THE NEW SCHAFF-HERZOG
form of punishment) were introduced by the Romans. Burning to death seems to have been practised in the earliest period (Gen. xxxviii. 24) but in later times it was restricted to gross immorality (Lev. xx. 14, xxi. 9), while the Code of Hammurabi enacts it as the penalty for incest. Punishment by beating is first mentioned in Deut. xxv. 1-3, but the crimes for which it was inflicted are taken for granted, although the maximum number of blows is fixed at forty (later forty less one; cf. II Cor. xi. 24; Josephus, Ant., IV., viii. 21, 23). Imprisonment is first mentioned in the post-exilic period (Ezra vii. 26), but dungeons, stocks, and iron collars were frequently employed by the kings (Jer. xx. 2, xxix. 26 sqq.; II Chron. xviii. 25). In all other cases, as in the Code of Hammurabi, fines alone were exacted, and were regarded as a recompense for plaintiffs rather than as punishments. The sense of liability is well developed, as it is in the Code of Hammurabi. A careful distinction is drawn in the Book of the Covenant between murder and manslaughter (Ex. xxi. 12 sqq.), and the right of self-defense is recognized (Ex. xxii. 2), while accidental injuries are distinguished from intentional.
In their details the punitive regulations which have been preserved are very incomplete. According to the ancient view, death alone could atone for murder (Gen. ix. 5-6), and the later law was thus obliged to recognize the right of blood-revenge (Deut. xix. 1-13; Num. xxxv. 16-21), 2. Capital although the tendency to transform
Offenses, this into punishment inflicted by the authorities was early manifested (II Sam. xiv. 4 sqq.). The factor here at work was the distinction between murder and manslaughter. In Deuteronomy (xix. 1-13) previous hatred is considered a proof of the intentional character of the deed, and in the Priestly Code the use of a deadly weapon bears with it the same implication (Num. xxxv. 16 sqq.). Murder was punished with death (Num. xxxv. 31), yet the murderer had the right of asylum at a sanctuary (Ex. xxi. 14), or, in later times, at special cities of refuge (Deut. xix. 2-3; Num. xxxv. 11 sqq.). There it was to be decided whether the fugitive was guilty of murder or manslaughter. In the former case he was to be driven from his asylum (Ex. xxi. 14; Deut. xix. 11 sqq.; Num. xxxv. 11 sqq.); in the latter eventuality the guilty man was free within the city, although he could not obtain full amnesty until the death of the high priest (Num. xxxv. 25; post-exilic). In case of malice, the lex talionis was employed, but in injuries inflicted in the heat of quarrel the defendant had only to pay the expenses for the healing of the plaintiff, and recompense him for the time of his illness (for another case of fine,, cf. Ex. xxi. 22). Among offenses against morality, incest, pederasty, and bestiality were punished with death (Lev. xx. 10 sqq.; Ex. xxii. 18), and the same penalty was inflicted on both parties guilty of adultery, except that, when force had been used, the woman was acquitted (Deut. xxii. 25-26), the law agreeing herein with the Code of Hammurabi. The seduction of an unbctrothed girl was regarded as an injury to property (Ex. xxii. 15; Deut. xxii. 28-29), although
the daughter of a priest was punished with death (Lev. xxi. 9). A significant trait of Hebrew law is the fact that it, in antithesis to the Code of Hammurabi, comprised crimes against religion under civil law, punishing not only idolatry and witchcraft (Ex. xxii. 18, 20) with death, but even, in Deuteronomy (xiii. 6-18), any temptation to these crimes while the Priestly Code was still more severe (Lev. xxiv. 16).
IV. Rights of Persons: Full rights were enjoyed only by adult freemen who were capable of bearing arms. Lists of the citizens seem to have been prepared at an early period (Ex. xxxii. 32), and are frequently mentioned in later times (e.g., Isa. x. 19). In Num. i. 3 and Lev. xxvii. 3 the age of twenty is taken to be that at which arms may first be borne, and it may be assumed that this rule held good at an earlier period. The legal freedom of women, on the other hand, was limited.
V. Rights of Property: The regulations coming under this category are concerned with purchase, debt, and indemnity. The purchase and sale of movable property, as well as many other commercial matters regulated in the Code of Hammurabi,
were not controlled by Hebrew law. i. Real Preexilic Israel was not a commercial Estate. people. In the sale of real estate,
custom laid restrictions on the owner. The ground in which father and grandfather were buried (I Kings xxi. 3) was sacred to the son and grandson, and the law sought to keep the property in the family, giving those kinsmen who had the right of inheritance the privilege of preemption and redemption (Jer. xxxii. 8 sqq.). The Priestly Code enacted the right of redemption of real estate to be exercised within a year (Lev. xxv. 25 sqq.). The antiquity of this custom is unknown, but it is a mere theory that every fifty years purchased property was restored to its original owners without compensation (Lev. xxv. 13 sqq.). Certain formalities were customary in purchase. Witnesses were summoned (Gen. xxiii. 7-20), and in the time of Jeremiah it was usual to draw up a deed (Jer. xxxii. 6 sqq., 44). An ancient symbolic act in the transfer of real estate was the giving of a shoe to the purchaser by the seller in token of his renunciation of the property, a ceremony no longer clear in origin (Ruth iv. 7; cf. Ps. Ix. 8; Deut. xxv. 9, xi. 24?).
Debt receives less detailed treatment than in the Code of Hammurabi. Debts exist, even according to the view of Deuteronomy, only because the poor exist; the Old Testament knows nothing of a system of credit in connection with trade. The
tendency of the laws, therefore, was to 2. Debt, protect the debtor against oppression.
Usury was accordingly forbidden, but unfortunately there is no statement respecting a just rate of interest (Ex. xxii. 25). In ancient Babylonia interest ran as high as forty per cent, and averaged twenty per cent. In the Israehtic code the creditor received a pledge, but could retain an upper garment, the covering of the poor, only until sundown (Ex. xxii. 26). Deuteronomy went still further, and prohibited the taking in