THE NEW SCHAFF-HERZOG
witnesses under penalty of forfeiture. Such operations as purchase from a minor and deposit of goods or money were illegal if without witnesses. ■ The position of woman under the law is interestin0-. Her oath cleared her of the charge of adultery (131), repudiation by her husband 4. Legal gave her the right to her dowry (137- Status of 139), for open contempt of her hus- Woman. band she might be reduced to bondage in her husband's house, provided she had been a slack housewife (141); if she had been a good housewife, she might leave him and take her dowry (142), if she were slack and slandered her husband, she was drowned (143). Concubinage was allowed under certain conditions (145); a woman whose husband had under those conditions married again might elect to stay with the husband or to take her marriage portion and go home (148-149). Property deeded to a wife was hers absolutely (150). By making the agreement at marriage, she could not be seized for a debt contracted before marriage, but she might be held with the husband for one contracted afterward (151-152). The dowry of a mother went to her children at her death, not to her father (162), but the father of a barren wife received back her dowry less the price paid for her (163-164). The widow who remained with the family of her husband shared in the property equally with the sons; if she left she took only her dowry (172). A man was bound to support his wife and she to be faithful to him. Hence if he were captured by an enemy and had left for her means of subsistence, she was bound to remain in the home. If he had not done so, she was blameless if she married during his absence. When he came back, she returned to him, and the children followed the father. So a man who expatriated himself from his city could not hold his wife to marital duty.
Study of the code reveals that it was not a thing entirely new. Its provisions are such as would naturally suggest themselves in a 5. The developing civilization ; they are often Laws not the result of conservatism and insist- New, ence on class rights and privileges, and again as evidently modifications of nomadic custom. Yet the stage of advance is indicated by the facts that the era of blood-revenge is past and that capital punishment is in the hand of the State except in the two cases of violent entry and looting at a conflagration. Another sign of the advanced stage is the protection afforded both to the person and to property, especially in the case of commercial transactions. The developed law might indeed be expected when it was remembered that the processes of justice were implied as in operation at least 2,300 years earlier, when the name of a judge is given on a tablet. Both Sargon and Naram-Sin spoke of public justice, and Gudea named courts of law. That the code is gentler than earlier practise appears manifest, its processes and penalties being on the whole less savage than the custom-code of contemporary peoples. Thus H appears as a register of progress; and this is the more noteworthy when there is taken into account the fact that it is only a code, not a pandect. Many of the provisions have the appearance of being
rather examples of procedure than ample statutes for all possibilities. The general trend of opinion among Assyriologists is that H is but the consequence of the centralization of power by a strong and keen-eyed systematizer. The same grouping of factors appears in the administration of the empire as in this collection of statutes.
It was inevitable, in view of the discussion of Babylonian influence upon Hebrew life and literature, that as soon as the code was discovered, comparison should be made with M. It 6. Relation was found that a number of laws were to Pentateu- almost exact reproductions or parallels, chal Codes, there were many others in which there was an identity of principle but difference in detail of treatment, still others showing sharp contrast in principle and treatment, while whole groups of laws in one are not represented in the other. In accounting for these facts students find themselves in one of three positions. Since H is indisputably the older, if either is dependent on the other, M must be the derived code. Accordingly some, emphasizing the influence of Babylonia on the West, derived parts of M at a late period from H. Others attribute the similarities in M to transmission from Abraham who had received the laws in Ur. A third view is that the similarities are best explained by regarding both codes as national developments under different environment from a common stock of Semitic custom. A decision is made more difficult because the Hebrew legislation is of at least three different periods, the early kingdom (Ex. xx.-xxiii. 20), the seventh century b.c. (Deuteronomy), and the Exile or later (the Priest-Code). Complicating the situation is the brevity of the earliest code, affording but few grounds of comparison. Moreover, the data obtained by comparison of the longer M codes are claimed by all three parties as favoring their individual contentions. Representative facts are the following:
Correspondence exists in the case of assault upon a betrothed maiden (130; Deut. xxii. 25), of a slave concubine who had borne children (146; Deut. xxi. 14), of adultery with a daughter-in-law, betrothed or married (155-156; Ex. xxii. 16-17; Lev. xx. 12; Deut. xxii. 28), of false witness (3; Deut. xix. 19), of kidnapping (14; Ex. xxi. 16), witchcraft (1; Ex. xxii. 18), and of violence to a pregnant woman (109-114; Ex. xxi. 22). The laws of deposit differ only in detail (100-107; Ex. xxii. 7-15). Divergences are that according to H a man may pledge his wife, son or daughter for payment of a debt for three years only, in M for six years (117; Ex. xxi. 2; Deut. xv. 12). In H no provision is made for absolute release of a slave pledged for debt; in M there was a jubilee release, though whether that was more than theoretical is one of the debated questions. The careful provisions in H, on pain of forfeiture, for witnesses to deposits, loans, or property given or entrusted for purposes of trade or in barter or sale are lacking in M (122, 123). The actual ordeal by water is in H alone (2,123), though the oath (which is an ordeal and one of the most common) is used by both. Necessarily a series of prescriptions with reference to lands let on feudal ten-