tor. 'But I promised an enormous gain; thereupon he turned around without knowing that he must needs lose all through the transaction. And he took a sheet of paper'^* and looking at his witnesses he counted out with both hands how much of my money would be necessary for him to receive at the expira- tion of the time fixed for payment; but I believe that we shall not see each other again for many years !''^^ The outcome of such transactions was that the lender seldom obtained all he had bargained for. 'Day and night I continue to put him off till he finally becomes so wearied that he accounts him- self fortunate to receive a portion of the debt with- out further gain.'^® Although originally a keen trader himself, Muhammad's sense of justice soon rebelled against the extortionate business methods of those quasi-brokers, as evidenced by the Qur'anic prohibition of usury. 'Those who devour usury'^''^ shall arise in the Last Day only as he ariseth whom Satan has infected by his touch ; and that is because they say, 'selling is only like usury,' but God has " on whieli the debt was recorded. ™ Noldeke, Beitrdge zur Poesie der alien Araber, 190, 189. '" Ibid., 191. "JJi&o, 'increase,' from the verb raba, 'to increase, to grow.' Compare marlit (Lev. 25: 37) ; tarUt (Lev. 25: 36; Ezek. 18: 8, 13, 17; Prov. 28: 8), and talmudic ribhit. Gesenius, Handworterbuch (1905), p. 415. According to the Qur'an, riba refers to a species of sale (Verlcaufswucher) , and not to a loan-obligation. That the term was subsequently transferred to the latter is ascribed to foreign influence. So Cohn in his monograph, Der Wucher in Koran, Eadith und Fiqh (1903), 5, 22 f. 124 THE SOCIAL LEGISLATION made selling lawful and usury unlawful ; and who- soever receiveth this admonition from his Lord and abstaineth from it, shall have pardon for the past and his lot shall be with God. But those who return to usury shall be given over to the Fire, — therein to abide forever. "^® The rate demanded by the creditor must have been exceedingly high. '0 ye who believe, devour not usury doubly doubled, but fear God ! — And what ye put out upon riba'^ that it may increase with the wealth of men, it shall not increase with God; but what ye put out in alms,®" desiring the face of God — these shall gain double.'*^ It will be seen from the context that usury and almsgiving stand in close relation to each other. To quote another passage: "God shall blot out usury, but shall make almsgiving profitable for God loves not any sinful misbeliever."®^ Obviously these trans- actions chiefly affected the poorer classes of Islam, and thus it becomes intelligible why almsgiving is enjoined as one of the highest virtues. The more prosperous members of the new community®* are not to exact interest from the unfortunate and pov- erty-stricken converts of Al-Islam. But to combat the evils of money-changing and the Arab's insati- able desire of gain was no easy task. Tradition,®* "Sur. 2: 276-277. " usury. " Zalca (Heb. j^^f > ■^i'^™- KDT . Assyrian salcu, ' to be pure, free ') , lit., 'purity,' or a portion of one's substance given in order to purify the remainder. The term occurs again in Sur. 2 : 277. *'Sur. 3:125; 30:38. «'Sur. 2: 277. "^ It is noteworthy that the Qur'anic passages cited (except 30: 38) belong to the Medinese period. " Buhari, IV, 28. OF THE PRIMITIVE SEMITES 125 for instance, relates that the prophet concluded his last revelation by adding : ' ye who believe, remit the balance of usury, if ye be believers!'*^ Other sayings attributed to Muhammad are as follows: ' ' Verily the wealth that is gained in usury, although it be great, is of small advantage. — Cursed be the taker of usury, the giver of usury, the writer of usury, and the witness of usury, for they are all equal. ' '** According to Muhammadan law it is illegal to give or receive interest of any kind for a loan or on account of credit, and to exchange one object for another of the same species®'^ differing in quantity. Riba, as defined in Hamilton's Hedaya,^^ is "an excess in one of two homogeneous articles opposed to each other in a contract of exchange, and in which such excess is stipulated as an obligatory condition on one of the parties," without offering an equiva- lent in return. The sale, therefore, of two hetero- geneous articles^® does not constitute usury, since the usuriousness of an excess is by rate united with species. Ash-Shafi' i,^'' following a sixfold division^^ " Sur. 2 : 279. *" Hughes, op. cit., p. 656. " ' Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, like for like and from hand to hand! But if these species be not alike, then sell as you wish, pro- vided it be done from hand to hand. ' Translated from Muslim VII, 10, Buhari IV, 16, by Cohn, op. cit., 26. »» Second edition (1870), chap. VIII, 289. " that is, two loads of barley for one load of wheat and vice versa. »» 767-820. "1. gold (dhahai), 2. silver (fidda, wariq), 3. wheat (burr, Mnta), 4. barley (sha'ir), 5. dates (tamr), 6. salt (malh). Cohn, p.l. 126 THE SOCIAL LEGISLATION of tradition respecting certain objects coming under this head, would restrict usury to money and victuals. In order to protect the poorer classes Muhammad went to the length of prohibiting all forms of usury. He thus overlooked the purely financial side of trade, which necessarily fell into the hands of Jews and Christians. An attempt was made apparently by the Muslim jurists to evade the Qur'anic prohibition of usury by the introduction of two kinds of promis- sory notes, the dayn and the salam wasalaf. The dayn "is a promise to restore merely the amount lent, at the end of a specified term. In case the debtor fails to keep his agreement, the Hanifite and the unorthodox SJie'ite sects insist . . that the credi- tor may claim no interest; but the Shaft' ites more rationally permit him to convert the contract imme- diately into the salam wasalaf." In the latter "the debtor promises to deliver goods or money to a stipulated amount over that actually borrowed, and the creditor contrives to get his interest."*^ It will be noticed that both forms of contract are to be found in the Book of Sales,^^ the lender being looked upon as the buyer and the borrower as the seller of the amount agreed upon between the contracting parties. Despite the injunctions of the prophet, money- lending at usurious rates still continues. The credi- tors, of course, are mostly foreigners. "The rate ^ Chester, On Early Muslim Promissory Notes, in P.A.O.S., April, 1893, p. XLIV. For further evasions of the law relating to usury, compare Cohn, 31. ^ Mtahu-l-huyu' . OF THE PRIMITIVE SEMITES 127 is fifteen in the hundred for twelve months, paid in money ; but if yielded in kind, — the payment of the poor man ! — for every real they are to receive a real and a half's worth, in dates or corn, at the harvest rates. This fruit they lay up till they may sell it, later in the year, at an enhanced price to the poor nomads.^* — In Syria the Muslims lend not, for con- science sake; but the people are greedily eaten up by other caterpillars, the Jew and the Christian: twenty-five yearly in the hundred is a 'merciful' price among them for the use of money."** "Among the Beduin no usury is taken from a fellow tribesman: ' ' Satisfaction may be yielded (and the same number will be accepted) in any year to come, of the natural increase of his stock, . . for the malicious subtlety of usury is foreign to the brotherly dealing of the nomad tribesmen." Doughty, op. cit., I, 317. » Ibid., V. II, 387-388. CHAPTER VII PLEDGES AND SECURITY In ancient Israel interest was conceived of as a social evil because of its tendency to a gradual impoverishment of the masses and a corresponding enrichment of the upper classes. It is no great exaggeration to say that the enforcement of the pawnbroker's claim had an equally disastrous effect upon the poorer constituency of the population. The legislator accordingly seeks to confine the prac- tice of taking pledges within certain well defined limits. An outer garment^ taken in pledge shall be restored to the owner at sunset, "for that is his only covering . . . wherein shall he sleep ' ' without itP Pledging a garment was a sign of extreme poverty in the majority of cases as evidenced by the repetition of this law in Deuteronomy: 'And if he be a poor man, thou shalt not sleep in his pledge. In any case thou shalt deliver him the pledge again when the sun goeth down ; that he may sleep in his own raiment and bless thee; and it shall be (for) righteousness^ unto thee before the Lord thy God.'* ' salma : quadrangular in shape and corresponding to the modem 'abaya. ^Ex. 22: 25. ^ sedaqa, right conduct (Gen. 15:6; Ps. 106:31); a charitable act (Ben Sira 7:10; 12:3; Tob. 12:9); Arabic sadaqa, alms. " Sadaqa is the willing God 's-tribute and godly kindness of an upright man, spared out of his own necessity, to the relief of another. ' ' Doughty, I, 446. '24: 12-13. OF THE PEIMITIVE SEMITES 129 Indispensable household articles used in the prep- aration of food are not to be taken as pledges. ' No man shall take the handmilP or the upper millstone® in pledge, for he taketh a life in pledge. '^ The same principle obtains with regard to a widow's garment.* Probably this was her sole possession. Further restrictions are placed on the arbitrary power of merciless creditors in the event of bankruptcy, or the non-payment of a loan on the part of a debtor. A creditor may not go into the house of the debtor in such a case for the purpose of selecting and seiz- ing his pledge: 'thou shalt stand outside and the man to whom thou lendest^ on security shall bring out the pledge unto thee. '^*' These enactments were unquestionably called forth by social maladjust- ments. Illustrations to this effect are by no means wanting in the prophetical literature. One of the cardinal sins of Israel in the days of Amos is the outrageous seizure of garments and produce for unjust fines imposed by corrupt judges. The offen- ders shall be punished 'because they spread out beside every altar^^ garments taken in pledge, and the wine of such as have been fined they drink in the houses of their gods.'^^ But 'if the wicked restore "lit., both millstones. The handmill consisted of two flat circular stones, the upper stone being set in motion by means of a handle attached to the upper surface. " ' ' the chariot, ' ' or rider. 'Deut. 24: 6. * heged. Deut. 24 : 17b. ° noshe, from nasha, ' to lend or borrow on security. ' "24: 11. Cf. Buhl, op. cit., 100. " The reference is to sacrificial meals (banquets) . 1 Sam. 3:3; 9: 12-13; Deut. 14: 26 f.; cp. Hos. 8: 11; 10: 1-2, 8; 12: 11. "^ Am. 2 : 8. 130 THE SOCIAL LEGISLATION the pledge, give back whatever he had robbed, walk in the statutes of life, . . he shall surely live, he shall not die."^ Ezekiel's insistence on the duty of restoring pledges is presumptive evidence, however, that the statutes of Exodus and Deuteronomy were more honored in the breach than in the observance.^* The rich and the prosperous, it seems, are ever prone to seize upon the poor and take possession of their goods by virtue of an execution without suffi- cient cause. 'For thou hast taken in pledge^^ thy brother without cause and stripped the clothing^^ of those that are half naked. "^ And woe to the man who would pledge himself for the payment of another's debt in the face of such rapacity and greed !^® "Be not thou (one) of them that strike hands,^® or of them that are sureties for debts. "^^ To assume a responsibility of this kind is an indi- cation of a want of good judgment. 'A man void of under standing^i strike th hands, and becometh surety in the presence of his neighbor. '^^ Any one who is good-natured enough to allow himself to be ensnared in the meshes of friendship must do his " Ezek. 33 : 15. "18: 7, 12, 16. " ' seized. ' "mantle; cp. Job 24: 7. "Job 22: 6; cp. lea. 20: 2. "Prov. 11: 15; ep. 10: 5. " The striking of hands as a conventional business form has its analogy in the part played by the shoe in similar transactions. Euth 4: 7; Ps. 60: 8. Compare the third form of Arabic iay' , to make a. contract with any one by the striking of hands. =" 22 : 26. ^' heart.' =^Prov. 17: 18; cp. 20: 16 (27: 13). OP THE PRIMITIVE SEMITES 131 utmost to pay tlie debt at the earliest opportunity. 'My son, if thou be surety for thy neighbor^^ deliver thyself for thou art come into the hand of thy neighbor. . . Give no sleep to thine eyes, nor slumber to thine eyelids. Deliver thyself as a gazelle (from the hand of the hunter) and as a bird from the hand of the fowler. '^^ A more humane and less pessimistic conception of the actual dangers of suretyship appears in the wisdom literature, where the giving of a pledge as security for one in distress is regarded as an act of charity.^^ The prohibition of loans on interest,^® as well as the character of the pledges, above referred to, presuppose a rudimentary stage of commercial and monetary transactions. And yet this is simply a reflex of conditions. The dominant forms of indus- try in pre-exUic times are cattle raising and agri- culture. It is only when the exile is reached that the life of the people takes on a different aspect. "While there may have been a tendency, even in ancient Israel, toward the formation of a distinct class of traders and merchants, this tendency appears to be particularly strong among the return- ing exiles. The temptation to speculate in real estate must have been considerable in Nehemiah's day, especially when land could be easily appropri- ated at the expense of the common people.^^ 'Then there arose a great cry of the people and of their ^ ' friend, ' ' companion. ' "Prov. 6:1-5; ep. Sira, 8: 15-16. =" Sira, chap. 29. =« Ex. 22:25; Deut. 23:19; Lev. 25:36 f. ='Neh. 5: 1-13, 16^. 132 THE SOCIAL LEGISLATION wives against their brethren, the Jews. And there were those that said, we are pledging^* our sons and our daughters that we might receive grain and eat and live. Some also there were that said, we are mortgaging^* our fields, vineyards, and houses that we might receive grain because of the dearth. There were also those that said, we have borrowed money to pay taxes upon our fields and vineyards . . and lo, we bring into slavery our sons and our daughters and some of our daughters are brought into slavery (already), neither is it in our power to help it for other men have our fields and vineyards.'^" The work on the city wall was done for the most part by the common people who had volunteered their services out of patriotism and loyalty to the cause of religion. They had exhausted their slender resources in the prosecution of the tasks assigned to them. The failure of the crops in the following season brought in its rear a host of 'usurious' and impatient creditors desirous of appropriating the pledges and foreclosed mortgages of the insolvent debtors. In some cases the children of poverty- stricken parents were enslaved. Others must soon be delivered over to the creditors. Loud complaints are heard among the poor and the matter is even- tually brought to the attention of the governor. The nobles of the city are called to account by Nehemiah and upbraided for their exactions of their poorer ^Kead DO"ll) instead of □'3"1 . Of. Siegfried, ad loc, in H.K.A.T.; Bertholet, in E.E.K.A.T. "• 5 : 1-5. OF THE PEIMITIVE SEMITES 133 brethren. Had lie not loaned money and corn to the poor himself without requiring either pledges or interest at their hands? 'Eestore, now, to them, even this day, their fields, their vineyards, their oliveyards, and their houses and the requirement^^ of the money and of the grain, the wine and the oil which ye as creditors may require of them. '^^ The appeal proves effectual, the creditors agreeing to restore the pledges and to remit the debts. The mortgaging of lands and houses marks an advance on previous business methods. It would appear that loans on the security of a pledge are not forbidden as such, provided creditors abstain from oppressing the poor. This was frequently done by the giving of bribes to the administrators of justice.^^ Assignments of property in satisfaction of a debt may be predicated for early Babylonian times on the strength of several passages from the Sumerian land-laws.^* 'If he bring back the money, he can re-enter his house ; if he bring back the money, he can take possession of his field ; if he bring back the money, he can plant his garden again; if he bring back the money, he can take away his maid-slave; if he bring back the money, his slave shall be restored to him. — On account of the interest of his money he (the debtor) shall cause house, field, "' riNQI = riKtyaV C^- S.K.A.T., aa loe. ="5: 11. =« Ex. 23:6-8; Deut. 16: 18-20; Lev. 19: 15. " ana ittishu. 134 THE SOCIAL LEGISLATION garden, male or female slave, to stand on deposit. '^^ The pledges here contemplated are antichretic, that is to say, the creditor enjoys the usufruct of the property as a set-off against the interest due on the loan. According to §49 of the Code a borrower might hand over a field as an antichretic pledge without entirely relinquishing his right of owner- ship to the produce. " If a man obtain money from a merchant and give (as security) to the merchant a field to be planted with grain and sesame (and) say to him: "Cultivate the field, and harvest and take to thyself the grain and sesame which is pro- duced;" if the tenant raise grain and sesame in the field, at the time of harvest, the owner of the field shall receive the grain and sesame which is in the field and he shall give to the merchant grain for the loan ^hich he had obtained from him and for the interest and for the maintenance of the tenant."^® Since only the amount of the debt and its interest was to be returned to the creditor, the surplus of the produce naturally went to the owner of the field.'*'^ Examples of antichretic loans are fre- quently met with in Assyrian times. To illustrate : 'C lends two minas of sUver, Carchemish standard, to D. In lieu of the two minas of silver, a plot of twelve homers of land in the outskirts of Nineveh, Kurdi-Adadi, his wife, in all seven people, and twelve homers of land, are pledged. On the day that one returns the money, the other shall release the land and people. Dated the first of Marches- "'Meissner, op. cit., 9; cp. Johns, B.A.L.C.L., 262. "■ C.H., §49. °' Ibid., 50 ; cp. Jeremias, Moses and Sammurabi, 19. OF THE PRIMITIVE SEMITES 135 van,»8 B. C. 694. Ten witnesses.'*" So again, 'C lends sixteen minas of silver, royal standard, to D. In the month Tishri, he shall pay the money in full ; if not, interest shall be two sheqels per mina per month. A vineyard and nine slaves are pledged as security. If they die or run away, the loss shall be D's. The day that D shall refund the money, with the interest, his slaves and vineyard shall be released. Dated, the ninth of Ab, B. C. 688. Six witnesses.'*** Or again, 'In lieu of twenty minas of silver, Carchemish standard, D pledges twenty- seven souls, together with their fields, their houses, their plantations, their sheep, and family posses- sions in the city Shadi-Samalla, in the district of Rimusi. Dated, the twenty-seventh of Ululu, B. C 681.'*^ Antichretic pledges also occur in later Babylonian times.*^ On a house given in pledge no rent could be collected from the antichretic creditor as the rent was a fair equivalent for the interest of the loan. Hence the phrase : ' there shall be no rent for the house, and there shall be no interest.'** But pledged property might rapidly depreciate in value. A date would therefore be fixed for repayment as a protection to the creditor. In a tablet dated in the reign of Evil-Merodaeh the borrower is required to take back his pledge** at the end of three years.*' " Ara}j,samna. =' A.D.D., III, p. 78, no. 58. * Ibid., p. 100, no. 66. "Ibid., p. 80, no. 59; cp. Pinches, op. cit., 449. *" i. e., Evil-Merodach, Nebuchadrezzar, Nabuna 'id, Darius and others. Kohler and Peiser, III, 29 f . *=Ibid., I, 16 f., 22; III, 31. " house. « Kohler and Peiser, III, 29. 136 THE SOCIAL LEGISLATION To insure repayment the security given must ordi- narily be of the nature of a first mortgage. The borrower often guarantees that no other creditor has a lien upon the object pledged. "Twenty gur of dates due to Rimut-Ninib, son of Murashu, by Biba, son of Belshunu, who is the overseer of Bit- Sin-maqir. In the month of Tishri of the third year, the dates, namely, twenty gur, he shall pay according to the measure of Rimut-Ninib, in the town Bit-Ikla'. His field, cultivated and unculti- vated, his fief estate situated on the bank of the canal Harripiqud, which is in Bit-Ikla', is held by Rimut-Ninib as a pledge for the dates, namely, twenty gur. Another creditor shall not have power over it until the claim of Rimut-Ninib has been satis- fied."*^ For obvious reasons first mortgages are nearly always insisted upon except in a form of business known as after-pledge, in which second mortgages may be secured to their respective holders by means of a rather complicated and circuitous method.*'^ Guarantees for debt assumed by one or more indi- viduals are very common in later Babylonian juris- prudence. Of these joint responsibility is the more frequent. "One hundred and thirty-nine gur of dates, due from Shamash-shum-iqisha, and Belani, sons of Kidin, to Bel-nadin-shumu, son of Murashu. In the month of Tishri of the twenty-ninth year they shall deliver the dates, i. e., one hundred and thirty nine gur, in the storehouse according to the measure "Dated in the second year of Darius II (424^04 B. C). Clay, Business Documents of Murashu Sons, Series A, v. X, p. 33. " KoMer and Peiser, I, 20 fe., II, 50 ; cp. Johns, B.A.L.C.L., 267-268. OF THE PRIMITIVE SEMITES 137 of Bel-nadin-shumu. Their orchard, . . situated on the bank of the canal Harripiqud, is held by Bel- nadin-shumu as pledge for the dates, i. e., one hun- dred and thirty nine gur. No other creditor has power over it until the claim of Bel-nadin-shumu has been satisfied. One is security (responsible) for the other that the debt shall be paid (literally, "that he will repay the loan").** If called on to pay, the guarantor is sometimes reimbursed by the debtor.*** In default of repay- ment the guarantor was empowered by law to seize the defaulting debtor and his family.^** That the creditor had the power to seize the defaulting debtor in earlier times may be inferred from the Code.®^ But he was at no time to abuse his powers. For arbitrarily attaching a man's goods the creditor shall forfeit the amount lent. "If a man hold a (debt of) grain or money against a man, and if he take grain without the consent of the owner from the heap or the granary, they shall call that man to account for taking grain without the consent of the owner from the heap or the gran- ary, and he shall return as much grain as he took, and he shall forfeit all that he has lent, whatever it Ijg M52 Unlawful distraint is subject to a fine of one-third of a mina of silver. "If a man do not ** Dated in the twenty-ninth year of Artaxerxes I (464-424 B. C), or 435 B. C. Cf. Clay, S.E., v. IX, p. 35, no. 17. * Kohler and Peiser, III, 28. ™ Ibid., II, 72 ff. The guarantor, if related to or otherwise spe- cially interested in the debtor, would hardly make use of such a privilege. "1 ^^114-115. Cp. Meissner, Althab. SecM, A.O., VII, 1, p. 16. ■= C.S., ^113. 138 THE SOCIAL LEGISLATION hold a (debt of) grain or money against a man, and if he seize him for debt, for each seizure he shall pay one-third mina of silver."®^ The same applies to the man who unlawfully distrained the ox of another. Indeed, an animal of this character is not to be seized for debt under any circumstances. ' ' If a man seize an ox for debt, he shall pay one-third mina of silver."^* If the creditor, on the other hand, levies a distraint on the insolvent debtor in a legitimate manner and the one seized die in his house by a natural death, "that case has no penalty.'"® In the event of such a person's death from abuse, the distrainer was to be severely punished. "If the one seized die of abuse or neglect in the house of him who seized him, the owner of the one seized shall call the merchant to account; and if it be a man's son (that he seized) they shall put his son to death; if it be a man's servant (that he seized) he shall pay one-third mina of silver^" and he shall forfeit whatever amount he had lent. ' '^^ Forcible seizure is unlawful. In one case the great Babylonian legislator intervenes in behalf of a man who had unwittingly fallen into the clutches of a clever usurer, eager to foreclose on the mort- gage and seize the crop at the earliest opportunity. "Thus saith Hammurabi: Lalum, . . hath informed me saying, " Ani-ellati, . . hath laid claim to certain land which I have held from (days of old), and the ^ C.B., §114. "Ibid., §241. According to Job 24: 3 it is iniquitous to 'take the widow's ox for a pledge.' ■>= C.B., §115. °' Or twenty sheqels ; the usual price of a slave. "C.fl'., §116. OP THE PRIMITIVE SEMITES 139 crop of tlie land (he hath taken)." . . . Now a tablet hath been found in the palace, and (it ascribeth) two gan of land unto Lalum. Thou^^ shalt examine into the matter and, if Ani-ellati took (the land) on pledge from Lalum, . . thou shalt return his pledge unto him, and thou shalt punish Ani-ellati who took (the land) on pledge.'"'' On another occasion a money-lender must answer to the charge of having refused to part with certain mort- gaged property, which had been already redeemed. "Thus saith Hammurabi: Enubi-Marduk, who received the pledge from them (the debtors), shalt thou send into my presence.""" Very little is known about pledges in pre- Muhammadan times."^ Pledge-giving was probably regarded as a legitimate form of business even before the advent of the prophet. It is distinctly recognized as such in the Qur'an. "0 ye who believe, if ye engage in debt for a stated time, then . . . let a scribe write it down between you faithfully; . . . unless, indeed, it be a ready-money transaction between you, . . . but if ye be upon a journey and ye cannot find a scribe, then let a pledge®^ be taken.""* Muhammad's own example in this respect, cited by Buhari,'^* presumably rests " e. g., Sin-idinnam, a provincial governor. '" King, op. cit., 24. " Ibid., p. 27. " Cp. Noldeke, op. cit., 189, 197. ^'rahan (rahn) ; cp. Sur. 52: 21; 74: 41. " Sur. 2 : 282-284. " Chester, loc. cit., p. XLV. 140 THE SOCIAL LEGISLATION on the established precedents of a growing business community.®^ The latter represents him as giving his coat of mail in pledge for the payment of a loan of grain. The chief exponents of Muslim law concur in deeming pledges legal, but "no pledge shall be distrained for debt."«^ The pledge, of course, is held by the creditor as security for the debt incurred by the debtor, the former being entitled to the use or usufruct of the pledged property until the loan is repaid. In more modern times land is frequently given as security with disastrous results to the impoverished farmers. "The soil is fallen thus into servitude: and when the mostly honest (Muslim) husbandmen-landowners have at last mortgaged aU for their debts; and are become tenants at will to those extortioners, they begin to forsake the vil- lages. ' '"'' " Mecca and Medina. "" Hedaya, second edition, 630. "' Doughty, op. cit., II, 388. CHAPTER VIII THE SOCIAL. PROBLEM AS VIEWED BY THE PROPHETS The attitude of the prophets regarding landed property, especially in its relation to the social prob- lem, is of the greatest interest. In the Northern Kingdom Ahab is rebuked by Elijah for treach- erously seizing the land of Naboth. The judicial murder of a fellow citizen who had refused to sell the family inheritance shall surely be visited upon the heads of the guilty offenders. ' ' Hast thou mur- dered and robbed? . . In the place where the dogs licked up Naboth 's blood shall they lick up thine also. ' '^ The moral indignation of the prophet rises to the dignity of a national tragedy ending in the subversion of the house of Ahab.^ In carrying out his progranune Jehu had the support of the founder of a remarkable sect advocating a return to the simple nomadic life of the desert.^ A reactionary movement of which the Rechabites were the formal expression had set in among the lower classes against the encroachments of Canaanitish culture and its concomitant evils.* But Canaanitish cul- ture and commercialism had come to stay, and the movement failed to achieve any permanent results. A grasping and usurious spirit had taken possession of the upper classes. Insolvent debtors and their >1K. 21: 19. = 2K. 9: 24 f. = 2 K. 10 : 15 f . * Jer. 35; cp. IChron. 2: 55. 142 THE SOCIAL LEGISLATION families were oppressed and enslaved. 'Now there cried a certain woman of the sons of the prophets unto Elisha, saying, Thy servant my husband is dead; and thou knowest that thy servant did fear the Lord: and the creditor has come to take unto him my two sons to be bondservants.'^ The credi- tor will agree to no compromise, or to the remission of the debt even if appealed to by the venerable suc- cessor of Elijah. And the best that the sympathetic prophet can do is to procure the means of satisfying the tyrant's claim: "sell the oil and pay thy credi- tor and live thou and thy children of the rest."® Innocent men'' are sold into slavery for the trivial debt of a silver piece or a pair of shoes.* Justice is at a premium in the land.® Bribes are given to the judges by unscrupulous creditors.^^ Those wishing to defend their cause are repelled: "Yea, the needy in the gate^^ they thrust aside. "^^ Greedy corn merchants anxious to resume their profitable busi- ness are asking: 'When will the new moon be gone that we may sell grain and the sabbath that we may offer corn?'^^ Not content with selling 'the refuse of the corn' for a high price 'they are diminishing the ephah^* and enlarging the sheqel^^ and provid- '^2K.4: 1. 'ZK.i: 7. ' sadiq. 'Am. 2: 6i>; 8: 6=-. 'Am. 5: 10. >° Am. 5: 12a; cp. 1 Sam. 12: 3. "'court.' "Am. 5: 121'. "Am. 8: 5*. " 21.26-40.62 quarts. Benz. H.A., 183 ; Nowack, 5.^., I, 203. ^^ sOver sheqel = 14.55 grains (= $.60) ; sheqel in gold — 16.37 grains (=$10.80). OP THE PEIMITIVB SEMITES 143 ing false balances. '^* Israel has followed the exam- ple of the Canaanites in the fortified cities and degenerated into a nation of dishonest merchants. 'Canaan^^ — in his hand are false balances, he loves to defraud." — Therefore since ye trample upon the weak and take from him exactions^ ^ of grain — ^ye have buUt houses of hewn stone but ye shall not dwell in them ; ye have planted vineyards of delight but ye shall not drink wine of them. '^^ The day of judgment is at hand.^^ The removal of boundary stones on the part of grasping officials, so character- istic of the land-grabbing tendencies of the upper class under the Hebrew monarchy, shall not go unpunished. ' The princes of Judah were like them that remove the landmark ;^^ I wUl pour out my wrath upon them like water !'^^ Lamenting against the cruel practices of his contemporaries, Micah exclaims: 'Woe to them that devise iniquity . . . upon their beds! "When the morning is light they practice it because it is in the power of their hand. And they covet fields and rob (them) ; and houses ^» Am. 8 : 5b. " 'Merchant.' 'Israel,' so Nowack, ad loc, in E.K.A.T. "Hos. 12: 8('); op. v. 9. "'tax.' =°Ain. 5: 11. '^ Am. i: 1-2; 5:27. ^ ' ' Cursed be he that removeth his neighbor 's landmark. ' ' Deut. 27:17; ep. 19:14; Prov. 22:28; 23:10; Job 24:2. In the Shurpu series we meet with a similar offence among a list of pos- sible sins which the average Assyro-Babylonian might commit : ' ' Has he drawn a false boundary, not drawn the right boundary? Has he removed the limit, mark, or boundary?" Jastrow, B.B.A., 308. Some Arabs "will tell thee sooth — as they would not falsify land- marks — within their own diras. " Doughty, I, 423. ^Hos. 5: 10. 144 THE SOCIAL LEGISLATION and take (them) away and they defraud a man and his house, even a man and his heritage. '^* Mothers are ejected from their homes and forever separated from their children, who are ruthlessly sold to for- eigners.^^ But the expropriation of poor proprie- tors accomplished by assiduous plotting and violence will soon be followed by the dispossession of the cruel grandees themselves.^* Their lands shall be surveyed and divided among the Chaldeans: 'We are utterly spoiled; he hath changed the portion of my people : how he hath departed from me ! Surely turning away, he hath divided our fields (among others). Therefore thou shalt have none to cast a measuring-line^^ by lot^^ in the congregation of Jahwe. '^® The absorption of small holdings by wealthy landowners has apparently reached its climax in the age of Isaiah. Indeed, land-grabbing is placed in the very forefront of Judah's iniquities by the prophet. 'Woe unto them that join house to house, that lay field to field, till there is no room left and ye are made to dwelP" alone within the land.'^^ Cruel evictions were an every-day occurrence.^" Farmers thus expelled from their homes had no " Mie. 2 : 1-2. ^Mio. 2: 9; cp. Nowack, ad loe., in B.K.A.T. -^ Mie. 2 : 3-4. ^ (1) cord, or measuring-line. (2) the area measured; 2 Sam. 8:2; Josh. 17:14; 19:9; Deut. 32:9. (a) the inheritance; 1 Chron. 16: 18; Ps. 78: 55; 105: 11. ^ goral, Ar. jaral, (1) a stone. (2) a parcel of land assigned by lot. Judg. 1:3; Josh. 17: 14; Num. 36: 3; Ps. 16: 5-6; 125: 3. "^Mic. 2:4b-5. "' Jiushabtem. " Isa. 5 : 8. '" Cp. Isa. 50 : 1. OF THE PRIMITIVE SEMITES 145 standing in the community save that of slaves or hirelings inasmuch as the rights of citizenship were indissolubly bound up with landownership.^* Civil rights formerly enjoyed by both rich and poor alike regardless of the extent or relative value of their holdings came to be the sole prerogative of wealthy property owners constituting the upper stratum of Israelitish society. But the Ul-gotten land shall be smitten with barrenness. 'Of a truth many houses shall be desolate, spacious ones and fair shall be uninhabited. For ten yokes of vineyard** shall yield one bath*^ and the seed of a homer*® shall yield an ephah*^ and lambs shall graze upon the ruined places of Jerusalem as upon a pasture.'** Yahwe will enter into judgment with the elders** and its princes :*** 'Ye have eaten up" the vineyard, the spoil of the poor is in your houses. What mean ye that ye crush my people and grind the face of the poor?'*^ The leaders of the people are bent on wringing the uttermost farthing from the poor. "Thy law-makers are law-breakers** and com- panions of thieves; every one loveth a bribe and pursueth rewards ; to the orphans they do not jus- "^Buhl, S.V.I., 45; Marti, Jes., 55. 8* m3 '^fyi • ^- ®-> ^^ mich as a yoke of oxen can plough in a day. ^ a liquid measure containing 7 gallons and 4 pints. ""a dry measure — 32 pecks, 1 pint. " The tenth part of a homer. '■Isa. 5: 9-10, 17a. Q-)2"13 = ")3103 . so Marti, op. cit., 57. *" civil and military officials. *^ ' devastated. ' *= Isa. 3 : 14-15. " lit., ' thy princes are rebellious. ' 146 THE SOCIAL LEGISLATION tiee and the cause of the widow cometh not unto them. ' '** Laws are enacted by the magnates without due regard to the claims of equity and justice, thus facilitating the perpetration of grievous wrongs against those most in need of legal protection. "Woe unto them that draw up mischievous ordi- nances and are continually writing oppression, to turn aside the needy*® from justice and to take away the right from the poor of my people ; that widows may be their prey and that they may rob the father- less. What then will ye do in the day of visitation and in the desolation that cometh from afar?"*" Jeremiah complains: 'Among my people are found wicked men . . . they set a trap,*'' they catch men.*® As a cage** is full of birds, so are their houses full of deceit;®** therefore they are become great and waxen rich. They do not administer justice, the cause of the fatherless and the right of the needy they do not judge. Should I not punish such things?'®^ Social unrighteousness in high places must cease, for thus saith the Lord: 'Execute ye justice and righteousness and deliver the spoiled®^ out of the hand of the oppressor, and do not oppress, "Isa. 1: 23. " dallim. "Isa. 10: 1-3; cp. 29: 21. "n'n^'D; nnti'^ (Duhm). «LXX omits -[{J>3 *T)JJ>» and reads □♦{J^plQ, instead of Q'jy^p* also nnjj''? (n^ntJTf'?) ^°^ D'HLJ^ID '■ ''•^' ^hiSw-^ ^vtv iwv a.»40^3; 45:2. "■Zion; cp. 40: 2 f. " 43 : 12. ^44: 6-14. " 1 K. 2 : 27, 35. «'44: 15-27. "45: 4; 48: 11-12. 198 THE SOCIAL LEGISLATION fact, can hold no landed property in their own name like the other tribes of Israel. "They shall have no^^ inheritance; I am their inheritance . . They shall eat the cereal-offering,^^ and the sin-offering,^* and the guUt-offering ;^^ and every devoted^*' thing in Israel shall be theirs. And the best of all the firstfruits^''' . . and every contribution^* . . shall belong to the priest."^" Cereal oblations paid in tribute to the Deity, as well as fines for ceremonial offenses, are now appropriated to the support of the officiat- ing priesthood by way of compensation for services rendered at the sanctuary. The revenues of the pre-exilic priesthood do not appear to have been the subject of any such precise regulations. To begin with, the remuneration of Micah's priest is subject to the terms of a verbal agreement between the contracting parties.®" The passage in 1 Sam. 2 : 12 f . proves that the priests of Shiloh, though entitled to some compensation for "'K'?' i^equired by context. Toy, op. oit., 195; Kraetzsehmar, op. oit., 285. '3 ,*7|^JJ3p[ , consisting of unlDaked flour, salt, and oil, and some- T ; • - times accompanied by a libation of wine. "^jnN^nrt' usuaUy a goat or a bullock (ceremonial offense). T - ~ *' DJI'J^n ' ^ goat, lamb, ram, or bird (ceremonial offense). T T T According to 2 K. 12 : 17 the sin-money and tbe guilt-money went to the priests. "'D^irT' anything irrevocably 'devoted' toTahwe; ep. Deut. 18: 4. " *Tl33 ' strictly limited to grain and fruit. =8;n01"lfT. oblation, or gift. ="44: 28-30; cp. 42: 13. Cf. Kent, op. eit., p. 179. ^ See above, p. 69. OF THE PEIMITIVE SEMITES 199 their services,^^ had no legal claim to any definite perquisites. Custom insists on the right of the indi- vidual sacrificer to give to the officiating priest what- ever portion of the flesh he chose. The portions thus given belong in the category of voluntary gifts. The vague character of the priests ' dues at this early period inferentially led to numerous abuses. 'Now the sons of Eli were wicked men. They knew not Yahwe, nor the rightful due of the priest from the people.^^ When a man sacrificed, the priest's ser- vant would come, at the boUing of the flesh, with his three-pronged fork in his hand, and would strike it into the pot or the pan or the kettle. All that the fork brought up the priest would take for himself. So they did to all Israel that came to sacrifice in Shiloh. Moreover, before they burned the fat, the priest's servant used to come and say to the offerer: Give roasting-flesh for the priest — he wiU not take boiled flesh from thee, but raw. If the offerer said unto him: They are going to burn the fat at once, then take whatever you please, he would reply : No ! You shall give it at once or I will take it by force. '^* According to Deut. 18 : 3 the officiating priest is entitled to the shoulder, the two cheeks, and the maw of the sacrificial victim.^* Ezekiel's provision of food for the priest is in substantial agreement with Deut. 18 : 1-5, though =1 Buhl, s.r.i., 86. =^ Smith, H. P., Samuel (Int. Crit. Com.), 18; Driver, Deut., 215 f. '^ The shewbread loaves, spoken of in 1 Sam. 21 : 7, covild be used by the priests of Nob as a means of sustenance. '*Lev. 7: 32-34 ordains that the breast and right shoulder of the peace-ofEerings be reserved for the priest. 200 THE SOCIAL LEGISLATION of a more definite character.^^ Deuteronomy enjoins that 'the Levitical priests, even the whole tribe of Levi, shall have no portion or inheritance in Israel. Yahwe 's fire-offerings, and his inheritance shall they eat. Yahwe is their inheritance.'^" As the repre- sentatives of the Deity they may claim a portion of the offerings brought to the various shrines throughout the country. But the gradual centrali- zation of the worship at Jerusalem deprived many of the rural priests of the necessary means of sup- port. To remedy this in a measure the Deuterono- mist appeals to the charitable instinct of his fellow-countrymen. The Levites of the land are not to be overlooked on the occasion of sacred festivity : 'thou shalt not forsake the Levite who is within thy gates^^ for he hath no portion or inheritance with thee.'^* The Levitical priest, frequently classed with the resident alien, the fatherless and the widow, is likewise commended to the generosity of the indi- vidual worshippers. Part of the triennial tithe is to be stored up by the Israelite in his native place, so that 'the Levite, because he hath no portion or inheritance with thee, and the resident alien, the fatherless, and the widow, who dwell within thy town, may come, and eat and be satisfied. '*® Finally, the Levite and the destitute members of the com- '^ For additional sources of income enjoyed by the priests of later times, see Buhl, op. eit., 87-88. Cp. Lev. 7; 27:30-33; Num. 3: 46^8; Ezra 7: 24; Neh. 12: 44^7; Num. 18: 20-31. '"Deut. 18: 1, 2; cp. 10: 9; 12:12. " ' town, ' ' eity. ' "Deut. 14: 27. " 14: 29; cp. 26: 12 f. The tithe of the third year constitutes one of the chief sources of income of the rural priesthood. OF THE PEIMITIVE SEMITES 201 munity shall share in the feast of weeks, and in the feast of tabernacles. 'Thou shalt rejoice in thy feast, thou, and thy son, and thy daughter, and thy male and female slaves, and the Levite, the resident alien, the fatherless, and the widow who are in thy city.'^o The territory immediately to the north of the priests' allotment, twenty-five thousand cubits in length and ten thousand cubits in breadth, is assigned to the Levites.*^ Land lying within the holy oblation is withdrawn from the range of private ownership. "And none of this choice part of the land shall be sold or exchanged or alienated; it is sacred to Yahwe."*^ The distinction drawn by Ezekiel between priests and Levites was wholly unknown to Deuteronomy.*^ In Deut. 18 : 6-8 it is made a legal injunction that any country Levite is to have the right to officiate at the central sanctuary and receive an equal share with the priests resident on the spot, if he so desire. This provision does not appear to have been fully carried out owing to the exclusiveness of the temple priesthood and the state of things created by the abolition of the high places in the reign of Josiah. The centralization of the worship and the destruc- tion of the rural altars throughout the length and breadth of the land meant a material decrease in the number of offerings and a more than sufficient "16: 14; cp. 16: 10 f. "Ezek. 45: 5; 48: 13. "48:14. Of. Toy, ad loe. "'the priests the Levites;' cf. Deut. 17: 18; 18:1; 21:5; 27:9; 31:9. 202 THE SOCIAL LEGISLATION number of clergy at the central sanctuary. The dis- established priests, coming from the provinces to Jerusalem, were allowed to share in the priestly dues, but were not admitted to the exercise of sacer- dotal functions at the royal sanctuary.** Ezekiel's legislation regarding these provincial priests is the logical outcome of the historical situation conse- quent upon the reforms of Josiah. The fact that Ezekiel was a member of the Zadokite family*^ may have furnished an additional reason for restricting the priesthood to the sons of Zadok. Thus it becomes somewhat more intelligible why no special provisions are laid down by the prophet concerning the maintenance of the degraded Levites. The ter- ritory assigned to them shall be 'for cities to dwell in.'*^ Instead of being limited to a single district, the priestly code distributes the Levitical cities over the entire country. According to Num. 35 and Josh. 21 forty eight such cities with the surrounding pasture lands*'^ shall be set apart for the Levites. Many scholars assume that these cities merely stood for the desires of the clergy.*^ As regards the revenues of the Levites in P the law is that nine-tenths of the annual tithes shall belong to the inferior members of the priestly tribe ; the remaining tenth is to be given to the priests.*® « 2 K. 23 : 9. "Ezek. 1: 3; 4: 14. ■"LXX: TToXcis Toii KaroiKelv; of. Num. 35: 2; Josh. 14: 4. " migrasMm, 2000 cubits on all sides. ** WeUhausen, Froleg., 159; Benzinger, H.A.,^ 385; Gray, Nvm., 465 f . ; Toy, op. cit., 197 ; Kent, op. cit., 191. But see Eerdmans, Lev. {Alttest. Stud., IV), 132-133. " Num. 18 : 21 £., 26 f . OF THE PRIMITIVE SEMITES 203 But tlie Immaiie intention of the lawgiver was frus- trated by the opposition of the leading representa- tives of the priesthood.^'* Finding that the Levites had been obliged to work in the fields for their sup- port, Nehemiah undertook to regulate the payment of the tithes, and to insure their proper distribution trustworthy officials were appointed. How long tithes were paid to the Levites, we do not know. After no considerable lapse of time the tithes are again diverted into priestly channels. In later Judaism the tithes are entirely appropriated by the chief priests.^^ A strip of land,®^ twenty-five thousand cubits long and five thousand cubits wide, south of the priests' allotment, is set aside for the city and its common lands.^^ The city itself is a square of forty-five hundred cubits, surrounded on each side by an open spaee^* of two hundred and fifty cubits. East and west of the capital are the communal possessions reserved for agricultural purposes. The population of the city shall be representative of all the tribes of Israel, inasmuch as the whole tract did not belong to any particular tribe. In later times the problem of peopling Jerusalem was a serious one. "The people cast lots to bring one of ten to dwell in Jerusalem, the holy city, and nine parts in (other) cities. And the people blessed " Neh. 13 : 5, 10 f . " Josephus, Ant., XX, 8:8; 9:2. ' "^ territory given over to secular uses in contradistinction to the sacred territory of the priestly tribe; 48: 15; cp. 42: 20b. ■^45: 6; 48: 15-20. " migrash. 204 THE SOCIAL LEGISLATION all the men that willingly offered themselves to dwell at Jerusalem. "^^ Agriculturists depending on the soU in the immediate vicinity of the Judean capital would naturally be poorly repaid for their labors. Unfortunately no miraculous transformation of the land had preceded the return of the exiles from Babylonia. The crown lands of the prince,^" flanking the sacred reservation and the domain of the city on the east and west, shall be ample enough for all the needs of the royal family and its dependents.^'^ Crown lands given by the prince to his courtiers®^ revert to the crown in 'the year of release. '^^ In the theocratic state of the future any arbitrary exercise of royal power will be rendered impossible : "the princes of IsraeF" shall no more oppress my people, but shall give the land to the house of Israel according to their tribes. "^^ The only concession made to the rights of royalty is the collection of a fixed tariff^^ by the prince, chiefly intended for the ^ Neh. 11 : 1-2. T "'45: 7; 48: 21-22. "^ ' An officer, constable, or tax-gatherer shall not deed to his wife or daughter the field, garden, or house, which is his business (i. e., which is his by virtue of his office), nor shall he assign them for debt. He may deed to his wife or daughter the field, garden, or house which he has purchased and acquired, or he may assign them for debt.' The Code of ffammuraii, §J38-39. °'46: 16-18. Probably the fiftieth year. Cf. Toy, ad loc. " Cp. LXX. «" 45 : 8 ; cp. 45 : 9-12. Toy, op. cit., p. 82. "^ teruma, oblation, or temple tax, payable in kind, viz. ^ of wheat and barley, ^Jr "^ °^> ^^^ o^ lambs one out of every two hundred. OF THE PRIMITIVE SEMITES 205 support of the temple ritual.^^ He is to be a servant of the temple and a provider of material for all sac- rifices. This excellent arrangement never passed out of the realm of theory into that of fact. The actualities of the situation after the exUe were materially different from those contemplated by the prophet. A S U B R KAFHTALI llANASSZH S P B H A I H S E U B B N J U D A H . 25,000 oubltB. F R I U C X L £ V I T B S Temple and prleev^s. D Fields. ^ 71 elds P R I H C B 10.000 6,000 10,000 BENJAMIN. BIMBOS ISSACHAR ZBBULDH . CAD DiAGKAM OF EZEKIEL'S PLAN OF ALLOTMENT, CHAP. 48. Of. Toy, op. oit., 197. ' 45 : 13-17. CHAPTER XIII TAXATION" AND TEIBUTE As among the nomads of the desert,^ so among the ancient Israelites, the only prerogative accorded the chief is a special share of the spoUs of war. Thus the gold rings of the conquered Midianites fall to Gideon at the latter 's own request.^ Similarly, it may be taken for granted that Saul was entitled to a larger share of the spoil than the average war- rior. Of the booty captured from the Amalekites under the leadership of his rival, David receives a liberal portion with which he enriches the elders of Judah and his kinsmen at Bethlehem.^ There is no such thing as taxation in the proper sense of the term before the regal period. Indeed, it is extremely doubtful whether the simple arrange- ments of Saul's reign called for any special dues or fixed taxes. The income from his paternal estate, together with the voluntary gifts of his subjects seeking his protection and favor,* inferentially suf- ficed for the modest requirements of the peasant- king at Gibeah. The rights of kings, adverted to in 1 Sam. 8 : 10 f., may be taken to represent the point ^ In ancient Arabia one-fourth of the booty went to the chief. The prophet of Islam converted the chief's fourth to a fifth, payable to Allah and his apostle. Of. p. 186. ' Judg. 8 : 24. '1 Sam. 30: 26 f.; cp. 1 Sam. 22: 7; 2 Sam. 1:10; 8:11; 12:30. *Cp. 1 Sam. 10: 27; 16: 20. OF THE PEIMITIVE SEMITES 207 of view of a later age.^ According to tlie author of the passage, the king is nothing but an oriental despot, exercising the right of levying taxes, and requiring burdensome exactions of his subjects, even to the extent of taking their property without offer- ing any compensation in return. 'This is the right of the king^ who shall rule over you : Your sons will he take in order to place them in his chariots and among his horsemen, that they may run before his chariots, and in order to make them captains of thousands and captains of fifties,'^ and that they may plough his land and reap his harvest, and that they may make his arms and his chariot furniture. Your daughters wUl he take (and compel them to serve) as perfumers, and as cooks, and as bakers. He will take the best of your fields and your vineyards and your oliveyards, and give them to his servants. Your grain fields and your vineyards he will tithe* and give the proceeds to his eunuchs and to his ser- vants. Your male and female slaves, and the best of your cattle and your asses will he take and utUize them for his own purposes. Your small cattle he will tithe, but ye shall be his slaves.' 1 Sam. 17 : 25 promises freedom from exactions of service and of property to the man who shall smite "^Nowack, Sam. (S.K.A.T.), 36 f.; Smith, H. P., Sam., 55 f.; Benzinger, op. cit., 259, n. 1. '1 Sam. 10: 25; Deut. 17: 14 f. "hundreds,' so LXX. Cp. 1 Sam. 22:7; Deut. 1:15; Num. 31: 14, 48, 54. ' The tithes collected by the Persian satraps constituted a most important source of revenue. Aristotle, Econ. (Berlin Ed.), p. 13451). For modern Syria, see p. 193; also Bergheim, in P.E.F. (1894), 197 f. 208 THE SOCIAL LEGISLATION Goliath as well as to his father's house. This refer- ence, however, relates to conditions obtaining at a date posterior to the reign of Saul.^ Under David the impressment for public service was entrusted to an official, named Adoram.^° The number of Israel- ites impressed to labor on Solomon's buildings and fortifications is said to have been thirty thousand," not to mention a second levy of seventy thousand burden bearers, and eighty thousand hewers of stone.^^ To free the native Israelite population from the stigma of the corvee, the chronicler pref- aced the contents of 1 K. 5 : 15 (29) with the state- ment that, according to a census taken by Solomon of all the aliens in Israel, the number of serf-like laborers engaged in Solomon's works coincide with that of the alien population of the land.^* For some reason, no longer ascertainable, the chronicler makes no mention of the first levy, already alluded to.^* However, the forced labors of Solomon's reign bore heavily upon aliens and Israelites alike. As soon as the opportunity presented itself, the protest of the people against the oppressive yoke of compulsory service took the form of a revolt leading to the seces- sion of the Northern Kingdom.^^ Not wishing to incur the displeasure of his remaining subjects, "A large number of Greek manuscripts omit the greater part of chapter 17, to wit, 1 Sam. 17 : 12-31. Nowack, op. cit., 83 f. ^"2 Sam. 20: 24; 1 K. 4: 6; 5:14(28); 12:18; 2 CSiron. 10: 18; cp. Ex. 1 : 11 ; Judg. 1 : 28. "1 K. 5: 13 (27). "1 K. ■^: 15 (29) ; cf. Nowack, ad loc. "Cp. Curtiss, Chronicles (Int. Crit. Com.), 320 f. "1 K. 5: 13-14 (27-28). 1= 1 K. 12:4 f . OF THE PRIMITIVE SEMITES 209 Rehoboam, in all probability, temporarily dispensed with this oppressive measure. The tribute received from subjugated peoples was a most valuable source of revenue under the Hebrew monarchy. David's 'governors' in Edom were doubtless charged with the collection of tribute from the conquered territory.^® The author of 1 Kings 4 : 21 speaks of nations paying tribute to Solomon." Mesha, the king of Moab, mentioned in 2 Kings 3 : 4, was responsible to Ahab for the payment of an annual tribute amounting to a hundred thousand lambs, in addition to the wool of a hundred thousand rams. According to the Moabite Stone,^® commemo- rating Mesha 's successful campaign against the Israelites, the Moabites became tributary to Israel in the days of Omri.^* It appears that the census taken by David was prompted primarily by a desire to ascertain the full military strength of the people.^" Popular opinion, as voiced by Joab's protest, regarded it as a sin. The reason for this is not given. Perhaps the census also had reference to taxation. As the institution of political taxation meant the curtail- ment of the old tribal rights,^^ such an innovation "2 Sam. 8: 14. "Cp. 1 K. 5: 1. Nowack treats the passage as a gloss. " About 850 B. C. " But compare 2 Sam. 8 : 2, where David is credited with exacting a tribute (minha, 'present') of the Moabites. Nowack, however, regards 2 Sam. 8 : 1-6 as the work of a later redactor. Of. 1 K. 4: 19. ™1 Chron. 27: 1-15. ^ It is worthy of observation that Solomon 's division of the land into administrative districts virtually overlooks the old tribal dis- tinctions. The list in 1 K. 4: 7-19 bears witness to the ancient dualism subsisting between the Hebrew tribes and the city states of Canaan. Of. Alt, in Kittel's Beitraege z. Wiss. v. A.T., v. 13, pp. 1-19. 210 THE SOCIAL LEGISLATION must have met witli considerable resistance on the part of the tribes and their representatives.^^ The monarchy, of course, triumphed in the end. Solo- mon's division of the kingdom into twelve depart- ments was apparently connected with the levying of taxes, each of the twelve 'prefects' being required to furnish the necessary victuals for the royal court and the king's army for one month in the year.^^ But it is especially noteworthy that the chief centres of the Judean population, such as Jerusalem, Beth- lehem, and Hebron, do not seem to have been included in Solomon's division of the kingdom into districts, thus implying that the king's own tribe was for the most part exempt from taxation.^* 1 Kings 10:14f. tells us that Solomon's annual income, in addition to numerous imposts levied on the caravan- trade,^' and the tribute received from the prefects '' The free tribes of the Arabian desert know nothing of taxa- tion. ' ' The chiefs derive no revenue from their tribesmen, but, on the contrary, are expected to use their wealth with generosity for the public benefit." Smith, Bel. Sem.,' 459. For the chronicler's list of the twelve tribal princes of Israel, see 1 Chron. 27: 16-24. ^IK.4: 22-28 (1 K. 5: 2-8); op. 1 K. 20: 14 f. =* 1 K. 4: 7-19. Cf. Benzinger, Konige {K.H.K.A.T.), 19 f., Kittel, ad loc. ; compare also Stade, G.V.I., I, 305. ™ The Babylonian kings levied a tithe on all imports. Aristotle, Econ. (Berlin Ed.), 1352b. Instances are on record of a similar tithe among the Meceans. Smith, Bel. Sem.^ n. 3. As to the nature of Israelitish imports, see Isa. 60: 6; Cant. 3: 6. Buhl, op. cit., 80 f., Schiirer, Geschichte des Jiidischen VolTces (1898), II, notes 149-151. Ezekiel 's enumeration of the articles exported to Phoenicia includes wheat, honey, oil, rosin, and the oaks of Bashan. 27: 6, 17. According to 1 K. 5: 10-11 (1 K. 5: 24-25) Hiram agrees to furnish sufficient lumber for the Solomonic temple in return for a yearly payment of twenty thousand kor (Bab. gur) of wheat and twenty thousand bath of the finest oiL But compare 1 K. 9: 10-13; Benz- OF THE PEIMITIVE SEMITES 211 of the provinces, amounted to six hundred and sixty- sis talents of gold, or about twenty millions of dol- lars.^^ Modern critical scholars, however, virtually agree in assigning the passage to a much later date than that of Solomon.^'' Be this as it may, Solo- mon's method of levying taxes must have been, to judge from the sequel, extremely unpopular.^^ In extraordinary cases recourse was had to the treasures of the temple. To begin with, the gifts sent by Asa to Benhadad of Syria as an inducement to fight against Baasha, the king of Israel, belonged in part to the royal sanctuary.^^ Jehoash's tribute to Hazael of Syria was materially supplemented by the treasures found in the temple, representing the dedicatory offerings of the kings of Judah, and of the people in general.^" In consequence of the tribu- tary relation of the Northern and Southern King- doms to Assyria both Ahab and Hezekiah were obliged to resort to the temple for a similar pur- pose.^^ Obviously the temple at Jerusalem was inger, op. cit., 29. A Babylonian document from the Temple Archives of Telloh records the payment of a royal tax consisting of six hun- dred and twenty six talents of {Gish-) Manu wood (Gish-Ma-Nu = Eru = cedar) and a large quantity of binding reeds, which were probably used for making ropes. Barton, in A.J.S.L., XXVII, 325; ep. vol. XXVIII, 65. In another tablet we find an entry of a hundred talents of .4 6 6a- wood as a tax to the king. Ibid., op. cit., XXIX, 140. Large quantities of ^66a-wood were deemed indis- pensable by Hammuraii in ship-building. King, Letters and Inscriptions of ffammura'bi, III, 53. ^2 Chron. 9: ISf. " So Kittel, Benzinger and others. =«1K. 12:4f.; cp. 1 K. 5: 2-8. '^IK. 15: 18. " 2 K. 12 : 5, 19. »i2K.16:18; 18:14-16. 212 THE SOCIAL LEGISLATION regarded as a sort of state treasury,^^ wMcli could be drawn upon at critical moments. "We also liear of a tribute paid by Menahem of Israel to Tiglathpileser^* amounting to a thousand sbeqels of silver. This amount was raised by the imposition of a tax of fifty sheqels on every land- owner of means throughout the kingdom.^* 2 Kings 23 : 35 relates to a property-tax imposed by Jehoia- kim of Judah with a view to satisfy the demands of Pharaoh. To make up a war-tax of ten^^ talents of gold and a hundred talents of silver, each property owner is required to pay a land-tax proportionate to the size of his holding.^® In addition to these taxes levied for the most part under extraordinary circumstances, mention is made of the 'king's mowings,' intended for the support of the royal cavalry.^'^ The heavy tribute, exacted by the Persian over- lords of the fifth century^^ B. C, pressed heavily on the poorer members of the Jewish community.^" Unfortunately the extant data afford no clue as to '^ The temple of Melcarth at Tyre was the state treasury. Smith, Bel. Sem.," 246. °' There can be no question as to the identity of Pul (Ass. Pulu) with Tiglathpileser (745-727 B. C). In one of Tiglathpileser 's inscriptions Menahem is credited with the payment of tribute (738 B. C.) to the king of Assyria. Tiele, Bai. Ass. Gesch. 110 f., 226 f., Sehrader, K.A.T.,^ 222 f. °*2 K. 15: 19-20. Allowing three thousand sheqels to a talent, the gihbore hayil in the land of Ephraim would approximate about sixty thousand men. ^So LXX; cf. Kittel, ad loc. =» 2 K. 23 : 34-35. ='Am. 7:1; cp. 1 K. 18:5. ^Ezra 4: 13, 20. °»Neh. 5:4f. Cf. pp. 131 f. OF THE PRIMITIVE SEMITES 213 the manner in which this obligation was to be met. However, the numerous details incidental to the assessment and collection of taxes were evidently patterned after the established precedents of the local Jewish authorities. Besides the burden of taxation imposed upon the people, the Persian governors, who had preceded Nehemiah, drew forty sheqels*" of silver each day for the purchase of bread and wine.*^ Furthermore, the subordinates of the several satraps seem to have availed themselves of every opportunity to enrich themselves at the expense of the common people. Nehemiah 's gratuitous services as satrap of the king of Persia stand in striking contrast with the oppressive rule of his predecessors.*^ According to a decree of Artaxerxes to Ezra, the priests and Levites, together with the whole person- nel of the temple, were to be exempt from taxation.*^ At a later period Antiochus the Great extended the same privilege to the priesthood of Jerusalem, including exemption from the crown tax.** In consequence of the friendly attitude of the Jews and the voluntary surrender of the Jewish capital to Antiochus the Great, the latter issued a decree exempting the inhabitants of Jerusalem from all " About twenty five dollars. "It is interesting to note that the royal messengers of the tTr Dynasty (2400-2300 B. C.) were furnished with provisions by the temples. A.J.S.L., XXIX, 127 f. «Neh. 5: 14-15. « Ezra 7 : 24. " Josephus, Ant., XII, 3: 3. Originally the crown tax was a voluntary gift to the king of a golden crown of honor. Ibid., XIII, 2 : 3. 214 THE SOCIAL LEGISLATION imposts for a period of three years. It was further enacted tliat a third part of their taxes should be remitted thereafter, so that they could repair the losses which they had sustained in the past. Another clause provides that no toll should be levied on lumber necessary for the rebuilding and comple- tion of the temple.*^ Without doubt this was a very valuable concession to the depopulated city, with its slender resources and lack of funds. The poll-tax levied by the Syrian kingdom under the Seleucids was not a uniform personal tax but a kind of trade-tax varying with the nature of the enterprise and the income of the individual.** Thus we have what may be called a crude form of income- taXj^ although it was not actually assessed on income. In the days of the Ptolemies the taxes were farmed to the highest bidder.*'^ The taxes due from the cities appear to have been let by the king from year to year.*® Sometimes the privilege of collect- ing the taxes of the several provinces*" was sold to one individual, as in the case of a certain Joseph, who promised to pay twice as much^" for the privi- lege as his competitors.^^ Since any surplus would naturally fall to the collector of taxes, Joseph even- tually became a man of great substance.^^ " Josephus, loe. eit. "Aristotle, Econ., II, 1:4; Josephus, op. eit., XIII, 2:3. Cf. Sohiirer, G.J.V.,^ 1, 229, n. 14. "Josephus, op. eit., XII, 4: 1. «Ibid., XII, 4:3. *' Judea, Samaria, Phoenicia, and Coelesyria. "' sixteen thousand talents. "Ibid., XII, 4: 4. ''abid.,XII,4: 5, 6, 10. Cf. p. 193. OF THE PEIMITIVB SEMITES 215 From the Maccabaean period onwards the ques- tion of immunity from taxes comes to the fore in an unprecedented manner by reason of internal dissen- sions in the Syrian empire. In order to gain Jona- than's friendship Demetrius I. promises to the Jews^^ exemption from taxes of every sort, includ- ing the poll-tax and the crown-tax, all imposts on salt, grain,'^* and fruit,^^ as well as the remission of a tax on the tithes of the temple. Finally, all requisitions on beasts of burden were to be dis- pensed with.^** Jonathan,^^ however, found it expe- dient to reject the offer until the accession of Demetrius II., when the concessions proffered by the unfortunate king^^ were ratified by his son.^® At a later date Simon"** sent an embassy to Deme- trius II. with a view to secure immunity from taxes for aU time to come. The request was granted."^ This amounted, for all practical purposes at least, to a recognition of the political independence of Judea. After Pompey's successful campaign''^ against Jerusalem, the land became tributary to the Romans.**^ In the year 57 B. C, or thereabouts, " Judea, Samaria, Galilee, and Perea. "3314%. " 50%. ™ 1 Maeo. 10 : 28 f ., Josephus, loe. cit. ""161-143 B. C. ^ Josephus, XIII, 2 : 4. ™1 Maeo. ll:34f.; Josephus, XIII, 4:9. Immuiiity was also secured for the three Samaritan provinces of Ephraim, Lydda, and Eamathaim, which had been ceded to Judea. " 142-135 B. C. ^1 Mace. 13: 34-39; cp. Josephus, XIII, 6: 7. =" 62 B. C. "= Josephus, XIV, 4:4; Sell. Jud., I, 7: 6. 216 THE SOCIAL LEGISLATION Gabinius, the proconsul of Syria, divided the coun- try into five administrative districts,®* probably with a view to facilitate the levying of taxes by the local authorities.''^ Caesar ^s decree of the year 47 B. C. relieved the Jews of the obligation to provide the Roman troops with suitable winter quarters, thus cancelling the right of the latter to levy contribu- tions from the inhabitants of the land.'"' As a fur- ther proof of his friendly disposition toward the Jews, Caesar ordained that the former should pay a definite composition as tribute every year, the seventh year excepted, owing to the cessation of agricultural pursuits in the sabbatical year."^ The fact that the tribute of the Jews was not to be subject to collection by tax-farmers"^ may be regarded as an important concession to the native authorities.®* Being a confederate^" of the Romans, Herod the Great could exercise a remarkable degree of freedom as to the method of collecting whatever tribute he paid to the Romans, Thus, on one occa- sion Herod granted immunity to Zamaris and to his followers settling on the borders of Trachonitis.'^^ "■ Synodoi, or Synedria. Three of the five districts were located in Judea proper (Jerusalem, Jericho, and Gazara, or Gezer), the capitals of the fourth and fifth districts being Amathus (mod. Amatha located in the vicinity of the Jordan, north of the Jabbok) and Sepphoris (Galilee) respectively. Schiirer, op. cit., I, 340, n. 8. °= Josephus, Ant., XIV, 5:4; Bell. Jud., I, 8: 5. "" Josephus, Ant., XIV, 10 : 2. " Ibid., XIV, 10 : 6. ^ For the collection of taxes among the Babylonians, see Johns, B.A.L.C.L., 115, 324-325. =» Josephus, XIV, 10:5. ™ rex socius. "Ibid., XVII, 2:1. OF THE PEIMITIVE SEMITES 217 Josephus also presents two specific instances of a partial remission of taxes in Herod's timeJ^ Such acts of generosity on the part of the king sprang from a desire to gain the goodwUl of his refractory subjects. On the death of Herod, Archelaus like- wise reduced the taxes in response to numerous appeals/* Under the Eoman system of taxation, dating from the deposition of Archelaus, these arrangements practically ceased.'^* The banishment of Archelaus by the Romans in A. D. 6 had an important bearing on the internal administration of the land. Henceforth the terri- tory'^^ of the deposed ethnarch was administered by procurators, Judea having been converted into a Eoman province. The chief function of the pro- curators, as the name itself imports, consisted in levying the taxes destined for the imperial treasury, or fiscus. The eleven toparchies of Judea, men- tioned by Josephus, probably originated in the Eoman period. According to Pliny, Judea was divided into ten districts,''® thus reminding us of an earlier division of the land into five administrative districts under Gabinius, the proconsul of Syria. In all these cases we evidently have to do with so many taxation areas. Of the fiscal burdens imposed upon the people, the taxes levied on the produce of the soil,'''' and the '^ A third (XV, 10: 4) ; a fourth (XVI, 2:5). ■" Ibid., XVII, 8 : 4. "Ibid., XVII, 11: 2. ™ Judea, Samaria, and Idumea, iiicludiag the cities of Jerusalem, Samaria, Caesarea, and Joppa. " Eist. Nat., V, 70. " Tributi soli, or agri. 218 THE SOCIAL LEGISLATION personal tax'^^ of the Roman census come under the category of direct taxes. The census taken by Quirinius'^* apparently had for its object the enrolment of persons by families and the valuation of property on which taxation was based, as in the periodic enrolments of the Egyptian papyri.*" The Greek term*^ used in Matthew 22 : 17 f . and Mark 12 : 14 f . corresponds to the Latin word census and denotes the annual tax or tribute levied on individuals®^ and landed property.^^ The payment of tribute to Caesar came to be regarded by many as treason against Yahwe, the only Lord of the Hebrew theocracy. Judas of Gali- lee, moreover, denounced the Roman census of the year 6 A. D. as a case of incipient slavery to the Romans. In a word, the census of Quirinius was a source of much disaffection, causing alarm and revolt.** ™ Iributi capitis. " Luk. 2 : 1-5. Of. Scliiirer, op. cit., I, 508 f . ; Eamsay, Was Christ Born at Bethlehem, 100 f. ^ Eamsay, op. cit., 131 f. °* Krjvffos- '"Cp. eTnKe(f>a\aiop ('capitation tax'), the marginal reading for K^j/o-os. Mk. 12: 14. In Syria both men and women had to pay the poll-tax, the required age-limit being fourteen to sixty-five and twelve to sixty-five respectively. ^Mtt. 22:17f. (cp. 17:25); Mk. 12:14. For the meaning of KTJvaos, see Preusehen, Grieehisch-Deutsches H.W.B. z.d. Sohriften d. N.T., 602. The census ordered by Augustus was carried out for purposes of registration as regards population, property, trades, etc. This was an indispensable prerequisite to taxation. The Greek term 15: 19-21; cp. 14: 23 f. ^ The horse, the ass, and the camel. So Philo. But see Smith, Sel. Sem.," 290 f., 466 f.; Jastrow, B.B.A., 662; Baentseh, Lev., 399. " Num. 18 : 17-18. ^ 18 : 15-16. "'Whilst vegetable offerings predominate in the Babylonian cult, sacrifices of both animals and vegetable products "date from the earliest period of the Babylonian religion of which we have any knowledge. In a long list of offerings, Gudea includes oxen, sheep, goats, lambs, fish, birds, and also such products as dates, milk, and greens. From other sources we may add date wine, butter, cream, honey, garlic, corn, herbs, oil, spices, and incense." Jastrow, op. cit., 661. ^"resMt; cp. Ass. resheti. ^°' hikhurim. ™23: 19; cp. Lev. 23: 10 f. 222 THE SOCIAL LEGISLATION tMne abundance and the best of thy winepress.'^"* That we are without information how much was expected of the ancient Israelite in this direction is perfectly obvious, the amount of the offering being left to the free will of the individual offerer.^"* In process of time, however, such freewill offerings assume a more definite aspect, possibly on account of the growing complexity of the ritual. Thus Amos 4 : 4 speaks of the sanctuary tithe at Bethel.^"^ In Genesis 28 : 22 Jacob, the founder of the Ephraim- ite sanctuary, promises to pay a tithe of all his possessions.^"® The tithe at this period was not necessarily an impost payable in kind to the sanctuary, nor does it seem to have been appropriated to the maintenance of the priesthood. It was a spontaneous offering or sacrifice which took the form of a sacrificial meal at the sanctuary. An instructive passage occurs in Deut. 14 : 22 f ., where the produce of the soU is to be tithed and consumed by the offerer and his family ™Ex. 22: 28. ™See above, p. 199. "« Eighth century B. C. "*(JS.) Abram is said to have given a tenth part of the booty to Melchizedek. Gen. 14: 20. The Greeks, it may be noted, rendered a tithe to the gods of the spoils of war, and of the annual crops. The tithe was also known in Egypt (Maspero, Struggle of the Nat., 312), Babylonia (Jastrow, op. cit., 668), and Arabia (Pliny, op. cit., XII, 63) . The Muslim tithe is a religious tax, exacted on harvests and flocks, goods and chattels, gold and silver. Cp. Letourneau, Property, 203. In accordance with the system of Muhammadan taxation "land irri- gated by the water-wheel or other laborious methods pays five per cent, of its produce in the name of charity-tax, whereas land that does not require laborious irrigation pays a full tithe." 'Bel. Sem.' 96-97. Lastly, the custom of tithing is known to have existed in China, Lydia, Carthage and Bome. OF THE PEIMITIVE SEMITES 223 at tlie central sanctuary in connection with a sacred feast. ' Thou shalt tithe all the produce of thy seed growing in the field year by year, and thou shalt eat the tithe of thy grain, of thy new wine, and of thine oil before Yahwe thy God, in the place which he shall choose as a dwelling for his name. But if the way be too long for thee so that thou art not able to carry it (thither), . . thou shalt turn the tithe into money and shalt wrap up the money in thy hand, and shalt go to the place which Yahwe thy God shall choose ; then thou shalt spend the money for what- ever thou desirest, for oxen, or for sheep, or for wine, or for strong drink, or for whatever thine appetite craveth ; and thou shalt eat it there before Yahwe thy God, and rejoice, thou and thy household and the Levite who dwelleth within thy town. ' The equation of the tithe in Deut. 26 : 2 with reshit, or first-fruits, is interesting.^ "'^ In accordance with ancient custom a small portion of the tithe is to be put in a basket and formally presented at the altar by the priest. The repetition of a prescribed form of thanksgiving or prayer by the person who makes the offering constitutes an essential part of the ceremony of presentation.^"^ As a result of the destruction of the high places and rural shrines attendant upon the reforms of ^" Steuernagel, Deut., 55, 93 f. As Wellhausen says: "With the tithe of the fruit of the soil the first-fruits are at bottom identical; the latter were reduced to definite measure later and through the influence of the former. This is no doubt the reason why in the Jahwistic legislation tithe and first-fruits are not both demanded, but only a gift of the first and best of corn, wine, and oil, left to the free discretion of the offerer, which is conjoined with the firstling of cattle and sheep." Op. cit., 157. ™ Deut. 26 : 5-10, 224 THE SOCIAL LEGISLATION Josiah, the triennial tithe^"® shall be given to the dis- possessed Levite, to the widow, and to the poor."* The charity-tithe of the third year, it may be noted, is spoken of as the 'full tithe '"^ in contradistinction to the annual tithe^^^ exacted on the produce of the soil."^ We would, therefore, conclude that the tithe of the pre-exilic period did not always represent the tenth part of the produce. "In antiquity tithe and tribute are practically identical, nor is the name of tithe strictly limited to tributes of one-tenth, the term being used to cover any impost paid in kind upon a fixed scale.""* It will not be amiss at this juncture to say a word as to Ezekiel's theocratic state of the future. The prince, although entitled to certain fixed dues, is held responsible for the expenses of the public worship."^ This provision is by no means to be dissociated from the precedents of the past. It is a well-known fact that the expenses incurred in connection with the maintenance of the temple at Jerusalem were defrayed for the most part out of the king's revenue. **In other words, the maintenance of the royal sanctuary was a charge on the king's tithes.""® Yahwe's share of the first-fruits presented at the altar doubtless went to the Levitical priests. Even- ™Cf. p. 200; cp. Am. 4: 4. "" Deut. 26 : 12 f. This tithe is to be paid in 'the year of tithing.' '" "IC^PQ '72 ■ Cf. Deut. 14: 28; 26: 12. "ntj'yO . 14:22f. '" Steuernagel, op. cit., 54-55. But see Smith, J. M. P., The Deuteronomic Tithe, in Am. Jour. Theol., v. XVIII, 122 f . ^» Smith, Bel. Sem.,' 245. ^ See above, pp. 204-205. "» Bel. Sem.,' 246. OF THE PRIMITIVE SEMITES 225 tually the whole tithe fell to the Levites and to the priests^" on the principle that the priestly tribe was to live on Yahwe's inheritance,"^ the institution of the tithe of pre-exilic times having been divested of its spontaneity, and converted into a tax on agri- cultural produce."* The only difference between earlier and later practices with respect to taxation is that, whereas in the earlier literature the taxes are paid directly to the reigning monarchs, in the priestly code it is the priests who receive the taxes. The author of Lev. 27 : 32-33 further augments the income of the priests by adding a tithe of the annual increase of cattle. 'As regards all the tithe of the herd and the flock, the tenth of whatever passeth under (the counting-) rod (of the shepherd), shall be holy to Yahwe. The owner shall not dis- " See above, pp. 202-203. "" Num. 18 : 25. ""Num. 18:21f., Neh. 10:37-39; 12:44-47; 13:5, 12; Mai. 3:8, 10; Lev. 27: 30-31. The prescriptions of the law relating to the payment of tithes were scrupulously observed in the time of Jesus. Mtt. 23 : 23 ; Lk. 11 : 42 ; 18 : 12. According to the Mishna "everything which may be used as food and is cultivated and grows out of the earth is liable to tithe." Maaserot, 1: 1. The Mishna, moreover, speaks of a second or additional tithe. This second tithe evidently represents a harmonistic device of the Jewish legalists with regard to the regulations of Deut. 14: 22-29 and Num. 18: 21-28 respecting the tithe. Both passages, however, doubtless refer to one and the same tithe, the discrepancy between them arising from the fact that they belong to different stages in the history of the institution. Driver, Vent., 170 f. The 'third tithe,' alluded to in Tob. 1: 8, and in Josephus, Ant., IV, 8: 22, was levied triennially for the relief of destitution on the supposition that the Jews were required to pay three tithes every third year, to wit, the Levitical tithe, an additional tithe intended for the celebration of sacred festivals, and a charity-tithe. 226 THE SOCIAL LEGISLATION tinguisli between good or bad, nor stall he change it ; but if be change it, both it and that for which it is changed shall be holy ; it may not be redeemed. '^^*' To defray the cost of public worship a poll-tax of half a sheqel is imposed on every adult Israelite, inasmuch as the support of the regular cultus did not devolve upon the priesthood but upon the laity. 'This is the sum that each shall give, . . . half a sheqel according to the standard of the sanctuary (the sheqel is twenty gerahs) ; half a sheqel as an offering to Yahwe. Every one subject to the census, from twenty years old and upward, shall present the offering of Yahwe. The rich shall not give more, and the poor shall not give less than the half sheqel. '^^^ Only coins of normal weight will be accepted. Nehemiah's annual temple tax of one- third of a sheqel represents an accommodation to the Persian monetary system, a Persian coin of this denomination being the equivalent of the Jewish half sheqel.^^^ The political independence of the Jews under Simon, the Maccabee, accounts for the rever- sion of the Jewish coinage to the older type. In the time of Jesus the temple tax came to be known as the two drachmae }^^ As the sheqel equalled four Attic drachmae ^'^'^ the amount required of every male Israelite for the maintenance of the sanctuary at ™ Cp. 2 Chron. 31 : 5 f. There is a reference in 1 Sam. 8 : 17 to a royal tithe of cattle. "^Ex. 30: 13-15 (P^) ; cp. 38: 25 f., 2 Chron. 24: 6, 9. "^^Neh. 10: 32 (33). Of. Baentseh, Mx. 262. ™Mtt. 17: 24, 27; Josephus, ^«f., XVIII, 9: 1; Mishna tractate: Sheqalim. "* Josephus, op. eit., Ill, 8 : 2. OF THE PRIMITIVE SEMITES 227 Jerusalem would be none other than the half sheqel of earlier times. With the destruction of Jerusalem in the year 70 A. D., this yearly tax was appro- priated by the Romans and applied to the support of the temple of Jupiter Capitolinus in Rome.^^" CHAPTER XIV THE DEVELOPMENT OF INDIYIDTJAL LANDOWNEESHIP IN ISRAEL To recapitulate what has already been said else- where regarding the general progress of ideas of ownership in Israel, we have first to allow for an early stage of tribal organization, suggestive of the onetime existence of matriarchy by the side of patri- lineal descent. In a state of society essentially nomadic in character,^ each tribe or clan generally occupies a given district, over which it exercises an undefined but operative sense of group ownership arising in all probability from the right of posses- sion or from a vague sense of the preferential right of personal labor.^ The digging of a well, for example, establishes a right of possession, and hence the frequent quarrels about watering-places* and pastures. "Property in water," Robertson Smith points out, "is older and more important than prop- erty in land. In nomadic Arabia there is no prop- erty, strictly so called, in desert pastures, but certain families or tribes hold the watering-places ^ Meyer, Die Israeliten u. Ihre NacKbarstdmme, 129 f., 158, 303 f.; but compare Eerdmans, Alttest. Stud., II, 38 f., The Expositor, Ser. 7, V. 6(1908), 118 f. ' Property in land, among the ancient Teutons, was looked upon as the reward of labor. Cf . Schroeder, Lehrhuch d. deutsehen Bechts- geschichte, 202-203. »Gen. 21:25, 30; Gen. 26:151, Ex. 2:16; cp. Gen. 29:8; Judg. 1: 15. OF THE PRIMITIVE SEMITES 229 without wMch tlie right of pasture is useless. ' '* The same principle applies to the acquisition of new territory, as in the case of the Hebrew tribes settling in the land of Canaan. Thus a tribal group or per- haps a smaller body of men marches against the enemy and takes possession of his land by virtue of the right of conquest, the conquered inhabitants being in part exterminated, enslaved, or assimilated by the invaders.^ In other words, the new acquisi- tion is looked upon as the reward of valor. Apart from the feeling of solidarity, the land thus acquired naturally belongs to the group. The transition from nomadism or semi-nomadism to the settled, agricultural, community life of Canaan brings with it a further internal sense of ownership. In settled communities the building of a house or the culti- vation of the SOU ordinarily creates ownership.® So in pre-Islamie times a man acquires rights in the soil by cultivating a piece of land.'' The institution of private property, then, in ancient Arabia at least, may be said to commence with the introduction of agriculture.^ Similarly the settlement of Canaan by the Hebrew clansmen could not but give rise to a new conception of property. Although the clan •JBeZ. Sem.,' 104. " See above, pp. 86 f. *B,el. Sem.,^ 95. On the growtli of land tenure in Babylonia, see Johns, op. eit., 184 f . ; Cuq, op. eit., 721 f . 'Aceording to the law of Islam all lands which have never been cultivated or occupied by houses become private property (mulk) by being 'quickened,' or brought under cultivation. 'At Mecca the Quraysh dug wells and bmlt houses and enjoyed the fuU right of property in the work of their hands.' Bel. Sem.,' 96, 144. Cp. Klein, Zeitschrift d. Deutsohen Pal. Vereins, IV, 72. 'Wellhausen, B.A.B., 105; Bel. Sem.,' 105. 230 THE SOCIAL LEGISLATION remained tlie social and political unit for many gen- erations posterior to the conquest, the time was bound to come when local considerations would pre- dominate in view of the changed conditions. It is true that a considerable portion of the native popu- lation was enslaved. But the servile Canaanites alone did not suffice for all the economic needs of the Hebrews. Furthermore, it will be remembered, that the permanent settlement of the land was effected to a very large degree by a process of amalgamation resulting in the engrafting of the unconquered urbanites on the Israelitish stock. The numerous influences affecting the social fabric of the new com- munity tended to a gradual displacement of the simple tribal arrangements of pre-monarchial times by the individualism of Canaanitish culture and com- mercialism. In process of time many estates, origi- nally constituting part and parcel of the lands assigned to various Hebrew tribes and their sub- divisions, or 'families,' fell into the grasp of the wealthy classes residing in the cities. At all events, the concentration of landed property under the Hebrew monarchy is an incontrovertible fact. Hence the distress of the peasantry and the subse- quent legislative enactments on behalf of the poor. The institution of private property comes into prominence in the regal period. Henceforth the devolution of property is subject for the most part to the principle of agnation. The preferential right of the eldest son consists of a double portion of the patrimonial estate.® Failing a son the nearest agnate is entitled to the succession. • Cf. Stade, G.V.I., I, 392. OF THE PRIMITIVE SEMITES 231 By tlie side of individual landownership, how- ever, there are certain phenomena pointing in the direction of an earlier conception of property. Thus the levirate^" has all the appearance of an ancient tribal institution. In Deut. 25 : 5-10 the custom is restricted to brothers dwelling together on the same family estate. "If brothers dwell together/^ and one of them die without having a son, the wife of the deceased shall not be married to a man outside the clan;^^ her husband's brother shall go in unto her, and make her his wife, and perform the duty of a husband's brother to her. The first son whom she beareth shall succeed to the name of his brother who is dead, that his name may not become extinct in Israel. "^^ Limiting the question of origins to our discussion of the subject in a pre- vious chapter,^* we would venture the assertion that it was a collateral object of the institution to pre- vent the alienation of property appertaining to the family group. Again, there is a strong presumption that the law of the jubilee^ ^ was enacted in the inter- ests of the clan or village community.^® Granting ^ See above, pp. 57 f . "^ ' in the same locality. ' So Steuernagel, ad loc. ^'FoT Heb. zar, see Gesenius, H.W.B. (1905), 184. " 25 : 5-6. Kent, op. eit., p. 56. "See above, pages 62-64. " Cf . pp. 165 f . "Buhl, in The American Journal of Theology, I (1897), 738; cp. Ibid., S.V.I., 60. The jubilee, according to Eerdmans, 'ist eine Ver- mittlimg zwisohen dem Kommunismus und dem Privatbesitz, welehe an sieh bei eiafachen Verhaltnissen nicht unausfiihrbar erachtet werden darf. Dass eine seiche Institution dem wachsenden Strom des Privatbesitzes keinen Widerstand bieten konnte, beweist nieht, dass sie nur ein unpraktisches Ideal einer Priestersehule ist, wie man 232 THE SOCIAL LEGISLATION the possibility of a form of vassalage^'' under the Hebrew monarcliy/^ we are also constrained to note the coexistence of free village conununities in pre- exilic times.^" The towns and villages of the time of Amos, for instance, constituted the basis of military enrolment, each community furnishing a proportionate number of men in case of war.^" Under the old tribal system the clan, as already stated, was the social and political unit. Originally the matter of tenure had been vested in the clan. But with the increase of population and the spread of agriculture fresh villages would be established, not by considerable bodies of clansmen, but by numerous offshoots from the original settlements. As a result of this development the point of emphasis is shifted from the tribe or clan to the several family groups which had taken up their abode in these agricultural villages. For the time being the ownership of such lands was forced into a tribal mould, as is seen from the frequent mention jetzt gewijhnlicli annimmt. Sie kann mit mehr Wahrsoheinliclikeit betraehtet werden als ein Nachklang friiherer Zustande. Die Eeligion ist immer konservativ und stets bestrebt, alte und ehr- wiirdige Institutionen aufrechtzuerhalten, auch wenn die geanderten Verhaltnisse sich mit diesen Institutionen nicht mehr vertragen wollen. Schliesslieh siegen die Lebensverhaltnisse iiber solche Insti- tutionen, dieser Prozess ist jedoeh ein sehr langer und die Institu- tionen konnen tatsaolilicli eines natiirlielien Todes gestorben sein, ohne dass darum die Geistlichkeit schon geneigt ware, seiches anzuerkennen. ' Op. cit., v. IV, 126-127. " According to Eobertson Smith ' the older Semitic kingdoms were not feudal.' Op. cit., 92. "1 Sam. 8: 12; Ezek. 45: 7 f . "Buhl, op. cit., 46; also compare the 'Am-ha-ares of the Hebrews, see above, chap. VIII, note 56. '" Am. 5 : 3. Of. Gesenius, op. cit., 531. OF THE PRIMITIVE SEMITES 233 of the migrashim, or commoii pasture lands. "The pasture ground remained common property longest, while the cultivated ground gradually became the private possession of individuals."^^ Finally, it is not improbable that the law of the sabbatical year^^ owes its origin to a state of com- munistic agriculture.^* According to Ex. 23 : 10 f . the landless Israelite has a right to share in the produce of the seventh year. There is much in favor of the supposition that the harvest of the seventh year belonged to all Israelites in common. This, of course, would amount to a serious 'limita- tion of the private ownership of realty for the good of the whole community.'^* The institution of private property, as previously remarked, triumphed in the end.^^ With the con- solidation of the kingdom under David and Solomon the tribal life of Israel assumed a different aspect. But the tenacity of the old tribal system was such as to leave its impress on the internal administration of the various communities, the royal government contenting itself apparently with the receipt of the usual taxes and tribute.^^ All the essential func- tions of government in the towns and villages of pre-exilic Israel were in the hands of a councU of elders,^'' composed of the heads of families or clans ^BuU, The American Journal of Theology, I (1897), 733. ^ See above, pp. 161-164. " Wellhausen, Proleg., 118. "Buhl, op. cit., 739; S.V.!., 64; Wellhausen, loc. cit. ^ See above, pp. 209-210. =»Benzinger, E.A.,' 261 f. " eeqenim. 234 LEGISLATION OF THE SEMITES residing in each community.^^ During the exUe the elders appear as the official representatives of the clans, acting on their behalf on every important occasion.^" The return from the Babylonian exile, it may be noted, was a concern of the clan as a whole, and not a matter of individual initiative.^** The 'elders of the Jews,' as we learn from the book of Ezra,®^ were recognized by the Persian satrap as the hereditary representatives of the Jewish community. =*Cf. Judg. 8:14 (Succoth); 11:5-11 (Gilead) ; 1 Sam. 11:3 (Jabesh) ; 16: 4 (Bethlehem) ; 30: 26 and 2 Sam. 19: 12 (Judah) ; 1 K. 21:8, 11 (Jezreel); 2 K. 10:1-5 (Samaria). See Schurer, op. cit, II, 176 f. ^'Ezek. 8: 1; 20: 1. ""Ezra 2; Neh. 7: 7 f . " Sdbe yehudaye, 5 : 5, 9 ; 6 : 7, 8, 14. INDEX OF BIBLICAL REFERENCES OLD TESTAMENT Genesis PAGE 2:20 173 14:20 222 15:1-4 85 15:6 128 16:2 18 17:10 f 86 20:3 15 21:10 55 21:25, 30 228 22:1-13 10 23 70 f. 23:4 166 24:2 85 24:12 f 86 24:50 f 2 25:30 f 40 26:15 f 228 27:29 40 28:22 222 29:8 228 29:31 f 2 30 2,18 31:43 2 33:19 72 34:14 f 86 35:18 2 35:22 39 37:7 173 38 57 f. 49:3 39 49:8 40 49:17 115 49:26 161 Exodus 2:16 228 4:24 f 86 24:22 PAGE 162 9:31 12:44, 48 86 12:49 150 13 : 1 f 219 f. 16:18, 23 169 20:22-23:33 89 21:2f 15,89f.,176 21:7 31 21:28 15 22:15-16 31 22:21, 23 149,166 22:25 113,128,131 22:28f 219 f., 222 23:6-8 133 23:9 149,166 23:10f 156,163,233 23:19 221 23:30f 86 f., 166 30:13-15 226 34:12,15 87 34:19,20 219 f. 34:22 162 34:26 221 38:25f 226 Leviticus 2:14 162 7 200 7:32-34 199 18:16 62 19:15 133 19:31 45 19:33 f 150 20:6 45 20:21 62 23:10 f 221 150 236 INDEX OP BIBLICAL REFERENCES PAGE 25:2 f 163 25:4:-7 161 f. 25 : 8 f 161, 165 f ., 173, 175 f . 25:20-22 162 25:23 166 f. 25:24 169 25:25 75,77,169 25:26 f 169 f. 25:35-38 113,116,131 25:39-55 92 f. 25:49 85 26:34f 163 26:41 86 27:14 f 173 £. 27:30f 200, 225 f. 37:30 161 NuTnbers 1:2 178 3:12 f 219 3:24 f 179 3:46-51 220 6:2 f 161 9:14 150 9:31 156 15:15 f 150 17:17 179 18:15-18 221 18:21 f 202,225 18:25 225 21:6 f 115 26:53-56 178 27:1 f 20,32,57 33:54 178 35 66, 202 35:3 f 171 f. 36:1 f 20,33,57,144,173,175 Deuteronomy 1:15 207 4:21,38 166 7:2 87 PAGE 7:22 86 10:9 200 10:17-19 150 12:12 200 14:22 f 62, 221 f ., 224 £. 14:26 f 129,200 15:1 f 92, 156 f., 175 f. 15:2 15 15: 12f 90 f., 176 15:19-21 221 16:10 f 201 16:18-20 133 17:14 f 207 17:18 201 18:lf 199 f. 18:11 45 19:1 f 66 19:14 143,180 21:15 f 33,39,40 21:18-21 10 22:22 15 22:28-29 31 23:19 f 114 f., 131 23:25-26 155 24:6, 12 f 128 24:19-21 155 25:5-10 33, 59 f., 64, 231 26:2 f 223 f. 26:12 f 200 26:13-14 44 27:17 143,180 31:10 156 32:9 144 33:16 161 Joshua 5:2 £ 86 6:4-5 165 7:14 f 178 13-21 178 15:19 19 17:14 144 INDEX OF BIBLICAL REFERENCES 237 PAGE 19:9 144 20 66 21 202 21:11 f 172 22:14 179 24:32 72 Judges 1:3 144 1:12 £ 19,228 1:28,35 86 2:2 87 5:18 173 8:14 234 8:24 206 9:1-6 3 ll:lf 55 11:5-11 234 11:23-24 88 11:30-34 10 13:5,7 161 13:24 2 16:17 161 17:1 f 18 17:10 69 19:22 f 15 1:11-13 61,76 2:1 75 2:20 169 3:2f 75,169 4:3 f 20, 61, 76 f. 4:7 60,130 4:17 2 1 Samuel 1:20 2 2:12 f 198 f. 3:3 129 4:21 2 8:10 f 206 f., 232 PAGE 8:14-15 148,209 8:17 226 9 85 9:12-13 129 10:19-21 178 10:25 207 11:3 234 12:3 142 16:1 f 85 16:4 234 17:12 f 208 17:25 207 f. 17:26,36 86 21:7 199 22:7 207 28:7f 45 30:26 f 206,234 S Samuel 2:8 f 144,209 11:26 15 14:11 66 16:21 f 39 20:24 208 24:24 69 f. 1 Kings 1:11-13 40 2:13 f 39 2:26 75 2:27,35 197 4:7 f 209 f. 5:1 f 208 f. 9:10-13 210 9:16 19 10:14 f 210 f. 12:4 f 208,211 15:18 211 18:5 212 20:14f 210 21:3 43,169 21:8,11 234 21:19 141,148 238 INDEX OF BIBLICAL REFERENCES ^ Kings „.„„ ° PAGE 2:9 39 3:4 209 4:1,7 142 4:8 f 19 9:24f 141 9:33 156 10:1-5 234 10:15 f 141 12:5,19 211 15:19-20 212 16:18 211 18:14-16 211 19:29 161 23:9 202 23:34^35 212 1 Chronicles 2:34 85 2:55 141 5:1 f 40 6:40 f 172 12:5 168 16:18 144 21:25 70 24:6 179 27:1 f 209 f. S Chronicles 9:13 f 211 16:14 .' 46 21:19 46 24:6,9 226 31:5 f 226 36:21 163 Ezra 2 234 4:13,20 212 5:5,9 234 6:7,8,14 234 7:24 213 Nehemiah ^^^^ 5:1 f 131 f., 212 f. 7:7 f 234 10:32 156,164,226 10:37-39 225 11:1-2 204 12:44r-47 225 13:5f 203,225 13:10 75 Job 24:2 f 130,143,180 42:15 34 Psalms 15:5 115 16:5-6 144 49:11 44 60:8 130 60:10 60 78:51 39 78:55 144 105:11 144 105:36 39 106:31 128 108:9 60 125:3 144 Proverls 6:1-5 131 10:5 130 11:15 130 17:18 130 19:18 10 20:16 130 22:28 143,180 23:10 143,180 28:8 115,116 Canticles 3:6 210 7:11 171 INDEX OF BIBLICAL EEFERBNCES 239 Isaiah PAGE 1:23 146 3:14-15 145,148 5:8 f 144 f., 148, 169, 177 8:19 45 10:1-3 146 19:3 45 21:15 156 29:4 45 29:21 146 30:27 62 32:10 162 33:23 156 35:9 79 40-66 78 44:24,26 78 48:20 78 50:1 144 51:10 79 52:1 86 52:3,9 78 54:1 15 60:6 210 61:1 165 62:4 15 62:12 78 65:2-4 45 Jeremiah 1:1 75 5:26-29 146 7:5-7 147 16:7 44 17:4 156 22:3 147 32:6-15 66 f., 77,169 34:8 f 911,159,165,176 35 141 37:1-10 91 37:12 180 Ezehiel 1:3 202 PAGE 4:14 202 8:1 234 18:8,13,17 114,116,130 21:1 234 22:7 147 22:12 114,116 22:29 147 24:17,22 44 27:6,17 210 31:12 156 32:4 156 33:15 130 36:38 196 37:1 f 196 39:25,29 194 40-43 197 42:13 198 43:7-9 46 43:12 197 44:6 f 197 f. 44:7,9 86 45:1 75 45:2,4 171,197 45:5 f 201, 203 f., 232 46:16f 165, 175 f., 204 47:1 f 194 f. 48:1 f 195 f. 48:14 75 48:15f 171 f., 203 f. 12 Sosea 18 15 10 143, 148, 180 11 129 12 177 4 44 8-9 143 Amos 2:6 142 2:8 129 2:11,12 161 3:1 179 240 INDEX OF BIBLICAL EEFERENCES PAGE 4:1-2 143 4:4 222 5:3 232 5:10 f 142 f. 5:19 115 7:1 212 8:5-6 142 f. Micah 2:1 f 143 f., 148, 177 2:5 3:5 PAGE . 180 . 115 Zechariah 7:9-10 147 13:8 39 Malachi 3:5 148 3:8,10 225 NEW TESTAMENT Matthew 17:24,27 226 22:17 f 218 22:24 f 62 23:23 225 Mark 12:14 f 218 14:7 158 2:1-5 Luke 218 11:42 18:12 19:1 . 12:8 2:44 4:32 5:37 John Acts 225 225 219 158 181 181 218 APOCRYPHA 4; 12; 12 17 9 . :10 ... : 15-16 :3 .... Tout Ben Sira 44 128 128 131 128 19 131 30:18-19 44 f. 1 Maccabees 6:49,53 164 10:28 f 215 ll:34f 215 13:34-39 215 INDEX OF SUBJECTS Adoption, in Israel, 2, 85-87; Babylonia, 6, 24^-25, 27-28, 41-42, 47-48, 95-97; Arabia, 103-105. Agnation, in Israel, 14, 32-33, 57, 66 f., 85, 230; Babylonia, 47-48; Arabia, 53, 81. Agriculture (Heb.), 7-8, 77, 131, 155 f., 179, 204, 221, 229; (Bab.), 181-184; (Ar.), 189, 229. AM (At.), 5, 188. See Tribe. Allotment (Heb.), tribal, 177-180,. 192, 194^205; (Bab.), 181- 182; (Mod. Pal.), 190-193. Am ha-ares (Heb.), 147, 232. Ammat rdbitu (Bab.), 184. See Cubit. Ancestor worship, in Israel, 44-46 ; Babylonia, 48-53 ; Arabia, 53-55. Arable. See Land. Ba'al (Heb.), 14-15, 168. Ba'l (Ar.), 18. Batn (At.), 4, 188. See Tribe. Beena. See Marriage types. Bel (Bab.), 15-16, 167. Be'ula (Heb.), 15, 17-18. Booty (Heb.), 206, 222; (Ar.), 186, 206. Boundary stone. See Kudurru; Landmark. Bride-price. See Mohar, Mahr, Iir}}atu. Census. See Taxation. Circumcision, in Israel, 86, 97; Arabia, 105. Clan. See Tribe. Commons. See Communism. Communism (Heb.), traces of, 179- 181, 231-234; (Bab.), 181- 185; (Ar.), 185-186, 228- 229; (Mod. Pal.), 189 f. Contracts. See Legal Forms. CorvSe. See Service. Crown. See Land. Cubit (Heb.), 196-203; (Bab.), 184. Dallim (Heb.), 146. Dar (Ar.), 187. See Tribe. Daughters, property rights of, in Israel, 31-33 ; Babylonia, 34-38; Arabia, 38-39. Dayn (Ar.), 126, 159. Deror (Heb.), 91, 98, 165, 175- 176, 204. Distraint. See Pledges. Dowry, in Israel, 18 f . ; Babylonia, 22 f., 34-37; Arabia, 4, 29-30. Elders (Heb.), 10, 59, 145, 147, 206, 233-234; (Ar.), 12, 54; (Bab.), 72, 181. Ezrah (Heb.), 87, 153, 195. Faddan (Ar.), 191-193. FallaMn, of modern Palestine, 189 f. FaUow, in Israel, 156-157, 161 f., 180. Firstborn (Heb.), consecrated to Yahwe, 219 f . See Primogeni- ture. Foreclosures. See Mortgages. 242 INDEX OF SUBJECTS Forms (Heb.), legal, 60, 130; the purchase-deed, 67 f . ; the Babylonian contract, 72; the Muhammadan contract, 107- 108; forms of Muhammadan emancipation, 110-111. Ger (Heb.), 87, 92 f., 147-150, 156, 166-167, 195. Ge'uUa (Heb.), 66 f., 77, 169, 177. Goel (Heb.), 61, 66, 79, 80, 93; the avenger of blood, 66; the vindicator of family rights, 66 f., 74-75; champion of oppressed relative, 75-77; Yahwe as, 78-79. Guarantees, for debt. See Pledges. Hayy (Ar.), 12, 186-188. See Tribe. Houses (Bab.), sold by area, 74. Individualism, of Hebrews, 13; of Canaanitish commercialism, 230; of Arabs, 12, 43; of Babylonians, 13. Interest, in Israel, 113-116; Baby- lonia, 73, 117-122; Arabia, 122-127. Iqrar (Ar.), 56. Jalr (Ar.), 11. Jar (Ar.), 152-153. JubUee, year of, 92-93, 165 f., 231-232. Kinship, in Israel, 1-3, 7-9; Arabia, 3-5, 10, 16, 188. Kudurru (Bab.), 49, 182-185. Land, arable (Heb.), 155 f., 172; (Bab.), 183; (Mod. Pal.), 190-193; farm lands (Heb.), 170-171; measure of, in Israel, see Semed; Arabia, see Faddan; Babylonia, ep. Qiruhu; the Babylonian metayer sys- tem, 101-102; communal, in Israel, see Migrash; Babylonia, see Ugaru; Arabia and modern Palestine, see Communism; crown lands (Heb.), 175-176, 204-205; (Bab.), 204; (Mod. Pal.), 190; value of, in Israel, 69-72; Babylonia, 73-74. Landmark, removal of, in Israel, 143, 180; Babylonia, 143, 185; Arabia, 193. Landownership (Heb.), not abso- lute, 166; vested in the deity, among the Hebrews, 166-169, 197; Phoe- nicians, 168 ; Babylonians, 167-168; Arabs, 168; tribal, see Land; individual, in Israel, 155, 179- 181, 230-233; Arabia, 30; evolution of, in Israel, 228 f.; Arabia, 228-229; Babylonia, 229. Land question and the Hebrew prophets. See Prophets. Land tenure, in Israel, Babylonia, and Arabia. See Landowner- ship. Levirate (Heb.), 57-64, 231; (Ar.), 64-65; presumably unknown in Babylonia, 65. Levites, exempt from taxation, 213; revenues of, 198 f . ; territory of, 171, 201-202. Loans. See Interest and Pledges. INDEX OF SUBJECTS 243 Mahr (At.), 28-30. Manumission, of slaves. See Slav- ery. Marh, arable, German, 172-173. Marriage contract (Bab.), 14, 26-27, 35. Marriage-portion. See Sheriqtu and Nudunnu. Marriage types, 2-4, 16 f . Maskin (Ar.), 151, 153. Matriarchy, survivals of, in Israel, 1-3, 228; Arabia, 3-5; Baby- lonia, 5-6. Meadows, common. See Com- munism. Metayer. See Land. Uigrash (Heb.), 171-173, 184^185, 197, 202-203, 232-233. Mishpaha (Heb.), 32, 165, 178- 179, 187. MisTcen (Heb.), 151. Mohar (Heb.), 18, 31-32. Mortgages, in Israel, 88, 132-133; Babylonia, 133-139 ; Arabia, 140. MusMcenum (Bab.), 100-101, 151. Mut'a. See Marriage types. NesheTc (Heb.), 113 f. See Inter- est. Nomadism, semi-, in Israel, 7-8, 88, 141, 228-229; Arabia, 188-189, 206. NoTcri (Heb.), 87, 114, 158. Nudunnu (Bab.), husband's as- signment to wife, 25-26. Oblation. See Teruma. Pasture, common. See Migrash and Communism. Fatria Potestas. See Patriarchy. Patriarchy, among the Hebrews, 7-10, 228; Arabs, 10-12, 65, 188; Babylonians, 12-14; Romans, 9 f . Pledges (Heb.), 128-133; (Bab.), 133-139; (Ar.), 139-140. Ploughteam, of modern Palestine, 191. Poor Laws (Heb.), 149-150, 155 f., 230; (Bab.), 150-151; (Ar.), 152-155. Preemption, in Israel, 66 f ., 77 ; Babylonia, 79; Arabia, 83-84. Priests (Heb.), exempt from taxa- tion, 213; property rights of, 75, 197-198; revenues of, 198-203; territory of, 197. Primogeniture, in Israel, 9, 39- 41, 230; Babylonia, 41-42; Arabia, 42-43, 64. Promissory notes, Muslim. See Dayn and Salam wasalaf. Property (Heb.), city, 170; con- centration of property in regal period, 143-148, 209-210, 230, 233; consecrated to Yahwe, 173- 174; paternal, inalienable, in Israel, 43-44; Babylonia, 46-48; Arabia, 53; value of landed property, see Land; in water, among the Hebrews, 228; Arabs, 186, 228-229. Prophets, as champions of the oppressed and indigent, 129 f . ; the land question from the prophetic viewpoint, 141-148. Prosiul, 159-160. Publicans (Heb.). See Tax- farmers. 244 INDEX OF SUBJECTS Purchase-price. Compare Moliar, Mahr, and Tir^atu. Purification, rite of, in Babylonia, 96-97; Arabia, 105; op. 124. Qirubu (Bab.), 183. Saftra (Ar.), 139-140. See Pledges. Kedemption, in Israel, 61, 67, 93, 169-174, 177, 219-221, 226; Babylonia, 79-80, 102, 181; Arabia, 110-112. Eedistribution, periodical, in Israel, 170; Babylonia, 181-182; mod- ern Palestine, 190-193. Eelease, year of, see Shemitta and Deror. Revenues, of Levites, see Levites; of priesthood, see Priests; under Hebrew monarchy, see Taxation. Biba (At.), 139-140. See Pledges. Sabbatical year, 161-164, 175-176, 216, 233. Sadaq (Ar.), 29; cp. 128. Sade (Heb.), 171-173. Salam wasalaf (Ar.), 126, 159. Sarih (Ar.), 153. Secxirity. See Pledges. Sedaqa (Heb.), 128. Semed (Heb.), 145. See Yoke. Service, public, Hebrew, impress- ment for, 207-209. Shemitta (Heb.), 157-158, 161, 175-176. Sheqel (Heb.), 69, 142, 174, 213, 220, 226-227; (Bab.), 73, 138. Sherigtu (Bab.), 22 f., 34. Shufa (Ar.), 83-84. See Pre- emption. Slave (Heb.), adopted male slave entitled to succession, 85, see Adoption; (Ar.),103; (Bab.), 95; value of Babylonian slaves, 94-95. Slavery (Heb.), 9, 15, 85-94, 145, 156, 197, 229-230; (Bab.), 12-13, 94-103; (Ar.), 103-112. Social Problem. See Prophets. Solidarity. See Tribe. Son, eldest, see Primogeniture; of concubine, in Israel, 55; Babylonia, 55-56; Arabia, 56. Tarlit (Heb.), 113 f. See In- terest. Taxation (Heb.), 204 f., 233; (Bab.), 182, 211; (Ar.), 210, 222; (Mod. Pal.), 193, 222. Tax-farmers, in Israel, 213-214, 216, 219; Babylonia, 36, 204, 216; Arabia, 193. Teruma (Heb.), 75, 195-198, 201, 204. Tirlatu (Bab.), 21 f. Tithe (Heb.), 44, 182, 200-203, 222-225; (Bab.), 210-211; (At.), 210; (Mod. Pal.), 193, 222; (Pers.),207; (Eg.), 222; (Gk.), 222. Tora (Heb.), 177. Toshah (Heb.), 92, 162, 166, 200- 201. Tribe (Heb.), organization of, 178-179, 209-210, 228 f.; (Bab.), 182; (Ar.), 38, 82, 186-188, 210. Tribute. See Taxation. Vgaru (Bab.), 183-185. Usury. See Interest. Village communities (Heb.), 179, 231-238; (Bab.), 182; (Mod. Pal.), 179, 189-193. INDEX OF SUBJECTS 245 Votary (Bab.), property rights of, 37-38. Wali (At.), 55, 80; the avenger of blood, 80-82; protector of kinsman's interests, 82; en- titled to succession, 82; Allah as, 83. Wells, digging of, in Israel and Arabia, 228-229. See Prop- erty. Wives (Heb.), property rights of, 18-21; (Bab.), 21-28; (Ar.), 28-31. Women. See Wives and Daugh- ters. Tolel (Heb.), 165. See Jubilee. Yoke, as an agrarian unit, in Israel, 145; Arabia, 191-193; Babylonia, 183. Zaka (Ar.), 124. Zadokites, territory of, 197; Priests. 'IP I'l!' i5i